FITCHETT v. DOLBEE, 3 Del. 267 (1840)

JOHN S. FITCHETT v. PETER DOLBEE and ROBERT W. DOLBEE.

Superior Court of Delaware.
Fall Sessions, 1840.

ATTACHMENT FI. FA. Sheriff returns “nulla bona,” and summoned

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as garnishee Philip Short, adminisrator of Peter Dolbee, the elder. Rule on the garnishee to answer.

A statement of facts was agreed on by the parties, which set forth that the defendants, Peter and Robert W. Dolbee, were indebted to the plaintiff, John S. Fitchett, in the sum of $392 50, with interest, c: that the said Philip Short administered upon the estate of Peter Dolbee, the elder, deceased; and as such administrator possessed himself of the goods and chattels of said deceased: that after passing a distributive account before the register for the probate of wills,c., for Sussex county, there was a clear balance due to each of the five children and heirs-at-law of said deceased of $____, with interest,c., of whom the said Peter and Robert W. Dolbee were two: and their said distributive shares of the said balance of the estate of their said father, in the hands of his administrator as aforesaid, was the fund now attached.

The question submitted was, whether Philip Short the administrator, was liable to be summoned as the garnishee of the Said Peter and Robert W. Dolbee, in respect of the said fund so in his hands as administrator, and held for distribution as aforesaid.

The Court. — The question presented for the consideration of the court is, whether the distributive shares of the personal estate of the late Peter Dolbee, sen., belonging to the defendants, can be attached in the hands of the administrator whose administration account has been adjusted and settled by the register, and the amount to be distributed thus ascertained. It has been repeatedly decided, that a debt due from the intestate cannot be attached in the hands of the administrator. But the reason of that decision does not apply to a case like the present. The act of assembly creates a legal liability to pay on the part of an executor or administrator, both in the case of a legacy where there are assets, and in the case of a distributive share; and gives an action of assumpsit in both cases. (Dig.
228.) There can be no reason, therefore, why a legacy or distributive share should not be attached in the hands of the executor or administrator, after the administration account has been adjusted and settled by the register, and the extent of their legal liability thus ascertained. As the executor or administrator, however, has a right under the act of assembly, in case he knows of any out standing demand against the estate, to take a refunding bond from the person entitled to the legacy or distributive share, the court would impose the same terms on

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the attaching creditor, and require him to give such refunding bond, under like circumstances.

Cullen, for plaintiff.

Brinckloe, for defendant,