Guptill v. Ayer , 149 Mass. 49 ( 1889 )

Morton, C. J.

This case comes before us in an unusual manner. Our statutes contemplate that, in scire facias under the trustee process, the trustee shall answer under oath, and not by attorney; and his answers are to be taken as true, and if it appears from these that he has not in his hands any goods, effects, or credits of the principal defendant for which he is chargeable as trustee, he is entitled to judgment upon the scire facias. Pub. Sts. c. 183, § 53. Fay v. Sears, 111 Mass. 154. Tryon v. Merrill, 116 Mass. 299. First National Bank of Clinton v. Bright, 126 Mass. 535.

But as both parties desire to waive any questions of form, we have considered the case upon its merits. The material facts are as follows. The plaintiffs in 1884 brought a suit against one Packer, in which one Kelley was summoned as trustee. Soon after the suit was brought, Kelley died, and the defendant was appointed executor under his will; the estate was found to be insufficient to pay all the debts, and in June, 1885, said executor represented the estate to be insolvent; thereupon commissioners to receive and examine claims were duly appointed, who returned their report into the Probate Court, and on April 19, 1886, the court issued an order for the distribution of the estate among the creditors who had proved their claims, and the executor made distribution according to the decree. The plaintiffs did not present any claim to the commissioners, but "in October, 1887, they took judgment against Packer in the original suit, and the said Kelley was charged as trustee under the Pub. Sts. c. 183, § 57. The defendant had no notice of the plaintiffs’ suit or claim until this writ of scire facias was issued.

The plaintiffs claim that they can maintain this suit under § 58 of the same chapter, which provides that, “if" in the case last mentioned the executor or administrator does not voluntarily pay the amount in his hands, the plaintiff may proceed against him by a writ of scire facias as if the judgment in the first suit had been against him as trustee.” This section must be construed in its connection with the other provisions of the same statute. Section 61 provides that, “ when an executor or administrator is adjudged a trustee by reason of goods, effects, or credits in his hands or possession merely as such executor or administrator, whether in a suit originally commenced against him as trustee, or against the deceased testator or intestate, and whether the judgment is in the original suit or on a writ of scire facias, the execution shall not be served on his own goods or estate, nor on his pei’son, but he shall be liable for the amount in his hands in like manner and to the same extent only as he would have been liable to the defendant if there had been no trustee process.” This is in accordance with the general policy of our laws relating to the trustee process, which intend to give to the attaching creditor only the rights which the defendant has, and not to enlarge the liability of the alleged trustee."

It is clear that, upon the facts of this case, the original defendant Packer has no claim against the defendant which he can enforce. His only remedy was to prove his debt before the commissioners, and take his dividend. The defendant has not in his hands any amount for which he is liable to the defendant Packer. He has distributed under a decree of the Probate Court all the estate of his testator. It follows that he cannot be charged as trustee in this suit. Patterson v. Patten, 15 Mass. 473. It has been held that, where a person charged as trustee becomes insolvent and is discharged, neither he nor his assignee can be held as trustee either in the original suit or upon scire facias. Pingree v. Hudson River Ins. Co. 10 Gray, 170. Hulbert v. Branning, 15 Gray, 534. Similar reasons apply in the case where the estate of a deceased trustee is declared insolvent. - The remedy of the plaintiffs, if any, was to present the claim of the original defendant to the commissioners, and thus, perhaps, by virtue of the lien acquired by their attachment, they might hold the amount of the dividend payable to him, but having neglected to do this, the trustee suit must fail. Rollins v. Robinson, 35 N. H. 381, 382.

Demurrer overruled, and judgment for defendant.