Stanton v. Holmes

By the Court. The first question is, whether the executors of John Bird were absent and absconding debtors. As they have ever been inhabitants of the state of Afew-York, they were absent; but it does not appear from the facts in the case, that they can, with any propriety, be considered as absconding. John Bird was the debtor of the plaintiff. But his executors in the state of A'ew-York are only holden in that capacity to execute his will, and administer on his estate, according to the law's of that state, and pay his debts so far as they have assets in their hands. But [96] they are not, and by undertaking that trust do not, become in law debtors to his creditors. No process by foreign attachment cas be sustained agajnst t¡ie executor or administrator, to recover a debt due from his testator or intestate. The second question is, whether the defendants were debtors to the executors o.f John Bird. They were debtors to Seth Bird, an inhabitant of this state, who, by his last will, appointed John Bird his executor. John Bird proved his will, accepted the trust, and was duly qualified in the proper court of probate in this slate, to act and administer on his estate. That power ceased at his death The executors of John Bird have no right or power to act in this state, in any instance, as executors of the will of Seth Bird, until they apply to the court of probate here, who approved that will; are admitted as executors of John Bird; and give bond that they will duly administer on the estate of Seth Bird according to his last will and testament. They have never made any such application. The defendants were not debtors to the executors of the last will of John Bird. Judgment to he entered for the defendants.