Phillips v. Meagher

Lathrop, J. The Pub. Sts. c. 183, § 17, provide as follows : “ 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.” These provisions were first enacted in the Rev. Sts. c. 109, § 15, and have since been in force. Gen. Sts. c. 142, § 11. The law prior to the Revised Statutes is accurately stated by the Commissioners in their note to § 15. Although neither the St. of 1794, c. 65, nor the St. of 1817, c. 148, expressly provided that the answers and statements of a trustee should be ■ considered as true in deciding how far he was chargeable, this was early asserted to be the intent of the framers of the first statute, and collateral evidence was not admitted unless the trustee saw fit to incorporate it in his answer. Comstock v. Farnum, 2 Mass. 96. Barker v. Tabor, 4 Mass. 81. Stackpole v. Newman, 4 Mass. 85. Whitman v. Hunt, 4 Mass. 272. Hatch v. Smith, 5 Mass. 42, 49. Minchin v. Moore, 11 Mass. 90. Wood v. Partridge, 11 Mass. 488. Willard v. Sturtevant, 7 Pick. 194. Hawes v. Langton, 8 Pick. 67. Kelly v. Bowman, 12 Pick. 383. The object of the provisions of the Revised Statutes was, first, to affirm what the court had stated to be the law, and, secondly, to allow either party to allege and prove other facts, provided such facts had not been stated or denied by the trustees. The facts which the plaintiff sought to prove in the case at bar were in denial of the answers of the trustee, and were, by the plain provisions of the statute, inadmissible. Gouch v. Tolman, 10 Cush. 104. Bostwick v. Bass, 99 Mass. 469. Stillings v. Young, 161 Mass. 287. See also Chapin v. Connecticut River Railroad, 16 Gray, 69, 70; Richards v. Stephenson, 99 Mass. 311. Receptions overruled.