Harmon v. Osgood

• Citation: 24 N.E. 401,151 Mass. 501
• Parties: HARMON v. OSGOOD.
• Decision Date: 16 May 1890
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 501

24 N.E. 401

HARMON v. OSGOOD.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1890

May 16 1890

HEADNOTES

COUNSEL

S.W Harmon, for plaintiff.

C.A Prince and J.M. Hall, for defendant.

OPINION

HOLMES J.

This is scire facias against an alleged trustee. We are to assume that the original defendant's intestate, one Ann McLean, was indebted to the plaintiff for professional services, and, being so indebted, made a gift of $660, which was all her property, to the present defendant, saying: "You take this money, when I die, bury me, and keep the rest, because you are the only woman who has ever been kind to me." It is not material whether this gift was a gift inter vivos or causa mortis. Whichever it was, we must take it to have been void as against the plaintiff, at least with regard to the excess over funeral and other expenses. There is no warrant for the suggestion that it was paid as consideration for an absolute undertaking by the present defendant to pay these expenses whether the fund was sufficient or not. The only question, assuming it to be open, is whether the money can be reached by the plaintiff in this way; that is, by a suit against the administrator and a trustee process against the donee. We are of opinion that the money can be reached in this way, and that the trustee must be charged.

It is objected that the administrator could have recovered the fund so far as necessary to pay debts, (Holland v. Cruft, 20 Pick. 321, 328; Mitchell v. Pease, 7 Cush. 350; Chase v. Redding, 13 Gray, 418; Pierce v. Bank, 129 Mass. 425, 433;) and that he is the only person entitled to do so. The objection seems to apply partly to beginning any action against an administrator by trustee process, and partly to the use of the process in this particular class of cases. The more general objection is based on the danger of a creditor obtaining a preference to which he is not entitled, (Lyons v. Houston, 2 Har. (Del.) 349; Fisher v. Lane, 3 Wils. 297,) and on the absence of explicit statutory provisions, (see Bryant v. Fussel, 11 R.I. 286.) But to this it may be answered that the danger is no greater than in the case of an ordinary attachment of the goods and estate of the deceased in an administrator's hands, which is expressly allowed by Pub.St. c. 166, § 5, and that in fact the danger does not exist under our statutes. For the administrator may represent the estate insolvent, and then the creditor, even if he is allowed to proceed to judgment, cannot have execution, but must present his judgment for allowance like other claims. Id. c. 137, § 33. There is no more reason that the goods, effects, and credits of a deceased person should not be trusteed than that his goods and estate should not be attached. The statute assumes the right to make ordinary attachments to exist, rather than purports to create it. Unless, therefore, the statutes exclude the construction, a similar assumption should be made with regard to trustee process.

It is provided that "all personal actions may be commenced by trustee process," with certain immaterial exceptions. Id. c. 183, § 1. When the trustee has "goods, effects, or credits of the defendant" in his hands, they are attached by the summons "in like manner as goods or estate attached by the ordinary process." Id. § 21. The generality of the words first quoted is broad enough to include actions against administrators. The language last cited shows that trustee process is only a form of attachment, which would not be denied. The words "of the defendant" create no difficulty, because goods, effects, or credits belonging to the estate are properly of the defendant in the character in which he is sued, as is shown by the provision in a section already referred to, that executions shall not run against the bodies, goods, or estate of executors or administrators, but "only against the goods and estate of the deceased in their hands." Id. c. 166, § 5. The word "only" here does not exclude goods in the hands of a trustee, but is used alio intuitu, to exclude goods belonging to the administrator. The provision allowing executors and administrators to be trusteed is something of an indication that the legislature did not intend the ordinary remedies to be cut off by death. Id. c. 183, § 22. And if decisions upon the custom of London throw any light upon the matter, it appears that, when an administrator was sued for a debt due from the deceased, a debt due to the deceased could be attached. Com.Dig. "Attachment," (D.)

We may add that the possibility of there being other debts is only to be considered here as bearing upon the construction of the statutes. As the administrator has not represented the...