Plummer v. Rundlett , 42 Me. 365 ( 1856 )

Rice, J.

There are errors in the account as rendered by the trustee, and referred to as a part of his disclosure. He should charge himself with the bill of furniture amounting to $805. He is not entitled to credit for the $500 check of June 20, 1844. From all the statements in the disclosure, we think it appears, that at the time the check was forwarded to the principal defendant, it was intended as a gift by the trustee to his daughter and son-in-law, and was so understood by the parties. It was not competent for the parties afterwards to change the nature of the transaction so as to affect the rights of third parties. The trustee is not chargable, as contended by plaintiff’s counsel, with the supposed value of the store and lots of land conveyed therewith. They are real estate, and not “goods, effects or credits,” in the hands of the trustee. If he holds them by a conveyance which is fraudulent, the property may be reached in another manner and by a different process; nor is he chargable with the value of the horses, carriages, harnesses, &c., amounting to $380. The disclosure shows that neither these articles, nor the value thereof, were in his hands at the date of the service of the writ upon him. The disclosure is to be deemed to be true by the Court; and the affirmative statements' therein are to receive full credit, unless there are other facts or circumstances disclosed, inconsistent therewith, to overcome such direct and affirmative statements. The trustee distinctly affirms that the notes purchased by him in Boston against the principal defendant, wore purchased on his own account, and not at the suggestion of the defendant or his attorney, and that he still holds the same. There is nothing in this disclosure which contradicts this statement. Under § 10, of c. 119, R. S., he is entitled to charge those notes in his account. Mating the above corrections, there is still a large balance in favor of the trustee, and he must be discharged. Exceptions overruled.

Tenney, C. J., and Appleton, May and Cutting, J. J., concurred.