
    [No. 13679.
    In Bank.
    September 10, 1890.]
    ANNA A. OHM, Administratrix, etc., Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.
    Estates of Decedents — Creditor of Estate — Disallowed Claim — Fraudulent Conveyance — Compelling Suit by Administratrix. — A person whose claim against an estate has been disallowed, by the administratrix, and for the establishment of which as a claim an action is pending and undetermined, is not a creditor within the meaning of section 1590 of the Code of Civil Procedure, providing for the compelling of a suit by an executor or administrator of an estate to set aside a fraudulent conveyance on application of creditors.
    Id. — Creditor’s Suit to Set Aside Conveyance — Statute of Limitations. — To entitle a creditor of an estate to maintain an action to set aside a deed of the intestate as void against creditors, he must he a cred- itor whose claim has been allowed by the administrator, or is evidenced by a judgment, and the statute of limitations does not bar an action by the creditor to set aside a conveyance by the intestate until three years after the judgment establishing the creditor’s claim, if disallowed by the administrator.
    Id. — Order Allowing Creditor to Use Name of Administratrix — Certiorari — Remedy of Creditor—-Enforcement of Order that Administratrix shall She — Contempt.—An order of the superior court directing one of the alleged creditors of an estate to commence and prosecute an action in the name of the administratrix, is without authority under the statute, and will be annulled on certiorari by the supreme court, as the creditor has his remedy independently of the administratrix; and the court can compel the administratrix to bring suit in a proper case, and enforce its order by proceedings for contempt.
    Writ of review from the Supreme Court to annual an order of the Superior Court of the city and county of San Francisco, directing an alleged creditor of an estate to commence and prosecute an action in the name of the administratrix. The facts are stated in the opinion of the court.
    
      W. C. Belcher, for Petitioner.
   Paterson, J.

The petitioner is administratrix of the estate of E. F. Ohm, deceased. On March 23,1889, Mrs. Judge filed a petition in the superior court asking for an order directing the administratrix to allow her name to be used in an action to be brought against the surviving wife of the deceased (Augusta L. Ohm), to set aside a conveyance of certain land made by E. F. Ohm in his lifetime to his said wife, with intent to defraud his creditors. It was alleged that at the time of the conveyance E. F. was indebted to sundry persons in the sum of about ninety thousand dollars, including a debt to petitioner of about five thousand dollars; that the conveyance was made without consideration and to defraud creditors; that deceased left no estate—except what was conveyed to his wife as aforesaid — with which to pay the claims of creditors; that the administratrix, though requested to do so, refused to bring suit to set aside the conveyance.

A hearing was had upon the allegations of the petition, and the court ordered that Mrs. Judge be allowed to sue in the name of Anna A. Ohm, the administratrix, on condition that Mrs. Judge defray all expenses of the action, and save the administratrix harmless therefrom. Thereupon the administratrix filed a petition herein for a writ of review, the writ was issued, a return has been made setting forth the facts substantially as narrated above, and showing the additional facts in a bill of exceptions, which is made a part of the return; that in due time Mrs. Judge presented her claim against the estate for over five thousand dollars; that the claim was rejected, and that she commenced an action against the administratrix on said rejected claim, which action is still pending.

The question" is presented, therefore, whether a person whose claim has been disallowed by the administratrix, and for the establishment of which as a claim an action is pending and undetermined, is a creditor within the meaning of section 1590 of the Code of Civil Procedure. That section reads.as follows: “No executor or administrator is bound to sue for such estate, as mentioned in the preceding section, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the court, or judge thereof, shall direct.” Under the provisions of this section, and the provisions of sections 1589 and 1591 of the Code of Civil Procedure, it is clear that the administratrix would have no right to commence an action to set aside a deed of her intestate as void against-creditors, unless “there isa deficiency of assets” (sec. 1589), and there are creditors for whose benefit “ all real estate so recovered must be sold.” (Sec. 1591.) Any creditor is entitled to maintain an action to set aside such a fraudulent conveyance (Hills v. Sherwood, 48 Cal. 392), but he must be a creditor whose claim has been allowed by the administrator, or is evidenced by a judgment. (Mesmer v. Jenkins, 61 Cal. 153; McMinn v. Whelan, 27 Cal. 300.) And the statute of limitations does not bar an action by the creditor until three years after the judgment establishing the creditor’s claim. (Forde v. Exempt Fire Co., 50 Cal. 302.)

In New York it' is held that the debt must be ascertained by judgment, and that 'the reason of the rule “ does not fail by the death of the debtor before judgment recovered for the debt.” (Estes v. Wilcox, 67 N. Y. 264.) And in Michigan, under statutes similar to our own, it has been decided that until the estate has been charged with claims by allowance or judgment, there is no basis for a bill against a decedent’s fraudulent conveyance in order to recover means to pay them.” (O'Connor v. Boylan, 49 Mich. 209.) Td the same effect is the decision of the court in Fletcher v. Holmes, 40 Me. 364.

It is claimed that the order cannot be annulled in this proceeding; that the court below had jurisdiction of the subject-matter and of the parties, and if it decided wrongfully on the evidence adduced at the hearing, it is a case of mere error, and review will not lie.

If the order of the court directed the administratrix to commence an action, it would be conclusively presumed that the evidence taken by the court was sufficient to support the order. The order, however, is not that the administratrix herself commence and prosecute the action, but that Mrs. Judge do so in the name of the administratrix. This gives to Mrs. Judge, one of the alleged creditors, control of an action in the name of the representative of all who are interested in the estate, — heirs as well as creditors. We are unable to find any warrant in the statute for such authority, and no case has been cited which upholds it. There certainly is no necessity for such action. The creditor may bring an action in his own name. The statute does not exclude him, — he has his remedy independently of the administrator. (Hills v. Sherwood, 48 Cal. 392.) Furthermore, the court can compel the administratrix to bring suit in a proper case. The statute declares that “ the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same.” (Sec. 1589.) Obedience to this mandate and the order of the court may be compelled by proceedings for contempt, or the letters may be revoked and an administrator appointed who will prosecute a proper action.

The order of the court under review herein is annulled.

Fox, J., McFarland, J., and Sharpstein, J., concurred.

Works, J.

I concur in the judgment.  