C. L. Allen, Justice.
By the 27th section of the act relative to granting letters of administration in cases of intestacy, (2 R. S. 73,4dh ed., 258,) it is enacted, that the surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration of the goods, chattels, and credits of persons dying intestate in the following cases:—
1. Where the intestate, at or immediately previous to his [535]*535death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened.
2. Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein.
3. Where an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate, and in no other county; and,
4. Where an intestate, not being an inhabitant of this state; shall die out of the state, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate.
These are the only cases in which the surrogate has jurisdiction to grant letters of administration. Previous to the Revised Statutes, and before the abolition of the court of probates, that tribunal had exclusive power to grant letters of administration, in cases where the intestate was not an inhabitant of the state at the time of his death, and had no assets therein, but died seized of real estate therein. (1 R. L. 444, §§ 1, 3,15; Western agt. Western, 14 J. R. 428.)
By the act of 1823, the court of probates was abolished, and the powers of that court were made to devolve on the surrogates, with a qualification that the probate of wills and grant of administration, in relation to persons dying out of the state or in it, belonged to the surrogate of the county wherein the personal property, or any personal property of the deceased,, might be at the time of his death.
In 1824, an act was passed, providing that, “ in all cases of persons dying without this state, not being inhabitants thereof, and without leaving any goods or chattels within this state, letters of administration may be granted by the surrogate of any county in this state, in the manner and according to the powers heretofore used and exercised by the judge of the court of probates. (Laws of 1824, ch. 261.)
The Revised Statutes, §§ 23 and 24, did not incorporate this last provision, but confined the jurisdiction to cases enumerated in those sections. A creditor, therefore, in a case where real estate only of a non-resident intestate is situated in the state, [536]*536but where no assets existed at the time of his death, or should afterwards come into the state, must be left to his remedy by a suit against the heirs.
In the case of Hart agt. Coltrain, (19 Wend. 378,) this question was incidentally considered; and although Chief Justice Bronson, in delivering the opinion of the court, did not exactly decide it,—as he was not called upon in that case to do so,—yet he intimates pretty strongly that no letters can be granted by the surrogate in such a case.
I conclude, therefore, that if it is sufficiently averred in the complaint, that the deceased resided, at the time of his death, in Vermont, and that he had no personal assets in this state at the time of his death, and none thereafter came into any county of the state, that then no surrogate had or could obtain jurisdiction to grant letters of administration.
If the decedent had any personal property here, or any came here after his death, then, I think, it would have been necessary to have taken out letters here, and, after exhausting these assets, to have applied for and obtained the usual order for leasing, mortgaging, or selling the real estate situated here, in the manner pointed out by the statute. The 31st section of the act (2 R. S. 75) declares, that where persons, not inhabitants of this state, shall die, leaving assets in the state, (and the same section undoubtedly applies where assets shall come into the state after his death,) and it shall appear that letters of administration on the same estate have been granted by competent authority in any other state, then the person so appointed, on producing such letters, shall be entitled to letters of administration in preference to creditors, or any other person, except the public administrator in the city of New-York; and the 27th section provides that, in cases of intestacy, if none of the relatives or guardians will accept the same, then the creditors of the deceased may apply, and the creditor first applying shall receive the letters.
The 53d section of the act (2 R. S. 109) enacts, that no suit shall be brought against the heirs or devisees of any real estate, in order to charge them with debts, within three years from the [537]*537time of granting letters testamentary, or of administration upon the estate of their testator or intestate. Section 32 (2 R. S. 452) declares the liability of the heirs and devisees; and section 33 asserts that such heirs shall not be liable, unless it shall appear that the personal assets of the deceased were not sufficient to pay and discharge the same, or that, after due proceeding before the proper surrogate’s court and at law, the creditor has been unable to prosecute the same; and section 34 declares that if part of the debt has been collected out of the personal assets, the heir shall only be liable to pay the balance. Section 36 requires that the creditor, in an action against the heirs, shall show the facts and circumstances entitling him to bring his action.
" In Butts agt. Genung, (5 Paige Ch. R. 254,) the chancellor remarked that, in cases of this kind, if the fact that the suit in this court has been brought before the expiration of three years after the granting of letters testamentary or of administration, appears upon the face of the bill, the heirs, or devisees, may demur.
The counsel for the defendant contends that the proceeding before' the surrogate in some county in this state, to procure letters, is indispensable, whether assets are in or come to the state or not, and contends that the legislature have neglected to provide for a case where the surrogate has no jurisdiction. If this view be correct, a creditor would be left wholly remediless in a case like the present, and the heir would inherit the real estate without being required to pay the debts of his ancestor. It was never the design or intention of the legislature to cut off all right to prosecute the heir, or to deprive the creditor of his common law remedy to enforce his debt against the real estate so situated.
I know that it is said, in Roe agt. Swezey, (10 Barb. 247,252,) that the statute omits to provide for the prosecution of an action against heirs at law and devisees in those cases where the surrogate has no jurisdiction over the personal estate of deceased non-resident debtors, and where no letters can issue, and that letters should actually issue, and that some suitable [538]*538person should be duly appointed, who has the power and inducement to look up and collect the assets, is indispensable for the protection of the heirs.
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C. L. Allen, Justice.
By the 27th section of the act relative to granting letters of administration in cases of intestacy, (2 R. S. 73,4dh ed., 258,) it is enacted, that the surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration of the goods, chattels, and credits of persons dying intestate in the following cases:—
1. Where the intestate, at or immediately previous to his [535]*535death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened.
2. Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein.
3. Where an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate, and in no other county; and,
4. Where an intestate, not being an inhabitant of this state; shall die out of the state, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate.
These are the only cases in which the surrogate has jurisdiction to grant letters of administration. Previous to the Revised Statutes, and before the abolition of the court of probates, that tribunal had exclusive power to grant letters of administration, in cases where the intestate was not an inhabitant of the state at the time of his death, and had no assets therein, but died seized of real estate therein. (1 R. L. 444, §§ 1, 3,15; Western agt. Western, 14 J. R. 428.)
By the act of 1823, the court of probates was abolished, and the powers of that court were made to devolve on the surrogates, with a qualification that the probate of wills and grant of administration, in relation to persons dying out of the state or in it, belonged to the surrogate of the county wherein the personal property, or any personal property of the deceased,, might be at the time of his death.
In 1824, an act was passed, providing that, “ in all cases of persons dying without this state, not being inhabitants thereof, and without leaving any goods or chattels within this state, letters of administration may be granted by the surrogate of any county in this state, in the manner and according to the powers heretofore used and exercised by the judge of the court of probates. (Laws of 1824, ch. 261.)
The Revised Statutes, §§ 23 and 24, did not incorporate this last provision, but confined the jurisdiction to cases enumerated in those sections. A creditor, therefore, in a case where real estate only of a non-resident intestate is situated in the state, [536]*536but where no assets existed at the time of his death, or should afterwards come into the state, must be left to his remedy by a suit against the heirs.
In the case of Hart agt. Coltrain, (19 Wend. 378,) this question was incidentally considered; and although Chief Justice Bronson, in delivering the opinion of the court, did not exactly decide it,—as he was not called upon in that case to do so,—yet he intimates pretty strongly that no letters can be granted by the surrogate in such a case.
I conclude, therefore, that if it is sufficiently averred in the complaint, that the deceased resided, at the time of his death, in Vermont, and that he had no personal assets in this state at the time of his death, and none thereafter came into any county of the state, that then no surrogate had or could obtain jurisdiction to grant letters of administration.
If the decedent had any personal property here, or any came here after his death, then, I think, it would have been necessary to have taken out letters here, and, after exhausting these assets, to have applied for and obtained the usual order for leasing, mortgaging, or selling the real estate situated here, in the manner pointed out by the statute. The 31st section of the act (2 R. S. 75) declares, that where persons, not inhabitants of this state, shall die, leaving assets in the state, (and the same section undoubtedly applies where assets shall come into the state after his death,) and it shall appear that letters of administration on the same estate have been granted by competent authority in any other state, then the person so appointed, on producing such letters, shall be entitled to letters of administration in preference to creditors, or any other person, except the public administrator in the city of New-York; and the 27th section provides that, in cases of intestacy, if none of the relatives or guardians will accept the same, then the creditors of the deceased may apply, and the creditor first applying shall receive the letters.
The 53d section of the act (2 R. S. 109) enacts, that no suit shall be brought against the heirs or devisees of any real estate, in order to charge them with debts, within three years from the [537]*537time of granting letters testamentary, or of administration upon the estate of their testator or intestate. Section 32 (2 R. S. 452) declares the liability of the heirs and devisees; and section 33 asserts that such heirs shall not be liable, unless it shall appear that the personal assets of the deceased were not sufficient to pay and discharge the same, or that, after due proceeding before the proper surrogate’s court and at law, the creditor has been unable to prosecute the same; and section 34 declares that if part of the debt has been collected out of the personal assets, the heir shall only be liable to pay the balance. Section 36 requires that the creditor, in an action against the heirs, shall show the facts and circumstances entitling him to bring his action.
" In Butts agt. Genung, (5 Paige Ch. R. 254,) the chancellor remarked that, in cases of this kind, if the fact that the suit in this court has been brought before the expiration of three years after the granting of letters testamentary or of administration, appears upon the face of the bill, the heirs, or devisees, may demur.
The counsel for the defendant contends that the proceeding before' the surrogate in some county in this state, to procure letters, is indispensable, whether assets are in or come to the state or not, and contends that the legislature have neglected to provide for a case where the surrogate has no jurisdiction. If this view be correct, a creditor would be left wholly remediless in a case like the present, and the heir would inherit the real estate without being required to pay the debts of his ancestor. It was never the design or intention of the legislature to cut off all right to prosecute the heir, or to deprive the creditor of his common law remedy to enforce his debt against the real estate so situated.
I know that it is said, in Roe agt. Swezey, (10 Barb. 247,252,) that the statute omits to provide for the prosecution of an action against heirs at law and devisees in those cases where the surrogate has no jurisdiction over the personal estate of deceased non-resident debtors, and where no letters can issue, and that letters should actually issue, and that some suitable [538]*538person should be duly appointed, who has the power and inducement to look up and collect the assets, is indispensable for the protection of the heirs. It must be observed, however, in that case, that no letters whatever had been issued; and in Stuart agt. Kissam, (11 Barb. 271, 282,) the court reiterate the remark made by Chief Justice Bronson in Mersereau agt. Ryerss, (2 Corn. 261,) that the heir is not liable, unless it appear' that the personal assets of the deceased were not sufficient to pay and discharge the debts; or that, after due proceedings before the surrogate’s court and at law, the creditor has been unable to collect such debt from the personal representatives of the deceased, or from his next of kin, or legatees, (see Wambaugh agt. Gates, 11 Paige, 515; which case was affirmed by the court of appeals in November, 1847—1 Howard’s Court of Appeals Cases, 247.)
I do not agree with the counsel for the plaintiff, that the issuing of letters in Vermont, and the proceedings under them, were sufficient to answer the requisitions of the statute here, to enable the plaintiff to proceed under § 53. -Those letters would have enabled the administrator, perhaps, to have received moneys, and to take possession of property if unresisted; but would not have enabled him to sue for and recover property in the state without having taken out letters here. The cases are abundant, that foreign executors and administrators cannot sue in our courts, and cannot intermeddle with property here. (1 John. Ch. R. 153; 6 id. 353; 7 id. 45; 7 Cow. 64; 9 Wend. 426; and see Story’s Confl. Laws, § 504 to 512,13,14,16.)
It should therefore appear fully and conclusively upon the face of the complaint, that the deceased not only left no assets in the state at the time of his death, but that none have come to any county since. For in such cases the surrogate would have jurisdiction to grant letters, either to the administrator in Vermont, or to the plaintiff as creditor, and his remedy for the recovery of his debt would be plain and easy. -There may have been crops growing on the land averred in the complaint to have been situated in this state at the time of the death of the decedent; these are declared by the act (2 R. S. § 6, sub. 5) [539]*539to be assets which shall go to the executor or administrator:— or there may have been other assets unsettled.
The complaint should have expressly negatived all such assets. It does, indeed, aver that defendant and Lucy Hollister, as administrator and administratrix, took possession of the estate and effects of said estate in the state of Vermont. It further avers, that the entire personal estate of said Hartley Hollister, and his real estate in Vermont, were, and are wholly and entirely inadequate and insufficient to pay and discharge the debts of said intestate. It also avers, that the defendant and said Lucy duly and fully administered the estate of said intestate, and rendered an account of the said estate, and of their administration, to said probate court in Vermont, and the same was, by an order or decree of said court, finally settled : that is, that they rendered an account of their doings in Vermont, as they would have had no authority to sue for or recover any assets in this state.
The complaint should have alleged not only that there were no assets of the decedent at the time of his death, which it does not wholly do, but that none ever came into the state after his death, and none ever were there to be administered upon, and that no letters of administration had ever been taken out, except in Vermont.
It is said, the presumption is to be indulged that the administrators had done their whole duty. Such presumption cannot prevail where it is resorted to for the purpose of making out a vital jurisdictional fact. (Corwin agt. Merritt, 3 Barb. 341.)
On this ground judgment must be entered for defendant, with leave for plaintiff to amend on the usual terms.
I have not examined, and come to any conclusion as to the remaining point taken by the defendant, namely, that the complaint does not show that the judge of probate in Vermont had jurisdiction, and does not show the powers and duties of foreign administrators.
It appears to be conceded, that \ 161 of the Code does not apply to foreign judgments; and it would seem to follow, from this, that a general averment of jurisdiction of a foreign tribunal would not be sufficient. (3 Barb. 603.)
[540]*540The plaintiff will have an opportunity of correcting this defect, if he deems it one, in his amended complaint. I am not to be understood at this time as passing any opinion upon the question.