Butler v. Butler , 162 Mass. 524 ( 1895 )

Allen, J.

1. We find no question of law in the bill of exceptions presented by the defendant. The defendant contends, in a general way, that so far as appears by the record the Superior Court was not entirely just towards him. We see no reason to think so. The defendant filed a general appearance, and a motion for leave to defend the action on the judgment as of the original suit. He afterwards sought to withdraw his general appearance, but this the court declined to allow. The court also overruled the motion. These were both matters within the discretion of the court. The latter is expressly made so by statute. Pub. Sts. c. 167, § 81.

2. The trustee was charged on its answer, and the claimant’s claim was disallowed. Both the defendant and the claimant appealed. We will deal first with the appeal of the latter. A claimant cannot be allowed to prove that nothing was due from the trustee to the principal defendant. Clark v. Gardner, 123 Mass. 358. Moors v. Goddard, 147 Mass. 287, 290. He appears for the purpose of showing that he is entitled to the goods, effects, or credits which may be in the hands of the supposed trustee; and he may allege and prove any facts not stated nor denied by the supposed trustee. Pub. Sts. c. 183, §§ 35, 36. In this case the claimant has alleged certain facts, but proved none. It does not appear that any evidence whatever was introduced or offered in support of his claim, or that any ruling of law was asked for or given in respect thereto. No question of law is presented by the claimant’s appeal.

3. We come now to the defendant’s appeal. It has- been said that the principal defendant has no right of appeal from an order charging a trustee. Kellogg v. Waite, 99 Mass. 501. Wasson v. Bowman, 117 Mass. 91, 96. The defendant, however, contends that he has an interest to appeal, because a judgment against the trustee will discharge him from the defendant’s claim against him. Webster v. Lowell, 2 Allen, 123. However this may be, no error is shown in the order charging the trustee. The chief ground of complaint is that the trustee’s supplemental answer was not upon oath. An objection of this kind must be taken at the hearing, or it will be deemed to have been waived. The omission was probably by inadvertence, and might have been remedied at once if attention had been called to it. The defendant might have alleged and proved other facts not stated nor denied by the trustee, if he had seen fit to do so. Pub. Sts. c. 183, § 17. But he did not. He submitted the matter to the determination of the court upon the trustee’s answers, without further proof or allegation, and, so far as appears, without calling attention to the want of an oath to the supplemental answer. The trustee was properly charged. According to the terms of its two answers, the defendant’s money which the trustee retained as a protection or security against the plaintiff’s life estate became absolutely due by the extinction of that estate prior to the service upon the trustee in the present action. Even without the supplemental answer, the trustee, admitting funds, and showing no right to retain them, might it would seem be held chargeable. Defendant’s exceptions overruled.

Order charging trustee affirmed.