Strong's v. Bass

The opinion of the court below was delivered by

Lowrie, C. J.

The attachment of this legacy does not alter the quantity of the rights and duties of the parties in relation to it; but only transfers to the plaintiffs the responsibility which before was due to the legatee. No essential element of the relation between the executor and the legatee is affected by the proceeding ; it merely substitutes the legatee’s creditor instead of the legatee himself. If, therefore, the executor had a right of set-off against the legatee, he retains it against his substituted creditor. If, for any reason, the legatee could not enforce payment of the legacy without first or simultaneously performing some other duty to' the estate, his attaching creditor can reach the legacy only on the same conditions. It is the right and the relations, as they exist at the time of the attachment, that are transferred, and these cannot be changed by the original parties, after the attachment. This shows that the exception to the evidence rejected cannot be sustained.

Now we cannot doubt that the fact that the legatee is a debtor of the estate to an amount exceeding his legacy, is a complete bar to any recovery of the legacy. And we cannot possibly presume that. the testator meant, by his legacy of $1000, to give more than double that amount. We should go far beyond the province of interpretation, if we make a legacy good for its amount, and also good for the extinguishment of any amount of debt besides. Before we can add this last, we must have some substantial basis in the will to found it on, by way of interpretation. Here we have nothing. The’ charge of the court is therefore erroneous.

Judgment reversed, and a new trial awarded.