
    Levi Benjamin vs. William Le Baron’s Administrator.
    An administrator cannot maintain an action of trover to recover goods, &c., transferred by his intestate to defraud his creditors.
    The remedy, if there be any, is in Chancery.
    This is a Writ or Error directed to the Court of Common Pleas of Belmont County.
    The original action was trover, in which the now defendant obtained a vérdíct and had judgment for $13,379. The.facts of the case, as gathered from the bill of exceptions, are, in substance, these: .
    In Bank.
    Dec. Term, 1846.
    
    On the 7th of September, 1837, Le Baron was possessed of a large real and personal estate, and, also, a contract with one Zane to build a bridge over the Ohio river at Wheeling. He was largely in debt and unable to meet his liabilities, and for the purpose of saving his property from sacrifice, he executed two deeds — one bearing date the 7th of September, 1S37, the other the 25th of September, 1837 — ; conveying all his property, of every description, to Benjamin, the interest in the bridge contract included. Le Baron died, and Benjamin claimed all the property, under the deeds aforesaid. Lathrop was appointed administrator, and commenced this action for all of the personal property above stated, and for the bridge contract, and, as was contended by defendant, for fixtures; also, to deprive Benjamin of the property thus held and appropriate it to the payment of Le Baron’s debts.
    Various errors are assigned, among which are these: That the Court erred in charging the jury that an administrator can maintain trover for goods fraudulently transferred by his intestate, and in charging that trover would lie for the bridge contract.
    C. C. Carroll, for Plaintiff in Error.
    Can the administrator of a fraudulent grantor, in an action of trover against the fraudulent grantee, recover for the conversion of the goods thus fraudulently transferred ?
    No lawyer of any considerable reputation, I apprehend, would hesitate for a moment as to the proper answer to be given to this question. These are familiar and well settled principles : A man is estopped by his own deed, his own act of transfer; he cannot take advantage of his own wrong, nor avoid his deed because of his own fraud; that deeds executed to defraud creditors are valid, as between the parties thereto. But despite these, as we vainly thought, impregnable axioms and well established principles, a Court has decided that this action can be maintained; not, perhaps, by the grantor himself, but by his administrator. We must revise our law upon this subject, and see if there be, verily, just ground for that decision.,
    Le Baron himself, the fraudulent grantor, could not maintain this suit.
    “ A deed made to defraud creditors is void only as against creditors.” * * * * “ Such fraudulent conveyances are valid, as between the parties;” Burgett v. Burgett, 1 Ohio Rep. 469; Douglas v. Dunlap, 10 Ohio Rep. 162. He who parts with property to defraud creditors, cannot bring trover to recover it. Stewart v. Kearney, 6 Watts’ Rep. 453.
    Le Baron could hardly succeed with the indorsement upon the writ, that he was suing for goods which he had fraudulently transferred.
    If Le Baron could not succeed in maintaining this action, can his administrator succeed ?
    What is an administrator ?
    By the statute 31 Edward in, “ It is accorded and assented, ‘ that in a case where a man dieth intestate, the ordinaries shall c depute the next and most lawful friends of the dead person ‘ intestate, to administer his goods, which deputies shall have e an action to demand and recover, as executors,” &c. Roberts on Persona] Succession, 28.
    In the Ohio Reports, the administrator is spoken of as the personal representative of the deceased, in whom the personal estate is vested, as a trustee for those who are ultimately to receive the benefit of the personal estate, (8 Ohio Rep. 370; 5 Ibid. 503,) as agent of the intestate’s estate, and of all the creditors also. 9 Ohio Rep. 18.
    Deputy, representative, trustee, agent! Rightly considered, the administrator is, perhaps, none of these. In some respects, he is a trustee for the creditors, or heirs, or both, as administering a fund, not his own, for their benefit, but he does not represent them. As agent or trustee, he derives no authority from them. His admissions are prima facie evidence of the indebtedness of the intestate, (8 Ohio Rep. 249,) but they are of no efficiency, as against the creditors. The law deputes the administrator, adjusts his position, and then the legal life of the intestate flows into him ; and, so far as assets go, he succeeds to all his legal rights, and is amenable to all his legal obligations ; and, in all things concerning the estate, is estopped where his intestate was or would be estopped, bound where his intestate would be bound.
    I think it is easy to see, that the administrator is something more than agent, trustee, or even representative. A man dead is dead in law, and the legal existence of the administrator is substituted for his. The administrator is invested with the personal estate. He succeeds to the legal rights and the legal individuality of the intestate, and is regarded as enforcing his rights, impelled by his own instincts of selfishness, and as resisting the demands of others from the same impulse.
    From whence, then, does the administrator derive his authority to avoid the fraudulent deed of the intestate ? Not from the creditors; he is not their constituted agent or appointed trustee. To them, he is antagonistical. Not from the intestate, for the intestate did not himself possess that power. Not from the common law, for the common law confers no power or right upon the administrator which was not possessed by his intestate. Not, certainly, from the statutes of Ohio.
    Thus, if I have rightly apprehended and correctly drawn the character and attributes of an administrator, it is easily seen that as Le Baron could not, his administrator cannot maintain this suit.
    But what is the law, as ascertained by judicial decision ?
    “ Persons making voluntary, or fraudulent, or covenous con- ‘ veyances, and all those claiming under them, are as much £ bound by such conveyances as if these statutes (13 and 27 ‘ Eliz.) had not been made4 Cruise Dig. 470. “ Nor will ‘ courts of equity assist the party making a voluntary convey- ‘ anee, or his representative, claiming as such, by setting them £ aside;” Spencer, Ch. J. in Jackson v. Qarnsey, 16 Johns. Rep.' 192; and see 4 Cow. Rep. 216. In both these cases the representative was the heir. .“ A conveyance to defraud credi- ‘ tors is good against the grantor and his heirs, and is. void only 'as' to creditors.” ’ Parsons, J., .in Drinkwater v.. Drinkwater, 4 Mass. Rep. 356. ■ ■ , .
    “ A deed made to defraud creditors, is void only as against creditors;” Burgett v. Burgett, and Douglas v. Dunlap, ubi. sup. “ The statute only makes the sale Void, as against creditors, and not assto the vendor or his personal representatives ;”■ Babcock v. Booth, 2 Hill’s Rtep. 185. A voluntary deed is void, as to creditors, if made to their injury, but is binding on the donor, her executors, administrators and assigns, and all claiming under them, bpth at common law.and- under the act of assembly., The executor is-estopped to,alle'dge that the deed is in fraud of creditors. Dorsey v. Smithson, 6 Hay: & Johns. 61. ■ , • ■
    “ The bill of sale, though fraudulent as to creditors, is good ‘ betwéen the parties, their heirs, executors, &c.; so that these ‘ effects could never be assets in the hands- of the. rightful ex- ‘ ecutor.” Foster et al. v Newlin, 4 Missouri Rep. 18.
    The cáse of Howland et al. v. Davis, Charlton’s Rep. 383, was a case of a creditor against a grantee, as executor-de son tort. The Court say4 “ The principle is, that the fraudulent * bill of sale, as to the 'creditors, is-void; and that any inter- ‘ ference with the goods conveyed .after, the death'of the ven- ‘ dor, will make the vendee chargeable. In these cases, .there ‘ can be no remedy in favor of the rightful executor or admin- ‘ istrator, because the conveyance is good against the grantor. * It is.the creditor only who can charge the vendor.” ■.
    In the cáse of Osborne y. Moss, 7 Johns. Rep. 161, it is decided that -a judgment, fraudulent and covinous as, against the creditors of the- judgment debtor, is, -nevertheless, binding upon the-judgment debtor and his administrator; and a sale of-chattels to the fraudulent, judgment'creditor, upon execution issued upon said judgment, was held valid as against the-., administrator. The decision is made upon the authority of the-case of Hawes v. Leader, Cro. Jas. 270; Telv, 196. The .Court say ;- “In that case, the intestate made a grant of his ‘ goods to B, 'by- fraud between him and B, to cheat the cred-' ‘ itors, and he'kept possession of the, goods and died. B then ‘ sued the 'administrator for the goods, and he pleaded this ‘ covin and fraud, and the statute of 13 Elizabeth, which de- ‘ dares all such gifts and grants void as against creditors; but, • ‘ on deifturrer-, thé plea 'was held- bad, and judgment was ren- ‘ dered for the plaintiff, on- the ground, among others, that the ‘ deed .was void' only as against creditors; but that it Remained ‘ good as against the party himself, and his executors and ad- ‘ ministrators.” In the case in Johnson, as in the ..case now under consideration,- the administrator was also creditor. - The ' case, it seems to me,-is very rftiich in-point. '
    .Thus, I think it .is proved l?y abundant authority, that the fraudulent conveyances ■ in this case are good and-. valid, as against Le .Baron and his personal, representativés. This -point being made good, the case of the defendant-in error fails,, and . the judgment of the Court below must be reversed. •
    
      Daniel Peók, for'Defendant in Error.
    Cart an administrator maintain an action under the circumstances discloseddn the bill of.exceptions¡? . ’ .
    Here is' the case of a man, who is indebted to a much greater amount than the value'of all his property for the purpose of defrauding his creditors'. conveys all of' his property to' his brother-ihrlaw, without consideration, and dies, After his death. the fraudulent grantee, by virtue of those conveyances, takes the possession óf, and claims the property. Ave .the creditors of the fraudulent, grantor without any remedy in such a case-;' and if-not, what is-their remedy ? .Can the ..administrator recover, this property for the purpose of paying the debts ?. ■
    It has.always beén held by this court, and, is no doubt good law, that there can be nó executor de son tort in Ohio. If the ■ administrator cannot sue for and recoven this property; as assets of the éstate, in what manner can the creditor come at his debt? By our law this property is assets.to"pay debts, and should be distributed pro rata amongst the creditors, for undoubtedly the creditors are’entitled to'it. ' The creditors have nd judgment, and cannot file a bill; no one but the creditor will administer, and is he remediless
    , Originally; in England, it is probable that the administrator 'succeeded to the rights and liabilities of.his intestate, and might not have been able to maintain any suit, his'intestate could not have sustained. Le Baron, if living, could not set .aside those fraudulent conveyances,, or recover back the property, from Benjamin, if it had been delivered; but if it had not been delivered,. Benjamin could not have enforced the .¿delivery of the property-under, such a fraudulent- contract. If Le Barón was alive, his creditors could' recover judgment-against'him, and,-.by bill in chancery, subject any of his property, in the hands of Benjamin, to. the satisfaction of their judgments. ' But Le Barón, is'dead ; his creditors have no -judgments; nope-but the principal cred-' itor will administer, and he is forced,.to do it to secure his debt. In what other way can-he proceed but'the way he'has chosen? The property has been so wasted or so converted by Benjamin, 'that it cannot be found; it seems to me that this is the only way that it can be reached.- ’ '
    In Ohio, I apprehend that the administrator represents-both the intestate and ' his creditors, and that he' can dp,' himself, every thing in relation to .the assets of the estate that creditor's could .do by bill in chancery, or otherwise. He surely ought to be able to administer every thing that can, in any sense, of the Word, be - considered as assets, for the payment of the 'debts.
    He is the proper person' to make the distribution. If this was not the case, one creditor. might realize the whole of his debt, and the others be entirely cut off. "
    Ca.n there be any doubt but that this property, pr its value, if récovered, is assets to pay the debts, and that the administrator is the proper person to distribute the same in the payment of the debts of .the estate ? ' '
    
      . The Legislature has, expressly made lands, fraudulently conveyed by the intestate, assets to pay 'the debt? in- the hands of the’administrator, and has pointed out the manner of obtaining the possession of such lands.
    'In a similar case in .England,- and in most of the States, the creditor could have sued Benjamin as executor de son tort: Campbell V. Toucy, Ex. of Booth, 7 Cowen Rep. 64.' .
    But, as ■ before, observed, the creditor who could proceed in that manner would get the whole of the assets. Now, the spirit of, every administration law-we have been governed by, has had equality of the distribution of the effects for its basis; that is one reason why our-laws.and courts have been so uniformly opposed to any law' which' will ■ admit of executors de son tort. .
    The c.ase of Babcock v. Booth', was decided in New York, in 1842; 2 Hill's. Rep. 181. In pronouncing'the opinión of the Court, the Judge says: “ Where a fraudulent grantee takes ‘.possession of the goods in the lifetime, of the vendor, who ‘ afterwards dies, leaving debts unpaid, it seems, that the goods ‘ will, as to, creditors,- be decreed to be assets- in the personal ‘ representative of the deceased; and if so, the executor or ‘ administrator must, '.'of- course, have ,an action against the *' fraudulent vendee tó recover the property.” Rob. on Frauds, and Cro'. Eliz. 810, are cited.. . - ’ ■
    , “ The only question, then, to be considered, is, whether the ‘ personal representative of a fraudulent grantor, who remained ‘ in the possession of the property, can, for the benefit of ‘ creditors, set up the fraud, and thus'avoid the salé, i think ‘ he.-can, and that-the Court below erred in hqlding the con- ‘ trary doctrine. , All the books agree' that thé sale, though hot ‘ void as to the parties to it, is utterly void as to creditors, and ‘ the Only’difficulty is as to the-mode in which they shall-come ‘ at their rights.”
    
      “In Bethel v. Starnhope, Cro. Eliz. 810, tlie fraudulent donor ‘ died in the possession of the goods;, and it was said, that ‘ when the donor -afterwards took them, it is a trespass against 4 the administrator, for which he hath his remedy, and they are 4 always assets in his hands.”
    Lately, in New York, the Legislature passed an act, declaring that no one shall be charged as executor de son tort in thqt State.
    In Doe v. Barkenstose;, 12 Wend. 145, the Court says: 44 Executors and administrators have a new character, and stand 4 in a different relation, from what they formerly did, to the 4 creditors of the deceased person, with whose estates they are 4 intrusted. They are not now the mere representatives of 4 their testator or intestate; they are constituted trustees, and 4 the property in their hands is a fund to be disposed of in the 4 best manner for the benefit of the creditors.”
    In Shield v. Anderson, 3 Leigh Rep. 729, the same doctrine is held by the Court of Appeals of Virginia. So it is held in Massachusetts, if the estate is insolvent. 4 Mass. Rep. 356.
    I do not doubt but that executors and administrators have always, in Ohio, represented both the deceased and the creditors, and were always the trustee of the creditors, and never the mere representative.
    It will be claimed, however, by the counsel for the plaintiff in error, that the administrator is a mere representative of the deceased, a substitute for him, and that he could have been sued, and can yet be sued as executor de son tort, and therefore there can be no necessity for such an action as this. It will be insisted that the decisions of this Court in relation to this subject are not law, and ought to be disregarded.
    However ingenious an argument to prove that executors de son tort ought to be tolerated, under our peculiar system, may be, it fails to convince me that such is or ought to be the law of Ohio; and that, if no precedent for such a case can be found, it is high time for this Court to make one on this occasion. .
    The Court is not put to the necessity of deciding the question that would arise, if Benjamin had taken possession of the property in the lifetime of Le Baron, because the testimony fully proves.that he did not convert this-property until after the of Le Baron., I do not yield-.the point, that;if it had converted in the lifetime of -Le'Baron, his administrator' could not sustain this action, for. I see it quité, clear that he. could ; but ever since the time of Queen'Elizabeth', it has been held,, that if the fraudulent donor die in possession of the goods, the fraudulent donee cannot take them from the administrator.
    I conclude, then, that the plaintiff in ;the suit Below, could . sustain his suit for such á cause of,action.
   Read, J.

The record in this case is excéedingly. yolumin,ous. ■ To follow through all .the motions, exceptions,' demurrers and.alledged mistakes, interposed, by the ingenuity of counsel; would, lead' to' unnecessary prolixity, arid throw no light upon the- case. Some eighteen error's are assigned, but they-dwindle -down to. two. *' .

• First-: - Can .an'.administrator maintain trdvef to .recover property 'assigned and' transferred, by his intestate, to hinder^ delay and 'defraud creditors ? and, .

■ Second-; If„ so,'.would 'trover' lie .for the- bridge cohtract, as .above stated? ' ■ , .

...The first proposition the Court intend to decide, and that only;

We hold that the'administrator .can only maintain suoh action' as the' intestate.might, if living. He represents the .intestate ; hé steps into-no other right. As -between, the fraudulent vendor and vendee; thé transfer is good. Such conveyances are •••void -only as to' creditors. This is’ the well settled doctrine in • Ohio. Hence, as batwéeri the vendor and vendee in this case, the vendor had no rights^ and of course'his adriainistrator could-have none, -But it is said that, unless we sustain a suit of this sort, on- the part of -the. administrator, .creditors will have no remedy. , This does not follow. • • When a bill shall' be filed for that purpose, it will be timé to consider'of it.

As;.to the second proposition, whether trover would lie Tor the bridge cohtra’ct, it is unnecessary to decide, as it is disposed of by the/ determination of the first proposition. .-Yet'in'my. own opinion,although not authorized to say so,by. the Court, I should not deem trover the suitable remedy, to hunt down the results of a contract of that sort, 'as has been argued. ' It has been claimed that an executor de son tort may exist in Ohio, and that .we .might, to review our decisions upon that point. We aré content to let that matter rest as it. is.' We are -not disposed to introduce .or sanction a principle which would draw a fund'Wholly tb, one creditor,' instead of a fair distribution, as would result in.case of añ éx'ec.ntidn de son tort. -.' -.

Judgment Reversed.

Birchard, X.,-

dissenting. It has been held that there is .nó such tiling in Ohio aS an executor de. soil tort., In.the case at ■ bar, had lie Baron lived, Lathrbp, as creditor, plight have sued . out his writ, prosecuted his action to judgment and execution-, and finally made his money-out of the property fraudulently conveyed to this plaintiff. It was, as to creditors, a void transfer. When the estate of one is. thus made insolvent, the heirs, can have no interest in sefeing to its settlement. ■ They-will riot administer, but will leave the' burden of administration to those who have some interest in the matter, that is, to the' creditors. Now, what I consider erroneous in the opinion of the Court, is. this: • It misconceives the office and duties of an administrator under the laws of this State, and defeats the policy of our statute. It applies principles which had their origin in another country, and under laws, in this respect, dissimilar to our. own. The act of March 23, 1840,- entitled “an act to provide for the settlement'of the estates of deceased persons,” (Swan’s. Stat. 339,) provides that all-the.personal estate shall first be applied to the payment of the debts due by the estate, and, if found insufficient; that .the lands sháll next be appropriated, by a sale, on petition' to the Court of Common Pleas of the county where it lies. The I21st section declares that the land, which shall then be sold, shall include all that the deceased may have conveyed, with intent to defraud his creditors: ■ The 122d section gives the administrator a right to maintain the action of ejectment, or a bill in chancery to avoid such sale.

Under this statute, the administrator represents the creditors of the deceased person, making a fraudulent conveyance, and is bound to pursue the property, for the benefit of creditors, which they might have reached if the intestate had lived. He is bound to deal fairly with all the creditors; is authorized expressly to pursue his legal action, to obtain possession of lands fraudulently conveyed, and a fortiori he may sue for and recover the personal property so conveyed. By other provisions of the statute, personalty must be first resorted to for the payment of debts. The creditor cannot look to lands, in any case, for the satisfaction of his debts, until all the personal estate within his reach has been exhausted.'

The facts disclosed by the bill of exceptions, show that the administrator of Le Baron does not, in point of fact, represent the interests of his heirs to the amount of a cent. The estate is deeply involved. The judgment of $ 13,000, recovered against the fraudulent assignee, should be suffered to stand for the benefit of the creditors of the estate, among whom the law distributes it upon equitable principles. I maintain that the action was well brought; that the creditors are the parties in interest, and duly represented under the provisions of the statute; that the fraudulent transfer of goods or lands by the intestate, destroyed no claim which creditors have upon them, or their proceeds, and that, if the estate is insolvent, such, lands, goods, and their proceeds, are assets for the payment of the debts due and owing by the estate. Who can administer assets of a decedent, in Ohio, but the administrator ? The answer is, to me, plain; no one. Then, does not the above decision make a case of wrong without a remedy ? It is said that the • remedy is in chancery. Admitting that it is j but, for this decision, it would not follow that it is there, because there was not a plain and adequate remedy at law. For, it is palpable that trover is a form of action less complex than a bill in equity; it requires but two parties, and affords the very best tribunal for exposing a fraud, to wit, a jury trial.. While, upon a proceeding in chancery, every one of the creditors must come in and be made a party, or he cannot get his distributive share; and the administrators and heirs must also be brought in, if for no other purpose than to deny that there are other assets.

But I have said enough. I leave the subject, with a request that those who may think me in error, will take the trouble to examine the question in connection with the past decisions of the .Court, the legislation of the State, and the authorities cited by counsel.  