Opinion
No. 8866.
January 27, 1961.
APPEAL FROM DISTRICT COURT, 7TH JUDICIAL DISTRICT, PAYETTE COUNTY, GILBERT C. NORRIS, J.
Martin Martin, Homer E. Martin, Boise, for appellant.
J.N. Leggat, Boise, for respondent.
An administrator will be liable in his official capacity as garnishee after an order of distribution has been made. Idaho Code, Sec. 8-521.
The general rule is that where a person is entitled to a definite distributive share of a fund in the law's custody, one of his creditors may garnishee it in the hands of the officer. Ward v. Commissioner of Internal Revenue (C.C.A. 9th Cal.) 224 F.2d 547; Walden v. Crego's Estate, 288 Mich. 564, 285 N.W. 457; City of Los Angeles v. Knapp, 22 Cal.App.2d 211, 70 P.2d 643; Hopping v. Hopping, 233 Iowa 993, 10 N.W.2d 87, 152 A.L.R. 436; Jones v. Engle, 349 Ill.App. 423, 111 N.E.2d 187; City Loan Savings Co. v. Guthridge, 61 Ohio App. 202, 22 N.E.2d 573.
A claim for services of a partnership is the property of the partnership as distinguished from the individual members of the partnership. Idaho Code Secs. 53-308, 53-325, 53-326; Gold Fork Lumber Co. v. Sweany Smith Co., 35 Idaho 226, 205 P. 554.
The relation between an administrator and the heirs of a deceased person constitutes a trust of the highest character. Schneeberger v. Frazer, 36 Idaho 737, 213 P. 568 (1923); Estate of Fleshman, 51 Idaho 312, 319, 5 P.2d 727 (1931).
It is against the policy of the law to permit an administrator to retain from a distributee's share of an estate his individual claim against that distributee. In re Wentz's Estate, 225 Pa. 566, 74 A. 424, 425; 34 C.J.S. § 494c, pp. 394, 395; 21 Am.Jur. 637, § 456; Annotation, 1 A.L.R. 1006; McLaughlin v. Barnes, 12 Wn. 373, 41 P. 62, 63, 64 (1895).
The trial court, under its broad equity powers, had jurisdiction to hear and decide any set-off or counterclaim which might have been pleaded by appellant. Brown v. Porter, 42 Idaho 295, 297, 298, 245 P. 398, (1926); Harshbarger v. Rankin, 50 Idaho 24, 32, 293 P. 327 (1930); 47 Am.Jur. 739, § 39.
The appellant appeals from a decree directing him, as administrator, to pay to respondent the sum of $2,634.63, and assigns as error the trial court's conclusions of law and the decree. The parties submitted the case to the trial court upon stipulated facts.
W.D. McBride died intestate on or about June 1, 1945, leaving an estate in Payette County, Idaho. On November 8, 1946, Frank Martin, Jr., was appointed administrator of the estate. On May 13, 1957, a decree of settlement of final account and final distribution was entered, ordering and decreeing that the sum of $2,634.64 be distributed to J. Francis MacBride. On May 21, 1957, the law firm of Martin and Martin, of which Frank Martin, Jr., is a partner, in Boise, Idaho, addressed to J.N. Leggat, counsel for respondent, a letter to which was attached a check payable to J. Francis MacBride in the sum of $1,126.91 and a statement from the law firm in the sum of $1,507.73, the statement purporting to be for legal services, expenses incurred, and money advanced by the said firm from January 28, 1948, to April 14, 1956, for and on behalf of J. Francis MacBride.
The present action was filed August 19, 1957, and the pending appeal is from the decree entered in that action.
A second action, still pending, was filed May 6, 1959, in the Ada County District Court by the firm of Martin and Martin against J. Francis MacBride, and on May 7, 1959, pursuant to an attachment issued, funds of J. Francis MacBride held by Frank Martin, Jr., as administrator of the estate of W.D. McBride, deceased, were garnished.
In the instant case, there was no issue between the parties concerning an indebtedness due appellant from respondent as an offset. Appellant seeks to differentiate his status as administrator of the estate from his status as a partner in his firm of attorneys.
There being no plea in avoidance nor offset between the parties, the trial court was required to enter a decree in favor of the respondent. However, the parties stipulated, and the trial court found, that respondent had tendered $1,126.91, leaving a balance due in the sum of $1,507.73. The record is silent as to the status of the tendered check, whether it was accepted as part payment by respondent or returned to the appellant. If retained by respondent, it must be deemed as part payment, in which event the decree should have been in the sum of $1,507.73.
We are not to be understood as approving the findings of fact and conclusions of law of the trial court; some go beyond the issues which were properly triable.
The cause is remanded to the district court to determine whether the amount tendered to respondent was accepted as part payment and to enter its decree accordingly.
The effect of the attachment must be determined in the action in which the attachment was issued. Enforcement of the decree must await final determination of the offset claimed in the action in which the attachment issued.
No costs allowed.
TAYLOR, C.J., and SMITH, KNUDSON and McFADDEN, JJ., concur.