1897. HUDSON V. WILBER. against the executor of the legatee as such. Stanton v. Holmes, 4 Day, 87. 359 utor or administrator himself, and he is pro- And where a will leaves a legacy to the testator's son, and another to his granddaughter, and before the payment of the legacies the granddaughter dies, leaving her father her sole heir at law, the legacy of the granddaughter in the hands of the executor is not subject to attach-equally assets whether in the hands of the repment for the debt of her father, under Mass. Rev. Stat. chap. 109, § 62, providing that any legacy due from an executor, and any other goods, effects, and credits in the hands of an executor, may be attached in his hands by the process of foreign attachment, as administration on her estate should have been taken out, and the legacy would have been an asset in the hands of her administrator, and furnishes no ground for charging the original executor. Stills v. Harmon, 7 Cush. 406. Nor can one to whom a testator devised and bequeathed all his property on the condition that he should pay off his debts and the legacies given by the will, appointing him executor of the will, be summoned as trustee of one of the legatees named in the will who was indebted on promissory notes which were over due in an amount larger than the legacy, where he accepted the devise and bequest made to him, but declined the trust of executor, and another was appointed administrator with the will annexed. Green v. Nelson, 12 Met. 567. And a father who, as administrator of his deceased son's estate, recovers a judgment against a railroad company for causing the son's death, has no property interest therein as administrator which is garnishable, as, under Iowa Code, 3731, it immediately descends to the father and mother of the deceased, and is not subject to the payment of his debts, and the administrator cannot be garnished on account thereof for his distributive share to satisfy a judgment against himself individually, as the effect of such a proceeding would only be to give the plaintiff another judgment for his claim. Casady v. Grimmelman, 108 Iowa, 77 N. W. 1067. As to the possession by the executor or administrator necessary to sustain the garnishment or trustee process, there is some contrariety of opinion. But it would appear to be settled that actual possession of the estate by a qualified representative would be necessary. Thus, a garnishee order nisi, obtained against the administrators of a testator to reach a sum ordered to be paid to a separate account in an administration suit, will not be enforced where the estate is being administered by the court, and has been turned over to the court. ens v. Phelips, 44 L. J. Ch. N. S. 689, L. R. 10 Ch. 417, 23 Week. Rep. 716. Stev And an intestate's goods or effects are not in the hands of his administrator as such so as to render the administrator liable as the trustee of one entitled to a distributive share in the estate under Mass. Rev. Stat. chap. 109, § 62, providing that any debt or legacy due from an executor or administrator, and any other goods, effects, or credits in the hands of an executor or administrator as such, may be attached in his hands by the process of foreign attachment, before the administrator has given bond for the discharge of his trust, where the statute provides that the administrator has no legal authority as such to take possession of decedent's Davis v. Davis, effects until he has given bond. 2 Cush. 111. Mississippi Rev. Code, 379, art. 24, however, providing that executors and administrators may be garnished for a debt due by their testator or intestate to the defendant, is applicable whether the assets are in the hands of the exec Thus, the fact that the funds for which an administrator is charged on trustee process came to his hands after the service of the process upon him in the original action cannot avail him as a defense against such trustee process. Jewett v. Morrison (Mass.) 55 N. E. 890. When a suit is begun by trustee process in Massachusetts, and an administrator is summoned as trustee, the lien takes effect from the service of the process, and reaches the whole interest of the debtor in the personal estate Jewthat may eventually come into his hands. ett v. Morrison (Mass.) 55 N. E. 890; Boston Bank v. Minot, 3 Met. 507; Mechanics' Sav. Bark v. Waite, 150 Mass. 234, 22 N. E. 915. And therefore, where an administrator of an insolvent estate, after service of process upon him at the suit of a creditor of one whom the intestate owed, sells the real estate for the payment of debts under a license granted for that purpose, and receives the proceeds of the sale, and collects debts due to the intestate, and a distribution among the intestate creditors is ordered, the administrator will be held as trustee of the attaching creditor to the full amount Bosof the dividend decreed to the creditor. ton Bank v. Minot, 3 Met. 507. And the fact that a fund from which the debts and legacies under a will are to be paid was to be derived in part from the sale of real estate, does not affect the liability of the executor or administrator to trustee process for a debt of the legatee under Me. Rev. Stat. 1841, chap. 119, §§ 43, 63, authorizing foreign attachment against executors and administrators, but providing that no person shall be adjudged a trustee unless the money due from him is at the time of the service of the writ due absolutely, and Cutwithout depending upon any contingency. ter v. Perkins, 47 Me. 557. So, a residuary fund in the hands of an executor to which a legatee was entitled on settlement of the administration under a will diLecting the sale of the real and personal property of the testator, is in his hands, within the meaning of Me. Rev. Stat. 1841, chap. 119, $8 43, 63, so as to warrant trustee process against him, though at the time of the service of the process the sales had not been made, Ibid. and the avails had not been received. Under the Vermont statute all property in the hands of an executor or administrator at the time of the service of process, which he comes into possession of before the disclosure, Parks v. Cushis subject to trustee process. man, 9 Vt. 320. An administrator will not be held, however, on trustee process for a debt of a person entitled to a distributive share, where the process was served after the probate court had granted a license to sell the whole real estate or such part as might appear to be most for the interest of all concerned, but before the sale, as, if the administrator should decide to sell only enough to pay the debts, the remainder would descend to the heirs, and not be affected by the process, while, if the heirs should advance money to pay the debts, no sale would be likely to be made, and therefore there would be no certainty that anything would ever come to the defendant from the sale. Beverstock v. Brown, 157 Mass. 565, 32 N. E. 901. And the liability of an alleged trustee must be determined by the state of things existing at the time the writ is served upon him, under Mass. Pub. Stat. chap. 183, § 22, Gen. Stat. chap. 142, § 22, providing that debts, legacies, goods, effects, or credits due from or in the hands of an executor or administrator as such may be attached in his hands by trustee process; and where, at the time of the service of a writ upon an executor, there was insufficient personal property of the estate to pay the debts, and afterwards the executor obtained leave of the probate court to sell real estate for the payment of the debts, and he made such sale and paid the debts, and had a surplus remaining, and paid over to the defendant in the trustee process, who was a devisee and heir at law, his share of the surplus, he is not chargeable as trustee for the sum so paid over, as, until the debts were paid, the devisee had no claim against the executor. Capen v. Duggan, 136 Mass. 501. In the above case, Holbrook v. Waters, 19 Pick. 354, and Wheeler v. Bowen, 20 Pick. 563, supra, II. C, were distinguished upon the ground that in those cases the only uncertainty was as to the amount; and Boston Bank v. Minot, 3 Met. 507, supra, was distinguished and explained, the court saying that the debt which is attached in the case at bar was at the time the writ was served a fixed liability of the estate and of the executor, who was bound to pay it out of the assets from whatever source they might come. In Case Threshing Mach. Co. v. Miracle, 54 Wis. 295, 11 N. W. 580, however, it was held that where an executor at the time he is served with process as garnishee is not liable thereto because no final order for the distribution of the estate had been made, he is not rendered liable by the circumstance that the garnishee action remained in court until after the order of distribution. And in Fowler v. McClelland, 5 Ark. 188, it was held that an administrator against whom an allowance has been made by the probate court in favor of a creditor of the estate, and who has been ordered to pay him a pro rata dividend, is not liable to garnishment at the suit of a creditor of that creditor in respect to such allowance, either individually or as an administrator. But see, supra, Boston Bank v. Minot, 3 Met. 507. And this is the rule though no possession had in fact been taken by him, where, under the law, properties of the wife became upon marriage the absolute property of the husband. Parks v. Cushman, 9 Vt. 320. And the interest of a husband in a legacy accruing to his wife during the coverture is subJect to be attached in the hands of the executor by trustee process at the suit of a creditor of the husband, under Mass. Rev. Stat. chap. 109, § 62, providing that any debt or legacy due from an executor or administrator, and any other goods, effects, and credits in the hands of an executor and administrator as such, may be attached in his hands by the process of foreign attachment, the fact that the legacy was given to the wife not diminishing the liability of the trustees, as all property which accrued to a wife forthwith vests in the husband, either absolutely or conditionally. Holbrook v. Waters. 19 Pick. 354. So, under that rule the rights and interest of an absent debtor in and to the share of his wife In the personal estate of her father in the hands of the executor are liable to be proceeded against and charged by the creditors of such debtor by way of foreign attachment. Vance v. McLaughlin, 8 Gratt. 289. And a wife's interest in a recognizance in the orphan's court, given to pay to the heirs at law of a decedent, of whom the wife was one, their several shares of the valuation of the decedent's real estate, may be attached for the debt of her husband. Babb v. Elliott, 4 Harr. (Del.) 466 But the interest of a wife in her ancestor's estate cannot be held by trustee process for the debts of her husband, where the extent of her rights have not been ascertained, and there has been no decree of distribution. Short v. Moore, 10 Vt. 446. And an administrator having in his hands a distributive share of an estate which accrued to a married woman who is summoned as trustee in an action against her husband will be discharged if the husband died while the action was pending, as nothing short of a judgment will amount to such a reduction to posses sion as to bar the wife's right to survivorship. Strong v. Smith, 1 Met. 476. And the commencement of proceedings by foreign attachment by a creditor to reach the rights and interests of the absent debtor in and to the share of his wife in the personal estate of her father in the hands of an executor is not in legal contemplation equivalent to the reduction to possession by the latter of the thing sought to be charged: it only creates a lien in favor of the creditor, which is liable to be defeated by the husband's dying pending the proceeding leaving his wife surviving him, so that the attachment against the executor would IV. Garnishment of husband's interest in wife's thereby be defeated. Vance v. McLaughlin, 8 legacy or distributive share. Under the common-law rule now generally superseded by statute, vesting all property owned or accruing to a wife during coverture In her husband, the general rule was that a legacy or distributive share to which the wife became entitled during the marriage was subject to garnishment or attachment in the hands of the executor or administrator for the debts of the husband. Thus, the interest of a husband in a distributive share of an intestate estate to which his wife is entitled, though not reduced to possession, may be attached by trustee process for his debt, where the law is that the interest of the husband, to the extent he possesses it, may be seized by his creditor, as the trustee process operates as a statutory assignment of the interest of the husband. Wheeler v. Bowen, 20 Fick. 563; Parks v. Cushman, 9 Vt. 320. Gratt. 289. And it was held in Pennsylvania that a husband has but a naked power over a bequest to his wife, and one which he is not obliged to exercise in favor of his creditors, and that such a bequest is not subject to attachment for the husband's debt, or to garnishment therefor in the hands of the executor. Dennison v. Nigh, 2 Watts, 30. See also Benton v. Dutcher, 8 Day, 440, infra, VI. V. Rule where the representative is the debtor. The fact that the executor or administrator is himself the principal debtor does not, as a general rule, at least outside of Iowa, affect his liability to garnishment with respect to a legacy or distributive share to which he is entitled. Thus, a plaintiff in garnishment may attach funds due from an estate to the representative In the above case, the court refused to follow Dudley v. Falkner, 49 Ala. 148, supra, on the ground that in Iowa the judgment in an ordinary garnishment proceeding is regarded as a personal one. of such estate who is the debtor of such plain- trix owed to herself, as both the statutes and tif, though the representative and the garnishee | common law upon the subject contemplate that are the same person, as in contemplation of there are three persons in every garnishment law the individual and the executor are two proceeding. Shepherd v. Bridenstine, 80 Iowa, different persons. Dudley v. Falkner, 49 Ala. 225, 45 N. W. 746. 148; Brown v. Wiley, 107 Ga. 85, 32 S. E. 905. And a judgment rendered in favor of a creditor of a distributee in a garnishment proceeding against the administrator of the estate of a deceased person, who is the debtor and is interested as a distributee, is conclusive upon the administrator where it appears that he filed an answer denying any indebtedness, and, on a traverse thereto, the issue was found against him, and it is prima facie valid and binding upon the sureties on the administrator's bond; and the burden rests on the administrator, in an action thereon brought by the plaintiff in such judgment, to prove the contrary. Brown v. Wiley, 107 Ga. 85, 32 S. E. 905. And an attachment execution issued to attach a legacy due to the defendant will not be dissolved merely because the defendant himself is the executor of the will under which he is entitled to the legacy, and is as such executor summoned to answer as garnishee. Union Nat. Bank v Fagan, 34 W. N. C. 20; Pleasants v. Cowden, 7 Watts & S. 380. But the party should plead to it, and then raise the question whether the debt was one of the estate, or belonged to the executor himself. Pleasants v. Cowden, 7 Watts & S. 380. And a debt of a testator for which the executor, who was also a residuary legatee, had taken a note in his own name may be attached by process of execution against the executor for the payment of his own debt, where it appears that a number of years had passed since the death of the testator, and that there was an abundance of estate besides to pay all debts and legacies. Ross v Cowden, 7 Watts & S. 876. And a debr due to a party as the executor and residuary legatee and devisee in his father's will may be attached under Pa. act of assembly of June 16, 1836, and applied toward the payment of a judgment obtained against him for a debt due from him in his own right, where it appears that there were assets, both real and personal, belonging to the estate, abundantly sufficient to satisfy all the debts thereof, and all prior legacies given by the will, so that the debt attached, if recovered by the defendant himself, would belong to him absolutely, and he would have a perfect right to apply it to the payment of his own debts, or to dispose of It as he pleased Pleasants v. Cowden, 7 Watts & S. 379. In the above case, Shewell v. King, 2 Whart. 332, 30 Am. Dec. 266, supra, II. e, was distinguished upon the ground that there the legatee was not entitled to receive the legacy without first giving the executor a refunding bond. But a debt due to an administrator, who is himself sole distributee, is not subject to attachment for his private debt, or to garnish ment in his hands as administrator until settlement of his administration account. Bank of Chester v. Ralston, 7 Pa. 482. But see Pennsylvania cases, supra, II. c, indicating a different rule under subsequent statutes. And under Iowa Code, § 2976, providing that an executor may be garnished for money due from the decedent to the defendant, the owner of a judgment against his debtor in her individual capacity cannot maintain a proceeding for garnishment against her as administratrix of her deceased husband on the claim that she, as administratrix, owed a debt to herself as an Individual, the property sought to be reached being money which the defendant as administra So, the general rule has been held to be that commissions of an executor or an administrator are deemed to be appropriated as they are earned, and they are not subject to attachment or garnishment at the suit of his judgment creditor in his own hands or in those of his coexecutors. Adams's Appeal, 47 Pa. 94. But in Dudley v. Falkner, 49 Ala. 148, it was held that an executor may be summoned as garnishee under execution on a judgment against him in his individual capacity to reach an indebtedness due him from the estate for services as executor. So, an administrator to whom a distributee of the intestate owes a personal debt cannot sue his debtor personally, and summon himself as executor of the estate of the intestate as trustee, and cannot be charged as such trustee in such a proceeding Hoag v. Hoag, 55 N. II. 172. See also Glidden & J. Varnish Co. v. Joy, 8 Ohio, C. C. 157, supra, II. b; Green v. Nelson, 12 Met. 567, supra, III.; Casady v. Grimmelman, 108 Iowa, 77 N. W. 1067, supra, III.; Zimmerman v. Briner, 50 Pa. 535, infra, VI. VI. Effect of trust conferred upon representa tive. An executor or administrator with the will annexed, upon whom the will confers an active trust, is not subject to garnishment or trustee process or attachment with reference to a debt owing by a devisee or legatee, and the question whether or not a trust is an active one which will prevent a garnishment or attachment seems to depend upon whether or not the representative is required to hold and manage the estate, or exercise a discretion with reference to its disposition, or perform some other act with reference to it other than merely to turn it over to the persons entitled to it. Thus, a statute providing that debts, legacies, goods, effects, or credits due from or in the hands of an executor or admininstrator as such may be attached in his hands for a debt of an heir at law or legatee is not applicable where, in addition to the ordinary powers and duties of an executor, a trust is created by the will, or arises by implication of law out of the terms in which the personal estate is disposed of, by which the title to the property is vested in executors as trustees to hold, manage, and invest the same for the use and benefit of a cestui que trust for life. Carson v. Carson, 6 Allen, 397. And a fund in the hands of an executor, consisting of the proceeds of property sold under a devise directing such sale and that the proceeds should be held for the benefit of the wife and children of the testator, one third of the interest of the real estate to be paid to the wife during her natural life yearly by the executor, is held by him strictly as a trustee, and he cannot be summoned to answer as a garnishee of his cestui que trust. Plunkett v. Le Huray, 4 Harr. (Del.) 436. So, a will giving to the husband of the testatrix the proceeds of her farm which was to be sold, to be prudently used if needed by him for his support during the remainder of his life, or if not used, or if any should be left after the expenses of his sickness and funeral are paid, the balance to go to their children, must be regarded as creating a trust, and the proceeds of the farm cannot be taken by foreign attachment in the hands of the executor to pay a general indebtedness of the husband. Chase v. Currier, 63 N. H. 90. And the interest of a beneficiary under a will empowering the executor to hold, use, and employ and expend a designated sum of money as he shall deem proper for the benefit of such beneficiary, and empowering him to invest it as he shall deem proper, and providing that any part left after his decease shall pass to another, cannot be attached in the hands of the executor and trustee by trustee process in an action against the beneficiary. gin, 58 N. H. 155. to be used by her for the support and education of their children, and allowing her to advance, at her discretion, a portion of the estate among the children, and to assist any one of them who through losses or misfortune might be in waut, is too uncertain, contingent, and indefinite to be subject to attachment in the hands of the executor by a creditor of the child. Sturm v. White, 8 Baxt. 197. And the reversionary interest in bank stock of one of the children of a testator who bequeathed to his wife the use of thirty shares in the Oxford Bank, said shares at her decease to be equally divided between his heirs, is contingent and not liable to be attached as his property in the hands of the executor, as, unBanfield v. Wig-til the death of the mother, it cannot be ascertained who will be the heirs of the testator at the time the remainder will become due and payable. Rich v. Waters, 22 Pick. 563. And the executor and trustee under a will is not liable under trustee process as trustee of one of the beneficiaries under the will and of the husband of the other, where the will gave the testator's property to him in trust to annually expend the income thereof, and so much of the principal as should in his judgment be necessary, at his discretion, for the proper support of the testator's two daughters, where the trustee had invested the funds in a mortgage on real estate, on which interest was payable annually, though he had received interest which was not called for by the persons entitled thereto, and which had remained and accumulated in his hands. Hinckley v. Williams, 1 Cush. 490, 48 Am. Dec. 642. Nor is an executor under a will chargeable in his individual capacity as trustee on account of money received for a legatee in the performance of his duty as executor, where the will gave a sum of money to the legatee to be paid by the executor within six months, and gave certain real estate absolutely and the use and income of the residue and remainder of the estate, both real and personal, to such legatee for life, and the executor retained the property of which the legatee was to have the income, and there had been no accounting in the probate court and no order of distribution, and where, though giving the legatee the management of the personalty, the trustee had not promised to pay the beneficiary the amount in his hands. Husted v. Stone, 69 Vt. 149, 37 Atl. 253. In the above case, Hoyt v. Christie, 51 Vt. 48, supra, II. b, was distinguished upon the ground that in that case the estate had been fully settled and the share of the defendant therein fully determined, and the money which constituted the defendant's share had ceased to be the money of the estate and had become the money of the defendant. So, where a testator by his will either in express terms or by legal implication gave the income of his personal estate to one for life, and on his or her decease to another, or left it on the termination of the life interest undisposed of, so that it would then go to his heirs at law, and did not in terms place it in trust with any trustee other than the executor, it is the province and duty of the executor to hold it and pay over the income from time to time to the legatee for life, and at the death of such legatee to pay over the principal to the person who may by the will be entitled to it, or, if not disposed of by will, to distribute it among the heirs at law; and in such cases executors are not chargeable under trustee process at the suit of a creditor of one of the heirs at law, as they do not hold the property merely in their capacity as executors. Carson V. Carson, 6 Allen. 397. So, the process of foreign attachment contemplates an uninterrupted and continuous possession by the garnishee from the date of the attachment to that of the demand on execution, and where, under a will, a paramount right of possession exists in favor of the holder of a life estate, and it is uncertain whether after her death the enjoyment of the property will pass to the attachment defendant, and the executor has no power to hold enough of the personal property and money of the estate to pay the legacy until the happening of contingent events, the interest in remainder cannot be secured to a creditor by that process. Smith v. Gilbert, 71 Conn. 149, 41 Atl. 284. And a will authorizing and directing the executors to sell the real estate of the testator and to pay over rents arising therefrom from the time of his death until the time of the sale, to designated persons as bequests, creates an active trust, and a sum of money in the hands of the executors from that source payable to one of the legatees, cannot be reached to satisfy a judgment creditor of such legatee. Force v. Brown, 32 N. J. Eq. 118. Nor is the body of a fund created by a will giving moneys to a trustee in trust to pay the interest at his discretion to a beneficiary, and in case of his death without issue to pay the principal to the children of another, subject to attachment by a creditor of the beneficiary, and it cannot be garnished in the hands of an executor. Still v. Spear, 45 Pa. 168. And the interest of a child under the will of his father directing the land to be sold by his executor after the death of his widow, and the proceeds distributed among his three children, cannot be attached in the hands of the executor as garnishee during the lifetime of the mother for a debt of the child, as at that time all the garnishee has in his hands is a naked and contingent power to sell the testator's land. Iless v. Shorb, 7 l'a. 231. So, an annuity given by a will is not bound by an attachment execution issued upon a judg ment against the annuitant and served upon the executor by whom the annuity is to be paid as garnishee, where it is not yet due. Cany v. Day, 2 Miles (Pa.) 412. And where money is in the hands of an executor payable to a legatee in ten equal annual payments only so much of it can be held upon trustee process against the executor as is due and payable at the time the plaintiff takes his judgment. Palmer v. Noyes, 45 N. H. 174. Nor can the executor of a deceased person be summoned as trustee in foreign attachment with reference to a legacy to the wife of the judgment debtor payable in three and six years from the testator's death at the suit of a creditor of the husband. Benton v. Dutcher, 3 Day, And the interest of one of seven children of a testator under his will giving his whole property to his wife, who was the executrix thereof, 440. And an executor and trustee under a will providing a fund of $25 per month for the support of a son, and placing it in the hands of the trustee for the son, is not subject to process with reference to the fund for the payment of a debt for which the cestui que trust or beneficiary was surety, under the Kentucky statute of 1796, making estates of every kind holden in trust subject to the like debts and charges of the person for whose use or benefit they are holden, as if he owned a like interest in the thing holden as he owns in the uses or trusts thereof. Pope v. Elliott, 8 B. Mon. 56. And Ky. act 1796, 1 Stat. at L. 91, providing for reaching debts due by a resident to a nonresident or absent debtor, or effects of the latter in possession of the former in the state, and act 1837, 3 Stat. at L. 12, extending the remedy so as to embrace lands as well as debts and effects, do not authorize proceedings against anything in the hands of a resident creditor of the absent debtor but lands, debts, or effects, and do not embrace a monthly support in the hands of an executor and trustee provided in a will for the absent debtor. Ibid. But a legacy to one or two executors of a will, payable out of real estate of the testator to be sold by them after the death of the testator's widow, may be attached by a creditor of one of the executors in their hands, and recovered. Zimmerman v. Briner, 50 Pa. 535. And while the will of a testatrix giving to her brother a designated sum, the said sum to be received, held, and applied by her executors, and directing the lawful interest or proceeds of the same to be annually paid over to the legatee, places the principal of the legacy beyond the reach and control of the legatee or his creditors, it leaves the interests and proceeds which are to be paid annually entirely within his power, so that the executrix might be garnished with reference thereto for his debt. Mathews v. Park, 1 Pittsb. 22. And a will giving the residue of the testator's estate to executors to receive and collect rents, issues, profits, and dividends thereon from time to time, and to pay, apply, and dispose of the rents, issues, interests, and dividends to his son, does not protect the income from attachment execution, or the administrators from garnishment with reference thereto. Harrison v. McCana, 11 W. N. C. 239. So, in Park v. Matthews, 36 Pa. 28, it was held that $5,000 bequeathed by a testatrix to her brother to be received and held by trustees, the interest or proceeds to be annually paid over to the legatee for his use and benefit, is attachable in the hands of the executors, because it is his in law and equity, and if the trustees were to withhold it he could sue them thereon. And in Hardenburgh v. Blair, 30 N. J. Eq. 645, it was held that a legacy in the hands of an executor, held upon no other trust than to pay it over to the legatee, may be reached by a judgment creditor of the legatee, but where it is given to executors with directions to invest it and pay the interest and income to the legatee during life at such times and in such manner and amounts as the executor shall deem prudent, the fund is held in trust, and neither the principal funds nor accumulations of interest can be reached by a judgment creditor; but this was an action in equity and not in garnishment. So, an attachment and garnishment will not bind funds in the hands of an executor or administrator for the payment of a debt of a legatee, where the legacy was given upon the express condition that the funds should not be liable to be attached or seized for the debts or moneys which the legatee might cwe at the time of the testator's decease, but that the whole amount should be paid directly to her by the executor. Beck's Estate, 133 Pa. 51, 19 Atl. 302. And where a testator by his will creates a trust for the benefit of his son, and provides that the income of his estate in the hands of his executor and testamentary trustee is not to be subject to attachment or sequestration for any debts or liabilities of his son, the fund cannot be attached in the hands of the executor and trustee under a decree of alimony obtained against the son by his wife, who had obtained a divorce from him. Thackara v. Mintzer, 100 l'a. 154. And funds in the hands of an executor and surviving trustee in a will devising the testator's residuary estate in trust to lease and demise, and directing the investment of the personal estate and the collection of the rents, income, and profits, and providing that the income of the estate was not to be subject to execution attachment or sequestration for any debts or liabilities of his son, the cestui que trust, cannot be reached and seized under a warrant directed to the guardians of the poor for the support of the wife of the son whom he had deserted. Guardians of the Poor v. Mintzer, 16 Phila. 449. But a devisor's intention to withdraw his gift from the devisee's creditors, which will defeat a garnishment of the devises in the hands of executors and trustees, will not be presumed from the surrounding circumstances of which the creditor has no record notice, where such intention is not expressed in, or necessarily implied from, the terms of the instrument creating the trust. Pickens v. Dorris, 20 Mo. App. 1. In Smith v. Moore, 37 Ala. 327, however, it was held that a sum of money bequeathed to an executor or trustee in trust for a debtor, not subject to any debts he may have contracted before, and for his comfort and support may, under Ala. Code, § 2956, be subjected to equitable attachment for the payment of his existing debts. It is not intended in the above subdivision to go into the question of trusts or the garnishability of trustees in general. The discussion is intended to be confined to the garnishment or executors or administrators with the will annexed, upon whom a trust has been conferred by the will. VII. Set-off. Set-off is allowed in case of garnishment or attachment of legacies or distributive shares in the hands of executors and administrators with the same liberality as in ordinary cases, the rule apparently being that the executor or administrator can interpose any set-off, or make any defense, against the substituted creditor that he might have interposed or made against the legatee or distributee. Thus, an attachment creditor of a legatee under a will can have no greater rights against the executor summoned as a garnishee than the legatee himself would have if there were no attachment, and the garnishee is left with all the right of set-off, defalcation, or defense incident to the relations of the parties existing at the time of the service. Fogg v. Carroll, 18 l'a. Co. Ct. 434. The attachment of a legacy in the hands of an executor or administrator as garnishee merely transfers to the plaintiff in the attachment the responsibility which before was due to the legatee, and if, therefore, the executor had a right of set-off against the legatee, he retains it against his substituted creditor, and if for any reason the legatee could not enforce pay |