Wood v. Wood

| Ga. | Dec 9, 1889

Bleckley, Chief Justice.

1. Since the abolition of imprisonment for debt by the constitutions of 1868 and 1877, we think the sounder and better construction .of §2599 of the code, touching the enforcement of judgments rendered by the ordinary against executors and administrators on citations to account, is that mere money liabilities, where no specific fund is involved, are enforceable only by execution against the property, and not by attachment against the person. The general money assets of an estate in the hands of a representative bear interest after the first year, and are therefore expected to be used, loaned out or invested by the representative, and not to be kept on hand. When so employed, the liability for the same becomes a mere debt, unless the particular funds can be traced and their proceeds claimed as property of the estate. In the present case, our understanding from the record is that the executors, though adjudged to have in their hands a certain amount of money due the legatee, were not shown to have the identical money derived from the estate or its assets, hut only to be debtors therefor. In this respect the case is analogous to Clements v. Tillman, 79 Ga. 451, in which it was ruled that a court of equity could not enforce its decree for such a debt against the executor by attachment for contempt. The principle of that case, we think, controls this. If a court of equity cannot constrain the payment of a mere debt by attachment, we see not how a court of ordinary could do so. The powers of the two courts in this respect, under our system, are to be treated as concurrent and co-extensive. Code, §2600. Doubtless either of them could take hold of any particular fund held by the representative of an estate, or anything which might be shown to be the proceeds of that fund actually in his hands, and compel him to surrender possession thereof. A precedent for so doing, in the ease of a trustee, is furnished by Obear v. Little, 79 Ga. 384.

2. It was said in the argument that the element of actual fraud was involved in the present ease, and that such fraud would be a justification for the attachment. This may be so where that issue is directly made on the record and adjudicated. But we see no indication that the power of attachment was in this case rested on the element of fraud. So far as we can discover, the proceeding was a mere accounting between the legatee and the executors, under §2598 of the code, and the outcome was the finding of a mere debt against them as executors, and judgment therefor in favor of the legatee, with subsequent rules to enforce payment.

We think the superior court, acting upon appeal, erred in holding that the executors were subject to arrest and imprisonment and in ordering accordingly.

Judgment reversed.