In the Matter of the Claim of Flandrow

Miller, J. Upon the former application to the surrogate . in this matter it was held, upon appeal to this court, * that an attorney for the successful party in an action, by whom a judgment was procured, is not an “ individual holding such property ” within the meaning of the provision of the Code of Procedure (§ 235), authorizing the execution of an attachment by service of a copy. On this appeal it appears that upon the application to the surrogate an affidavit was presented showing that the warrant of attachment was served upon Mary T. Yan Brunt as executrix of the last will and testament of Tunis Yan Brunt, deceased, thp judgment debtor. By the affidavit sworn to as the return to the attachment, it appears that service of the said attachment was made on the attorney by whom the judgment had been entered by a different person and at a different period of time from that named in' the affidavit now relied upon, which was not sworn to until some twelve years after the service mentioned therein. The length of time which has elapsed since the service may be regarded as subject to some criticism, especially as the person upon whom the alleged service was made, swore, in 1874, that *259 no such service had been made upon her. Assuming, however, that the affidavit is to be regarded as entitled to full credit and consideration, the question arises whether it was sufficient, in view of all the circumstances presented, to establish the right of the applicant to the relief claimed. Tunis Yan Brunt, against whom the judgment which was attached was entered, died in 1867. The instrument purporting to be his will, in which his widow was named as executrix, was contested, and in 1868 Edward Schell was appointed special administrator of the estate. The validity of the will and the rights of the executrix were not determined and were the subject of controversy at the time the alleged service was made, and have not yet been the subject of adjudication. So far as the estate is concerned, the special administrator has acted in that capacity, and has never been served, nor has any effort been made to serve the attachment upon him. We think the service upon Mrs. Yan Brunt was not sufficient, in .view of the facts, to bind the estate of Tunis Yan Brunt. The Code of Procedure (§ 235) which was in operation at the time of the alleged service required that “ the execution of the attachment upon * * * any debts or other property incapable of manual delivery to the sheriff shall be made by delivering a certified copy of the warrant of attachment * * "x" with the debtor or individual holding such property.” The judgment was due from the deceased to the bank and belonged to it. It could only be attached by a service upon the judgment debtor, or, in case of his death, upon the representative of his estate. Mrs. Yan Brunt did not occupy that position. The will had not been established, and it had not then been decided that she had any right or claim to act as executrix of the estate. Although she was the widow, sole legatee and executrix named in the will, it had never been admitted to probate, and she had acquired no right by which she was authorized to act for or on behalf of the estate. So far as any such authority existed, it was, at that time, vested in the special administrator; the executrix had not qualified, nor had she taken possession of the assets of the estateshe *260 could not have sued as a representative of the estate, nor been prosecuted by any creditor; the most which she could do was to pay the funeral expenses and preserve the assets, and she had even been deprived of this power by the appointment of the special administrator. She certainly had no power to represent the estate in reference to debts existing or claimed against it. We are referred by the learned counsel for the appellant to numerous authorities to sustain the position that the executrix named in the will was vested with rights which entitled her to represent the estate in regard to the claim in question. The rules established by the authorities cited may well apply to cases where the will has been properly executed and no question arises as to its validity, but they cannot be invoked in reference to a case where a contest exists in regard to the due execution of the will under which the executor or executrix was authorized to act. In the case considered, it does not appear that the will was legally executed, but on the contrary a. contest existed ■ as to its execution, and hence the executrix could not be regarded as having any authority under the instrument in question. She might or she might not have, as the result might occur; as this was uncertain, she did not occupy the position of a lawful representative of the estate. The statute is directly in conflict with the right of the executrix here to represent the estate of the deceased. It confers certain rights upon the executrix for the preservation of the estate, and • can have no application so long as a question existed in regard to the validity of the will under which she was appointed. So far as this estate is concerned, any power which existed in reference to its preservation must rest with the special administrator. It is no answer to the position that no person was qualified to act as executrix and upon whom service could be made, to say that the respondent cannot question the regularity and authority of the will as he has sought to establish it in another proceeding. The question here is whether a valid service has been made upon the party representing the estate, and the respondent has a right to insist that this should be done in conformity to the law and practice in similar cases. *261 The appellant’s counsel claims that the respondent’s attorneys upon being inquired of concealed the fact that a special administrator had been appointed and gave information that Mary T. Van Brunt was the executrix, and hence he is now precluded from claiming that he should be served with the attachment. It is not apparent that there was any fraudulent concealment, and it is difficult to see upon what principle the statement made by the attorneys could change the rule with regard to serving the attachment upon the party who represented the debtor, and authorize such a service upon one whose right to represent the estate was not established. There is no practice established which dispenses with the necessity of serving upon the party in interest under the circumstances claimed to exist in reference to the alleged concealment. Upon no principle do we think it can be contended that the service upon Mrs. Van Brunt was a service upon the debtor within the provision of section 235 of the Code of Procedure. There is no ground for claiming that a liberal rule should be adopted in reference to the service of the attachment as in cases where the debtor does not seek to set the attachment aside. It is also urged that the presumption being in favor of the validity of the will and that it will be admitted to probate, that the service upon the executrix will be complete from the beginning. We do not think that this position is well founded. As the case stands, the executrix does not legally represent the estate; she may never be authorized to act in that capacity. Under these circumstances, it would be going very far to say that the service upon the executrix is sufficient because eventually the will may be proved and established. There is no rule of law which sanctions such a presumption and which can be invoked in this case. There are other questions raised upon the argument, but inasmuch as the decision of the surrogate should be sustained for want of a sufficient service of the attachment, as already stated, a discussion of them is not required. The order should be affirmed. All concur. Order affirmed. Footnotes [*] 84 N. Y. 1.