54 So. 434 | Miss. | 1910
Lead Opinion
delivered the opinion of the court.
This appeal is before the court from a decree of the chancellor overruling a demurrer to the bill. Suit was brought in the name of the state of Tennessee, on relation of Robert Eugene Leggett, and is for his use and benefit. The defendants are J. W. Cntrer and R. IT. Crutcher, residents of the second judicial district of Coahoma county, where the suit was filed, and P. L. Whitworth, a resident of the first judicial district of the same county. The chief allegations of the bill are that the mother of complainant, one Mary E. Leggett, executed a last will and testament on the 27th day of March, 1904; she then being a resident of the second judicial district of Bolivar county. A short time after the will was executed Mrs. Leggett died, and on the 30th day of May, 1904, her last will and testament was duly probated in the second judicial district of Bolivar county, which place was her residence at the date of her death, and by the will she left complainant the sum of two thousand, two hundred dollars, to be paid in cash. The will is made an exhibit to the bill. It is further alleged that at the date .of Mrs. Leggett’s death she had in cash only two thousand, one hundred fifty-nine dollars and sixty-nine cents, and this sum was on deposit in Shelby county, Tennessee, in the State National Bank of the city of Memphis, and that this was the fund intended by her to be given to complainant. It is then alleged that some time in July, 1904, Peter L. Whitworth went to the state of Tennessee and applied for and obtained
There are'many causes of demurrer filed to the bill of complaint, some of which we shall give incidental notice, but confining the opinion mainly to that feature of the case which challenges the right of complainant to bring this suit in a Mississippi court against a Tennessee administrator. It is insisted by counsel for appellant that complainant has no right to maintain' this suit on this bond, because it is payable to the state of Tennessee, and the suit was not filed by the state of Tennessee, or under the authority of the state. The bond in suit is an ordinary administrator’s bond. It is taken for individual, and not governmental, protection. In almost every state — in fact, in every state — some method is provided whereby the state assumes charge of an intestate’s estate after death, through the medium of some officer authorized to be appointed by it, and has an orderly administration of the estate, preserving it until those entitled to claim it have been duly ascertained, paying debts of the decedent, and finally distributing it to the persons entitled thereto. In order to accomplish this, and because the proceedings are at the instance of and under' the authority of the state, the officer authorized by the state to act and take possession of property is required by the same authority that authorizes it to give bond for the faithful performance of the duties incident thereto, and this bond is taken in the name of the state; but the beneficial obligee in this character of bond is the proper individual finally entitled to the prop
Counsel for appellant contend that, if it be conceded that any court in Mississippi has jurisdiction of this suit, then under section 561 of the Code of 1906 the suit can be maintained only in the chancery court óf the second district of Bolivar county, the district and county in this state where the will was probated and domiciliary letters of administration granted. It is quite true that the above section of the Code provides that “suits against administrators touching the performance of their official duties . . . shall be brought in the chancery court in which the will was admitted to probate, or letters of administration granted,” etc.; but this section has.no application to this suit. In the first place, there is no place in this state where any court of the state had any power to grant letters of administration authorizing Whitworth to act as administrator of a fund that then had its situs in the state of Tennessee. Whitworth was under no duty to account for this fund, as administrator, to any court of this state; and, having no duty as administrator in this state, section 561 of the Code, fixing the place where suits must be brought against executors and administrators “touching the performance of their official duties, ’ ’ applies only in a case where the duty is one assumed under the grant of letters of ad
In support of the proposition that no suit can be maintained against this Tennessee administrator in the courts of this state, counsel for appellant cite the following authorities: Vaughan v. Northup, 15 Pet. 1, 10 L. Ed. 639; Wyman v. U. S., 109 U. S. 654, 3 Sup. Ct. 417, 27 L. Ed. 1068; Brown v. Fletcher, 210 U. S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966; Boyd v. Lambeth, 24 Miss. 433; Riley v. Moseley, 44 Miss. 37; Estate of Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648. We do not think any of the above cases are in point under the facts of this case; but, before proceeding to discuss the above bases, we shall proceed to state what in our judgment is the true rule. It appears from the bill in this case, which bill stands confessed by the demurrer, that the administrator is insolvent, that he resides in this state and brought the funds into this state and converted it to his own use, that two solvent sureties on the bond
In the case of McNamara v. Dwyer, 7 Paige (N. Y.) 239, on page 242, 32 Am. Dec. 627, on page 629, it is said: “If a guardian appointed in one of our sister states should come into this state with the property of his ward, or after he had squandered the same, or appropriated it to his own use, in the state where he received his appointment, there could be no reasonable doubt as to the jurisdiction of this court to compel him, to account for and pay over to his ward what was justly due according to the laws of the state in which he assumed the trust. And I confess I can see no reasons for giving such a remedy here, in the case supposed, which would not be equally applicable to the case of an executor or administrator' coming into this state and bringing with him the property which had been confided to him as trustee for the creditors or next of kin of the decedent. ’ ’ Again, in the same authority,- oh page 241 of 7 Paige (N. Y.) and on page 628 of 32 Am. Dec., it is further said: “It appears to be perfectly well settled that a ■foreign executor or administrator cannot maintain a suit in this state by virtue of letters testamentary or of administration granted abroad. And the learned and very distinguished American commentator on the conflict of foreign and domestic laws is evidently of the opinion that this principle extends to suits brought against.the foreign executor or administrator, to recover the prop
The following authorities, some of which aie well reasoned and • supported by numerous other authorities, all support the view herein announced by this court: Cureton v. Mills, 13 S. C. 409, 36 Am. Rep. 700; Ordronaux v. Helie, 3 Sandf. Ch. (N. Y.) 512; Greenhood v. Greenhood, 143 Ala. 440, 39 South. 299; Falke v. Terry, 32 Colo. 85, 75 Pac. 425; Johnson v. Jackson, 56 Ga. 326, 21 Am. Rep. 285, and numerous other authorities cited in brief of counsel for appellee. While it is true that Justice Story, in his treatise on the-Conflict of Laws, stated it to be the law that, where a foreign administrator brings to another state property which he has received as administrator in a- foreign jurisdiction, he is not liable in a suit instituted against him in the state into which he has brought the property. This assertion by
That no man.can profit by his own wrong doing is a maxim of the law applying as strongly to the case of an administrator leaving the jurisdiction of his proper accountability and going into a jurisdiction wherein it does not properly lie, seeking thereby to 'avoid accounting to the court of his appointment, as it does to any other human transaction. - If a party be injured thereby, there is a right, and the courts have found the remedy. In the case of Vaughan v. Northup, 15 Pet. 1, 10 L. Ed. 639, cited by appellant, we see no obstacle. There was no wrongdoing charged on the part of the administrator —no charge that he had converted the funds to his own use in the jurisdiction in which he was sued, having improperly brought them there from the jurisdiction of his accountability. This, in itself, distinguishes the above case from the case on trial; but it is still further distinguished by reason of the fact that it appears in the Vaughan case that one Moody was living in Kentucky and died there. Northup was appointed his administrator in the state of Kentucky, and went to Washington, D. C., and there collected a certain amount of money from the United States, due the intestate for military services. Certain persons, residing in Virginia and claiming to be entitled to a distributive share in the funds, began a proceeding in a court in the District of Columbia, seeking to compel the administrator to make a settlement there. The supreme court of the United States held that the suit must be brought in Kentucky, holding that debts due by the United States have no locality at'the seat of government; that the United States, in their sovereign capacity, possess in contemplation of law an ubiquity throughout the Union. To the same effect is the case of Wyman v. U. S., 109
But counsel for appellant further contend that this suit cannot be maintained in any event, because no final account has been made .to any tribunal, either in Tennessee or Mississippi, and therefore the right of Leggett has not been established. This suit is not attempted to be maintained by Leggett for the purpose of having now paid to him any share in the estate. Leggett is alleged to be an interested party, and it is admitted by the demurrer. The purpose of this suit is to prevent a waste of the estate pending the time of final settlement. The-prayer of the bill only asks that, the funds in question be protected and carried back to the lawful author
Affirmed and remanded.
Dissenting Opinion
(dissenting).
I feel constrained to differ with my brethren in the conclusion they have reached in this matter. The general rule is that an executor or administrator appointed in one jurisdiction cannot be sued in his representative capacity in any other jurisdiction. Winter v. Winter, Walker, 211; Boyd v. Lambeth, 24 Miss. 433; Riley v. Moseley, 44 Miss. 37; Vaughan v. Northup, 15 Pet. 1, 10 L. Ed. 639; Story on Confl. Laws, §§ 513, 514; 18 Cyc. 1244, and authorities there cited.
It may he that there is an exception to the rule announced in the above authorities, under which exception a foreign executor or administrator, who comes within the jurisdiction of our courts, bringing with him the property of the estate he represents, may he held to account here, not in the character of executor or administrator, hut as trustee, as to which I express no opinion; but this is not such a case. The effort here is simply to recover a money judgment against a' foreign administrator and the sureties on his bond, as such. 18 Cyc. 1245; 3 Ency. Pl. & Pr. 715, and authorities there cited; Winter v. Winter, supra.