dissenting:
Where, under a will, lands are devised to an executor to sell and convert the same into money and divide the sum received therefrom among certain devisees, it is a devise of money and not of land. Land so devised to the testator with power of sale cannot be sold on execution issued on a judgment against one of the devisees who is to receive a portion of the proceeds thereof. (Baker v. Copenbarger, 15 Ill. 103.) The devisee has no interest in the land which can be sold under execution, nor can he sell and convey the same so as to effect an absolute conveyance thereof. While all the devisees may elect to take land instead of money, that election can only be made by all the devisees acting in concert, and cannot be made by one or more less than all. Lands in such case devised to an executor, not being liable to sale on execution, are for the same reason not liable to be sold on attachment. The legal title to the land is held in trust by the executor for the purpose specified in the will, to be sold and the proceeds distributed according to the directions of the will, and the title held by the executor being strictly in trust, with power of sale, is as free from any right or claim of the devisee as if he was to have no interest in the proceeds. The devise, in such case, is a devise of money and not of land, and the devise to the devisee here was not land but money, and her only claim of interest was in that money, and in that she has no interest until the land is sold by the executor. (Baker v. Copenbarger, supra.) The principles announced in this case have been frequently recognized and followed by this court. Jennings v. Smith, 29 Ill. 116; Rankin v. Rankin, 36 id. 293; Ridgeway v. Underwood, 67 id. 419; Germain v. Baltes, 113 id, 29; Haward v. Peavey, 128 id. 430; In re Corrington, 124 id. 363; Ebey v. Adams, 135 id. 80; Strode v. McCormick, 158 id. 142.
In the absence of special statutes it is a well recognized rule of law that an executor or administrator can not, in his official capacity, be held liable as garnishee at suit of a creditor of a decedent, or of one who is a legatee or distributee or creditor of an estate. The executor derives his authority under the will from the law, and must execute it according to the directions of the will, and in pursuance of rules of law. If executors and administrators were liable to a process of garnishment, the operation and effect of the law with reference to the administration of estates would be substantially destroyed, and the settlement of estates be delayed, disarranged and rendered complex and involved. No garnishment can be had against an executor or administrator of a distributive share of a devisee to an estate until the court has decreed a distribution of the proceeds in the hands of the administrator. (Barnes v. Treat, 7 Mass. 271; Brooks v. Cook, 8 id. 247; Thorn v. Woodruff, 5 Ark. 55; Stout v. LaFollette, 64 Ind. 365; Colby v. Coates, 6 Cush. 558; J. I. Case T. M. Co. v. Miracle, 54 Wis. 295; Thayer v. Tyler, 5 Allen, 94; Welch v. Gurley, 2 Hayw. (N. C.) 334; Young v. Young, 2 Hill, (S. C.) 425; Curling v. Hyde, 10 Mo. 374; Winchell v. Allen, 1 Conn. 385; Lyons v. Houston, 2 Harr. (Del.) 349; Waite v. Osborne, 11 Me. 185; Wilder v. Bailey, 3 Mass. 289; Marvin v. Hawley, 9 Mo. 382; Hill v. LaCrosse & M. R. R. Co. 14 Wis. 291; Dawson v. Holcomb, 1 Ohio, 275; Norton v. Clark, 18 Nev. 247; Millison v. Fisk, 43 Ill. 112.) Whenever the devisees may maintain an action at law against the executor or administrator to recover the legacy or distributive share of the estate, then, and not till then, can such executor or administrator be garnisheed by any creditor. (Cutter v. Perkins, 47 Me. 557; Post v. Love, 19 Fla. 634; Piper v. Piper, 2 N. H. 439.) To allow a distributive share in the estate to be secured by garnishment before that share is ascertained and determined, would, in cases where debts have not been paid, lead to absolute uncertainty and injustice, as it cannot be determined whether there will be a surplus in the hands of the executor or administrator on final settlement, and hence the rule of law is, that until the distributive shares are ascertained they cannot be secured by garnishment. Richardson v. Lester, 83 Ill. 55; Richards v. Griggs, 16 Mo. 416; Norton v. Clark, supra; Hoyt v. Christie, 51 Vt. 48; Harrington v. LaRocque, 13 Ore. 344; Nerac’s Estate, 35 Cal. 392.
In a case where the testator dies and by his will devises land to an executor in this State with power of sale, and that executor is directed to sell and dispose of the lands and convert the same into money and distribute the same among certain devisees, and some of those devisees are non-residents of the State of Illinois or have absconded from the State, and have no property in this State except the equitable interests under the will of the testator, there is no method known to the law by which a judgment at law could be recovered. There could be neither attachment nor garnishment of the interest of a devisee. The statute has provided no means by which the interest could be reached by proceedings in rem, only by garnishment. No service could be had on the devisee in such case, so that a judgment at law could be recovered. An absconded or non-resident debtor having such equitable interests in property in this State cannot escape a liability for a bona Jicle debt because the law has provided no means by which a judgment at law may be recovered. The creditor may resort to a court of equity, establish his debt and have satisfaction out of the equitable interest of such absconded or non-resident debtor. It was held in Getzler v. Saroni, 18 Ill. 511 (on p. 518): “And if the property be not subject to attachment at law, being an equitable interest only, and personal service cannot be obtained on his debtor, so that he is without remedy at law for the establishmeut of his debt, he may in the first instance go into equity, establish his debt and have satisfaction out of the equitable interest.” To the same effect is Russell v. Clark, 7 Cranch, 87. In Steere v. Hoagland, 39 Ill. 264, it was held that where a fund cannot be reached at law, and is only accessible in a court of chancery, then creditors may resort to equity in the first instance; and if the claim is to be satisfied out of the fund which is accessible only by the aid oh a court of chancery, application may be made in the first instance to that court, which will not require that the claim should be first established in a court of law.
To the general rule that there must be judgment and return of execution unsatisfied before resort can be had to a court of equity, there are and have always been exceptions in special cases such as this, where a judgment cannot be obtained because the debtor has absconded or removed from the State or is a non-resident. As fully sustaining this doctrine we cite Scott v. McMillen, 1 Litt. 302; Anderson v. Bradford, 5 J. J. Marsh. 69; Kipper v. Glancey, 2 Blackf. 356; Pendleton v. Perkins, 49 Mo. 595; Pea v. Morrison’s Exrs. 10 Gratt. 149; Earle v. Grove, 92 Mich. 285. In the latter case it was held: “The complainants claim that while the general rule in all the States, statute or no statute, is, that there must be judgment and a return of execntion unsatisfied before a resort can be had to equity, still, that there are, and always have been, exceptions to this general rule in special cases, as where a judgment cannot be obtained because the debtor is dead, or has absconded or removed from the State, or is a nonresident. * * * Here the amended bill avers a judgment regularly obtained upon personal service in New York, and the exhaustion of legal remedies in that State; that Kendall is insolvent and a non-resident of this State; that the fund sought to be reached to satisfy the debt is here within the jurisdiction of the court, where the bill has been filed, and that there is no way, in law, in which to reach such fund. This would be sufficient to maintain the suit if we had no statute, and the statute does not forbid it.” The right to relief by a bill in equity without judgment at law, when the debtor has absconded and there is no remedy except in equity, is recognized in Greenway v. Thomas, 14 Ill. 271. To the same effect is Pope v. Solomon, 36 Ga. 541.
In McCartney v. Bostwick, 32 N. Y. 62, it was held with reference to resort to a court of equity without judgment at law: “The rule, of course, presupposes that they have a leg'al remedy; but so far as the courts of this State are concerned they have none. The facts stated by the complainants show that no remedy whatever at law exists in their favor in this State; that no court of law of this State has jurisdiction to entertain a suit to be brought by them against the debtor, either upon a judgment or the original indebtedness, and that it is therefore impossible for them to recover judgment in this State and have their execution returned. Does equity demand that the legal remedy shall be exhausted where none exists, before it will enforce a trust created by statute, of which it alone has jurisdiction ?”
In this case there is no possible manner in which a ■ judgment may be recovered at law, and no satisfaction can be had by garnishment. A non-resident debtor having large equitable interests as a devisee of an estate cannot be reached in the proceedings at law, and recourse may be had to equity as the only jurisdiction that can protect the interests of the court and make the property liable for the debts of this devisee. The remedy in equity is full and complete, and it was error to sustain the demurrer to the bill, as it was also error in the Appellate Court to affirm the same.
Because the right of garnishment did not exist as against administrators and executors, the legislature, by an act entitled “An act in relation to the garnishment of administrators,” approved June 11, 1897, in force July 1, 1897, (Laws of 1897, p. 231,) endeavored to remedy the difficulties arising from the want of power of a creditor to garnishee such administrators and executors with respect to land, money, goods, etc., belonging to any heir or distributee of an estate, but providing no final judgment should be rendered against such administrator or executor until after an order of distribution had been made. This statute, however, was enacted long after the commencement of this suit and can have no effect on the questions presented on this record, hence I cannot concur in this opinion.