NETTIE D. HARRIS, Administratrix, etc., v. E. A. HARRIS et al., 59 Cal. 623

Sharpstein, J.: As we view it, the evidence is sufficient to justify the findings of the jury, which are undoubtedly sufficient to support the decision and judgment of the Court. But the ruling of the Court upon the admissibility of evidence to prove that the intestate Harris was indebted when he died, and that his creditors had presented their claims to the plaintiff as administratrix of the estate of deceased, and that the same had been allowed, and that the estate was insolvent, unless the property for the recovery of which this action was brought was recovered, was excepted to by the appellant.

An objection was made by the respondent and sustained by the Court to the introduction of this evidence, on the ground that it was irrelevant, immaterial, and not in the issue. There is an aliegation in the complaint that the bill of sale was made “ with intent to defraud said deceased and his creditors of said horses,” and another “ that said estate is insolvent, and without said horses will not be able to pay the just claims against the same.” If the transfer of the property was made by the deceased to the respondent, E. A.

Harris, for the purpose "of defrauding the creditors of said deceased, his administratrix might maintain an action for the recovery of it. And in that aspect of the case it would be material to prove that there were creditors to be defrauded, as well as that the transfer was made with intent to defraud them. Instructions numbered “ 1” and “ 2,” which the plaintiff requested the Court to give to the jury, should have been given, and the refusal of the Court to give them was error.

We are unable to discover any other material errors in the record; but for those above specified, the judgment and order must be reversed. Judgment and order reversed and cause remanded for a new trial. Thornton, J., and Morrison, C. J., concurred.