Not being able to agree with my associates, I file the following dissenting opinion:
The legal question here involved is, Was the legacy in question subject to garnishment at the time the writ was served, or at the time the original answer in garnishment was filed? The will by which Mrs. Bornstein was bequeathed $1,000 provided, in effect, that the county court should have no jurisdiction except to probate the will, and the return and approval of an inventory and appraisement, and that no bond should be required of the executor. The will was duly probated, the inventory returned, and the independent executor duly qualified. The county court had no further jurisdiction over the estate. The trial court correctly so recognized in providing for the collection of the district court judgment by the issuance of process, rather than directing it certified to the county court for payment, etc. More than a year after the will was probated, Mrs. Bornstein brought suit against the independent executor for distribution. If this suit had never been filed, this $1,000 legacy, it is thought, under the facts of this case, the will having been duly probated, the independent executor duly qualified, there being no debts against the estate, and it appearing affirmatively the assets were sufficient to pay all legacies in full, would surely have been subject to garnishment. It was not a claim for damages based upon a tort, but was a liquidated demand fixed and determined by the will — a written instrument which had been duly probated. It is thought the case of Waples-Platter Grocer Co. v. Texas P. Railway Co., 95 Tex. 486, 68 S.W. 265, 59 L.R.A. 353, does not sustain appellants in this case. In that case the Supreme Court had two questions before it for decision, to wit:
"(1) Whether, pending said appeal therefrom, the said judgment in favor of Downtain was subject to * * * garnishment? (2) If not, whether the claim of the judgment debtor, Downtain, against the garnishee, the Texas Pacific Railway Company, as stated and shown in the agreed statement of facts, is a demand of such character as to be subject to garnishment, even before the judgment which determined his rights thereon?"
In other words, was Downtain's judgment against the railroad subject to garnishment while appeal was pending therefrom? And, if not, then was Downtain's claim against the railroad subject to garnishment before it was reduced to judgment? The court first proceeded to determine the"nature" of Downtain's claim against the railway company, and found that his "cause of action was for unliquidated damages for breach of a contract," and said further:
"When the damages are unliquidated and in their nature uncertain, the demand is not subject to garnishment."
So the court answered the second question in the negative, and said further:
"It results from the foregoing conclusion that a like answer must be given to the first question."
In other words, the court held that, since Downtain's claim was not subject to garnishment because it was for unliquidated damages, the same was not subject to garnishment after being reduced to judgment while appeal therefrom was pending. The clear inference is that, if his claim was subject to garnishment, then after same was merged into a judgment it would still be so subject, although an appeal therefrom was pending. *Page 873 There was no controversy between any of the parties to the suit for distribution, unless it can be said Morris Thomas was claiming a part of the estate. He filed no pleading, except a plea to the jurisdiction of the court, which was overruled, so we cannot know that he was claiming any interest in the estate in Texas; but suppose he was, and suppose a recovery by him would have reduced the amount of Mrs. Bornstein's legacy, would that render the reduced amount of her legacy, whatever it might be, immune from garnishment? It is thought not. If the claim of Thomas in the suit did render the amount of her claim uncertain, it did not change the nature of her claim. It did not change it into a claim resting in tort for unliquidated damages. It is not the uncertainty of a claim that determines whether or not it is subject to garnishment, but it is the uncertainty of a claim by reason of the nature of such claim. Suppose the suit for distribution had not been filed, and the garnishee had answered setting out the $1,000 legacy to Mrs. Bornstein, but alleging Thomas was claiming an interest in same, and he had been made a party to this garnishment suit and claimed a part or all of it, thereby rendering the amount of her claim uncertain, would her claim, whatever it might be, cease to be subject to garnishment? The garnishee can require the claimants of a fund to interplead and to settle their rights to the fund in his hands. Foy v. East Dallas Bank (Tex.Civ.App.) 28 S.W. 137; Kelley Grain Co. v. English (Tex.Civ.App.) 34 S.W. 651. I think our Supreme Court has answered most of these questions fully. Carter et al. v. Bush, 79 Tex. 29, 15 S.W. 167; Simon v. Ash, 1 Tex. Civ. App. 202,20 S.W. 719; McClellan v. Routh, 15 Tex. Civ. App. 344, 39 S.W. 607. If the garnishment suit had been in a different court, it may be the pendency of the suit for distribution would have been an impediment to the garnishment upon the ground of conflict of jurisdiction over the same subject-matter, but, as the two suits here were in the same court, the reason of such rule wholly fails. Miller v. Taylor, 14 Tex. 538; Burke v. Hance, 76 Tex. 76, 13 S.W. 163, 18 Am. St. Rep. 28; Rieden v. Kothman (Tex.Civ.App.) 73 S.W. 425 (on motion for rehearing); Skipper v. Foster,29 Ala. 330, 65 Am.Dec. 405, and note; 1 C.J. pp. 55, 56; R. C. L. vol. 1, pp. 16, 17. At the time the writ was served on the garnishee, Berkman, as executor of the estate of Mary Goldberg Thomas, deceased, in this case, the will had been probated fixing the liability of Berkman, as such executor, to Mrs. Bornstein for $1,000 legacy, provided the assets of the estate were sufficient to authorize the payment of all legacies in full, and, if not, then for her pro rata part of such legacy. This legacy was a debt or claim, and that character of debt or claim subject to garnishment.
The question here involved should be determined not from what the facts might have been, but from what they actually were On September 8, 1925, the suit for distribution of the estate according to the provisions of the will was tried, and on said date judgment entered, adjudging that Thomas had no interest in said estate; that the assets of the estate consisted of $2,465.92 cash on hand, vendor lien notes for $6,000, and secured personal notes for $687.50, making a total of $9,153.42, all, as set out in the report of the independent executor, situated in Waco, Tex. The court directed the distribution of said estate, and to that end appointed the independent executor as receiver to sell said notes and report to the present term of the court. The court further entered judgment awarding to each of the legatees a recovery for the amount as provided by said will to such legatee, awarding to Mrs. Bornstein and husband a judgment for $1,000 against the independent executor, and directing execution to issue against him as such executor for same. Said independent executor as receiver, having converted said notes into cash, did report on October 3, 1925, and, after being allowed $58.40 expense in selling said notes, was on the same date discharged by the court as such receiver. As stated, the above judgment was entered September 8, 1925. The writ of garnishment was served on Berkman as independent executor on September 12, 1925. It will thus be seen, at the time the writ was served, a judgment of the court had already determined the assets sufficient to satisfy all legacies in full and awarded to Mrs. Bornstein judgment for her $1,000 legacy and execution to enforce same, thus sweeping away all doubt, either actual or imaginary, of her right to her legacy and the amount of same, unless same was rendered uncertain by the appeal of Thomas, taken later. The garnishee is required to answer what he was indebted at the time he answers as well as at the time of the service. At the time he was required to answer, October 6, 1925, the entire estate had been converted into money and judgment entered for Mrs. Bornstein for her $1,000, as shown by the record and as shown by the original answer of the garnishee, and there was nothing left to be determined, except the appeal of Morris Thomas. The judgment in favor of Mrs. Bornstein in no way changed the nature or character of said claim — it was still subject to the writ of garnishment, and it is thought clearly the subsequent appeal from said judgment, both proceedings being in the same court, did not affect the garnishment lien which had attached by the service of the writ. The garnishee in his original answer could neither affirm nor deny his indebtedness to Mrs. Bornstein, so he properly set forth the legacy, as provided for in the will, its probate, the judgment in favor of Mrs. Bornstein in the suit for distribution, for said legacy of, 1,000, and the appeal by *Page 874 Morris Thomas therefrom. But none of these matters affected the garnishment lien which had attached by reason of the service of the writ. The trial court, it is thought, pursued the proper course in continuing the garnishment suit on his docket until the appeal by Thomas was disposed of, and then granting the garnishee leave to file the amended answer, at least, it was not error for him to do so. Article4087, Revised Statutes 1925; Carter v. Bush, 79 Tex. 29, 15 S.W. 167. The judgment of the trial court should be affirmed.