199 F. 838 | S.D. Ohio | 1912
The question is: Shall a new trial be granted? The contracts for the glacé fruits mentioned in the pleadings were made in 1906, at Apt, in the republic of France. The goods were delivered at Marseilles to the defendant’s agent and shipped to Cincinnati. The vendor, Barrielle, alleging himself to be a citizen of such republic, sued in this court to recover the purchase price of the goods, and subsequently died. Thereupon Paul Barrielle, Marie Beauchamp, Eugenie Beauchamp, and Martlie Barrielle, a minor, by Paul Beauchamp, her guardian, to obtain a revivor of such suit and their substitution as parties plaintiff, made an application which recites that they are the children and sole heirs at law of Barrielle, and residents and citizens of the republic of France, and that under the laws of that country the rights of Barrielle in the cause of action set forth in his petition passed immediately upon his death to them as such heirs at law. On the representations made, the cause was revived, and the substitution ordered; but the reasons for and against the same were not fully presented to the then presiding judge.
The defendant disclaims all liability on account of the goods purchased. Pie denies that the substituted plaintiffs are the children and sole heirs at law of Barrielle, that, they, or any of them, in person or through a guardian, can rightfully prosecute the action, and, for want of information, that Barrielle was a citizen of France. By
Under the Code Napoléon, the succession or inheritance is-opened by the death of the ancestor. Section 718. No distinction is made between the real and personal property of a succession (section 732), both of which descend in one mass to the children and descendants of the deceased in equal portions (sections 731, 745). By fiction of law, the representatives of a decedent enter into the place, degree, and rights of the ancestor; i. e., the heirs step into the shoes of the deceased ancestor (section 739; Hunter's Roman Raw |2d Fd. 1885] 744; Domat’s Civil Raw, § 2470; Blair v. Cisneros, 10 Tex. 34; Woerner, Am. Raw Adm. § 203; Schouler, Fx’rs, § 6), and consequently on his death there passes to them all his property, rights, and actions, and all his debts and obligations, which debts and obligations the heirs are bound to satisfy, whether the assets are sufficient or not, each contributing a proportionate amount (sections 724, 870, 873; Hunter’s Roman Raw, 747). To-relieve an heir of the consequences which may result from such responsibility, he need not accept the succession, but is given the privilege of renouncing it, in which event he is considered as never having been an heir, or of accepting simply under privilege of an inventory. Sections 775, 785, 774. He may have at least 40 days in which to accept or renounce, but married women are incapable of a succession without the authority of their husbands, or act bf
The settlement of a decedent’s estate under the Ohio law is not made by his heirs or legal representatives, but by a personal representative, who, according to the definition of that term in Bouvier’s Daw Dictionary, and as' will appear from a comparison of sections 6134 and 6135, R. S., is either his administrator or executor. In the administration act the distinction between heirs and administrators is clearly and repeatedly drawn. Neither so succeeds the decedent as to be individually liable for his debts. An administrator is a trustee, with special functions defined by statute, and is charged.with the duty of winding up the estate and speedily determining the trust, that creditors may be paid and heirs enter into full enjoyment of their inheritance. He is appointed by, and, unlike an heir, is an officer of, the court. His possession of the decedent’s property is taken in obedience to the court’s order, is its possession, and cannot be disturbed by any other court. Byers v. McAuley, 149 U. S. 615, 13 Sup. Ct. 906, 37 L. Ed. 867;. 2 Bl. Com. 496; Orlopp v. Schueller, 4 Ohio Cir. Ct. R. (N. S.) 611, 614; Sampsell v. Sampsell, 17 Ohio Cir. Ct. R. 455, 462; Swiggett v. White, 8 Bull. 22. He is required to take an oath of office, to give .bond for the faithful administration of his trust, and to account to the court at stated intervals, to which he is responsible for his acts. Publicity attends his conduct. Administration under him is unitary. .He has a fixed situs, and may thus be readily reached by heirs and creditors.. On the appointment of an administrator, the personal estate .¡of the .deceased passes to and vests in 'him, not in the heir, and his
“In Woerner’s American Law of Administration (2d Ed.) § 199, it is said that the necessity of administration arises out of the common-law doctrine that the personal property of the decedent descends to the executor or administrator, and that this doctrine is recognized substantially in all the states except Louisiana, and, further: ‘The direct consequence of this principle of the law is that without due course of administration the claims of creditors cannot be lawfully satisfied, and neither heirs nor legatees can obtain a legal title to their legacies or distributive shares, and that neither devisees nor heirs can hold the real estate to which they succeed free from the claims of creditors of the deceased, against whom limitation does not, in some states, run after the debtor’s death, until there be lawful administration of his estate. Another consequence is that the payment of debts to the deceased can' be coerced by no one but the lawfully appointed executor or administrator, even in equity, because there is no privity between the debtors and any person other than the legal representative. He stands as the representative of those interested in the devolution of the personalty of the deceased, including creditors of the estate, as well as legatees and distributees.’ * * * Section 5994, Revised Statutes, provides that, upon the decease of any inhabitant of this state, letters testamentary, or letters of administration on the estate,.*844 shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death; and when any person shall die intestate in any other state or country, leaving any estate to be administered within this state, administration thereof shall be granted by the probate court of any county in which there is an estate to be administered.”
Such, then, being the settled law of the state, the remedy to be pursued to collect personal assets therein due to a nonresident’s estate must be that prescribed by the local law, and his heirs, whatever their rights may be, cannot maintain an action to recover the same on the ground that they are the réal parties in interest, because they are not such. In Dixon v. Ramsay, 3 Cranch, 319, 2 L. Ed. 453, Mr. Chief Justice Marshall thus states the rule as to the remedy:
“All rights to personal property are admitted to be regulated by the laws of the country in which the testator lived; but the suits for those rights must be governed by the laws of that country in which the tribunal is placed, río man can sue in the courts of any country, whatever his rights may be, unless in conformity with the rules prescribed by the laws of that country.”
See, also, Story on Conflict of Laws, § 556; Williams, Executors (3d Am. Ed., 1849) 1302; Harrison v. Baldwin, 5 Ohio Cir. Ct. R. 310; Heaton v. Eldridge & Higgins, 56 Ohio St. 87, 98, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737; Bouvier’s Law Dict., Lex Fori; Boyer v. Knowlton Co., 85 Ohio St. 104, at page 113, 97 N. E. 137, at page 138. In the last named case it is said:
“We think rules of comity cannot be recognized to overthrow an express Statute of our state. It prescribes a rule of conduct to govern our own citizens, and we do not think that residents of another state should be mofe favored', unless the statute so permits.”
Closely in point is Embry v. Millar, 1 A. K. Marsh. 300, 10 Am.Dec. 732, which involved a contest over certain slaves brought to this country after the death of their former owner, who died in the Spanish dominions. It was said:
“The succession to his personal estate should no doubt be regulated by the laws of the country where Sims died; but' to recover any part thereof which may have been in this country at that time, as the remedy must be governed by the laws here, there should most clearly, as was decided in the Supreme Court of the United States in the case of Fenwick v. Sears, 1 Cranch, 259 [2 L. Ed, 101], and in the case of Dixon v. Ramsay, 3 Cranch, 319 [2 L. Ed. fL53], be administration obtained from the proper court in this country. The latter of these cases was brought by an executor in the District of Columbia, upon letters testamentary granted in a foreign country, and although the principle is there admitted that the succession to the testator’s personal estate is to be governed by the law of the country where he died, yet upon the principle, of the remedy being regulated by the laws of the place where the suit is brought, it was held that the action could not be maintained. As from the authorities in Cfanch, therefore, it is proper, to enable the executor to recover the possession of the testator’s estate in certain cases, although*845 he may have been domiciled abroad, to obtain probate of his will, where suit is brought. In giving an exposition to the act of this country, conferring jurisdiction in testamentary matters, we should, unless restrained by a different import, so interpret it as to enable the courts of this country to take the probate in those cases as well as when the testator may have resided here.”
The contention that the plaintiffs, as Barrielle’s sole heirs, may maintain this action under section 4993, R. S., as the real parties in interest, is unsound. All foreigners, sui juris, and not otherwise disabled by the laws of the place where the suit is brought, may maintain suits to vindicate their rights and redress their wrongs; but the rule which applies to the question, who shall be parties to the action, is established by the law of the forum, and is said to belong rather to the form of, the remedy than to the right and merit of the claim. Story, Conflict of Laws, § 565; Bates, PL Pr. & Forms, 8; Kirkland v. Lowe, 33 Miss. 423, 69 Am. Dec. 355. Bates (page 15) in discussing the last-named section, cites Davis v. Corwine to the point that for the recovery or collection of intestate personalty the real party is the administrator. To the same effect are Childress v. Emory, 8 Wheat. 642, 667, 5 L. Ed. 705; Popp v. Cincinnati, H. & D. Ry. Co. (C. C.) 96 Fed. 465.
The real party in interest does not mean one who would be affected by a judgment, but relates only to a legal interest, or one which would have been recognized, either at law or in equity before the Code. Bates, p. 8. In Galpin v. Lamb, 29 Ohio St. 529, 536, it is said:
“The rules of the Code in respect to parties are substantially the same as those which prevailed in equity before the adoption of the Code. Where no right of action existed in a party, either at law or in equity, the Code does not create one.”
The right to administer estates belonged originally to the king by prerogative as parens patrise, subsequently to the lord of fee, and ultimately to the bishop or ordinary of the diocese, upon trust to distribute the residue after deducting the partes rationabiles for charitable or pious uses. On account of abuses which arose, there were enacted the statutes of Westminster II, of 31 Edward III, c. 2 (which is the original of administrators as they at present stand, 2 Bl. Com. 496), and of 22 and 23 Car. II, c. 10, to which statutes our present conception of the office of an administrator is due. Am. & Eng. Ency. Law (1st Ed.) 170, 171.
Section 5154, R. S., provides:
“Upon the death of the. plaintiff, the, action may be revived in the name of his representatives to whom his right has passed; if his right has passed to his personal representative, the revivor shall be in his name; and if it has Xiassed to his heirs or devisees who could support the action if brought anew, the revivor may be in their names.”
If the property involved had been real estate, the revivor would necessarily have been in the names of the heirs or devisees. Valley Ry. Co. v. Bohm, 29 Ohio St. 633; section 5155, R. S. As it was personalty, the right of action passed to the personal representative, and the revivor should have been in his name — a conclusion in which my Associate concurs.
The motions for a new trial are sustained,