Ecklor v. Wolcott

WiNslow, J. This is an action in equity, brought by the plaintiff, as administrator of the estate of Josiah B. Loomis, deceased, intestate, for the purpose of setting aside a certain deed of real estate and certain transfers of personal property made by the deceased to his daughter, the defendant Phoebe Wolcott, shortly prior to his death, on the ground that the deceased was1 then mentally incompetent, and that said deed and transfers were made without consideration and under undue influence. The defendants answered, admitting the deed and transfers, and denying the remaining allegations [20] of tbe complaint. Tbe case was tried, and tbe court made findings negativing’ tbe allegations of tbe complaint, and tbe court dismissed tbe action. No evidence was offered or received showing that there were’ any creditors of tbe estate, or that there was or would be. any deficiency of assets in tbe estate to meet all proper claims against it qf any nature. There is no right on the part óf tbe administrator to attack alleged fraudulent transfers of property made by bis intestate except under tbe provisions of sec. 3832, Stats. 1898. Under this section it must appear, in order to entitle the administrator to maintain it, that there i's or will be a deficiency of assets to pay’creditors existing at tbe time of tbe transfer. Andrew v. Hinderman, 11 Wis. 148, 36 N. W. 624; O'Malley v. O'Malley, 102 Wis. 639, 18 N. W. 753. This consideration necessarily results in affirmance of tbe judgment, regardless of any question as1 to tbe correctness of tbe judgment upon tbe merits. By the Court. — Judgment affirmed.