This action is brought by the plaintiff as administrator of Rufus G. Pinney, to recover the amount of several promissory notes, signed by the defendants, and payable to the order of the intestate. The defendants rely upon two grounds of defence; 1st. That the plaintiff cannot maintain the action, because he has not been duly appointed administrator in this Commonwealth; 2d. That the intestate himself never had any cause of action.
1. The first of these objections presents an interesting questioi of probate jurisdiction. The record of the probate court of th-s county does not show whether it assumed jurisdiction upon tie ground of personal property of the intestate being within the county, or of the residence of one of his debtors therein. T.f either of the facts proved was sufficient to support the jurisdi ■> tian, even if it was not brought to the notice of the judge c-f probate, his grant of administration is conclusive. Harrington v. Brown, 5 Pick. 519. Emery v. Hildreth, 2 Gray, 228. Bu b if the facts necessary to give jurisdiction did not exist, the grant of administration is wholly void. Holyoke v. Haskins, 5 Pick. 20; S. C. 9 Pick. 259. Crosby v. Leavitt, 4 Allen, 410.
In.England, it is necessary, in order to authorize any ecclesiastical court, except that of the diocese in which the intestate dies, to grant letters of administration, that he should have left notable goods, bona notabilia, to the extent of five pounds at least, elsewhere than in that diocese. 1 Williams on Executors, (5th ed.) 266 & seq. But we are not aware that any particular amount of property has ever been held requisite to sustain a grant of original administration in Massachusetts. The statutes of the Province specified no limit in the case of original administration, although they provided that no administration de bonis non should be granted “ unless oath be first made that there are bona notabilia or a personal estate of four pounds value
By the law of England, simple contract debts due to the deceased are bona notabilia in the diocese where the debtor resides. It is said indeed in the text books of approved authority, that the debtor must have resided there at the time of the intestate’s death, though we do not find that this has been expressly ad • judged. 1 Williams on Executors, 279, and authorities cited
Our statute declares that “ the probate court for each county shall have jurisdiction of the probate of wills, granting administration of the estates of persons who at the time of their decease were inhabitants of or resident in .the county, and of persons who die without the state, leaving estates to be administered within such county.” Gen. Sts. c. 117, § 2. It does not in terms say “ leaving estate in such county at the time of their decease.” The section embodies the Rev. Sts. c. 64, § 3, and c. 83, § 5, which were substantial reenactments of the St. of 1817, c. 190, §§ 1, 16. In Picquet, appellant, 5 Pick. 65, the court held that the earliest of these statutes should receive a liberal construction, to enable the representatives of deceased foreign creditors to collect the debts of the deceased here in the only way in which by our laws they could be recovered, that is to say, through.the power of administration granted by the laws of this Commonwealth: and that a debt due from a citizen of this Commonwealth to a foreign subject at the time of his death
Indeed the St. of 1817, c. 190, § 16, (which included the estaste of intestates already deceased, as well as of those who might die in the future,) would seem to point to the time of a petition for administration, rather than the time of the death, as the time at which there must- be estate within the county, in order to give jurisdiction; for the words are, “ when any person who has died or shall die intestate without the Commonwealth shall leave estate of any description within the same to be administered,” letters of administration may be applied for as if he had died within the Commonwealth, and the judge of probate of any county “ wherein such estate shall be found ” shall have power to grant them. But it is not necessary to rely upon so narrow an argument.
Before that statute, the probate courts of the Commonwealth exercised the jurisdiction of granting administration on property belonging or debts due to persons residing abroad, in order to enable them to be collected in this state, because without such appointment no suit could be brought in Massachusetts for the assets or debts of the deceased, either in the courts of the Commonwealth or of the United States. Goodwin v. Jones, 3 Mass. 514. Stevens v. Gaylord, 11 Mass. 256. Picquet v. Swan, 3 Mason, 469. Noonan v. Bradley, 9 Wallace, 394. In Dawes v. Boylston, 9 Mass. 337, and Wheelock v. Pierce, 6 Cush. 288, it seems to have been assumed that a debtor or go.ods of the intestate coming or being brought into the Commonwealth after the death of the testator would give jurisdiction to support an administration. The dictum of Mr. Justice Bigelow in Bowdoin v. Holland, 10 Cush. 18, that “ it is undoubtedly true that if the deceased had at the time of his death neither domicil nor assets within the Commonwealth, the judge of probate had no jurisdiction in the premises,” is not to be taken in its strictest sense. It was there held that primd facie evidence that a deceased nonresident had conveyed real estate in this Commonwealth in fraud of his creditors was sufficient to warrant the grant of
2. The objection that the intestate had no cause of action in his lifetime is groundless. The putting of his name on the notes as indorser, by means of which the defendants were enabled to obtain full value for them, was a good consideration for the notes at their inception. After they had once been put in circulation, any person might purchase them from the holder, and, striking out all intermediate indorsements, sue the makers on the notes. The payee and first indorser has the same right to do this as any other person. Ellsworth v. Brewer, 11 Pick. 316.
Verdict set aside; judgment for the plaintiff,