
    PEABODY v. HUTTON.
    Judgment, Fokm of.
    1. A judgment- that plaintiff (naming, him) have and recover of and from the- defendant (naming the individual) ■ is a personal judgment against said individual defendant, and is not a- judgment against the estate.of a deceased .- person of which defendant was administrator with the will . annexed.
    ON REHEARING.
    .1. A judgment against an. administrator as-such does not entitle the creditor to have the. property of the estate applied in discharge of his claim except in due course of administration.
    [Commenced in District Court November 5, 1891.
    Decided September 21, 1894.
    Rehearing denied April 4, 1895.]
    Ebeoe to District Court for Albany County. -Hon. W. Blake, Judge.
    
      The plaintiff, Alfred S. Peabody, brought this action against George L. Hutton personally and as administrator with the will annexed of Rowena H. Hutton, deceased, and Elizabeth Ann Hutton, to subject certain real property to the satisfaction of a.judgment against George L. Hutton. It was alleged in the petition that the former judgment was recovered against said Hutton personally and as administrator, upon a cause of action existing against Rowena H. Hutton in her life time and established as a legal claim against her. estate; that she died seized of certain lands in Albany county, Wyoming; that the executor named in her will having refused, to act, said George L. Hutton was appointed administrator with the will annexed; upon his giving bond to pay all the debts of said deceased, further proceedings in the administration were ordered dispensed with by the probate court, and the estate was declared vested in said George L. as sole legatee and devisee; that thereafter, he conveyed the lands in question through an intermediary to Elizabeth Hutton, his wife; George L. was the son. of Rowena. It was charged that said deeds were without consideration and fraudulent as to creditors; that George L. had no other property. The answer denied that the judgment was against the estate. It was admitted that it was based upon a cause of action wholly existing against Rowena H. in her lifetime, but denied that it was established as a legal claim against her estate. It was denied that the conveyances to Elizabeth were without consideration, or fraudulent; and alleged that when they were made George L. was solvent, and that since the death .of Rowena the property had been occupied by George L. and his wife as a homestead. The evidence taken on the trial was not preserved by bill of exceptions nor incorporated in the record. The court rendered special findings, which, so far as are material, were, in substance, that the judgment was rendered against George L. in his personal capacity; that he was sole legatee named in the will of Rowena, deceased; that the probate proceedings were as alleged in the petition; that there was no actual fraud in the conveyances to Elizabeth, but the consideration was nom-inál, and that 'George L: was not' then 'insolvent. Judgment •was thereupon entered in favor of defendants. The statute ,(E.- S,, sec. .2339)'provided that if one who is named as sole ^executor in a will, is also sole legatee, he may give a bond to .the State with a condition to pay all the-debts of the testator, :and in such, case shall not be required to return an inventory •or .take .the executor’s oath, and pto.' other administration shall be required.. Upon breach of the condition of such bond, suit .may.be instituted thereon at the-instance of any creditor in .the name of the .State, for the use of such creditor.
    W. E. Oortliell, for plaintiff in error.
    It was contended that the former judgment operated against Hut-ton in both his personal and representative capacity, and ’the following eases were cited. (Finna'gan v. Manchester, 12 la., 521;Dollins v. Pollock, 7 S., 904; Bolling v.. Spiller, 11 S., ,301; Whitney v. Pinney/ 53 N. W., 198; Landon v. "Townsherid, 19 N. E., 424; Austin v. Munro, 47. N. Y., '368; Yarrington v. Robinson, 141 Mass., 450.) The provision, of the statute as to giving bond did hot. apply to 'Hutton, as he was not named'as executor in the will. (Jones v. Roberts, 54 N. W., 917.) If it did, an execution could be levied upon property of which the testator died seized in the possession of a devisee. (Gore v. Brazier, 3 Tyng, '523-542; Collins v. Collins, 140 Mass., 502; Thomas v.' Bonnie, 2 S. W., 726; 2 Woerner on Adm., 491; Halsted v. Wester-!velt, 3 Atl., 270; Wellington v. Taylor, 1 N. J. Eq., 314; Thayer v. Einnigan, 134 Mass., 62; Flood v. Wall., 11 S. W., 6.) The property is held as a trust to pay debts of the testator. (Cameron v. Cameron, 82 Ala., 392; Hoffman vi Beard, '32 Mich., 222; Ridwell v. Whitaker) "I id., 473; Burus 'v. "Berry, 42 id., 176; Pierce v. Holzer, 65 id., 263.)
    
      G. W. Bramel and O. E. Carpenter, for defendants in error.
    The judgment, was personal; (Freeman Judg., secs- 48-50, ■156; 13 -Am. & Eng. Ency. L., p. 150; .Jones v. Harden, 16 ■§. W., 623.) Judgments of probate courts cannot be collaterally attacked. (Appel v. Kelsey, 20 Am. St. R., 183; ■Price t. Springfield, &c.,.101 Mo., 107; Morrell v. .Morrell, 20 Or., 96; Ex parte Sterns, 11 Am. St., 251; Kingman v. Paulson, 126 Ind., 507; Haines v.- Elinn, 18 Am. St., 785;. Mitchell y. Aten, 37 Kan., 33; Williams y. Haynes, 19 Am. St., 752; R. S., secs. 1083, 1969-1981; H. S. ReY. Stat., sec. 1907; R. S. Wyo., see. 40.) The estate of a decedent must he subjected to debts'only in the manner provided by statute. (2 Jones on L., 1174; id., 94.)
   Conaway, Justice.

This action was brought in the district court by plaintiff in error against defendants in error, to annul a conveyance through a trustee of realty from the defendant in error, George L. Hutton, to the defendant in error, Elizabeth Ann Hutton, his .wife; and to subject the realty so conveyed to sale upon execution to satisfy a former .judgment against George L. Hutton.

Much of the argument on behalf of plaintiff in error has been an effort to make it appear that such judgment is a judgment against George L. Hutton as administrator of the estate of Rowena' H. Hutton; that is, against the estate;- and that the conveyance of the realty in question should be set-aside in order to subject it to sale'on such judgment as a judgment against the estate of Rowena S. Hutton. The judgment is in the following words:

“It is therefore .ordered and adjudged that the plaintiff,, “Alfred S. Peabody, have and recover .of and from the defendant, George L. Hutton, the aforesaid sum of six hundred “and twenty-five and 67-100 dollars, together with his costs “in this action, taxed at thirteien dollars.”

' The district court finds that this is a personal judgment against George L. Hutton. This finding is clearly right. It is not a judgment against the estate of Rowena H. Hutton.

The sole remaining question is, has plaintiff in error shown error in the refusal of the district court to annul the conveyance of the realty in question and order it sold to satisfy the judgment against George L. Hutton?

The property consists of two lots in the town of Laramie with improvements. There -is no evidence in the record and no finding of the court as to their values. It is alleged in the answer of defendants in error, and denied in the reply of plaintiff in error, that ever since the death of RowenaH. Hutton the premises in question have béen occupied as a homestead by defendants in error, George L. Hutton and Elizabeth. Ann Hutton, and their children'. There is no.-evidence in the record and no finding of the court upon this point. It is alleged in the petition of plaintiff in error, and denied by the answer of defendants in error, that the conveyance attacked was.made .with intent ,on the part of defendants in error to hinder, delay and defraud the creditors of George L. Hutton. The .district court finds that there was no such intent. The record does not purport to give all of -the evidence upon these points.. For lack of evidence we can not review this finding of the district' court or its judgment. = •'

Judgment affirmed.

Clabk, J., and Scott, J., concur. GroesbecK,C. J., having announced his disqualification to sit in this case, the. other Justices called in .R. H. .Scott, Judge .of the- First Judicial District Court, to sit in.his stead.

ON PETITION FOR • REHEARING.

Conaway, Justice.

Plaintiff in error still contends that the judgment against. George L. Hutton, to satisfy -which he seeks to subject the property in controversy to sale upon execution, is -a judgment against George L. Hutton as administrator of the estate of Rowena H. Hutton, deceased. Also that the order of the probate court transferring this property to George L. Hutton, upon his executing a bond to pay the debts of the estáte; is void. If this'all be true- it results that there has been no administration of the estate, and no ascertainment' of its assets and liabilities. It does -not entitle plaintiff in error to have thé property in controversy, or any portion.of it, applied to the discharge' of his claim,' in whole or in 'part* except in due course of administration.

" Rehearing denied.

Potter and -Scott, JJ., concur.  