27 N.C. 267 | N.C. | 1844
Action on the case brought by the plaintiff as the executor of Theophilus Hyman, to which the defendant pleaded, among other pleas, the general issue and ne unques executor. On the trial it appeared that Theophilus Hyman, the testator, resided in the county of (268) Edgecombe till 1839, during which time he made a last will and testament, in which he named the plaintiff his executor, and deposited it with a friend. He then removed to the county of Leon in Florida, where he died in the Spring of 1841. Previous to his removal he had been engaged in merchandise in Edgecombe, and at his death had debts due to him in that county. At May Term, 1841, of Edgecombe County Court, Henry Hyman, the plaintiff, and the executor named in the will, caused it to be duly proved, qualified, took out letters testamentary, and instituted the present suit against the defendant, a resident of Florida, *194 but who happened to be on a visit to North Carolina. It also appeared that the note on which the suit was brought was executed in Florida; that the parties then resided there, and that the defendant still resides there. And it also appeared that the said last will and testament of the testator had never been proved in the county of Leon in Florida, the place of residence, nor had any proceeding been there taken in relation thereto, nor did it appear that it had been proved in any other county in the said territory.
It was insisted for the defendant, among other things, that the suit could not be sustained in Edgecombe, nor anywhere in this State, unless it first appeared that the will in question had been duly proved and letters issued thereon in the county of Leon in the territory of Florida.
The question was reserved, and upon the other pleas the jury found for the plaintiff, subject to the opinion of the court. On consideration, the court was of opinion that the suit was rightfully brought, and rendered judgment for the plaintiff. From this judgment the defendant appealed. The decision of this case rests, in our opinion, entirely upon the question whether the letters testamentary granted to the plaintiff by the county court of Edgecombe are entirely void or merely (269) voidable. If the former, the plaintiff cannot maintain his action; if the latter, he can.
The act of 1789 of our General Assembly, Rev. Stat., ch. 122, sec. 6, provides "that all wills shall be proved in the county where the testator had his usual place of residence at the time of his death"; and on behalf of the defendant it is urged that Theophilus Hyman had no residence in this State at the time of his death, and, therefore, no county in this State had any original jurisdiction to take probate of his will. It is not denied, if the will had been first proved in Florida, where the testator died, agreeably to the laws of that Territory, that a copy of it, properly authenticated, might have been admitted to probate in this State, and, in that case, Edgecombe County Court would have had jurisdiction of the case, and letters testamentary issued by it would be valid. We agree that this would have been the proper course. Though long a vexed question, it is now well settled in England, as well as in this country, that a will must be executed according to the law of the country where the domicil was at the time of the death of the testator. But as late as 1828 the contrary was holden by Sir John Nicholl, in Curling v. Thornton; and again it was ruled by him in Stanly v. Barnes, 3 Haggard Exch., 273. This latter case, however, settled the doctrine in England; the opinion of Sir John *195 Nicholl being overruled by the High Court of Delegates upon appeal, and the doctrine fully established that the law of the actual foreign domicil of a British subject is exclusively to govern in relation to his testament of personal property as it would in the case of a foreigner. The same doctrine was held in Pennsylvania in Desistat v. Berquins, 1 Binney, 336. That was the case of a foreign testator, domiciled abroad, disposing of property in that State. From the many adjudications in the American courts, it may, we presume, be considered the settled doctrine in this country. Holmes v. Remsen, 4 John. C., 469;DeSobry v. DeLaistre, 2 Harris and Johnson, 224; Dixon v. Ramsay, 3 Cranche, 319. There is, then, a manifest propriety in submitting the will in the first instance to the forum of the domicil at (270) the time of the death, but we can find no case deciding that course to be absolutely necessary. In Larpent v. Lindsy, 1 Haggard, 382, decided in 1828, certain papers of a testamentary character were left by Thomas Barnes, who died in India. These papers were proven there as his will, and, exemplification of the probate in India being transmitted to England, a motion was submitted in the Prerogative Court of Canterbury, where there were bona notabilia of the deceased, for administration with the exemplified copies of the papers annexed as the will of Thomas Barnes.Sir John Nicholl, after observing that the probate in India was not exactly according to the English practice, proceeds: "But the court in India, which, as the deceased died domiciled there, is a court of competent jurisdiction, has considered them as a will and codicil, and this Court isperhaps bound to follow it. The question how far this and other courts of probate are to be governed by the decision of the court of probate where the deceased was domiciled has never been expressly decided. He then observes it is the general practice, and he should not depart from it unless in a strong case of inconvenience. In the opinion, then, of Sir JohnNicholl, the practice of proving the will first in the forum of the foreign domicil may in a strong case of inconvenience be departed from, and, as I understand him, the probate be first had in the jurisdiction where bonanotabilia are found. But though the will be proved, or letters of administration be granted, where the foreign domicil was, yet they confer upon the executor and the administrator no rights, beyond the territory of the government where granted. Any right which they may enjoy beyond such limits or jurisdiction is not de jure, but conventional, and depending upon the comity of nations; or, rather, is acknowledged ex comitate. Every nation has a right to prescribe the mode in which it shall be enjoyed, and no nation is bound to enforce foreign laws prejudicial to the rights of its citizens. Hence it is the doctrine of the common law that no suit can be brought by an executor or administrator upon foreign letters. 1 Will. Ex., 205. *196
(271) He must apply to the proper court of the country where the action is to be brought, and obtain there letters of administration or testamentary, and his right to do so is considered as a matter of course. In this State the court of probate in such a case does not inquire into the validity of the will, but looks alone to the probate; and, upon being satisfied upon that point, directs letters to issue to the executor or administrator, as the case may be. Helme v. Saunders,
The law will not permit a foreign administrator or executor to collect the assets, because it is the duty of the Government to take care of its own citizens, and their right would be materially injured by permitting actions to be brought or recognizing foreign letters, as the assets might be carried beyond the limits of the State and beyond the reach of the creditors. This new administration, however, is but ancillary to the original, and imposes upon the executor or administrator the obligation to pay over, when they are obtained by different persons from the executor or administrator of the domicil, whatever of the assets may remain after discharging the debts and legacies due to persons resident within the country where obtained. Harvey v. Richards, Mason, 381; Story Conf. of Laws, 423. In Helme v. Saunders, supra, Judge Henderson observes that the Court were of opinion that when a probate was obtained in a sister State, and was authenticated as the laws of the United States direct, it is, under the Constitution of the United States, in such an authentic form as to supersede the necessity of any probate in the courts of his State, and that such authentication may be given in and sustain a suit. Be this, however, as it may, either new letters must be obtained in this State, in such a case, before an administrator or executor can sue in our courts or he must produce his letters so authenticated in another State; and either, according to Judge Henderson's opinion, will answer. The power of our county courts to grant letters testamentary or of administration where a person has died beyond the State, being domiciled there, is fully established by Smith v. Munroe,
It is to be observed that it does not appear that the will was offered for probate and admitted as the will of a citizen of Florida, and not as the will of a citizen of North Carolina.
PER CURIAM. Affirmed.
Cited: Stamps v. Moore,