NUMBER 211 1923

Question. A widow (also sole legatee) is appointed and qualifies as executrix of her deceased husband; she is without means except as derived from the personal estate of her husband; her husband left no real property and no debts except a judgment debt, which at the time of his death was about to expire by limitations unless revived against him; the judgment creditor is probably unaware of the death and available assets.

In the opinion of the Committee may the lawyer who is advising the executrix properly advise her not to take any steps to advertise for creditors, or not to account voluntarily as executrix, in the hope that the rights of the judgment creditor may lapse, and that she may thus acquire the personal estate free from his claim?


Answer. The question implies that the judgment creditor’s right is superior to that of the legatee; the Committee does not consider that the lawyer is justified in advising the executrix to disregard the rights of the creditor nor to resort to any trick or device to defeat them. Whether it is the legal duty of the executrix to advertise or whether such advertisement is merely permissive and for the protection of the executrix is a question of law, dependent upon the proper construction of a statute providing for advertisement, and the Committee does not attempt to construe statutes nor to define statutory duties. The lawyer may, in the opinion of the Committee, properly advise his client his opinion of the statutory duty. But in the Committee’s opinion it would not be professionally proper for the lawyer to devise a plan whereby the rightful payment of the creditor is defeated.