189 Mass. 390 | Mass. | 1905
One Orlando E. Lewis conveyed to the plaintiffs certain real estate upon the trusts set out in a declaration of trust executed by them of even date with the conveyance. Subsequent to the conveyance Coleman, one of the defendants, sued Lewis in contract and caused a special attachment to be made of the real estate thus conveyed. The real estate was described in the officer’s return as property of the said Lewis the record title to which stood in the name of D. Blakely Hoar and William H. Dunbar the plaintiffs in this suit. Lewis died during the pendency of the action, and his administrators appeared and took upon themselves the defence of the action. Coleman recovered judgment, sued out a writ of execution and placed it in the hands of one Martin a deputy sheriff who levied it upon the property specially attached, and by reason of certain prior attachments of the property as the property of Lewis suspended the levy and caused a copy of the levy and the suspension thereof to be duly recorded in the registry of deeds. Martin died subsequent to the bringing of this bill, and thereupon the execution was committed to the defendant Kelly, a deputy sheriff, who now holds it and maintains the levy. The bill has been amended by making Kelly a party, and is brought to have the cloud upon the plaintiffs’ title thus alleged to exist removed. The defendants severally demurred and the case was reserved for this court upon the bill as amended and the demurrers. If the demurrers are sustained the bill is to be dismissed; otherwise to stand for hearing.
The statute expressly provides that, “ An attachment of real or personal property shall be dissolved if the debtor dies before it is taken or seized on execution and administration of his estate is granted in this Commonwealth upon an application therefor made within one year after his decease,” R. L. c. 167, § 112. This applies, we think, to property fraudulently conveyed as well as to property the record title to which stands in the name of the debtor at the time of his death. The object of the statute is to bring the property attached as well as other property into the control of the administrator as a general fund to be administered by him and thus to secure a more equal distribution of the assets especially in the case of insolvent estates. Bullard v. Dame, 7 Pick. 239. Parsons v. Merrill, 5 Met. 356. Wilmarth
The plaintiffs contend that the levy is invalid because of the dissolution of the attachment on which it is contended the levy was based. The levy was on “ all the right, title and interest which Orlando E. Lewis had (not exempt by law from attachment or levy on execution) on the eighth day of October, A. D.
The defendant Coleman can, no doubt, take out another execution, but we think that the plaintiffs are entitled to the relief prayed for against the execution already taken out and referred to in the bill. According to the reservation the case is to stand for hearing.
So ordered.