197 Pa. 280 | Pa. | 1900
Opinion by
James Viosca was a resident of Lower California in the republic of Mexico, where he died in June, 1895. At the date of his death he had in his possession a promissory note payable to his order eighteen months after date, in the sum of $31,250 signed by J. D. Springer, Allen Manvel!e and Charles Miller. The last named was a resident of Franklin, Venango county, Pennsylvania; the other two drawers were not residents of this state. On May 10, 1898, H. W. Mitchell of Pittsburg presented a petition to the register of Allegheny county setting out that the only estate of Viosca, deceased in Pennsylvania, was the note, and that it was in his possession and prayed that ancillary letters of administration be issued to him. James Viosca, Jr., son of deceased, was executor of his father’s will under the laws of Mexico; he had brought the note to Allegheny county, and put it in Mitchell’s possession; he concurred in the petition for the issue of letters to Mitchell, who exhibited the note to the register. Letters were accordingly issued to Mitchell, who brought suit as administrator in the common pleas of Allegheny county against Miller; the summons was duly served upon him within the county, on May 10, 1898. Fourteen days after the seryice of the writ and while the suit was pending, to wit: on May 24, 1898, upon the petition of the Carmen Island Salt Company, an alleged creditor of Viosca, deceased, stating the only asset in this state was the Miller note, the register of Venango county issued
It is argued that the court below erred in not holding that as the only asset of Viosca, deceased, within the commonwealth, was the promissory note in question, that note for the purposes of administration had its situs at the residence of the debtor in Venango county, and did not follow the person of the debtor Miller in itinere. It is conceded by counsel for appellant in their argument that the precise question involved has never been decided, but it is argued from analogy to a number of decided cases, involving different facts, the Allegheny county letters should be revoked. We think the concession so far as it implies an assertion that the point has never been decided against appellant, is too broad. In Fox v. Carr, 16 Hun (N. Y.), 434, it was expressly decided that the debtor, a citizen of North Carolina, temporarily in New York state, could there be sued by an ancillary administrator, if the suit were brought in good faith. The court declined to hold that the situs of the asset was the residence or domicil of the debtor, but in effect decided that the situs was where the debtor could be sued by the ancillary administrator. Also in Goodlet et al. v. Anderson, 7 Lea, 286 (Sup. Ct. of Tenn.). In this case the plaintiffs had an assignment from one Tomlin-son of a claim which the latter held against one Maclin; both Tomlinson and Maclin were residents of Mississippi. The assignees of the claim alleged that the mother of Maclin, the debtor, she being a resident of Mississippi, had there died leaving assets in Tennessee consisting of a promissory note of $5,600 of one Guy, a resident of Tennessee; this note properly would have come into the hands of Anderson, a Tennessee administrator, on the estate of the mother; the assignees commenced proceedings in the chancery court at Memphis, Tennessee, to attach the interest of Maclin in the Guy note, which formed part of his mother’s estate in Tennessee. The note
We think the question must be decided under our Act of assembly of March 15, 1832, P. L. 136, sec. 6, which says:
The note was personal property; where was its situs when brought by the foreign administrator into Pennsylvania and sued on in Allegheny county ? There can be no question of the situs of real estate, but no such test as to fixity or immovability is applicable to personal property. In Stokely’s Estate, 19 Pa. 482, this court said: “ Personal property has no situs in contemplation of law. It is attached to the owner’s person wherever he may be.” This perhaps states the proposition too broadly, for some species of personalty, such as live stock and merchandise, though capable of quick and easy transportation, may be said to still have a situs independent of the whereabouts of the person of the owner. But as concerns other species of personal property such as bank bills, bills of exchange, promissory notes, personal jewelry and the like, its situs follows the person of the owner, as stated in Jarman on Wills, 712, “Choses in action have no locality.” Their situs must be determined by the locality of the person of the owner who has them in his possession; and as stated in Schouler’s Executors and Administrators, sec. 24: “But where the personal property consists of a debt owing upon some security, which of itself is commonly transferable as possessing a mercantile value, the local situation of such security or document would in various instances be well held to confer a probate jurisdiction as bona notabilia apart from the obligor’s or debtor’s place of residence.”
It seems to us immaterial whether the note was left in Pitts-burg by the payee in his lifetime, or was brought there by his agent after his death; it was there in the possession of the legal owner, and was by him delivered to the administrator, a resident of Pittsburg, who had the letters issued and the suit brought. If suit had been brought by the testator in his lifetime, which it is not questioned, he could have done, or if it had been left there for collection by him, the note would have been in Allegheny county for purposes of suit, and the common pleas
The plea of appellant practically rests on the single proposition, namely, the residence of the debtor Miller was in Venango county; at common law, that fixed the situs of the chose in action in Venango county, and therefore the register of that county alone could legally issue the ancillary letters. We do not so construe the act which declares they shall be issued “ where the principal part of the goods and estate of such decedent shall be.” The reason for the common-law rule, that the situs of the contract debt was the residence of the debtor as we have already noticed, was not based on an intention to favor the debtor. It is stated in several of the cases cited by both appellant and appellee thus: “Judgments are bona notabilia where the record is, specialties where they happen to lie, and simple contract debts where the debtor resides and where they can be sued upon.” The last half dozen words of the quotation disclose the reason of the rule; the debtor can be sued at his place of residence at all times; he may or may not be sued elsewhere, depending on whether service can be had elsewhere; it was not intended to favor him by providing for him a home forum, but the intent was to favor the creditor, that he might arrest him on capias (for imprisonment for debt was then the law), or serve him with a summons to compel appearance to «*> action on the contract. But the common-law rule
Nor is there any weight in the point made in the argument, that fixing the situs in any other way than by the residence of the debtor will lead to confusion in administration. It is conceded that as to a specialty, a sealed bond or a single bill, always at common law, the situs was where the “ specialty happened to be; ” but aside from the technical distinction as to the two forms, which enjoins distinct forms of action and involves different pleas, what difference is there in substance between a promissory note and specialty when it comes to collection and distribution ? None that we can see; yet not a single case reported seems to have arisen because of any confusion in determining the situs of a specialty, while in nearly every reported