39 F. 592 | U.S. Circuit Court for the District of Northern New York | 1889
This is a suit in equity to recover the sum of $8,221.16, as profits belonging to the plaintiff’s intestate resulting from the purchase and sale by the defendant of 200 shares of the capital stock of the Adams Express Company, which it is claimed the defendant bought and sold, not for himself, but for the plaintiff’s intestate. The bill alleges that the plaintiff “ is the duly appointed and qualified administrator of the estate and effects of one Merrill I. Mills, late of the city of Detroit, in the state of Michigan,” who died on or about the 14th of September, 1882, “under and by virtue of letters of administration duly issued to him by the judge of probate of the county of Wayne, in the state of Michigan, on the 13th day of October, 1882, which said letters were issued' out of and under the seal of the probate court of the said county, the same bearing date the 13th day of October, 1882, upon the petition of Cynthia A. Mills and Merrill B. Mills, the widow and son of said deceased.” This is the only averment in the bill as to the issuing of any letters of administration to the plaintiff. It is apparent, therefore, that he rests his capacity to sue solely upon the grant of letters of administration to him in Michigan.
The substance of the allegations of the bill is that in October, 1869, the intestate delivered to the defendant 12,800, which the defendant accepted as the property of the intestate, to invest it in the purchase for the intestate of 200 shares of the capital stock of the Adams Express Company; that the defendant, pursuant to said agreement, purchased for the intestate the 200 shares, of the par value of $100 per share, for the price of $57.50 per share, and paid the $2,800 as part of the purchase price, and paid or agreed to pay $8,750 as the balance of the purchase price, including brokerage, making an aggregate of $11,550; that it was agreed between the defendant and the intestate that the former should purchase the stock and take a transfer of it in the name of the latter, hut, instead of doing so, the defendant, without the knowledge or consent of the intestate, had the stock transferred to the name of the defendant, and not to the name of the intestate, and the latter did not discover that fact until after the defendant had sold the stock; that on the 12th of October, 1871, the defendant sold the 200 shares for $79 per share, being $15,800, less $25 brokerage; that during the time the 200 shares stood in the name of the defendant he received seven dividends thereon, of $400 each; that the interest on those dividends, up to the time the slock wras sold, amounted to $147.83; that during the time the stock stood in the name of the defendant he expended moneys on account of the intestate, for interest on unpaid purchase price, brokerage, etc., not exceeding $1,775; that the profits on the purchase and sale of the 200 shares, and the moneys received by the defendant on the sale thereof, and for dividends thereon, and interest on such dividends, over and above all moneys expended by the defendant on account of the in
It is objected by the defendant that the plaintiff shows no right to bring this suit in the state of New York. This objection must prevail. In view of the allegations of the bill and the denial in the answer, the question is raised whether an administrator appointed in one state can, by virtue of such appointment, maintain an action in another state to enforce an obligation due his intestate. In Noonan v. Bradley, 9 Wall. 394, 400, it was said:
“Upon this question the law is well settled. All the eases on the subject are in one way. In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficacy to the appointment outside of the territorial jurisdiction of the state within which it was granted. All hold that, in the absence of such a statute, no suit can be maintained by an administrator in his official capacity, except within the limits of the state from which he derives his authority. If he desires to prosecute a suit in another state he must first obtain a grant of administration therein in accordance with its laws. ”
There is no statute of tbe state of New York giving effect in that state to the Michigan appointment. Ancillary letters taken out in New York are a necessary prerequisite to the maintenance of the present suit. In Parsons v. Lyman, 20 N. Y. 103, 112, it was said to be well settled in New York that an executor or administrator appointed in another state has not, as such, any authority beyond the sovereignty by virtue of whose laws he was appointed; citing Morrell v. Dickey, 1 Johns. Ch. 153; Doolittle v. Lewis, 7 Johns. Ch. 45; Vroom v. Van Horne, 10 Paige, 549.
It is objected by the plaintiff that the answer does not set up the
Besides this, the plaintiff, on the face of his bill, has a plain, adequate, and complete remedy at law.' He declares in his bill that the amount he is entitled to recover is $8,221.16 as of October 12, 1871. He asks for no discovery. He shows that no accounting under the direction of the court is necessary, for he makes the accounting himself in his bill. The prayer that the defendant may “account for and pay over” “such gains and profits,” which he fixes at a specified amount, is no more than a prayer that the defendant pay over such specified amount. No other equitable relief is asked. In such a case it is not necessary that the objection should have been taken in limine in the answer. It is taken at the hearing, and that is sufficient. This is not a case where it is competent for a court of equity to grant the relief asked. Reynes v. Dumont, 130 U. S. 354, 395, 9 Sup. Ct. Rep. 486; Kilbourn v. Sunderland, 130 U. S. 505, 514, 9 Sup. Ct. Rep. 594. It is governed by the rule laid down in Lewis v. Cocks, 23 Wall. 466, where the court, finding the case to be an action of ejectment in the form of a bill in chancery, ordered the hill to be dismissed, although the objection was not made by demurrer, plea, or answer, or suggested by counsel, saying that, as it clearly existed, it was the duty of the court sua sponte to recognize it, and give it effect. It results from these views that, without inquiring into the merits of the case, the bill must be dismissed, with costs.