Emery v. Bidwell

• Decision Date: 23 October 1885
• Citation: 140 Mass. 271,3 N.E. 24
• Parties: EMERY, Jr., Trustee, v. BIDWELL and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 271

3 N.E. 24

EMERY, Jr., Trustee,

v.BIDWELL and others.

Supreme Judicial Court of Massachusetts.

Filed October 23, 1885.

This was a bill in equity, in which the plaintiff sought to charge a trustee. The material facts appear in the opinion.

Emery & McClure, for plaintiff.

W.F. & W.S. Slocum, for defendants.

C. ALLEN, J.

The remedy which the statutes furnish to a creditor by way of trustee process is subject to the express statutory limitation that “the answers and statements sworn to by a trustee shall be considered as true in deciding how far he is chargeable; but either party may allege and prove any facts not stated nor denied by the trustee that may be material in deciding that question.” Pub.St. c. 183, § 17. In construing the similar provisions in earlier statutes, it has been held in several cases that facts stated upon information and belief in the answers of a trustee are to be conclusively taken as true; and this is so even though an adverse claimant has appeared in the case to maintain his right. First Nat. Bank of Clinton v. Bright, 126 Mass. 535, and cases there cited. Nor can a plaintiff be allowed to put interrogatories to the person summoned as trustee with a view merely to contradict or impeach his testimony. Nutter v. Framingham & L.R. Co., 131 Mass. 231.

In the present case, the plaintiff in his bill sets forth that the trustee in his answers alleged that the defendant was indebted to his father's estate, at the time of his father's decease, upon four notes, in the sum of $6,410.71, with interest thereon; and that said sum, with interest, being set off against the share or claim of the defendant as heir or distributee of the estate of his said father, will exceed his distributive share in the estate. The plaintiff thereupon proceeds to set forth, in substance, that this statement of the trustee was not true, and that the defendant did not owe to his father's estate the amounts represented by said notes, but that the notes, or some of them, were made without consideration, and are fraudulent and void. The plaintiff thus seeks to contradict the answers of the trustee, which cannot be done, as a bill in aid of the trustee process, and for the removal of an obstruction or impediment placed by the trustee in the creditor's way, cannot be maintained. If the plaintiff can show that the trustee has answered falsely, he has another remedy by an action against the trustee under section 20.

Nor can the bill be maintained under Pub.St. c. 151, § 2, cl. 11, to reach and apply property which cannot be come at to be attached. The property in question is such as in its nature can be come at to...