Cummings v. Garvin

Walton, J. It was decided in Barnes v. Treat, 7 Mass., 271, that an executor could not be charged as the trustee of one to whom a pecuniary legacy was bequeathed by the will of the testator. But the law has since been changed, and a legacy due from [302] an executor or administrator may now be' attached by trustee process. B. S., c. 86, § 36. And the only question to be decided in this case is whether it can be done under the old form of writ, which avers that the supposed trustee has in his hands “goods, effects, and credits” of the principal defendant, but makes no mention of the legacy as such. We think it can. It is true that in the case above cited the court expressed the opinion that legacies could not be regarded as goods, effects, or credits. But when the legislature afterwards declared that legacies might be attached by trustee process, and yet made no mention of any change in the form of the writ, we think it was equivalent to a legislative declaration that legacies should be regarded as included in one of those terms. And certainly it would be no very great stretch of the meaning of the word “effects” to hold that it includes a pecuniary legacy. It is certain that in many of the sections of the chapter on trustee process, the word “effects,” or the word “credits, must be construed as including legacies, or an executor, or administrator, when summoned as a trustee, will be deprived of very important rights to which others are entitled. So will the plaintiff in the suit. See §§ 23, 46, 64, 67, 73, 76. And we think the words “effects and credits,” as used in our trustee writs, are sufficient, under our statute, to authorize the attachment of a legacy in the hands of the trustee. ■ Exceptions overruled. Trustee charged. Appleton, C. J., Barrows, Yirgun, Peters and Libbey, JJ., concurred.