
    F. W. Rosenthal & Co. v. E. Enevoldsen.
    Administrator. Suit by personal creditors of'. Fraud. Section 2086, Code 1880. A bill was filed by creditors of E. against him personally, and as administrator of bis deceased wife, to subject to the payment of their claims certain property alleged to have been fraudulently transferred by E. to his wife during her life. E. pleaded that six months had not elapsed since grant of administrator. 'Held, that the case came within the letter of \ 2086 of the Code of 1880, and the plea was sufficient.
    
      Appeal from the Chancery Court of Yazoo County.
    Hon. E. G. Peyton, Chancellor.
    The facts are stated in the opinion.
    
      Bowman & Barnett, for the appellant.
    The only question to be considered in this case is, does § 2086, Code of 1880, apply to cases of this character? The debts sought to be collected are the debts of E. Euevoldscn individually, and not as administrator of the estate of his deceased wife. No debt due by his wife’s estate is sought to be collected. In Reedy et al. v. Armstead et al., 31 Miss. 354, it was said that “the exemption is broad and applies to all suits and actions against administrators in which they are necessary parties.” In Anderson v. Neioman, 60 Miss. 532, the case of Reedy et al. v. Armstead et al. was cited with approval. In both these decisions, however, it must be noted that the complainants were seeking to recover a debt due by the deceased person, and the language of the court must be construed with reference to the particular state of facts developed. The bill of complaint charges that to avoid the just claims of his creditors the defendant, Enevoldsen, resorted to many devices, such as getting his property in his wife’s name. It further alleges that said Enevoldsen is treating this property as the property of his wife’s estate. In such proceeding the administrator of Julia Enevoldsen, who happens to be E. Enevoldsen, was a necessary party. If the property originally owned by E. Enevoldsen were in existence, the complainants, who had judgments, could have had executions issued and levied upon executing indemnity bonds; to this course no objection could have been raised by the administrator, notwithstanding the result would be to force him into litigation, if he desired to claim the property as administrator. It will not be contended that § 2086 extends to a proceeding of that sort, notwithstanding when the issue is made up the judgment creditor is regarded as plaintiff and the administrator as defendant. In this case the judgment creditors, who are complainants, could not proceed by having execution levied, because the property originally owned by Enevoldsen was not in existence, it having been converted into money and the money used to buy other stock, besides some of the complainants had no judgments. Suit, therefore, had to be brought; but there is no good reason for prohibiting sujfc so long as executions can be levied by judgment creditors at any time upon property that may be claimed by an administrator, but which in fact is the property of the judgment debtor. If one of the reasons of this section is to give time to an administrator to find out whether or not property he has l’eceived belongs to the estate, then why is it that executions ax’e permitted to be levied in the case supposed ? We say that § 2086 was intexxded for the benefit of the creditors in the xnain, but it is insisted in this case that such construction should be placed upon it as will benefit only the true owner. If the allegations in the bill are true, this property is not assets at all, and cannot be applied to the payment of the debts of the deceased person. It is to the interest of all interested that its time character be ascertained at once. We submit then that the fair and reasonable construction of § 2086 is, that it was meant to apply to suits or actions brought by the cx-editors of the estate, and not to suits of this charaetei’, and that any other construction would work great injustice. We do not think it necessary for the court to create an exception to the statute to reverse this case, because it appeal’s to be evident that it was not intended to extend to cases of this character’. But if it be necessary to create an exception the allegations in the bill call loudly for it.
    
      J. O. Prewett, for the appellee.
    1. The bill alleges that E. Enevoldsen owed manifold debts, and that by various devices he had got his business, which was furniture, coffins, etc., in the name of his wife, Julia Enevoldsen. Enevoldsen took put letters of administration on the estate of his wife on the-day of Februaiy, 1884, and this bill was filed on the ,--'day of February, 1884, within, say, a month of Mrs. Enevoldsen'’s death. Enevoldsen is sued by sundxy creditors seeking to subject the property which Enevoldsen is administering on, and for which he had given bond as administratoi’, the ground being that the property really belongs to Enevoldsen, and not to his wife or her estate. Enevoldsen is made a party in his individual and also in his l’epx’esentative capacity. He pleads that as administrator he cannot be sued within six months, and the other side seek to avoid the force of the statute in such eases by a system of reasoning that I do not think it necessary to follow.
    2. Section 2086 has received the construction of this court as it now stands and also under the old code. The high court of errors and appeals held in Reedy v. Armstead, 31 Miss. 354, that the exemption was broad and applies to all suits and actions in which executors or administrators are necessary parties. This case was cited and approved in Anderson v. Newman, 60 Miss. 532. They say they are not suing Enevoldsen as administrator. They are taking away, or seeking to take away, from the creditors and distributees of Mrs. Enevoldsen the whole of the personal estate she left, and which her husband is now administering, and for which he has given bond as her property. The effect of the bill is to take Mrs. Enevoldsen’s estate to pay the individual debts of her husband.
   Cooper, J.,

delivered the opinion of the court.

This is a bill filed by certain creditors of E.Enevoldsen against him personally and as administrator of the estate of Julia, his late wife, and against the children of the intestate, to subject to the payment of their claims certain property which it is averred was fraudulently transferred by the debtor to his wife during her life. The administrator pleaded that six months had not elapsed between the grant of administration and the institution of the suit, which plea was held sufficient by the Chancellor and the bill dismissed.

Section 2086 of the Code of 1880 declares thatno suit or action shall be brought against any executor or administrator, in such capacity, till after the expiration of six months from the date of the letters testamentary or of administration.”

In Breckinridge’s Admr. v. Mellon’s Admr., 1 How. 273, it was held that a scire facias to revive a suit was not such an action as was meant by the statute, and that the administrator might be proceeded against in that suit within the time prescribed. Reedy v. Armstead, 31 Miss. 353, and Anderson v. Newman, 60 Miss. 532, were suits in which it was attempted to fix charges upon the estate and to have satisfaction thereof by final process. The case now before us differs from those heretofore decided, as it is neither the continuing of a pending suit nor an attempt to fix a charge on the estate, its sole purpose being to contest with the administrator the title of the estate to the property in controversy.

It is nevertheless a suit brought against the administrator in his capacity as such, and one which could not be proceeded with in the absence of the representative of the estate, and is therefore at least within the letter of the statute. We do not say that cases may not arise requiring a restriction of the letter of the statute, but this should only be done where it clearly and unmistakably appears to be such a case as was not contemplated by the legislature.

We cannot say that this is such case. The administrator here may, from his connection with the business referred to in the bill and of his participation in the transaction attacked, have full knowledge of all the facts necessary to be known to prepare his defense to the suit, but if a stranger had taken administration it is apparent that it might be of the greatest importance that time should be given to enable him to familiarize himself with such facts, and we must assume this to have been the reason which operated on the mind of the legislature.

Under such circumstances both the necessity for and the application of the statute would appear, and since this case falls within that class of cases contemplated, it is not withdrawn from its operation by the individual circumstances peculiar to it.

The deoree is affirmed.  