218 Mass. 360 | Mass. | 1914
The defendant Maguire was a tenant in common with others of certain real estate. Upon a petition for partition a commissioner to make partition by sale was appointed by the Probate Court of Suffolk County, who, in accordance with the terms of the warrant, made a sale of the real estate and received a sum in excess of $10,000, for which he is accountable as such commissioner. The court has not yet confirmed the sale, nor made allowance for expenses and services of the commissioner.
The Travelers Insurance Company attached by trustee process in an action against Maguire the share to which he may be entitled in the hands of the commissioner. The only question presented in this action is whether such funds thus can be attached.
This money is not subject to attachment °by trustee process. Under St. 1794, c. 65, relating to trustee process, it was held that executors and administrators could not be summoned as trustees, Barnes v. Treat, 7 Mass. 271, and Brooks v. Cook, 8 Mass. 246, although not expressly exempted therefrom, on the ground that legacies and distributive shares were not goods, effects or credits of the debtor deposited with or entrusted to the executor or administrator, but rather were funds in his hand by operation of the law itself and not by virtue of any contract or other voluntary relation established by act of the parties. The same rule had been held applicable to sheriffs. • Wilder v. Bailey, 3 Mass. 289. Chealy v. Brewer, 7 Mass. 259. It is stated in the report of the commissioners appointed to revise the general statutes of the Commonwealth, that it was intended to express by Rev. Sts. c. 109, § 30, cl. 3, (now R. L. c. 189, § 31, cl. 3,) the law as it had been declared in these several decisions, except that by § 62 (R. L. c. 189, § 20) executors and administrators expressly were made subject to trustee process. The same principle later has been held applicable to a guardian, Gassett v. Grout, 4 Met. 486, an assignee in insolvency, Colby v. Coates, 6 Cush. 558, Dewing v. Wentworth, 11 Cush. 499, a constable, Robinson v. Howard, 7 Cush. 257, a police officer, Morris v. Penniman, 14
This statement of the principle amply covers the case at bar. The commissioner derives all his powers from the statutes which authorize the appointment of such officers by the Probate Court, prescribe their functions and require the execution thereof to conform exactly to their terms and to be approved by the court. No statute has made such an officer subject to trustee process. It follows that the order discharging the trustee was right and according to the terms of the report it is
Affirmed.
Vaughn Callahan brought a bill in equity under R L. c. 159, § 3, cl. 7, seeking to reach and apply in satisfaction of a debt due him from Maguire the latter’s share in the proceeds of the sale in the hands of the commissioner. The remedy provided by this statute often has been referred to as an equitable trustee process. It is a relief resting wholly upon the statute and not belonging to any branch of general chancery jurisprudence. Stockbridge v. Mixer, 215 Mass. 415. Pettibone v. Toledo, Cincinnati, & St. Louis Railroad, 148 Mass. 411. The relief afforded of reaching property not otherwise accessible by legal process is the single feature which renders proper its statutory classification under equity jurisdiction. In its essential nature the remedy thus afforded is the same as that given by the trustee process in an action at law. The same general principles have been applied in determining whether the equitable process lies as in deciding whether attachment could be made by trustee process in an action at law. This is illustrated by Tuck v. Manning, 150 Mass. 211, where Wilder v. Bailey, 3 Mass. 289, and like cases were relied on in
Decree dissolving injunction affirmed.