101 Me. 545 | Me. | 1906
Writ of entry to recover certain lands in Thorndike. The case comes here on report.
To make out title plaintiff introduced; (1) a duly recorded mortgage of the demanded premises from Albert D. Bumps of Thorndike, Maine, to George Tyler of Boston, Massachusetts, dated May 28, 1887, given to secure a certain execution and judgment recovered by said Tyler against said Bumps in this court in said Waldo County; (2) copies of records of the Probate Court of Middlesex County, Massachusetts, showing that December 10, 1889, Isabella J. Tyler of Waltham in the County of Middlesex was duly appointed administra
It is a well settled principle of the common law that the power and authority of an administrator or executor, over the estate of the deceased, is confined to the sovereignty by virtue of whose laws he is appointed. In recognition of this principle provision is made by our statutes for the granting of ancillary administration on the estate of non-residents, who die leaving estate to be administered in this state, or whose estate is afterwards found therein. R. S., chap. 65, section 7; chap. 66, sections 14, 15 and 16.
One reason at least upon which this rule is founded, is to prevent the effects or credits of the deceased found in any state, which may be needed to satisfy debts due to the citizens of that state, from being withdrawn from its jurisdiction. That no such necessity in fact exists can never be known with certainty in any given case unless administration is granted, and an opportunity thereby afforded to, creditors to present their claims. Mansfield v. McFarland, 51 Atl. 763. It is said in Stearns v. Burnham, 5 Maine, 261, that the principles of justice and policy, upon which similar statutes to those above cited were founded, “ would seem to lead our courts of law to that course of proceedings which would harmonize with those principles and have a manifest tendency to produce the same beneficial results.” In that case it was accordingly held that an executor appointed under the laws of another state, cannot indorse a promissory note payable to his testator by a citizen of this state, so as to give the indorsee a right of action here in his own name.
The debt due from Bumps, who at the time of the recovery of the judgment and ever since has been a resident of this state, constituted no part of the goods, effects, rights and credits of the intestate in Massachusetts, which alone the administratrix was authorized and empowered to administer. The debt follows-the creditor while living; after his death if follows the debtor. Saunders v. Weston,
There is even stronger reason for holding that she had no control over the mortgage. A mortgage and its assignment are conveyances of land in fee which must be recorded. It is desirable that title to real estate should so far as possible appear of record. The party having a right to redeem ought to be able, by an examination of the records in the registry of deeds and the probate courts of this state, to ascertain who is entitled to receive payment and give a discharge of the mortgage, without being compelled at his peril, to incur the expense of searching the records of other-states and countries. Without doing this the defendant in the present case could not know, until the evidence was produced at the trial, that the plaintiff’s assignee had ever been appointed administratrix of the deceased in the place of his domicile. The courts of Massachusetts in a case, which has been frequently cited and followed in that state, have decided the precise point here presented against the plaintiff’s contention. Cutter v. Davenport, 1 Pick. 81. The question is a new one in this state; but the trend of our decisions has been to restrict the power of a foreign administrator to the jurisdiction of his appointment. Stevens v. Gaylord, 11 Mass. 255; Stearns v. Burnham, supra; Smith v. Guild, 34 Maine, 443; Gilman v. Gilman, 54 Maine, 453; Smith v. Howard, 86 Maine, 203; Green v. Alden, 92 Maine, 177.
It may fairly be regarded as the settled policy of this state that, when assets of a foreign decedent are found here, ancillary administration must be obtained here for the protection of resident creditors, before our courts will enforce the recovery of debts due the foreign decedent. Otherwise the assets could be converted into money, taken outside the state, distributed under the jurisdiction of foreign courts, and our citizens compelled to go into other jurisdictions to collect their just dues. Such is the general rule. Note to Shinn’s Estate, 45 Am. St. Rep. 667; Maas. v. Bank, 176 N. Y. 377.
Inasmuch therefore, as ample provision is made by our statutes for the granting of ancillary administration in this state, a course
Judgment for the defendant.