1 Bradf. 105 | N.Y. Sur. Ct. | 1849
Luke Ashburner died June 16,1844, at Stockbridge, Massachusetts. He was domiciled at that place, and his will was proved there. He appointed his wife Cornelia, executrix, and George and Samuel Ash-burner, William Whitney and Theodore Sedgwick, executors. Mrs. Ashburner and Theodore Sedgwick, both took out letters testamentary in Massachusetts, the former on February 4,1845 ; the latter, July 29,1845.
At the death of the testator, there was a debt due to him from Cowaje Monackje, in India, and George Ash-burner took out letters there for the purpose of collecting this debt. He collected it, and Mrs. Ashburner being entitled, by the terms of the will, to three-sevenths of the proceeds, he remitted the amount to Mr. Sedgwick, at Hew-Tork. Mr. Sedgwick received the bills, and July 1,1847, took out
The sole question in this case is, whether the bills remitted to Hr. Sedgwick, from India, by George Ashburner, for Mrs. Cornelia Ashburner’s share of the East Indian debt, were assets here.
All foreign administrations are merely ancillary and subordinate to the domestic; the rights of legatees and next of kin, in cases of testacy or intestacy, depending upon the laws of the country where the deceased had his home. (Dawes vs. Boylston, 9 Mass. R., 337.) By virtue of his letters in Massachusetts, Mr. Sedgwick Was there a domestic executor, but his authority in Hew-York was as a foreign executor. He qualified there in the first instance, and then, before the Will was admitted to probate and letters were issued to him here, he received these bills from the foreign, executor in India. The bills were payable to the order of Mr. Sedgwick, and it was certainly not necessary for him, in order to pass them over to Mrs. Ashburner, or to collect them and pay her the proceeds, to take out letters here. The Surrogate of Hew-York had no authority to issue letters in this case, unless the testator left “ assets” here, or subsequent to his death, assets of such testator” thereafter came into this country. (2 B. 8., 3d ed.,p. 126, § 46.) The statute (Ibid.,p. 147, § 6,) declares what property shall be deemed assets, and enumerates. “ debts secured by mortgages, bonds, notes, or bills;” but this, of course, means debts due to the deceased. By the Common Law, simple contract debts are bona notabilia, where the debtor lives. (Williams on Ex., 263.) The consequence is, that although. the law of the domicil of the testator governs as to the disposition of the estate, yet as debts due to the deceased are assets where the debtor lives, it is necessary to take probate of the will where the assets are. The remedy in cases of administration is regulated by the law of the place, where it is sought to recover possession of
But the evidence establishes, to my mind, conclusively, that Mr. Sedgwick in the receipt of those bills, acted as the agent of Mr. Ashburner. The refusal of Mrs. Ash-burner to accept them, and release George Ashburner, until she was assured of them payment, did not alter the character in which Mr. Sedgwick had received them and held them.
In the case of Currie vs. Bircham, 1 Dowl, & Ry., 35, the widow of an officer, who died intestate in India, obtained letters of administration of her husband’s effects at Bombay, and remitted the proceeds of the effects in government bills to her agent in England. A creditor of the intestate took out letters of administration of the intestate’s effects in England, and brought an action against the widow’s agent for money in his hands, as part of the intestate’s effects. It was held, that the wife of the intestate was entitled to all the effects of which her husband died possessed in India, by virtue of her letters of administration, granted to her in that country. The Court said, “ The effects are remitted to this country by her in the shape of bills, and they come to the hands of her agent. He receives the money to her use, and in her own right as administratrix. If she has any claim upon the money, which it is alleged the agent retained in his hands, she may maintain an action, but it will not lie at the suit of this plaintiff under the letters of administration, which he has obtained-.”
Assets are defined in The Touchstone, 496, to be “ all those goods and chattels, actions and commodities, which were of the deceased in right of action or possession as his
It seems to me, therefore, that there has never been -any fund in the hands of Mr. Sedgwick as executor, for which he is either bound, or has any right, to account as executor in this jurisdiction; and without pronouncing collaterally on the validity of his letters testamentary, issued by the Surrogate of Hew-York, it is sufficient to direct an order to be entered to the above effect.