190 Mass. 507 | Mass. | 1906
These are appeals from decrees of a single justice dismissing two bills in equity. The first of these cases is a suit under R. L. c. 163, § 17, to set aside a decree of the Court of Insolvency expunging the proof of a claim of the plaintiff, which previously had been allowed against the insolvent estate of her husband, Henry L. Caldwell. This claim was founded on three promissory notes made by the debtor, payable to the order of his son Henry L. Caldwell, Jr., and by him indorsed to the plaintiff. These notes were never filed in the Court of Insolvency, but were referred to in the affidavit of the plaintiff on which they were proved as being attached to a proof of a claim against the estate of Henry L. Caldwell, Jr., and the testimony of the assignees was that they never saw them until the hearing of this case in the Supreme Judicial Court.
The evidence tended to show that these notes were given by the debtor to his wife, for money borrowed of her by him. They were said to represent an account for borrowed money which appeared upon his books, and there was no evidence that
The evidence does not show an equitable liability on the part of the debtor which was provable against his estate. There was simply an attempt of husband and wife to contract with each other, •which cannot be effectual, either at law or in equity. Fowle v. Torrey, 135 Mass. 87. Woodward v. Spurr, 141 Mass. 283. National Granite Bank v. Tyndale, 176 Mass. 547.
It seems plain that the original proof was erroneous, and that it was expunged properly, unless the court had lost its power to grant the petition by reason of the lapse of time. The authority to expunge such a proof is given in broad terms, without limitation of time. Pub. Sts. c. 157, § 35. R. L. c. 163, § 44. Section 154 of R. L. c. 163, expressly makes this authority applicable to cases of composition. General authority to make orders in cases of composition is also very broad, and is unlimited in time. St. 1884, c. 236, § 12. R. L. c. 163, § 167.
The conditions had not so changed after the erroneous proof as to make the proof immaterial. By a peculiar and unusual provision in the offer of composition which was confirmed by the court, the assets of the debtor were to remain in the possession of the assignees, and be held by them to secure the payment of the notes given to creditors in pursuance of the composition. At the time of the decree expunging the proof, the note, given to the plaintiff under the composition, had not been fully paid,
The second case is a suit, brought under the same statute as the other, to set aside a decree of the Court of Insolvency allowing the account of the assignees of the estate of Henry L. Caldwell. The principal objection to this decree is that the account was filed too late. We have already seen that, by the terms of the composition, the duties of the assignees were to continue after the confirmation of the composition, and after the discharge of the debtor. It appears that the assignees have assets of the estate in their hands. Under these circumstances it was plainly their duty to render an account to the court. Pub. Sts. c. 157, § 59. Wilson v. Boylston National Bank, 170 Mass. 9.
Nor is there any reason why they should not be allowed proper compensation for their services. Pub. Sts. c. 157, § 56. Wilson v. Boylston National Bank, ubi supra. In each case the entry must be,
Decrees affirmed.