Perry Barnard v. Thornton

Ames, C. J. The garnishee is the guardian of the infant heirs of the late Jesse S. Thornton, out of the rents, profits and issues of whose real estates, the defendant, their mother, was decreed by this court, in equity, dower in a special and certain manner, by the creation in her favor of a charge thereon, as well as upon the real estates themselves, of the sum of seven hundred and fifty dollars, payable semi-annually, on the first days of April and October, in each and every year during her natural life. At the time of the service of the writ, nothing was in fact due to her Or to them from the estate; but, on the contrary, the guardian, as appears by his affidavit, was largely in advance to his wards. It is contended, however, that the annuity of the widow accruing from April, to August, when the writ was served, though not payable until October, was owing to her, and might be attached in the hands of the guardian of her infant children, who received the rents out of which she was endowed, for her debts. It is very plain that he was not her debtor for her annuity, nor, *17 in- the sense of the statute, her trustee, of the rents and profits of the estates of his wards, from time to time received by him, and that he held to her no relation by virtue of which he could be personally pursued by her, at law, on account of either. In addition to her remedy, under the decree against the estates themselves for any arrearages of her annuity, a court of equity might, indeed, enforce her lien upon the rents and profits in the hands of any receiver of them to satisfy such arrearages, and, for the sate of the remedy, hold him to be her trustee for so much of the rents and profits received by him as would satisfy her charge; but tins equity could not be enforced by her against him, at law, and, consequently, cannot be enforced against him by her creditor, through process of foreign attachment. Hoyt v. Swift, 13 Vt. 129; Barker v. Esty, 19 Ib. 131; Harrell v. Whitman, 19 Ala. 135; Hugg v. Booth, 2 Ired. 282; May v. Baker, 15 Ill. 89. Besides, the garnishee received the rents and profits of the estates in question, solely, in his capacity of guardian of the heirs. As such guardian, he is an officer of the law, appointed by and responsible to the court of probate, whose minister he is; and under whose supervision he applies the property of his wards according to certain rules. He cannot be garnisheed in foreign attachment for the debts of his wards; Gassett v. Grout, 4 Metc. 486; Colby v. Cotton and another and trustee, 6 Cush. 559; and much less should he be embarrassed in performing the duties of his office by attachment for the debts of their mother, merely because she has an annuity, no installment of which is due, charged, in equity, upon the estates of his wards. The action must be dismissed, with costs to the garnishee.