7 Vt. 170 | Vt. | 1835
Lead Opinion
The opinion of the court was delivered by
Richard Gookin having his domicil in Hav-erhill, in the state of New Hampshire, deceased in the year 1826. Letters of administration on his estate were duly granted in the state of New Hampshire. The estate was represented insolvent, and a commissioner was appointed to receive and examine the claims of the creditors to the estate. The present plaintiff, at that time and until after the commissioner had made his return, in pur-, suance of the statute of the state of New Hampshire, was a resident in and had his domicil also in the state of New Hampshire.' He omitted to .present any claim against the estate of Mr. Gookin
The statute of that state provides, that where an estate is represented insolvent and- a commission issues, all claims which might be, but which are not exhibited to commissioners, shall be forever barred. The plaintiff was under no disability to present his claim; and further, it appears by the pleadings, that the estate of Mr. Gookin is not in fact insolvent, although so represented. The effect of the statute of New Hampshire on the claim of the plaintiff is now to be considered.
It may here be noticed, that where a suit is had against an administrator, it is of no consequence whether an estate represented insolvent actually proves to be so or not. If other claims are al-'owed against an estate, except those allowed by commissioners, an estate may prove to be insolvent, when by the returns of the commissioners it would appear to be otherwise. ' Hence, where an estate is represented insolvent, and settled as such, the rights and duties of the creditors and administrators are the same, whether it is in fact insolvent or not. The averment, therefore, in the pleading, that the estate proved solvent, is to be disregarded.
The general principles of law, which are considered as having a bearing on the question before us, have been settled by repeated adjudications. The difficulty arises from the application of those principles to the case before us. It has become a rule of international jurisprudence, and is settled also as the municipal law of most states, that the lex loci contractus governs as to the nature, construction and validity of a contract. From the operation of this rule, it has been considered that a discharge of a debt in the country where it is made, or where it is to be executed, is a discharge every where. The case before us is considered by the defendant’s counsel as governed by the application of this rule. It has also become a settled rule of law, that the lex fori governs entirely as to the remedy. Whoever comes into another jurisdiction is entitled to all the benefits and subject to all the disabilities, either in enforcing or defending against claims which the persons belonging
It has been very justly remarked, that foreign laws are not admitted to have any effect, ex proprio rigore, but only ex comitate; and that the judicial tribunals are to exercise a discretion wherever a new case comes before them for the application of the principles which have been adopted. Thus while infancy, a tender and refusal, &c., if they constitute a valid defence under the lex loci con-tractu;s, will be considered as a good defence elsewhere; and also while the bankrupt laws or insolvent laws of a state where they have power to pass them, and no constitutional barrier is overleap-ed, are respected every where, yet if those laws are manifestly unjust and injurious in their operation on the citizens of another government, the courts of that government will not sanction them. It was asserted by the Lord Chancellor in Burton, ex parte, 1 Atk. 255, that an absolute discharge of the effects as well as’ of the person by a bankrupt law in Holland would be an absolute discharge of the debt, and this assertion has since been settled to be the law by repeated adjudications both in England and in the United States. Yet it has been held, that if a discharge was had under a foreign law, manifestly unjust, and not justified by the law of nations, the courts of England would not regard it. This principle was asserted in the case of Blanchard vs. Russell, 13 Mass. Rep. 6, and in
The statute of New Hampshire, which is in question, is not liable to any objections as either partial or unjust. It is similar in its provisions to the statutes of many other states, and provides for an equal distribution of the effects of a deceased debtor among all his creditors, if there is a deficiency. In its terms it is a complete ex-tinguishment of all right and remedy in that state. The administrator there is not liable to any action after payment of the debts allowed, either in the courts of New Hampshire or elsewhere. For although there has been a decision, that a foreign administrator or executor is liable to be sued in another state, and is accountable for all the assets which come into his hands, unless he has duly administered, yet that decision has been questioned by very high authority, (Story, de conflictu legum,) and seems not to be sustained by principle.
The original party to the contract, Mr. Gookin, is deceased, his estate has passed into the hands of his representatives, and as there is no remedy left, either against the person of the administrator or estate, it would seem to follow as a necessary conclusion, that all the debts of the creditors, not presented to the commissioner in New Hampshire, were discharged. It is very apparent that this must be the case, if there were no effects, except in New Hampshire,
It is obvious, that the language and effect of this statute is altogether different from that used in ordinary statutes of limitation. In this statute the claim is said to be barred. In the statute of limitations, the language is, that no action shall be maintained. In the statute of limitations, the remedy may be revived by a new promise. The change of residence of the debtor may furnish a new remedy, but in this case the debt is barred, and no suit can be sustained against the administrator.
It is argued, however, that the effect of considering this neglect as a discharge will be, to defeat a mortgage which a creditor may have for the security of his debt. A mortgage is in the nature of a pledge.. The creditor holding his pledge may retain it until redeemed. . It is not precisely a remedy for the recovery of a debt, though it is sometimes so called, but is a transfer of property, which the person transferring may have again, by paying the sum for which the property was mortgaged or pledged; and although there may be other means or remedies for recovering this sum, yet these may be entirely lost and the pledge remain good. Thus in England, under the bankrupt law, a creditor having a mortgage may-
By the view already taken of the statute of New Hampshire, it is evident that all claims of the creditors, including that of the present plaintiff, were effectually barred. There was neither person or property to which they could resort. The debt, as to every legal effect and operation, was extinguished. The question then will arise, whether a creditor, who has thus suffered his debt to be extinguished, can go abroad and collect his debt in another jurisdiction, where there happens to be property which belonged to the intestate at the time of his decease; and this will lead into a short inquiry into the nature and duty of separate administrations.
It is a principle well settled, that letters of administration issued in one state confer no authority to the administrator to commence a suit in another. If an administrator wishes to collect the funds which belonged to his intestate in another government, he must either take out letters of administration in that government, or collect them through the medium of an administrator there appointed. It is so in England. If an intestate left bona notabilia in the two provinces of York and Canterbury, there must be two administrations. An administrator, by virtue of letters granted in Ireland, cannot commence a suit in England. The administration granted in the place where the deceased had his domicil is considered as the principal administration. The administrator there appointed must administer upon all the assets there collected, all he receives from any former administrator, if there has been a previous administration, all he receives or collects by virtue of any authority derived from any other jurisdiction or from any foreign administrator, and after payment of debts, distribute according to the laws of the place where deceased had his domicil.
Administrators appointed in any state other than that where deceased had his domicil, are considered ancillary or subordinate to the principal administrator. Funds are usually collected and transmitted to the principal administrator for distribution. It is not necessary, however, that this should be done, as the courts in the country where the property is situated, having jurisdiction over the same, may make the distribution themselves, and are not obliged to remit to the foreign administrator, having regard in the distribu
It is not immediately connected with the subject before us, and not necessary, to inquire what proceedings are to be had where an estate is actually insolvent. Justice requires that all creditors should be treated alike, and not that the creditors in one state should receive the whole amount of their demands, and the creditors in another should only receive a partial dividend; and no great practical difficulties suggest themselves to me in effecting this object. As it respects creditors proving their debts in the state where the principal administration is, they are all made equal; they take their dividend of the funds at home, and also of those from abroad. If both are sufficient to pay all the debts, they receive the full amount of their claims. If the estate is insolvent, unless all the creditors, wherever situated, who can legally claim a share, are made equal, they have a better chance of receiving a larger dividend than the creditors living in another government.
Considering the administration where the intestate had his dom-icil as the principal administration, and that the creditors must resort there for the purpose of substantiating their claims, and that all personal assets must ultimately be transmitted for that purpose to the principal administrator, if the funds collected by the auxiliary administrator are necessary for the purpose of paying debts against the estate, and if not wanted, are to be distributed among those entitled thereto, by the principal or auxiliary administrator, as the courts where the funds are collected shall deem expedient, subject to the claims which the citizens of the government have upon the funds within their jurisdiction; we think the citizens of no other state can come in to claim a share of the funds in the hands of a subordinate administrator, and that the object of a commission in the state where the second administration is granted is only to ascertain the claims of the creditors within that state, who are to be
It may be made a question, as to the effect of the question before us, of the constitution of the United States securing to the citizens of each state the privileges and immunities of citizens in the several states. This was not urged in the argument, but we have not overlooked it. Upon this subject it may be remarked, that there are various duties arising out of the relations between a government and the citizens thereof, and various rights, which cannot be equally enjoyed. There are some privileges and immunities, which are necessarily connected with the residence of the citizen, which cannot be enjoyed by those residing elsewhere; and the right of resorting to the funds of a deceased debtor, within the territorial limits of a state, may be one of these. Further, the government may, if they please, permit an administrator from abroad, either by virtue of letters of administration there granted, or granted by them, to collect all the funds of an intestate, without any regard to claims of their own citizens. It is a matter of discretion in them, whether they will distribute or remit, and a matter of favor to their citizens that they will not remit, until provision is made for satisfying their claims. While, therefore, the citizens
The result to which we have arrived on this part of the case is, that the plaintiff, having been a citizen of the state of New-Hampshire, at the time of the decease of Mr. Gookin, the intestate, at the time when the commission of insolvency issued on his estate, and until the same was returned, having neglected to present his claim to the commissioners there appointed, and in consequence thereof his claim being barred by the law of the state of N. Hampshire, cannot remove into this state, here prove his debt, and come in with the creditors in this state, for a share of those funds, to which they have a claim for the satisfaction of their debts.
As the defendant, on this part of the pleadings, will be entitled to a judgment, it is unnecessary to consider the other question presented by the pleadings, as to the effect of the contract made between the plaintiff and Mrs. Gookin, in April, 1828.
The judgment of the county court, which was in favor of the defendant, is therefore affirmed.
Dissenting Opinion
dissenting. — I happen to differ from the court in this cause; and as the question decided is new, and of some importance, there may be no impropriety in expressing my dissent. I am with the plaintiff altogether; but as the court have declared in this cause no opinion as to the second ground of defence, that is, the effect of the contract entered into with Mrs. Gookin, I have nothing to say on that point. But the statute of New-Hampshire, I consider as intended to be a mere local regulation, or statute of limitations, as to the settlement of insolvent estates in their own jurisdiction; or if not so intended, should be here so construed. It is a provision- in an act for the settlement of dead men’s estates,
. Our statute, relating to exhibiting claims before commissioners, says, that if any person neglecting, Sic., “ shall be forever barred from recovering such demand, or from pleading the same in offset in any action whatever.”
These different expressions mean the same thing — that the party shall have no remedy to collect his debt. This is what -all statutes of limitation mean; and the old distinction between the right and the remedy, seems to be at war with the principle, that where there is a legal right there is a remedy. And within the government where the act is passed, this distinction would be idle. It is intended to destroy the right by cutting off the remedy — the only proper way to effect it. But as to foreign jurisdiction, the statute cannot reach the remedy, and therefore it not only does not, but is no evidence that it was intended to affect the right out of the state. Although there was formerly some decisions to the contrary, it is now well settled, that there is no distinction as to where the parties did or do reside, under the head of a discharge of the contract, by the law of the place where made, being a discharge every where, except only under the clause of the constitution of the United States, prohibiting states from passing laws impairing the obligations of contracts: Under that clause, the supreme court of the U. States have decided, that the insolvent laws of a state discharge only the citizens of that state. — Story’s Conflict of Laws, 283, and authorities there cited. So that without regard to the constitution of the United States, this statute, if it discharges any debt, discharges all debts contracted in New-Hampshire, without regard to the residence of the parties. And with regard to the constitution, if the bar or discharge is like a discharge under an insolvent law, it is a discharge of all debts due to citizens of New-Hampshire, wherever the contracts were made, but no bar to debts due to citizens of other states, whether contracted in New-Hampshire or elsewhere.
In Lincoln vs. Battelle, 6 Wendall, 475, it was decided, that a
In 2 Mason, 151, Judge Story, after discussing the subject, says, that if the subject was new, he would hold !{that where all remedies are bound by the leso loci contractus, there is a virtual extinction of the-right in that place, which ought to be recognized by every other tribunal as of equal validity;” but admitted and decided the law to be otherwise. That distinguished Judge has lately published his Commentaries on the Conflict of Laws, which probably had not come to hand when the case was argued, or it would not have escaped the attention of the counsel. The 14th chapter of this very learned work, which treats of jurisdiction and remedies, is very satisfactory to my mind, that although the learned Judge has liad, and perhaps still has, an individual inclination that the law should be different; yet there are no authorities, English or American, for adjudging any foreign supposed statute of extinguishment, to be other than a statute of limitations. And the admission of so great a judge, that the law is different from what he seems to desire it to be, is to me very convincing. The author, after speaking of the contrary opinion of some continental authorities, says, “ The doctrine of the common law is so fully established on the point, that it would be useless to do more than to state the universal principle which it has promulgated ; that in regard to the merits and rights involved in actions, the law of the place where they originated is to govern. But that all forms of remedies and judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right, or the country of the act.” He shows that the case of Melan vs. Fitzjames, 1 Bos. Pul. 138, where the defendant was discharged from arrest, because upon that contract, he could not have been arrested in France, where it was made, was a mistaken decision, and has been overruled. I will now transcribe his concluding remarks, which apply most directly to the question in controversy in this case, supposing the statute of New-Hampshire was intended to extinguish the debt: It is somewhat long, but in my view very valuable. P. 487, the whole of Sec. 582.— “ But although statutes of limitation or prescription of a place where a suit is brought, may properly be held to govern the rights of par-, ties in such suits, or as the proposition is commonly stated the recovery must be sought and the remedy pursuedwithin the time pres
From this I understand that the notion of making the supposed distinction, so far from being established by the English courts, that they have scarcely thought it worthy of consideration ; and that in America, the author supposes that no case has occurred, where the court considered that any statute meant to extinguish the debt. But that in the cases upon statutes of limitation which have arisen, this distinction has not been countenanced by the courts.— There is, therefore, to say the least, an absence of all authorities in
I am not satisfied that the New-Hampshire act is a statute of ex-tinguishment : I regard it as of the same nature as a statute of limitations ; and that if it did purport to extinguish the debt, I am not 'prepared to sanction such an attempt by any other state or kingdom. Neither authorities, justice, or comity, in my view, requires us to go that length. I see no way consistent with the now settled law, to make any distinction between citizens of New-Hampshire and this state, or other states ; and it would seem invidious to attempt it. The language of the statute comprehends all; and it is not pretended the constitution of the United States affects this case. The circumstance of the creditor’s being in New-Hampshire is of no importance. And to allow the citizens of Vermont to present their claims here, and not those of New-Hampshire, is, in my view, without any good reason; and would equally exclude creditors dwelling in New-York or Massachusetts; and the inconveniences of these exclusive and particular allowances, near the lines of the state, where creditors reside, and property real and personal is ofton owned by the deceased in two states, especially where there is an actual insolvency, would be very great, and what is believed has not hitherto been understood or practised. But each -creditor has exhibited his claims, where he chose; at least, so far as to elect which jurisdiction- And it may often happen that. an estate is insolvent where a person dies- but only over the river, solvent, and perhaps rich; and why not permit the claims to be allowed, in all places, where there is estate, and a representation of insolvency ? And then all the dividends may pay the whole ; and if any neglect in anyplace, they lose the dividend there, if a claim can only be presented in one place : then if this plaintiff had presented his claim, and it had been allowed in New-Hampshire, he would clearly have avoided the supposed extinguishment or bar of the statute; but if the estate there had paid but a portion of the debt, he would have been barred here, because he had complied with the statute there.