The opinion of the court -was delivered by
Redfield Ch. J.
In regard to the jurisdiction of the probate court, to grant administration in this state, we think the case comes within the general principle so often announced, that it cannot be attacked collaterally, but the question must be raised, by some proceeding before that court in the first instance, which could only be revised in this court by appeal to the county court, and exceptions or writ of error to this court. The consideration that the facts are agreed upon in this case, can make no difference. The proceeding is not in the proper court for the testimony to operate, otherwise than collaterally.
But we do not see but the same question virtually arises in regard to the plaintiff’s right to recover this money of the widow of the deceased ; i. e., if this is all the estate there is in this state.
The proper place for the principal administration in this case, is undoubtedly not here. It is either in California, or in Massachusetts, in one of which places the intestate had his residence at the time of his decease. This money should have been administered either in one or the other of those states. And the fact that no administration has yet been taken in either of those states, will make no difference, as that may be done hereafter. We should probably be bound to decide this question the same as if an administration existed in Massachusetts, and a suit were there pending for this same money.
[668]*668It is well settled that if the. debtor resided in this state at the time the money was received, as she did in Massachusetts, that any discharge of a foreign administrator could not affect the right of the administrator in this state to recover the debt; Vaughn v. Barrett, 5 Vt. 333, and cases there cited.
In regard to the principal administration, it seems to be well enough settled in some states, although the rule may not be settled here, that assets brought from a foreign jurisdiction into the one of the domicil of the intestate, are to be there administered. These funds then did properly belong to the jurisdiction of California or Massachusetts, and should have been there remitted, and administered. s ,
The intestate had his residence in Massachusetts up to Decent*ber, 1848, and left his wife and child there when he went to California ; and there is nothing in the case to show t that he ever changed his residence to any other place. It is obvious he had no residence in Vermont at the time of his decease. Ilis wife could not change his residence here, in his absence, and without his consent, and she returned to Massachusetts in the spring of 1850, “ where she has ever since resided,” as the case states. So that Massachusetts is probably to be regarded as the place of the domicil of the intestate, at the time of his decease, and was clearly the place of residence of this debtor, at the time she received the money.
The funds, then, which were collected in California, should have been remitted to Massachusetts and there administered, or else retained in California; and as the widow then resided in Massachusetts, we think paying them to her, whether the act was done in that state or in this, is to be regarded as remitting them to the place of the domicil of the deceased, and that they are not liable to he administered in this state, or in any other place out of Massachusetts, unless in California.
It is well settled that dioses im action belonging to the deceased are, for this purpose, to be regarded as having their situs in the place of the residence of the debtors. That was the rule of the common law, as to simple contract debts ; Carthews 373 ; Salkeld 37 ; Lord Raymond 562. And any discharge in regard to these funds out of California where they were at the decease, unless in [669]*669the place of. the domicil of the deceased, at his death, will be altogether unavailing. It is settled in this state by the cases referred to, beyond all question, that the release of the plaintiff for these funds would be no discharge either to Hutchinson, who collected them, or to Cooley, who brought them out of California, or to the defendants who received them. And by parity of reasoning, as we think, a judgment in his favor would have no greater effect. That could only extend to the merger of Ms rights. And if he had no right to the funds, the judgment could not affect the rights of an administrator in Massachusetts where the debtor resides. Unless, then, the funds have been remitted to the place of the domicil of the deceased, which Vermont clearly is not, all who have had any agency in collecting or transmitting them are liable to the suit of an administrator, either in Massachusetts or California, according to the case of Welchman v. Sturgis, 66 Com. L. 552; and Bullock Admr. v. Rogers, 16 Vt. 294. And any judgment we might here give would afford no protection against such suit. For if the defendants are liable here, because the money was received here from Cooley, which does not appear, but may be true, then Cooley is liable here also for paying it over, as was held in the English case last cited, and he is equally liable in every state through which he carried the money. And if the defendants are liable here, so are they equally in New Hampshire, if they carried the money from this state to Massachusetts. But, according to the case in 66 Eng. Com. Law R., Hutchinson is liable as for a tort, as executor de son tort, for collecting these funds; and it is only by waiving the tort, that any action for the money lies. But it is questionable whether that rule will apply indifferently to all persons to whom that money came, as money has no ear mark, and is incapable of being identified. For Hutchinson’s paying over the money did not release his liability. He is still liable for all the money he collected, and cannot deduct even the debts which he paid for the estate, And the persons of whom he collected the money were not discharged of their obligation to the estate by payment to him, unless he remitted the money to the rightful administrator in the place of the domicil. And if Cooley were ever liable, his paying over the money to the widow will not release him until she remits the money to the rightful administrator in the place of domicil. [670]*670That, then, is the duty of Hutchinson, Cooley and the defendant Caroline.
A debt, by the decease of the creditor, becomes bona notabilia, or assets in the place of residence of the debtor ; and, according to our decisions, no one but an administrator in that state can collect it, or release it, or properly administer it. It is no longer transitory, as before the decease of the creditor, but becomes local, and is confined to the probate jurisdiction of the debtor’s residence, unless it be remitted to the administrator of the place of the domicil of the deceased, as is held in some states ; but that is no discharge here, I think. That is the very point decided in Bullock Admr. v. Rogers, 16 Vt. 294. That action, it is expressly decided there, would not lie for the debt because the debtor resided in New York, but it was sustained for the instrument which did belong to the administrator in Vermont that being the place of domicil. We think, therefore, that this action cannot be maintained, upon the facts stated, in the courts of this state.
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The opinion of the court -was delivered by
Redfield Ch. J.
In regard to the jurisdiction of the probate court, to grant administration in this state, we think the case comes within the general principle so often announced, that it cannot be attacked collaterally, but the question must be raised, by some proceeding before that court in the first instance, which could only be revised in this court by appeal to the county court, and exceptions or writ of error to this court. The consideration that the facts are agreed upon in this case, can make no difference. The proceeding is not in the proper court for the testimony to operate, otherwise than collaterally.
But we do not see but the same question virtually arises in regard to the plaintiff’s right to recover this money of the widow of the deceased ; i. e., if this is all the estate there is in this state.
The proper place for the principal administration in this case, is undoubtedly not here. It is either in California, or in Massachusetts, in one of which places the intestate had his residence at the time of his decease. This money should have been administered either in one or the other of those states. And the fact that no administration has yet been taken in either of those states, will make no difference, as that may be done hereafter. We should probably be bound to decide this question the same as if an administration existed in Massachusetts, and a suit were there pending for this same money.
[668]*668It is well settled that if the. debtor resided in this state at the time the money was received, as she did in Massachusetts, that any discharge of a foreign administrator could not affect the right of the administrator in this state to recover the debt; Vaughn v. Barrett, 5 Vt. 333, and cases there cited.
In regard to the principal administration, it seems to be well enough settled in some states, although the rule may not be settled here, that assets brought from a foreign jurisdiction into the one of the domicil of the intestate, are to be there administered. These funds then did properly belong to the jurisdiction of California or Massachusetts, and should have been there remitted, and administered. s ,
The intestate had his residence in Massachusetts up to Decent*ber, 1848, and left his wife and child there when he went to California ; and there is nothing in the case to show t that he ever changed his residence to any other place. It is obvious he had no residence in Vermont at the time of his decease. Ilis wife could not change his residence here, in his absence, and without his consent, and she returned to Massachusetts in the spring of 1850, “ where she has ever since resided,” as the case states. So that Massachusetts is probably to be regarded as the place of the domicil of the intestate, at the time of his decease, and was clearly the place of residence of this debtor, at the time she received the money.
The funds, then, which were collected in California, should have been remitted to Massachusetts and there administered, or else retained in California; and as the widow then resided in Massachusetts, we think paying them to her, whether the act was done in that state or in this, is to be regarded as remitting them to the place of the domicil of the deceased, and that they are not liable to he administered in this state, or in any other place out of Massachusetts, unless in California.
It is well settled that dioses im action belonging to the deceased are, for this purpose, to be regarded as having their situs in the place of the residence of the debtors. That was the rule of the common law, as to simple contract debts ; Carthews 373 ; Salkeld 37 ; Lord Raymond 562. And any discharge in regard to these funds out of California where they were at the decease, unless in [669]*669the place of. the domicil of the deceased, at his death, will be altogether unavailing. It is settled in this state by the cases referred to, beyond all question, that the release of the plaintiff for these funds would be no discharge either to Hutchinson, who collected them, or to Cooley, who brought them out of California, or to the defendants who received them. And by parity of reasoning, as we think, a judgment in his favor would have no greater effect. That could only extend to the merger of Ms rights. And if he had no right to the funds, the judgment could not affect the rights of an administrator in Massachusetts where the debtor resides. Unless, then, the funds have been remitted to the place of the domicil of the deceased, which Vermont clearly is not, all who have had any agency in collecting or transmitting them are liable to the suit of an administrator, either in Massachusetts or California, according to the case of Welchman v. Sturgis, 66 Com. L. 552; and Bullock Admr. v. Rogers, 16 Vt. 294. And any judgment we might here give would afford no protection against such suit. For if the defendants are liable here, because the money was received here from Cooley, which does not appear, but may be true, then Cooley is liable here also for paying it over, as was held in the English case last cited, and he is equally liable in every state through which he carried the money. And if the defendants are liable here, so are they equally in New Hampshire, if they carried the money from this state to Massachusetts. But, according to the case in 66 Eng. Com. Law R., Hutchinson is liable as for a tort, as executor de son tort, for collecting these funds; and it is only by waiving the tort, that any action for the money lies. But it is questionable whether that rule will apply indifferently to all persons to whom that money came, as money has no ear mark, and is incapable of being identified. For Hutchinson’s paying over the money did not release his liability. He is still liable for all the money he collected, and cannot deduct even the debts which he paid for the estate, And the persons of whom he collected the money were not discharged of their obligation to the estate by payment to him, unless he remitted the money to the rightful administrator in the place of the domicil. And if Cooley were ever liable, his paying over the money to the widow will not release him until she remits the money to the rightful administrator in the place of domicil. [670]*670That, then, is the duty of Hutchinson, Cooley and the defendant Caroline.
A debt, by the decease of the creditor, becomes bona notabilia, or assets in the place of residence of the debtor ; and, according to our decisions, no one but an administrator in that state can collect it, or release it, or properly administer it. It is no longer transitory, as before the decease of the creditor, but becomes local, and is confined to the probate jurisdiction of the debtor’s residence, unless it be remitted to the administrator of the place of the domicil of the deceased, as is held in some states ; but that is no discharge here, I think. That is the very point decided in Bullock Admr. v. Rogers, 16 Vt. 294. That action, it is expressly decided there, would not lie for the debt because the debtor resided in New York, but it was sustained for the instrument which did belong to the administrator in Vermont that being the place of domicil. We think, therefore, that this action cannot be maintained, upon the facts stated, in the courts of this state.
We are liable to some confusion of perception upon the subject of disposing of the effects of deceased persons, by attempting to keep up, in our minds, the same views and analogies which apply to the same species of property while all parties concerned are still living; and also by apprehending money as capable of identification.
The truth undoubtedly is, that, as to choses in action, after the decease of one of the parties, they are incapable of any change, until the intervention of a personal representative of such deceased party, appointed by the proper municipal authorities of the place of the domicil of the debtor. Such choses in action can never be transferred, paid, or in any other manner affected, while one of the parties is legally extinct. Upon the appointment of the representative, the law throws the rights of the deceased party upon him just as they existed at the decease, except that any interference with the concerns of the deceased is regarded as a tort, and an action accrues from the perpetration of the wrong, by relation, which the representative may take up and prosecute.
Money, too, is incapable of identification. Hutchinson, by attempting to collect debts due Lester Abbott did not in fact obtain any money of the deceased. It was the money of the persons of whom [671]*671he obtained it, and when paid to him it became his own. The debtors •of the deceased did not by the transaction pay their debt. They, at most, acquired the obligation of Hutchinson to see it paid in a legal manner, in consideration of having received the amount of money. And the law, regarding this as a tort, will allow the representative of the deceased to waive the tort, and sue for the money by means of a legal fiction. So, too, all persons consenting to this tort, and receiving the avails of it, with the same undertaking to see it paid to the legal representative of the deceased, may possibly be liable for the money at the suit of the representative, by means of a legal fiction. But in all this, the law keeps up no idea of the identity of the money. Nor is it of the least importance whether it be the identical money or not. If that idea were to affect the case, the present plaintiff might himself be said to have received the money of the estate, and therefore be bound to administer it. But nothing of that is found. 'For he received the money of the widow, and clearly did not implicate himself in the original tort by which it was obtained, inasmuch as he was to pay it back to her. The money, all along, belongs to the several persons who pay and receive it. But by the transaction they may or may not be regarded as consenting to' the original tort, and adopting it. But if they do, the consent to the original wrong is not itself a new and independent tort, to be answered for in the place where the transaction occurred.
According to the decisions in this state, I think the transmitting of this money to Massachusetts, and having it there administered that being the place of the domicil of the deceased, would afford no protection against the claim of an administrator appointed in California, who should sue either Hutchinson or the original debtors ; or at least that is questionable upon our decisions. But Judge Stort lays down the rule, in his Conflict of Laws, that remitting the funds to the administrator in the place of domicil will be a discharge, and, upon principle and for convenience, I think it should be so. But he refers to no cases where it has been so held in England, and I doubt if any spck principle has ever been there recognized. I think that is the rule of some of the American states, but no such rule could be applied to a merely auxilliary administration, which the plaintiff’s 'clearly is. It seems to usf [672]*672therefore, impossible to find .any satisfactory ground upon which the plaintiff’s right to this money can be vindicated. There may have been actions maintained in this state, where this same question might have been raised and was not. Courts do not ordinarily feel hound to go beyond the questions raised in argument, and when that is attempted, it is often at the hazard of making a wrong decision. And where the objection is merely technical, it would never be raised by the court, if not pointed out, or certainly, not ordinarily. Judgment reversed, and judgment for the defendant.