
    Overturf v. Gerlach.
    
      Compensation to administrator■ — Cannot be attached by creditor of administrator — Until' such compensation is allowed by probate court.
    
    Until allowed by the probate court, the compensation and commissions of an administrator or executor to which he may be entitled in the settlement of an estate, can not be attached or, by any similar process, appropriated to the payment of his claim by a creditor of such executor or administrator.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Scioto county.
    The plaintiff below as a judgment creditor commenced an action in the common pleas against his debtor, John W. Overturf and others, to have applied to the payment of his judgment the fees, commissions, etc., of Overturf as executor of certain estates, on the ground of the latter’s insolvency, and his inability to have satisfaction of his judgment. The-case having been appealed to the circuit court, was there first heard on demurrer to the petition, which was overruled. The defendants then answered and a trial was had on the issues; and a finding of facts made at the request of the defendant, Overturf, on A^hich the court rendered judgment for the plaintiff, and appointed a receiver. The finding of facts does not vary materially from the facts stated in the petition; so that if the petition is sufficient, the judgment should be affirmed, otherwise reversed.
    The petition states the recovery by the plaintiff against the defendant, Overturf, of a judgment for $1,954 and some cents, at the January term, 1895, of the court of common pleas; and that the defendant is insolvent and has no property on which an execution can be levied.
    It is then averred:
    “The said defendant, John W. Overturf, is, and for several years last past, has been one of the executors of the last will and testament of William A. Marsh, late of the county of Scioto, Ohio, deceased, duly appointed by and qualified in the probate court of the said county of Scioto, and the defendant, James S. Marsh, is co-executor of the said last will and testament, and moneys belonging to the estate of the said testator have been received and disbursed by them, Avithin the past two or three years, in excess of $60,000.00, and the said John W. Overturf, defendant, has earned large fees, commissions, compensations and reAvards in the course of the settlement and administration of the said estate, part of which are due and payable to him, upon the joint check, draft, order or demand of himself and his co-defendant, James S. Marsh, as executors of the said last will and testament of the said testator, and part of which will become due and payable when fixed, determined and allowed by the said probate court!
    “The said John W. Overturf, defendant, is, and for several years last past, has been one of the executors of the last will and testament of Daniel F. Connell, late of the county of Scioto, Ohio, deceased, duly appointed by and qualified in the probate court of the said county, and the defendants, George W. Connell and William A. Connell, are co-executors of the said last will and testament and they have acted as said executors since about the — day of August, 1891, and moneys belonging to the said testator have been received and disbursed by them, since the date of their said appointment in excess of $75,000.00, and the said John W. Overturf, defendant, has earned large fees, commissions, compensations and rewards in the course of the settlement and administration of the said estate, part of which are due and payable to him, upon the joint check, draft, order or demand of himself and his co-defendants, George W. Connell and William A. Connell as executors of the last will and testament of the said testator, and part of which Avill become due and payable when fixed, determined and alloAA7ed by the said probate court.
    “The said John W. Overturf refuses to apply the fees, commissions, compensations and rewards that have been earned by him, in the course of the settlement of the estate of the said William A. Marsh, deceased, and of the estate of the said Daniel F. Connell, deceased, upon the judgment, hereinbefore mentioned, and the said fees, commissions, cempensations and reAvards can not be collected upon execution, and the plaintiff has no adequate remedy at laAV by which he can collect the same and apply the same, when collected, upon the said judgment aforesaid.”
    He then prays for a finding of the amount due him; and that a receiver be appointed to receive and collect the “fees, commissions, compensations and rewards,” due Oyerturf in the administration of these estates, and apply them to the amount due the plaintiff; and for an order restraining their payment to Overturf as an individual.
    
      A. T. Holcomb, for plaintiff in error.
    
      T. G. Anderson, for defendant in error.
   Minshall, J.

The question presented in this case is whether the fees and compensation of an executor or administrator may be reached by a creditor during the administration of the estate. Generally, subject to some exemptions, any sum of money due a debtor may be reached in a proper proceeding by his creditor Avhere he refuses to apply it to the claim of the creditor. Section 5464, Revised Statutes. But the money must be due or to become due, subject to no other condition than the lapse of time, for the proceeding presupposes the power to order, without qualification, the payment of money due the debtor from another to the debtor’s creditor. In the case before us these conditions do not exist. Overturf, whatever the assets of the two estates may be, may not be entitled to the compensation and commissions provided by law at his final settlement. This will depend upon the judgment and allowance of the probate court. By reason of maladministration he may be entitled to nothing, and nothing may be allowed him. Hence, until one or the other of the two estates, on which he is administering, has been settled, or some allowance has been made him by the probate court, it cannot be said that anything is due him therefor.

It will be observed that there is no averment in the petition that any sum has been allowed the executor in either case; nor is there any such finding of fact. The statute, Sec. 6188, Revised Statutes, does not say that the commissions there provided, for shall be allowed the executor or administrator, but that they “may,” and this will depend upon the conditions before stated.

The defendant in error claims that the question is ruled by Newark v. Funk, 15 Ohio St., 462. But that case is quite distinguishable from this. There the attachment was of part of the salary of the marshal of the city, that he had permitted to accumulate in the treasury. It was due and payable. The court in deciding the case was careful to say: “We do not say, nor suppose, that a salary that is not yet earned, or for the payment of which the proper period has not yet arrived, can be garnisheed, or attached. It must be a subsisting claim, due or to become due, and for the ultimate payment of which the obligation to pay is fixed, without reference to future services or considerations.” There is, then, a marked difference in the two cases.

It might be further observed that to permit the fees and compensation of an administrator to be attached before they ha.ve been earned, or allowed by the probate court, would be productive of much embarrassment in the settlement of estates, and interfere with the jurisdiction of the probate court in their settlement. Such an attachment would probably require the removal of the executor or administrator, as without this being done, no court could determine but that at final settlement, it would be unable to do that justice between the estate and the administrator, which the circumstances might require.

Whilst the embarrassment that might affect the public service in the attachment of the salary of a public officer, was not regarded, in the case above cited, of such a grave character, as, on grounds of public policy, to forbid its adoption by a creditor, yet its impolicy in the case of administrators, for the reasons stated, is more apparent than in the case of public officers, and has not been sustained by any court. Without the appointment of a receiver, as was done in this case, the order on the administrator would be of little avail. This would be likely to result in a conflict between two courts, to some extent exercising jurisdiction over the same subject matter— the assets of the estate of a deceased person. The receiver acting under the order of the court appointing him, and the administrator under that of the probate court, which, in case of a conflict, should determine, whether a given sum should be paid the receiver, the common pleas or the probate court? Surely the common pleas could not, without invading the jurisdiction of the probate court, do so; so that the appointment of a receiver would be of no avail; and this shows that such a practice would not be well founded in principle; and yet, as before suggested, without the appointment of a receiver little or nothing could be accomplished.

Judgment reversed and petition below dismissed.  