Brimklecom v. O'Brien

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, J.
• Citation: Brimklecom v. O'Brien, 46 A. 187, 69 N.H. 370 (N.H. 1898)
• Decision Date: 29 July 1898
• Parties: BRIMKLECOM v. O'BRIEN et al.

46 A. 187

69 N.H. 370

BRIMKLECOM

v. O'BRIEN et al.

Supreme Court of New Hampshire. Hillsboro.

July 29, 1898.

Exceptions from Hillsboro county.

Action by J. J. Brimklecom against John O'Brien & Co., insolvents, and George A. Wagner, as assignee for the benefit of creditors. From a judgment in favor of defendants, plaintiff brings exceptions. Overruled.

Foreign attachment Issue between the plaintiff and trustee. George A. Wagner, the trustee, is assignee of John O'Brien & Co., who are in insolvency under a decree dated January 21, 1896. The trustee discloses in his hands $48,—an allowance decreed for the support of John O'Brien and his family, made in June, 1897, under section 28, c. 201, Pub. St. The plaintiff resides out of the state, and has not proved his claim in the insolvency proceedings. The court ruled that the trustee was not chargeable, and the plaintiff excepted.

Frank C. Livingston and Alpheus C. Osgood, for plaintiff. John B. Cavanaugh and Denis F. O'Connor, for trustee.

PARSONS, J.The plaintiff, a nonresident creditor, who has not submitted his claim to the probate court, seeks by suit in this court to hold as trustee the debtor's assignee in insolvency, appointed by the probate court under Pub. St. c. 201. He does not claim to hold the assignee for the property of the debtor generally, which came to the assignee by virtue of the insolvency proceedings, but only for the amount of an allowance made the debtor out of the estate for the necessary support of himself and family. Id. § 28.

By the assignment, all the debtor's property not exempt from attachment passes to the assignee. Dube v. Insurance Co., 64 N. H. 527, 15 Atl. 141, 1 L. R. A. 57. This complete divestiture of the debtor of his property might result in unnecessary hardship, as in some cases the entire means of subsistence of the debtor and his family would be at once destroyed. Therefore, in the discretion of the probate judge, a temporary allowance for his and their support is authorized. The temporary supply of the necessities of life to the debtor and his family is the purpose of the law. The purpose and object of the legislature are to be considered in the construction of a statute. Barker v. Warren, 46 N. H. 124. If the plaintiff can take the fund, which it has been judicially determined is required for the support of the debtor and his family, for application uppn his pre-existing debt, it is evident that the sole object of the law is defeated. While if the...