
    J. Evans Gittings, Appellant, v. William H. Russel, Respondent.
    First Department,
    July 12, 1906.
    Attachment against property of non-resident served by publication — when levy insufficient to support entry of judgment — when title to deceased wife’s personalty vests in husband — title to deposit made by husband as administrator.
    When a summons is served upon a non-resident by publication no judgment can he entered against him on default for failure to appear unless a levy has been made under an attachment against his property.
    When a married woman owning a separate estate dies without descendants and without having disposed of her property dzzring her lifetime or by will the title to her pei'sonal property vests in her husband jure mariti irrespective of administration on her estate. Thus, the wife’s money deposited in a hank vests in her husband zznder such circumstances although the deposit is made by him as her administrator, and it is subject to attachment on a judgment against him.
    But when such money is deposited in the name of the husband as his wife’s administrator and can only be drawn on a check countersigned by a third person, the notice of attachznent served on the officers of the hank must point out the property sought to he attached and show that the defendant is the real owner thereof by operation of law, or the officers of the hank are justified in refusing to recognize the levy and the same is insufficient.
    A judgment against a non-resident entered ozi his default in appearing after service by publication will he opened because of such insufficient levy.
    The fact that verbal information as to the money sought to he attached was given to the officers of the bank is immaterial as they are not required to look further than the wzitten notice of attachment.
    Appeal by the plaintiff, J. Evans Gittings, from an order of the Supreme Oonrt, made at the Sew York Special Term and entered in the office of the cleric of the county of New York on the 26th day of March, 1906, affirming a former order which vacated and canceled a judgment theretofore entered in the action in favor of the plaintiff.
    
      Henry M. Earle, for the appellant.
    
      Jacob F. Miller, for the respondent.
   Patterson, J.:

■ The defendant was served with the summons herein by publication, and a warrant of attachment was procured against his property. He was a non-resident, and not appearing in the action judgment was entered against him by default. By section 1217 of the Code of Civil Procedure it is provided that a judgment shall not be rendered in such case unless a levy has been made under an attachment. On the application for judgment it appeared that on the 15th of March, 1905, the sheriff proceeded to levy, under a warrant of attachment issued in this action, upon moneys on deposit in the Trust Company of America, which moneys stood on the books of that company in an account entitled “ Estate of Kate B. Russel, W. H. Russel, Administrator.” Kate B. Russel was the deceased wife of William H. Russel, the defendant herein. The moneys so on deposit were payable only when a check therefor was drawn on the trust company, countersigned by the Rational Surety Company. The sheriff served upon the trust company a notice and a copy of the warrant of attachment. In the notice it is stated that the sheriff was commanded to attach all estate, real and personal, including money of the defendant, and to take into custody all property of the defendant then in the hands of the trust company, or which might come into its possession or under its control. Debts due the defendant were also attached. The notice contained a demand that the trust company deliver to the sheriff all such moneys, etc., and that the trust company furnish a certificate as required by the Code of Civil Procedure. The trust company certified that it had no moneys or property of the defendant. After the judgment was entered, the defendant moved to vacate it, and that motion was granted. This appeal is taken from the order entered thereupon.

The question is, whether an effective levy was made. Its solution depends in the first instance upon the ownership of the moneys on deposit in the trust company, or of the debt of that company to the depositor. At the time of the service of the notice by the sheriff, the moneys appeared, by eiit-ries on the books of the trust company, to be those of an estate of which the defendant- was administrator, but thereafter and oil the 27tli of March, 1905, the accounts of Russel, as administrator, were settled by the surrogate and a decree was entered that Russel, as administrator, pay to himself, as sole beneficiary and next of kin, the sum of $18,023 remaining in his hands; but before the attachment was issued and on the 13th of March, 1905, the surrogate decreed, in a proceeding imposing a transfer tax on the property of Mrs. Russel, that William II. Russel was her husband and the sole beneficiary of her estate. When the accounts were settled and passed and the decree of March 27,1905, was made, the moneys still stood on the books of the trust company to the credit of the estate of which the defendant was administrator. It is claimed by the appellant that the fund, notwithstanding it stood in the name of the estate of Kate B. Russel, was the property and always since the death of Mrs. Russel had been the property of the defendant, she having been his wife and having had no children, and, therefore, her husband was entitled to the whole of her personal estate, and that it vested in him immediately she died and that he was obliged to account to no one but himself. But it is also conceded that the attachment, if effective, was of property or rights not capable of manual delivery.

.It is undoubtedly the rule of the common law, which exists in this State, that where a married woman, possessed of separate personal estate, dies without having made disposition of it during her lifetime or by way of testamentary appointment, the title thereto vests in the surviving husband and cannot be affected by the granting of administration upon her estate, (Robins v. McClure, 100 N. Y. 333, and case cited.) It seems that under the case cited, the money on deposit belonged jure mariti to the defendant. While it may have been within the reach of creditors and subject to debts of the decedent, the right to his deceased wife’s personal property was in the defendant. But there were no debts of the wife, and it is immaterial whether the nominal title was in him individually or as administrator (Robins v. McClure, supra) so far as ownership is concerned.

We are of the opinion that the money on deposit in the trust company belonged to the defendant, or if the mere relation of debtor and creditor existed, as in the ordinary case of a depositor with a bank, that then the debt of the trust company to the depositor was in law one owing to the defendant. But the question remains of the effectiveness of the levy under the attachment served upon the trust company. The notice given does not contain a specification of any particular property belonging to the defendant. It does not in terms, or otherwise, point.out that the money standing in the account to the credit of Mrs. Russel’s estate is the property or money or claim or debt sought to be attached. But on the application for judgment it was made to appear that at the time the warrant of attachment was served upon the trust company its officer was informed that the plaintiff was seeking to attach the money on deposit to the credit of the Russel estate, and that the president of the company declared that the fund could not be attached; that it was not. attachable, and that he would not recognize the attachment process. Nothing can be inferred in aid of the levy from the mere fact that verbal information was given to one of the officers .of the trust company that the fund sought to be attached was the money standing to the credit of the Russel estate. The officers of the trust- company were not obliged to look further than the notice to ascertain what property was sought to be attached; and as said in Hayden v. National Bank (130 N. Y. 149): “ It can be of no consequence what knowledge the holder of the attached property may have as to the particular property intended to be attached, unless such knowledge is derived from the notice required by the statute to be served upon him, and unless there is a substantial compliance with the statute title to .the property is not divested and the holder thereof remains liable to the owner.” But it is true, also, that the notice need not contain a specification of the particular property sought to be attached when such property is incapable of manual delivery. In such a case a general notice of the sheriff that he attáches all property, debts and effects, and all rights, etc., in the possession or under the control of the individual served, is sufficient. (O'Brien v. Mechanics & Traders' Fire Ins. Co., 56 N. Y. 52.)

The notice served by the sheriff in the present case would have been ample and sufficient if the money on deposit or the debt of the trust company to the depositor had been in such a condition that from such notice itself the trust company could have identified it as belonging to the defendant or as something in which he had a property right, or in which he was interested, but there was nothing whatever in the notice to inform the trust company that the moneys represented in the account did belong to the defendant. That account not only stood upon the books of the company in the name of an estate and as a fund belonging to an estate, but it was subject to withdrawal only by the representative of that estate and a third party having joint control over the moneys embraced in the account. From the form of the account the trust company could not have connected the defendant individually with the deposit. The trust company could not gather from the notice served knowledge of the right and title which by operation of law was conferred upon the defendant to his deceased wife’s property and was'entitled to stand ■upon its apparent contract relationship to a depositor until some notification was given to it in due legal form that the defendant in the attachment proceeding was the real owner of the deposit or that the attaching creditor so claimed.

Under the peculiar facts of this case we conclude that the notice served upon the trust company was insufficient, that an effective levy was not made, and that, therefore, the order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed. 
      
      See Code Civ. Proc, § 649, subd. 8,— [Bep.
     