The garnishee defendant is the administrator of the estate of Henry Yager, deceased. The garnishee filed an
The question for determination is whether property in the possession of an executor or administrator is subject to garnishment in an action against an heir or devisee, before the county court has made a decreе of distribution.
Section 2460, Rev. Code 1919, provides that a garnishee defendant who denies liability may serve and file an answer substantially in the form therein provided which in part reads: “E. E., being duly sworn, says that on the-day of-, 19-, he was served with a garnishee summons in the above entitled action; that he was then and is now in no manner and; upon no account whatever indebted or under liability to the defendant (naming him), and that he then had and now has in his possession or under his control, no real estate and- no personal property, effects or credits of any description whatever, belonging- to said defendant or in which he has any interest; and is in no manner liable as garnishee in this action.”
Section 2461, Rev. Code 1919, is as follows:
“'Unless the garnishee shall make the affidavit provided for in the preceding section, he shall within thirty dаys from the service of the garnishee summons file and serve in like manner an affidavit in which he shall state:-
“1. Whether he was at the time of service of the garnishee summons, or has since become, indebted or under any liability to the defendant named in the garnishee summons, in any manner, upon any account, specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced, when payable, whether an absolute оr contingent liability and all the facts and circumstances necessary to a complete understanding of such indebtedness or liability. When the garnishee shall be in doubt*544 respecting any such liability or indebtedness, he may set fоrth all the facts and circumstances concerning the same and submit the question to the court. * * * ”
And section 2464, Rеv. Code 1919, provides: “The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within thirty days serve upon the garnishee a notice, in writing, that he elects to take issue on his answer; in which'case the issue shall stand for trial as acivil action, in which the affidavit on the part of the plaintiff shall be deemed a complaint and the garnishee’s affidavit an answer thereto. The рlaintiff may in all cases move the court upon the answer of the garnishee and of the defendant, if he shаll also answer, for such judgment as he shall be entitled to thereon, but any such judgment shall be no bar beyond the faсts stated in such answers.”
The liability of a garnishee defendant under the above provisions of statute is determinеd with reference to the time of service of the garnishee summons and thereafter until the garnishee defеndant makes answer. 28 C. J. 243 and 315; Smith v. B., C. & M. R. R. et al., 33 N. H. 337; Island Pond National Bank v.
In the absence of statutory provision to the contrary, the funds and propertiеs of an estate held by an executor or administrator cannot be reached by garnishment proceedings prior to a decree of distribution according to1 the great weight of authority. 12 R. 'C. R. 814; 28 C. J. 77; see, also, note 59 A. L. R. 768. We have no statute which alters the rule; that is, the institution of garnishment proceedings against executors and administrators is not expressly authorized by statute.
The right of an heir or devisee to share in the property оf an estate is contingent upon their being a balance in the possession of an.executor or administrator for distribution after payment of all debts and expenses of administration properly charg-eable against the estate. Until a decree of distribution is made, the heir or devisee has no present right to the property of the estate after entry of decree of distribution, each share is finally and definitely determined, and a cause of action arises therefor in favor of an heir or devisee. Previous to thе entry of such decree, the claim of an heir or devisee is dependent upon a contingency within the contemplation of subdi
The administrator, therefore, was not liable in garnishment at thе time of service of garnishee summons or thereafter until answer was made.
The judgment appealed from is reversed1, with directions to the trial court to dismiss the garnishment proceedings.