Lawrence v. Lawrence

3 Barb. Ch. 71 | New York Court of Chancery | 1848

The Chancellor.

If this- had been a mortgage to the testator, for a debt due Id him, the executrix who had obtained letters testamentary here would, unquestionably, have had. the right to file a bill' in her own name td’foreclose the mortgáge; ' without making her co-executrix, who had only obtained letters testamentary in a sister state, a party. As a general rule, a foreign executor is riot entitled to sue in our courts without naving proved the will and taken out letters testamentary thereon from the proper probate court of this state. And where two executors are named in a will, and one of them has taken out letters testamentary in this state and the other has not, the one who has obtained letters here may sue in his own name alone, without naming the other as a party. (2 R. S. 71, § 15. Laws of 1838, p. 103.) These rules, however, are only applicable to suits brought by executors for debts due to the testator, or where the foundation of the suit is based upon some transaction with the testator in his lifetime. And they do not prevent a foreign executor from suing in our courts upon a contract made with him as such executor. For in such a case, the party with whom the contract is made may sue upon it, in his own name, without proving that letters testamentary were granted to him any where. And where a judgment had been recovered in this state, by an administrator appointed here, the supreme court of Massachusetts decided that he could bring a suit upon the judgment in that state, without taking out letters of administration there. (Talmage, adm'r, v. Chapel, 16 Mass. Rep. 71.) Indeed the court went much farther in that case; for it held that an administrator appointed in that state could not have sued upon the judgment in his own name, as administrator, because there was no privity of contract between him and the plaintiff in the judgment in this state.

In the case under consideration, the mortgage was not given to secure a debt due to the testator, nor to secure a demand due to the complainant and to Mrs. Rattoone as the executrixes of the testator. For I. Lawrence, being himself an executor, owed nothing to them as personal representatives of the testator. The money in his hands belonged to the legatees. And Mrs. Rattoone, in taking a security in her own name, from her co-executor and his wife, took it merely as a trustee for those to whom it rightfully belonged. The complainant, therefore, cannot file a bill, as executrix, to foreclose a mortgage which she and lier husband have given to another person. The proper course is for Mrs. Rattoone to file a bill in her own name, to foreclose the mortgage, if any thing is due threon which I. Lawlence was not entitled to retain by virtue of his marital rights' as husband of the complainant. And when the amount is collected, it should be paid over to those who are entitled to it under the will of the testator. Or, if the time for the distribution of the fund has not arrived, it should be invested in the joint names of the complainant and of Mrs. Rattoone, as the executrixes to whom letters testamentary were granted in New-Jersey. For it was in the character of an executor, administering the estate of the testator there, that I. Lawrence received the money, for the security of which tin's mortgage was given.

It does not appear from the bill whether the complainant has any interest in the money for which the bond and mortgage were given. The will and codicils are not set out in the bill, nor is the substance of them stated. And the complainant does not show that she has any interest in the fund as a legatee of her father. The bill only states, in the past tense, that she was a daughter of the testator, and was entitled, by the will and codicils, to a distributory share of his estate, as a legatee. But whether she had received her distributive share of the estate, in the lifetime of her husband, or is now entitled to a portion of the fund, secured by this mortgage, as a legatee thereof for her sole and separate use, is nowhere stated.

If she has an interest in the fund, and Mrs. Rattoone, upon a proper application to her for that purpose, refuses to proceed to foreclose the mortgage for the benefit of the legatees who are interested therein, the complainant and the other legatees may file a bill, showing their respective rights in the fund, and claiming to have the benefit of the mortgage and of a foreclosure thereof. But in that case, Mrs. Rattoone, the mortgagee, and all the legatees who are interested in the fund, must bo made parties to the suit; or the bill must be filed by some of the legatees in behalf of themselves and of all others having an interest in the fund. In her character of executrix of her father, and upon the letters testamentary granted to her in this state, however, Mrs. Lawrence does not appear to have any claim upon the moneys received by her deceased husband, and secured by this mortgage. Nor was she, in that character, entitled to any part of the proceeds of the real estate which were brought into the office of the surrogate lir distribution.,

Th.e decree appealed from is not erroneous ; aiid "it must be affirmed with costs. '