Shewell v. Keen

IN ERROR. A legacy cannot be attached in the hands of an executor, for the debt of the legatee, by process of foreign attachment.

On a'writ of error to the District Court for the City and County of Philadelphia, the case was as follows:— To December Term, 1832, Thomas Shewell issued a writ of foreign attachment, in case, against Standish Fórde and John B. Forde : Bail, $19,000. The writ issued on the 1st of October, 1832, and was endorsed as follows:— “Attach all and singular the messuages, lands, tenements- and hereditaments, goods, chattels, rights, credits, effects and estate, real and personal, whatsoever, and wheresoever lying and being, in your bailiwick, of the defendants, and especially those which are devised to the said defendants by Sarah Forde, late of the City of Philadelphia, deceased, widow, as appears by her last will and testament, dated July the 10th, 1832, duly proved on the 14th of September, 1832, and remaining on'file in the office of the Register of Wills-at Philadelphia; and summon-as garnishees Charles Keen and Aaron Kille, executors of said last will and testament, or any other person or persons in whose hands the same you shall find.” The sheriff returned as follows:— “October 1st, 1832, attached as within.commanded all and singular the lands, messuages and tenements of the defendants in the county of Philadelphia, and left a copy of attachment at the office of the Recorder of Deeds for the city and county of Philadelphia, and further attached all the goods, chattels, rights, estate, credit and effects of the defendants in the hands of Charles Keen and Aaron Kille, executors of the last will and testament of Sarah Forde, deceased, and summoned them as garnishees.” On the 22d of June, 1833, the plaintiff’s declaration having been filed, judgment was entered against the defendant. A writ of inquiry issued to September Term, 1833, to which the sheriff returned, that the inquest had assessed the damages at $11,573 39. ■ -The plaintiff then issued a scire facias against the garnishees on the 26th of September, 1833, returnable to December Term, 1833 ; and in March, 1834, filed the following interrogatories to 'be put to the defendants, according to the act of assembly. “Interrogatory 1. Do you know the abovenamed John B. Forde and Standish Forde ? How long have you known them, or either of them ? Interrogatory 2. Had you, or either of you, on the 1st day of October, a. d. 1832, the date of the service of the foreign attachment in this case', or have you or either of you since that time, had in your possession, keeping, care, control, management or direction, any goods, wares, merchandise, moneys, property, credits, rights or effects of any kind or description, or any legacies, moneys, property or things devised, belonging, coming or appertaining to the said John B. Forde and Standish Forde, or either of them, or to which they are or were in any manner entitled, and which of them ? If yea, how much; annex a proper account or exhibit to your answer hereto, and answer fully and at large. _ Interrogatory 3. Had yon, or either of you, on the.said 1st of October, a. d. 1832, or have you or either of you since, as executors of Sarah Forde, deceased, received or had possession of any property, moneys, effects or things, or had any control over the same, which, by virtue of the last will and testament of said Sarah Forde, deceased, belonged to the said John B. Forde and Standish Forde, or either of them, and which of them, or to which they were in any manner entitled, or had any interest therein ? Answer fully, and at large; and if affirmatively, annex statements or exhibits of amounts and facts in full. Interrogatory 4. Are all the debts due by the estate of Sarah Forde, deceased, of whose last will and testament you are the executors, fully paid and discharged 1 Has the general account of your administration of said estate been duly settled and confirmed I Annex copies of the same, and answer fully and at large. , Interrogatory 5. Do you know of any other matter or thing material to the plaintiff in this case 1” &c. On the 7th of April, 1834, the following answers were filed. “1. To the first interrogatory they answer and say: That they have been partially acquainted with John B. Forde and Standish FQrde for several years, but the precise period they are unable to state. 2. To the second interrogatory they answer and say: That in their individual capacities they-had not, nor had eitherof them any, either on the 1st of October of since. 3. To the third interrogatory they answer and say: Yea,, that they, as executors of Sarah Forde, deceased, had, on the 1st day of October, 1832, and since, the possession and control of the property and effects left by her, in which the said John B. Forde and Standish' Forde were interested; they being each entitled under the will to one-sixth part of the residue and remainder of the estate, after the payment of debts and funeral expenses, and certain legacies; two notes due by Standish Forde to the estate, amounting to $1406 23, with interest on them, to be deducted from Standish Forde’s share. The statement annexed, marked A., shows the property belonging to said estate, on hand on the 1st of January, 1834, when distribution was made to the other legatees ; and the following property and effects were retained in their hands as executors, as and for the shares of the said John B. Forde and Standish Forde, viz.: A bond and mortgage given by Samuel Stevenson to the said executors for $1000 ; a bond and mortgage given by Adam Hoffman to the said executors for $400; seven shares of Commercial Bank stock ; four shares of Farmers and Mechanics’ Bank stock; ‘ two shares of Mechanics’ Bank stock, and $1165 62 in money. 4. To the fourth interrogatory they answer: Yea; that all the debts due by the estate, so far as they have come to their knowledge, are paid and discharged. That their accounts, as executors of said estate, have been duly settled and confirmed. Copies of said accounts are annexed, marked B. 5. To the fifth interrogatory they answer: That they know nothing further material to the plaintiff in this cause, except that in December, 1832, they received from F. W. Hubbell, Esq. as attorney of Robert Sthreshley, a notice that the said John B. Forde did, on the 12th day of December, 1832, assign all his interest in the estate of the said Sarah Forde to Robert B. Sthreshley.” By the account marked A., referred to' in the'answer to the third interrogatory, it appeared that the amount in the hands of the executors oh the 1st of January, 1834, to be divided among the legatees was $18,131 69; of which the share of J. B. Forde was $2521 94, and that of Standish Forde $863 48, after deducting the amount of his notes. It appeared from the schedule B., that on the 18th of October, 1833, the accounts of the executors were referred, by the Orphans’ Court, to auditors, who reported the balance--for distribution among the legatees, to be $18,801 31. The following is a copy of the will of Sarah Forde, which was dated on the 10th of July, 1830, and proved on the 14th of September, 1832. ' ' “ Be it remembered that I, Sarah Forde, of the city of Philadelphia, widow, &c., hereby make my last will and testament in the manner following; that is to say, First, I will that all my just debts a.nd funeral expenses be duly paid and satisfied. 5 Item ; I give and bequeath to my daughter, Ann Forde, a legacy or sum of three thousand dollars. Item; All the rest, residue, reversion and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath in the manner following.;'that is to say, one full, equal, undivided sixth-part thereof unto my daughter ^Eleanor Hansell, her heirs, executors and administrators forever. One other sixth-part thereof to my son Standish. Forde, his heirs, executors and administrators forever. One other sixth-part thereof to my daughter Margaret Smith, her heirs, executors and administrators forever. One other sixth-part thereof to my son John Forde, his heirs, executors and administrators forever. One other sixth-part thereof to my daughter Ann Forde, her heirs, executors and administrators forever; and the remaining one-sixth part thereof to my executors hereinafter named, in trust, for the use of my daughter Mary Poor, and her heirs. Item; I nominate and appoint my friends Charles Keen, of the county of Philadelphia, and Aaron Kille, of the city of Philadelphia, executors of this my last will and testament; and for the better division of my estate among my residuary devisees and legatees, I authorise and empower them, my said executors, to sell and dispose of my real estate, and to grant and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns forever; any thing hereinbefore contained to the contrary notwithstanding. Provided always, and it is my min'd and will, that in the distribution of my estate, my son Standish Forde shall be charged with a note given to the Insurance Company of , indorsed and paid by me, for #616, with interest from the 26th day of May, 1827, and with another note given to me for #755, with interest from the date of this my will, and deducted from his part and share of and in my said estate.” A case was stated for the opinion of the District Court, to be considered in the nature of a special verdict, which, after setting forth the facts, concluded thus: “ The question submitted for the opinion of the court is, whether the estate, goods, rights, chattels, credits and effects; or any of them, in the haiids of the said defendants, under the will of the said Sarah Forde, were, at the time of issuing the attachment, properly attachable. Judgment to be given accordingly.” After argument, the District Court ordered judgment to be entered for the defendants ;* to reverse which, this writ of error was sued out.