McDougald's Adm'r v. Carey

38 Ala. 534

• Court: Supreme Court of Alabama
• Decided: January 15, 1863
• Status: Published

Opinion

STONE, J.

When this case was before us twelve months ago, we made the remark, that this trust was “ created in the State of Georgia, and the suit was instituted for the purpose of collecting a debt due the trust, out of an alleged debtor’s assets in the State of Alabama and we added, “The common law is presumed to prevail in Georgia ; and by the common law, the trust title as to personalty passes, upon*the death of the trustee, to his personal representative.” We then ruled, that a trustee in place of Mr. Carey should be appointed in this State, that the suit might be revived against him.

It will be observed, that this ruling of ours rests for its support on the legal presumption that the common-law rule prevailed in Georgia. A statute of the State of Georgia has been given in evidence before us, approved December 16th, 1861, which changes the common-law rule, and, in cases like the present, authorizes the appointment of a successor to the trustee, on certain specified proceedings had for the purpose. Proceedings had in the superior court of Muscogee county, Georgia, certified according to the act of congress, have also been given in evidence before us, which show that William Dougherty has been, by that court, appointed trustee in this case, in place of Edward Carey, deceased. The statute of Georgia declares, that “ such new trustee shall have all the authority, and be subject to all the pains and penalties of such deceased or non resident trustee or assignee.” These proceedings conform to the statute in every essential particular.

It is contended, that the new trustee, aj>pointed as he was by the court, and under a statute of another State. possesses no extra-territorial power, and cannot maintain a suit in our courts. The deed of assignment was made in Georgia, by and to parties resident therein ; namely, by the Bank of Columbus, for the benefit of its creditors. It assigned all its effects, among which was a debt or debts due to the bank from Daniel McDougald. The present suit is instituted by the trustee to recover the said debt or debts of McDougald, out of assets that are in this State. We are not informed that any of the trust effects proper are in Alabama ; but the averments of the bill tend to show that a resort to the estate of McDougald within this State is necessary to the collection of this demand against him. Under such circumstances, the law-appointed trustee, assignee, or syndic of another State, may maintain an action in this State, to recover a demand which is covered by the assignment. — Hooper v. Tuckerman, 3 Sandf. Sup. Ct. 311; Hall v. Boardman, 14 N. H. 38 ; Story’s Conflict of Laws, § 420 ; Wilson v. Matthews, Finley & Co., 32 Ala. 346-8, and authorities cited.

We have examined the cases of Pickering v. Fisk, (6 Ver. 102,) Ingersoll v. Cooper, (5 Blackf. 426,) Willard v. Hammond, (1 Foster, 382,) Williams v. Mans, (6 Watts, 278,) and are of opinion that they do not conflict with this view.

This appeal stands revived in the name of William Dougherty, trustee, as appellee.