Soule v. Taaffe

SHENK, J.

On February 7, 1933, Charles Lind died testate in the city and county of San Francisco. On September 2d of the same year the executors of his will filed their first and final account and petition for distribution,

[292]

including a bequest of $4,333.34 in cash to William Lyons, a legatee under the will. Judgment creditors of Lyons filed their objections to the petition for distribution based on the following facts: In an action in the Superior Court in and for the City and County of San Francisco, A. B. Walcott in 1918 obtained a judgment against said legatee Lyons. The appellants are the owners of said judgment by assignment. On July 22, 1933, on order of court, an execution was issued on said judgment and a copy thereof, with the sheriff’s notice attached, was on August 7th filed by the' sheriff in the office of the county clerk in the matter of said probate proceedings. On the same day a copy of said execution with sheriff’s notice was served on one of said executors. When the matter of the settlement of the account and petition for distribution came on for hearing, on September 14th, counsel for the judgment creditors presented an objection to the petition on the ground that said levy of execution on the interest of William Lyons in said estate was not mentioned in the petition, as provided in section 561 of the Code of Civil Procedure. Notwithstanding the objection the court settled the account and ordered distribution in accordance with the prayer of the petition. The objectors then moved the court, on notice, to amend the decree of distribution by inserting therein an order directing sufficient of said cash legacy to William Lyons to be delivered to the sheriff to satisfy the amount due on said judgment. The motion was denied. The owners of said judgment, Soule and Best, have prosecuted an appeal from the decree of distribution and from the order denying their motion to amend the decree.

The pertinent part of section 561 of the Code of Civil Procedure provides: “The interest of a defendant in personal property belonging to the estate of a decedent, whether as heir, legatee, or devisee, may be attached by serving the personal representative of the decedent with a copy of the writ and a notice that said interest is attached. . . . A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being administered and the personal representative shall report such attachment to the court when any petition for distribution is filed, and in the decree made upon such petition distribution shall be ordered to such heir, legatee or devisee, but delivery of such property shall