Greenway v. Wilmarth

53 Mass. 12

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1846
• Status: Published

Opinion

Dewey, J.

The Rev. Sts. c. 109, § 30, enact that “ no

person shall be adjudged a trustee, by reason of any money or other thing due from him to the principal defendant, unless it is, at the time of the service of the writ on him, due absolutely and without depending upon any contingency.” The answer of the supposed trustee, in the present case, discloses a conditional contract, and a promise to pay money only on a contingency. It proceeds further to state certain facts rendering it uncertain, and improbable that any debt will ever exist in favor of the principal defendant. It alleges various incumbrances upon the land conveyed, and for which the conditional note was given, by reason of attachments, liability to be sold for payment of the debts of the grantor’s father, and a right of dower in the widow, and avers directly, that from the best information he can obtain, he considers it altogether uncertain whether any estate will come to him by virtue of said Wilmarth deed. And we do not perceive that the conveyance, subsequently made by the supposed trustee to Tisdale, varies, in any degree, his liability.

The liability of the trustee being wholly contingent, and there being no debt due from him absolutely, he must be discharged.