Arrington v. Screws, 31 N.C. 42, 9 Ired. 42 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 42, 9 Ired. 42

N. W. ARRINGTON vs. BENJAMIN SCREWS.

A legacy in the hands of an executor, due to a married woman, cannot he attached for a debt of the husband. It is not his until he reduces it into possession.

Process of attachment operates only on such interests of the debtor, as exist at the time it is served, aud not on such as may afterwards arise.

The cases of Gentry v. Wagstoff, 3 Dev. 210, and Flynn v. Williams, I Ire. 509, cited and approved.

Appeal from the /Superior Court of Law of Nash County, at the Fall Term,. 1848, his Honor Judge Dick presiding.

This is an action of debt, commenced by original attachment. The case is this. Peter Arrington, deceased, bequeathed the sum of $300 to each of his grand children> Mary Drake, Adeline Drake, Richard Drake, and Mourning Screws, the wife of the defendant, with the following limitation over: “It is my will, if either of my said grandchildren die without leaving issue, then the property given to such one, be equally divided between the survivors.” The legacies were paid to the grand-children respectively; and afterwards Adeline died intestate, without having had issue, and leaving the others survive ing, and Kelly Rawls became her administrator, and received assets to a greater value than $300 ; and, being summoned as a garnishee in this suit, he stated the above case in his garnishment.

The plaintiff moved for the condemnation of one third part of the sum towards the satisfaction of his recovery; but the motion was refused and the garnishee discharged; And the plaintiff appealed.

Miller, for the plaintiff.

B, F. Moore, for the defendant.

Ruffin, C. J.

The Court concurs in the opinion of his Honor. An attachment may be served in the hands of any person indebted to the defendant or having any of his effects. But this interest of Mrs. Screws in the hands of her sister’s administrator, is not a debt to the defendant, her husband, but belongs to him and her in her right. It cannot become his, but by reducing it into possession. Regarding this interest as a debt, there is, then, an inconsistency in attaching it as a debt to the husband ; since, which outstanding, it cannot legally be his. He might, indeed, release the demand, or assign it in Equity; but unless he collects the money or disposes of the interest, the right of the wife continues and would survive to her or her representative. He could not recover it in his own name; and it follows, that it cannot be attached as a debt to him. Process operates only upon such interests of the debtor as exist at the time it is served, and not on such as may afterwards arise. Gentry v. Wagstaff, 3 Dev. 270. Flynn v. Williams, 1 Ired. 509.

Per Curiam. Judgment affirmed.