Sherwood v. Judd ( 1855 )

The Surrogate.

The administrator having had his final account settled before me, and a decree for distribution having been entered, the intestate’s next of kin, his father, has applied for an attachment to compel payment by the administrator, pursuant to the terms of the decree. The administrator and the intestate’s father both reside in the State of Connecticut, and the former sets up in excuse for not complying with the Surrogate’s decree, that he has been served with process in Connecticut, whereby he has “ been factorized and trusteed, and required to retain in his hands” certain sums claimed by alleged creditors of the father. If these attachments are a lien on the funds of the next of kin in the hands of the administrator, he will be excused from complying with the Surrogate’s decree. It appears that formerly an executor or administrator could not, by the law of Connecticut, be factorized by creditors of legatees or next of kin; but the statute has been altered, and there seems no longer to be any exemption of executors and administrators from this process, so far as the distributive shares of the parties entitled to the estate are concerned. His office, then, does not avail the administrator by way of answer or objection to the claims of the creditors of the distributees. The administrator and the distributee both residing in Connecticut, where the process has been issued, is there any reason why the laws of that State, and the rights of creditors residing there, should be disregarded by the courts of this State? As a general rule the laws of a foreign State where the parties interested are domiciled, will be regarded and respected in another jurisdiction, unless they are in conflict with the rights of its citizens, or from reasons of inconvenience or public policy, it would seem unwise to recognize them. Foreign laws have no extra-territorial weight or force of their own, but are frequently received and adopted ex comitate. In the present instance the accounts of the administrator have been finally settled and adjusted by me, a decree has been entered, and the administrator has been directed to pay to the intestate’s next of kin the surplus of the estate as ascertained on the accounting. The amount has been liquidated, and the decree has the force of a judgment, which, on filing a transcript with the county clerk, can be enforced by execution against the property of the administrator in this jurisdiction, in the same manner as a judgment at law. The debt may also be collected by process of attachment, but that is only an additional remedy. The decree then is to be taken as a judgment in favor of the next of kin. It establishes a debt certain. An action may be brought upon it. The debtor and the creditor both reside in Connecticut, and are subject to its laws. Debts in the language of the civil law nomina, debitorum, follow the person of the debtor, like his name. Nomina infixa svmb yus ossibus,—debita sequuntur personam debitoris. The administrator, therefore owes this debt to the father, here, by virtue of my decree, and in Connecticut, by virtue of his own personal situs. Wherever he may be, the debt is there, and a judicial remedy for its recovery will exist by its side. The same remarks apply to the father of the intestate, in respect to his relations to his own creditors. All parties, then, are subject to the jurisdiction of the same State sovereignty. This is not a conflict for priorities betwéen citizens of New York and citizens of a foreign State, but all persons claiming are citizens of Connecticut. I think the decision of the question, therefore, appropriately belongs to the tribunals of that State. In Bissell vs. Briggs, 9 Mass. R., 468, Chief Justice Parsons said, “ a debtor living in Massachusetts may have goods, effects, and credits in New Hampshire, where the creditor lives. The creditor there may lawfully attach these pursuant to the laws of that State, in the hands of the bailiff, factor, trustee, or garnishee of his debtor, and on recovering judgment these goods, effects, and credits may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this State for those goods, effects, or credits, shall in our courts be protected by that judgment; the courts in New Hampshire having jurisdiction of the cause for the purpose of rendering that judgment; and the bailiff, factor, trustee, or garnishee producing it, not to obtain execution of it here, but for his own justification.” This rule appears reasonable where the parties are resident in different jurisdictions and a fortiori, where they have the same domicil and are amenable to the same law. Debts due to nonresidents are the subject of attachment according to the law of the debtor’s place of residence, and much more then debts due to residents. I am therefore of opinion, that it is my duty to stay proceedings under the decree, against the administrator, in favor of the intestate’s father, until the claims made in Connecticut are determined by the courts of that State.