Bostwick v. Carr , 14 Mills Surr. 155 ( 1914 )

Thomas, J.:

The plaintiff attached personal property in New York belonging to the estate of Frank W. Carr, deceased, who was a resident of New Jersey, where the administratrix was appointed. The appeal is from an order vacating the attachment. The plaintiff would sustain the attachment under section 1836a of the Code of Civil Procedure, ^* which is: “ An executor or administrator duly appointed in any other State, Territory or district of the United States or in any foreign country may sue or be sued in any court in this State in his capacity of executor or administrator in like manner and under like restrictions as a nonresident may sue or he sued,” etc. The statutes relating to attachments do not in terms authorize such procedure, but it is urged that what they permit concerning a non-resident debtor, section 1836a authorizes respecting his representative. The contention runs counter to the history of judicial decision in this State and to the existing system of law for the administration of decedent’s estates. In the administration of domestic estates, the principle of equality of distribution prevails as to all creditors within the same class. It is equally the general policy of the State to transmit to foreign jurisdictions property here that is under administration there, save that in case of insolvent estates, such of the property may be distributed here to domestic creditors as will give them their pro rata share of all the distributable assets. (Code Civ. Proc. §§ 2634, 2635.^*) No attempt in terms has been made by the Legislature to disturb this fundamental and historic policy. But it is urged that section 1836a has such' effect, and in fact it seems so if this attachment is authorized' by that section. But that intention is so obscurely indicated as to make its existence incredible in view of the destructive results. The foreign court has jurisdiction of the administration which is recognized by comity so far as the interests of domestic creditors permit, and the provisions of the Code indicate what may be done in that regard. The Code permits in certain cases the attachment of property of non-residents, but only such interest in the property as the non-resident has. It would not permit, in an action against an individual, an attachment against property which he holds as a trustee, nor in an action against a foreign trustee would it permit seizure of property which he holds for a specific trust and divert it to the payment of a debt to which it was not applicable. In the present case the administrator does not in effect own the property save for the purposes of administration; that is, to distribute it to creditors and those entitled according to statutes or other expression of the law. As to creditors of the class to which plaintiff belongs, distribution must be pro rata if there is not enough to pay all the debts in full. For the purpose of marshaling assets and doing the things incident to distribution, the administrator takes the title, but in its legal quality he is a mere trustee appointed, and empowered by law to carry out the commands of the statute. (Blood v. Kane, 130 N. Y. 514, 518, 519.) So, the trustee has no property subject to sale on execution or by attachment. Therefore, the plaintiff is seeking by attachment to take from the trustee property appointed by law to the use of all creditors and to sell it as if the administrator had some essential property right in it which he could transfer to one creditor to the exclusion of others. The administrator could not of right apply the property to the payment of the plaintiff’s debt, and if he sought to do so it would be recoverable, at least to the extent that the plaintiff was paid beyond his pro rata share. But the administration of estates and the distribution of assets is not done through attachment proceedings or in suits brought by individual creditors except, perchance, on occasions of extreme necessity. If the creditor desires to have the assets administered he can apply to the surrogate for that purpose. (Code Civ. Proc. § 2670.^*) So the plaintiff is taking what does not belong to him and what the administrator has not the right to yield him, and that too by a process that has no place in the settlement of estates. The Legislature never intended such rude departure from usual procedure, such seizure and monopoly of all the assets by one creditor, such wresting from a trustee of trust property and diversion of it, and such usurpation of power to administer estates of a decedent as is committed to courts empowered for that purpose.

The order should be affirmed, with ten dollars costs and disbursements.

Jerks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

* Added by Laws of 1911, chap. 631.— [Rep.

* Amd. by Laws of 1914, chap. 448; formerly Code Civ. Proc. §§ 2700, 2701.—[Esp.

* Now Code Oiv. Proc. § 2596, as amd. by Laws of 1914, chap. 443.—[Rep.