282 Mass. 45 | Mass. | 1933
This is an action of contract. The writ commanded the officer “to attach the goods and estate of The New England Trust Company ... as it is Administrator of the estate of Robert Alonzo Miner” and to summon “the said defendant Company” to appear in court. The officer’s return on the writ showed attachment of a chip “as the property of the within named defendant corporation . . . administrator as within described” and a summons to the corporation to appear in court. The New England Trust Company appeared specially and moved that the writ and declaration be- dismissed because they showed that the alleged cause of action was based on the liability of the decedent and not of the defendant, to the plaintiff, and that the writ was defective as being in violation of G. L. (Ter. Ed.) c. 230, § 6. It is plain that the declaration set out a cause of action against the decedent and not against The New England Trust Company personally. There has been no contention to the contrary. The plaintiff filed a motion to amend her writ so that it would command the officer “to attach the goods or estate which were of Robert A. Miner . . . deceased, in the hands and custody of The New England Trust Company . . . Administrator of the goods and estate of said Robert A. Miner, and summon the said New England Trust Company as administrator as aforesaid.” The trial judge ruled that the writ did not run against the goods or estate of the-deceased, although the cause of action disclosed by the declaration related to a contract with the deceased. He deemed that this created a situation which could not be cured by amendment on the authority of Fessenden v. Gunsenhiser, 278 Mass. 213, and accordingly granted the defendant’s motion to dismiss and denied the plaintiff’s motion to amend.
The plaintiff appealed from the allowance of the motion to dismiss, but not from the denial of her motion to amend. The latter is not before us. That denial must stand.
In Fessenden v. Gunsenhiser, 278 Mass. 213, a trustee writ
In Yarrington v. Robinson, 141 Mass. 450, the writ commanded the attachment of the goods or estate of the defendants, who were described as administrators of a deceased person. The declaration set out a claim against the estate. It was held to be manifest from the form of the writ and the declaration that the action was against the defendants in their capacity as administrators and that, if the plaintiff obtained judgment, the execution for the debt or damages would run against the goods and estate of the testator in their hands and not against the goods, estate and bodies of the defendants. See G. L. (Ter. Ed.) c. 230, §§ 8, 9. The plaintiff proved no contract with the testator in his lifetime, and none for which his estate could be taken in an action by the plaintiff. Therefore, the action could not be maintained.
In the case at bar there was no attachment of actual property. A chip attachment is recognized as valid service of a writ of attachment and summons, although it is not an effectual attachment such as would give jurisdiction over an absent defendant. Peabody v. Hamilton, 106 Mass. 217, 222. It was not necessary for the plaintiff to secure preliminary permission of the Probate Court as required by G. L. (Ter. Ed.) c. 230, § 7, in order to make a chip attachment of property of the decedent. It. would have been proper for the plaintiff in the case at bar, since no attachment of actual property was desired, to have used a simple writ framed to summon the defendant in its capacity as administrator, without an order to attach goods or estate. G. L. (Ter. Ed.) c. 223, § 16. Howe’s Practice, 54, 55, 61.
We are of opinion that the case at bar falls within the authority of Yarrington v. Robinson, 141 Mass. 450, and is distinguishable in its facts from Fessenden v. Gunsenhiser, 278 Mass. 213. There was error in allowing the motion of the defendant to dismiss.
Order allowing defendant’s motion to dismiss reversed.