15 Ala. 66 | Ala. | 1848
The plaintiff in eror having sued out an attachment before a justice of the peace, returnable to the
At the fall term, 1848, to which the cause had been continued, the record recites, that the garnishee appeared, and having answered, that he held certain property in his hands as administrator de bonis non cum testamento annexo of the estate of Jeremiah Smith, deceased, which, by the provisions of the will, was to be equally divided among six heirs, when the youngest should attain the age of twenty-one years, (to which age the youngest heir had attained when the garnishment was executed upon the defendant in error.) That said estate consisted of land and slaves, besides other personal property, amounting in value to twenty thousand dollars, and which had never been divided. That said Bolin Smith was one of the heirs of said Jeremiah Smith. That said garnishee had seen ofi record in Autauga county, a transfer by said Bolin Smitli to one John Steel, of his interest in said estate, and thaA he had heard both Smith and Steel say, said transfer had/been made to secure Steel against liability for said Smith/as his surety upon his bond as executor of Jeremiah Smith’s estate. That Smith informed the garnishee, if Steel ’lost nothing by his suretyship, the said property would Be his, (Smith’s.) The garnishee further answered, after notice, that he had seen from the records of the orphans’ court fof Autauga, an official statement by said Bolin Smith, as executor of J. Smith, by which a balance is certified in fav^r of said Bolin, of $2,351 99, by the judge of the orphans’ court of Autauga county; whereupon the plaintiff asked for a judgment against the garnishee on his answer filed, which motion was overruled by the court. The plaintiff then prayed a continuance, and that notice issue to John Steel to contest his claim, which was also refused, and judgment was
It is very certain that the answer of the garnishee aid not warrant a judgment against the defendant in error, inside from the objection, that the interest which Boling S'suith had in the property, had been conveyed to Steel, it aj- pefary - that the garnishee holds the property as assets of the estate of Jeremiah Smith in his hands as administrator de bonis non, &c. That said property has not been distributed, but remains undivided, said Bolin being one of six heirs who are to share it under the will of Jeremiah Smith. The administrator denies .his authority to hold the property from the law.
It results from what we have said, that there is no error, and the judgment is consequently affirmed.