285 Mass. 159 | Mass. | 1934
The only question raised is whether the two individuals named trustees in this action at law begun
The trial judge found that the trustees should be discharged and denied requests for rulings presented by the plaintiff on the ground that they were not in accordance with facts found by him.
The burden is upon the plaintiff to show that the alleged trustees ought to be charged. Cardany v. New England Furniture Co. 107 Mass. 116. Krogman v. Rice Brothers Co. 241 Mass. 295, 300. The plaintiff was bound, in the circumstances here disclosed, by the answers filed by the trustees, which must be considered as true. Garratt-Ford Co. v. Brennan, 232 Mass. 493, 498. Corsiglia v. Burnham, 189 Mass. 347, 349. G. L. (Ter. Ed.) c. 246, § 16. The answers show that the unsecured creditors have been paid. The answers also disclose that there are secured creditors. There is nothing to indicate that the secured creditors have ever been paid. It must be assumed also that, since the terms of the assignment are not before the court, it was executed in compliance with G. L. (Ter. Ed.) c. 203, §§ 40, 41; c. 216, §§ 118, 120. For aught that appears, creditors entitled to priority may remain unpaid as well as preferred creditors. The alleged trustees, therefore, may hold whatever property may remain of that assigned to them in trust for the secured creditors and for creditors entitled to priority, if any. The rights of such creditors would be superior to the rights of the plaintiff under the
Order dismissing report affirmed.