
    George M. Gibbens versus David Peeler.
    The St. 1817, c. 87, giving equity jurisdiction in cases of trust arising "in the settlement of estates,” was intended to reach those implied trusts which are charged upon executors and administrators by reason of the duties, or neglect of duties, which devolve upon them in consequence of their appointment to those offices Semble.
    A trust created by an intestate in his lifetime, by a fraudulent conveyance of property which is wanted by his administrator for the payment of debts, is not embraced within the foregoing exposition of that statute.
    But whether in such case an implied trust does not arise for the benefit of creditors, which the administrator may enforce under that statute, quesre.
    
    Where an insolvent person, just before his decease, delivered to a friend, upon a secret trust and for the purpose of defrauding creditors, a promissory note, which the trustee refused to give up or show to the administrator of the deceased, it was held, that the note was so secreted and withheld as that it could not be come at to be replevied, within the meaning of St. 1823, c. 140, and that, by virtue of this statute, the administrator might maintain a bill in equity for discovery and relief.
    
      Hdd, that it was not necessary in order to lay a foundation for such bill, that a writ of replevin should have been first taken out.
    
      Held, that the trustee could not plead an offer made after the suit was commenced but before the filing of an amended bill, to produce the notes to an officer so that they might be taken on a writ of replevin.
    This was a bill in equity brought by Gibbens as administrator of Benjamin Porter. In an amended bill it is alleged, that Porter died indebted to the plaintiff and others, in the sum of 700 dollars and upwards ; that Porter colluded with the defendant, and a short time before his death, for the purpose of defrauding his creditors, delivered to the defendant two negotiable notes, each for 320 dollars, made by John Elmsley to Elisha Preston and indorsed in blank by Preston ; that the plaintiff cannot produce any evidence to maintain an action at law to recover possession of the notes, nor the value of them, nor the money which may have been received thereon by the defendant; that these notes and the sum of 19 dollars constitute the whole of Porter’s estate ; that the plaintiff caused the defendant to be cited to appear before the Probate Court, and that he appeared and admitted his possession of the notes, but refused to disclose what consideration, if any, he paid therefor, or to exhibit the notes ; that he never did pay any consideration for the notes, but received them on a secret and fraudulent trust, which can be disclosed by him only, to apply the proceeds to the maintenance of a child of the deceased, and to prevent their being applied to the payment of his debts; that the plaintiff has repeatedly applied to him to deliver up the ates, but he has hitherto refused, and that he has secreted and withheld them so that they cannot be found or come at to be replevied. The prayer of the bill is for discovery and relief.
    The defendant pleads that the notes have not been secreted nor withheld so that they cannot be found or come at to be replevied ; and that long before the filing of the amended bill, he gave particular notice to the plaintiff and to his solicitor, that he had always held and should continue to hold them subject to a suit of replevin, and that he was ready, at any moment, to deliver them up to the proper officer, when such suit should be instituted. The plaintiff filed a replication.
    
      Sullivan said that the plaintiff had no remedy at law,
    but that this was a case of trust “ arising in the settlement of an estate,” and therefore the plaintiff was entitled to a bill in equity by virtue of St. 1817, c. 87. He cited St. 1805, c. 90, § 5; 1783, c. 33, § 11, 12; Martin v. Root, 17 Mass. R. 222; Adair v. Slum, 1 Sch. & Lefr. 259, 261; Humphreys v. Humphreys, 3 P. Wms. 349; Thompson v. Brown, 4 Johns. Ch. R. 619; Burlingame v. Bell, 16 Mass. R. 318; Thomas v. Goodwin, 12 Mass. R. 140.
    
      June 26th
    
    
      June 27Ih.
    
    The bill may likewise be sustained under Si. 1823, c. 146, for the notes were so “ secreted and withheld, that they could not be found or come at to be replevied.” Hawes v'. Loader, Metcalf’s Yelv. 197, and cases there cited ; Pope v. Tillman, 7 Taunt. 642.
    
      Fletcher, contra.
    
    This is not a trust arising in the settlement of an estate. If there is any trust, it was created in the lifetime of the intestate. If this is a trust within the statute of 1817, then every debtor to the estate of a person deceased is a trustee within the statute; which proves too much.
    Replevin might have been sustained ; so that the case is not within the statute of 1823. The plaintiff says he has not the means of describing the notes so as to replevy them. The statute does not require that he shall be furnished with information for that purpose ; it says only that if the property “ cannot be found or come at,” the party may have a remedy in equity. But the plaintiff has in his bill described the notes with sufficient particularity to maintain replevin. It is said, however, that if the plaintiff brought an action, he could not prove that the defendant is not the bond fide owner of the notes. But the statute does not say he shall resort to chancery for want of evidence to sustain a suit at law. The words are imperative, that the property must be so secreted or withheld that it cannot be replevied. A bill in equity cannot be sustained without a previous attempt to replevy. It is objected that the notice to the plaintiff, that the bills were held subject to be replevied, was subsequent to the commencement of this suit; but an amended bill is considered as an original bill; it is an entirely ne'v thing. Smith v. Brown, 3 Madd. Ch. R 428; Abingdon v. Butler, 1 Ves. jun. 209.
   Parker C. J.

deVvered the opinion of the Court. The question presented by the pleadings in this case, is whether this Court has, by virtue of any of the statutes conferring upon it jurisdiction in equity, authority to entertain the suit, so as to grant the relief prayed for in the bill.

We are very clear that there is no such authority given by the statute of 1817, c. 87 ; which limits the jurisdiction to cases of trusts arising under deeds, wills, or in the settlement of estates. There being no deed or will, the question is confined tu the last species of trusts mentioned in the statutes, viz. those which arise in the settlement of estates. The definition of this phrase has never been settled, and it is difficult to ascertain the precise meaning of the legislature in the use of it. There must be a trust, and it must arise in the settlement of estates. Trusts created by settlements, according to the technical use of that word in England, could not have peen intended, for they are created by deed or will, and are therefore provided for expressly by statute. We can see no reasonable exposition of the term, unless it was intended to reach those implied trusts which may be charged upon executors or administrators by reason of the duties or neglect of duties, which devolve upon them in consequence of their appointment to and acceptance of such offices; possibly also heirs may be charged with trusts within this description, in virtue of the settlement of estates upon one or more of them by a decree of the judge of probate, where the estate does not admit of an equal division.

The case presented by the bill is not embraced within this exposition, for if any trust exists, it was created by the deceased proprietor of the notes in his lifetime, and it is not such a one as the plaintiff would seek to enforce. Whether when chattels or evidences of debt are put into the hands of a friend by an insolvent person, for the purpose of preserving them for his family, against the rights and interest of his creditors, a trust does not arise to the administrator, who succeeds to all the property of the deceased, and who represents the creditors, is a question which has not arisen with us, though we cannot doubt such would be the decision of a court of chancery in England. If such a trust does arise, it might be well said that it arises in the settlement of an estate, for the administrator must settle the estate, and in order to do it, he must look up and possess himself of the effects and credits of the deceased. We do not therefore decide that our jurisdiction over this case depends entirely upon the statute of 1823, c. 140 ; but believing that the case comes within this statute, we give no decisive opinion as to other sources of jurisdiction.

It must have been considered by the legislature, that the existing provisions of law were defective, when they enactec this last statute. This provides, that in all cases where any goods or chattels, deed, bond, note, bill, specialty, writing or other personal property, of any person or persons, shall be taken or detained from him or them, and secreted or withheld," so that the same cannot be found, or come at, to be replevied, the justices, &c. on application by bill, petition or complaint, may order the same to be delivered up, or compel such discoveries and disclosures, and make such orders, injunctions and decrees, and upon such terms and conditions, as equity shall in such case seem to require.

The bill states that two promissory notes belonging to Porter deceased, were just before his death delivered by him to Peeler, the defendant, upon a trust between them that the notes should be held by Peeler for the support &c. of a child of Porter ; that Porter died insolvent, and that the purpose and effect of the trust were to conceal the property, so that it could not be applied to the payment of his debts. This act was a fraud upon the creditors, and the notes so delivered would be the property of the administrator of Porter, as soon as he should be appointed ; so that the plaintiff, in that capacity, is within the description of persons entitled to a bill under the statute. The only question then is, whether the notes were so situated as to be the proper subject of this statute remedy.

Considering the statute as in a high sense remedial, we are not disposed to give it such a close construction as would be likely to exclude cases within the mischief intended to be redressed. Honest defendants can in no case be injured by this process, for their own statement under oath will protect them, unless satisfactory proof can be brought to contradict them, and according to the rules in chancery, their answer cannot be effectually contradicted by a single witness. Have the notes then been taken or detained by the defendant from the plaintiff ? If his property, they have been detained, for they are admitted to be in the defendant’s possession, and upon demand upon him to deliver them up, they have been refused. Have they been secreted or withheld, so that they cannot be found, or come at, to be replevied ? Upon this point the argument has principally turned. We think the proceedings in the Probate Court, and me answer by the defendant to the interrogatories there put, are competent evidence here, as the answer to a bill in chaneery would be, in a suit at common law. By those answers the defendant refused to produce the notes, claiming them as his own property. They were therefore withheld, and so that they could not be found, within the meaning of the statute. Nor could they be come at to be replevied, for unless exposed, an officer could not take possession of them ; he bad not the power to extort them from the pocket of the defendant, nor could he, by arresting his person, compel him to deliver them up.

We think it not necessary, to lay a foundation for tms process, that a writ of replevin should first be taken out, and that the officer should return on it that he could not obtain possession of the goods or papers ; any more than it should be required to try an action at law and fail in it, in order to show that there was not a plain and adequate remedy at law, before a bill in equity should be sustained. It is enough that it shall appear to the court by the facts stated in the bill, admitted or proved, that the goods or papers sought to be delivered up, were so controlled by the defendant that an attempt to replevy them would probably be fruitless. So with goods or chattels ; if they should be locked up in a cellar or closet, or otherwise concealed, so that an officer with a writ could not find them to replevy, they may be the subject of this process, without any attempt to replevy them. And in this respect there is a similitude between this process under this statute, and the general trustee process, which applies only when the goods and effects are so held that they cannot be come at to be attached. It has been determined in the case of Burlingame v. Bell, that though physically they may be attached, yet if they are held by a fraudulent transfer, the holder may be summoned to answer as a trustee.

We think then, there having been a demand for these notes before the filing of the bill and a refusal to deliver or even to show them, that they being of a nature to be concealed in the pocket of the defendant so that they could not be found, and being invisible so that they could not be replevied, the case is brought clearly within the provisions of the statute.

But it is objected that after the filing of the bill, and after a hearing upon a demurrer, and an order to amend, there was a formal offer to produce the notes to any officer, so that they might be taken on a writ of replevin ; and that as this was done before the demanded bill was filed, the case is clearly taken out. of the statute. We cannot adopt this argument. If a right of action existed at the time of filing the original bill, it was a vested right which would not be defeated by a subsequent act of the defendant. The amendment of the bill is a continuance of the former process, not the institution of a new one. The suit was still pending in court. If the bill had been dismissed and a new one filed and in the interval the notes had been offered, the argument would apply. But in the actual state of things, the offer to give the complainant a right to another action could no more affect his existing right, than a tender in a common law action would defeat the action, if made before an amendment, which had been ordered, had been filed.

We are therefore of opinion, that this plea should be overruled, and that the defendant be held to answer the bill. 
      
       See Campbell v. Sheldon, 13 Pick. 23.
     
      
       See Holland v. Cruft, 20 Pick. 28, et seq.
      
     