
    New York County.
    Hon. RASTUS S. RANSOM, Surrogate.
    January, 1890.
    Matter of Stern.
    
      In the matter of the application for revocation of letters testamentary issued under the will of Joseph Stern, deceased.
    
    One who subsequent to the death of a testator has sold goods to a firm composed of the surviving partner of testator and the executor and executrix, as such, of testator, which business was continued under a provision of the will that the executor'could only devote to the purposes of the business so much of the estate as was already at testator’s death invested therein, is not a creditor of the estate, and cannot as such apply under section 2685 of the Code of Civil Procedure for revocation of letters testamentary issued to the executors of deceased. •
    Such creditor has only a remedy so far as the estate of decedent is concerned, against the assets embarked in the business which are simply an investment of the estate and has no claim against the executors and executrix as such.
    Application for the revocation of letters testamentary issued to the executors of Joseph Stern, deceased.
    The facts appear in the opinion of the Surrogate.
    Franklin Bien, for petitioner.
    
    Daniel G. Rollins, and M. W. Platzek, for the executrix.
    
   The Surrogate.

This is an application under section 2685 of the Code for the revocation of letters testamentary. No answering affidavits are filed. The counsel for the respondents interposed an elaborate brief, however, which must be considered in the nature of a demurrer.

The petitioner applies as a creditor. The nature of his claim will appear by the following facts: By the provisions of the will the executors were authorized to continue the business in which decedent had been engaged during his lifetime. Subsequent to the death of the testator and while the business was being conducted by the firm composed of the surviving partner and the executor and executrix, as such, the petitioner sold goods to the said firm.

Under the decisions a debt accruing under such circumstances can only be collected, so far as the estate of deceased is concerned, from the assets which were in the business. Under the terms of the will the executors could only devote to the purposes of the business so much of the estate as was already at testator’s death invested therein. The creditor could not collect his claim from assets not properly embarked in the business. Willis v. Sharp, 113 N. Y. 586; Same v. Same, 115 N. Y. 396.

A point is made by the respondents that the petitioner has no standing to make the application. In this contention I think they are correct. The only persons under the section who can apply are creditors or persons interested in the estate of decedent. The petitioner is not a person “ interested in the estate of decedent,” as creditors are expressly excepted by the language of subdivision 11, section 2514, which defines the term “persons interested” where used in the act.

To sustain his right to petition, therefore, he must be a creditor. The term “ creditor ” is defined by subdivision 3 of section 2514, which, when paraphrased, will read as follows: A creditor is a person having a claim or demand upon which a judgment for a sum of money could be recovered in an action.

Now, as there can be no doubt that the present petitioner could not recover upon his demand as against any assets of the estate not properly employed by the executors in the business continued subsequent to the death of the testator, but would be confined as to his recovery to such assets, it is clear that he is not a creditor of the estate, for the estate would properly include both. He is simply a creditor as to the fund against which he might recover judgment, which is simply an asset or investment of the estate. This view is emphasized by the consideration that, apart from the authority to continue the business, the debt having accrued subsequent to the death of the decedent, the petitioner would not have been a creditor either of the estate or of the decedent; he would have had a claim only against the executor personally. This is true notwithstanding a court of equity will sometimes, where the executor is shown to be insolvent, permit such a creditor to have the assets of the estate applied to the payment of his claim.

Apply the test suggested by subdivision 3 of section 2514. Could the petitioner recover a judgment for a sum of money against the respondents on its claim ? Unless it could, it would not be included in the term “ creditor.” While it might have recourse to so much of the estate as was properly embarked in the business, it is clear the suit of the petitioner could not be maintained against the executors as such.

Motion denied.  