Leach v. Pillsbury

15 N.H. 137

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Gilchrist, J.

As Timothy A. Pillsbury died intestate, after • arriving at the age of twenty-one years, without having descendants, his father, the defendant in this case, who survived him, would, by our laws, inherit his estate. N. H. Laws 352, (Ed. of 1830.)

There is sufficient evidence that the actual domicil of the deceased was in New-Orleans at the time of his death. He was over twenty-one years of age when he went there. He lived there three years, and repeatedly declared that he should mate that the place of his permanent residence. There was the fact of residence, and also the intent, and the concurrence of these constitutes the domicil. Conflict of Laws, § 44. And the succession to personal property is governed exclusively by the law of the actual domicil of the intestate, at the time of his death. Ibid., § 481; Goodall vs. Marshall, 11 N. H. Rep. 88. In this case there was no administration-upon the estate of Timothy. There was no person upon whom the defendant could call for his distributive share in the estate. There was no property which assumed the form of a distributive share. The trustee has received a sum of money which the persons who sent it to him declared was the property of his deceased brother, and directed him to dispose of it in a particular manner, with which directions he has complied. He has received no money as an agent of the defendant, and has in no manner recognized his title to the money sent him from New-Orleans. We cannot presume, in the absence of all evidence, that the laws of Louisiana, regulating the descent of intestate estates, are like the laws of New-Hampshire, or that a father, in such a state of facts, is, in Louisiana, entitled to a distributive share in the property of his son. As we cannot make such a presumption, there is no ground upon which the trustee can be charged.

It is said that the trustee has so &r intermeddled with the estate of the deceased, as to make himself an executor de son tort, and that the plaintiff may have his remedy against him, in that capacity, through the instrumentality of the trustee process. It has been held, that if a stranger take any of the intestate’s goods, and use or dispose of them, he will thus make himself an executor de son tori. Read’s Case, 3 Coke 33. And this position has been said to be correct, if taken to mean, only, that the party intermeddling may thus be charged. Mountford, Admr., vs. Gibson, 4 East 441. But whether the single act of receiving and paying out the money of the estate will make the person so far an executor de son tort, as against a rightful administrator, the act not being done in the course of administration, that the creditor may protect himself thereby, in a suit brought by the administrator, may be a question. Mountford vs. Gibson; Pickering vs. Coleman, [12 N. H. Rep. 148.] However this may be, the trustee in this case cannot be charged as an executor de son tort. The plaintiff is not a creditor of the deceased, but one of his heirs at law. The act provides, that if any person shall unlawfully intermeddle with, &c. the personal estate of a deceased person, he shall be chargeable to the creditors, or others aggrieved, &c. N. H. Laws 335, § 9, (Ed. of 1830.) Even if the creditor of an heir might be considered as coming within the class of “persons aggrieved,” and if the question of the liability of the alleged executor de son tort could be tried in this process, still the plaintiff would be met by the objection that there was no evidence that he was entitled to a share in the property of his son. No reason, therefore, occurs to us why the trustee should be holden.

Trustee discharged.