81 N.J.L. 118 | N.J. | 1911
The defendants in this cause are devisees of I. WhiLden Moore, deceased, who, in and by his last will and testament devised certain lands situate in this state to his widow for life with remainder to his two children. The testator was, at the time of his death, and for some years prior thereto, had been continuously, a resident of this state. The writ of attachment, which it is now moved to quash, was issued against his devisees for a debt due from the testator to the plaintiff, and was levied upon the interest of the widow and children in the lands devised to them by the deceased. A rule was allowed requiring plaintiff to show cause why the writ should not be quashed, and it is now urged that the rule he made absolute.
The only authority for a writ of attachment against devisees for the debt of their testator is to he found in section 5 of our Attachment act (Pamph. L. 1901, p. 159), which enacts that attachments may issue for the debt, of a deceased debtor against his devisee “in all cases in which the writ might have issued against such debtor immediately prior to his decease, and all real estate descended from or devised by him to the heir or devisee may he attached.” As it appears in this case that the debtor was, at the time of his death, a resident of this state against whom a writ of this character could not lawfully issue immediately prior to his death, the act affords no support for this writ.
The rule to show cause is made absolute and the writ will be quashed, with costs.
