Purple & Burrows v. Whithed, 49 Vt. 187

Purple & Burrows v. Whithed

49 Vt. 187 | Vt. | 1876

The opinion of the court was delivered by

Barrett, J.

Suits may be brought by and against parties residing without the state, as well as by and against parties residing within it, provided process be so served as to render defendants amenable to the jurisdiction of our courts.

The locus of the residence of the plaintiffs in this case does not disenable them to sue. If they were the creditors in the indebtedness of the defendant, there would be no pretence'of question as to their capacity to maintain the suit. The objection now made in this regard is on the ground of the representative character in which the plaintiffs sue. If their intestate was living, and had brought the suit, their would be no ground for objection. Why may not his administrators sue, as well as himself if living ? In all the cases cited, and in all the books referred to, the ground on which administrators have been held incapable of maintaining a suit in a foreign jurisdiction is, that the subject-matter of the suit was the subject of local administration within *189such foreign jurisdiction — was something which the creditors of the deceased residing within such foreign jurisdiction were, under the local laws, entitled to have administration at their homes for their benefit, as against being obliged to go into the jurisdiction of principal administration to enforce and get satisfaction of their claims. There is neither occasion nor reason for questioning the propriety or soundness of the established law in this respect. But the case in hand does not stand upon nor involve the ground of fact upon which the established rule has come to be established, and which has constituted the subject-matter of its administration. This suit is not brought to recover any- f thing, or to recover for anything, of which any probate, pourt in I Vermont could take cognizance, or exercise any function. Thef debt was not due or payable in Vermont, but in Massachusetts, \ where the intestate lived and died. The debt passed by force of J law to the administrators, with all the rights, for purposes of col-!, lection, that the intestate had. The only occasion or purpose f they had for coming into Vermont to bring a suit, was that they / found a credit here in favor of their Massachusetts debtor that /> might be reached by our trustee process. That credit is not the;! subject of administration in Vermont nor anywhere else. The/' plaintiff in the trustee suit, gets no title to it till final judgment in his favor in such trustee suit. If the foreign debtor of the intestate had had attachable tangible property in Vermont, .that would not constitute bona notabilia nor bona of any kind of the intestate’s estate, and even by attachment and levy of execution, that estate would get no title to the personal property attached, but only to the money realized on the sale, and that resolved into a claim against the officer realizing the money.

In case the suit had been brought against the foreign debtor, and personal service had been made upon him as he was casually, within the state, but no property attached, what right or interest in the debt sued for would bo the subject of administration in Vermont. Suppose such debtor had been in the act of absconding from Massachusetts through Vermont, and it became important to hold him amenable to a judgment before he should get beyond the reach of process in Vermont, is there any ground in reason *190why the administrators in Massachusetts should be obliged to see the debtor have free course beyond their reach by reason of necessary delay in getting an administrator appointed in Vermont, whose only official function would be to bring an authentic suit on a claim with which our probate courts have nothing to do ?

But tests of the principle and reason of the rule need not be multiplied. The principle and reason are implied and indicated in the closing sentence quoted in defendant’s brief from 2 Redf. Wills, 18 (Vol. 3 of last ed. p. 25) : “ Eor in every state where there is personal or real estate and debts owing, a right attaches for a distinct administration.” But in case there-be no such estate, nor debts owing in a given státo, to what could that right of a distinct administration attach ? It is not without interest, in view of that quotation, to notice that in the paragraph next preceding, it is said : “ When the title to property in possession, and .even of choses in action of a negotiable character, becomes perfected under the administration in one state or country, any action requisite to vindicate and enforce such title in any foreign state, may be maintained without recourse to any local administration.” “ But beyond these and similar exceptional cases, the power and authority of an executor or administrator is limited to the state or country where it is granted.” All which marks the true distinction, and promulgates the true doctrine, involved in the subject.

The argument deduced from the cases in which it has been held that a foreign administrator could not make a valid indorsement of a note owing by a debtor residing in this state, is one side of the present case, and for the reason already indicated, namely— such debt would be the subject of administration here, in behalf of the creditors residing here ; and as the collection of it would require the interposition of our courts in behalf of the indorsee, the validity of that indorsement for such a purpose would be subject to inquiry and judgment, in view of the policy, and rules of law in that regard.

In the light of what has thus been said, our statute itself seems to conclude all question on the subject. Gen. Sts. c. 51, s. 2, provides for letters of administration in only two classes of *191cases: 1st, when the intestate shall die being an inhabitant of this state ; 2d, when the deceased person shall, at the time of his decease, reside in any other state or country, lexving estate to be administered in this state.

The intestate in this case left no estate in this state to be administered that had any relation to the subject-matter of this suit. As said in defendant’s brief, “ the defence developed upon the trial in the court below goes to the right of plaintiffs to recover at all,” and it was made under the general issue. We have no occasion to disturb the technicalities of pleading in this case, for in our view an ample plea in abatement would not have dislodged the plaintiffs on the score of lack of capacity to sue.

Judgment reversed, and judgment for plaintiffs for the amount pf the note, with costs, and against the trustee for the full amount of said judgment upon the report, which is made part of the case by the bill of exceptions.