Willard v. Hammond, 21 N.H. 382

21 N.H. 382 | Superior Court of New Hampshire | 1850

Eastman, J.

The questions to be decided in this case depend upon the relative powers of an executor, residing in an adjoining State, and an administrator with the will annexed, resident in this State, over property within our limits at the time of the testator’s decease; the testator being himself a resident of the adjoining State.

In the case of an intestate and an ancillary administration granted, it is believed to be well settled, that the administrator in one jurisdiction, has no power whatever over the property in the other, unless appointed in both. Morrill v. Dickey, 1 Johns. Ch. Rep. 153; Doolittle v. Lewis, 7 Ib. 45; Goodwin v. Jones, 3 Mass. 514; Story’s Conflict of Laws, 422; Goodall v. Marshall, 11 N. H. Rep. 88. As he derives his authority from the law of the jurisdiction where he is appointed, his power ceases immediately upon his leaving the limits of his jurisdiction, and any interference with the property of the intestate in the jurisdiction where he is not appointed, is unwarranted by law, and renders him an administrator de son tort.

The power of an executor is, in the first place, derived from the will of the deceased; and when the principal appointment has been made in another jurisdiction, a copy of the will duly authenticated, if executed with the formalities required by the laws of this State, may, by a decree of the judge of probate, be filed and recorded in the probate office, and have the same effect as if made and proved in this State. Rev. Stat. ch. 15T, §§ 13,14. And the executor, by giving bond, becomes clothed with full powers here. But without this he has no authority to .act, even for the collection of a demand. Sabin v. Gilman, 1 N. H. Rep. 193; Thompson v. Gilman, 2 Ib. 291; Heydock's Appeal, 7 Ib. 503; Goodall v. Marshall, 11 Ib. 88.

Such being the general principles, their application to the facts in this case is plain. Hammond, the defendant, being a resident of this State, had the property in question in his hands at the time of the testator’s decease. He subsequently executed a receipt to Hoe, the agent of the executrix. This receipt must be regarded in the same light as though given to the executrix herself, and is the only instrument by -which she can attempt to exercise any control over the property. It is, however, a mere nullity so far as this property is concerned, without some one being legally authorized to enforce it. No one has been, and no application has been made for that purpose. But the plaintiff, who is administrator in this State with the will annexed, is clothed with all the power which our laws can give him, and is fully authorized to take the property. He is the only one that has any right to interfere with it, and, after demand made, can sustain an action of trover. This having been done, there must be

Judgment for the plaintiff.