Neely v. Grantham.

• Decision Date: 02 July 1868
• Citation: 58 Pa. 433
• Parties: Neely <I>versus</I> Grantham.
• Court: Pennsylvania Supreme Court

58 Pa. 433

Neely versus Grantham.

Supreme Court of Pennsylvania.

May 7, 1868.

July 2, 1868.

May 7th 1868.

Before THOMPSON, C. J., STRONG, READ. AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Adams county: To May Term 1868, No. 34.

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D. McConaughy (with whom were M. & W. McClean and J. C. Neely), for plaintiff in error.—The plaintiff should have proceeded against the defendant's interest as real estate: Acts of July 27th 1842, § 1, Pamph. L. 436, Purd. 492, pl. 6; April 13th 1843, § 10, Pamph. L. 235, Purd. 435, pl. 35; June 16th 1836, § 22, 35 Pamph. L. 764, 767, Purd. 432, 434, pl. 12, 30. The writ was not so executed as to attach real estate: June 13th 1836, §§ 43, 49, Pamph. L. 580, Purd. 491, 493, pl. 1, 9; April 18th 1853, § 6, Pamph. L. 505, Purd. 852, pl. 6.

R. G. McCreary, for defendant in error.—The sufficiency of the writ could not be raised under the plea of nulla bona: Potter v. McCoy, 2 Casey 458. The writ is sufficient: Layman v. Beam, 6 Wh. 181; Acts of 1836, 1842, 1843, supra. The plea in effect was that the garnishee had no goods in her hands at the service or afterwards: Act of 1705, § 2; 1 Sm. L. 46; Sergeant on Att. 99, Privil. of London 255; Silverwood v. Bellas, 8 Watts 420; Sheetz v. Hobensack, 8 Harris 412; Mahon v. Kunkle, 14 Wright 216.

The judgment of the court below was affirmed, STRONG and AGNEW, JJ., dissenting.

The following opinion, in which READ, J., concurred, was delivered, July 2d 1868, by THOMPSON, C. J.

The judgment below must be sustained, if at all, on the sufficiency of the levy on the attachment of the defendant's interest in his father's estate, that interest being at the time real estate. It is firmly settled with us, that the equitable conversion of realty into personalty, by force of a direction in a deed or will to sell, only takes place where the direction is positive and absolute: Nagle's Appeal, 1 Harris 260. And this, as well as other cases, to which reference will be made, will conclusively show, that if a proposed sale is contingent, or eventual in a deed or will, equitable conversion does not follow. Nor will it follow even from an inevitable necessity to sell, in order to administer some provision of the will. On these points, in addition to the case cited, see Bleight v. The Bank, 10 Barr 131; Stoner v. Zimmerman, 9 Harris 397; Anewalt's Appeal, 6 Wright 417; Chew v. Nicklin, 9 Id. 84. The rationale of the rule rests on a principle in equity, that that which ought to be done is to be considered as done. We adhere therefore to the opinion heretofore expressed, that the defendant's interest in his father's estate being a share in what is denominated in the will the "Old Mansion Property," was at the time of the levy real estate, the provision of the will being, "that if any one or two of my children wish to hold the Old Mansion Property, after two of them is of age, they can do so by agreeing among themselves; if not agreeing, they can get three disinterested persons to divide and agree for them — the oldest to have the first choice; and each of my children's share remaining in the property until they arrive at twenty-one years." "If none of my children purchase the Old Mansion, it must be sold to the best advantage for the use of my children, and not until the decease of my wife." The contingent direction is apparent here, and as there was no actual conversion at the time when the attachment was served, the interest of the defendant remained real. It is very evident that no sale by the executors was intended, if the children should agree to hold the land as provided for in the will. It is expressly contingent on this, whether there was to be a sale or not. It is therefore clearly, according to the authorities cited, not a case of equitable conversion by will.

Notwithstanding this, we think the conclusion arrived at on the former argument was correct. Mrs. Neely, the garnishee, went to trial solely on the plea of nulla bona. This of course waived any question as to the form of the writ or fact of service. Conceding that the effect of the service, as to fixing a lien on the interest attached, remains an open question to be considered under the plea, we turn our attention to the statutes bearing on the point, to ascertain if a lien was fixed. If it were not, the garnishee's judgment and assignment took precedence of it, and was entitled to the money on the sale of the defendant's interest, and thus the plea of nulla bona would be sustained.

The 10th section of the Act of April 13th 1843, provides that "all legacies given, and lands devised, to any person or persons, and any interest which any person may have in the real or personal estate of any decedent, by will, or otherwise, which are subject to foreign attachment, by the Act of the 27th of July 1842, * * * shall be subject to be attached and levied upon in satisfaction of any judgment, in the same manner as any debts due, are made subject to execution by the 22d section of the Act of 16th June 1836, entitled an act relating to executions." Here is an explicit declaration as to what may be attached, and of the manner in which it may be attached.

In Gochenauer's Executors v. Hostetter, 6 Harris 414, Woodward, J., in delivering the opinion of the court, seems to classify what may be attached under the words used in the above section, thus: "`Legacies' and `lands,' given or devised by will or testament and any interest which any person or persons may have in the real or personal estate of any decedent, whether by will or otherwise." That was a case under the Act of 27th June 1842, extending foreign attachments to such interest, but the same words are used in the Act of April 13th 1843, the act now under consideration, and the classification there has equal application here. The objection in this case is, that the levy was defective in its generality. It was, "attached all the interest of Jonathan W. Neely in the estate of his father John Neely, deceased; and all legacies given to Jonathan W. Neely, by the will of John Neely, deceased, in the hands of Hannah F. Neely and Jonathan W. Neely, executors of said will, and summoned them as garnishees," &c.

If the classification referred to above be allowable, this was a sufficient levy, and bound the interest. It seems to me very evident, that a levy in this form must have been intended by the legislature, owing to the inherent difficulty which would be constantly occurring as to what interest a defendant really had in a devised or descended estate. In case of a will, it is often a question of great difficulty to determine the nature and extent of a devisee's interest; or whether it be real or personal. It is a question of difficulty in this case. Whether the interest be much or little, and when it may be realized, are questions arising in every case. These are facts about which a creditor, oftentimes, not cognisant of the provisions of the will, cannot know anything. This must have struck the mind of the legislature, and have superinduced the adoption of a general form of levy, without distinguishing as to the nature of the property to be attached. And this seems to have been thought by the court in the case cited above. And here it may be as well to say, we do not see any embarrassment that would result to an executor, if the interest attached be real, any more than if personal. The answer to the interrogatories, if honestly made, would disclose what the interest of a devisee is in the estate. And if any fraud or concealment were practised to cover it up, I see not why the value of the share might not be recovered as well as that of a chattel. A fraudulent garnishee could not complain of this, and an honest one would not have it to complain of.

But that this mode of attaching was intended, I think appears in the provisions deducible from the Acts of Assembly on the subject, which provide that a debtor's interest in a decedent's estate may be levied upon in the same manner as debts due are made subject to execution by the 22d section of the Act 16th June 1836. The section thus referred to, does not in itself direct the manner of seizing or attaching debts due, but declares them liable to execution like other goods and chattels. The 35th section of the act, however, declares that debts due may be attached and levied in satisfaction of a judgment "in the manner allowed in the case of a foreign attachment." When we turn to the Foreign Attachment Act of June 13th 1836, we find in the 8th section it is provided that in case of personal property, "the officer to whom such writ (foreign attachment) shall be directed, shall go to the person in whose hands or possession the defendant's goods or effects are supposed to be, and then and there declare, in the presence of one or more credible witnesses of the neighborhood, that he attaches the said goods and effects," as done here, and from that time forth, says the act, the same shall be bound and in the power of the officer. See 50 Id. It is not to be doubted that "goods...