6 Barb. 429 | N.Y. Sup. Ct. | 1849
This suit is brought against the defendant as executrix of the last will and testament of Joseph M. White, deceased ; and she is so described in the declaration. The defendant sets up as a plea in bar, that she never was such executrix, and that she never administered
The first ground which is taken by the counsel for the plaintiff in support of his replication is, that it does not contain the averment that the defendant was and now is a foreign executrix. In this view, we think that he is mistaken. The defendant’s, plea is general, and alledges that she never was executrix, &c. The replication states that at the time of the commencement of this suit she was, and that she now is, executrix, &c. to wit, in the state of Florida. If this allegation was intended as the statement of a place by way of venue, the replication is. clearly demurrable. The laying the venue of the matters or facts alledged, is done only for the purpose of fixing their locality, in order to bring them within the jurisdiction of the court in which the suit is brought. Here, however, the place alledged is out of the jurisdiction of this court; which would be a fatal defect. If, on the other hand, the allegation was intended as the statement of the place where the defendant was made executrix, as it undoubtedly was; and if, as we shall assume for the present, a foreign executrix can not be sued in this state, the replication is equally defective; and it is not helped by the subsequent words by which the venue is laid within the city and county of New-York. For, as the matters alledged are local in their character, and as they occurred within a foreign jurisdiction, the venue can not be laid here. It is a general rule of pleading that if the matters alledged are local in their nature.
But it is contended on the part of the plaintiff that, even if the defendant is a foreign executrix, she can be sued in this state.
Judge Story lays down the general rule, that no suit can be brought or maintained by an executor or administrator, or against any executor or administrator, in his official capacity, in the courts of any other country except that from which he derives his authority to act in virtue of the probate, and letters testamentary or the letters of administration there granted to him. And he cites several English and American authorities in support of the rule as laid down. (Story's Conflict of Laws, § 513. Bond v. Graham, 1 Hare's R. 482. Vaughan v. Northrop, 15 Pet. 1. Prine v. Derihurst, 4 Mylne & Craig, 76, 80.) But it is contended on the part of the plaintiff, that there are two decisions in this state, which establish a different principle. In the case of Campbell v. Tousey, (7 Cowen, 64,) the defendant, who was sued as executor, had taken out letters testamentary in the state of Pennsylvania, and had brought assets belonging to the estate of the testator into this state. One of the pleas put in by him was ne tinques executor. To this plea there was a replication that the defendant was executor. The court held that he was liable for the assets which he was shown to have in his possession in this state, as an executor, de son tort. It will be observed that he was held liable here not as a foreign executor, but as an executor in this state ; not, it is true, by virtue of letters testamentary granted here, but by reason of his acts in this state ; that is, by assuming the right to control the assets of the testator in this state as executor; or, as it is expressed in the decision, he became liable as an executor de son tort—an office which no longer exists here.
In the case of McNamara v. Dwyer, (7 Paige, 239,) the defendant had been appointed administrator in Ireland, and
In the case before us it is not alledged that the defendant has ever been in possession of any of the assets of the testator within this state; and even if it had been so alledged, she could not be made liable in a court of law.
The defendant is entitled to judgment, with leave to the plaintiff to amend on the usual terms.