Security Ins. Co. v. Taylor, 21 F. Cas. 973

Security Ins. Co. v. Taylor

21 F. Cas. 973 | N.D. Ill. | 1871

BLODGETT, District Judge.

It seems-very clear to me that this scire facias cannot be sustained. The law is well settled that executors and administrators cannot act out of the' jurisdiction in which they are ap*974pointed, except by complying with the statutory provisions made by comity in such exterior jurisdiction. For instance-, an executor in another state may have ancillary administration in this state, for certain purposes, under the statutes of this state, by probating the will here; in which case the authorities of this state will respect his i character as executor, and allow him to proceed, and sell or control such portion of the estate as lies within this jurisdiction. This rule, a rule of legislative inter-state comity, holds in nearly all the states, as far as my investigation has gone; but it does not in any way override, or otherwise compromise the general principle that the power of an executor or administrator is local. In this case the process of this court cannot reach the administrators or executors of Emeline Taylor, unless they have made themselves executors within the jurisdiction of the court. This they have not done, and the mere fact that one of the executors came within the jurisdiction of the court upon other business, does not make him amenable to the process of this court in his representative capacity; his official mantle falls when he leaves the jurisdiction in which he was appointed. If persons having claims against the estate of Emeline Taylor wish to pursue their remedy here, they must either take out letters of administration against the estate in this jurisdiction, or, procure the executors to probate the will within this state, before the courts of this state, either state or federal, can obtain jurisdiction. in per-sonam of the executors, or of the property of the decedent.

NOTE. Where an administrator sues as such, and he is a citizen of the same state as the defendant, the court has no jurisdiction, although the intestate was a citizen of another state. An administrator is in such case the real and not a nominal party. Dodge v. Perkins [Case No. 3.9541. That an executor cannot be sued in his official character in another state for assets received by him in the jurisdiction where he was appointed, see Melius v. Thompson [Id. 9,405]. No action can be maintained against an executor or administrator, founded on a debt due from the estate of the deceased, unless he has been duly qualified by a probate tribunal in the state or county where the suit is brought. Caldwell v. Harding [Id. 2,301]. . _

The demurrer to the plea in abatement will therefore be overruled; plea sustained, and scire facias dismissed.