
    Orlopp v. Schueller, Admr., de Bonis non.
    
      Property held by an executor or administrator of an estate— Cannot be attached or garnisheed, when — Section 55S1, Revised Statutes.
    
    1. Property or money held by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made.
    2. The provisions of section 5531, Revised Statutes, neither apply to nor authorize the service of process of garnishment on an executor or administrator.
    (No. 8722
    Decided February 28, 1905.)
    Error to the Circuit Court of Franklin county.
    On the twenty-seventh day of December, 1901, Odo Orlopp died testate, leaving an estate, consisting entirely of personal property, of the amount and value of about $3,600. By his last will and testament he made disposition of his property as follows: .
    “ 1. I will and direct that my funeral charges and the expense of administering on my estate be paid. .
    
      “2. I give and bequeath to my niece, Lucy Orlopp, of Atchison, in the state of Kansas, two thousand dollars.
    “3. I give and bequeath to my brother, Oscar Orlopp, of Atchison, in the state of Kansas, the balance of my property.”
    This will was admitted to probate on January 7, 1902, and thereupon Charles W. Haldy was duly appointed and qualified as administrator with the will annexed of the estate of said' decedent.
    On the eighth day of January, 1902, the defendant in error commenced an action in the court of common pleas of Franklin county, Ohio, against the plaintiff in error, Oscar Orlopp, to recover from him the sum of $500 with interest, on a certain paper writing designated in plaintiff’s petition as a promissory note. Plaintiff’s petition among other averments contained the following: “Plaintiff further says that under and hy virtue of the last will and testament of Odo Orlopp, recently deceased, and late of Franklin county, Ohio, the said defendant, Oscar Orlopp, was named as legatee under said will, and that the estate of said Odo Orlopp is solvent, and that the property bequeathed to said defendant under said will of Odo Orlopp is within the county of Franklin and state of Ohio.”
    At the time of the commencement of his action the defendant in error filed in the office of the clerk of the court of common pleas of said Franklin county the following affidavit:
    
      “State of Ohio, Franldin County, ss.:
    
    “Fred W. Schueller, administrator de bonis non, with the will annexed of the estate of Daniel Deiss, deceased, plaintiff herein, makes oath and says that he has commenced an action in the court of common pleas of Franklin county, Ohio, against the said Oscar Orlopp, defendant, upon a promissory note executed hy said defendant to this, plaintiff’s decedent for the sum of five hundred dollars with interest from the year 1875; and said affiant further makes oath and says that said claim is just, and that said plaintiff ought to recover thereon the sum of five hundred dollars with interest from the year 1875. He also makes oath that said defendant is a nonresident of the county of Franklin and of the state of Ohio.
    
      “And further affiant makes oath and says that he has good reason to and does verily believe that Charles W. Haldy, administrator with the will annexed of the estate of Odo Orlopp, deceased, of and within said county of Franklin and state of Ohio, has property of the said defendant in his possession liable to be attached in this action, to-wit, money and other chattel property, and said affiant says that the facts sel; forth in the foregoing affidavit are true.
    “Fred W. Schueller.
    “Sworn to before me and subscribed in my presence by the said Fred W. Schueller this eighth day of January, A. D. 1902.
    “ [Seal] Frank F. Hoffman,
    
    
      “Notary Public, Franklin County, Ohio.”
    
    Upon the filing of this affidavit an order of attachment was made by the clerk of the court of common pleas, and notice of garnishment was issued to the said Charles W. Haldy, as administrator with the will annexed of the estate of Odo Orlopp, deceased, which order of attachment and notice of garnishment were personally served upon said Charles W. Haldy on the ninth day of January, 1902.
    On March 22,1902, Charles W. Haldy, administrator, answered as garnishee, disclosing by his answer that he then had in his possession $3,000 in four per cent United States government bonds and about $1,550 in money, which he held as administrator to be paid out and distributed agreeably to the provisions of the will of said Odo Orlopp. That the debts of said Odo Orlopp so far as then known and the costs of administration up to that time, had been fully paid, and that upon the final settlement and distribution of said estate Oscar Orlopp would probably be entitled to receive as residuary legatee under said will, about tbe sum of $1,550.
    On the fourteenth day of March, 1902, Oscar Orlopp, defendant in said cause, filed his motion therein and expressly disclaiming any purpose or intention to enter his appearance in said cause and alleging that he appeared for the purposes of said motion only, moved the court to discharge said attachment and to release the property claimed to have been garnisheed in said action, alleging among other grounds therefor the following causes:
    “4. That the property or the interest sought to be attached is not subject to or liable to attachment or garnishment, as the same is a contingent legacy in the possession and control of Charles W. Haldy, as administrator with the will annexed of the estate of Odo Orlopp, deceased, and not in said Charles W. Haldy’s possession and control as an individual or as a debtor of defendant.
    “5. That no order of distribution has been made by the probate cojirt appointing the said Charles W. Haldy administrator with the will annexed of the estate of Odo Orlopp, deceased, nor has the debts of said estate been ascertained or paid; the said Charles W. Haldy having been appointed by the probate court of Franklin county, Ohio, administrator as aforesaid on the eighth day of January, 1902.”
    This motion, which was supported by affidavits, was overruled by the court of common pleas, and upon petition in error to the circuit court this order and judgment of the common pleas overruling said motion was affirmed. Plaintiff in error now asks, that this judgment of affirmance be reversed and that said attachment and. garnishment be discharged.
    
      
      Mr. A. H. Johnson and Mr. Henry Elliston, attorneys for plaintiff in error.
    The property or interest sought to be attached was not subject or liable to attachment or garnishment, being a contingent residuary legacy in the hands of the garnishee as administrator, and no order of distribution having been made.
    No property of the plaintiff in error was seized by the sheriff under the order of attachment, but Charles W. Haldy as administrator with the will annexed of the estate of Odo Orlopp, deceased, was served two days after he was appointed such administrator, with a notice of garnishment, thereby attempting to reach and hold a certain residuary legacy of the plaintiff in error under the will of said Odo Orlopp, deceased.
    The procedure in attachment and garnishment is a statutory remedy and must be confined to the limits assigned by the legislature. 4 Cyc., 396 (2-1); Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543; Humphrey v. Wood, Wright, 566; Colwell v. Bank, 2 Ohio, 229; Taylor v. McDonald, 4 Ohio, 149.
    In the absence of special statutes, it is an undisputed rule of law that an executor or administrator cannot, in his official capacity, he held liable as a garnishee, before a final order of distribution is made, at a suit of a creditor of the deceased, or of one who was, or is, a legatee or distributee or other creditor of the estate. Shinn on Attachment and Garnishment, secs. 510a and 532b; 4 Cyc., 409 (4-e); 14 Am. & Eng. Ency. Law (2 ed.), 917 (10), 828 (11); Woemer on Administration (2 ed.), *390, sec. 177; Nelson v. Stull et al., 68 Pac. Rep., 617; Threshing Machine Co. v. Miracle, etc., 54 Wis., 295; Weeks et 
      
      al. v. Gas Co., 22 Tex. App., 245; Bentley v. Strathers, 8 Dec. Re., 44; 5 W. L. B., 288; Picquet v. Swan, 4 Mass., 443.
    The reasons for this rule of law are:
    
      (a) The attaching creditor can acquire no greater rights than the defendant; he stands in the same position as the defendant did. Shinn on Attachment, sec. 516a; 4 Cyc., 632 (b-1-a); 14 Am. & Eng. Ency. Law (2 ed.), 765 (11 and 833, 12-1); Drake on Attachment, sec. 452; Waple on Attachment, sec. 357; Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543; Smyth v. Anderson, 31 Ohio St., 144; Straus v. Wessel, 30 Ohio St., 211, 213.
    In the case at bar the plaintiff in error at the time the order of garnishment was served had no claim against the administrator, the garnishee. The court could not order, without qualification, the payment of any part of the legacy to plaintiff in error’s creditor. The administrator was only an agent of the law to ádminister the estate in accordance therewith, under the control of the probate court, and to pay to the legatee, if there was anything left after paying the debts and the general legacy under the will. The debts and general legacy to Lucy Orlopp of $2,000 may consume the estate and leave no residue for the plaintiff in error. Besides the residuary legacy did not become due or payable until the estate was settled and an order of distribution made by the probate court. This was necessary to determine whether there was anything to be paid plaintiff in error as residuary legatee under the will of Odo Orlopp, deceased. Rockell on Probate Practice,, secs. 676, 682, 694; Webster v. Bible Society, 50 Ohm St., 1-15; Gray, Exr., et al. v. Case School of Applied 
      
      Science, 62 Ohio St., 1; secs. 6075, 6195, 6128, 6211, Rev. Stat.; Dawson v. Dawson, 25 Ohio St., 443.
    
      (b) The common pleas conrt will not take away from the prohate conrt money or property over which the prohate court had acquired jurisdiction. The probate court had acquired possession of the money and property, sought to be attached in this proceeding, under the provisions for administering the estate of deceased persons, and had jurisdiction over the garnishee and his administration of said property. To allow the property to be taken by the common pleas court in attachment would take away the jurisdiction of the probate court to settle the estate. This the court will not permit. Byers: v. McAuley and McAuley v. McAuley, 149 U. S., 608; Overturf v. Gerlach, 62 Ohio St., 127; Shewell v. Keen, 2 Whar. (Pa.), 339.
    
      (c) It would embarrass and interfere with executors and administrators if, in addition to the ordinary duties which the law imposes, they were drawn inte complications created by the interposi-. tion of creditors and legatees. Weeks et al. v. Gas Co., 22 Tex. App., 245; 14 Am. & Eng. Ency. Law (2 ed.), 817.
    Is there a special statute authorizing executors and administrators to he held as garnishee before order of distribution?
    Sections 5530 and 5538 are in substance the same as the statutes of the various- states that have held that executors and administrators are not subject to attachment or garnishment. Kansas General Statute (1901), secs. 4635 and 4637; Wisconsin Statutes, sec. 2752, etc.; Threshing Machine Co. v. 
      Miracle, Exr., etc., 54 Wis., 295; 14 Am. & Eng. Ency. Law (2 ed.), 828 (11) and 830 (c).
    These sections do not give the right to garnishee the executor or administrator as appears from the authorities heretofore cited.
    The circuit court held that under section 5531 an undetermined legacy in the hands of an administrator or executor might be garnisheed. The same holding was made in the case of Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455.
    These decisions were based on a construction of section 5531. The circuit courts in construing section 5531 held that executors and administrators were included under the term “other officer” in this section. We contend that it was not the object of the legislature to include executors and administrators in the words “other officer” in this section, and it cannot be so construed. Executors and administrators must be expressly named in the statute before they can be garnished, and the statute cannot be made to apply to them in proceedings of attachment and garnishment by implication. 4 Cyc., 409 (e-1); 14 Am. & Eng. Ency. Law (2 ed.), 817 (10), 828 (11); Woerner on Administration (2 ed.), *390, sec. 177; Conway v. Armington, 11 R. I., 116.
    As executors and administrators are not within the ordinary meaning of the words “or other officer,” we must therefore determine whether the legislature intended to include them within these words, as used in section 5531, by the established rule of statutory interpretation.
    Proceeding in attachment is a summary and extraordinary remedy in derogation of the common law and owes its existence entirely to statutory enactment. 4 Cyc., 396 (ll-a-4).
    The statutory remedy of attachment being in derogation of the common law must be construed strictly in favor of those against whom the proceeding is employed and must be closely confined within the limits assigned by the legislature and cannot be extended by implication beyond the terms. of the statute creating it. Felix v. Griffiths, 56 Ohio St., 39; Hoyman v. Beaverstock et at., 4 Circ. Dec., 491; 8 C. C. R., 473; Taylor v. McDonald, 4 Ohio, 149; 26 Am. & Eng. Ency. Law (2 ed.), 662 (4-a); 4 Cyc., 400 (4).
    In ease the intention is not clear, the question of public policy should have weight. Hurd, v. Robinson, 11 Ohio St., 232.
    Prior to the passage of this statute public officers were not subject to the process of attachment. Dawson v. Holcomb, 1 Ohio, 275.
    To remedy this service of garnishment upon sheriffs, etc., was embodied in section 200 of the code of civil procedure, by an act to “amend section 200 of the code passed March 11, 1853.” 53 O. L., 23.
    This remained as part of the provision of section 200 of the code of civil procedure until May 14, 1878, when the “Act to revise and consolidate the laws relating to civil procedure, etc.,” was passed. 75 O. L., 714. This act subdivided section 200 of the code into sections 10, 11, 12, 13, and placed them under chapter 2 (attachment), division 6, subdivision 3 of that act. These sections of the act of May 14, 1878, were carried into the Revised Statutes oOhio of 1880, and enacted into sections 5530, 5531, 5532, 5533. Section 11 of the act of May 14, 1878, marginal heading is, “Effect of service of garnishment upon public officers. ’ ’ The.title to section 5531 of the Revised Statutes is, “Effect of service of process of garnishment upon public officers.” It therefore would seem that the construction placed upon this section by the legislature and the annotators of our Revised Statutes, was that it applies to public officers only.
    The term “other officer,” as used in section 5531 should be construed in reference to the rule “ ejusdem generis.” That is the meaning of the words “other officer” must be limited and determined from, the specific words of a like nature which they follow, and are presumed to embrace only such officers as are like or similar to those designated by the specific words. Sutherland on Statutory Construction, secs. 268-273; 26 Am. & Eng. Ency. Law, 609; 17 Am. & Eng. Ency. Law, 6; State v. Liffring, 61 Ohio St., 39; Rutherford v. Railway Co., 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312.
    Executors and administrators are not' like or similar to any of the officers specifically named in section 5531 in any respect. The officers named therein are all public officers with the probable exception of master commissioner; and it would seem that under the statutes a master commissioner is a public officer.
    Section 5219, Revised Statutes, creates the office of master commissioner, the term thereof, and provides how it shall be filled, and gives him power to administer oath required in the discharge of his official duties. By section 5223 he has the same powers as the court to summons and enforce the attendance. of witnesses and grant adjournments. By sections 5399 and 5401, he may sell real estate, make deeds therefor, the same as sheriffs.
    The office of master commissioner is then a right, authority and duty created and confirmed by law, by which an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. Mechem on Public Office and Officers, sec. 1; State ex rel. v. Brennan, 49 Ohio St., 33.
    The probate court does not appoint executors and administrators, but is required to issue letters testamentary or letters of administration of the estate to certain designated persons. Sections 5994, 5995-6005, Rev. Stat.
    His conduct in administering the.estate, to some-extent, is subject to the orders of the probate court,, and the court under its general jurisdiction, may direct his conduct and require him to file inventories'' and settle his account, but he is not an officer of the-court in the same sense as a receiver. He is not subject to the order of the court, but represents the-deceased, performing his contracts, taking into his possession the property of the estate and administering it as the law directs, under the control of the probate court, but not as the probate court directs. In re Estate of Seymour, 4 Dec., 450; 3 N. P., 81.
    
      Messrs. Gumble & Gumble, attorneys for defendant in error.
    Defendant in error (plaintiff in the common pleas court) sought to hold intact whatever interest, money or property was in the hands of Charles W. Haldy,. administrator with the will annexed of the estate of Odo Orlopp, deceased, that was due and payable, or that might become due and payable to plaintiff in error (defendant in the common pleas court).
    Counsel for plaintiff in error lay down as a proposition of law that attaching creditors can acquire no greater rights than the defendant. . This is undoubtedly true. We .do not seek to obtain any greater rights in the funds in the hands of said administrator than has the said Oscar Orlopp, but only seek to hold intact pending the determination of the merits alleged in the petition the interest that the said Oscar Orlopp has in said fund. Of course, if Oscar Orlopp is not entitled to any of the funds in the hands of Haldy, administrator, then surely we cannot obtain anything from this fund; but if Oscar Orlopp has an interest in said fund such interest may be attached.
    Suppose A. was indebted to B. upon a promissory note due January 1, 1906. Suppose, before the maturity of the note C., a creditor of B., began an .action against B. and made A. the garnishee under the attachment statutes. Remember, if your honors please, that B. could not enforce the payment of the note from A. until January 1, 1906, and yet C., a creditor of B., could compel A. to hold the money due on said note and also compel him to pay C.’s claim when the note matured. Secor v. Witter, 39 Ohio St., 218; Norton v. Norton, 43 Ohio St., 509.
    In the above hypothetical case a creditor has a certain right in the property of a third person before maturity which his debtor could not enforce before maturity. We are not seeking to compel the administrator to pay us the money now in his hands before the administrator files his account and distribution ordered, but we are seeking to hold intact 
      
      any interest that Oscar Orlopp may have in the hands of Haldy, administrator. Bailey et al. v. Childs et al., 46 Ohio St., 557.
    Plaintiff in error complains that by this attachment proceeding brought in the common pleas court, it deprives the probate court of its jurisdictional powers and hence there is an interference by the court of common pleas with' the administration of the estate in the probate court.
    We contend that such is not the case and that the authorities cited by counsel for plaintiff in error do* not fortify him in his contention.
    This case at bar does not in any wise embarrass: or delay the closing up of the estate of Odo Orlopp, deceased. The administrator can safely file his final account and close up the estate so far as the probate court is concerned whenever he pleases, and if the estate is indebted to Oscar Orlopp we are entitled to have it paid to defendant in error, provided, of course, that we can establish upon the trial of the case in the common pleas court that the facts set out in the petition are true.
    By this proceeding the administrator simply holds the. money that would be payable to Oscar Orlopp until the determination in the court of common pleas, as to who is entitled to the same. No one is delayed. No one is embarrassed, except Oscar Orlopp, who would be compelled to pay what he owes, providing, of course, that we can prove the allegations of the petition.
    As to whether or not the court of common pleas had any jurisdiction to test the right of who is entitled to the funds in the hands of an administrator,. we respectfully cite Bank of Cadiz v. Beebe, 62 Ohio St., 41; Pitkin v. Burnham & Co., 55 L. R. A., 280.
    There are many rights that must be worked out in the court of common pleas, notwithstanding the fact that the probate court has some jurisdiction of the subject-matter, but the court can readily see that in a case such as is under consideration here that if we were to wait in instituting attachment proceedings until the probate court ordered the administrator to make distribution of the funds in his hands, we might be prevented from obtaining any legal relief; and while it is no part of the record in this case and while we may be going beyond the proprieties of making a statement in this brief that is not in the record, yet we are certain that Oscar Orlopp has already indicated that after the attachment in this case was begun he assigned whatever interest he may have in said estate to a third person, so that if the attachment herein should not be sustained, then we would have no remedy, because the third person would claim the fund under the assignment of Oscar Orlopp, and that third person is no other than his own daughter. So that we insist that the only court that could possibly give us relief or a remedy for the protection of our rights is the court of common pleas. .
    It is true that before the enactment of statutes and in some states by express statutes an administrator could not and cannot now be garnisheed, but the law in Ohio is different.
    Your honors will observe that sections 5530 and 5531 are intended to reach money, property, or any interest in any fund that the defendant may be entitled to.
    
      An administrator is an officer of the court and comes within the provisions of section 5531.
    Does the plaintiff in error or his counsel claim that he has not an interest (whether present or contingent) in the property sought to be attached? Surely not, because if he had no interest he would not be here contesting our right to subject it to the payment of our claim.
    Section 5538 discloses that the common law rule is abrogated in Ohio, because it recites in substance that when once a person or officer is garnisheed all property in his hands is bound from the time of the • service of process.
    All of the law cited by our opponents applies to cases governed either by common law or by statutes wholly dissimilar to the statutes of Ohio.
    In our state the identical question raised in the case at bar was raised in the case of Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455. In Indiana the identical question has also been decided. Stratton et al. v. Ham et al., 8 Ind., 84.
    The answer of the garnishee in the case at bar is exactly like the one made in the Sampsell case. In fact, the case at bar and that in 9 Circ. Dec., 510 (17 C. C. R., 455), are so similar that a substitution of our parties for those in that case is all that is necessary. to make them alike.
   Crew, J.

In the present case the precise question presented by the record may be stated thus: Can an administrator with the will annexed, before an order of distribution is made of the estate he represents, be charged as garnishee in respect to property er funds in his hands that may ultimately belong to one named in said -will as residuary legatee? The clear weight of authority undoubtedly is that executors and administrators cannot be thus charged. Such has been the almost uniform holding of the courts of last resort except in those jurisdictions where the rule has been changed by express statutory enactment. And this rule has thus been generally so held and applied by the courts, whether it was sought to charge the executor or administrator on account of a debt owing from the estate to the defendant in the attachment suit, or on account of the latter’s being entitled to a distributive share of the estate as heir or legatee. 14 Am. & Eng. Ency. Law, 829. Indeed, so far as our examination of the authorities has enabled us to discover, the only state in which the garnishment of an executor or administrator is allowed before final settlement or order of distribution, in the absence of express statutory authority therefor, is the state of Indiana. It was held by the supreme court of that state in 1856, in the case of Stratton v. Ham, 8 Ind., 84, that the unascertained distributive shares of a decedent’s estate in the hands of the executor, are effects liable to the process of garnishment. This case has been much criticised and its doctrine almost universally repudiated in other jurisdictions. It was said of it by Lyon, J., in Machine Co. v. Miracle, Exr., etc., 54 Wis., 299: “This is an exceptional case, and in a learned and elaborate note appended to it numerous cases are cited and the unsoundness of the decision demonstrated on principle and by authority. ’ ’' It would seem to us but reasonable, therefore, that a rule so universally recognized by text writers and so firmly established by judicial decisions as is the rule, that an executor or administrator holding in his representative capacity cannot in the absence of express statutory authorization, in advance of an order of distribution, be held or charged as garnishee in respect to property or funds in his hands belonging to an heir or legatee, should not now, in the absence of statutory requirement, or other cogent and compelling reason, be disregarded or disturbed by us.

That the general rulé of law is- as above stated, counsel for defendant in error admit. But they contend that in Ohio the right is given by statute to so charge an executor or administrator, and that the existence of such right is shown and recognized by section 5531, Eevised Statutes, which section is as follows:

‘ ‘ Section 5531. The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim or other property of the defendant, or in which the defendant has an interest, shall bind the same from the time of such service, and shall be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law or the terms of the process in his> hands he would otherwise be bound to do.”

The circuit court in its opinion in the present case says: “Were it not for the section above referred to (section 5531) we are not prepared to say that a legacy could be attached especially if the amount was unascertained.” But they say: “We are of .the opinion that under section 5531 an undetermined legacy either in the hands of an administrator or 'executor may he garnisheed; that administrators and executors are included under the designation of other officer in the above section.” Upon this interpretation of this statute the circuit court predicated its judgment. It will be observed that this statute does not mention executors and administrators nor does it in terms provide or prescribe who may be served with garnishee process, it undertakes only as stated in its title, to define the effect of service of the process of garnishment upon public officers. Therefore to give to this section the construction and interpretation placed upon it by the circuit court is, we think, to thereby unduly extend its scope and give to it a potential effect neither warranted by its purpose and provisions nor intended by the legislature. Whether executors and administrators can in any proper sense be regarded as officers may well be doubted. Obviously they are not public officers as. are all those who are specifically named in section 5531, and the obligations and duties devolving upon them in their representative capacity are wholly dissimilar and unlike the duties to be performed by the officers so named and designated. But if it be conceded that executors and administrators fall within the designation “other officer” as found in said statute, it by no means follows that in an action against, the heir or legatee, the executor or administrator may, in advance of an order of distribution and while the estate remains unsettled, be held and charged as garnishee in respect to property in his hands unadministered. So long as the estate remains unsettled, or at least until order of distribution is made, the property'held by an executor or administrator as such, is in the custody of the law and does not vest in, or become the property of the heir or legatee. Until such time the executor or administrator is not the debtor of the heir or legatee, nor is it-certain that he is the custodian of any property belonging to him. In the due course of administration the debts, costs of administering the trust, and specific legacies, are to be first paid and until final settlement or order of distribution, there is not such certainty of fact that the executor or administrator holds or has “in his possession any money claim or property belonging to the heir or legatee, or in which he has an interest” as would warrant or justify holding the executor or administrator liable as garnishee even under an answer by him showing that there would probably be something due the heir or legatee upon the final settlement of the estate. The heir or legatee has no present right to, or interest in, the property and whether there will be any' amount due him on final settlement and order of distribution is matter of contingency.

When we consider, then, that to give section 5531 the force and effect claimed for it by counsel for defendant in error and allowed to it by the circuit-court, is to abrogate a well and firmly established rule of law, presumably known to the legislature at the time of the enactment of said section, we think we may well conclude that if the legislature had intended thereby to provide for and authorize the attachment of, and to allow garnishee process to issue against, executors and administrators, it would have named them in the statute and would not have left its purpose, and intention in that behalf to implication, or to be discovered only through the medium of judicial interpretation. The fact that the legislature did not specifically name executors and administrators in section 5531 or in apt language designate or describe them, clearly shows, we think, an absence of intention on its part to include them in its provisions.

The judgment of the circuit court is reversed and garnishee disclvarged.

Davis, C. J., Shatjck and Spear, JJ., concur.  