14 Va. 229 | Va. | 1858
The first question which, in natural order, comes up for consideration in this case is, Whether the order of the County court of Mecklenburg, granting to George W. Avory administration on the estate of William T. Avory, was a void order, for want of jurisdiction in the court to make it?
It is now well settled, that the County court is a court of general jurisdiction in regard to probates and the grant of administrations; that it has jurisdiction in regard to the whole subject matter; and that though it may err in taking jurisdiction of a particular case, yet the order is generally not void, but only voidable on citation or appeal, and cannot be questioned in any collateral proceeding. Fisher v. Bassett, 9 Leigh 119; Burnley v. Duke, 2 Rob. R. 102; Schultz v. Schultz, 10 Gratt. 358; Cox, &c., v. Thomas' adm'x, 11 Id. 323; Hutcheson v. Friddy, 12 Id. 85. I say the order is generally not void ; for there are one or two exceptions to the rule, if exceptions they can be called. As where the supposed testator or intestate is alive; or where, if dead, he has already a personal representative in being when the order is made, granting administration on his estate. If he be then alive, the order is of course void. And so also if he has already a personal representative, who stands in his place and is invested with all his rights of personal property in the state. Griffith v. Frazier, S Cranch’s R. 9. There must be an office, and that office must be vacant, in
I do not understand the counsel of the appellant as denying the correctness of these principles in their application to a case in which some court in the state has jurisdiction, though not the court making the appointment. But I understand them as contending that they are not applicable to a case in which no court in the state has jurisdiction ; and that this is such a case. They say the intestate resided and died in North Carolina, leaving no estate in Virginia, and therefore no court in Virginia had power to appoint an administrator. Suppose it to be true, that he did reside and die in North Carolina, leaving no estate in Virginia: would it follow that no court in Virginia had power to make the appointment? Had not the G-eneral court power to grant administration in such a case ? As the law stood when the order in question was made, the General court had power to grant administration on the estate of any decedent who had not a personal representative in the state; no matter where he resided or died, or whether he left any estate in the common
But I consider these principles as applicable to every case of a decedent who is without a personal representative in the state; without regard to the question, whether any court in the state has jurisdiction of the particular case or not. The subject matter being within the jurisdiction of the court, to wit: the appointment of a personal representative to a decedent who is without one; the court making the appointment will be considered as having adjudged the question of jurisdiction in the particular case; and the order will not be void. Whether the court had jurisdiction in the particular case or not, may depend upon a variety of facts: as, whether the decedent resided in the county whose court made the order; or had land there; or died there; or had estate of any kind there. If, after passing upon these facts, and taking cognizance of the case, the order of the court could at any after period, in any collateral proceeding, be avoided by evidence that the decedent did not reside, or die, or leave estate in the commonwealth ; all the inconvenience and other evils would be produced which are referred to in Fisher v. Bassett, and other cases before cited, and which are designed to be prevented by the principles laid down in those cases. In this case, the order was made in March 1840, the suit was brought in May 1847, no issue was raised by the pleadings in regard to the validity of the order, and the only evidence relied on to invalidate it is, that of a witness whose testimony was taken in 1849, and who states that the decedent lived and died in the county of Granville in the state of North Carolina, and that all his property was in that county. How
While great evils would result from holding an order appointing an administrator of a decedent who lived and died out of the state and owned no property therein to be void ; none whatever would result from holding the contrary. There can be no evil in appointing an administrator of a decedent who has no property. Indeed, nothing is more common; and it is often convenient if not necessary to do so, to carry on a suit to which he may be a proper party.. That the decedent lived and died out of the state, makes no difference. If a non-resident owning no property happen to die here, the court of the county in which he dies is expressly authorized to appoint an administrator.
I therefore think the order in question was not a void order.
The next question to be considered is, Whether the sureties of the administrator are responsible for assets of the intestate which were situated at his death in the county of Granville in North Carolina, but after his death were brought to the county of Mecklenburg in Virginia, and there treated and held as assets by the administrator.
It is now well settled that a grant of administration has no legal operation out of the state from whose jurisdiction it was derived; and that an executor or administrator appointed in one state, is not, in virtue of such appointment, entitled to sue, nor is he liable
In order, therefore, to reduce the assets into possession, and close the administration and distribution of a decedent’s estate, it is generally necessary that there should be a personal representative in every state in which the assets may be situate. They are subject to the payment of debts according to the law of the situs, but to distribution according to the law of the domicil. It is therefore a matter of convenience that the surplus of the assets remaining in the hands of a local administrator after the payment of debts, should be sent home, that is, to the domiciliary administrator, for distribution. And this seems to be the course generally pursued; though the distribution may be made
But it very often happens, and especially in the United States, where there are so many states adjacent to each other, separated only by an imaginary line, and where there is so much commercial and social intercourse between the citizens of different states, and such frequent changes of residence from one state to another, that an administrator in one state receives property or money belonging to his intestate in another, without any administration being taken there, and holds it in his own state as assets of his intestate. And it sometimes, if not very often, happens that pro
It would hardly be contended that where, in an ordinary case, an administrator as such sues for, recovers and receives, or demands and receives without suit, property or money, and holds it as assets of his intestate, the sureties of the administrator could exonerate ¿themselves from liability therefor, merely by showing
I have examined, I believe, all the cases referred to in the argument on this branch of the case, and I am not aware that there is one of them in conflict with the conclusion to which I have come; though there are dicta in some of them which may be so. Without undertaking to review them, I will notice only the case of Fletcher's adm'r v. Sanders, 7 Dana’s R. 345, which is perhaps the strongest case cited by the counsel of the appellant in support of their view. In that case it was held, that the surety of an executor to whom letters testamentary were granted in Kentucky (which however was not the place of the testator’s domicil at the time of his death), was not responsible for assets received in a foreign state and never brought to Kentucky. Upon the ground that they were never brought to Kentucky, the opinion of the court was expressly placed. And even in that opinion, one of the three judges who composed the court, did not concur. Most of the cases on this subject, and no doubt all that are material, are cited and commented upon in Story’s Confl. Laws, § 507-529; and in 1 Rob. Rr. (new) p. 159-194.
I have stated my opinion as to the principles of law which seem to be applicable to this case; and it now only remains, so far as this branch of it is concerned, to apply them to the facts of the case; which can be easily done. In 1840 William T. Avory died in Gran-ville county, North Carolina, intestate, unmarried and without issue, leaving a small personal estate in that county, and no estate, so far as the record shows, any
The next question to be considered is, Whether the sureties of the administrator have been discharged from that liability as to the slaves belonging to the estate of the intestate, by reason of the decree of the County court of Mecklenburg, made in May 3840, appointing George W. Avory commissioner to sell the said slaves, divide the proceeds among the distributees, and by reason of the sale made under that decree and the other circumstances of the case ?
I think this question must be answered in the affirmative. The slaves were not required for the payment of debts, and the administrator had therefore no right to sell them. He was willing at once to surrender them to the distributees for partition, and did in effect do so. He was himself a distributee, and was guardian of two others. The slaves could not be divided in kind, and a sale was therefore necessary for the purpose of division. But some of the distributees were infants, and a decree for a sale was therefore obtained. That decree was made in a suit to which George W. Avory and his two wards were defendants, and all the other distributees were plaintiffs. George W. Avory was not a party to the suit as administrator, thus showing that he had, in effect, surrendered the slaves to the distributees for partition. The bill alleges that he had paid all the debts of his intestate without a sale of any of the slaves, and prays for a decree for a sale of the slaves and division of the proceeds. The defendants answered the bill, admitting its allegations, and expressing their willingness that the court should decree according to the prayer thereof. And a decree was accordingly made. Shortly after
The only other question which it will be necessary to notice is as to the propriety of charging the administrator and his sureties with the amount of the bond of Henry W. Avory to the intestate for two hundred and fifty-four dollars and twenty-eight cents, due 1st March 1839. I concur in the opinion of the Circuit court upon that question, and for the reason expressed in the opinion, to wit, “ the payment of the same having been proved by one of the persons interested therein as distributee, and his deposition never having been taken in the cause, since the release of said interest, to prove said payment.”
The result of my opinion is, that the administrator is chargeable to the distributees in the sum of six hundred and sixty-seven dollars and eleven cents, with interest on four hundred and fifty-five dollars and thirty-six cents, part thereof, from September 1, 1848, being
%
Judgment reversed.