Waite, J.
The only question, presented for our consideration, in the present case, is. whether the plaintiff has such an interest in the subject matter of the suit, as will enable him to maintain his action. His right to sue, in this state, is not denied; and no question is made as to the jurisdiction of the court, in consequence of the residence of the defendants in Massachusetts, and the service of process upon one of them only.
The paper in the possession of the defendants, was the property of Hudson, at the time of his decease ; and had it then been within the jurisdiction of this state, the legal title would have immediately passed to the plaintiff, upon his appointment as administrator. In that case, there would clearly have been no legal impediment in the way of his recovery.
But it is insisted, that as the property was within the jurisdiction of another state, the plaintiff, by virtue of letters of administration granted to him in this state, acquired no title or interest in it. Had it been necessary for the plaintiff to go into the state of Massachusetts to bring his action, it is con[275]*275ceded, that he must have taken out letters there, to enable him to sue in his representative character. But as he is under no necessity of invoking the aid of the courts of that state, his case is not brought within the operation of the rule which precludes an administrator appointed in one state, from suing in the courts of another.
The question still recurs, has the plaintiff, under the circumstances of the present case, an interest in the personal property of the deceased in the state of Massachusetts. It, therefore, becomes necessary to advert to the laws of that state, to determine the rights and obligations of the defendants, in relation to that property. And by a recent statute, we are authorized to notice judicially the reports of the decisions of other states, for the purpose of ascertaining their common law, and the construction given to their statutes. Stat. of 1840.
Now, it seems to be well settled, by a course of decisions there, that as the plaintiff is appointed administrator in the state where the deceased had his domicil, he is to be considered as the principal administrator; and an administrator appointed there, would be considered as merely ancillary to him — as his deputy or agent. Dawes v. Head & al. 3 Pick. 141. Fay v. Haven & al. 3 Metc. 114. Stevens, admr. v. Gaylord, 11 Mass. R. 263.
All the property that might be collected in that state, not needed for the payment of debts that might be presented there, and the necessary expenses attending the ancillary administration, could lawfully be paid and delivered over to the plaintiff, and be by him disposed of, in the same manner as the property of the deceased collected within this state. Fay v. Haven & al. 3 Metc. 114.
But, in this case, as the estate is insolvent, were there creditors, in Massachusetts, they would be entitled to receive no more of the estate than creditors residing in this or any other state. The mere circumstance that a portion of the goods of the deceased were found within the jurisdiction of that state, would give them no right to receive a greater dividend than if they had presented their claims against the estate here. The only advantage they would gain, would be merely the right to receive their dividends from the ancillary, instead of the principal, administrator. Davis v. Estey & al. 8 Pick. 475.
[276]*276But it is conceded, that, in the present case, it does not appear that there are any creditors whatever in that state. If such be the fact, then the plaintiff, if he were compelled to collect his claim against the defendants, through the agency of an ancillary administrator, would be entitled to the whole avails of the property in the hands of the defendants', after deducting the necessary expenses of collecting and transmitting the funds.
It is very apparent, therefore, that the plaintiff, in his character of administrator, and representing, as he does, the interests of all the creditors of the deceased, who, as the estate is insolvent, are entitled to the avails of all his property, has an interest, and a very important interest, in the funds in the hands of the defendants.
It is to be observed, that the present suit is not in relation to any property now i% existence in another state, but is brought to recover damages for an unlawful disposition of the property of the deceased. Suppose the defendants, after the sale of the property complained of, had removed into Connecticut. To whom would they be liable for the damages resulting from their misconduct? To the plaintiff, or to an administrator to be appointed in Massachusetts ? If the latter, how is he to obtain redress ? The defendants, by their removal to this state, place themselves beyond the jurisdiction of the courts of Massachusetts, and the reach of their process.
The administrator there cannot resort to the property: for the case shows that to be wholly lost and gone. He cannot call upon the defendants, for they are beyond his jurisdiction. He cannot follow them into this state, and sue them, because his authority is limited to the jurisdiction of the state, which clothed him with power to act as the representative of the deceased. In such case, it seems to us clear, that the defendants would be, liable to the plaintiff, for the unlawful conversion of the property of the deceased, although the wrong was committed by them, in another state. Such must be the necessary result; or the defendants, by a removal after the conversion, might escape, with impunity, the consequences of their illegal conduct.
It is true, in the present case, there has been no removal of the defendants from the state where the wrong complained of was committed. But they are found in this state, at least one [277]*277or them, and the plaintiff sues for their misconduct. The defendants do not show that they are liable for the damages to - any other person. Under these circumstances, we cannot say, that the plaintiff has not such an interest in the subject mat ter of the suit as that he cannot recover. The case would be different, were it shown, tiiat there was an administrator in the state where the defendants belong, to whom they are answerable. But as there is no such administrator, andas it does not appear that there are any persons in the state of Massachusetts, having any interest in the demand against the defendants, the court are rather inclined to the opinion that there is no legal impediment in the way of the plaintiff’s recovery.
But there is another view of this case, which is not to be disregarded. The paper in question was the property of Hudson. Upon his decease, although it remained in the possession of the defendants, their power over it was gone. The legal title would vest in an administrator, whenever appointed. The plaintiff obtains that appointment, in the state where the deceased belonged. If he did not thus acquire a legal title, as we have already shown, he thereby acquired a beneficial interest therein, for the benefit of the creditors, whom he represented. He gives notice of that appointment to the defendants, and directs them as to the disposition of the property. They receive those directions, and act under them, without objection as to Ids power or rights.
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Waite, J.
The only question, presented for our consideration, in the present case, is. whether the plaintiff has such an interest in the subject matter of the suit, as will enable him to maintain his action. His right to sue, in this state, is not denied; and no question is made as to the jurisdiction of the court, in consequence of the residence of the defendants in Massachusetts, and the service of process upon one of them only.
The paper in the possession of the defendants, was the property of Hudson, at the time of his decease ; and had it then been within the jurisdiction of this state, the legal title would have immediately passed to the plaintiff, upon his appointment as administrator. In that case, there would clearly have been no legal impediment in the way of his recovery.
But it is insisted, that as the property was within the jurisdiction of another state, the plaintiff, by virtue of letters of administration granted to him in this state, acquired no title or interest in it. Had it been necessary for the plaintiff to go into the state of Massachusetts to bring his action, it is con[275]*275ceded, that he must have taken out letters there, to enable him to sue in his representative character. But as he is under no necessity of invoking the aid of the courts of that state, his case is not brought within the operation of the rule which precludes an administrator appointed in one state, from suing in the courts of another.
The question still recurs, has the plaintiff, under the circumstances of the present case, an interest in the personal property of the deceased in the state of Massachusetts. It, therefore, becomes necessary to advert to the laws of that state, to determine the rights and obligations of the defendants, in relation to that property. And by a recent statute, we are authorized to notice judicially the reports of the decisions of other states, for the purpose of ascertaining their common law, and the construction given to their statutes. Stat. of 1840.
Now, it seems to be well settled, by a course of decisions there, that as the plaintiff is appointed administrator in the state where the deceased had his domicil, he is to be considered as the principal administrator; and an administrator appointed there, would be considered as merely ancillary to him — as his deputy or agent. Dawes v. Head & al. 3 Pick. 141. Fay v. Haven & al. 3 Metc. 114. Stevens, admr. v. Gaylord, 11 Mass. R. 263.
All the property that might be collected in that state, not needed for the payment of debts that might be presented there, and the necessary expenses attending the ancillary administration, could lawfully be paid and delivered over to the plaintiff, and be by him disposed of, in the same manner as the property of the deceased collected within this state. Fay v. Haven & al. 3 Metc. 114.
But, in this case, as the estate is insolvent, were there creditors, in Massachusetts, they would be entitled to receive no more of the estate than creditors residing in this or any other state. The mere circumstance that a portion of the goods of the deceased were found within the jurisdiction of that state, would give them no right to receive a greater dividend than if they had presented their claims against the estate here. The only advantage they would gain, would be merely the right to receive their dividends from the ancillary, instead of the principal, administrator. Davis v. Estey & al. 8 Pick. 475.
[276]*276But it is conceded, that, in the present case, it does not appear that there are any creditors whatever in that state. If such be the fact, then the plaintiff, if he were compelled to collect his claim against the defendants, through the agency of an ancillary administrator, would be entitled to the whole avails of the property in the hands of the defendants', after deducting the necessary expenses of collecting and transmitting the funds.
It is very apparent, therefore, that the plaintiff, in his character of administrator, and representing, as he does, the interests of all the creditors of the deceased, who, as the estate is insolvent, are entitled to the avails of all his property, has an interest, and a very important interest, in the funds in the hands of the defendants.
It is to be observed, that the present suit is not in relation to any property now i% existence in another state, but is brought to recover damages for an unlawful disposition of the property of the deceased. Suppose the defendants, after the sale of the property complained of, had removed into Connecticut. To whom would they be liable for the damages resulting from their misconduct? To the plaintiff, or to an administrator to be appointed in Massachusetts ? If the latter, how is he to obtain redress ? The defendants, by their removal to this state, place themselves beyond the jurisdiction of the courts of Massachusetts, and the reach of their process.
The administrator there cannot resort to the property: for the case shows that to be wholly lost and gone. He cannot call upon the defendants, for they are beyond his jurisdiction. He cannot follow them into this state, and sue them, because his authority is limited to the jurisdiction of the state, which clothed him with power to act as the representative of the deceased. In such case, it seems to us clear, that the defendants would be, liable to the plaintiff, for the unlawful conversion of the property of the deceased, although the wrong was committed by them, in another state. Such must be the necessary result; or the defendants, by a removal after the conversion, might escape, with impunity, the consequences of their illegal conduct.
It is true, in the present case, there has been no removal of the defendants from the state where the wrong complained of was committed. But they are found in this state, at least one [277]*277or them, and the plaintiff sues for their misconduct. The defendants do not show that they are liable for the damages to - any other person. Under these circumstances, we cannot say, that the plaintiff has not such an interest in the subject mat ter of the suit as that he cannot recover. The case would be different, were it shown, tiiat there was an administrator in the state where the defendants belong, to whom they are answerable. But as there is no such administrator, andas it does not appear that there are any persons in the state of Massachusetts, having any interest in the demand against the defendants, the court are rather inclined to the opinion that there is no legal impediment in the way of the plaintiff’s recovery.
But there is another view of this case, which is not to be disregarded. The paper in question was the property of Hudson. Upon his decease, although it remained in the possession of the defendants, their power over it was gone. The legal title would vest in an administrator, whenever appointed. The plaintiff obtains that appointment, in the state where the deceased belonged. If he did not thus acquire a legal title, as we have already shown, he thereby acquired a beneficial interest therein, for the benefit of the creditors, whom he represented. He gives notice of that appointment to the defendants, and directs them as to the disposition of the property. They receive those directions, and act under them, without objection as to Ids power or rights. They deliver to his agent a part of the property, dispose of the residue, and pay over to him what they admit to be due from them for the portion which they have sold.
The plaintiff now claims, that they have acted in violation of the trust which he has reposed in them, and improperly sold the property to bankrupts, in consequence of which it has become wasted and lost. For this he sues them.
The defendants, by thus recognizing his authority, and treating him as the owner of the property, have in effect placed themselves in the same situation, as if they had actually received the property from him, to sell as his agents. Had they, in the first instance, denied his power to controul the disposition of the property, he doubtless would have taken the requisite measures to acquire the possession. But, by virtually surrendering it into his hands, placing it under his controul, and then [278]*278ac<™§ as his agents in the disposition, in our opinion, they iiave themselves responsible to him for their misconduct. 1
, . Upon the whole, therefore, we think a new trial must be denied
In this opinion the other Judges concurred.
New trial not to be granted.