Hawk v. Kiser

1 N.E.2d 157, 51 Ohio App. 359, 19 Ohio Law. Abs. 673, 5 Ohio Op. 261, 1935 Ohio App. LEXIS 449

• Court: Ohio Court of Appeals
• Decided: April 12, 1935
• Docket: 303 & 304
• Status: Published

Opinion

OPINION

By HAMILTON, J.

The question of the right to attach moneys in the hands of an administrator was decided in the case of Orlopp v Schueller, Admr., de bonis non, 72 Oh St, 41. In that case, the Supreme Court in construing §5531, R. S., said:

“Property or money held' by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made.”

This was the common law rule, and was based on the proposition that the money in the hands of an executor or administrat- or is held in custodia legis. The court held that this was the law unless changed by statute. That there is no provision -in the statute changing the rule with reference to executors and administrators was determined by the Supreme Court in the Orlopp case, supra, and we know of- no provision of the statute changing the rule subsequent to that decision.

• There being no authority in law for levying the attachment on the funds in the hands of the administrator, the Court of Common Pleas erred in overruling the motion to discharge the attachment. The judgment is, therefore, reversed, and the cause, remanded to the Court of Common Pleas of Sandusky County with instructions to grant the motion and discharge the attachment.

ROSS, PJ, and MATTHEWS, J, concur..