Upon the hearing of this case we were of the opinion that the respondent was entitled, under the statute, to have an execution issued upon the judgment recovered against Ben Holladay in his lifetime, and ordered an affirmance of the decision of the circuit court appealed from.. In making that- order, however, we overlooked the matter of the form of the execution which had been issued, and which the appellant sought to have set aside. We supposed that the execution was in the general form as prescribed by the Code, but discover now that it contains recitals and requirements which we think the Code does not authorize. The recital that the appellant and Geo. W. Weidler, as receivers of the court, held certain of the property of the deceased, and that said Weidler was the trustee, and held as such, or under his control, other property belonging to the deceased, including about 5,881 shares of the capital stock of the Willamette Real Estate Company, was improper. The court out of which the execution issued could not have known judicially the facts recited. Nor was it proper to include in the *501execution the command to the sheriff to satisfy the judgment, etc., out of the said stock claimed to be so held. The provision of the Code to the effect that notwithstanding the death of a party after judgment, execution thereon may be issued and executed in the same manner and with the same effect as if he were still living, does not authorize the judgment creditor to specify in the writ of execution any particular property out of 'which the sheriff must satisfy it. The writ must be issued against the property of the judgment debtor generally, requiring'the sheriff to satisfy it out of any property in the hands of the debtor’s personal representatives, heirs, etc. The sheriff must ascertain, as in other cases, what property is subject to levy under the writ. The death of the judgment debtor since the recovery of the judgment, and-that six'months have elapsed from the time of granting of letters testamentary or of administration upon his estate, should, of course, be suggested in the prcecipe for the writ, but all other parts of the affair must be left to the sheriff. The judgment creditor, however, has the right to institute auxilliary proceedings in such a case, the same as in any other, to aid the enforcement of the execution, but such proceedings cannot be taken until it is ascertained that they will be necessary.
The. appellant’s counsel insists that no execution' can issue in such a case unless the judgment-creditor has a lien upon property belonging to the estate of the deceased, and then only as against such property. But- the provision of the_ Code referred to gives the judgment creditor the right to a general execution. It says that, “Notwithstanding the death of a party after judgment, execution thereon against his property, etc., may be issued and executed in the same manner and with the same effect as if he were still living.” We suggested, however, in the former opinion delivered in the case, that said provision of the Code would have to be construed with ■ the provisions of the probate Act adopted at the same time, and that it was very doubtful whether the sheriff, by virtue of such a *502writ, would have a right to interfere with the property and assets of an estate in the hands of an executor or administrator for the purposes of being administered upon, unless the judgment had become a lien upon the property or established a paramount right against it. But that question- has not arisen in the case, and we did not attempt to determine it, further than to indicate what our views might be should it ever arise. The circuit court should have required the writ of execution issued to be modified as we have indicated herein.
The case will therefore be remanded, with directions to amend the writ of execution as suggested. No costs or disbursements will be allowed to either party .upon this appeal; each party will be required to pay one-half of the fees of the clerk of this court’ chargeable herein