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In re Faulkner

7 Hill & Den. 181 Court N.Y. Sup. Ct. English

Delivered by Bronson, Ch. J.

Contents

Majority

p. 181
Matter of Faulkner, an absconding or concealed debtor.

Headnote

In making distribution of the estate of an absconding, concealed or non-resident debtor, the trustees are bound, under 2 it. S. 47, § 34, to prefer debts owing by him as guardian, executor &c.
The authority of an executor, when duly perfected, relates back and legalizes payments made to him before he qualified ; and the moneys received will thus become a debt owing by him as executor within the-meaning of the above statute.
Faulkner, the debtor, with one James Finley, were appointed executors of the will of Robert Elliott. Finley proved the will and obtained letters testamentary. Before Faulkner had qualified as executor, he received several sums of money, amounting in the whole to the sum of $236,50, belonging to the estate of the téstator. He afterwards qualified as executor. At a general meeting of the creditors of Faulkner, called by the trustees, Finley, one of the executors of Elliott, presented a claim for the moneys so received by Faulkner, which was allowed by the trustees. And Finley claimed- a preference over the other creditors of Faulkner: but his right to it was denied by the trustees.
R. W. Peckham,
on behalf of Finley as executor, moved that the trustees be directed to allow the claim a preference.
G. R. J. Bowdoin, for the trustees. ■
p. 182
By the Court,

The statute directs that the trustees, in making a distribution of the moneys in their hands, “ shall first pay all debts that may be owing by the debtor as guardian, executor, administrator, or trustee.” (2 R. S. 47, § 34.) The objection urged against this claim is, that as Faulkner had not then qualified, he was not executor at the time the money was received. (2 R. S. 71, §§ 15, 16; Thomas v. Cameron, 16 Wend. 579 ; Matter of Stevenson, 3 Paige, 420.) But the answer is, that when Faulkner qualified as executor, his authority related back, and legalized the payments which had previously been made to him. (Priest v. Watkins. 2 Hill, 225 .) He afterwards held the money, and it was a debt against him, as executor. The claim to preference must be allowed.

Motion granted.

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