Vance v. McLaughlin's , 8 Va. 289 ( 1851 )

Daniel, J.

delivered the opinion of the Court.

The Court is of opinion, that the rights and interests of the absent defendant Collins in and to the share of his wife in the personal estate of her father in the hands of the executor William McLaughlin, were liable to be proceeded against and charged by the creditors of said Collins, by way of foreign attachment; and consequently that the proceedings in this case were properly commenced.

The Court is however also further of opinion, that the commencement of such proceedings by the creditor of the husband are not in legal contemplation equivalent to the reduction into possession by the latter of the subject sought to be charged, but creates only a lien in favour of the creditor, which is liable to be defeated by the husband’s dying pending the proceeding, leaving his wife surviving him. That by the death of Collins during the progress of the suit the whole right to his wife’s share in the property or balance in the hands of the executor of her father devolved on her; and that the right of the creditor Yance to have his demand satisfied out of it, terminated with the life of his debtor.

The Court is also further of opinion, that though it was not regular to render a final decree without first reviving the cause against the representative of Collins, or to give a decree for costs in favour of Daniel McLaughlin as administrator of William McLaughlin executor of Daniel McLaughlin, yet that these irregularities do not under the circumstances of the case constitute sufficient grounds for the reversal of the decree.

The Court is therefore of opinion, to affirm the decree with costs &c. to the appellee.

Decree affirmed.