Curnane v. Curnane

Decision Date29 May 1940
Citation306 Mass. 74,27 N.E.2d 714
PartiesCURNANE v. CURNANE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Action begun by trustee process, by Margaret C. Curnane against Joseph A. Curnane and another, executors of the will of Jermiah J. Curnane, deceased, as trustees, and one Flood, as principal defendant, wherein writ of scire facias was brought and order of notice was issued against Mary P. Kelley as claimant. From an order dismissing a report, the claimant Kelley and the defendant Daniel B. Curnane appeal.

Affirmed.Appeals from Appellate Division, Northern District, on Report from First District Court of Eastern Middlesex; Brooks, Judge.

H. C. Gow, of Malden, for claimant Kelley.

M. K. Wagner, of Malden, for executors Curnane.

R. D. Gerould, of Boston, for plaintiff.

DOLAN, Justice.

This is a writ of scire facias brought in the plaintiff's action, begun by trustee process, against one Flood as principal defendant, in which the defendants Joseph A. and Daniel B. Curnane, executors of the will of Jermiah J. Curnane, deceased, were summoned as trustees. Flood, a legatee under the will, was defaulted and the trustees were charged generally and execution issued. A prior action by trustee process, brought by Mary P. Kelley against the same principal defendant and the same trustees, resulted in a judgment for Kelley. Execution therein issued on June 26, 1937, which was five months before the issuance of the execution involved in the present case. In the present proceeding, upon motion of the defendant trustee Joseph Curnane, the judge directed that an order of notice issue to Kelley as a party claimant. She filed a so-called ‘plea in abatement.’ After a hearing of this ‘plea,’ the judge proceeded to hear the case on the merits, without disposing of the ‘plea,’ but gave Kelley permission to take part in the trial of the merits without prejudice to her rights under her plea.

The judge found as a fact that, in the prior case of Kelley against Flood, no proper service was made on the defendant trustee Joseph Curnane, that the writ was returnable more than thirty days after the date thereof, and that no demand was made on the defendant trustee Daniel Curnane within thirty days after final judgment; and he ruled that those proceedings against the trustees were not effective to attach the legacy of Flood. He ruled that in the present case the trustee process was effective to attach the legacy of Flood and that, as matter of law, the defendants are chargeable in these proceedings in the sum of $500. He further ruled that Kelley ‘is an adverse claimant in these proceedings within the meaning of’ G.L. (Ter.Ed.) c. 246, § 33, and overruled her plea in abatement. As Kelley and the defendant Daniel Curnane claimed to be aggrieved by the findings, rulings and refusals to rule of the judge, the case was reported to the Appellate Division, which ordered the report dismissed. Kelley and the defendant Daniel Curnane appealed from this order.

It is provided by G.L. (Ter.Ed.) c. 246, § 16, that the answer and statements of a trustee, on oath, shall be considered as true in determining how far he is chargeable, but that either party may allege and prove any facts material in determining that question and not stated or denied by the trustee. So in scire facias, which is but a continuation of the original proceeding (Universal Optical Corp. v. Globe Optical Co., 228 Mass. 84, 85, 116 N.E. 491), the liability of one sought to be charged as trustee is ordinarily determined by an examination of his answers and statements on oath. Fay v. Sears, 111 Mass. 154, 155;Wilde v. Mahaney, 183 Mass. 455, 460, 67 N.E. 337,62 L.R.A. 813;MacAusland v. Fuller, 229 Mass. 316, 320, 118 N.E. 655;Krogman v. Rice Brothers Co., 241 Mass. 295, 301, 135 N.E. 161. Compare Musolino, LoConte Co. v. Costa, Mass., 23 N.E.2d 155, 125 A.L.R. 250.

The answer on oath of the defendant Joseph Curnane contained the statements that he had not been served with process in the case of Kelley v. Flood; that he and his co-executor Daniel Curnane jointly had in their hadns goods, effects and possessions of Flood in the sum of $500 subject to a prior attachment in the case of Kelley v. Flood as to the validity of which he (Joseph Curnane) was in doubt as he had not been served with process. The defendant Daniel Curnane answered that the defendant trustees were charged in the prior action of Kelley v. Flood; that execution issued therein and demand was duly made thereon five months before the exectuion described in the present proceeding was issued; and that he has not now in his hands and possession any goods or effects of Flood. In answer to interrogatories, however, he stated that he had been served with process in the present action of which this proceeding is a continuation; that he then had in his possession the sum of $500 payable to Flood but subject to an attachment by Mary P. Kelley; that demand had been made upon him in the case of Kelley against Flood within thirty days after final judgment therein; and that he and Joseph Curnane have not now in their possession as executors funds payable to Flood. It is obvious that if the Kelley ‘attachment’ thus referred to was invalid the answers of each of the trustees show funds held for Flood when process was served in the action of the plaintiff. The answer of the defendant Joseph Curnane that he was not served with process in the Kelley case must be taken as true. First National Bank of Clinton v. Bright, 126 Mass. 535;Krogman v. Rice Brothers Co., 241 Mass. 295, 301, 135 N.E. 161;French v. Ballantyne, Mass., 21 N.E.2d 959. So also must the answer of the defendant Daniel Curnane that he was served with process in that case be taken as true. The question therefore is whether service in the Kelley case on only one of the defendants sought to be charged as trustees for the principal defendant was valid and effective.

It seems to be settled in this Commonwealth that ordinarily where two or more persons are jointly liable as trustees, all should be served with process, and that if this is not done, the one or more served should be discharged. Jewett v. Bacon, 6 Mass. 60, 62;Warner v. Perkins, 8 Cush. 518; See Lobb v. Lobb, 26 Pa. 327. The rule may be relaxed in certain circumstances, as where some of those liable are nonresidents, Parker v. Danforth, 16 Mass. 299; or where, due to the circumstances of the particular case, there will be no loss or inconvenience to those summoned. Hathaway v. Russell, 16 Mass. 473. See also G.L.(Ter.Ed.) c. 246, §§ 5, 6. In the instant case we think there is reason for the application of the general rule. Since the defendant Joseph Curnane was not served with process in the Kelley case,...

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