Stockwell v. Shalit

Braley, J. The estate, under R. L. c. 142, § 2, having been represented insolvent, and commissioners appointed by the Probate Court, the administrator as their representative could recover for the payment of debts property conveyed by the intestate in fraud of his creditors. But an administrator cannot maintain either a writ of entry or the concurrent remedy of a bill in equity to recover possession of land fraudulently conveyed unless he first obtains a license to sell. R. L. c. 146, § 17. Pease v. Pease, 8 Met. 395. Brigham v. Hunt, 152 Mass. 257. Billings v. Mann, 156 Mass. 203. O’Brien v. Murphy, 189 Mass. 353, 357. Tyndale v. Stanwood, 190 Mass. 513, 516. If a demurrer had been interposed or the defense specially raised in the answer, the bill must have been dismissed as to the real [273] estate, for it contained no averment of this jurisdictional requirement, and the record fails to show that a license was granted. It is only by operation of the statute that an administrator upon recovery is enabled to transmit the title of his intestate to purchasers as if the fraudulent conveyance had not been made. By the memorandum of facts, the defendant holds under a voluntary conveyance from her son. If, therefore, the first conveyance was invalid, the defendant, not having been a purchaser for value, cannot retain the land. But upon evidence not reported the presiding judge found, that even if at the date of the deed to the defendant’s son, as well as at his decease, the intestate was insolvent, the conveyance was given in payment of services rendered by the grantee. A preference founded upon a valuable consideration, although made with intent to defeat other creditors, is valid at common law. Stevens v. Bell, 6 Mass. 338, 342. Everett v. Walcott, 15 Pick. 94, 97. If proceedings in bankruptcy or insolvency have not been instituted before the debtor’s death, the right of his administrator to set aside a preference depends solely on our statutes relating to the distribution among creditors of the estate. But no provisions similar to those found in B,. L. c. 163, § 110, governing preferences made by insolvent debtors having been enacted as to the settlement of insolvent estates of deceased persons, the common law controls. If, however, the plaintiff cannot set aside the preference, the further finding that the deed was delivered in escrow to take effect on the grantor’s death does not as the plaintiff contends avoid the conveyance or entitle him to a decree for a reconveyance or for its cancellation. It was the intention of the grantor that the scrivener, to whom he gave instructions accordingly, should take and retain possession until the grantor’s death, when the deed was to be delivered to the grantee upon payment by him of the expenses of preparing the instrument. The directions having been followed and the payment made, there was an acceptance by the grantee, and the estate vested from the time of the execution of the deed. Foster v. Mansfield, 3 Met. 412. O'Kelly v. O'Kelly, 8 Met. 436. Timothy v. Wright, 8 Gray, 522, 527. Regan v. Howe, 121 Mass. 424. Decree affirmed.