Morrell v. Dickey

1 Johns. Ch. 153 | New York Court of Chancery | 1814

The Chancellor.

This is an amicable suit, by the plaintiffs, as legatees, in and by the last will of William I. Swan, deceased, against the defendant, as administrator with the will annexed, and the case is submitted upon bill and answer.

1. The first point is as to the right of the plaintiffs (the mother and son) to the legacy, and the extent of that right. The will was in the form of a letter, addressed to John Magrath, at the time when the testator was setting out on a voyage from New-York to the West-Indies, where he died; and it contained the following clause: “A thousand accidents may occur to me, which might deprive my sisters of that protection which it would be my study to afford; and, in that event, I must beg that you will attend to putting them in possession of two thirds of what I may be worth, appropriating the remaining third to Miss C******', and her child, in any manner that may appear most proper.” It is admitted that the two plaintiffs, Barbara and William, are the mother and child alluded to in the will. There is no doubt that the paper must be received and treated as a will, and that the plaintiffs are each entitled to an undivided moiety of one third of all the estate of the testator. This, indeed, seems to be a point conceded by the case ; and the , . , ... , „ „ probate oí the paper as a will, by the surrogate oí JvewYork, is conclusive; it being the judicial act of a competent court. (3 Term Rep. 125. 1 Vesey, 287. 2 Atk. 324.)

2. Admitting the right, the next point is, whether the plaintiff, Barbara, has entitled herself to the portion of her infant son, as she has not been appointed guardian, nor given security, under the authority of this state, but applies as guardian appointed by the Orphan’s Court of Philadelphia. It is well settled, that we cannot take notice of letters testamentary, or of administration, granted abroad, and that they give no authority to sue here. This is not only the law in England, but it has been very generally adopted in this country. (Tourton v. Flower, 3 P. Wms. 369. Lee v. Bank of England, 8 Ves. 44. Goodwin v. Jones, 3 Tyng’s Rep, 514. Riley v. Riley, 3 Day’s Rep. 74. Fenwick v. Administrators of Sears, 1 Cranch, 259.) This case is wilhin’lhe reason of that rule ; and the security taken in the Orphan’s Court of Philadelphia may not be adequate to reach the property lying within this state. This court must judge, itself, of the security, before it directs the payment of the infant’s money. The defendant would not be justified in paying the infant’s money to the plaintiff, on the ground that she was the mother of the legatee. I had occasion, lately, to consider this point, in the case of Genet v. Tallmadge.^* It is only in her character of guardian, duly appointed here, upon requisite security, that she can entitle herself to receive the legacy of her son.

My opinion, accordingly, is, that she is entitled, in her own right, to a moiety of the third of the testator’s estate, and that the defendant, after deducting his taxable costs of this suit out of the one third of the sum of 1,614 dollars and 38 cents, admitted to have been received by him, be decreed to pay a moiety of the residue thereof to the plaintiff, Barbara. As the defendant is not in default, and has only sought the direction of this court in a case proper for it, he ought to receive costs out of the fund; ^(a) and this is the course of the court in such cases. ( Whopham v. Wingfield, 4 Ves. 630.) As to the remaining moiety of the third, belonging to the child, that must be paid into court, to the register, or assistant register, to abide the order of the court; and when the plaintiff, Barbara, is appointed guardian here, and gives the competent security, the money will be paid over to her.

Decree accordingly.

* Ante, p. 3.

(a) Vide ante, 45., Tabele v. Tabele.