128 N.E. 216 | NY | 1920
A foreign executrix served with a summons while temporarily within the state contests the jurisdiction of the court to go forward with the suit to judgment. On motion to vacate the service, she shows that she is herself a resident of the District of Columbia; that her testator was a resident of New Jersey, where his will was admitted to probate and where letters testamentary were issued; that no property of any kind belonging to the testator is now or ever was in the state of New York; and that after due notice to all creditors, the estate has been distributed in New Jersey in conformity with law. None of these averments is controverted by the plaintiff. The question is whether, in such circumstances, section 1836a of the Code of Civil Procedure (L. 1911, ch. 631) subjects the executrix to suit. The section reads as follows: "An executor or administrator duly appointed in any other state, territory or district of the United States or in any foreign country may sue or be sued in any court in this state in his capacity of executor or administrator in like manner and under like restrictions as a nonresident may sue or be sued, if, within twenty days after any such executor or administrator shall commence, or appear in, any action or proceeding in any court in this state or within twenty days after he shall be required or directed by summons or otherwise to appear therein, there shall be filed in the office of the clerk of the court, in which such action or proceeding shall be brought or be pending, a copy of the letters testamentary or letters of administration issued to such executor or administrator duly authenticated as prescribed by section 2704 of the Code of Civil Procedure; in default whereof all proceedings in such action or proceeding may be stayed until such duly authenticated copy of such letters shall be so filed."
Until the adoption of that section in 1911, the general rule was that a foreign administrator or executor could neither sue nor be sued in the courts of this state (Hopper *366
v. Hopper,
These were the general rules as they stood before the statute. They were not, however, without exceptions. According to some decisions, an executor or administrator might submit to the jurisdiction of the foreign courts, and the judgment would then bind him everywhere (Lawrence v. Nelson,
The plaintiff says that this amendment of the Code, in a single sentence of sweeping, if indeterminate, application, has uprooted these established principles which have long regulated the conflict of jurisdiction between courts of different sovereignties.
I have little doubt that it was part of the purpose of the statute to remove the disability which formerly attached to foreign executors and administrators when suing in our courts as plaintiffs. I shall assume, even though it may be unnecessary to decide, that the purpose was to this extent effective. The removal of a disability, as distinguished from an immunity, comes properly within the field of comity (Vaughan v. Northup,supra). It is when we pass to that part of the statute which deals with the liability of foreign representatives as defendants that difficulties begin.
If the purpose of the statute was to permit the recovery of a judgment which irrespective of the consent of the jurisdiction of the domicile or of the presence of assets within this jurisdiction, would bind foreign administrators and executors everywhere as a judgment in personam, the statute registers a futile effort. In the language of LEARNED HAND, J., in Thorburn
v. Gates (225 Fed. Rep. 613), it "would necessarily be brutumfulmen in its result, and unconstitutional in its inception." That this is so in its application to administrators, I think is hardly doubtful. "The administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper *369
tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of those assets, according to thelex loci" (STORY, J., in Vaughan v. Northup, 15 Pet. 1, 5). The man who is the foreign administrator we may make our own administrator if we please, when the nature of the estate involves the need of administration here. In making him our own, we do not change the source of his primary appointment or his duty and relation to the power which appointed him. The situation is not so clear when there is occasion to apply the statute to executors. The only effect of probate in their case is to authenticate an existing title (Hill v. Tucker, supra;Carpenter v. Strange, supra). If this state is satisfied to accept the authentication of title by another state, and to give it the same effect as if new letters were issued here, I will not say that it may not do so. I am satisfied that it may when it gives effect to the foreign letters in the administration of the local assets. A different question arises, however, when a jurisdiction which has neither the domicile of the testator nor the presence of assets to bring the estate within its grasp, attempts to impose its decree upon the jurisdiction which has possession of the res (Tilt v. Kelsey,
Viewing this section of the Code in the setting of kindred legislation, of constitutional limitations, and of international practice, I am unwilling to impute to its framers the intent to authorize a judgment against foreign representatives regardless of the domicile of the decedent or the situs of the estate. I think the assumption underlies the statute that the foreign representatives are here in an official or representative capacity (Dollar Co. *371
v. Canadian C. F. Co., supra); that assets within the state make administration by some one a necessity; that jurisdiction, when exercised, will involve the disposition of some res within the power of the court (Holmes v. Camp, supra; Pennoyer v.Neff,
I think the true view must, therefore, be that the statute removes disabilities, but does not terminate immunities. These are what they always were. Foreign administrators and executors may sue in the same manner as non-residents, for comity may enlarge the measure of their rights as plaintiffs without encroaching upon the *373 jurisdiction of other courts, or overstepping the limits of our own. Foreign administrators and executors may be sued in the same manner as non-residents, but only when the subject-matter subjects them to the jurisdiction, for comity, though it may enlarge their rights, cannot, unless it is also the comity of the domicile, enlarge their liabilities, and there is nothing in the statute that unmistakably reveals a purpose to assume, in disregard of comity, a jurisdiction which the accepted principles and usages prevailing between different sovereignties have heretofore condemned. The statute, therefore, in so far as it touches the liabilities of defendants is effective within a narrow field. The rule which prevailed in equity has gained legislative sanction. It has also been regulated in respect of matters of procedure. A stay of proceedings may be obtained if a copy of the foreign letters is not filed within the time prescribed. Moreover, the foreign representatives, if sued, are put in the same class as non-residents, with consequent privileges and burdens which we need not now define. To go farther, and hold them subject generally to actions inpersonam, would involve us not only in problems of constitutional power and complications of international usage, but in a cumbrous and inconsistent and unworkable procedure which would disorganize the scheme disclosed in other statutes, and there carefully developed, for the administration of estates. This isolated section which develops no scheme of its own, and which seems to take for granted a scheme into which it fits, did not obliterate the historic landmarks, and leave the fields without a monument.
The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, the motion granted with ten dollars costs, and the question certified answered in the negative.
HISCOCK, Ch. J., POUND, CRANE and ANDREWS, JJ., concur; COLLIN, J., concurs in result; CHASE, J., not voting.
Order reversed, etc. *374