Estabrook v. Earle

97 Mass. 302

Opinion

Bigelow, C. J.

We see no reason for holding that the plaintiffs’ remedy is not complete and adequate at law under the trustee process.

1. The promissory note on which they seek to charge a married woman by the bill and which it is the object of the suit to cause to be paid out of certain property in the hands of one of the defendants, is a debt contracted with reference to the sole and separate property of such married woman, for which she is liable to be sued at law. Gen. Sts. c. 108, § 3. There is therefore no valid objection to an action against her at common law to recover the debt.

2. There is nothing in the nature of the contract on which it is alleged that the defendant, Earle, held money for the use and benefit of such married woman, which takes it out of the provision of law by which a sum of money due to a debtor may be attached and held by virtue of the ordinary trustee process under Gen. Sts. c. 142, §§ 21-31. It is true that the money in his hands is held in trust for the use and benefit of a married woman, but it is on a trust which she can at any moment revoke by á demand of the money, and on a refusal to pay it to her she can immediately maintain an action in her own name to recover it. Money so placed is clearly within the reach of attachment by the trustee process as a debt absolutely due to the cestui que trust. Haskell v. Haskell, 8 Met. 545, 546.

Demurrer sustained.