Shewell v. Keen

The opinion of the Court was delivered by Sergeant, J. In every case in which a determination has taken place on the question whether a foreign attachment would lie for a legacy, it has been held that it would not; and some of these cases have occurred under statutory regulations on the subject, very similar to our own. Various reasons have been given for coming to this result; and a little reflection convinces us that'the proceedings by foreign attachment, cannot be applied to the case of a legacy, without great inconvenience and manifest incongruity. A pecuniary legacy is not a debt. It is a sum of money, payable by the executor or administrator out of the estate of the decedent, if sufficient assets remain in his hands, after discharging the debts of the deceased and other responsibilities, and provided the legatee previously complies with certain requisites, prescribed by the acts of assembly. Generally it is not recoverable at law, but is subjected to chancery jurisdiction, which treats the executor as trustee of the estate for the benefit of those interested in it. In Pennsylvania, a legacy is recoverable in a common law court, by the act of 1772, there being no court of chancery; but that act gives peculiar powers to the court; and the executor’s duty is still in nature of a trust, in relation to legacies ; and they are payable only on the performance of certain conditions by the. legatee. He must make a previous demand, and must tender or file a refunding bond, not so much for the protection of the executor, as for the benefit of creditors who may subsequently establish claims against the estate. If a foreign attachment be permitted, by which the assets in the hands of the executor are to be eventually appropriated to the attaching creditor, the legacy may be recoverable without demand, and witnout filing [339] a refunding bond. For the legatee would not be expected to give such bond, and there exists no power in the court to compel the attaching creditor to do it, or to authorise the executor to receive it from him. If the refunding bond could be given, an extraordinary result might follow. The plaintiff, before the payment of the money by the garnishee, always gives security to restore the amount received, if within a year and a day the defendant should appear to disprove the debt. If within the year and day, the defendant issue his scire facias ad disprobandum debitum, and succeeds, and recovers back his legacy, he then gets it without giving any refunding bond; and the plaintiff may be compelled, in the event of new debts against the estate being afterwards established, to pay the amount a second time on his refunding bond. Such consequences evince that the process by foreign attachment cannot be harmonised with the acts of assembly concerning the recovery of legacies. Another circumstance of weight is, that an executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. . It would tend to distract and embarrass these officers, if, in addition to the ordinary duties which the law imposes, of themselves often multiplied, arduous and responsible, they were drawn into conflicts created by the interposition of creditors of legatees, and compelled to withhold payment of legacies, without suit; to suspend indefinitely the settlement of estates; to attend, perhaps, to numerous rival attachments; to answer interrogatories on oath, and to be put to trouble and expense for the benefit of third persons, no way connected with the estate, nor within the duties of their trust. It has been decided that money in the hands of a prothonotary or sheriff cannot be intercepted by a creditor of the party, entitled to it; but it must be paid over to himself only. I DalL 354. The case of an executoi or administrator is analogous to that of a sheriff or prothonotary. He has the fund in his hands as an officer or trustee authorised by law; and if a new party were allowed to levy on it by attachment, there would be no end of disputes and lawsuits; and no business could be certain of ever being brought to a close within a reasonable time. Itis of great importance to the interests of heirs, creditors and legatees, that the affairs of a decedent’s estate be kept as simple and distinct as possible; that its concerns be speedily closed, and the estate adjusted. It is moreover settled, that an executor cannot be sued as defendant, in an attachment by a creditor of the testator, and the goods of the testator attached to recover the debt. 2 Dali. 73. The reason is, that the estate of the testator ought to come into the hands of the executor, that he may administer it according to law : and pay the debts if the assets suffice; and they ought not to be stopped, and the executor subjected to new responsibilities, by pro-; ceedings in attachment. These reasons apply with, equal force to the attempt to make an executor garnishee, for the purpose of pay [340] ing out of the assets in his hands, the debt due to a creditor of a legatee. These funds must travel only in the path pointed out by the laws relating to decedents’ estates in their various branches and cannot be diverted out of that path, without interfering with salutary regulations, and violating some of the most important provisions-of the acts of assembly. Judgment affirmed.