#### William R. Kelly *versus*Samuel S. Bowman, Principal, and E. Haskett Derby, Trustee.

One summoned as trustee under a trustee process, may make the affidavit of another person a part of his answer, if he is willing to swear that he believes it to be true, or he may reject it.

The circumstance that such affidavit was made by a person interested in the cause is immaterial, for it is received upon the authority of the trustee’s oath, and not as the testimony of a witness.

Though the answer of a trustee, where the language is doubtful, is to be construed most strongly against himself, yet it is not to receive a construction against the fair and natural import of the language taken all together.

The supposed trustee states, in his answers, in substance, that on April 15, 1831, Ann Collins, a sister-in-law of Bowman and residing with him in the family of his father-in-law, *389John Dunn, executed and delivered to Bowman a note for $ 500 and a mortgage of real estate as collateral security for the same; that the respondent believes and is assured by credible persons, under oath, (John Dunn, Sarah Dunn his wife, Ann Collins and Bowman,) whose affidavits are annexed to and form part of his answers, that Bowman paid no consideration for the note and mortgage, but that Ann Collins made the same for the purpose of negotiation to raise money for her use, and in part to discharge a debt due to Dunn from Bowman for the board of himself, his wife and child, amounting to $ 340-17 ; that she had promised Dunn to pay him that sum ; that she appointed Bowman her agent for such negotiation ; that Bowman signed no written obligation to account to her or to any one for the proceeds of the note, and that she gave him no written authority to act as her agent; that the reasons why the respondent believes that Ann Collins gave the note and mortgage to Bowman merely for the purpose of negotiation, are the affidavits annexed, the embarrassed situation of Bowman, who had no money to pay for the note and mortgage, the relative situations of Dunn and Ann Collins, the former of whom was threatened with a suit and the latter was in some degree dependent upon him for support, and further information given by Bowman to the respondent, both before and after the commencement of this suit, that a large portion of the sum realized from the note and mortgage was to go to Dunn ; that previously to the execution of the note and mortgage, a similar note and mortgage for $ 400 were made by Ann Collins to Bowman for the same purpose, but were abandoned as too small, and were left with Bowman or her attorney to be cancelled; that while the last mentioned note was in Bowman’s possession,, he was arrested for debt, and he pledged the note to the officer who arrested him, as security until he could get a bail bond signed, with a surety; that on the day of his arrest he assigned the first mentioned note and mortgage to the respondent for two purposes, first, to raise money to redeem the note pledged, and secondly, to secure to the respondent $ 20 due to him from Dunn and Bowman, for services, the respondent advancing $ 30 only to Bowman, and receiving the assignment as security for the two last named *390sums ; that the respondent, by the direction of Bowman, as* signed the last made note and mortgage to one Fullei and had just received from him in part payment the sum of $ 300, (through one Mclntier, the broker employed by Bowman to negotiate the mortgage) when the trustee writ was served on the respondent; that the broker afterwards paid the respondent $ 90 more, which he paid over to Bowman under the belief that he was the agent of Ann Collins ; that before the service of the writ the respondent had accepted the verbal order of Bowman to pay out of the $300 to one Fiske, the sum of $ 15 due to him from Bowman, which the respondent consid ered Bowman was entitled to retain from the fund, for his services in negotiating the note and mortgage ; that after the service of the writ Ann Collins forthwith claimed the sum of $ 235, the balance in the respondent’s hands ; that affidavits of Mclntier and Henry Kelly, containing statements purporting to have been made by Bowman, have been tendered to the respondent by the plaintiff’s counsel, and that the respondent has refused to make them a part of his answers.

*March 08th.*

*Osgood*for the plaintiff.

The trustee must be charged, because all the facts stated by him as being within his own knowledge, show that the note and mortgage were Bowman’s property, and that the proceeds were to be appropriated to his use. Bowman might have maintained an action against the trustee for the proceeds, in his own name ; which is one test of the trustee’s being chargeable. *Maine F.*& *M. Ins. Co.*v. *Weeks, 7*Mass. R. 438. The judgment in this action, against the trustee, w'ould be a bar to an action brought against him by the mortgager. *Stackpole*v. *Newman,*4 Mass. R. 85 ; *Thorndike*v. *De Wolf,*6 Pick. 120.

The affidavits annexed by the trustee to his answer, ought not to be admitted, 1. Because they contain facts the truth of which the trustee did not and could not know, except by the oath of the parties thereto, who were directly interested in thfe funds, as appears by the trustee’s answers, and they are collateral evidence, which the Court have always excluded. *Comstock*v. *Farnum,*2 Mass. R. 96 ; *Barker*v. *Taber,*4 Mass. R. 81; *Minchin*v. *Moore,*11 Mass. R. 90; — 2. Because the trustee cannot, by his answers and the affida*391vits thereto annexed, avoid the contract of the parties to the note and mortgage, or contradict the purport thereof; upon the principle, that parol evidence is inadmissible to contradict, control or vary a written contract. 3 Stark on Ev. 1000 ; 13 Petersd. Abr. 109 ; *Flint*v. Sheldon, 13 Mass. R. 443 ; *Wade*v. *Howard,*6 Pick. 492; *King*v. *King, 7*Mass. R. 496 ; *Kimball*v. *Morrell,*4 Greenl. 368. In the case of *Willard*v. *Sturtevant, 7*Pick. 194, there was a latent ambi guity, and the trustee stated that he knew the truth of the facts contained in the letter and affidavit annexed to his answer, and the person who made the affidavit had no interest in the property then in question.

The respondent mentions two mortgages, but he does not state that there was any consideration for the first one. The Court will construe the second to have been given in consideration of the first. Doubtful answers are to be construed against the respondent. *Sebor*v. *Armstrong,*4 Mass. R. 206 ; *Cleveland*v. *Clap,*5 Mass. R. 205.

The respondent ought to be charged, because his answers are evasive, uncertain and contradictory, whereas they ought to be direct, positive and consistent. *Whitman*v. *Hunt,*4 Mass. R. 272.

S. *D. Parker, contra,*cited,

to show that the trustee had a right to annex to his answers some of the affidavits, *Willard*v. *Sturtevant, 7*Pick. 194, and a right to reject others, *Hawes*v. *Langton,*8 Pick. 67.

*April 2d,*

Morton J.

delivered the opinion of the Court. Does the trustee discharge himself ? • This must be determined by his own answers, and no evidence *aliunde*can be received to aid or explain them. *Comstock*v. *Farnum & Tr.*2 Mass. R. 96; *Barker*v. *Taber Trs.*4 Mass. R. 81; *Stackpole*v. *New-man Tr.*ibid. 85 ; *Minchin*v. *Moore & Trs.*11 Mass. R. 90. But his answers are not necessarily confined to facts within his own knowledge. He may refer to letters, statements, affidavits, assignments or other instruments and documents, and adopting them make them parts of his answer. *Willard v. Sturtevant & Tr. 7*Pick. 194.1 But he is not obliged to re*392ceive and adopt any extraneous facts. He may not believe them to be true. And unless- he is willing to swear to bis belief in their truth, they cannot be received as a part of his answers. *Hawes*v. Langlon, 8 Pick. 67.

The trustee therefore had a legal right to reject the affidavits of Mclntier and Kelly, and to receive and adopt those of Bowman, Collins and the two Dunns. It would be no objection to the latter that they were interested in the event of the suit, if such were the fact; for the affidavits are not received as testimony in the case, but upon the authority of the trustee’s oath. But these persons do not appear to be incompetent. The Dunns were clearly disinterested ; and Bowman and Collins are equally interested both ways, and so legally indifferent.

The answers of a trustee being his own language, must unquestionably, in all doubtful cases, be construed most strongly against himself. *Cleveland*v. *Clap,*5 Mass. R. 205. But his language is not to be distorted nor forced into any unnatural construction ; nor can inferences be drawn from any real or supposed discrepancies in his answers, against the fair and natural import of the language taken all together.1

Now from the answers in this case, including the foul affidavits which are adopted and made part of them, we are satisfied that the defendant, in negotiating the mortgage and note, acted as the agent of Ann Collins ; that when the trustee received the money of the broker, it was her money and she had a right to recover it out of his hands ; and that the defendant had no right to it except-as her agent. If he could receive it and give a valid discharge for it, it must be by her authority and not in his own right.

We are the better satisfied with this conclusion, from the admitted fact that the money was raised on property of Ann Collins, and therefore in justice ought to be paid over to her.

*Trustee discharged.*

1

*Chase*v. *Bradley,*5 Shepl. 89.

1

 See *Lamb*v. *Franklin Manuf. Co.*6 Shepl. 187; *Shearer*v. Handy, 22 Pick. 417; *Show*v. Bunker,2 Metc. 376; *Crossman*v. *Crossmant*21 Pick. 21*Graves*v. Walker, ibid. 160.