Hatchett v. Berney

65 Ala. 39

• Court: Supreme Court of Alabama
• Decided: November 15, 1880
• Status: Published

Opinion

BEICKELL, O. J.

— It is the settled doctrine of this court, and of the common law, that letters testamentary, or of administration, have no extra-territorial operation, and title derived from them extends, as matter of right, only to the personal assets which are found within the jurisdiction of the government from which they are derived. As a consequence of this doctrine, it is a general rule of the common law, that an executor, or administrator, though his letters may have been obtained at the last domicile of the deceased, and administrations in other jurisdictions would be merely ancillary, entitling him to the residuum of the assets, after satisfying the claims of the resident creditors, or next of kin, or legatees, and such residuum would be transmissible to him, can not sue, or be sued, in his representative capacity, in any other State or country than that from which the letters were derived. If he desires to reduce to possession assets elsewhere, new letters must be obtained; and if the local law would not be contravened, ea: comitate, he would be preferred in the grant of such administration. The new administration would be subservient to the rights and interests of creditors, legatees or distributees, resident within the jurisdiction from which it is obtained; and from such jurisdiction he would be permitted to withdraw only the residuum, which would be transmissible to him if some other person were the resident executor or administrator. — Densler v. Edwards, 5 Ala. 31; Childress v. Bennett, 10 Ala. 751; Harrison v. Mahorner, 14 Ala. 829; Bradley v. Broughton, 34 Ala. 694; Story’s Conf. Laws, §§ 512-13; Wharton’s Conf. Laws, §§ 604-12; Noonan v. Bradley, 9 Wall. 394.

While, as to suits for tbe recovery of the assets, the title and authority of the personal representative of the last domicile of the deceased is confined and limited to the territorial jurisdiction of the government from which they are derived, or extended only to the residuum after the satisfaction of the claims and rights of residents of other jurisdictions in which ancillary administration may be taken; there is now presented a different question — whether, in the absence of a domestic administration, his title and authority may not be voluntarily recognized, and debts paid to him, or other assets surrendered; such payment or surrender affording full protection against the claim of a domestic administrator subsequently appointed. The doctrine of the English courts is, that such payment or surrender affords no protection against the claim of a domestic administrator. — Whart. Con. Laws, § 626. A preference for the English doctrine seems to be expressed by Judge Story (Story’s Conf. Laws, § 515 a), though he had affirmed the contrary in Treatkick v. Austin, 4 Mason, 18. The Supreme Court of the United .States maintain the validity of such payments or delivery of the assets ; and the general current of authority supports them, there being, when they are made, no domestic administration. — Mackey v. Coxe, 18 How. 104; Wilkins v. Ellett, 9 Wall. 741; Parsons v. Lyman, 20 N. Y. 103 ; Whart. Conf. Laws, § 626. In Metcalf v. Lowther, 56 Ala. 312, a kindred question was presented — the validity of a payment, made by a guardian appointed and qualified in Georgia, to the guardian in Alabama, the domicile of the infant. The payment was supported, operating a discharge of the foreign guardian from a claim subsequently made by the infant.

The rule cannot be followed, however, if the local law of the foreign'jurisdiction would be violated. Each State has the right and power of determining the disposition of all property having an actual situs within its jurisdiction, and the administration of it on the death of the owner. The personal representative of the last domicile of the deceased may be left to the right and authority the general law recognizes ; or that may be enlarged, and the right and authority of a domestic personal representative may be conferred on him, so far as is deemed politic; or all recognition of his right and authority maybe withdrawn, or the terms on which he may exercise it and the validity of his acts recognized, may be prescribed.

The statute of force when the transactions referred to in the bill occurred, authorized a foreign executor or administrator, who had obtained in any other of the United States letters testamentary, or of administration, on the estate of a person who was not at his death an inhabitant of this State, to maintain suits, and recover or receive property in this Stale, upon condition that, before judgment or receipt of the property, a copy of his letters, duly authenticated, was recorded in the office of the judge of probate of the county in which suit was brought, or property received, and giving bond, with two good and sufficient sureties, payable to, and approved by the judge of probate, in such amount as he prescribed, to be determined with reference to the amount to be recovered or received, with condition to administer faithfully such recovery or property received. Before obtaining judgment, he was bound to prove a compliance with this condition ; and when there had been a compliance with the condition, the recovery of judgment, or a delivery of property to him, was “a protection to the defendant, or person delivering the property, to the extent of such judgment, or value of such property.”- — Code of 1876, §§ 2637-2640.

The statute is permissive, and prohibitory. It confers on the foreign executor, or administrator, the privilege or liberty of suing in our courts, without taking out new letters here, and the right of receiving, without suit, assets? which are here situate. Each subject is embraced and dealt with by the statute : not only the privilege of suit by virtue of his original administration, — a privilege he did not have, by the general law; but the right of receiving without suit assets here situate, — a right the general law recognized, when there was no domestic administration ; and each is placed upon the same footing. The judgment obtained by him is a protection to the defendant only when he has complied with the statutory condition ; and the voluntary delivery of property to him, without suit, can be supported, only when there has been such compliance. Though the statute does not, in words, express a prohibition of suits, or the voluntary delivery to him of property, in the absence of a compliance with the condition, yet such is its manifest spirit and intent. It prescribes the terms, upon which he may exercise here the authority derived from a foreign jurisdiction; and to the extent to which there might be recognition of such authority, in the absence of compliance, there would be practical contravention of the legislative will.

If a judgment should be obtained by a foreign executor, or administrator, without a compliance with the statute, it would not be void as between him and the party against whom it was obtained. The want of authority to maintain the suit would be matter of a plea ne unques executor, or ne unques administrator ; and it could not be presented in a more appropriate mode, under our system of pleading, in which there is no profert of letters testamentary, or of administration. It is matter of defense, which the defendant may, if he chooses, waive; and if he does waive it, he can not be heard subsequently to gainsay the force and effect of the judgment, which, as to parties and privies, would conclusively determine that the money for which it was rendered was legally, due to the plaintiff.— Cloud v. Golightly, 5 Ala. 653; Noonan v. Bradley, 9 Wall. 354. A judgment is conclusive of the rights of parties, and of all defenses which could have been urged against its rendition.

Wbile, as between parties and privies, the judgment is conclusive, as to a domestic administrator, it is res inter alios acta, — not concluding or barring any right he may derive from the grant of administration to him. If a necessity for it existed — if the foreign administrator was enforcing the judgment, while the domestic administrator was claiming, in opposition to it, the demand upon which it may be founded, seeking to compel its payment to himself — some appropriate remedy could be found for the relief of the defendant from being subjected to a double payment. Or, if payments are voluntarily made to the personal representative of the domicile, and he should account for them, so that they reached their proper destination, a court of equity would intervene for the protection of the party making them, against the claims of the domestic administrator, who, if he were permitted to recover them, would be compelled to appropriate them to the same uses and purposes to which the foreign administrator had applied them. We speak, of course, of a case like the present, where the rights and equities of no creditor, distributee, or legatee, resident in this State, would be affected.

While the judgment obtained by Sims, the domiciliary executor, against Berney, in the City Court of Montgomery, without a compliance with the statute, is not void as between the parties, it cannot be used as evidence against the appellant, nor can it affect or prejudice the rights the grant of administration to him conferred — right and title to all the assets which at the death of the testator had an actual situs within this State, or which were subsequently brought within the State. As to the appellant, the judgment is res inter alios acta — he is a stranger to it. There is no privity between a domestic and foreign administrator, though the for-* eign may be the domiciliary representative. The two administrations, though the domiciliary is styled the principal, and the other the ancillary administration, are distinct and independent, and are conducted according to the laws of the respective forums. — Story’s Conf. Laws, § 518 a; Harvey v. Richards, 1 Mason, 381; Childress v. Bennett, 10 Ala. 751; Fretwell v. McLemore, 52 Ala. 124.

At the death of Owens, the promissory notes of Berney, the mortgage given to secure their payment, and the real estate conveyed by it, were in this State, which was the place of Berney’s residence. The statute expressly declares, that when a person, not an inhabitant of this State, dies, leaving assets here, the Court of Probate of the county in which such assets are situate has authority to grant administration of them. — Code of 1876, § 2349. By the terms of the statute, the place for the grant of administration of these assets is defined. The domiciliary administrator, in the absence of a domestic administration, could, by a compliance with the statute, have entitled himself to receive them. But it is only when he has complied with the statute, subjecting himself to the jurisdiction of our courts, furnishing security here for a faithful administration of them, that he could become entitled. The policy pervading our statutes, which cover the whole subject of administrations, foreign and domestic, is, that assets here at the death of the decedent, or subsequently brought within our jurisdiction, shall be subject to a domestic administration, or shall not be withdrawn by the domiciliary foreign administrator, until he follows the statute, and thereby subjects himself to be reached and dealt with, if a necessity should exist for it, as a domestic administrator. The transactions with Sims, the foreign executor, and with Tillman, his successor, as administrator de bonis non, with the will annexed, without the record of the will and its probate, the record of the letters testamentary, and the execution of the bond, in conformity to the statutes, cannot affect the right of the appellant, a domestic administrator subsequently appointed, except so far as payments made to Sims or to Tillman may have been applied by them, as such payments would be applied if now recovered by the appellant; and to this extent, we understand the bill as recognizing their validity, and offering to allow them. These transactions were without the authority of the foreign administrator as it is defined by the statutes; and into the extent of the authority, Berney was bound, at his peril, to inquire before entering into them.

The payment of the debt in suit in the Circuit Court of the United States is recognized, and is not now a matter of controversy. The remaining notes, whatever may be the construction of the several instruments which were entered into by the parties, are not satisfied, save so far as payments may have been made to the foreign representative, which were legally appropriated by him. The foreign representative was without authority to receive them, or to enter into the written instruments, without a disregard of the statutes,

The decree of the chancellor must be reversed; and a decree will be here rendered, foreclosing the mortgage, directing an account of the mortgage debt, and ordering a sale of the premises, if it is not paid in a prescribed period; and the cause will be remanded.