Page:The Green Bag (1889–1914), Volume 19.pdf/700

 COTTON MATHER IN THE PROBATE COURT

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to belong to the Estate of the Rev11 Dr. Cotton Mather Decd, and the Reason he

a prior Crr. [creditor] 3 Co. 83 a. A Gift by ye father, who is indebted, to his son shal

gives why the particulars mentioned in a list annexed to their petition ought not to be added is because thay have not been shewn to him to belong to the said Deceaceds Estate." It would seem that Cotton Mather must have conveyed away the bulk of his property in his lifetime; and the point was made against the administrator that he ought to include such property in his inventory, because the bill of sale was without con sideration and so a fraud in respect to his creditors, and that the administrator was concealing assets of the estate. The answer was that he was concealing nothing, and that even if the bill of sale was void as against creditors it was good otherwise, and es pecially that no proved creditors had appeared before the court. The original briefs of the lawyers on each side are preserved with the papers in the case, and are interesting reading as showing the ability of the attorneys of that time and their skill in attack and repartee. John Read for the supposed creditors, and Robert Auchmuty for the administrator were lead ing Boston attorneys. Their briefs are here given in full.

be presumed to be made to defeat his creditor, is fraudulent, & shal be void. 3 Salk. 174.2; 3 Co. 81 a, b. & more especially wr ye Gift is secret, ye Donor holds & useth yc goods as necessarys some years, nay, till his death. Ibid. & y* is ye Law that the Deft, saith he knows nothing of. And the Province Law p. 142, last Impression, provides y' if a credr. [creditor] complains of any person concealing any part of ye Estate, they shall discover it upon oath or go to Goal til they conform. So this admr. sh6d be treated, & y' is y* Opinion of Jn0 Read.

Goodwin Admr's. Case. Some partys concerned as Creditors pray that Nath" Goodwin, admr. of y* Revd Dr. C. Mather, may shew cause why severalls mentioned may not be added to perfect ye Inventory, he is Cited accordingly and answers y' he is not obliged to Inventory such things as y* Intestate by Deed of Gift alienated in his life time, but don't say ye Intest ever so alienated any of those par ticulars. Whereupon I say if that be any answer, then I have forgot all my Logick now, as long since I had ye most part of it. But to Inforce their prayer they [the creditors] may urge, That every fraudulent Conveyance is void by ye Comon Law agst.

May 28, 1729. To Mr. Armitage & Adams. The Reply of Nathaniel Goodwin to Answer of Jn. Read, Esq'. And first, your admr. closes with ye Respon' & admitts to be true y' ye Respon dent has fergott his Logick and wilfully fergetts the facts & circumstances of ye Case. First, for y' neither the sd. Respon' or any other person appears as ye Imediate Credr of ye Intestate. & forasmuch as ye sd. Intestate in his lifetime made a Bill of Sale of w* ye Respond' would have in ventoried, the sd. admr. Conceives by Law he is not oblidged to Inventory ye Same, admitting ye sd. Bill of Sale was fraudulent as Insinuated; for 3 Co. 83, by ye Comon Law an Estate made by fraud shall be avoided only by him who hath a former Right, Title, Interest, Debt or Demand, which is not ye Case of ye Respond' or his Clyents. & It was agreed by all ye Justices of yc Comon pleas y' a fraudulent Con veyance is not made Void agst. all, even by yc statute, but remains good agst. ye Donor & his heirs, &c. Cro. Eliz. 445: therefore ye Bill of Sale is Good agst. ye Donor & his representatives, & at ye Instance of Strangers