Spooner's Adm'r v. Hilbish's Ex'r

• Citation: 23 S.E. 751,92 Va. 333
• Parties: SPOONER'S ADM'R et al. v. HILBISH'S EX'R.
• Decision Date: 05 December 1895
• Court: Supreme Court of Virginia

23 S.E. 751

92 Va. 333

SPOONER'S ADM'R et al.

v.HILBISH'S EX'R.

Supreme Court of Appeals of Virginia.

Dec. 5, 1895.

Fraudulent Conveyances — Right of Administrator to Impeach—Multifariousness— Insurance Policy—Assignment.

1. A personal representative cannot impeach a voluntary assignment by his decedent of a chose in action as in fraud of his creditors.

2. An administrator may recover, as assets of the estate, the subject of a voluntary assignment which was not perfected by his decedent.

3. An administrator, in his individual capacity, as creditor of the estate, and as administrator, may sue to set aside a voluntary assignment of a chose in action by his decedent, as in fraud of creditors, especially where the bill also alleges that the assignment was not completed.

4. A bill by an administrator, in his fiduciary capacity and as creditor of the estate, to collect a policy on his decedent's life, and to set aside an alleged assignment thereof by decedent during his life, and to subject the proceeds to the payment of decedent's debts, is not multifarious.

5. That insured executed a voluntary assignment of the policy on his life, in duplicate, and mailed a copy to insurer, in accordance with its rules, the other being retained by insured until after his death, does not constitute an assignment.

6. Judgment was recovered against an insurance company, as garnishee, in an action against the assignee of a policy. Subsequently, on the death of the assignee, the company paid his executor the proceeds of a policy on his life, in consideration that it be permitted to retain a certain amount to indemnify it against the judgments recovered in case the assignment of the first policy was invalid. Held, on such assignment being set aside, the executor was estopped to deny the right of the insurer to indemnify itself against the judgment from the amount retained for that purpose.

Appeal from circuit court of city of Albemarle.

Action by the executor of one Hilbish against the administrator of one Spooner, and others. From the decree the administrator of Spooner appeals. Affirmed.

Danl. Harman and Geo. Perkins, for appellant.

S. V. Southall and Saml. B. Woods, for appellees.

RIELY, J. It is undoubtedly true, as a

general rule, that a personal representative cannot be heard to impeach as fraudulent a transaction of his decedent in his lifetime. Davis v. Swanson's Adm'r, 54 Ala. 277; Brown's Adm'r v. Finley, 18 Mo. 375; Blake v. Blake, 53 Miss. 183; Osborne v. Moss, 7 Johns. 161; and Dorsey v. Smith-son, 6 Har. & J. 61. It would be unimpeachable on such ground by the decedent himself, if alive, and it is equally so by those in privity with him. The personal representative simply succeeds to the decedent's title, and hence stands on no better ground than his decedent We are aware that there are decisions by the courts of other states to the contrary. Schouler, Ex'rs, §§ 220, 297, and 3 Williams, Ex'rs, 1782, and note thereto. But in the majority of the cases cited in support of the text, if not in all of them, the decision was due to the peculiar provisions of the statutes of the respective states. The statute of Virginia in regard to fraudulent gifts, conveyances, and assignments avoids them as to creditors and purchasers, but confers no power on the personal representative of the fraudulent debtor to impeach them. It leaves them good and valid between the parties and their privies. Code Va. §§ 2458, 2459. While the general rule is as above stated, a personal representative would nevertheless have the right, and it would be his duty, to recover, as assets of the estate, the subject of a gift or voluntary assignment that was not perfected by the decedent in his lifetime. It is charged in the bill that the alleged assignment of the policy of insurance, which is the subject of this controversy, was voluntary and without consideration; that the money due upon it was necessary for the payment of the debts of the decedent, who was the insured; and that any intention on the part of the decedent, in his lifetime, to assign the policy to M. M. Spooner, was never consummated, but abandoned. Under such allegation of fact, which, for the purposes of the demurrer, is to be taken as true, the executor of Hilbish had the right to sue to recover the proceeds of the policy of Insurance. He brought the suit, however, not only as executor, but in his own right, as a creditor of the decedent. His right, as a creditor of the decedent, to have an assignment of a policy that was fraudulent in law or in fact set aside for the payment of the debts, in the case of a deficiency of assets, even though the assignment was fully executed and complete, cannot be questioned. To such a suit the personal representative of the decedent would be a necessary party. Under the particular circumstances of this case, as set out in the bill, it was immaterial whether he was made plaintiff or defendant The plaintiff being both a creditor and the personal representative of the debtor, he might have brought the suit in his own right, as creditor, and made himself, in his fiduciary character, a party defendant. Rodes' Adm'r v. Rodes, 24 Grat. 256, and Booth v. Kinsey, 8 Grat 560. He chose to bring the suit in his dual character of creditor and personal representative, as was done in Shields v. Anderson, 3 Leigh, 729. In this there was no error, and certainly not under the allegations of the bill. See Spoon v. Smith (S. C.) 15 S. E. 801, and Werts v. Spearman, 22 S. C. 217.

Nor is the bill obnoxious to the objection of multifariousness. it is said to be Impossible to lay down any universal rule as to what constitutes multifariousness, and that the application of the rule is held to depend upon the particular circumstances of the case presented. Story, Eq. Pl. § 530. It was said by Judge Harrison, in delivering the opinion of this court in the recent case of School Board of Albemarle Co. v. Parish, 23 S. E. 221: "Courts, in dealing with this question, look particularly to convenience in the administration of justice; and, if this is accomplished by the mode of proceeding adopted, the objection of multifariousness will not lie, unless the course pursued is so injurious to one party as to make it inequitable to accomplish the general convenience at his expense." The main purpose of this suit was to administer the estate of the decedent, P. C. Hilbish; to ascertain the debts, collect the assets, and subject them to the payment of the debts. Among the assets there was alleged in the bill to be the policy of insurance heretofore referred to. It had been taken out by the decedent on his own life, and for his own benefit. The money due upon it was needed for the payment of bis debts. It was claimed by Spooner under an alleged assignment from the decedent. The assignment was contested by the plaintiff, who sought to recover, and subject the proceeds of the policy to the payment of the debts. Spooner was interested in sustaining his claim to the policy under the alleged assignment, the insurance company was interested in having the proceeds of the policy paid to the proper person, and the legatees were interested in the administration of theestate, and in any surplus that might remain after the payment of the debts, including the money payable upon the policy. All the parties to the suit—the plaintiff and all of the defendants—were therefore directly concerned in the controversy over the policy; and it was not only convenient to settle it in this suit, but to do so would prevent a multiplicity of suits, which is a favored...