Hersum v. Homsey

Adlow, C. J. Action of contract brought against Samuel Hornsey of Delaware by trustee writ dated June 5, 1958. The trustee answered that he had no goods, effects or credits of the defendant at the time of service, but that he did hold property owned by the defendant and another jointly. To the refusal of the court to charge the trustee on his answer the plaintiff brings this' report. It appears that the defendant, Samuel Hornsey and his wife, Victorine Hornsey, were on June 4, 1958 joint owners of shares in the Pilgrim National Bank of Boston. On June 2, 1958 the trustee was appointed Liquidating Agent of this bank pursuant to a vote of the Board Directors recommending liquidation. At the same time the Trustee received sufficient funds to pay to each shareholder a liquidating dividend of $25.00 per share. At the time of service of the writ the Trustee had in his possession the liquidating dividend of Samuel and Victorine Hornsey. On the above facts the ruling of the court was proper. In this Commonwealth it has long been settled that a joint debt cannot be severed and appropriated, in whole or in part, to discharge the several debt of one. Hawes [76] v. Waltham, 18 Pick. 451; Stillings v. Young, 161 Mass. 287, 288. O’Connell & O’Connell of Boston, for the Plaintiff. Francis J. Bousquet, for the Defendant. While it is true that the creditor’s right to reach the interest of a husband in an estate by the entirety has been recognized, this right is predicated on the fact that “statutes relating to the separate rights of married women have not changed the common law rights of the husband in such estates.” Raptes v. Pappas, 259 Mass. 37, 38. In the instant cause the fund in issue is the joint property of the defendant and his wife. Being personal property it is in no manner affected by the marital status of the co-owners. Each has a present interest in the fund' held by the trustee. The obligation of the trustee is to both. Under the circumstances, it .cannot be said that the money was due to the defendant absolutely and without contingency. G. L. c. 246, §32 (4). Report dismissed.