Winchell v. Allen

Swift, Ch. J. An executor cannot be considered as the debtor of a legatee. The claim is against the testator or his estate ; and the executor is merely the representative of the deceased. There cannot be a debt due from the executor within the meaning of the statute. Nor can a person, like an executor, deriving his authority from the law, and bound to perform it according to the rules prescribed by law, be considered as a trustee, agent, attorney or factor within the statute ; and this for the best of reasons. In the common case of agents, trustees and factors, the creditor can easily place himself in the shoes of the absconding debtor, and prosecute his claim without inconvenience to the garnishee. But such would not be the case with an executor. It would not only embarrass and delay the settlement of estates, but would often draw them from courts of probate, where they ought to be settled, before the courts of common law, who would have no power to adjust and settle his accounts. Such an interference might produce much inconvenience, and prevent the executor from executing his office as the law directs. I am of opinion that the judgment ought to be affirmed. In this opinion the other Judges severally concurred. Judgment affirmed.