Harrington v. La Rocque

• Decision Date: 06 April 1886
• Citation: 13 Or. 344,10 P. 498
• Parties: HARRINGTON and others v. LA ROCQUE and another.
• Court: Oregon Supreme Court

10 P. 498

13 Or. 344

HARRINGTON and others v. LA ROCQUE and another.

Supreme Court of Oregon

April 6, 1886

W Scott Beebe and G.W. Yocum, for appellants.

W Carey Johnson and F.A.E. Starr, for respondents.

LORD J.

This was a proceeding in garnishment to reach certain moneys alleged to be in the hands of the defendant Apperson, as executor, belonging to the defendant La Rocque under an order of distribution of the probate court. In substance, the facts are that on the eighth day of November 1883, the plaintiff Harrington recovered a judgment against the defendant La Rocque for the sum of $2,443.48, and costs, taxed at $15, which judgment, on the twenty-third day of November, 1883, he sold and assigned to the plaintiffs Marx & Jorgenson. On the eighteenth day of April, 1875, an execution was issued upon said judgment, and the defendant Apperson garnished, and he certified that he had no moneys or property of the defendant La Rocque in his hands or subject to his control. The certificate of the garnishee not being satisfactory, allegations and interrogatories were exhibited against him, and he was required to answer. The record discloses that the defendant Apperson is the executor of the estate of George La Rocque, deceased, and that under such will the defendant La Rocque is a devisee, and entitled to a distributive share of said estate; that prior to the garnishment proceedings herein, and to an order of distribution of the probate court, to which we shall presently refer, the defendant La Rocque had assigned to D.P. Thompson, in consideration of money advanced and future advances, the amount due him upon distribution of said estate; that on the sixth day of April, 1885, it was ascertained that the defendant La Rocque was entitled to $23,079.08 as his distributive share of said estate; and, among other things, the probate court directed and ordered that the defendant Apperson, as such executor, distribute the said "sum of $23,079.08 to the defendant La Rocque, and to his assigns and order, in cash, that is to say, to David P. Thompson, his assigns, the whole thereof, to be appropriated as follows: (a) to the satisfaction of the debt due said Thompson from said La Rocque, in the sum of $11,494.51; (b) to the lawful assigns of the said George La Rocque."

It will be observed that the defendant Apperson was served in the garnishment proceeding several days subsequently to the order of distribution. Money credits and other property are almost universally conceded to be in the custody of the law when held by executors and administrators in their representative capacity. In administering the estate they are accountable to the court, and the same reason exists that moneys or credits in their hands should not be disturbed, but considered to be in the custody of the law, as is applied to such property in the hands of the sheriff or other officer.

Mr. Freeman says:

"Moneys and other chattels, in the possession of administrators, executors, or guardians, in their official capacity, are almost universally conceded to be in the custody of the law, and are therefore neither subject to levy under execution nor to any process of garnishment." "No person deriving his authority from the law, and obliged to execute it according to the rules of law, can be holden by process of this kind."

And, again:

"When the share of a creditor, heir, legatee, etc., entitled to moneys in the hands of an administrator or guardian, has been settled by the court, and ordered to be paid, it is no longer regarded in the custody of the law. The right to it has become fixed, absolute, and capable of enforcement by action at law. It may, therefore, be garnished." Freem. Ex'ns, § 131, and notes; Drake, Attachm. § 499.

In considering the same subject, Mr. Waples says:

"So soon as the funds held by the executor, etc., cease to be in the custody of the law, and became recoverable as belonging to some person, legatee, heir, etc., the rule ceases to be applicable. There is sometimes a nice question as to the time when an administrator's relation to a fund, or to property, is so changed as to render him amenable to garnishment; but it is certain that he is liable when his custody ceases to be 'the custody of the law,' in its technical signification." Waples, Attachm. 224, and note 1 of authorities cited.

And, again:

"After an estate has been settled, and suit has been brought by attachment against one whose share therein has been ascertained, and garnishment of the executor in his personal capacity has been made, the garnishee will be held chargeable. The administrator will not be allowed to hold the fund in his hands in his official capacity, under such circumstances, to shield the heir from a payment of a just debt, to hinder the attaching creditor from making his money. The case is very different from that where the estate remains unsettled, debts due by the succession unpaid, and legacies not distributed. In the latter case, the executor cannot be compelled to pay, by process of garnishment sued out, even by a judgment of an heir whose portion still remains unseparated from

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