Emery v. Bidwell

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. Sts. c. 183, § 17. In construing the similar provision 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. Clinton National Bank v. Bright, 126 Mass. 535, and cases 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 & Lowell Railroad, 131 Mass. 231. [275] In the present case, the plaintiff in his hill sets forth that the trustee in his answer alleged that the defendant was indebted to his father’s estate, at the time of his father’s decease, upon four promissory notes in the sum of $6410.71, 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, it 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 § 20. Nor can the bill be maintained under the Pub. Sts. 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 be attached, and the trustee process is the proper remedy for that purpose. Pub. Sts. c. 183, § 22. Wheeler v. Bowen, 20 Pick. 563. Boston Bank v. Minot, 3 Met. 507. Vantine v. Morse, 104 Mass. 275. The plaintiff’s difficulty is, that, in pursuing this appropriate remedy, he encounters the oath of the trustee upon the vital point; but this does not bring his case within el. 11 of the Pub. Sts. c. 151, § 2, which stands and must be construed with the Pub. Sts. c. 183, §§ 17, 22, already referred to, and which was not designed to enable a creditor to evade their effect by resorting to another form of remedy, under which he could contradict the oath of the administrator. Nor can the bill be maintained as a bill for discovery. It is brought primarily for relief, and incidentally for discovery, and, not being maintainable for relief, cannot be maintained for discovery. Moreover, the St. of 1883, c. 223, § 10, provides that an answer to a bill shall not be sworn to, except in cases of bills filed for discovery only; and besides, if a discovery were [276] obtained of facts inconsistent with the trustee’s answers, it would not be available to charge him in the action. The remedy of the plaintiff is limited by the statutory provisions respecting the trustee process. Independently of his attachment, his only right to inquire in a court of equity, for his own sole benefit, into the transactions between the defendant and his father, is that conferred by the Pub. Sts. e. 151, § 2, el. 11; and his case does not come within that statute. As an attaching creditor, he is bound by the trustee’s answers. Bill dismissed.