306 Mass. 74 | Mass. | 1940
This is a writ of scire facias brought in the plaintiff’s action, begun by trustee process, against one Flood as defendant, in which the present defendants Joseph A. and Daniel B. Curnane, executors of the will of Jeremiah J. Curnane, deceased, were summoned as trustees. Flood, a legatee under the will, was defaulted and the trustees were charged generally and execution issued. A prior action by trustee process, brought by Mary P. Kelley against the same defendant and the same trustees, resulted in a judgment for Kelley. Execution therein issued on June 26, 1937, which was five months before the issuance of the execution involved in the present case. In the present proceeding, upon motion of the defendant trustee Joseph Curnane, the judge directed that an order of notice issue to Kelley as a party claimant. She filed a so called “plea in abatement.” After a hearing of this “plea,” the judge proceeded to hear the case on the merits, without disposing of the “plea,” but gave Kelley permission to take part in the trial of the merits without prejudice to her rights under her plea.
The judge found as a fact that, in the prior case of Kelley against Flood, no proper service was made on the defendant trustee Joseph Curnane, that the writ was returnable more than thirty days after the date thereof, and that no demand was made on the defendant trustee Daniel Curnane within thirty days after final judgment; and he ruled that those proceedings against the trustees were not effective to attach the legacy of Flood. He ruled that in the present
It is provided by G. L. (Ter. Ed.) c. 246, § 16, that the answer and statements of a trustee, on oath, shall be considered as true in determining how far he is chargeable, but that either party may allege and prove any facts material in determining that question and not stated or denied by the trustee. So in scire facias, which is but a continuation of the original proceeding (Universal Optical Corp. v. Globe Optical Co. 228 Mass. 84, 85), the liability of one sought to be charged as trustee is ordinarily determined by an examination of his answers and statements on oath. Fay v. Sears, 111 Mass. 154, 155. Wilde v. Mahaney, 183 Mass. 455, 460. MacAusland v. Fuller, 229 Mass. 316, 320. Krogman v. Rice Brothers Co. 241 Mass. 295, 301. Compare Musolino, LoConte Co. v. Costa, 304 Mass. 253, 255.
The answer on oath of the defendant Joseph Curnane contained the statements that he had not been served with process in the case of Kelley v. Flood; that he and his co-executor Daniel Curnane jointly had in their hands goods, effects and possessions of Flood in the sum of $500 subject to a prior attachment in the case of Kelley v. Flood as to the validity of which he (Joseph Curnane) was in doubt as he had not been served with process. The defendant Daniel Curnane answered that the defendant trustees were charged in the prior action of Kelley v. Flood; that execution issued therein and demand was duly made thereon five months before the execution described in the present proceeding was issued; and that he has not now in his hands and possession any goods or effects of Flood. In
It seems to be settled in this Commonwealth that ordinarily where two or more persons are jointly liable as trustees, all should be served with process, and that if this is not done, the one or more served should be discharged. Jewett v. Bacon, 6 Mass. 60, 62. Warner v. Perkins, 8 Cush. 518. See Lobb v. Lobb, 26 Penn. St. 327. The rule may be relaxed in certain circumstances, as where some of those liable are nonresidents, Parker v. Danforth, 16 Mass. 299; or where, due to the circumstances of the particular case, there will be no loss or inconvenience to those summoned. Hathaway v. Russell, 16 Mass. 473. See also G. L. (Ter. Ed.) c. 246, §§ 5-6. In the instant case we think there is reason for the application of the general rule. Since the defendant Joseph Curnane was not served with process in the Kelley case, he was left free to pay the legacy to Flood. It is a general doctrine that payment by one of two or more joint executors will have the same effect as payment by
Since there was no service on Joseph Curnane in the Kelley case, the District Court was without jurisdiction over the alleged trustees; and that trustee proceeding and the purported judgment entered therein were of no force or effect. Needham v. Thayer, 147 Mass. 536. Carroll v. Berger, 255 Mass. 132, 135. New England Home for Deaf Mutes v. Leader Filling Stations Cory. 276 Mass. 153, 157.
The defendant Daniel Curnane and Kelley argue that there was no jurisdiction in the District Court to cite Kelley in as an adverse claimant under G. L. (Ter. Ed.) c. 246, § 33, contending that Kelley was prejudiced by the consideration of her claim to the fund involved, Flood’s legacy, in the District Court rather than in the Probate Court. They urge that the District Court is without authority to issue a writ of scire facias against an executor adjudged trustee of a legacy due to a principal defendant.
It is provided by G. L. (Ter. Ed.) c. 246, § 21, that
We are of opinion that the District Court, having jurisdiction to entertain trustee process to attach goods, effects or credits of a defendant in the hands of an executor, had jurisdiction to entertain this proceeding by way of scire facias, which is a mere continuation of the original action. We discover no error in the rulings of the judge.
Order dismissing report affirmed.