2 App. D.C. 156 | D.C. | 1894
delivered the opinion of the Court:
The refusal of a court to vacate an order of publication cannot in general be regarded as involving the merits of an action so far as to authorize the appeal from the decision for which provision is made by Section 772 of the Revised Statutes of the United States for the District of Columbia. But the order of refusal, under the peculiar circumstances of the present case,, appears to reach to the question of the jurisdiction of the court and its right to proceed with the suit. It cannot, therefore, be regarded in this instance as a merely interlocutory order.
Undoubtedly it is not the law as claimed in argument in this case, that a probate court can draw to itself the administration of all the assets, both real and personal, of a decedent, whether situated within the-territorial judisdiction or outside of it. It is not entirely true, even of the personal estate, that it is necessarily all drawn to the place of the domicile of the deceased, and to the administration there granted. An executor or administrator is neither entitled to sue nor liable to be sued outside of the jurisdiction which has conferred his authority upon him, and to the courts of which alone he is amenable, unless there' is express statutory provision to permit such suit by the legislative power of the jurisdiction where the suit is sought to be maintained. And while it is not now unusual to find statutory enactments in many of our States permitting foreign executors and administrators the right to, sue, it still remains the universal policy to preserve local assets for the satisfaction in the first instance of local claims, and to allow only the residuum to be transmitted to the place of the principal administration at the domicile of the deceased.
But whatever may be the relaxation of the law in regard to the collection of the personal assets of the decedent, we certainly cannot concede to the probate court of a foreign jurisdiction, a power over real estate which we deny to our own court of probate. We cannot concede to any foreign court whatever, whether of general or of limited jurisdiction,
But the question of apparent difficulty in the case is this: Conceding, as it must be conceded, that only a court of equity in the District of Columbia has jurisdiction in the premises, it is argued that this jurisdiction may not be exercised in the present instance on account of the alleged impossibility of having proper parties to the suit. It is assumed that the executors of Plumb are necessary parties, without whom the suit cannot be maintained; that inasmuch as they are foreign executors, they cannot be sued, and cannot be made parties to any suit; and that therefore suit cannot be maintained at all.
If this argument be sound, it would follow that the real estate of the decedent in the District of Columbia could not be reached by any court in satisfaction of his debts. We can scarcely regard such a conclusion as correct, or the argument which leads to it as sound.
It is true, as a general rule, that in a creditors’ bill filed for the purpose of subjecting the real estate of a deceased person as assets to the payment of his debts, the executor or
But while this is the general rule, it is subject to the qualification that if there are no personal assets, and consequently no qualified executpr or administrator — for without assets there can not be administration, and without some preliminary showing of personal assets no administrator can be appointed or letters testamentary granted — in that event a creditor’s bill may be maintained without the presence of an •executor or administrator. The law does not require either that which is impossible or that which is nugatory; and in the case in which it would refuse administration for the want of personal assets to be administered, it cannot be that it would refuse to permit a suit to reach the real estate on the ground that there was no administrator to be made a party to the suit. Birely v. Staley, 5 G. & J., 432.
In the present instance there are, it is true, executors of the decedent, and those executors have been duly qualified
In the case of Milligan v, Milledge, 3 C ranch, 220, the question was mooted, but not decided, whether it was necessary to proceed against an executor in one jurisdiction, and reduce a claim to judgment before proceedings upon the claim could be instituted against devisees and legatees in another jurisdiction. But since the time of that decision the policy of our jurisprudence, both State and Federal, has with great unanimity settled it that a creditor should not be required to go out of his own State to enforce his claims-against a person who is not to be found therein, when there are assets or property of such person to be found within the jurisdiction. For this reason attachment laws have been enacted, and are to be found, we presume, in every State of our Union. The rights of residents as against non-residents are zealously guarded, when there is question of insolvency, or of assignments for the benefit of creditors. And it would be a strange anomaly if, when death has impressed a trust
In the case of Noonan v. Bradley, 9 Wall., 394, the Supreme Court of the United States, speaking through Mr. Justice Field, said: “Upon this question (the right of an administrator to maintain suit outside of the jurisdiction) the law is well settled. All the cases 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. * * * The same doctrine is as applicable to the case of executors as to that of administrators; the right to sue in both instances depending upon the letters.” And yet in the present case it is contended that, while under this decision it has no extra-territorial efficacy whatever, the appointment of a foreign executor or, administrator is efficacious enough to block the wheels of justice in this jurisdiction, and in every jurisdiction outside of the place of the appointment. We cannot assent to the validity of this contention. We are of opinion that while it was improper to introduce into the present suit as parties the executors of the decedent who procured their letters only from the probate court in Kansas, it would be entirely proper to maintain in this District a creditor’s bill in favor of resident creditors against the real estate of the decedent upon allegations to the effect that he left no personal property here, and that there was no administration within this jurisdiction.
Inasmuch, however, as the motion to vacate the order of publication is, in effect, a demurrer to the bill of complaint, it is proper to observe here that this bill in the shape in which it is presented can scarcely be maintained. It is a bill for discovery, as well as a creditor’s bill for the sale of a specific piece of real estate. It is not quite apparent how the com
The bill of complaint, therefore, as a bill of discovery is demurrable and cannot be sustained. Neither can an order of publication issue upon a bill for discovery. It is plainly not of the class of suits in which an order of publication is authorized by the statute.
But if we regard as sufficiently specific the- description of. the only piece of real estate which the bill of complaint has attempted to designate with anything like precision — and of this there, is grave doubt — the bill may be sustained as a creditor’s bill to subject specified real estate to the payment' of debts, while disregarded as a bill for discovery; and upon such creditors’ bill an order of publication against non-resident heirs or devisees would be proper. The statute ex
It is argued that creditors of a decedent have no lien against the real estate until the filing of the bill; that suits that create a lien are not suits to enforce a lien; and that, therefore, creditors’ bills are not within the meaning of the statute. But even if creditors’ bills were not within the purview of the last clause of the statute, and were not actions in equity to enforce a lawful claim against real estate, this argument would lead to an illiberal and unreasonable construction of the law. While it is true that there is no express lien in favor of creditors against the real estate of a decedent until the filing of the bill for the purpose, the law charges the realty as well as the personalty, with a trust for the payment of debts; and the heir or devisee takes the realty subject to that trust. It is to enforce that trust, which may be regarded as a general or tacit lien upon the property, that the creditor files his bill, and thereby acquires a specific lien. Watkins v. Holman, 16 Pet., 25; Miller v. Sherry, 2 Wall., 237.
There is one other question to be considered in this case. Section 788 of the Revised Statutes of the United States for the District of Columbia requires that “no order for the substitution of publication for personal service shall be made till a summons for the defendant shall have been issued, and returned ‘ not to be found.’ ” A summons was issued in
It is irregular to return before the return day a writ not served personally on the party designated in it. Hinman v. Borden, 10 Wend., 367. And inasmuch as all statutory proceedings for the substitution of constructive notice in the place of the personal service required by the common law must be strictly followed, (Pennoyer v. Neff, 95 U. S., 714; Thompson v. Whitman, 18 Wallace, 457; Cooper v, Reynolds, 10 Wallace, 308), we cannot sanction an irregularity like the present in the face of a direct attack upon it by a motion to Vacate the order of publication. On the ground of this irregularity and in consequence of the defects in the bill of complaint, this motion should have been sustained.
We have deemed it proper thus minutely to enter into the investigation of the various questions involved in this case, for the reason that they are so intertwined that a decision merely vacating the order of publication for irregularity would have left unsolved some points of practice, as well as questions of jurisdiction, that should be determined without unreasonable delay.
For the reasons stated, the order of the special term in this cause will be reversed, and the cause remanded to that court, with directions to vacate the order of publication and the return by the marshal of the summons issued in the cause, and with leave to the complainants to amend their bill as they may be advised, and for such other proceedings as may be proper, not inconsistent with this opinion.