
    J. Evans Gittings, Plaintiff, v. William H. Russel, Defendant.
    (Supreme Court, New York Special Term,
    February, 1906.)
    Attachment—Property subject to attachment — Funds held as administrator cannot be attached.
    Executors and administrators — Nature of interest or right of representative— Administrator also distributee.
    Under an attachment against the property of the defendant, funds on deposit with a trust company, to the credit of his wife’s estate of which he is administrator, cannot be attached, though the funds might eventually go wholly to him.
    . Until the statutory publication for creditors there is no presumption that there are not creditors who would have rights in the fund; and though upon the death of his wife legal title to the fund vested in him, subject to the rights of creditors, upon his appointment as administrator his individual title was ousted.
    Motion to vacate judgment.
    Henry M. Earle, for plaintiff.
    Miller, Miller & Storm, for defendant,
   Blanchard, J.

This is a motion to vacate the judgment entered upon the service of the summons and complaint in this action, upon the ground that the court had no jurisdiction to render the judgment, since no service was personally made upon the defendant within the State, and no property belonging to the defendant was attached within the State, and the defendant has not appeared generally herein. At the time of the service of the attachment upon the Trust Company of America, upon which the plaintiff relies for jurisdiction over the defendant, there were, on deposit with the company, funds to the credit of “ Estate of Kate B. Eussel, W. H. Enssel, administrator.” Kate B. Eussel was the wife of W. H. Eussel, who is defendant herein, and died, intestate, leaving no children. The depositary was orally informed of these facts, when it was served by the plaintiff with a warrant of attachment against any and all property of William H. Russel No other property is claimed to have been attached by the warrant. Appended to this warrant was the certificate of the sheriff directing service against all “ estate, real and personal, including money and bank notes, bonds, promissory notes and other instruments for the payment of money, as well as any and all interests in any partnership of the defendant, and of the defendants and of each of them, as stated in said copy herewith served upon you, to which copy you are hereby referred for the name or names of the defendant or defendants, whose property is attached within my county (except articles exempt from execution) * * * And that all such property, debts, credits and effects, and all rights and shares of stock, with all interest and profits thereon, and 'all dividends thereon or therefrom of said defendant, and of said defendants and of each of them, now in your possession or under your control, and those which may come into your possession or under your control, will be liable to said warrant of attachment, and are hereby attached by me.” It has been held that the holder of the attached property may rely upon the certificate of notice for the description of the property attached. Hayden v. National Bank, 130 N. Y. 146. The plaintiff, therefore, must show that the fund above mentioned is comprehended within the language of the certificate. The fact that the fund was credited to “ Estate of Kate B. Russel, W. H. Russel, administrator,” and not to defendant, personally, seems sufficient to show that the fund was prima facie the property of the estate, and not of the defendant. The plaintiff contends, however, that the depositary was orally informed, at the time of the attachment, of facts sufficient to convince it that the funds would eventually go "entirely to the defendant, and that, therefore, the depositary was charged with notice that the fund was really the defendant’s. The failure to specify in the certificate of notice the individual interest of defendant in the fund credited to the estate might well be held to be fatal to the plaintiff’s contention. Hayden v. National Bank, supra. Such a réquirement seems reasonably within the rule which requires that notice be “ an act of caution to the individual upon whom it is served, intended and operating solely to prevent his paying the debt or delivering the property to the debtor, and impounding it to answer the judgment.” O’Brien v. Merchants & Traders’ Fire Ins. Co., 56 N. Y. 52, 57. The decision, however, may be rested on a broader ground. By the terms of the deposit, moneys could be paid out therefrom only on the order of Estate of Kate B. Russel, William H. Russel, administrator,” countersigned by Rational Surety .Company, surety for the administrator. The proof that the fund was not attachable against the defendant personally is shown by the obvious proposition that, had the depositary paid out moneys upon the defendant’s individual order, the Rational Surety Company could be subrogated to the rights of any creditors or other parties in interest in the estate, for the purpose of compelling the depositary to make good such payment to the estate. Greentree v. Rosenstock, 61 N. Y. 583. The plaintiff contends, indeed, that the defendant is the only party in interest, and, therefore, that no such rights against the fund were outstanding. But until the statutory publication for creditors is proved to have been made, no presumption can be indulged that there are no creditors of the estate whose rights would be enforceable against the depositary. The contention that the fund was really the defendant’s proceeds upon a misconception of the office of the administrator. Upon the death of Mrs. Russel legal title to the fund doubtless vested in the defendant, subject to the rights of the intestate’s creditors. Tompkins v. Rice, 55 Hun, 563, 568. Upon the defendant’s appointment as administrator, however, his individual title was ousted. The defendant, as administrator, then had legal title to the fund. The defendant’s legal capacity as administrator was separate from his individual capacity. So sharply, indeed, is the capacity of legal representative in administration proceedings separated from other legal capacities, that it has been held that an attachment against a fund, held to the credit of the defendant as testamentary trustee, is not a good attachment against the defendant. when sued as an executrix under the same will. Belden v. Wilkinson, 33 Misc. Rep. 659. The ground for this separation, it seems, is that a contrary rule would deprive the creditors of the estate of all rights reserved to them by the administration proceedings. Such was the exigency that shaped and finally settled the nature of the administrator’s office. Even if it were true, in the present case, that there were no creditors, the dual capacity of the defendant would not be affected. The office of administrator was created in contemplation of creditors, and was clothed with capacity and immunities appropriate thereto. Bo authority has been presented for the proposition that these attributes should be denied in those cases where no creditors exist. The fact that, upon the defendant’s death, his legal representative would be required to account for the unadministered assets does not demonstrate the merger of this dual capacity; the same result would follow upon the death of any disinterested party who might be appointed administrator of Mrs. Russel’s estate. Code Civ. Pro., § 2606. So long as the account was credited to the defendant as the administrator it was, for purposes of attachment, the property of another person, quite different from the defendant.

Motion granted.  