Luce v. Manchester & Lawrence Railroad , 63 N.H. 588 ( 1885 )

Letters of administration confer no extra-territorial authority as matter of right: hence the power of an executor or administrator is limited to the state or country of his appointment, and being so limited, the general rule is that he cannot sue or defend in his representative capacity in a foreign jurisdiction, — not, however, from want of title to the assets of his decedent situate in such jurisdiction, but because of his personal incapacity to enforce it.

And it is upon this ground of title that it has been so often decided by courts of the highest authority, that, in the absence of ancillary administration or statutory prohibition, the domiciliary administrator or executor has authority to take possession of and remove the goods or effects of the decedent in another jurisdiction, or to collect a debt due from a debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. Marcy v. Marcy, 32 Conn. 308, 323; Selleck v. Rusco, 46 Conn. 370, 372; Williams v. Storrs, 6 Johns. Ch. 353, 357; Doolittle v. Lewis, 7 Johns. Ch. 45, 49; Parsons v. Lyman,20 N. Y. 103, 112, 113; Petersen v. Chemical Bank, 32 N.Y. 21, 43; Citizens' Nat. Bank v. Sharp, 53 Md. 521; Klein v. French, 57 Miss. 662, 669, 670; Denny v. Faulkner, Adm'r, 22 Kan. 89-96; Trecothick v. Austin, 4 Mason 16, 33; Mackey v. Coxe, 18 How. 104; Wilkins v. Ellett, 9 Wall. 740-743 — S.C.,108 U.S. 256-258. So, too, he may sell and assign stock in a foreign corporation, and the corporation may voluntarily consent to its transfer by accepting the outstanding certificate and issuing a new one to the purchaser. Hutchins v. State Bank, 12 Met. 421, 426, 427.

The opposite view doubtless obtains in some of the textbooks, and is countenanced by dicta in some of our own reports; but the decisions cited by the plaintiff do not, even by way of dicta, go the length of holding that a voluntary and completed transfer, like that in this case, is invalid, and the clear law of the country as a whole being in favor of its validity, it is to be so regarded unless prohibited by some positive statutory enactment.

It is forcibly argued that s. 18, c. 201, Gen. Laws, is such an enactment, the section reading as follows: "Any executor or administrator appointed in another state, whose testator or intestate had his domicile there, but owned personal property in this state, upon filing an official certificate of his appointment, and that such property has been inventoried by him as part of the estate of the deceased, in the probate court of the county where such property is, or, if the same be stock in a corporation, in the probate office in the county where such corporation has its principal place of business, and publishing notice of his appointment, may, at any time after three months from the first publication of such notice, if in the meantime administration on the estate of such deceased has not been taken out in said county, sell and transfer such property or stock as if he had been appointed in this state."

But this statute is plainly an affirmative one, and as such has no apparent relation to voluntary deliveries and transfers. It simply enables foreign executors and administrators, by complying with its formalities, to compel unwilling bailees and corporations holding property of the deceased in this state to recognize their title without the expense and inconvenience of administration here; or, in other words, it merely enlarges the rights of such foreign representatives without taking away or in any manner abridging their preexisting rights or privileges.

The transfer being valid, it is unnecessary to go further. Want of equity, however, would preclude the plaintiff from a recovery. The money paid for the stock went into the hands of the Massachusetts executor as a part of the testator's estate, and the estate having once received payment for the stock by its duly accredited representative, is not equitably entitled to receive payment again; and a fortiori from the defendants who derived no benefit from the transaction. Nor does it appear that the non-compliance with the statute has occasioned the plaintiff in interest any loss or damage to which he might not have been subjected had the statute been complied with. In fact the only appreciable difference to him would seem to be that the proceeds of the sale arrived at the same destination by a shorter, quicker, and less expensive route than the statutory one.

Then, again, in making the transfer voluntarily, the defendants did only what they would have been compelled to do had the executor observed the statute formalities; and surely there is no principle of equity that will punish a party for doing what he may be compelled to do, especially when, as here, the effect of his act upon the objector is apparently the same in the one case as in the other.

Bill dismissed.

ALLEN and CARPENTER, JJ., did not sit: the others concurred.