Street v. Reingke

NOURSE, P. J.

This is an appeal from two designated portions of a decree of distribution entered in the estate of John H. Troy, deceased.

The appellant is the trustee in bankruptcy of Beatrice H. Hanks, who was the residuary legatee under the will of the decedent. In September, 1925, L. M. Reincke levied an attachment on all the interest of Beatrice H. Hanks in the personal property of said estate. In August, 1927, the Credit Clearance Bureau levied an attachment upon the same interest. In March, 1928, Beatrice H. Hanks was adjudicated a bankrupt. In April, 1928, the Credit Clearance Bureau obtained a judgment against Beatrice H. Hanks upon which execution has been issued. When the first attachment was levied the executrix had in her possession $2,600 in cash, all of which has been used in the payment of specific legacies and in the administration of the estate. After this levy but before the levy of the Credit Clearance Bureau the real property belonging to the estate was sold and the proceeds thereof were in the hands of the executrix of the estate. Thus all the property in the hands of the executrix subject to distribution was the personal property consisting of the proceeds of the sale of the realty which had been left to Beatrice H. Hanks as residuary legatee. But none of this property had been converted into personalty at the time of the Reincke attachment.

Section 561 of the Code of Civil Procedure authorizes the attachment of the interest of a defendant in personal property belonging to the estate of a decedent. Such attachment shall not impair the powers of the representative over the property for the purposes of administration. In the decree of distribution delivery of such property shall be ordered to the officer making the levy, but such delivery shall not be made until the decree of distribution has become final. In approaching the questions presented on this appeal it should be borne in mind that though the decedent died in April, 1925, and the decree of distribution was not made until January, 1934, the parties concede that the delay was due to litigation involving the" estate and was

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not in any way dne to any lack of diligence on the part of respondents herein.

We cannot support that portion of the decree which relates to the lien of the Eeincke attachment. The probate court found that when the attachment was levied the only personal property in the estate was the sum of $2,600 which was used in payment of specific legacies and in administration. Title to the real property had vested in Beatrice IT. Hanks as residuary legatee upon the death of decedent, but no attachment was levied upon the realty. This could have been done under the provisions of subdivision 2 of section 542 of the Code of Civil Procedure.