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,
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 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.
(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, 10 N.C. 563.
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, 23 N.C. 345, (272) and that the county where bona notabilia of the testator or intestate are found is the proper tribunal to grant them. This can fully answer the verbal objection as to the letters in the present case growing out of the language of our act concerning probates. Theophilus Hyman had been a merchant in Edgecombe County and at the time of his death had many debts due to him in that county. These debts so due constitutedbona notabilia, and gave to the county of Edgecombe power to take probate of the will in some way, as by ordering the letters granted in another State to be recorded and new letters to issue. Owings v. Ulery, 4 Bibb., 450, and Carmichael v. Elmendorf, 4 Bibb., 484. The question then returns, Are the letters testamentary granted to the plaintiff void? If so, he is not the executor of the will of Theophilus Hyman,
and cannot support the action. If, however, the letters are merely voidable, the defendant cannot avail himself of his plea of ne unquesexecutor. Mr. Chitty, 1 Pleading, 486, states that when letters testamentary have been granted by an inferior diocese the defendant may plead ne unques executor, and give in evidence the fact that there werebona notabilia. And why could he do so? Because the probate was void as granted by an incompetent authority. Toller, 120, and cases there cited. The proper person before whom, according to the law of England, a will is to be proved is the ordinary of the place where the testator dwelt, that is, generally, the bishop of the diocese; and, if all his goods lie within that diocese, the probate before the bishop thereof, or his proper officer, is the only proper one; but if he have bona notabilia lying within that diocese, and some other, then the probate must be had before the metropolitan of the province in consequence of his special prerogative; and if otherwise granted it is void, because of the want of jurisdiction. 1 Will. on Exrs., 167. It is sometimes difficult to distinguish between such acts or judgments of a court as are void and such as are merely voidable; but it may be safely said in reference to granting letters testamentary or of administration that if under any circumstances the court of probate could grant them, then it would have jurisdiction of the subject and its act is not void; if, on the contrary, (273) in no possible state of things it could grant the letters, then are they void and conveyed no authority to any one to act under them. Thus it has been decided in this State that when a citizen of North Carolina dies, letters of administration granted by the court of a county where he never resided nor had any assets at the time of his death were absolutely void, being a mere nullity. Collins v. Turner, 4 N.C. 541. So if administration be granted before probate or refusal, or where there are two executors, and one proves the will and dies, and administration is granted before the refusal of the survivor subsequent to the death of his coexecutor — in all these cases the administration is not simply voidable, but absolutely void, because in neither case could the ordinary by any possibility, while the facts so continued, have authority or power to grant administration. Toller, 120. But where he has, in the particular case, a right to act, then his act may be voidable, but is not void; he has the jurisdiction of that particular case. He may mistake his duty, or act upon insufficient testimony; what he does may be wrongfully done; but it is not a nullity — as if he grants letters of administration to a wrong person, or if he grant it non vocatis, fure vocandis. This doctrine is treated by Chief Justice Marshall in his usual clear and forcible manner inGriffith v. Frazier, 8 Cranche, 5, in which he had occasion to examine the doctrine of void and voidable letters of administration. The case, so far as this point is concerned, was, shortly, as
follows: A man by the name of Salvador, a citizen of South Carolina, made his will and appointed three individuals executors. Two of them were out of the State, and Da Costa, the third, had the will proved, and qualified as executor. He afterwards left the State, and, while he was alive, administration with the will annexed was granted to one Lamoth, and the question was whether the letters to the latter were void. The Supreme Court ruled them to be so, because in no possible state (274) of things, during the life of Da Costa, could the ordinary grant letters of administration; his letters testamentary to him had exhausted his power. Let us test this case by the principles established. Theophilus Hyman died in Florida, a foreign government. According to the rules of the English courts, his will ought to have been proved there, in the first instance, and if the executor wished to collect the assets in this State he ought to have procured a copy, duly authenticated, and upon presenting that before the proper court of probate in this State have it proved and deposited as if it were the original, and upon such probate obtain letters testamentary. I Will. on Exrs., 205; Toller, 70. Under some circumstances, then, to wit, such as Mr. Williams points out, the court of probate in this State, where there were bona notabilia, might grant letters testamentary. If it be correct, as stated by JudgeHenderson, that in such case our court of probate goes into evidence of the fact only of the foreign probate, and, if satisfied of that fact, grants letters testamentary, that is, gives documentary evidence, which our courts recognize as genuine, then the result is that the court of Edgecombe County has granted letters testamentary, not in a case in which they had no jurisdiction, but upon improper and mistaken testimony. Instead of requiring a copy, duly authenticated under the laws of Florida, to be filed among their records as evidence complete of the existence of the will, they have caused the original to be proved and filed, and upon that have granted letters testamentary. It is to be regretted that the court has inadvisedly pursued this course. A proper respect for the laws and institutions of Florida should have led to the adoption of the accustomed mode. It is an unnecessary departure from that comity which ought ever to exist between the courts of different nations. We cannot, however, therefore, declare the letters granted by that court void. Nor do we perceive any serious mischief or inconvenience likely to ensue from sustaining the letters. It was absolutely necessary, in order to collect and secure the assets and to pay the creditors and legatees of the testator, if there were any such in (275) this State, that letters testamentary should be issued from some authority here; and though this appointment is only ancillary to the one to be made in Florida, yet so far as the assets in this State are concerned it is plenary to every purpose. It will be the duty of the executor to
take the will to Florida and have it proved there according to the laws of that State; otherwise, he may subject himself to a devastavit. Helmev. Saunders, 10 N.C. 563. Nor is the defendant materially interested in the determination of this question. The jury by their verdict have said he owes the money, and it must be to him a matter of indifference to whom he pays it, provided, when he does so, it shall be to him an effectual discharge; and that if paid under the judgment in this case he will be protected is very certain; the letters testamentary being granted by a court of competent authority and having jurisdiction, and binding upon all other courts, both of law and equity, until duly and properly repealed. 1 Will. on Exrs., 340. If, however, the grant of letters be void, all the acts of the executor done under them are void, so far as the rightful executor is concerned. Thus, in Graysbrook v. Fox, Plowden, 276, 1 Will. Exrs., 368, administration having been granted by the ordinary before the executor had proved the will, was declared void, and the administrator having sold some of the goods of the testator to the defendant, the plaintiff (the executor) sued him in detinue for them and recovered, because the letters of administration were void. With respect to payments, however, made to an executor or administrator by a debtor of the estate, the rule is different. If the grant be made by a court of competent jurisdiction, whether the letters be void or only voidable, abona fide payment of a debt due to the estate will be a discharge to a debtor. In Allen v. Dundass, 3 Term, 125, it was held that a payment made to the executor of a forged will, who had obtained probate of it, the supposed testator being dead, was a valid discharge to the debtor, although the probate was afterwards declared null by the Ecclesiastical Court on the principle, says Mr. Williams, 1 Wills. Exrs., 371, that if the executor had brought suit against the debtor, the latter could (276) not have controverted the title of the executor as long as the probate was unrepealed, and the debtor was not obliged to wait for a suit, when he knew no defense could be made to it. See Woolly v. Clark, 5 Barn. and Ald., 746; Phillips v. Byron, 1 Sh., 509; Appeal of Peebles, 13 Serg. and Rawle, 39. There cannot, then, be a doubt that a payment by the defendant to the present plaintiff, made either voluntarily or under process of law, would be to him a full discharge.
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, 47 N.C. 82; Townsend v. Moore, 55 N.C. 149;Alvany v. Powell, 55 N.C. 60; Syme v. Broughton, 86 N.C. 157; London v.R. R., 88 N.C. 590; Garrison v. Cox, 95 N.C. 355; Springer v.Shavender, 116 N.C. 16; Shields v. Ins. Co., 119 N.C. 384; In reBowman, 121 N.C. 375; Holshouser v. Copper Co., 138 N.C. 258.