14 S.C. 573 | S.C. | 1881
The opinion of the court was delivered by
These cases were heard together below ou demurrer to the complaints. The facts were the same in each. It appears that respondents, in December, 1874, executed to Asa Burke, a resident of the State of Massachusetts, their bond in the penal sum of $8000, conditioned to pay $4000 on December 1st, 1876. This bond was secured by mortgage of real estate situate in Richland county of this state. Asa Burke died in 1879, in Massachusetts, and one Philip Snowden, of that state, was appointed his administrator there by the Probate Court of Suffolk county, Massachusetts. Whereupon this administrator, for value, assigned to the appellant, Dial, a resident of this state, the said bond and mortgage due by respondents, also residents of this state.
Upon this bond and mortgage these actions were instituted by Dial. Respondents demurred to the complaint, and upon the hearing below the actions were dismissed.
The leading questions raised in the appeal, in fact we might say the single question, because, although there are numerous exceptions, they all hinge upon this, is: Whether the plaintiff (appellant,) being the holder of a bond, purchased by him from a domiciliary administrator abroad, has the right and legal capacity to sue said bond in this state, where the debtor resides, and where he, the appellant, resides.
“The owner of personal property, while alive, has always the possession or the right of possession to such property in whatever part of the civilized world it may be situated.” Says Judge Butler in Carmichael v. Ray, 1 Rich. 116: “His possession follows his title, and, while alive, he may transfer and assign it to whomsoever he may see proper. And he needs no special authority for this purpose from the laws of the place where the property is situated. He can act in reference to it as any citizen of the place can act as to his property. But it is a mistake to suppose that, upon his death, his legal representatives, appointed under the laws of his domicile, are invested with like title and
It is the duty of every government to protect its own citizens, and especially the rights of creditors, as the material and commercial prosperity of a country depends greatly on this protection and security. If a government fails in this, it fails in one of its most important functions and duties. To this end, therefore, it is well understood that the different governments in which the movable property of a deceased may be left, upon his death, are authorized to intervene and take control. Hence, in every state, we find laws declaring in whom such property, within its limits, shall vest, and in what manner it shall be administered. True, if the decedent has left a will or testament, upon such testament being established under the lex domicilii, it will usually be confirmed under the jurisdiction where the property is found. And the title of the executor, as well as the disposition of the property therein appointed and directed will be recognized there. But this confirmation must take place and be had in accordance with the laws of thé rei sitce before even an executor under such testament can intermeddle with the property. But in cases of intestacy there must be a grant of administration in such jurisdiction where property is found; it being well settled that the grant of no state, not even the grant.of the state of the domicile, can extend beyond the territory of .the government which grants it. Nor can it invest the administrator with title to any movable property, except to such as may be found within its limits.
These are the general principles applicable to executors and administrators in cases like this. Wms. on Ex’rs, vol. I., p. 320, and cases there cited, notes 321, 322; Story’s Confl. of L., §§ 512, 524.
It has been held in several cases in this state that a foreign administrator has no legal capacity to sue here. He canuot sue, because his appointment stops at the boundary of the state which appointed him, and because the title of the decedent’s property, found here, under our laws, can only vest in an administrator
Now if .the administrator of Asa Burke, appointed in Massachusetts, his domicile, had brought these actions, can there be a doubt that a demurrer would have been fatal? Or, if the property in question was movable, tangible property, such as horses, cattle, wares and merchandise, located in this state at the time of the death of Burke in Massachusetts, could his administrator, appointed there, institute suit for the recovery of such property? The right to sue for the recovery of property springs from title. Without title no right of action can exist under the authorities referred to above. No title to such property could vest'in a foreign administrator. Neither would a foreign administrator have the power to sell or transfer such property, and for the same reason — the want of title.
It may be said, however, that while the principles announced above .may be admitted, yet, on the other hand, it will also be admitted that if such property had been found in Massachusetts, the place of Asa Burke’s death, that his administrator there would have the power to sell, and that the title of his vendee in such sale would be recognized, not only in Massachusetts but in every state, and wherever it might become necessary for him to enforce it. And it is contended that the bond and mortgage in this case being in the possession of Burke at his death, in Massachusetts, constituted a part of his effects and personal property in that state, to which administration there attached, giving the right to his administrator, Philip Snowden, to sell and transfer, and, therefore, that his assignment to appellant was valid.
This brings up the real question in the case. The bond sued on is, technically, a chose in action. Is a chose in action prop-' erty, or merely the representative of property ? Is it the substance or shadow ? And where the obligor and obligee reside in different states, is the property involved in the bond to be regarded as situated in the domicile of the debtor or that of the creditor ? If the bond followed the person of the debtor, and is to be considered as bona noiabilia in the state where he resides, then the demurrer was properly sustained. If, however, it followed the person of the creditor, and is to be considered property
A chose in action, then, embraces two ideas; first, a visible, tangible thing, and, second, the right to sue for and recover that thing. These are separate and distinct elements, and the one may be situated in one locality and the other in another.
In the case now before the court the chose or thing is situated in South Carolina, and the evidence of the right to sue, at the death of Burke, was in Massachusetts, but that right could not be exercised in that state even by Burke himself, at least so long as the debtor continued in this state. In this view both the thing and the right to sue for it belonged to South Carolina, and, according to strict law, ought to be subject to administration here. Otherwise the great object of each state or government, retaining control over the property of an absent decedent, would be defeated entirely. If a foreign administrator, by virtue' of finding choses in action in the possession of his intestate at the time of his death abroad on persons in other states, is so far' invested with title as to enable him to assign such choses in action to a third party, the rights of domestic creditors might be wholly destroyed, and all of the laws providing local administration under local authorities for the protection of such creditors eluded and overthrown. It would seem then, upon principle, that the appellant took nothing by the assignment to him of the bond and mortgage in question. It is true, however, that the decisions in the different American states and in England are not uniform upon this subject, and they leave the question presented here in considerable doubt.
In Leake v. Gilchrist, 2 Dev. 75, it was broadly and distinctly held that debts due by specialty follow the person of the obligee and are assets of the domicile. In that case an assignment by the administrator of the domicile in South Carolina of a bond
In the case of Harper v. Butler, 2 Pet. 239, the Supreme-Court of the United States sustained an assignment of a promissory note due the estate from a citizen of Mississippi by an executor in Kentucky, without probate of the will in the former-state, but in that case the debt was contracted in Kentucky, where the testator lived and died, and the assignment was made-by an executor.
In Doolittle v. Lewis, 7 Johns. Ch. 46, an administrator of a 'creditor, who died in "Vermont, having in his possession a bond and mortgage of real estate from a citizen of New York, sold said real estate in payment of the bond, but in that case the-mortgage contained a power to the mortgagee, his executors, administrators, or assigns, to sell and convey, and the Chancellor,, in pronouncing judgment, based the right to sell on this power,, saying that the whole proceeding was extra-judicial and founded on private agreement. He did not recognize the administrator as such, or that he had any power by virtue of his foreign appointment, but he recognized the agreement of the parties. * * *'
In this case it was said that a payment by a debtor to a foreign administrator would acquit the debtor. This, no doubt, is good law where no administration has been taken out in the state of the debtor, and especially where the intestate has no creditor there.
In Peterson v. Chemical Bank, 32 N. Y. 22, the right of assignee to sue was sustained, but there was full evidence offered that the intestate owed no debts in New York, and, therefore, the rights of creditors were not in the way.
On the other side, in the case of Stevens v. Gaylord, 11 Mass. 267, Judge Jackson said: “If a foreigner or a citizen of any other of the United States dies, leaving debts and effects in this-state, these can never be collected by an administrator appointed in the place of the domicile.”
In that- case an absent debtor, who lived in Connecticut, had come within the jurisdiction of the courts of the State of Massachusetts, and the administrator of the creditor brought suit on
The court held that the circumstance of the defendant having come into that state, so as to expose himself to action, could not affect the general principle, and that the debtor could not be compelled to pay to any one but to an administrator duly authorized in Connecticut, where the debtor lived.
This must have been upon the gro'und that the administration in Massachusetts does not give title, even in that state, to notes or other choses in action of deceased parties dying there, on persons in other states. Under this case, if the debtors here had gone into Massachusetts, the administrator of Burke could not have maintained action against them in the courts there. This seems decisive of the question, especially as to the bond sued on in this case. For, if the administrator, by the laws of Massachusetts, has never been invested with sufficient title to sue this bond, even in that state, and is without capacity to sue here, how could he transfer the bond to the appellant so as to invest him with power to sue ?
See the case of Cutter v. Davenport, 1 Pick. 81.
In Stearns v. Barnham, 5 Greenl. 261, it was held that “an executor appointed under the laws of another state cannot endorse a promissory note payable to his testator by a citizen of this state [Maine,] so as to give the endorsee a right of action here in his own name.”
In Pond v. Makepeace, 2 Metc. 114, it was held that an administrator in the State of Massachusetts of one who lived and died in Rhode Island, may sue for and recover a debt «due by his intestate from a citizen of Massachusetts, although the administrator of such intestate, appointed in Rhode Island, had already recovered judgment in Massachusetts upon the same claim, it being undefended.
We have found no case in our own reports directly in point. But we think, upon principle and the weight of decisions elsewhere, that the order of the Circuit judge holding that the assignee had no legal capacity to sue in this case should be sustained.
The order below is affirmed and the appeal dismissed.
