55 Ill. App. 118 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
This ivas a bill to foreclose a mortgage filed originally by Geo. W. Laivler, as administrator of Mary J. Fox, deceased, against the appellant and others.
Subsequent to the filing of the bill the letters of administration Avhich Avere granted to Lawler by the County Court of Schuyler County Avere revoked and Welker, the appellee, Avas by that court appointed administrator de bonis non with the Avill annexed, and ivas substituted as complainant in the bill.
A decree was rendered according to the prayer of the bill in the usual form, from Avhich the mortgagor, Walker, has prosecuted the present appeal.
Mary J. Fox, the mortgagee, died testate, in the State of Neiv Y ork, and letters testamentary Avere duly issued by the Surrogate Court of the proper county on the 4th day of November, 1891. On the 24th of February, 1892, the letters of administration to Laivler Avere issued upon the petition of said Welker, Avho represented that said Mary J. Fox died in the State of New York, testate, on or about August 9, 1891, and that her Avill had been probated there and pro ceedings had thereon, etc., etc., that she died possessed of notable goods in said Schuyler county, to Avit, a promissory note made by said Ezra Walker, of said county, secured by a mortgage on land in said county (being the same note and mortgage set out in the bill) and that said Welker, ivho ivas a citizen of the State of Illinois, ivas a bona fide creditor of the said Mary J. Fox. The summons in the present case was served on the appellant April 14, 1892.
In October following he paid the note to the attorneys of the Neiv Y"ork executor, and then filed his ansiver alleging such payment and denying the right of the Illinois administrator to maintain said proceedings to foreclose. AfterAvard the appellant moved to dismiss this suit because the letters to Laivler had been revoked, and because, as alleged, the same were void ab initio, whereupon the present appellee filed his cross-motion to be substituted as complainant, which cross-motion was allowed and the motion to dismiss was denied.
At the common IaAv a grant of administration in one country does not confer on the administrator any title to the property of the deceased in another country. He has no authority OArer nor is he responsible for any of the effects of the estate that may be beyond his jurisdiction. In administering the estate he acts onlv in reference to the effects within his jurisdiction and the debts that may there be presented against the estate. In his official capacity he can neither sue nor be sued out of the country from Avhich he derives his authority and to which alone he is amenable. If he Avishes to reach property or to collect debts of the estate in a foreign country, he must there obtain letters of administration and give such security and be subject to such regulations as its laws may prescribe. So if a creditor wishes to bring suit in order to satisfy his debt out of property in another jurisdiction, administration must be first obtained there. Judy v. Kelley, 11 Ill. 211.
A simple contract debt constitutes assets for the purpose of administration where the debtor resides. Cooper v. Beers, 143 Ill. 25; 2 Kent Com. 131-5; 2 Wheaton’s Selwyn, 3.
Our statute provides, Sec. 42, Ch. 3, that a foreign executor or administrator may sue in this State provided he shall file an authenticated copy of his letters and shall give a bond for costs as in case of other non-residents. By the next section it is declared that this authority shall not be construed as applying to cases where letters testamentary or of administration are granted in this State, and if suit is commenced by a foreign executor or administrator and before final judgment therein, administration is had or execution undertaken within this State under the Havs of the same upon suggestion of such fact, the resident administrator or executor shall be substituted as a party and the proceeds of the judgment shall be assets in his hand.
A creditor, resident here, of a debtor, dying in another State, may reach the property of his debtor situated here, including simple contract debts due him, by means of administration here, and is not compelled to go to the State where his debtor died in order to realize his claim. In such case the administration here is ancillary, and the distribution after payment of debts must be according to the law of the domicile of the deceased.
Perhaps if there were legatees and distributees also resident here, their rights would be protected—but in any event only the residuum remaining after the payment of debts would be " transmissible to the foreign jurisdiction. Bonnell v. Holt, 89 Ill. 71; Cooper v. Beers, supra.
Counsel for appellant urge that the appointment of Lawler was void, because, as he assumes, the only authority for it was in Section 18 of the Administration Act, and because under said section there can be no appointment of an administrator unless it appears that the deceased was intestate.
The case of a.testate estate is not affected by said section. Where, as in this case, one dies testate in another State, it is competent to appoint an administrator here with the will annexed, for the purpose of local administration. Branch v. Rankin, 108 Ill. 444.
But counsel assume that in such case the local administrator can be appointed only for the purpose of subjecting the real estate of the deceased to the payment of debts. This view is unsound, since sections 42 and 43 clearly refer to and contemplate the collection of debts, as well as the sale pi land.
In this instance the facts were statéd in the petition for the appointment of an administrator with sufficient certainty to give the County Court jurisdiction of the subject-matter, and its action thereon can not be questioned collaterally, for the order would not be void, whether it appointed the wrong person, or whether it gave him a wrong designation; nor can his acts under the authority thereby conferred be collaterally attacked. Wight v. Wallbaum, 39 Ill. 554;, Shepard v. Rhodes, 60 Ill. 307; Meek v. Allison, 67 Ill. 46.
Assuming that the payment of the note could have been legally made to the executor appointed in Hew York, before administration was commenced here, as to which we need express no opinion, yet it was no defense to do so in this case, after service of summons on the bill filed by the local administrator, nor would the subsequent revocation of the letters to Lawler and the appointment of the appellee, change the situation in this respect. Ho other questions are presented, and no error appearing herein, the decree will be affirmed.