10 F.2d 448 | 9th Cir. | 1926
(after stating the facts as above). In the absence of a statute an executor cannot be held as garnishee in respect to a legacy of money bequeathed by his testator. Shin on Attachment, § 510; Drake on Attachments, §§ 492, 501; Colby v. Coates, 6 Cush. (Mass.) 558; Hudson v. Wilber, 114 Mich. 116, 72 N. W. 162, 47 L. R. A. 345, 68 Am. St. Rep. 465; Norton v. Clark, 18 Nev. 247, 2 P. 529; Whitehead v. Coleman, 31 Grat. (Va.) 784. The underlying reason of the decisions is that prior to a decree of distribution the estate is in the custody of the law, not subject to attachment which would delay and embarrass official proceedings in the administration of the estate. After decree of distribution is made, the share of the legatee has been finally determined and there may arise a right to bring'action against the representative of the estate in his individual capacity. The Supreme Court of California, in re Nerac, 35 Cal. 392, 95 Am. Dec. 111, decided in 1868, conceded the rule above stated and pointed out that conditions change when it has been judicially determined that money is due from the executor and distribution is ordered. In Dunsmoor v. Furstenfeldt, 88 Cal. 528, 26 P. 518, 12 L. R. A. 508, 22 Am. St. Rep. 331, decided in 1891, the court again recognized the rule as stated in the Nerac Case. It therefore follows that inasmuch as at the time of the issuance and service of the writs of attachment upon the executors of the will of Washington Dodge, deceased, there was no statute of California expressly authorizing attachment of personal property in the hands of the executor, our duty is to follow the California eases, unless the expressions of the court were mere assumption by way of argument in no way imposing a duty upon us to conform to them. We think, however, that the court indicated accord with the general rule as the one ob
In Martinovich v. Marsicano, 137 Cal. 354, 70 P. 459 (1902), it was held that there was no statute authorizing the court to assign a share of an estate to one who holds a judgment lien or other incumbrance thereon made or suffered by the heir subsequent to the death of the ancestor; and in Estate of Howe, 161 Cal. 152, 118 P. 515 (1911), it was held that the probate court had no power to appropriate the estate of a legatee to the payment of his debts. Title, Insurance & Trust Co. v. Miller & Lux, 183 Cal. 71, 190 P. 433, cited by petitioner, was regarded as not a case where the court sitting in probate was determining a controversy between distributees and third persons adverse to the title of the decedent or of the distributees. Buckley v. Superior Court, 102 Cal. 6, 36 P. 360, 41 Am. St. Rep. 135; section 1665, C. C. P.
The possession of the property of a decedent taken'pursuant to order of the.probate court is the possession of the court (Byers v. McAuley, 149 U. S. 608, 13 S. Ct. 906, 37 L. Ed. 867; Blythe v. Hinckley (C. C.) 84 F. 246), and prior to the enactment of section 561, infra, the executor was obliged by law to distribute a legacy to the legatee himself or to his assignee (section 1665, C. C. P.). The jurisdiction of the court in probate was limited. See cases cited.
In 1923 a change was made, and by section 561, Code of Civil Procedure, the interest of a defendant in personal property belonging to an estate, whether as heir or legatee, may be attached by serving the personal representative of the decedent with copy of writ and notice that the interest is attached. Such attachment shall not impair the powers of the representative over the property for the purposes of administration. It was further provided that the executor shall report the attachment to the court when the petition of distribution is filed, and in the decree of distribution delivery to such legatee of the attached property shall be ordered to the officer making the levy, subject to the claim of the legatee or any one claiming under him. Nor shall the property be delivered to the officer until the decree distributing the interest has become final. In our opinion section 561 does more than merely fix a particular method for levy of an attachment upon .the interest of a decedent in personal property. It provided a remedy where none had theretofore existed, and laid down the procedure for. making the remedy effective by authorizing the court to order delivery of'the property to the attaching officer only after decree of distribution has become final. In its phraseology by way of provision for a remedy, section 561 is quite similar to section 542 of the Code of Civil Procedure, wherein long ago the remedy of attachment of real estate was given with procedural steps requisite for making the remedy available. Garnishment, as provided for by section 544, fixes the garnishee’s liability at the time of the,levy; it is a distinct proceeding not embraced within section 542 (2), which pertains to the attachment of real estate.
Granting that title to personal as well as real property vests in the heir upon the death of the decedent, nevertheless possession of personal property goes to the executor as an officer of the law, and prior to 1923 while in his custody it could not legally be attached. Freeman on Executions, § 131 et seq., deduces from many cases the principle that while personal property is in possession of an executor before decree of distribution, it is in the custody of the law and is not subject to execution against the heirs, and that the amount bequeathed to a legatee cannot be garnished.
No lien having been acquired, the order of the District Court was proper and must be affirmed.
Affirmed.
