Leonard v. Putnam , 51 N.H. 247 ( 1871 )

FOSTER, J.

In Taylor v. Barron, 35 N. H. 495, Bell, J., said, — “ In this country it is settled by many decisions, that our courts take no notice of a foreign administration, as conferring the right to sue or defend as executor or administrator; and before either can be recognized as the personal representative of the deceased, he must be clothed with authority from the laws of the State in whose courts he desires to appear. Administration only extends to the assets of the intestate within the State where it is granted.” In support of this proposition he cites numerous authorities of many State tribunals, as well as of the federal courts, — among them the case of Sabin v. Gilman, decided in 1818, 1 N. H. 193, which is clear and decisive to the same point.

The legal principle established by these and other cases, and the ground upon which they are based, is, that there is no privity between administrators, or any other officers or parties connected with the administration of estates, deriving their authority under different governments ; and it seems to be founded in the convenience, not to say necessity, of independent administrations in every State where there is-property belonging to tlie estate, and the independence of such administrations upon each other. 3 Redfield on Wills 24, n. 7; (Clark v. Clement, 33 N. H. 563; Stacy v. Thrasher, 6 How. 59.

The primary probate jurisdiction of wills, and of everything pertaining to the settlement of estates, is exclusively in the place of the domicile of the deceased. 3 Redf. Wills 20. “ Of such unqualified extent is this rule, that a will cannot bo used as evidence affecting the title of personalty, in any court of common law, until it has been proved and allowed in the probate court. Strong v. Perkins, 3 N. H. 517; Kittredge v. Folsom, 8 N. H. 110. And by our laws, “ no person shall intermeddle with the estate of any person deceased, or act as administrator thereof, until he has given bond to the judge” of probate. Gen. Stats., ch. 176, sec. 12. So, also, “ all proceedings in relation to the settlement of the estate of a person deceased, or in relation to the property or estate of any person under guardianship, shall be had in the court of probate of the county in which administration was granted, or in which the guardian was appointed.” Gen. Stats., ch. 170, secs. 7, 8.

These statutory provisions are indicative of the supposed necessity for the maintenance of a certain, established, and independent jurisdiction of all matters relating to the administration and settlement of estates.

“ As a general rule, in the American States,” says Mr. Eedfield, “ the authority of a personal representative is strictly limited to the State from which it is derived. This is in analogy to the practice in the ecclesiastical courts, where the ordinary was held to have no authority beyond the limits of his own diocese, and that consequently he could confer none.” 3 Redf. Wills 24.

And Chancellor Kent says, — “ The general rule in this country and in England is, that letters testamentary or of administration granted abroad give no authority to sue or be sued in another jurisdiction, though they may be sufficient ground for new probate authority.” 2 Kent’s Com. *432, note (c); Tourton v. Flower, 3 P. Wms. 369.

As to the settlement of estates, the several States are regarded as strictly foreign to each other. Goodwin v. Jones, 3 Mass. 514; Dixon v. Ramsay, 3 Cranch 319; Wood v. Gold, 4 McL. C. C. 577.

The administrator appointed in one State has no power over the property in another State. Taylor v. Barron, before cited; Goodall v. Marshall, 11 N. H. 88; Willard v. Hammond, 21 N. H. 385; 2 Kent’s Com. 431. He has no interest in debts due there, nor any authority to collect them. Thompson v. Wilson, 2 N. H. 291; Heydock's Appeal, 7 N. H. 503; Taylor v. Barron, before cited.

There is, therefore, as before stated, no privity between administrators appointed in different jurisdictions. In England and in Ireland administration may be granted in certain archiepiscopal provinces, and in certain “ royal peculiars ” like the city of London ; and if there are bona notabilia in each of these jurisdictions, administration must be granted in each. And administration granted in either of these provinces or peculiars is void and inoperative as to any estate of tlie deceased which is not assets within that jurisdiction. See cases cited in Taylor v. Barron, 3 Redf. Wills 29, n. 16.

Simple contracts and dioses in action are assets where the debtors reside. Story’s Confl. 425. An administrator, appointed in York, cannot bring saire facias in the queen’s bench on a judgment which is assets in the province of Canterbury. Carlise v. Greenwood, 7 Mod. 15.

Mr. Justice Bell says, — “ No ease has been found in England where an administrator, appointed in one province, has attempted to bring an action founded on the idea that any privity existed between him and an administrator appointed in another province; nor any case where a defence has been set up on that ground.” 35. N. H. 495.

There can be no distinction in principle between the ease of nonresident guardians and foreign executors or administrators, with regard to tiie matter of the present inquiry. See Commonwealth v. Rhoads, 37 Pa. St. 60.

And “ according to the doctrine of the common law, now fully established both in England and America, the rights of a guardian over all property whatsoever are strictly territorial, and are recognized as having no influence upon such property in other countries or States, where different systems of jurisprudence are established. No foreign guardian can, virtute officii, exercise his functions in another country or State, without taking out other letters of guardianship, or otherwise conforming to the local law. Such is the rule in both countries.” Schoul. Dom. Rel. 445 ; Story Confl. Laws, sec. 504; Cooley’s Const. Lim. 340.

In Powers, guard’n, v. Mortee, 4 Am. Law Reg. 427, the U. S. circuit court decided that the “ authority conferred on a guardian in New York can give him no right to-come into Louisiana and take the minor’s property there, which is already in the possession of a legal tutrix,” the court, McCaleb, J., saying, — “It is impossible to perceive upon what solid grounds the claims of the plaintiff in this case can rest. The rights and powers of guardians are considered as strictly local, and not as entitling them to exercise any authority over the person or personal property of their wards in other States, upon the same general reasoning and policy which have circumscribed the rights and authorities of executors and administrators.”

And see Morrell v. Dickey, 1 Johns. Ch. 153; Sprague v. Litherberry, 4 McL. 442.

And Judge Story (Confl. Laws, sec. 504 a) uses this language: “No foreign guardian can, virtute officii, exercise any rights or powers or functions over the movable property of his ward, which is situated in a different State or country from that in which he has obtained his letters of guardianship. But he must obtain new letters of guardianship from the local tribunals authorized to grant the same, before he can exercise any rights, powers, or functions over the same.” “ Eew decisions upon the point,” he says, “ are to be found in the English or American authorities, probably because the principle has always been taken to be unquestionable, founded upon the close analogy of tlie case of foreign executors and administrators.”

Mr. Stoey, at the time of the publication of the first edition of his “ Conflict of Laws,” seemed to consider the weight of foreign authority to be in favor of allowing the guardian to assert his claims everywhere, to the same extent as they are acknowledged by the law of the domicile (Story Confl. Laws, sec. 600) ; and such, says Mr. Schouler, seems to be the Scotch doctrine. But the opinion of Judge Story, with regard to the weight of authority in this respect, became much modified before the publication of the third edition of his “ Conflict.” See secs. 600 a and 504 a.

And Mr. Frazer, in his commentaries on the Scotch law of guardian and ward, page 604, while declaring the practice to be to recognize the nomination of executors in a foreign testament, asserts that they must be required to “ go through the form of taking out confirmation, at all events, before they can extract decree, in any action raised by them to recover Scotch estate.”

It is manifest that the weight of American authority is very strong against the right of the present plaintiff to maintain this action by his guardian, deriving authority solely from the laws of New York.

The indulgence of a liberal comity might authorize us to retain jurisdiction of the present suit, and to permit the infant plaintiff' to prosecute it by a guardian appointed by this court, ad litem; but we are not inclined to depart from the established practice, founded, as we regard it, upon strong considerations of convenience, uniformity, and certainty, amounting nearly to necessity, and in a sound policy plainly indicated by our laws, in the various and specific provisions enacted for the protection and security of the property and estate of minors, and for the control of those charged with the trust of guardianship. See Gen. Stats., ch. 166; ch. 165, secs. 11-21; ch. 170, sec. 3.

The plaintiff, in support of his claim to prosecute this suit, invokes the aid of the constitution of the United States, art. 4, sec. 1, which declares that “ full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.”

But it is clear that this provision was not intended to prevent an inquiry into the right of the foreign State to exercise authority over the parties or the subject-matter. The constitution does not confer any new power upon the States, but it intends simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It does not make foreign judgments domestic judgments to all intents and pui'poses, but only gives a general faith, credit, and validity to them as evidence. Story’s Const., ch. 29; Story’s Confl. Laws, sec. 609; Cooley’s Const. Lim. 17, note 1;—see Thurber v. Blackbourne, 1 N. H. 242; Hall v. Williams, 6 Pick. 232.

We have shown that no legal privity exists between the administrator here and the guardian deriving his authority from a foreign government, and it is clearly settled that without such privity no right of action accrues. Talmage v. Chapel, 16 Mass. 71; Aspden v. Nixon, 4 How. 467; Stacy v. Thrasher, 6 How. 44; Taylor v. Barron, 35 N. H. 498; Cooley’s Const. Lim. 48, 49.

It may deserve consideration whether the probate court may not, in a judicious exercise of power, direct the payment of the fund in this case into the hands of the foreign guardian. It is suggested that in the.exercise of such power the court should take a special bond for the safety of the fund and the due account thereof to the heir, unless the court should be satisfied that the general guardian and his sureties would be responsible for the fund in the State where the appointment of guardian was made. See Baker Andrews’s Heirs, 3 Humph. 592.

It would seem that by such order an administrator would be protected. But this case is not an application to the probate court, and this action cannot be maintained as a matter of right.