McCracken v. Lott

WASTE, C. J.

This appeal presents for consideration the question: May the assets of a judgment debtor, who has been judicially declared incompetent, be subjected to execution and supplementary proceedings arising therefrom, based on a valid final judgment rendered prior to the ineompeteney ?

Plaintiff obtained a judgment against Mary Gesford Lott for the sum of five thousand dollars, with interest and costs. Execution issued against the property of the debtor, was returned by the sheriff wholly unsatisfied, and remained unpaid. On appropriate allegation, under proceedings supplementary to execution, that the Wells Fargo Bank and Union Trust Company was indebted to Mary Gesford Lott, the, bank was ordered to appear on a day and at a place fixed to answer concerning the indebtedness. When the

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matter came on for hearing, there was filed in the proceeding by the guardian of the estate of Mary Gesford Lott a paper entitled, “Claim of Exemption” from execution issued in the action “of all the property of the estate of Mary Gesford Lott, as now being in custody of law”. Thereafter, the guardian moved the court for an order vacating the order of examination of the Wells Fargo Bank and Union Trust Company, alleging that after the entry of the judgment in question the judgment debtor had been adjudged to be an incompetent person; that still later, one Louisa J. Gesford died testate, leaving an estate in which the incompetent person was entitled to an interest; that the Wells Fargo Bank and Union Trust Company was the executor of the will of Louisa J. Gesford, and came and was then in possession of the property interest of the incompetent, Mary Gesford Lott, under the terms of the will and the decree of distribution made in the estate of the deceased. It was further alleged that by the decree of distribution the share of the incompetent was duly ordered paid to her guardian, who demanded of the executor the delivery of the money and property so distributed to him; that the levy of execution intervened before payment was made; hence the filing in this action of the claim of exemption of the property from execution upon the ground that it is in custody of law. The court granted the motion to vacate the order of examination, and the judgment creditor has appealed.

While some jurisdictions, notably Illinois, Massachusetts, Texas and Washington, permit judgments against incompetents under guardians to be enforced by execution, it is the rule accepted by the great preponderance of authority that the estate in the- hands of a guardian is