
    Jesse Torrence Magoun, and Jesse Torrence Magoun and J. Aspinwall Hodge, Jr., as Administrators de Bonis Non of the Estate of Kinsley Magoun, Deceased, for Themselves and on Behalf of All Other Creditors of the Estate of George B. Magoun, Deceased, Appellants, v. James M. Quigley and Others, Respondents.
    First Department,
    November 5, 1906.
    Debtor and creditor—action to set aside fraudulent transfer by representative—Personal Property Law, section 7, construed—when court will dismiss complaint on its own motion.
    Section 7 of the Personal Property Law, authorizing a creditor of a decedent, having a claim exceeding $100 to maintain an action to set aside a fraudulent transfer by the decedent, applies only when such transfer was made by the decedent himself; no action to set aside an alleged fraudulent transfer by a • representative of the decedent is authorized by the statute.
    Although no objection to the maintenance of an action to set aside a fraudulent transfer by a representative is taken by the defendant, the court will raise the objection on its own motion in order to avoid establishing a misleading precedent. ' . .
    Appeal by the plaintiffs, Jesse Torrence Magoun and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the ■ 8th day of June, 1905, upon the decision of the court, rendered after a trial' at the Hew York Special Term, dismissing the complaint upon the merits.
    
      J. Aspinwall Hodge, for the appellants.
    
      Walter F. Taylor, for the respondents, President and Committee on Admissions, New York Stock Exchange.
    
      Alfred S. Brown, for the respondent Quigley.
   'Laughlin, J.:

One Kinsley Magoun was a creditor of George B. Magoun, deceased, in an amount exceeding $100. The action is brought by the administrators de bonis non of said creditor against the executrix of said debtor and others to set aside as fraudulent a transfer by the executrix of the membership of the debtor in the New York Stock Exchange. Counsel for the plaintiffs cites as authority for the action section 7 of the Personal Property Law (Laws of 1897, chap. 417), which provides as follows: “ An executor, administrator; receiver, assignee or trustee may, for the benefit of creditors or others interested in personal property held in trust, disaffirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate or property, and a person, who fraudulently receives, takes or in any manner interferes with the personal property of a deceased person, or an insolvent corporation, association, partnership or individual is liable to such executor, administrator, receiver or trustee for the same or the value thereof, and for all damages caused- by such act to the trust estate. A creditor of a deceased insolvent debtor having a claim 'against the estate of such debtor exceeding in amount the sum of one hundred dollars may, without obtaining a judgment on such claim, in like "manner, for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done, or conveyance, transfer or agreement made in fraud off creditors, or maintain an action to set aside such act, conveyance, transfer or agreement. Such claim if disputed may be established in such action. The judgment in such action may provide for the sale of the property involved when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate’s court to be administered according to law.”

It was alleged and proved that the deceased debtor was insolvent. No question appears to have been raised upon the trial or upon the appeal as to the right of the plaintiff to maintain the action, but the question suggested itself to the court upon the argument of the appeal, and the qumre was propounded to counsel for appellants with a view to receiving the benefit of any argument he might be able to present to sustain the action. It is manifest that such an action would not lie at common law. Since the executrix is accountable in the probate court for all personal property of the estate received by her, it would seem that clear warrant for an independent action by a creditor to review a transfer of personal property made by her should he found in the statute, or such an action should not be sustained. Notwithstanding the fact that the objection has not been taken by any defendant,' as it lies at the foundation of the action, our decision, if the action 'be not maintainable, and we ignored that question, might become a misleading precedent. We must, therefore, examine and decide that.question before proceeding to consider the case on the inérits.

The reasonable and fair construction of the statute quoted, standing alone, does not authorize such an action, and when the history of the legislation is examined I deem it quite clear that the Legislature only intended to authorize the action to set aside a transfer made by the insolvent debtor. The Legislature, by chapter 314 of the Laws of 1858, among other things, authorized the executor or administrator of an estate, in the interest of the creditors thereof, to disaffirm a transfer in fraud of the rights of any creditor, and gave a right of action to recover the property or its value; and for damages. That statute conferred no right of action on a creditor individually. The scope of the statute is not expressly confined to . transfers by the decedent, but it is evident that such was the intention, for otherwise the representative of the estate would be disaffirming 1ns own acts and suing to recover for his own fra'ud. The statute was amended by chapter 487 of the Laws of 1889, by adding the following at the end.of section 1, to wit: “ And any creditor of a deceased insolvent debtor having a claim or demand ¿gainst the estate of such deceased debtor exceeding in.amount the sum of one hundred dollars, may in like manner for the benefit of . himself and other creditors interested in the estate or property of such deceased debtor, disaffirm, treat as void, and resist all acts done, and conveyances, transfers and agreements made, in fraud of the right of any creditor or creditors, by such deceased debtor, and for that purpose may maintain any necessary action to set aside such acts, conveyances, transfers or agreements, and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may b.e proved and established upon the trial of such action.”

It thus appears that when the cause of action was first conferred upon creditors it was expressly confined to transfers made by the deceased debtor. The first section was again amended by chapter 740 of the Laws of 1894 by adding a provision with respect to a sale of property recovered and the disposition of the proceeds; but the phraseology, so far as material to a determination of the question now under consideration, was not changed. When the Commissioners of Statutory Revision came to consolidate these and other statutes, and frame for submission to the Legislature the Personal Property' Law, they dropped out the words by such deceased debtor.” (Pers. Prop. Law [Laws of 1897, chap. 417], § 7, and schedule of laws repealed thereby.) This is another instance of confusion and uncertainty caused by changes in phraseology made by said commissioners.. They were not empowered to make changes in the existing law. They did not inform the Legislature that they had attempted to change the former law on this point. The revisers’ report to the Legislature and notes, on the contrary, indicate that no change was intended to be made. Under the heading, “Revisers’ Preliminary Rote to the Personal Property Law,” they say: “ The accompanying chapter of the revision, to be known as the Personal Property Law, includes existing statutes relating to future estates, accumulation of income, trust estates, and that part of the Statute of Frauds which govern transactions in relation to personal property. These statutes are re-enacted in the revision with slight changes, which are indicated in the foot notes, which are appended to the several sections of the proposed law. The table immediately following the repealing schedule shows the disposition of the laws repealed by this chapter in the revision and elsewhere.” (See Assem.. Doc. 1897, vol. 22, No. 80, p. 363; Fowler Pers. Prop. Law of N. Y. 135.)

Under section 7 they cite the laws from which it was compiled, and then add the following: “ Unchanged in substance, so far as relates to personal property.” (See Assem. Doc. 1897, vol. 22, No. 80, p. 368 ; Fowler Pers. Prop. Law of N. Y. 139.) The reasonable inference is that in this case, as in many others, shown .by many of their reports to the Legislature, they deemed the words which they omitted superfluous, and were of opinion that the statute as they recommended it, meant precisely the same as the former statute. However that may be, in these circumstances there is nothing to indicate that the Legislature intended to change the law, and authorize a new and unheard of practice of permitting a creditor to review by action every sale or transfer of property of an insolvent debtor made by the executor or administrator, upon a charge of fraud. If the action would lie and it were successful; it would only result in placing the property back in the hands of the. executor or administrator to be resold, with a possible similar review by action of the second and of any subsequent sale, because the Supreme Court would not administer the estate but would leave that to the executor or administrator. Moreover, there does not appear to have been any necessity for such an action, and it is, therefore, not reasonable to suppose that the Legislature intended to authorize it. The Legislature is presumed to have known that the Surrogate’s Court could remove an executor or administrator for . misconduct in wasting the estate (Code Civ. Proc. § 2685, subd: 2; Id. §§ 2686, .2687), or protect the creditors and others interested by requiring an adequate bond, either originally (Id. § 2638), or when the question is raised on an application to revoke the letters (Id. §2685, subd. 5; Id. §2686; Id. § 2687, subd. 3). On the accounting the executor or administrator would be charged with the • value of all property received, and the creditor and other persons interested would not be bound by any sale or transfer made, and could attack the same not only for fraud but for inadequacy of consideration resulting from negligence.

It would seem, therefore, that the statute should not be given a construction that will authorize the maintenance of such an action, -unless it be imperatively required by the language employed. I am convinced that it is not so required. -It is plain that the Legislature merely intended to authorize a creditor to institute an action in those cases in .which by the preceding part of the section the personal representative is authorized to do so. It was contemplated that an executor or administrator might deem it unwise to bring the action, and that, information might be available to the creditor - which would give him confidence to proceed.

I think, therefore, that we should refrain from expressing'any opinion on the facts which received extended consideration by the learned trial judge, and that the judgment should be affirmed, witli costs.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Judgment affirmed, with costs.  