64 Ind. 365 | Ind. | 1878
This was an action by David W. LaEollette, administrator of the estate of William Stevenson, deceased, with the will annexed, against Leonidas Stout,
A brief summary of the facts set out in the complaint may be made, as follows :
That the defendant Leonidas Stout, as administrator as above stated, on the 26th day of December, 1867, recovered judgment against one John W. Stevenson, in the common pleas court of Eloyd county, for one hundred and fifty-nine dollars and fifty cents and costs of suit; that, on the 27th day of December, 1873, the said "William Stevenson, then in full life, was the owmer of thirty-two shares of the capital stock of the Gas Light and Coke Company of New Albany, of the value of fifty dollars per share, and that, on that day, he executed and published his last will and testament, which contained, amongst other provisions, the following:
“ Item 4th. I will, devise and bequeath unto my grandchildren, Sarah E. Stevenson, Willard J. Stevenson, and Adie Stevenson, each, the sum of one hundred dollars, to be paid out of the Gas and Coke Company stock.
“Item 4th. I will, devise and bequeath unto my son, John W. Stevenson, the sum of five hundred dollars, to be paid out of the Gas and Coke Company stock. * * *
“ Item 7th. I will and devise all the residue of my personal property, capital stock of the Hew-Albany Gas and Coke Company, moneys and effects of whatever kind and description, to my three daughters, Mary Ann Marsh, Jane King and Elizabeth Hughes, to be divided equally between them ; and it is my desire- that my estate shall be settled without any administration thereon, or controversy between my said children.”
That the said William Stevenson died on the 31st day of March, 1876, being still the owner of said thirty-two shares of gas and coke company stock, and leaving his said last will and- testament, set out in part as above, unre
A demurrer to the complaint for want of sufficient facts was overruled, and the defendants answered, admitting all the material allegations in the complaint, except the averments that the said John W. Stevenson had no title to such shares of stock, and that it would be necessary for the plaintiff to sell said stock to execute the testator’s will, and averring that the said John W. Stevenson was not a resi
A demurrer was sustained to the answer, and, the defendants declining to answer, a judgment was rendered against them, perpetually restraining and enjoining them from selling the shares of stock so levied upon, or otherwise interfering with their possession or control, as prayed for in the complaint.
The appellants devote considerable time to the discussion of the question of the character of the legacy bequeathed to John W. Stevenson, by item No. 5 of the testator’s will, contending that it is a specific, and not either a general or a demonstrative, legacy, carrying with it a proportionate amount of the shares of stock referred to in the will, which was subject to levy and sale, as the property of the said John W. Stevenson, when not needed for the payment of debts against, or of the expenses of the administration of, the estate of the testator.
Their argument is based upon the assumption, that, if the legacy in question shall be held to be a specific legacy, then it must follow, that, under the facts set up in the answer, the shares of stock levied upon, estimated to be the proportionate amount intended for the said John "W. Stevenson, were subject to be levied upon and sold as his property.
In answer to the positions thus assumed by the appellants, we have to say :
1. That we can not regard the legacy to John W. Stevenson as a.specific one. No specific thing is bequeathed by it. It is provided that a definite sum of money shall go to him, to be paid out of certain stock, and not by the
2. But, conceding that the legacy to the said JohnW. Stevenson was a specific legacy, it does not follow that it could be levied upon and sold as his property under execution.
In Freeman on Executions, section 129, it is said :
“It is very clear that all property in custody of the law is not subject to any seizure or interference by officers acting under writs of execution; but some difficulty may be experienced in determining when property is so within the custody of the law as to be shielded by this rule. When a Court ot Equity has acted by taking property into its possession by the appointment of a receiver, such property, whether real or personal, is clearly in custodia legi-s. The whole purpose of the suit might be defeated if an officer could wrest the property from the agent of the court, and sell it by virtue of a writ against one of the contending parties. Such property is not subject to execution.”
Further on in section 131 of the same book, it is said, that “ Moneys and other chattels in the possession of administrators, executors, or guardians, in their official capacity, are almost universally conceded to be in custody
See, also, Herman Executions, 246 ; 3 Williams Executors, 6th Am. ed., 2,113; Suggs v. Sapp, 20 Ga. 100; Waite v. Osborne, 11 Me. 185 ; Hancock v. Titus, 39 Miss. 224; Marvel v. Houston, 6 Harring. Del. 349 ; Barnes v. Treat, 7 Mass. 271; Beckwith v. Baxter, 3 N. H. 67.
The principles enunciated in the extracts taken as above from Freeman on Executions are well supported by the authorities, and have, it seems to us, a practical application to the case in hearing.
From the authorities above cited, we think it plainly deducible, that legacies in the hands of an executor, or administrator with the will annexed, pending the settlement of the estate, whether general, demonstrative or specific, are not subject to levy and sale under an execution against the legatee.
We are therefore of the opinion, that the court did not err, either in overruling the demurrer to the complaint or in sustaining the demurrer to the answer, the shares of stock levied upon being clearly in the custody of the law, and not subject to execution upon the facts stated both in the complaint and in the answer.
Howk, O. J., having been of counsel in this case, was absent during its consideration.
Petition for a rehearing overruled.