Selman v. Milliken

28 Ga. 366 | Ga. | 1859

By the Court.

Stephens, J.,

delivering the opinion.

This is a garnishment to reach the interest of an heir-at-law. • That interest is only a distributive share of what may remain after all debts are paid. By our law the administrator is allowed twelve months within which to ascertain the debts before paying them or paying any distributive share. He can not know what a distributive share will be until ho first knows the debts, and these he cannot ascertain in a manner to protect himself, without waiting for the expiration of the twelve months. This garnishment, therefore, requiring him, before the expiration of the twelve months, to answer what he owes, or what effects he has, requires him to answer what- he can not know. An injunction could require him to fause and answer when the proper timo 'comes, but a garnishment calls for an answer now. The heir-at-law cannot maintain an action for his distributive share within the twelve months, and his creditor who seeks to take his shoes, can do no better. We think, therefore, that garnishment is not a legal remedy against an administrator within twelve months after his appointment, whatever it may be after-wards. Let the judgment be reversed.