Marcy v. Marcy , 32 Conn. 308 ( 1864 )

Butler, J.

The doctrine that any one who intermeddles with the goods of a deceased persorx, and does such acts as belong to the office of an executor without taking oxxt administration, becomes chargeable and may be sued as executor, is grounded in the commoxx law, declared iix this state by statxxte, and perfectly well settled ixx this court. The law coxxsiders and treats him as having “ intruded into the office,” and estopped himself from denying that he is executor. The major premise of the plaintiff is therefore undeniably true. But his minor premise, which is, iix substance, that aix executor appointed and qualified in-another state, is such an entire stranger to the assets of his testator which were situate or owing ixx this state at the time of his death, that he becomes an intermeddler if he removes or collects them without taking admixxistration here, is not trixe. Nor would all his conclusioixs follow if it were. The executor is not a stranger to the property, and can not be aix inter meddler. There are undoubtedly dicta, and from distinguished judges, which countenance that assumption, and one or two decided cases in point; but tlie .cases were not well considered,- and are not authority; and the dicta are clearly founded on cases since over-ruled, or misconceptions of the great principles which lie at the foundation of the branch of international law involved, or are expressions made without sufficient consideration, in the haste of voluminous writing. Thus Judge Story, from whose Conflict of Laws both parties have quoted freely, citi'ng Campbell v. Tousey, 7 Cowen, 64, and adopting the principle on which alone that case can stand, states the law as the plaintiff claims it to be. But Campbell v. Tousey has been questioned on both the points involved in it, and is not now an authority in the state of New York, for the principles adopted in later cases are irreconcileable with it. Nor are all the other doctrines advanced by Judge Story, and cited by the plaintiff, sustainable.

° Commencing in the 512th section with the remark that “ in regard to the title of executors and administrators derived from a grant of administration in the country of the domicil of the deceased, it is to be considered that the title can not de jure extend as matter of right beyond the territory of the government which grants it, and the moveable property therein,” in which he assumes that the title of an executor as well as that of an administrator is “ derived from a grant of administration,” and noticing the fact that the title, if acknowledged at all, is acknowledged “ ex comitate,” and subject to the protection which every government owes to its own creditor citizens, he passes to the proposition that an executor or administrator can not sue or be sued in another state, and can not collect debts without being liable as executor de son tort; and closes the 514th section, cited by the plaintiff, by saying,—“ for the original administration has no extra-territorial operation.” But that is not in all respects a correct exposition of the law.

It is ti:ue, undoubtedly, that foreign laws are recognized, if at all, “ ex comitate.” But it is equally true that in every state of the Union, it is recognized law that personal property has no situs, and a title acquired to it, if good by the law of the domicil, is good every where, and will be recognized and enforced in every state, unless it conflicts with its laws or the rights of its citizens. The title is recognized ex comitate undoubtedly; that is the foundation of the rule; but it is nevertheless a settled rule of international law, and as obligatory upon the courts as any legal rule of domestic origin. Lawrence v. Kitteridge, 21 Conn., 577; Parsons v. Lyman, 20 N. York, 103. Upon every question in respect to the character and validity of the title, the foreign law is resorted to and is conclusive, and has therefore, permissively it is true, but none the less really, an extra-territorial operation ; and it is only in respect to the legal right to assert that title in or by the aid of the courts of another state, or in opposition to recognized and peculiar rights of its citizens, that the law of the domicil has no extra-territorial operation.

This executor derived a title to all the movable property of his testatrix wherever situate, not from a grant of administration, but from the will as a recognized instrument of conveyance at common law. An administrator takes his title by force of the local law and the grant of administration. So far Judge Story is right. Not so with an executor. No probate is essential to his title unless there be some local statute which makes it essential. His title accrues at the instant of death, and without probate he may do many acts which appertain to his office. He may collect debts, sell property, pay debts and legacies, Ac., and his acts will be legal. 1 Williams’ Executors, 159, 160. So far as the local laws require him to prove the.will, file an inventory, and settle the estate according to its provisions, he must conform to their directions, but such conformity is not essential to his title unless expressly made so by statute. And he may be sued and charged as executor de jure, not de son tort, unless he renounce, and upon proof of his acceptance by having acted as such, before he proves the will, for he is executor de jure, irrespective of such probate. This distinction is recognized law in this court. In Riley v. Riley, 3 Day, 74, cited by both parties, the court say:—“ By the common law the power and right of an administrator are given only "by the court that appoints him. The power of an executor is given by the will of the testator, but his right to appear in any court, and the validity of his acts in that‘capacity, depend -wholly on the probation of the will by the prerogative court within the limits of that local jurisdiction in which he claims the power to act.” And so in Massachusetts. Rand v. Hubbard, 4 Met., 252. The court there say, by Shaw, Ch. J., “ The property of goods is vested in the executor before probate. He may pay and receive debts, and may commence an action, though he shall not declare, because when he declares he must make profert of letters testamentary if he sues as executor or if the will is part of the proof necessary to his title, b\it he may maintain trover before probate for goods taken out of his possession, for then the profert of letters testamentary is not necessary.” This executor had a title therefore to all the personal property of his testatrix wherever situate, and to the debts collected in this state, subject to the rights of the plaintiff, which the courts of this state are bound to recognize by a rule of international law, founded indeed in comity, but as fixed and settled as any rule of law by which we are to be governed.

But it is further said that the defendant had no title, and was suable as executor de son tort, because it is a well settled rule of law that a foreign executor can not sue or be sued in our courts. Certainly he can not sue, because his right to do so must be shown in the suit by proving the will, and that can not be proved in a common law court. Its validity must first be established in the court to which the law has given exclusive authority to determine that question. Whether he can sue or not, therefore, is not a question of title but of evidence, and it is the same in Massachusetts as here. Rand v. Hubbard, supra. This executor could not have sued there until he proved the will, or rather he could not have maintained the suit by the introduction of the will in evidence until it had been proved in the probate court. They have had a statute there requiring a probate in order to vest the title. Whether they now have does not appear and is immaterial, for the case finds that he did prove the will there, and his title vested as if there had been no such statute. Nor is there in my mind any doubt that this defendant could be sued here as executor de jure. Most of the cases in which it has,been holden that a foreign executor could not be sued, were cases where there were no assets in the jurisdiction 'where the suit was brought, and there.was an attempt to charge him in respect to assets situate in the state or country of the domicil. Here there were assets in this state which the defendant had collected, and which the plaintiff as creditor was entitled to hare appropriated to the payment of his debt, and why should he not be suable here, if at all, for that reason, and holden to that extent, as executor de jure ? He was such, and could not and did not deny it; and not by grant of administration but by force of the will. He was suable before probate, as executor de jure, in Massachusetts^ as every executor is who does not renounce; and his condition was substantially the same here. He is sued as executor generally in either case, and why resort to the legal fiction and estoppel when it is entirely unnecessary ? Grant that it is necessary in respect to a foreign administrator, it is not so in respect to an executor. Moreover, how can they be resorted to, consistently with principle, when he is, and admits himself to be, a rightful executor, in office as such by appointment in the will, and not by force of any local , law, and therefore could not by possibility, without previous renunciation, intrude into it. All the analogies of the law bearing upon the subject will be violated, as it seems to me, by holding this executor suable as executor de son tort, and not as executor de jure.

Admitting then that if the suit will lie against him at all, it will lie as executor de jure, and not de son tort, a second question raised in the case is, whether the defendant can successfully defend on the ground that he has fully administered and paid over to creditors and legatees in Massachusetts, before suit brought, the assets collected here. Such an administration here would be a defence. Is it so when completed there ?

This question, and the incidental ones involved in it, are of great practical interest. State lines run between the domicil and place of business of hundreds of our citizens and the number is constantly increasing. It is of frequent occurrence that other citizens die who have debts due them in other states. Executors, administrators and courts of probate must act respecting them, and the law should be clearly defined. It is international law and must be settled by the courts. When therefore such questions, come up before us they should be fully considered and settled in the light of great principles which can be recognized and applied in every state, that our system of laws may be uniform, stable and intelligible. Influenced by these considerations we propose to examine the question, although, such examination is not absolutely necessary to a decision of thevcase.

In the first place, then, I assume it to be true that the will of Abigail Marcy gave the defendant a title to the debts which were owing in this state. That title we are bound by a rule of international law of universal application to recognise, so far as we can do so in justice to our creditor citizens. The plaintiff as such creditor citizen had rights in respect to those debts which we must respect. What were those rights and how far shall we respect them ? He had a right to insist that our courts should not aid the defendant unless to take letters of administration. But he had no lien upon the debts, nor had he a right to require that the title of the defendant should be wholly ignored as a non-existent thing. That is the essence of his claim, but it can not be admitted without introducing inextricable confusion into this branch of the law. Nor had he a right to insist that the defendant should refrain from any assertion of his title unless he clothed himself with authority by administration here. That is another and more plausible claim, countenanced by some early cases, but not by later and better considered ones. And upon principle we can not say that the will of a citizen of a sister state, or even a grant of administration there, do not confer any rights in respect to personal property, situate here at the time of death. The great principle that a title good by the law of the domicil is good here, is and must be to some extent recognized in respect to the title even of an administrator. Thus we recognise the right of a foreign executor or administrator to ancillary administration here. And if such administration is taken by a creditor of the deceased, we hold him to be the “ deputy or agent ” of the foreign executor or administrator, and accountable over to him for' any surplus. Perkins v. Stone, 18 Conn., 270; Dawes v. Head, 3 Pick., 141; Fay v. Haven, 3 Met., 114. If the estate at the place of domicil is-insolvent, but the assets here are sufficient to pay the debts here, we require the creditors here, upon principles of international law and not by force of any statute of ours, to submit to the foreign law of division, and take a, proportionate share of the whole estate with the foi’eign creditors, and the balance to be remitted to the principal administrator. Perkins v. Stone, supra; Davis v. Estey, 8 Pick., 475. And if the estate is solvent at the place of domicil we recognise the right of the executor or administrator to withdraw the balance found due here to be distributed there, or we distribute it here and direct the payment of it according to the law of the domicil. Lawrence v. Kitteridge, 21 Conn., 577. We should uxxdoxxbtedly hold, as oxxr courts of probate always hold, that our owxx executors and administrators are bound to inveixtory and collect debts due the deceased in other states, and as part of the duty secured by the boxxd; axid such is now the law generally. Shultz v. Pulver, 11 Wend., 361, and cases there cited by Judge Nelson; Parsons v. Lyman, 20 N. York, 103; Potter v. Hiscox, 30 Conn., 508. And if the plaintiff had taken admixxistration here, to appropx’iate the monies due the deceased here to the paymexxt of his debt, he would have been an axxcillary administrator, “ the deputy or agent ” of the defendaxxt, and bound by the law of division and distributioxx of the domicil. In all this we recognize a qixalified title in the executor or administx’ator, and to some extexxt axx extra-tex-ritorial operatioix of the foreign law, inconsistent with the broad claims of the plaiixtiff.

In the second place, I assxxme that the defendant, having such qualified right or title to the debts due here, and being under obligation to inventory them and administer them there, and for that purpose to collect them here, had a pex’fect right to collect them here and administer them there without clothing himself with administration here, if the debtors were willing to pay, and the plaintiff did not interfere and prevent it. Some of the earlier cases in Massachusetts and Vermont were decided on the ground that an administrator had no right to collect simple contract debts due in another state. Goodwin v. Jones, 3 Mass., 514; Stevens v. Gaylord, 11 id., 256; Vaughn v. Barrett, 5 Verm., 333. But Judge Shaw, in Rand v. Hubbard, questions the correctness of these decisions thus : “ These are all cases of intestacy, and turn on the authority of an administrator, as contra-distinguished from that of an executor appointed by the will of a testator. In such case it is held that as an administrator derives his whole authority from the law of the state under which he is appointed, his authority can not be extended beyond its jurisdiction ; though were it a new question there would be great convenience and perhaps some legal ground to decide, as between the states of this union, that where a principal administration is granted, that is, an administration in the state where the intestate had his domicil and by whose laws his personal property must be distributed and his estate settled, the principal administrator should so far have authority over debts due in other states by negotiable securities or otherwise, that a payment to him by the citizens of another state before administration granted in the latter should be a good discharge.” These remarks of Judge Shaw clearly show that the earlier cases referred to were not sufficiently considered, so far as they bear upon the question under consideration.

In New York it was long since holden by Chancellor Kent that a voluntary payment to a foreign administrator was good, and that the protection due their creditor citizens was sufficiently afforded by a refusal by the courts to enforce the title of a foreign administrator or executor, unless he clothed himself with an ancillary administration, and by the right of the creditor to take ancillary administration, and divest the title of the principal administrator, and appropriate the assets to the payment of his debt. That doctrine was reaffirmed in Vroom v. Van Horne, 10 Paige, 549, and in Schultz v. Pulver, already cited, and Parsons v. Lyman, 20 N. York, 103. In. tlie last case the testator was domiciled at the death in Connecticut, hut had debts due him in New York. The executor went there, collected them without taking administration there, brought them here and fully administered them. After-wards, with a view to making some transfers, the executor took ancillary administration there, and the surrogate, at the instance of legatees residing there, held that he must inventory and re-administer there the debts which he had collected there and administered here; but the Court of Appeal's reversed his decision and held, “ 1st., that the rule that personal property is subject to the law which governs the person of its owner as to its transmission by bequest or intestacy, though founded on inter-national comity, is equally obligatory upon our courts as a legal rule of purely domestic origin; 2d., that a foreign administrator, though having- no authority as such to coerce the collection of assets in this state, is equally accountable to the tribunal appointing him, where they are voluntarily paid or delivered to him here, as if they were collected within its jurisdiction, and 3d., that an executor appointed in Connecticut, receiving payment without suit from debtors of the decedent within this state, (New York,) may account therefor to the probate courts of Connecticut; and the fact that he subsequently takes out letters of administration in this state does not make him liable to account here for such assets in the course of administration under the orders of the foreign tribunal.”. And see Atkins v. Smith, 2 Atkins, 63, and Trecothic v. Austin, 4 Mason, 33. The.current of decision is now to the effect that, in the absence of an ancillary administration, a principal administrator, and a fortiori an executor, can collect and remove debts or property due or situate in another state if voluntarily paid or given up. In our own state we have no case in point. But in Upton v. Hubbard, 28 Conn., 274, Judge Ellsworth-recognized the doctrine. He said:— “ If indeed the principal executor or assignee go there (into the sister state) himself and without acquiring local authority collects a debt or receives property belonging to the estate, it is well enough, we suppose, if the creditors and legatees do not interpose and object; foi’ in such case the same end is accomplished which would be reached through an ancillary administration, and the law does not require any unnecessary formality and expense, but looks at the substance of the thing.” This dictum of the learned judge contains the gist of the whole matter. It implies a title in a foreign executor which the debtor may recognize. It implies the right and duty of the executor to collect without the unnecessary expense of local administration if he can, that is, if the debtor is willing to pay and the creditor does not interpose and object. How may he interpose and object ? Objection is dissent expressed by words or conduct. Interposition and objection then are both active, and can not consist in lying by, relying on a supposed right, incident to the debt, which may be enforced at any time. According to the decisions in New York such interposition must be by taking administration-, and clothing himself with a title, and a right to appropriate the debt in payment by administering it. And this he may do at any time before it has been fully administered at the place of domicil by the principal administrator. So I think he may sue the principal executor or administrator and hold him to the extent of the assets so collected or removed, at any time before they have been fully administered at the place of domicil. But if he lies by and neither takes administration nor brings suit until the principal executor or administrator has fully administered, he waives'his rights and the principal administrator should be protected.

In the third place, if it was true that the defendant had inter-meddled and intruded into the office, and that he was not protected by a full administration in Massachusetts, still the plaintiff could not recover in this case. The defendant is sued as executor. If in office as the plaintiff assumes, and whether he intruded or not, the plaintiff must abide his right as executor to give the notice authorized by statute. It is as essential to an intruding executor as to one appointed by the will, that he should have right to give such notice, that he may pay if the debt is due, or distribute the assets according to law if it is not. It is legal and just therefore that the plaintiff should he liolden to the bar.

We advise judgment for the defendant.

In this opinion the other judges concurred.