Opinion
No. 32738.
May 10, 1937.
1. GARNISHMENT.
In attachment against nonresident defendant, executors as garnished defendants had right to question jurisdictional regularity of proceedings as protection to themselves and as justification for performing any decree rendered against them, since if through lack of jurisdiction principal defendant was not bound he could pursue garnished defendants in another action and thus impose double liability on them.
2. GARNISHMENT.
Chancery court held to have jurisdiction of foreign attachment to recover unliquidated claim for alimony from executors of estate of deceased father of principal defendant under statute providing that chancery court shall have jurisdiction of attachment suits for breach of contract, express or implied, against persons in Mississippi having in their hand effects of, or indebted to, an absent or absconding debtor (Code 1930, sec. 173).
3. HUSBAND AND WIFE. Parent and child.
Father and husband has legal and moral obligation to support wife and dependent minor children which is vested right in wife and children growing out of marriage contract.
4. EXECUTORS AND ADMINISTRATORS.
Decree in attachment for alimony against executors, as trustees, of estate which was finally settled with all debts paid except for ten-year trust estate provided by will, which did not interfere with trust although fixing a lien on real estate attached, and awarded wife and child amount of annuity due husband from estate held proper, notwithstanding statute provided judgment should not be rendered against executors before final settlement without their consent, since there was an actual if not formal settlement, and purpose of statute was to hold estate free from process against heirs until debts of estate were paid (Code 1930, sec. 1860).
5. TRUSTS.
Where powers and duties conferred on an executor are such as do not pertain to that office, but do go with the office of trustee and no trustee is named, the executor becomes the trustee to carry out the trust.
APPEAL from the chancery court of Leflore county. HON. R.E. JACKSON, Chancellor.
H. Talbot Odom, of Greenwood, for appellants.
The garnishee defendants have the right for their own protection to challenge the jurisdictional regularity of all proceedings against the non-resident defendant, including proper notice to the non-resident defendant.
Griffith Chancery Practice, sec. 489; McKey v. Cobb, 33 Miss. 533.
Process by publication is insufficient to give jurisdiction of the non-resident defendant or of his property in this state for the purpose of enforcing an unliquidated claim for alimony.
Section 173, Code of 1930; Larson v. Larson, 82 Miss. 116, 33 So. 717; 30 C.J. 517; Romaine v. Chauncey, 29 N.E. 827; Wallingsford v. Wallingsford, 6 Har. J. 485; Daniels v. Lindley, 44 Iowa 567; Burr v. Burr, 7 Hill. 207; Gunther v. Jacobs, 44 Wis. 354; Crain v. Cavana, 62 Barb. 109; Jordan v. Westerman, 62 Mich. 170, 28 N.W. 826; Boehm v. Boehm, 88 N.J. Eq. 74, 101 A. 423.
We respectfully submit that section 173 of the Code of 1930 does not include within its terms claims for alimony against non-resident husbands, and therefore the court below was without jurisdiction and our demurrer should have been sustained.
A judgment cannot be rendered against executors in garnishment proceedings so as to reach property of distributees in their hands except with their consent until after a final settlement of the estate.
4 Am. Jurisprudence, sec. 412; Orlopp v. Schueller, 72 Ohio St. 41, 73 N.E. 1012; Hudson v. Wilber, 114 Mich. 116, 47 L.R.A. 345; Waples-Plaetter Grocer Co. v. C. G.R.R. Co., 59 L.R.A. 353; Island Pond Nat. Bank v. Chase, 141 A. 474, 59 A.L.R. 766.
The proceeding in this case and the judgment against the executors was in direct violation of section 1860, Code of 1930.
Roy Church, of Memphis, Tenn., and Pollard Hamner, of Greenwood, for appellee.
Alimony is a vested right, on a proper case being made out. It arises out of the marriage contract to maintain the wife, together, if they live happily; separate, if unhappy circumstances should separate them without criminality on the part of the wife. It is an allowance out of the husband's estate for the wife's support, under consideration of all of the circumstances.
Garland v. Garland, 50 Miss. 710; Dickerson v. Brown, 49 Miss. 357.
The American doctrine undoubtedly is that the relation of husband and wife originates in contract, which, when executed, imposes upon the parties new relations to each other and the public.
1 Bishop on Marriage Divorce, 272.
Whatever the holding elsewhere may be, our court is definitely committed to the proposition that marriage is a contract and to the further proposition that it is a binding obligation on the husband to support the wife. Therefore, failing to do this the husband fails in a legal obligation that he owes and one who owes a legal obligation is a debtor. The conclusion, therefore, is inescapable that Jacob Crawford Kearney is a debtor to his wife and that he is both non-resident and absent from the state. As a result he falls squarely within the provisions of the statute covering attachments in chancery, if he has lands and tenements in the state or if other persons in the state have effects of or are indebted to him.
Galaspy's Sons Co. v. Massey, 99 Miss. 208, 54 So. 805; Scott v. Scott, 73 Miss. 595, 19 So. 589; Section 159, Constitution.
The remedy by attachment in chancery goes further than the general statute on attachments at law and covers not only legal claims but equitable claims and torts and no equity independent of the statute is necessary. It covers unliquidated, as well as liquidated damages or demands and may embrace all kinds of personal property as effects and may be used to cover statutory penalties.
Griffith's Chancery Practice, sec. 486.
Section 1860, Mississippi Code of 1930, specifically provides that executors and administrators may be garnished as having effects due to legatees or distributees. The executors in this case are really parties defendant, but to all intents and purposes they are garnishees in chancery. We had the right, therefore, to garnish them under the very terms of the statute wherein counsel for appellants denies our right to proceed to judgment, which counsel insists must be done with the consent of the executors. That consent was not given us. In fact, our every move was valiantly resisted by counsel for appellants.
Watkins v. State, 2 Gill J. (Md.) 220; Karr v. Karr, 6 Dana (Ky.), 3; State v. Jordan, 3 Harr. M. (Md.) 179; Lark v. Linstead, 2 Md. Ch. 162; In re Williams, 1 Md. Ch. 25.
Where powers and duties conferred upon one named as executor do not pertain to that office, but do pertain to the office of trustee, and no other trustee is designated, the executor, by virtue of his appointment as executor, becomes trustee by implication of law, as where a will directs acts to be done which necessarily require the intervention of a trust to hold the property, as where there is a bequest of income to one for life and then the principal to another, and it is immaterial that he is not expressly named as "trustee," and in his capacity of trustee the executor may take the trust estate without direct bequest or devise thereof to a trustee.
65 C.J. 640.
We do not intend by the above citations to draw technical distinctions between an executor and a trustee, but we do mean to say that the executors of E.N. Kearney's estate whether they be called executors or trustees, in contemplation of law, had finally settled the estate phases of their duties under the will and had long since assumed and were discharging the trusteeship not for the estate, but for the legatees and distributees; therefore, section 1860 would not apply to them and judgment could be rendered against them under a garnishment because in contemplation of this section they had finally settled the estate and were launched into the trusteeship.
We say further that even assuming that there has been no final settlement of E.N. Kearney's estate and the executors are still acting as such, still the decree rendered by the court below does not violate section 1860 because the decree is made "subject only to the rights conferred upon the executors of the estate of E.N. Kearney, deceased, to the use of the said lands and property under the terms of the will . . . for the period of ten (10) years from June 26th, 1930 . . ."
A court of equity will decree specific performance of an agreement to grant an annuity, and will enforce the payment of an annuity created by will or deed.
3 C.J. 219, sec. 42; Brandon v. Brandon, 46 Miss. 222.
The decree of the court below in no way interferes with the orderly execution of the trust by the executors, or trustees, as we believe them now to be, the ends of justice and a distressing need of the wife and baby boy will be met, and we respectfully suggest that the decree of the chancellor was eminently correct and should be affirmed.
This is a foreign attachment in chancery by appellee against her husband, Jacob C. Kearney, a nonresident of this state, for alimony for the maintenance and support of herself and their minor child, and to make such an allowance a charge against his one-fifth undivided interest in his father's estate. The estate of the father was being administered in Leflore county under his will by two of his sons as executors. The executors were made parties and garnished by service on them of a copy of the bill, as provided by section 174, Code 1930. An attachment was issued, and levied on Jacob C. Kearney's one-fifth undivided interest in the lands belonging to his father's estate. He failed to appear. The cause was tried on bill, answer of the executors and proofs, resulting in a decree in appellee's favor for $83.33 per month.
The questions involved are: (1) Have garnishee defendants the right to raise the question of jurisdiction? (2) Can an unliquidated claim for alimony be the basis of a foreign attachment in chancery under section 173, Code of 1930? (3) Can a judgment be rendered against garnished executors in a proceeding to subject the property in their hands belonging to legatees and devisees under the will, until final settlement, except with their consent?
The jurisdictional regularity of judicial proceedings against a nonresident defendant may be challenged by the garnished defendant as a protection to himself, and a justification for performing any decree which may be rendered against him; otherwise, if there should be want of jurisdiction, the principal defendant would not be bound. He might be free to pursue the garnished defendant in another action and thus impose double liability on him. Griffith's Chan. Prac., section 490; McKey v. Cobb, 33 Miss. 533.
That the chancery court has jurisdiction of a foreign attachment to recover alimony seems plain under the provisions of section 173, Code 1930. It is there provided, among other things, that the chancery court shall have jurisdiction of attachment suits for the recovery of damages for the breach of any contract, express or implied, against any nonresident, absent or absconding debtor who has land in this state, and against persons in this state who have in their hands effects of, or are indebted to, such absent or absconding debtor. There is a legal as well as a moral obligation on the father and husband to support his wife and dependent minor children; it arises from the marriage contract and is a vested right in the wife and children growing out of the marriage contract. The obligation is to the wife and children, and also to society. Garland v. Garland, 50 Miss. 694; Dickerson v. Brown, 49 Miss. 357; 1 Bishop on Marriage Divorce, 272.
To dispose of the other question, it is necessary to bear in mind the following facts shown by the evidence: The father of Jacob C. Kearney died in June, 1930, leaving a last will and testament. His estate was rather large and consisted of a valuable plantation in Leflore county with the necessary planting equipment, real estate in the city of Greenwood, money, and personal property. The fifth annual account of the executors filed in December, 1934, disclosed a personal estate of something like $60,000; whatever debts the decedent owed at his death had been paid. The father provided in his will that his executors should keep together and manage his estate for a period of ten years from the date of his death, and then divide it among his devisees and legatees, who were principally his five sons; in addition, an annuity during the ten-year period of $1,000 to be paid annually to Jacob C. Kearney.
Section 1860, Code 1930, provides, among other things, that executors and administrators may be garnished as having effects due to legatees or distributees, but that judgment shall not be rendered against them in such case, except with their consent, until after a final settlement of the estate. Appellants refused to consent to the rendition of the decree. They contend that under the statute no decree could be rendered because final settlement of the estate in the meaning of the statute had not been made. There is some trouble about the solution of this question. We have reached the conclusion, however, that under the particular facts here the decree of the chancellor was correct. It is true that there has been no formal final settlement of the ordinary administration of the estate, nevertheless, there has been an actual final settlement, except as to the trust estate created by the will. The provision of section 1860 that judgment shall not be rendered until after final settlement without the consent of the administrator or executor was for the protection of creditors of the estate as well as the executor or administrator; its purpose was to hold the estate together free from legal process against heirs, legatees, and devisees until all debts were paid.
Where powers and duties conferred upon an executor are such as do not pertain to that office, but do go with the office of trustee and no trustee is named, the executor becomes the trustee to carry out the trust. 65 C.J. 640. We think that was the status of these executors when this proceeding was instituted. The decree in this case carefully guards against the interference with the execution of the trust for the ten year period; it awards to the wife and child exactly the sum of the annuity of the husband and father. It is true it fixes a lien on the real estate attached, but it provides that the execution of the decree shall not interfere with the carrying out of the provisions of the ten-year trust.
Affirmed.