First National Bank of Dagsboro v. Lofland

• Decision Date: 30 June 1928
• Court: Delaware Superior Court
• Parties: THE FIRST NATIONAL BANK OF DAGSBORO v. HARRY V. LOFLAND and RAYMOND W. LOFLAND, administrators of WILLARD E. LOFLAND, deceased

143 A. 407

34 Del. 97

THE FIRST NATIONAL BANK OF DAGSBORO v. HARRY V. LOFLAND and RAYMOND W. LOFLAND, administrators of WILLARD E. LOFLAND, deceased

Superior Court of Delaware, Sussex County

June 30, 1928

Superior Court for Sussex County, April Term, 1928.

Fi. Fa. Attachment, No. 2, February Term, 1928.

Case heard on an agreed statement of facts.

This matter arose upon facts agreed upon by the parties and the case is stated for the opinion of the court. The agreed facts were: On November 30, 1927, Willard E. Lofland died intestate leaving to survive him a widow, Lillie K. Lofland.

On December 5, 1927, letters of administration were granted to Harry V. Lofland and Raymond W. Lofland, the defendants, who on January 7, 1928, after due notice, made application to the Orphans' Court of Sussex County to sell all the real estate of the decedent for the payment of debts. In this proceeding, Lillie K. Lofland waived the assignment of her dower by metes and bounds and elected to take a proportionate part of the purchase money as and for her dower, and the value of the dower interest of the said widow was afterwards appraised in money and amounted, exclusive of the costs, to $ 981.42. The proceedings were taken pursuant to the statutes of the State of Delaware. The sale was confirmed and the administrators were directed by the Orphans' Court to pay to Lillie K. Lofland, the widow, the said amount of her appraised dower.

On the 3d day of November, 1925, the First National Bank of Dagsboro, the plaintiff, obtained a judgment by confession in the Superior Court against Willard E. Lofland and Lillie K Lofland, being No. 75 to October term, 1925, the real debt therein being $ 3,328.

On the 3d day of March, 1928, the plaintiff caused to be issued out of said Superior Court a fieri facias attachment, being No 16 to February term, 1928, by virtue of which the sheriff of Sussex County summoned the administrators of Willard E. Lofland, as garnishees, to answer what moneys they had in hand belonging to Lillie K. Lofland, upon which attachment an answer of nulla bona has been entered.

It was agreed in the statement filed that if the court should be of the opinion that the appraised value of the dower interest of the widow, Lillie K. Lofland, amounted to $ 981.42 then in the hands of the administrators, but directed to be paid to said widow, was liable to said attachment, that judgment should be given for the plaintiff. But, if the court should be of the opinion that the said sum of money in the hands of the administrators was not subject to said attachment, that judgment should be rendered for the defendants.

Judgment for the defendants.

James M. Tunnell for plaintiff.

Charles W. Cullen for defendants.

RICE and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

It is admitted by the plaintiff that, as a general rule, a garnishment cannot be maintained against a personal representative such as an executor or administrator in such a way as to permit an attachment to interfere with, or create priorities with regard to, the estate which the personal representative is administering. Lyons' Adm'rs v. Houston's Ex'r, 2 Harr. 349. It is contended by the plaintiff, however, that when the estate has been settled and an amount of money remains in the hands of the representatives with no further duty to perform than to pay such sum in distributive shares to the parties entitled, that in such event a garnishment will lie in favor of a creditor of a person entitled to such distributive share so that such distributive share may be attached in the hands of the administrator. Such must be conceded to be the law of this state. Fitchett v. Dolbee, 3 Harr. 267. See note in 47 L.R.A. 345. Many of the Delaware cases involving garnishment are collected in Farmers' Bank v. Ball, 2 Penne. 374, 46 A. 751, and In re Shelly, 1 Boyce 10 at 10-14, 73 A. 796.

From these principles, the plaintiff, by analogy, seeks to support his attachment. He plausibly argues that the widow's dower has, upon her application been waived as to metes and bounds, and she elected to take as her dower an equivalent share of the proceeds of sale; that upon her petition, and pursuant to the Act of May 4, 1927, vol. 35, Laws of Delaware, p. 580, her life interest of dower has been appraised at its present money value, amounting, exclusive of costs, to $ 981.42; that the sum has been directed by the express order of the Orphans' Court to be paid by the administrators to the widow and can be used for no other purpose and is subject to no other deduction. The plaintiff then argues that this fund in the hands of the administrators payable solely to the widow is subject to the same rights and liabilities as a distributive share of an estate after complete settlement and ascertainment of the amounts due on distributive shares and is, therefore, subject to an attachment at the suit of a creditor of the party entitled to the fund, viz., the widow.

The inherent error in this reasoning is not at first apparent, but is manifested by a series of logical conclusions.

In Netter Bros. v. Stoeckle, 4 Penne. 345, 349, 56 A. 604, 605, the court said (transposing the paragraphs):

"The garnishee stands in the same position that he would have been in had the suit been brought by his own creditor. The fact that a garnishment process has been served upon him places him in no worse position and under no greater liability than he would have been had an action at law been brought against him by the principal defendant to whom he was indebted, or whose property he had in his possession. * * *

"It is the general rule that the right of the attaching creditor to recover against the garnishee depends upon the subsisting rights between the garnishee and the debtor in the attachment; and the test of the garnishee's liability is that he has funds, property or credits in his hands belonging to the debtor, for which the latter would have a right to sue."

See, also, Brown v. H. & F. Brewery Co., 1 Penne. 195, 40 A. 60.

It seems almost uniformly to be the law that in order to sustain a garnishment there must be a liability of the garnishee to the judgment debtor and that this liability must be of such a character as will support an action at law.

This being the law, it, therefore, becomes material and of prime importance to determine whether the widow has a right of action at law to recover from the administrators the appraised value of her dower interest directed to be paid to her by order of the Orphans' Court.

If she has and the administrators would be liable to her in such action at law, then, in so far as that feature of the matter is concerned, the garnishment would seem to be good; if, on the other hand, the widow has no right of action at law against the administrators for her appraised dower interest then the garnishment cannot be maintained. It is at this point that the analogy fails between this case and an attachment or garnishment laid in the hands of an administrator for a distributive share after the final settlement of an estate. It seems clear that at common law no ordinary suit at law such as assumpsit,...