Gulick v. Gulick, 33 Barb. 92

Gulick v. Gulick

33 Barb. 92 | N.Y. Sup. Ct. | 1860

By the Court,

Bonney, J.

We see no cause to question

the correctness of this judgment. The surrogate of Hew York, upon the facts stated in the complaint, clearly had power to grant letters of administration upon the estate of Bichard M. Grulick in this state, and the plaintiff, as such administrator, is the proper representative of that estate, and authorized to prosecute any action for its benefit. (3 R. S. 5th ed. 158, § 23.)

The counsel for the appellants strenuously insists that the facts stated constitute no cause of action against either of the defendants, of which this court can take jurisdiction. The alleged cause of action is an indebtedness of the estate of John Grulick to the estate of Bichard Grulick. For such a cause doubtless an action may be maintained in this court if the parties are properly subject to its jurisdiction. The plaintiff is the proper representative in this state of the estate of Bichard, and there can be no doubt of his right to sue here. The defendant Ellen P. Grulick is within the jurisdiction of the court, appears in the action, and has here in her possession the property out of which the plaintiff claimed this indebtedness should be satisfied. Prima facie she is subject to the jurisdiction-of the court.

But it is said the defendant Ellen P., as also appears from the complaint, was appointed administratrix of the estate of John Grulick in the state of California, and there received the property of that estate which she has brought with her, and now has in her possession as such administratrix, in Hew York, and that for any claim against the estate of her intestate, no action or proceeding can be taken or maintained against her out of California, where only she can be required to account or answer as stich administratrix. Can this position be maintained?

The case of Campbell, adm’r &c. v. Tousey, ex’r &c. *102(7 Cowen, 64,) was an action for money lent to the defendant’s testator. At the trial it appeared that' said testator resided and died in Pennsylvania, and the defendant there took ont letters testamentary and qualified as executor : that as such executor he received in Pennsylvania $700 of assets, which he brought to this state, and that he here received further assets. The judge at the circuit charged that the defendant was liable for all the assets which he still retained in his hands, or which he had expended or disposed of in this state otherwise than in the due course of administration; whether they were received in this state or originally received in Pennsylvania, and thence brought to this state. On motion by the defendant for a new trial, the court held that there was no error in this charge. That, if a foreign executor is liable to be sued here, of which there could be no question, he must from the very nature of the case, prima facie, be responsible for the assets which are shown to have been in his possession within this state, no matter where they may have been received.. And in the opinion it is said this is the only way in which an executor, under such circumstances, can be reached. This decision, and the reasons given for it, apply emphatically to the principal case now before us ajid are decisive of it, unless they have been overruled, or 'the law has been since changed by statutory enactment.

The case of McNamara v. Dwyer, (7 Paige, 239,) expressly approves the doctrine of the case in Goiuen, and was decided in conformity therewith ; and the case of Brown v. Brown, (1 Barb. Ch. R. 189,) recognizes the same doctrine as settled law. We have been referred to no case in our own courts which overrules or questions the decisions above mentioned ; and the cases cited from the reports of other states, or of the English courts, even if directly conflicting, (which we do not understand them to be,) are not authority for disregarding those decisions, in conformity with which the demurrer of the principal defendant was overruled.

The complaint states that Millicent E.. Gulick has, or *103claims, some interest or right in the property which the plaintiff alleges to be in the possession of the defendant, and seeks to have applied to the payment of the debt for which this action is brought; and, if the action can be maintained against the other defendant, the said Millicent is a proper party, under section 118 of the code.

[New York General Term, November 7, 1860.

Sutherland, Ingraham and Bonney, Justices.]

The order made at special term must be affirmed, with ten dollars costs.