The Chief-Justice
delivered the opinion of the court:
The question presented by the record is whether an executor, as such, is to be held to answer to a writ of garnishment at the instance of a creditor of a legatee under the garnishment laws of this State.
In Williams on Executor, 6 Am. Ed., Vol. 3, p. 2001, it is laid down that there cannot be “ an attachment of a legacy; for creditors have an interest in it, and they are incapable of being warned.” He cites Scurra vs. Merciall, 1 Roll. Abr., 551; Wood vs. Smith, Noy, 115 ; Chamberlain vs. Chamberlain, 1 Ch. Cas., 257 ; Com. Dig. Attachment D. It is, therefore, not a modern rule.
“ It is well settled in England and the United States, as a general proposition, that an executor cannot be charged as garnishee in respect of a pecuniary legacy bequeathed by his testator.” Brake on Attachment, §499.
There are a few States where it is provided by statute that executors and administrators may be required to answer as garnishees, -but except in Indiana the general rule is recognized that executors are not subject to this process on account of legacies payable to a debtor unless expressly provided by statute.
The statute authorizes a garnishment when any person is indebted to a defendant in execution, or has any of the effects or property of such defendant in his hands, or possession or control. It also provides that if the answer of the garnishee is not satisfactory and it be alleged that the [640] garnishee has not discovered the true amount of debts due .from- him to the defendant, or that goods and chattels, money or effects belonging to the defendant are in his hands or possession, or were so at the time of the service of said garnishment summons, the court shall direct, without the formality of pleading, a jury to be empanelled to inquire what is the true amount due from such garnishee to the defendant, &e.
“An executor,” says the Supreme Court of Connecticut, “ cannot be considered as the debtor of a legatee. The claim is against the testator or his estate; and the executor is merely the representative of the deceased. There cannot be a debt due from the executor within the meaning of the statute. Ror can a person, like an executor, deriving his authority from the law, and bound to perform it according to the rule prescribed by law, be considered as a trustee, agent, attorney or factor within the statute ; and this for the best of reasons. In the common ease of agents, trustees and factors the creditor can easily place himself in the shoes of the absconding debtor and prosecute his claim without inconvenience to the garnishee. But such would not be the case with an executor. It would not only embarrass and delay the settlement of estates, but would draw them from Courts of Probate, where they ought to be settled, before the courts of common law, who would have no power to adjust and settle his accounts. Such an interference might produce much inconvenience, and prevent the executor from executing his office as the law directs.” Winchell vs. Allen, 1 Conn. In that case one Allen had bequeathed to the debtor certain personal property. The estate was solvent, and no demand of the legacy had been made by th.e legatee, and the time, limited for the settlement of the estate had passed before the writ of garnishment was served.
[641] Says Mr. Justice Story in Picquet vs. Swan et al., 4 Mason, 443, 463, where there was a bequest of an annuity of $2,000 to be paid to Mr. Swan in semi-annual payments during his life by the executors: “ It can scarcely be presumed that it was not the intention of the testatrix that this should be a personal payment for the personal comfort and maintenance of her husband, and that the annuity itself should be placed beyond the reach of any creditors. To direct a payment to the creditors of Mr. Swan through the instrumentality of a foreign attachment would be to defeat the purposes of the will. It would be, in effect, to declare that the executors should not pay her bounty to her husband, but should pay it to his creditors. If such a course be repugnant to the manifest intention of the will, I do not see how a court of law can intercept the bounty of the testatrix and give it a new direction. There is an implied trust in the executors to make the payment personal, and to retain the money until so paid. And if so, what court can be at liberty to overthrow it ?”
We have examined a large number of authorities beside those cited in Drake on Attachment and excepting the Indiana case, (Stratton vs. Ham, 8 Ind., 84,) we find none to sustain the garnishment of an executor except by virtue of a local statute expressly authorizing it.
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The Chief-Justice
delivered the opinion of the court:
The question presented by the record is whether an executor, as such, is to be held to answer to a writ of garnishment at the instance of a creditor of a legatee under the garnishment laws of this State.
In Williams on Executor, 6 Am. Ed., Vol. 3, p. 2001, it is laid down that there cannot be “ an attachment of a legacy; for creditors have an interest in it, and they are incapable of being warned.” He cites Scurra vs. Merciall, 1 Roll. Abr., 551; Wood vs. Smith, Noy, 115 ; Chamberlain vs. Chamberlain, 1 Ch. Cas., 257 ; Com. Dig. Attachment D. It is, therefore, not a modern rule.
“ It is well settled in England and the United States, as a general proposition, that an executor cannot be charged as garnishee in respect of a pecuniary legacy bequeathed by his testator.” Brake on Attachment, §499.
There are a few States where it is provided by statute that executors and administrators may be required to answer as garnishees, -but except in Indiana the general rule is recognized that executors are not subject to this process on account of legacies payable to a debtor unless expressly provided by statute.
The statute authorizes a garnishment when any person is indebted to a defendant in execution, or has any of the effects or property of such defendant in his hands, or possession or control. It also provides that if the answer of the garnishee is not satisfactory and it be alleged that the [640] garnishee has not discovered the true amount of debts due .from- him to the defendant, or that goods and chattels, money or effects belonging to the defendant are in his hands or possession, or were so at the time of the service of said garnishment summons, the court shall direct, without the formality of pleading, a jury to be empanelled to inquire what is the true amount due from such garnishee to the defendant, &e.
“An executor,” says the Supreme Court of Connecticut, “ cannot be considered as the debtor of a legatee. The claim is against the testator or his estate; and the executor is merely the representative of the deceased. There cannot be a debt due from the executor within the meaning of the statute. Ror can a person, like an executor, deriving his authority from the law, and bound to perform it according to the rule prescribed by law, be considered as a trustee, agent, attorney or factor within the statute ; and this for the best of reasons. In the common ease of agents, trustees and factors the creditor can easily place himself in the shoes of the absconding debtor and prosecute his claim without inconvenience to the garnishee. But such would not be the case with an executor. It would not only embarrass and delay the settlement of estates, but would draw them from Courts of Probate, where they ought to be settled, before the courts of common law, who would have no power to adjust and settle his accounts. Such an interference might produce much inconvenience, and prevent the executor from executing his office as the law directs.” Winchell vs. Allen, 1 Conn. In that case one Allen had bequeathed to the debtor certain personal property. The estate was solvent, and no demand of the legacy had been made by th.e legatee, and the time, limited for the settlement of the estate had passed before the writ of garnishment was served.
[641] Says Mr. Justice Story in Picquet vs. Swan et al., 4 Mason, 443, 463, where there was a bequest of an annuity of $2,000 to be paid to Mr. Swan in semi-annual payments during his life by the executors: “ It can scarcely be presumed that it was not the intention of the testatrix that this should be a personal payment for the personal comfort and maintenance of her husband, and that the annuity itself should be placed beyond the reach of any creditors. To direct a payment to the creditors of Mr. Swan through the instrumentality of a foreign attachment would be to defeat the purposes of the will. It would be, in effect, to declare that the executors should not pay her bounty to her husband, but should pay it to his creditors. If such a course be repugnant to the manifest intention of the will, I do not see how a court of law can intercept the bounty of the testatrix and give it a new direction. There is an implied trust in the executors to make the payment personal, and to retain the money until so paid. And if so, what court can be at liberty to overthrow it ?”
We have examined a large number of authorities beside those cited in Drake on Attachment and excepting the Indiana case, (Stratton vs. Ham, 8 Ind., 84,) we find none to sustain the garnishment of an executor except by virtue of a local statute expressly authorizing it.
To hold otherwise without some act of the Legislature changing the settled rule of the recognized common law and practice, would be practically judicial legislation, and the introduction of measures of a mischievous tendency. To do so would require also a prescription of methods of procedure xxot xxow i’ecognized in the courts of law. Our statute provides for the calling of a jury without other pleadings than the writ of garnishment, the axxswer of the garnishee and the tx’averse to determine the question of indebtedness or liability. What, thexx, will the jury try, [642] * and what will he the scope of the inquiry ? In the case of the garnishment of a person for the purpose of charging him with liability to pay the creditor of a debtor what may be due from the garnishee to the debtor, or to account for property or money in the hands of the garnishee belonging to the debtor, the matter is plain. But in case the garnishee is an executor in his representative character, the inquiry involved is an accounting, including the marshalling of the assets, the value of the estate, real and personal, including claims due and to become due to the estate, exemptions, dower interests, contingent or fixed obligations, debts due and to become due from the estate, and the amount due to each creditor, interest, commissions, expenses of administration and of litigation, and all other certainties and contingencies, and finally a general accounting and striking of balances and adjusting the claims of legatees, &c.; all these matters are proper subjects of investigation and adjustment before the Court of Probate or in chancery, but which a court of law with a waiting jury would be practically incompetent to adjust without some machinery not yet provided. Whether a legacy can be paid in whole or in part will depend upon the condition of the estate upon a final accounting in the Probate Court. Garnishment of legacies during the progress of the regular and usual course of administration and before the condition of the estate is ascertained, would be productive of great confusion and expense. Here are three or four other garnishment proceedings, as appears in this record, in favor of other judgment creditors, who are seeking to subject this legacy or other interest of the judgment debtor to the satisfaction of their demands. A similar cause of proceeding would doubtless be necessary, including an inquiry by a jury, in each of these cases. How, while the estate is in process of adjustment, the time not having elapsed for the [643] ascertainment of debts and liabilities, how is it possible to know whether anything will ultimately be available for the payment of legacies, and what can a jury determine? We repeat, that without some statutory regulation not in existence here such garnishment proceedings are altogether impracticable, at least. until a personal duty to pay is imposed upon the executor by the order of the Probate Court; a ease not now before us.
It is alleged by the plaintiffs in the garnishment by way of traverse that there are more than sufficient assets of the estate to pay debts, expenses and legacies, and that E. C. Love, the executor, had agreed with the judgment debtor to pay him the amount of the legacy, and an inquiry should be had to ascertain this fact, which, it is urged, will fix the present liability of the executor.
This cannot affect the question of the legal duty of the executor as such to answer to the writ of garnishment. If Love, the executor, has made any contract binding him personally to pay money to the debtor, he cannot be held in his official capacity, in which he has been here summoned ; and no personal judgment can be had against him, because this garnishment is against him in his representative character seeking to charge the estate, and not against him personally.
It is evident from the pleadings and allegations here that the plaintiffs seek to reach the legacy only. The judgment dismissing the writ of garnishment is affirmed.