7 Johns. Ch. 45 | New York Court of Chancery | 1823
The mortgage was given to S. H., an inhabitant of Vermont, by the plaintiff, who lived in the county of Washington, adjoining that state. It contained a special power, authorizing the mortgagee, “ his executors, administrators, and assigns,” in default of payment, to sell and convey the mortgaged premises, “ according to the law of the state of J\Tew- York.” Upon the death of II., the mortgagee, the defendants, JD. Lewis and M. A. Hotchkiss, were appointed administrators of his estate, by the Judge of Probates of the county of Rutland, in Vermont, where the intestate resided and died; and they afterwards sold the lands, by virtue of the power contained in the
The case is brought to a hearing upon bill and answer, and there is no dispute about the facts. The principal point raised is, whether the administrators of H. were authorized to sell under the power, without previously taking out letters of administration in this state. But another question also arises, in connection with that point; and that is, whether the plaintiff be not now too late to raise the objection ?
It is well settled, that a party cannot sue or defend in our courts, as executor or administrator, under the authori- . ly of a foreign Court of Probates. Our Courts take no notice of a foreign administration; and before we can recognize the personal representative of the deceased, in his representative character, he must be clothed with authority derived from our law. Administration only extends to the assets of the intestate, within the stale where it was granted ; if it were otherwise, the assets might be drawn out of the state, to the great inconvenience of the domestic creditors, and be distributed, perhaps, on very different terms, according to the laws of another jurisdiction. The authorities on this subject, were cited by me in the case Morrell v. Dickey, (1 Johns. Ch. Rep. 153.) and I presume there is no dispute about the general rule ; and the only difficulty lies in the application of it to this particular CEtb6e
The sale was an act in pais, under a special power granted to a citizen of Vermont, and known and described as an inhabitant of Vermont. The authority to sell was derived from the power, and not from the Court of Probates of Vermont; and when the plaintiff gave authority to the mortgagee, and to his executors, administrators, and assigns, to sell, on default of payment, he probably meant only to describe the persons who might exercise the power; and an administrator in Vermont fulfilled the description
I am induced to think, therefore, that this case does not fall within the meaning'or reason of the rule, requiring the personal representatives of a testator, or intestate, to obtain authority from the Court of Probates here, before they are competent to assert rights in a representative charac
2. But admitting the plaintiff might have been entitled to have had the proceedings under the power stayed, on a
The objection itself must be taken, even in this Court, by way of plea, or demurrer, or answer, or at the hearing, or it will be deemed to be waived. And if the party sues as executor or administrator, without probate, or taking out letters of administration, the taking them out, at any time before the hearing, will cure the defect, and relate back so as to make the bill good from the beginning. (See the cases cited in 2 Johns. Ch. Rep. 18. 4 Johns. Ch. Rep. 551, 552.) In a light so merely formal is that omission ’ ' ° v viewed.
I am, therefore, of opinion, upon every view of the case that the plaintiff has failed in showing a right to redeem. This was the ground of his bill; though he has also stated, that the land sold for more than sufficient to pay the debt, interest and costs. But this last assertion is without proof; and the surplus, even upon his own showing, is very trifling, and not of itself a proper matter for a suit in this court. I shall, therefore, dismiss the bill as to the defendants who have appeared, except the administrators, D. Lewis and M. A. Hotchkiss, with' costs; and as to them, since they are here before the Court, the plaintiff may, if he shall so elect, within forty days, and at his own peril and cost, have á reference, to ascertain whether any surplus be coming to him; and if he shall not so elect, that then the bill, as to those two defendants also, stand dismissed with costs.
Decree accordingly.