Bush v. Moore
| Decision Date | 03 July 1882 |
| Citation | 133 Mass. 198 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Warren T. Bush & another v. William A. Moore & others |
W. S B. Hopkins, for the plaintiffs.
F. P Goulding & F. H. Dewey, Jr., for the defendants.
The defendant William A. Moore, being the guardian of his minor son, William A. Moore, Jr., wrongfully appropriated to his own use the funds of his ward; but within six months preceding his petition in insolvency, being then insolvent and intending to restore the funds he had thus wrongfully appropriated, deposited in the defendant savings banks the sum of $ 1500 derived from his private property, in his own name as guardian of William A. Moore, Jr., this sum being equal to the amount of these funds with interest. This money the plaintiffs, who are the assignees in insolvency of William A. Moore, seek by this bill in equity to recover as a preference, said Moore at the time knowing that he was insolvent and acting in contemplation of insolvency. There was no evidence that William A. Moore, Jr. knew anything of this misappropriation of his funds, or in relation to the insolvency of his father.
The plaintiffs rely on the Gen. Sts. c. 118, § 89, which, abbreviated, is as follows: "If any person, being insolvent or in contemplation of insolvency, with a view to give a preference to any creditor or person having a claim against him, makes any payment, pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment or to be benefited thereby, having reasonable cause to believe such person is insolvent, the same shall be void; and the assignees may recover the property, or the value of it, from the person so receiving it or so to be benefited."
That preferences or transactions which may operate as such, or to protect or secure one who has a claim against the estate of an insolvent, are lawful, except so far as they are in violation of the provisions of the insolvent law, will not be controverted.
It is contended that the ward was not a creditor of the guardian or a person having a claim against him; and that the transaction therefore, by which the guardian sought to relieve himself from civil responsibility at least for his wrongful act in misappropriating the funds of the ward's estate by restoring them to the estate, could not constitute a preference which would be voidable by reason of the insolvency. Had the ward come of age, and had this misappropriation of funds continued, it is argued, there would have been...
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