65 Me. 296 | Me. | 1876
The only question is whether the trustee shall be charged or discharged. He is the assignee of the principal defendant under an assignment for the benefit of his creditor's.
No reason is perceived why the assignment should not be sustained and the trustee discharged.
I. The first point made by the learned counsel for the plaintiff, that the assignment was made for the purpose of hindering and delaying creditors, and is therefore fraudulent, is not sustained by proof. There is nothing to indicate that the assignment was not made in good faith, and for the purpose of securing to all his creditors the payment of their debts as far as the debtor’s means would go.
II. The point that the consideration for the assignment is inadequate is not well taken. True, the pecuniary consideration named is only one dollar; but the true consideration is the agreement of the assignee to perform the trusts imposed upon him by the assignment; and that, in contemplation of law, constitutes a full and complete consideration. ■
III. Nor is the point that the assignment does not provide for a proportional distribution among all the creditors becoming parties thereto, well taken. The assignment does provide for such a distribution.
IY. Nor is the point that the assignment was not properly sworn to, well taken. The statute does not prescribe any particular form of oath. It simply declares that the assignor shall make oath to the truth of the assignment. B. S., c. 70, § 2. This the
Y. Nor is the point that the assignee did not render a true account of his doings to the judge of probate within six months, well taken. The assignment is dated October 16, 1872. The trustee, in his disclosure, says he rendered his account to the judge of probate on the first day of the following April, and that it was sworn to. That was within six months. The fact that the account was not allowed by the judge of probate till thp May term of his court, is unimportant. The statute only requires the account to be ■ rendered within the six months; it does not require it to be allowed within that time. • Besides, the delay was necessary, in order that notice might in the mean time be given.
YI. Nor is the point that after six months from the publication of notice of the assignment, or after eighteen months, or two years, if the judge of probate shall so long extend the time for the settlement of the estate, the assignee may be held as trustee in favor of a creditor who has not become a party to the assignment, well taken. At no time can the trustee be charged for more than the excess of such estate remaining in his hands after the payment of the debts of the creditors who have become parties to the assignment and the lawful expenses. Such is the true intent and meaning of the statute referred to. B. S., c. 70, § 7. In this case there is no such excess. The debts are over $12,000, and the assets less than $1000.
YII. Nor does the clause, “being responsible only for his actual receipts or willful defaults,” annexed to the agreement of the assignee accepting the trust, vitiate the assignment. The argument that this clause releases the assignee from the use of due diligence to collect the debts due to the assignor, is not, in our judgment, well founded. The law requires the assignee to use due diligence in the discharge of all his duties, and the above clause will not release him from such a discharge of his duties. An omission to use due diligence would, in contemplation of law, be a willful default.
We believe we have now considered all the points raised by the
Trustee discharged.
