Gulick v. Gulick , 21 How. Pr. 22 ( 1860 )

By the court, Bonney, Justice.

We see no cause to question the correctness of this judgment. The surrogate of New York, upon the facts stated in the complaint, clearly had power to grant letters of administration upon the estate of Richard M. Gulick in this state, and the plaintiff as such administrator is the proper representative of this estate, and authorized to prosecute any action for its benefit. (3 R. S., 5th ed., 158, § 23.)

The counsel for the appellants strenuously insists that the facts stated constitute no cause of action against either of the defendants, of which this court can take jurisdiction.

The alleged cause of action is an indebtedness of the estate of John C. Gulick to the estate of Richard M. Gulick. For such a cause, doubtless, an action may be maintained in this court if the parties are properly subject to its jurisdiction. The plaintiff is the proper representative in this state of the estate of Richard, and there can be no doubt of his right to sue here.

The defendant, Ellen, is within the jurisdiction of the court, appears in the action, and has here in her possession the property out of which plaintiff claims this indebtedness should be satisfied. Prima facie she is subject to the jurisdiction of the court.

But it is said the defendant, Ellen, as also appears from the complaint, was appointed administratrix of the estate of John C. Gulick, in the state of California, and there received the property of that estate, which she has brought with her, and now has in her possession, as such administratrix, in New York, and that for any claim against the estate of the intestate no action or proceeding can be taken or maintained against her, out of California, where only she can be required to account or answer as such administratrix. Can this position be maintained ?

The case of Campbell, adm’r, &c., agt. Tousey, ex'r, &c., (7 Cowen, 64,) was an action for money lent to defendant’s testator. At the trial it appeared that said testator resided and died in Pennsylvania, and defendant there took out letters testamentary, and qualified as executor; that as such executor he received in Pennsylvania $700 of assets, which he brought to this state, and that he here received further assets. The judge at circuit charged that defendant was liable for all the assets which he still retained in his hands, or which he had expended or disposed of in this state, otherwise than in the due course of administration; whether they were received in this state, or originally received in Pennsylvania, and thence brought to this state. On motion by defendant for a new trial the court held that there was no error in this charge; that if a foreign executor is liable to be sued here, of which there could be no question, he must, from the very nature of the case, prima facie, be responsible for the assets, which are shown to have been in his possession within this state, no matter where they may have been received; and in the opinion it is said this is the only way in which an executor, under such circumstances, can be reached.

This decision, and the reasons given for it, apply emphatically to the principal case now before us, and are decisive of it, unless they have been overruled, or the law has been since changed by statutory enactment.

The case of McNamara agt. Dwyer, (7 Paige, 239,) expressly approves the doctrine of the case in Cowen, and was decided in conformity therewith; and the case of Brown agt. Brown, (1 Barb. Ch. R., 189,) recognizes the same doctrine as settled law. We have been referred to no case in our own courts which overrules or questions the decisions above mentioned; and the cases cited from the reports of other states, or of the English courts, even if directly conflicting, (which we do not understand them to be) are not authority for disregarding those decisions, in conformity with which the demurrer of the principal defendant was overruled.

The complaint states that Melicent P. Guliclt, has or claims some interest or right in the property which the plaintiff alleges to be in the possession of the other defendant, and seeks to have applied to the payment of the debt for which this action is brought, and, if the action can be maintained against said other defendant, said Melicent is a proper party under § 118 of the Code.

The order made at special term must be affirmed, with ten dollars cost.