Stearns v. Burnham , 5 Me. 261 ( 1828 )

Mellen C. J.

delivered the opinion of the Court.

-' The only question of any moment, is whether the plaintiff is entitled to maintain this action as indorsee of the note declared on, the same having been indorsed by Mrs. Stearns, the executrix of William Stearns’s will, proved and approved in Massachusetts. It is clear that that the executrix herself, could not maintain an action in our courts upon the note, as was decided in the case of Jones v. Goodwin 3. Mass, 514, The principles and reasons on which that decision is founded are stated at large by Mr. Chief Justice Parsons ; and on this occasion a reference to that case is sufficient, for a knowledge of the learning on the subject, so far as applicable to the present case. W c would merely observe that the power of the executrix, by law, is to administer all the goods, chattels, rights and credits of the testator which are within Massachusetts. Debts due to the testator at the time of his death from persons residing in other States, are placed, by law, on the same ground as goods and chattels belonging to him and being in another State. Over these she, as executrix, deriving her authority under thelaws of Massachusetts, has no control. Wo are then led to inquire how an executor or administrator, acting under an authority derived from another State, can, by indorsing a note due from one of our citizens, give to his indorsee a power which he himself does not possess, that is, of successfully sueing for and recovering it in our courts. If this can be done, it will be an indirect mode of giving operation, in this State, to the laws of Massachusetts, as such ; or in other words, to an authority derived directly from laws, which are not in force in this State. By adopting such a principle, the effects or credits of a testatator or intestate, found in this State, might be withdrawn, which may be necessary for satisfying debts due from such testator or intestate to citizens of this State. Such a principle or course of proceeding has often been successfully opposed. 3. Mass. 517. 4. Mass. 324. 8. Mass. 515. 9. Mass. 350. 11. Mass. 269. 3. Pick, 128. 5. Cranch 289. 1. Gal. 429. 13. Mass. 146, No such consequence would follow, if the executrix should be held to prosecute for the collection of the money due on the note in her own name ; for before she could do this, she would be obliged to lile a copy of the will of the testator in some Probate Court in this State, and have the same there recorded; this having been done, the Judge of Probate would thereupon proceed to take bond of the executrix, and settle the estate (lying or being in this State,) in the saíne way and manner as he may the estates of testators whose wills have been duly proved before him. See 14th and 17th sections of the Stat. 1821, ch. 60. The principles of justice and policy on which the abovementioned provisions of our statute are founded, would seem †0 lead our courts of law to that course of proceeding, in a case like the present,- which would harmonize with those principles, and have a manifest tendency to produce the same beneficial results-- 'Phis must have been the ground of .the decision in the case of Thompson v. Wilson 2. New Hamp. Rep. 291. The facts of that casé are exactly similar to the one under consideration, and the court decided that the action .could not be maintained. It- has been said that the objection which has been urged is good only in abatement; but we are very clear that it is well sustainable on the general issue, inasmuch as it-shews that no title was derived under the indorsement, to-maintain this action, anymore than if the indorsement had been a forgery.

We are all of opinion that the verdict must be so amended as to stand as á verdict in favor of the defendant, and judgment be entered thereon accordingly- i