Tillman v. Walkup

7 S.C. 60 | S.C. | 1876

The opinion of the Court was delivered by

Moses, C. J.

If the defense set up could have availed, had the action on the note been brought by B. J. Cureton, the payee, any collusion in its transfer between him and the respondent could not have prejudiced the appellant, and the testimony proposed to that end was properly rejected. The points submitted will, therefore, be considered as if the complaint had been in the name of Cureton, the payee. The appointment of Davis by the Court in North Carolina as administrator with the will annexed of W. J. Cureton, and the removal of B. J. Cureton, the executor under the will, to whom letters testamentary had been granted by a competent jurisdiction in this State, within which the testator was domiciled at the time of his death, in no way affected the rights of Cureton as executor in South Carolina. Our Courts hold “ that neither the ordinary nor any other tribunal has the power to discharge an executor, though the Courts of Equity may take the assets out of his hands where they are in danger of being wasted.”— Osborn vs. Black, Sp. Eq., 431; Hagood vs. Wells, 1 Hill Ch., 60.

Whatever may be the effect of the order made by the Court of North Carolina, it is without force beyond its jurisdiction, and cannot affect assets in the hand of the executor in South Carolina, on which no process of the foreign Court could attach or operate.

Chancellor Kent, in Murrell vs. Dickey, (1 John. Ch., 155,) says : “ It is well settled that we cannot take notice of letters testamentary, or of administration granted abroad, and that they give no authority to sue here. It is not only the law in England, but it has been very generally adopted in this country.” To the same effect are the authorities in this State. — See Cannon & Co. vs. Chapman, 2 Bail., 436; Collins, administrator, vs. Bankhead & Parker, 1 Strob., 25; Kirkpatrick vs Taylor, 10 Rich., 393; King vs. Clark, 2 Hill Ch., 611. What may have been the consequence of a voluntary payment to Davis, the administrator in North Carolina, if the debts had been over due to the testator, in his lifetime, and the note in the hands of the said administrator, it is not necessary to consider. The note here is payable, however, to B. J. Cureton. It was never in the possession of Davis, and though on its face expressed to be in right of the payee as executor, it could not have descended to Davis, even if he had been duly appointed in this State the administrator de bonis non with the will annexed of the testator. Cure-ton, the payee, held the legal right and title, independent of his character as executor. At his death it would, by operation of lawj pass not to the administrator de bonis non of the testator, but to his own executor or administrator, who alone could maintain an action for its recovery. — Seabrook vs. Williams, 3 McC., 371; Smith vs. Carere, 1 Rich. Eq., 123. It is true that a liability would attach on such executor or administrator to account for its proceeds to the administrator de bonis non of the testator, W. J. Cureton, and a Court of equity, on behalf of his creditors and legatees, might pursue it if traced to the possession of one who received it with notice of the trust by which it was affected. That the maker of the note resided in North Carolina when it was executed, is of itself no bar to the right of action by the executor in South Carolina, if he finds him within the jurisdiction of its Courts. The debt was one to the executor here. It was a personal contract with him. If considered an asset held in his official relation, it was subject to the debts of the testator in the order and priority prescribed by the laws of this State, and Davis, who never held the note, could not by his acceptance of payment divert the proceeds from the appropriation to which they were so subject. As was said by Chancellor Kent in Doolittle vs. Sims, (7 John. Ch., 47,) “administration only extends to the assets of the intestate in the State in which it was granted; if it were otherwise, the assets might be drawn out of the Staite to the great inconvenience of the domestic creditors, and be distributed on very different terms, according to the laws of another jurisdiction.”

The motion is dismissed.

Wright, A. J., and Willard, A. J., concurred.