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7. Legacies. The general rule is, money bequeathed cannot be attached in the hands of an executor or administrator. He is not the debtor of the heir, and therefore cannot be garnisheed as such He is the representative of the testator. He is also a legal custodian. Besides, it would hinder and embarrass the settlement of the succession, were he liable to be charged as garnishee before the regular liquidation of the debts and the rendition of his ac

count.1

There are exceptions to the general rule, however. Some of the States, by statute, make legacies attachable. After the court of probate has rendered the judgment of distribution, and the sum due any given heir has been definitely ascertained, and there remains no other duty of the executor in regard to it than that of paying it over to the heir, it has been held that it may be attached in the executor's hands in a suit against the heir.3

in Kansas, and was not indebted to them. The garnishee was discharged. Wheat 7. Platte City, etc., R. Co., 4 Kan. 370, 376.

An insolvent corporation was factorized as the debtor of A, who held some of its bonds, payable in New York, and secured by a mortgage to trustees, one of whom resided in this State. A had previously pledged the bonds to a New York bank as collateral security for a debt of less amount than their value; and, pending the suit, the trustees sold the mortgaged property for enough to pay off all the bonds-the avails of the sale being in the hands of the Connecticut trustee. Held, that the factorizing creditor might maintain a bill in equity against the trustees, the bank, A and the corporation, by virtue of Gen. Stat. p. 74, 322 (giving factorizing creditors all the security which the debtor had), for a disclosure and account of the amount of the lien of the bank, and a decree enjoining the trustees to pay no more than that amount to the bank, and to hold the surplus to abide the judgment that should be rendered in the factorizing suit." Cander v. Penniman, 32 Conn. 238, Compare Judah ? Judd, 1 Conn. 312. 1. Legacy-Effect of Attaching.—The attachment of a legacy in the hands of an executor transfers the right to receive it to the attaching creditor, subject to the rights of the garnishee. If the legatee be indebted to the estate of the testator to an amount exceeding the legacy given to him, the executor has the same right to set off such indebtedness against the attaching creditor, as he would have had against the legatee. Strong's Executor v. Bass, 35 Pa. St. 333.

240.

General Rule that Legacies are Not Attachable.-Held, in Connecticut, that a legacy in the hands of an executor cannot be taken by foreign attachment. Win

chell v. Allen, I Conn. 386. That an executor is not liable, on a process of foreign attachment, for the amount of a ieg acy which, by the terms of the will, is not payable until a day after that when demand is made on the execution. Benton v. Dutcher, 3 Day (Conn.), 440; McClellan v. Solomon (Fla.), 2 South. Rep. 825; Hankinson v. Page (N. Y.), 31 Fed. Rep. 184; Barnes v. Treat, 7 Mass. 271; Whitehead v. Coleman, 31 Gratt. (Va.) 784.

2. Legacy-When Attachable by Statute.-Whether a legacy is attachable in Pennsylvania, or whether the English rule to the contrary prevails there, was queried in Ross 7. McKinney, 2 Rawle (Pa.), 226. Held, that it cannot be, by process of foreign attachment, when it is in the hands of an executor. Shewell v. Keen, 1 Whart. (Pa) 332.

Where one bequeathed the interest of a certain sum to his wife during her life, and his widow afterwards married again, it was held that the interest so accruing was not liable to foreign attachment at the suit of a creditor of the second husband. Robinson v. Woelpper, 1 Whart. (Pa.) 179.

By act of April 13, 1843, § 10, legacies were made attachable, in Pennsylvania, under execution.-Baldy 7. Brady, 15 Pa. St. 103;-and, by another act in that State, they were subjected to liability to the process of foreign attachment,Gochenaur's Exrs. v. Hostetter, 18 Pa. St. 414; and the legacy or distributive share may be attached there before any settlement of the estate of the decedent,Sinnickson v. Painter, 32 Pa. St. 384; Lorenz's Admrs. v. King, 38 Pa. St. 93; Holbrook v. Waters, 19 Pick. (Mass.) 354: Wheeler & Bowen, 20 Pick. (Mass) 563.

3. Distributive Share.-A distributive share is not liable to attachment in execu

8. Real Estate.-Foreign attachment is not now confined to personalty, as formerly, but is generally allowed against realty. One is not obliged to show that no goods can be found, before having the right to attach land."

Only the right, title, and interest of the attachment debtor in or to the land is affected by the levy." The levy is made by obtaining control, posting upon the premises, or giving notice to the tenant in possession, and returning a proper description to the court with the executed writ. The posting need not be on each of several adjoining lots attached.3

The attachment lien attaches upon valid seizure; 4 but where

tion until ascertained by a settlement of
McCreary
the administrator's account.
v. Topper, 10 Pa. St. 419. After the fil-
ing of his account, showing money in
hand for distribution, an attachment will
lie against the purchase-money, of land
sold by him, in the hands of the purchas-
er at the suit of one of the legatees of
the proceeds of the land. Brady v. Grant,
II Pa. St. 361; Fitchett v. Dolbee, 3 Harr.
(Del.) 267.

66

Independently of the statute authorizing attachments against non-resident debtors, courts of chancery have jurisdiction, in suits against the heirs of non-resident debtors, to subject the personal estate of the decedent, found here, to the Peterson v. his debts." payment of Poignard, 6 B. Mon. (Ky.) 570; Hefferman v. Forward, 6 B. Mon. (Ky.) 568.

Estate Under Administration.-An absent debtor's distributable interest, in an estate in the hands of an administrator, may be subjected, by foreign attachment, Moores v. to the payment of the debt. White, 3 Gratt. (Va.) 139.

If

A creditor of a deceased debtor may proceed, by foreign attachment, against the heirs residing out of the State, to subject land or its proceeds in the State deCarscended to them from the debtor. rington v. Didier, 8 Gratt. (Va.) 260. the land has been sold under a decree at the suit of the heirs, and is in the hands of a commissioner, he should be made a party as such, and should be restrained, by indorsement on the process, from disposing of the proceeds. Carrington v. Didier, 8 Gratt. (Va.) 260.

It was held that a wife's interest as legatee in her father's estate, in the hands of the executor, may be subjected by the creditor of the husband, by a proceeding by foreign attachment, when the husband But if the husresides out of the State. band die pending the proceedings (his wife surviving him), the lien of the creditor is defeated, and the property belongs

to the wife. Vance v. McLaughlin's Admr., 8 Gratt. (Va.) 289.

A non-resident debtor dying after the debt he owed has been prescribed, foreign attachment will not avail to recover the debt from his estate. Markle's Admr. v. Burch's Admr., 11 Gratt. (Va.) 26.

1. Land Attachable.-Drake on Attach. (6th Ed.), § 233.

2. Drake on Attach. (6th Ed.), § 234. When an 3. Posting on Real Estate. order of attachment, issued against a nonresident, is levied upon several town lots, the failure of the officer to place a copy of the order on each lot does not render the service of the order void. Blake v. Rider, 36 Kan. 693; Wilkins v. Tourtellott, 28 Kan. 825; Head v. Daniels, 38 Kan. 1.

Where an officer returned that he had posted the notice on the premises, though the statute requires that the posting should be in " a conspicuous place," the court, under the legal presumption that the officer had done his duty, held the return sufficient. Lewis v. Quicker, 2 Metc. (Ky.) 284.

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Where there is no prescribed form, and no evidence to show that the officer has failed in his duty, the court will presume in his favor with respect to a return. Miller v. Fay, 40 Wis. 633; Redus v. But not when he Wofford, 12 Miss. 579. had failed to state that he had posted at Sharp v. Baird, 43 Cal. all, in his return.

577.

- When lands are 4. Real-estate Lien. seized upon a writ of foreign attachment, and judgment obtained, execution may issue without scire facias against the possessor as garnishee. Gibson v. Robbins, 9 Watts (Pa.) 156.

'A writ of foreign attachment, in Pennsylvania, executed upon real estate, binds the same from the time of its execution and before judgment, as well as against subsequent judgments as against purchasers and mortgagees." Schacklett & Glyde's Appeal, 14 Pa. St. 326.

land was taken under an insufficient affidavit, it was held to attach only upon the substitution of a proper one.1

Foreign attachment is not hindered by homestead exemption laws in favor of citizens; nor by fraudulent anterior conveyance. But a valid deed of trust has preference; and a conveyance of the legal title subject to redemption by the grantor.5

4

VI. Attaching in the Hands of Third Person.-He is responsible for what he has of defendant's property, or for what he owes, from the time of service. His answer binds him, but he may subsequently explain admissions made under a misapprehension.' His

"In foreign attachment the land itself can be attached and a lien obtained, which carries with it the accruing rents. But an attachment in execution cannot be levied on the land; that the fi. fa. must reach; the attachment is levied only of debts or choses in action." Evans v. Hamrick, 61 Pa. St. 19.

1. Real Estate - Amended Affidavit. "Under sec. II of ch. 151 of the W. Va. Code of 1860, a foreign attachment suit in equity is brought, the affidavit is in form except that it does not state 'the nature of the plaintiff's claim,' as required by the amendment of 1867 to the first section of the chapter; a few months afterwards, but before any other rights had attached to the subject, an unexceptionable affidavit was filed, but there was no other order of attachment issued. Held, that the lien attached to the land as against everybody, at least from the filing of the second affidavit." Chapman v. Railroad Co., 26 W. Va. 300, 324; s. c., 9 Am. & Eng. R. R. Cas. 484.

2. Exemption With Respect to Non-residents. Exemption laws, designed to shield the citizen from having his home and other designated property sold under execution, do not avail the non-resident for this purpose. Yelverton v. Burton, 26 Pa. St. 351; McCarthy's Appeal, 68 Pa. St. 217.

3. Real Estate - Collateral Attack of Judgment.-Attaching creditors obtained judgment against McCann, a non-resident notified only by publication. He had previously conveyed his land (the property attached) to McGuire. The attaching creditors brought a suit against McGuire to have their judgment declared a lien upon the land, and to set aside the said conveyance as fraudulent. The defendant resisted by making a collateral attack upon the attachment proceedings and judgment. Held, that the proceedings should be sustained unless absolutely void for jurisdictional defects; and that they should be liberally construed to uphold the judgment, although they might have

been held insufficient in a direct proceeding by the judgment debtor to set them aside. Denman v. McGuire, 101 N. Y. 161.

Real Estate Fraudulently Conveyed.It was held, in Virginia, that a creditor-atlarge may maintain a suit in equity, in the nature of a foreign attachment, to set aside a fraudulent deed, conveying real estate, made by his debtor-both the debtor and the grantee living, and being out of the Commonwealth, Peay v. Morrison's Exrs., 10 Gratt. (Va.) 149.

4. Land Deed of Trust.-The rights of an assignee of bonds, secured by deed of trust on land sold by the assignor, are preferred to the rights of an attaching creditor whose attachment is subsequent to the assignment. Schofield v. Cox, 8 Gratt. (Va.) 533.

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5. Real Estate Attached After Legal Title Conveyed. In proceedings commenced against a non-resident by attachment of realty, where it appears that, before conveyance to defendant, the legal title had been conveyed to the sheriff under the insolvency laws, subject to a redemption by the grantor on the payment of the debts, and that the right of redemption had been sold under a decree, in an action pending at the time of the conveyance to the defendant, the bill should be dismissed. Culbertson's Representative v. Stevens (Va.), 4 S. E. Rep. 607.

6. Even the appearance of the garnishee has been held insufficient to cure defective service upon him. Masterson v. Missouri Pacific R. Co., 20 Mo. App. 653; McDonald v. Moore, 65 Iowa, 171. Compare Flournoy v. Ruttledge, 73 Ga. 735. and Lupton v. Moore, 101 Pa. St. 318.

7. Attaching in Garnishee's Hands.-Attachment of property or credit in the hands of a third person dates from the service upon him if there is really in his possession any property subject to garnishment, or if he is then indebted to the defendant. Conley v. Chilcote, 25 Ohio St. 320. Subsequent indebtedness is not sufficient. Hitchcock v. Miller, 48 Mich.

possession may be such that the defendant cannot reclaim it; and then the attaching creditor cannot, unless the defendant is estopped by his own fraud. Trust funds are governed by the same rule as other property, with reference to the garnishability of the holder.2 1. Right to Retain.-Pending the action, the garnishee is the rightful custodian of property subjected to garnishment in his hands, and he is entitled to legal protection if disturbed. He cannot relieve himself by delivery to his principal, or to any other person, but must stand as a stakeholder till the court shall have charged or discharged him.3

2. Jurisdiction. If nothing of the non-resident defendant's property is directly attached, and he is merely notified by publication, jurisdiction depends upon valid garnishment.

603; Hopson v. Dinan, 48 Mich. 612: Kimball v. Macomber, 50 Mich. 362; Kraft v. Raths, 45 Mich. 20; Conway v. Ionia Circuit Judge. 46 Mich. 28; Bishop v. Young, 17 Wis. 46. The admission, by the garnishee, that an assignment by the defendant is valid, precludes him from afterwards denying indebtedness to the defendant because a receiver has been appointed. Bartlett v. Wilbur, 53 Md. 485. But if he, in ignorance of a previous assignment, answers that he is indebted to the defendant, the garnishment cannot defeat the assignment. Sweet v. Read, R. I. 121.

A debtor's promise to pay in goods, does not make the goods attachable in his hands in a suit against the promisee. Jones v. Creus, 64 Ala. 368.

1. Depends on the Nature of his Possession. One who holds property of the debtor merely by the sufferance of the latter may be garnisheed. Buddig v. Simpson, 33 La. Ann. 375. Sometimes the right of possession, without actual custody, has been thought to justify garnishment. Morse v. Holt, 22 Me. 180; Lane v. Nowell, 15 Me. 86. The creditor's right to attach in third hands is usually measured by that of the defendant to regain his property were there no suit; but it is greater in case the defendant is estopped from reclaiming, by his own fraud. National Bank of Missouri v. Staley, 9 Mo. App. 146; Cairo, etc., R. Co. v. Killenberg, 82 Ill. 295: Lundie v. Bradford, 26 Ala. 512; Fitzgerald v. Hollingsworth, 14 Neb. 188; Balt. & Ohio R. Co. v. Wheeler, 18 Md. 372; Armor v. Cockburn. 4 Martin, N. S. (La.) 667; Burnside v. McKinley, 12 La. Ann. 505; Skowhegan Bank v. Farrer,46 Me.293.

2. Trust Funds.-Whether trust funds may be attached in the hands of the trustee by garnisment depends upon the relation of the defendant to them-whether he is the owner, with right to recall them

at will.

It is not

McLaughlin v. Swann, 18 How. (U. S.) 217; Jackson v. Bank of U. S., 10 Pa. St. 61; Park v. Matthews, 36 Pa. St. 28; Bank of Northern Liberties V. Jones, 42 Pa. St. 536; Cook v. Dillon, 9 Iowa, 407; Huntington v. Risdon, 43 Iowa, 517; Haskell v. Haskell, 8 Metc. (Mass.) 545: Stevens v. Bell, 6 Mass. 339; Davis v. Marston, 5 Mass. 199; Pierson v. Weller, 3 Mass. 564; New England Ins. Co. v. Chandler, 16 Mass. 275; Richards v. Allen, 8 Pick. (Mass.) 405; Webb v. Peele, 7 Pick. (Mass.) 247; Tucker v. Clisby, 12 Pick. (Mass.) 22; Sparhawk v. Cloon, 125 Mass. 263; Daniels v. Ulridge, 125 Mass. 356; Wells v. Hawes, 122 Mass. 97; Thompson v. Stewart, 3 Conn. 171; Edson v. Trask, 22 Vt. 18; Thompson v. Stewart, 3 Conn. 171; Hearn v. Crutcher, 4 Yerg. (Tenn.) 461.

3. The Garnishee's Possession. - The court cannot rightfully order that the property of the defendant, held by the garnishee, he delivered to the sheriff pending the action. Hall v. Brooks, 89 N. Y. 33. Should the garnishee be divested, action for trespass would lie, but he could only recover for the injury done to himself. Goodrich v. Church, 20 Vt. 187; Burlingame 2. Bell, 16 Mass 318; Sweet v. Brown, 5 Pick. (Mass.) 178; Rockwood v. Varnum, 17 Pick. (Mass.) 289. He may protect the property, in his own name, as lawful custodian. just as a sheriff may. White . Madison, 26 N. Y. 117. He cannot be divested by an execution in another suit, of later date. Bank of the State of Missouri v. Bredow, 31 Mo. 523; Keyser v. Mitchell, 67 Pa. St. 473: White v. White, 30 Vt. 338. He cannot divest himself by delivery to the defendant,-Aldrick v. Woodcock, 10 N. H.99:-nor by delivery to any one,-Stiles v. Davis, 1 Black. (U. S.) 101; Walcott v. Keith 2 Fost. (N. H.), 196.

4. Property in Garnishee's Hands Giving Jurisdiction.-It has been held that "the

necessary to the jurisdiction that the thing or debt attached in third hands should be actually in the hands of the executive officer of the court. The garnishee is, in some sense, the keeper of the property under the court, though not subject to the control of the sheriff as an ordinary keeper is.

3. Rights of Garnishee. Whatever lien or privilege the garnishee may have in the property held by him, in relation to the defendant, he still has after being garnisheed; and the attaching creditor acquires no preference over him. His rights arising after garnishment are not affected by it. His relations to the attachment defendant usually determine his obligations with reference to the attaching creditor as a subrogee, after the garnishment has been judicially recognized. For instance, if the defendant has really sold, to the person in possession, the property sought to be garnisheed, the attaching creditor can no more reach it than the vendor can.2

attachment of property of non-resident
defendants in the hands of a garnishee
gives the court jurisdiction to render a
valid judgment against such defendants,
even though the garnishee, by his answer,
denies that he has property belonging to,
or is indebted to, such defendants, and the
fact of his liability is not ascertained until
after the entry of such judgment,"-Keep
7. Sanderson, 12 Wis.
352; compare
Malley v. Altman, 14 Wis. 22;-and, when
nothing is attached further than service of
garnishment on the garnishee, that is held
sufficient to jurisdiction if he holds prop-
erty of the defendant, or owes him,-Knee-
land v. Cowles, 4 Chand. (Wis.) 46;—but
it is jurisdiction over the thing attached,
or that secured by garnishment, only;
and notice to the non-resident defendant
is given,-Winner v. Hoyt, 68 Wis. 278;
Corning v. Hoyt, 68 Wis. 294;-for, where
there is no personal service upon the de-
fendant, a suit in attachment is in the
nature of a proceeding in rem, and the
judgment will bind only the property at-
tached,"-Atchison v. Rosalip, 4 Chand.
(Wis.) 12;—and if no publication be made,
the attachment proceedings will be void,—
Cummings v. Tabor, 61 Wis. 185; Ander-
son v. Coburn, 27 Wis. 558, 563.

1. Interested Garnishees. In a proceeding by foreign attachment, the home defendant (garnishee), having property of the absent defendant in his possession, for the keeping of which the absent defendant is indebted to him, is entitled to have his claim first satisfied out of the property, as against the attaching creditor. Williamson 7. Gayle, 7 Gratt.

152.

(Va.)

If he holds lands of the absent defendant upon a lease, the service of the at

tachment upon him only binds the rents then due-not those subsequently accruing. Haffey v. Miller, 6 Gratt. (Va.) 454. Though the home defendant claims the land in his possession, and shows a receipt for the purchase-money, yet, as he does not pretend that he paid in money, and as his account against the absent debtor is not proved to the satisfaction of the court, the land will be held liable. Kelly v. Linkenhoger, 8 Gratt. (Va.) 104.

2. Property Sold to Garnishee by Defendant.-If, before service of garnishment, the garnishee has bought the property, sought to be reached, of the defendant, for valuable consideration, it cannot be attached in the hands of the garnishee; and he, as purchaser, may intervene to claim and defend his property. Elliot v. Maroney (D. C.), 10 Cent. Rep. 171.

If the property sought has been assigned to another by the defendant, the garnishee has been held not bound to disclose, in his answer, that the assignment was fraudulent, as he has no interest in such matters. Phipps v. Rieley, 15 Oreg. 494.

When Garnishee Should Pay to the Plaintiff. If, in an attachment suit against a non-resident defendant (foreign insurance company), the writ is served on him, and afterwards the amount due from the garnishee is judicially ascertained to be less than the judgment against the nonresident defendant, such garnishee should be ordered to pay the amount of his indebtedness directly to the plaintiff as a credit on his judgment, and ought not be ordered to pay it to a receiver, and the receiver ordered to pay it to the plaintiff on his judgment, against the non-resident defendant. Webster Wagon Co. v. Peterson, 27 W. Va. 314.

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