Slocum v. Sanford

2 Conn. 533 | Conn. | 1818

Swift, Ch. J.

By the common law, debts due by specialty, are esteemed to be the goods of the deceased, where the securities are, at the time of his death; but debts due by simple contract, follow the person of the debtor, and are esteemed the goods of the deceased where the debtor resides at the time of his death.

Promissory notes have every where been considered to * be simple contracts, except in this state, where they have been treated as specialties, and declared on as instruments. But as by statute, notes payable to order have been made negotiable, the consequence is, that notes of that description cease to be specialties, and are, by operation of law, placed on the footing of simple contracts; for when the statute declared them to be negotiable, according to the custom of merchants, it vested them with all the properties of negotiable securities. As a negotiable note, by statute, is now to be deemed a simple contract, it follows, that it will be the assets of the deceased promissee in the place where the debtor lives. The note iri question was negotiable j of course, it was assets in the hands of the administrator, in the state of Ehode-Island, where the debtor lived. Such administrator had a right to controul it, and his discharge is valid.

There can be no reason for the distinction between debts due by specialty, and by simple contract. They ought always to be deemed assets in the same place ; and the proper place would be, where the creditor died. If this question concerned this state only, I should not hesitate to adopt that rule. But as it is probable that the other states in the union will adopt the common law, and as different rules in adjoining states would lead to a clashing of jurisdiction, I think it. advisable to adopt the rule of the common law, for the sake of uniformity.

Inconveniences must arise from the practice not to admit executors or administrators in one state, to commence suits in another, and to require letters of administration to be taken out in every state, where assets are to be found. There may not only be different persons in different jurisdictions, settling, at the same time, the same estate ; but if done by the same person, he will be acting by different authorities ; and there is no where any general superintending power, to bring the whole estate together, for a final and proper settlement.

A constitutional provision ought to be made, enabling Congress to pass such general laws as might be necessary j or the several states, by compact, should empower the executor, or administrator, of all deceased persons, to commence suits, and collect the effects, in every state where debts or effects are found, and then to bring the whole into the probate court of the jurisdiction where such deceased persons last lived, for a fair and final adjustment of such estate, with this provision, that the effects, in every state, should be liable for all debts that might there be due from the deceased.

Gould, J.

What is principally important in the present question, is, that it be settled. Whether it be decided, the -one way, or the other, is not very material. But I consider the point, as already determined, by the authorities cited in support of the motion. As to the transmission, of personal chattels, by succession, distribution, or bequest, the rule is, that they have no locality but follow the law of the last domicil of the deceased owner. But with respect to the question of probate-jurisdiction, the cases establish this distinction : that debts by specialty, or judgment, have a temporary locality ; but that those, due by simple contract, have not. The former are regarded, as effects, only at (he place, where the securities are found, at the death of the creditor. Tine latter follow the person of the debtor, and are considered, as effects, in that jurisdiction, in which the debtor is, at that time, domiciled. This diversity, it has been said, is arbitrary. But with regard to distinctions, arising out of artificial rules, it is immaterial, whether any precise reason, founded in original principle, can be assigned for them, or not. In all cases, ita lex scripta est, is a sufficient reason, and in many, the best, that can be assigned. But in the present case, the reason of the distinction, probably is, that as specialties and judgments, from the solemnity which the law attaches to them, constitute, or create, the right of action, or interest to be administered, and are themselves things visible ; they are to be regarded, as specific chattels : but that writings of a less solemn nature — as notes, and other unsealed documents, which are only evidence oi parol contracts, cannot be so considered ; and therefore, that the debts, of which they are evidence, follow the person of the debtor, and are effects at the place of his domicil. And according to this distinction, the direction to the jury was wrong.

The other judges were of the same opinion.

New trial to be granted.