57 Miss. 662 | Miss. | 1880
delivered the opinion of the court.
Jacob Peale, in his lifetime, accepted the draft of one Z. White for his accommodation. White failed to put Peale in funds to meet the draft, and Peale having made an arrangement for an extension of the time of payment soon afterward died, having by his will appointed the appellant, Klein, his executor, who qualified as such, and on January 1, 1868, paid the bill, as the representative of Peale. Z. White died in the autumn of 1868. He was domiciled, at the time
It is true that the grant of letters-testamentary or of administration is local, confined to the State in which the grant is made, and that such grant confers no power on the executor or administrator in a foreign State. This principle is applied without exception or qualification to ancillary administrators, since they necessarily have no concern with any assets except those within their local jurisdiction, and their sole duty is to collect the assets there, and, after payment of claims in that jurisdiction, to remit the surplus for final distribution to the executor or administrator appointed in the domicile of the decedent. But when applied to executors and administrators
The principal administrator is entitled to have the surplus in the hands of an ancillary administrator transmitted to him for the payment of debts; and such surplus will also be generally transmitted to the principal administrator for distribution among the legatees; and this course is generally pursued, unless there is some special reason making it just and proper for this distribution to be made by the ancillary administrator. Wharton Int. Law, § 619; Garland v. Rowan, 2 S. & M. 617. Accordingly it is held that the principal administrator is the owner of all the debts due to the intestate, wherever the debtor may reside, as such debts are now recognized as following the person of the creditor, and have locality at his domicile; and especially are this ownership and title of the principal administrator recognized as to all debts, the evidences of which, as bonds, bills and notes, come to his possession in the place of the domicile of the intestate. The Supreme Court of the United States, in Wilkins v. Ellett, 9 Wall. 740, after stating that the personal estate of the deceased is to be regarded, for the purposes of succession and distribution, wherever situated, as having no other locality than that of his domicile, said: “ The original administrator, therefore, with letters taken out
It thus appearing that, at least as to debts due the decedent, the securities for which are in possession of his principal and original administrator, the title and ownership are in the latter, with the right to receive payment and give acquittances therefor, it follows that he would be held responsible for their due administration, as in case of domestic debts, if there were no other obstacle to their collection than exists in relation to domestic debts. Such an obstacle does, however, exist, and to the extent that it is insurmountable by the use of ordinary and reasonable diligence by the administrator, it will furnish a legal excuse for a failure to collect a foreign debt. This obstacle is the want of power in the principal administrator to sue for and recover the debt in the foreign State. For reasons of policy, recognized in the comity of nations, each State in which a debtor of a foreign decedent may reside, generally, though not universally, refuses aid through its courts to a foreign administrator to collect the debt, because it will not allow the transmission of the property within its limits to a foreign State, until the claims of its own citizens on it have been discharged. Hence, every State has usually required an ancillary administration within its own jurisdiction, before it will afford aid through its courts to the collection of the debts due to foreign decedents ; so that the creditors within that State may be first satisfied, before the transmission of the assets to the place
The principal administrator’s duties and responsibilities in reference to a foreign debt, the evidence of which he has in his possession, can be easily ascertained from the foregoing principles. He has the title and the possession; he has the right to receive voluntary payment; he has the right to apply for and receive the appointment of ancillary administration, or to secure it to his.nominee. He cannot, therefore, hold the evidence of debt and do nothing; for this would be most unjust to the distributees, and would result in a loss of the debt to them, unless voluntary payment was made. He should therefore take such reasonable steps as are within his power to collect the debt. He should, except where the debt is too small to authorize the expense, attempt, in good faith, either to secure the appointment of ancillary administrator for himself, or for some discreet and suitable person to be selected by him. Should he be unable to comply with the terms — as giving security — required for the appointment, that would excuse him from making application for a personal appointment. He should then take proper steps to have another appointed, and turn over to him the collection of the debt. He will be held to be excused only when he has shown that he has done all that was reasonably within his power to secure the collection of the debt. He has not done his duty when, as in this case, he has merely transmitted the claim to a lawyer in the foreign State for collection, when he has been apprised in ample time that no steps have been taken for collection by his attorney ; nor has he done his duty when he accepts as a compromise whatever sum tbe debtor or his legal representative shall voluntarily pay. Schultz v. Pulver, 11 Wend. 361 ; Helme v. Sanders, 3 Hawks (N. C.), 563. But in this case the executor was without the excuse of a want of power to sue. He could have sued in a foreign State in his own name. Peale was not a creditor of White at the time of the former’s death. He was merely his surety. The relation of cred
It also appears that Klein acted on the theory that it was his duty to collect the claim, and that he either had the right to sue, or could easily have acquired it. The ground on which he rests the compromise, as shown by his deposition, is almost exclusively that he was advised that the claim was barred by the Statute of Limitations at the time the compromise was made. He took charge of the claim, and placed it in the hands of a lawyer for collection, and refused at one time to accept a compromise. He assumed to exercise the duty of an executor rightfully having the power to enforce collection, and did nothing to notify the heirs and distributees of Peale that he would not discharge fully the trust thus assumed. He made the compromise and surrendered the claim without consulting them, or without even having given them notice that he did not possess the power to collect, or did not intend to acquire that power. Under these circumstances, he will not be heard
It is clear, from the evidence, that Klein might have collected the claim if he had sued, or caused suit to be brought; and that the compromise was wholly unnecessary. He claims, however, that he is exonerated, because he acted under the advice of counsel. It appears that counsel did advise him to compromise, upon the ground that the claim was barred by the Statute of Limitations of Louisiana. The attorney, under whose advice he acted, stated in his deposition that he had nothing placed in his hands, except the bill of exchange drawn by White, and accepted by Peale; and that, by the law of Louisiana, if nothing more appeared than what was shown on the face of the bill, the claim was barred. The attorney was not advised that Peale was an accommodation acceptor for White, and that his executor had paid the draft for White’s benefit. He states that the claim thus arising from the payment was not barred, and that he would not have ■given the advice if he had known these facts. They were well known to Klein, and he was guilty of inexcusable negligence in not communicating them to his attorney. It was his duty to communicate all the material facts to his attorney, if he desired to protect himself by his advice. This exception to his final account was therefore properly sustained.
The exceptions to the account of Klein, that he did not receive as much rent for the store-house and dwelling of Peale as he ought, are not sustained by the evidence, and were properly overruled. It is not shown that Klein, who is proved to be a good business man, and interested largely at the time in real estate in Vicksburg, did not act in good faith in the prices fixed by him for the rent of these houses. Witnesses now think that in 1867 and 1868 he might have received more ; but it is shown clearly that Klein got all he could from the tenants, and that there was reasonable ground for the apprehension which he felt, that if he turned out these tenants the property might be vacant. We see nothing in his conduct in this matter which ought to subject him to the payment of a larger sum than he received. Decree affirmed.