Johnes v. Jackson

An executor’s title to the personal estate of his testator is conferred by the will as a recognized instrument of conveyance at common law, and accrues at the moment of the latter’s death, when the will at once becomes operative. Ceremonies of authentication may be necessary thereafter, but do not create or enlarge the title. Service of foreign attachment in accordance with § 1231 of the General Statutes, made upon the executor of a will before the probate thereof, is effectual in securing the debt, legacy or distributive share due the defendant. But judgment on scire facias following such a foreign attachment, cannot be rendered against the executor before the time when it becomes his duty to deliver to the legatee the legacy or distributive share thus attached.

Action of scire facias to recover the amount of a judgment rendered against one Charles R. Alsop, in which suit the defendant was garnishee; brought to the Superior Court in Middlesex County and tried to the court, Shumway, J.; facts found and case reserved for the advice of this court. The case is sufficiently stated in the opinion. I. The bare possibility of receiving a legacy from, or share in the estate of, a living person, is not property. It cannot ■be assigned, for there is nothing in existence to assign. Dart v. Dart, 7 Conn., 250; Smith v. Pendell, 19 id., 107, 111; Comstock v. Gay, 51 id., 45; Lacy v. Tomlinson, 5 Day, 77. The head note of Low v. Pew, 108 Mass., 349, expresses proverbially the rule so far established here: “ A sale of fish, hereafter to be- caught in the sea, does not pass title to the fish when caught.” II. An assignment of an expectancy is void in equity. Alves v. Schlesinger, 81 Ky., 290; Hart v. Grigg, 32 Ohio St., 502. The question is an open one in this State. III. The assignment is void at law. Assuming that equity may, in certain cases, recognize the assignment of a bare expectancy, yet this bargain is one of a class which a court of chancery will refuse to enforce. Equity will not enforce a ■bargain which is against public policy, or tainted with fraud or suspicion of unfairness. If the assignment is not made known to the person from whom the estate is expected, and he put in full possession of the facts concerning such transaction, and his consent obtained, it operates as a fraud upon him. Such consent is necessary to the validity of the contract, and without it, it is held to-be void as against public policy. McClure v. Raben, 125 Ind., 146-7, 133 id., 507; Boynton v. Hubbard, 7 Mass., 112, 120; Fitch v. Fitch, 8 Rick., 480 ; Trull v. Eastman, 3 Met., 121 ; Poor v. Hazelton, 15 N. H. 564; 2 Swift’s Dig., 88. The consideration for .the assignment must be shown to have been the full value of the property estimated as if the estate had fully vested at the time of the bargain, and without regard to any hazard resulting from the uncertain nature of the estate. McClure v. Raben, supra; Salter v. Bradshaw, 26 Beav., 161, The finding shows that the parties to this assignment concealed the knowledge of it from the testatrix, and that her consent was neither asked nor given. The whole value of the consideration had by the assignor, down to the time of the trial of this case, is not equal to one-half the value of the legacy. TV.' Inasmuch as it is found that the plaintiff’s attachment was made before any notice of said assignment was given, either to the testatrix in her life or to the executor, the plaintiff’s lien is entitled to priority. It is true that Charles R. Alsop had on March 8d, 1894, caused the assignment to be recorded in the land, records of the town of Middletown. But the assignment is of personal property and purports to “grant, sell, transfer and deliver the following goods and chattels.” It had, therefore, no right to appear of record, and cannot be used to show constructive notice. Carter v. Champion, 8 Conn., 548 ; Sumner v. Rhodes, 14 id., 134. The plaintiff’s first attachment (March 5), although made prior to the probate of the will, was good and valid. As to contingent nature of factorized property, see Holbrook v. Waters, 19 Pick., 354; Wheeler v. Bowen, 20 id., 563; Boston Sav. Bank v. Minot, Admr., 3 Met., 507; Mechanics’ Sav. Bank v. Waite, 150 Mass., 234; Sinnickson v. Painter, 32 Pa. St., 384. In this State an executor’s title to all the movable property of a testator is derived, not from a grant of administration but from the will as a recognized conveyance at common law, and accrues at the instant of death. Marcy v. Marcy, 32 Conn., 308-316; Selleck v. Rusco, 46 id., 370; Hathorn v. Eaton, 70 Me., 219; Mechanics Bank v. Waite, 150 Mass., 234. If an executor can be sued before the probate of the will, it must follow that he can be factorized. The property having been attached prior to any notice, the assignment was not perfected as against the plaintiff. Dearle v. Hall, 3 Russ., 1; Bishop v. Holcomb, 10 Conn., 444; Vanbuskirk v. Hartford F. I. Co., 14 id., 140; Adams v. Leavens, 20 id., 72; Foster v. Mix, 20 id., 395. The verbal information to the executor after March 5th is not found to be notice to him, nor is it in substance notice. The burden of proof is upon the assignee to establish either notice to the executor, or his knowledge. Re Tichener, 35 Beav., 317 ; Saffron, etc. Benefit Society v. Rayner, L. R. 14 Ch. D. 406; Lloyd, v. Banks, L. R. 3 Ch. App., 490. V. A court of equity will not give full force to this assignment, because it was in its nature a fraud upon creditors, on the part of Charles R. Alsop, and its consideration has not been fully paid by his sister, who now has notice of the fraud. Morse v. Wood, 100 Ill., 451; Beers v. Botsford, 13 Conn.,154; Freeman v. Burnham, 36 id., 469; Paulk v. Cooke, 89 id., 573; Barbour v. Conn. Mutual Life Ins. Co., 61 id., 248. It is clearly sufficient to defeat a conveyance as to creditors, if it appears that any part of the consideration is to be paid in future support of the grantor, or if the property be held in secret trust for him. Lawson v. Funk, 108 Ill., 502; Lukin v. Aird, 6 Wall., 78; Gruffin v. First National Bank, 74 Ill., 259; Sidensparker v. Sidensparker, 52 Me., 491; Merchants Savings Bank v. Lovejoy, 84 Wis., 611; Young v. Harmon, 66 N. Y., 382; Powers v. Alston, 93 Ill., 590 ; Work v. Coverdale, 47 Kan., 307; Bush v. Collins, 35 id., 535; Hayden v. Charter Oak Driving Park, 63 Conn., 142; Baldwin v. Sager, 70 Ill., 503; Burton v. Reagan, 75 Ind., 77; Dresser v. Missouri Ry. Co., 93 U. S., 92; Cutcheon v. Buchanan, 88 Mich., 594; Harder v. Rohn, 43 Ill. App., 365; 2 Pom. Eq., §§ 691, 750. The equity of the assignee, if any, is only a right to reimbursement. Beyond that she has no interest in the enforcement of the contract. Beyond that Charles, the debtor, is the sole beneficiary. If it be finally determined by the court that the assignment has any validity, the assignee should be permitted to demand only the amount or value of her advances, and the plaintiff must hold the balance. I. It is well settled tlrat an heir or devisee may transfer his interest during the lifetime of the ancestor or testator, and that such a transfer, for a good consideration, will be sustained in equity. 1 Amer. & Eng. Ency. of Law, 830; 21 id., 475, 476, note. II. Whether the factorizing process is a prior lien, is really the only question which arises upon the pleadings. At common law an administrator or executor could not be factorized. Winchell v. Allen, 1 Conn., 385. The statute (§ 1231) gives a limited right to hold “ any debt, legacy, or distributive share due or that may become due to Mm (the defendant) from such executor.” This evidently refers only to personal property, and the whole process of foreign attachment relates only to personal property. The words “ distributive share,” mean, like debt and legacy, a share in personal property. Nothing is said about devises, nor would it be possible under the statutes to hold by this process any distributive share of an heir in real estate. It is a fundamental principle of foreign attachment that the liability of the garnishee is to be considered as of the date of service of the process. Cafen v. Duggan, 136 Mass., 501; Drake on Attachment, § 667; Fitch v. Waite, 5 Conn., 122. The liability must be absolute at the time of the attachment ; if it is contingent, depending on circumstances thereafter to arise, the attachment will not hold. Drake on Attachments, § 551, and cases cited ; 8 Amer. & Eng. Ency. of Law, 1189; Whaples on Attachment, § 373; Godfrey v. Macomber, 128 Mass., 188; Bevenstohe v. Brown, 157 id., 565. Before the plaintiff can recover, therefore, he must show that on the 5th of March, 1894, Jackson had in his hands some personal property, which would absolutely go to Charles R. Alsop. If all that he shows is that the executor had personal property which only in a certain contingency would so go, it is not enough. But it is entirely doubtful and contingent whether Charles’ share will be distributed to him in personal property or real estate, and such a contingency, under all the decisions, prevents its being the subject of foreign attachment. The words of the statute, that a distributive share “due, or which may become due,” were not intended to change the whole principle applicable to foreign attachments. The word “ due ” certainly may mean either “ existing ” or “ payable,” and in this statute. it clearly means the latter. Foster v. Singer, 24 Wis., 671. III. Even if, in such a condition of things, an attachment could be made at all, it was premature. By our statutes executors have to be approved by the Court of Probate, and before they can be approved they must give bond. On the 5th of March, 1894, when this attachment was made, M[r. Jackson had not proved the will, or accepted the position as executor, or given a bond. It was not known on that day whether he would do either. Nor is the Court of Probate bound to approve the person named in the will as executor, if he is incapable or an improper person. In Davis v. Davis, 2' Cushing, 111, it was held that after a person had been appointed administrator, but before he had given his bond,’ he could not be factorized. It may be claimed that an executor is in a different position from an administrator, as the former takes title under the will, and has certain powers before the will is proved. The case of Maroy v. Marey, 32 Conn., 308, does so hold; but it does not follow that he can be factorized the moment the testator dies, and before he has accepted and given bonds, merely because theoretically the title is in him. It is believed that the only cases where executors have been held as garnishees, are where there was a debt, or légacy, or distributive share of personal property only, coming to the defendant in the original suit under the will, and where they had accepted the position and given bonds. 1 Woerner’s Law of Admin., § 186; 3 Redfield on Wills, 20. ’ IV. Sufficient notice was given of the conveyance. It was recorded on the town records on March 3d, and so far as Charles R..Alsop’s interest in the real estate of the testatrix; was concerned, this was notice to all the world, both, the exechtor and creditors. As it was, and is, uncertain, whether his share would be personal property or real estate, or part of each, it would be unreasonable to hold that what would be good notice in one event would be bad in another. This creditor, as well as the executor, was affected with notice that Charles had transferred all his interest in the estate, by thé récord, and if they had notice for one purpose they should be held to have notice-for all. The attachmeirt of March 17th was clearly unavailing, as before that time the.executor had received notice, and therefore as soon as he accepted the position and qualified, he knew of the transfer. No special form of notice was necessary ; the fact of knowledge was all that was required.