In Parsons v. Lyman (supra) the court directed a residuum to be remitted to Connecticut, the jurisdiction of the domicile, because a question had arisen as to the construction of the will of the decedent, in respect to which the courts of Connecticut differed from our own.Summary of this case from Matter of Accounting of Hughes
September Term, 1859
David Dudley Field and C.C. Langdell, for the appellants.
Hiram Ketchum, for the respondent.
It is an established doctrine, not only of international law but of the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of the owner, as well in respect to the disposition of it by act inter vivos, as to its transmission by last will and testament, and by succession upon the owner dying intestate. ( Story's Conf. of Laws, §§ 376-383, and cases in the note to § 380; 2 Kent Com., 428, 429; Holmes v. Remsen, 4 John. Ch., 460; 4 Cow., 517, note; Shultz v. Pulver, 3 Paige, 182; S.C., 11 Wend., 363; Vroom v. Van Horne, 10 Paige, 549.) The principle, no doubt, has its foundation in international comity; but it is equally obligatory, as a rule of decision in the courts, as a legal rule of purely domestic origin. It does not belong to the judges to recognize or to deny the rights which individuals may claim under it, at their pleasure or caprice; but, it having obtained the force of law by user and acquiescence, it belongs only to the political government of the State to change it whenever a change becomes desirable. But the right which an individual may claim to personal property in one country, under title from a person domiciled in another, can only be asserted by the legal instrumentalities which the institutions of the country where the claim is made have provided. The foreign law furnishes the rule of decision as to the validity of the title to the thing claimed; but in respect to the legal assertion of that title it has no extra territorial force. As a result of this doctrine it is now generally held everywhere, and it is well settled in this State, that an executor or administrator appointed in another State has not, as such, any authority beyond the sovereignty by virtue of whose laws he was appointed. ( Morrell v. Dickey, 1 John. Ch., 153; Doolittle v. Lewis, 7 id., 45; Vroom v. Van Horne, supra.)
But if residents of this State have in their possession property which belongs to a party domiciled abroad, or are indebted to him, they may of course recognize any valid title claimed under him, arising out of an act in pais, by testament or by succession upon intestacy, and may voluntarily deliver over the property or make payment of the debt. Our jurisdiction is not violated nor our tribunals in any respect contemned by such a transaction. Simply, our laws are not invoked because in the case supposed there is no occasion for their agency. If the property or money is thereupon taken by the new possessor into the foreign jurisdiction we have no further concern with the matter. If the claimant whose demands have thus been conceded, is himself a trustee for others, as in the case of an executor or administrator, he is subject to the same legal pursuit by the parties whom he represents, or who are interested in the trust, as though he had received the assets at the domicil of the former owner. The fact that those assets were at one time within our jurisdiction, or had existed in the shape of a debt owing by a resident of this State, is of no legal consequence. In stating this position I of course exclude any consideration of cases where a lien by way of attachment or otherwise had been fastened upon the property, or where any claims of a domestic executor or administrator had attached to it before it had passed into the hands of the party claiming under the foreign title. I might also exclude the case of beneficiaries of a trust residing in this State, as legatees or creditors of a testator whose executors appointed in another State had come here and received, by voluntary delivery or payment, the personal assets of the estate; for in the case before us the respondent received in Connecticut, and invested, the moneys for which he has been adjudged liable to account to the Surrogate of New York, while every person interested in the estate was a resident of the State of Connecticut. But if that were otherwise I conceive that it would make no difference. It was the duty of the debtors to pay what they owed the testator, to him while living, and according to his appointment after this death. By a testamentary act, perfectly valid everywhere, he appointed the respondent to receive these moneys. The legatees were in no privity with the debtors of the estate in New York or elsewhere. They could only claim through the respondent as executor. In the absence of any administration in this State, payment could only be made to the executor appointed in Connecticut, and if all the creditors and legatees had resided here, it would have been impossible for them to have prevented the payment to the executors, except by attaching the debt under a local law, or by themselves procuring administration here. These positions seem to me to flow so naturally from conceded principles that I should feel quite confident of their correctness, if they were not recognized by any adjudged case. But they have been repeatedly recognized. In Atkins v. Smith (2 Atk., 63), Lord Chancellor HARDWICKE, declared that ecclesiastical jurisdictions were limited within their particular districts, and that an administration taken out in England would not extend to the Colonies in America; but he said that if an executor sends over an exemplification of a probate to Maryland or any other colony, the person who is employed as an agent there by the executor may, by letter of attorney from him, collect in the effects of the testator, and is chargeable as much as if he, the executor, had got them in himself. In Williams v. Storrs (6 John. Ch., 353), Chancellor KENT expressed the opinion that a voluntary payment by a debtor here to a Connecticut administrator would be good. In Doolittle v. Lewis ( supra), he repeated the same opinion. In deciding that foreign administrators could enforce a power of sale contained in a mortgage to their intestate upon lands in this State, he inquired, "can they not give a voluntary discharge of a mortgage without clothing themselves with the office of an executor or administrator under the judicial authority of this State? And is not the policy of the law sufficiently answered when our courts refuse to lend their assistance to any authority not derived from our own laws touching the administration and distribution of assets? If the parties can transact their own business according to their own agreement without asking the aid of our courts, why may they not lawfully do it?" It was unnecessary to decide the point in either of these cases; but in Shultz v. Pulver ( supra), which was affirmed in the Court of Errors, an administrator appointed by the Surrogate of Columbia county was compelled to account for and was charged with the amount of a debt owing to his testator by a solvent debtor residing in Pennsylvania, on account of a neglect to use due diligence in obtaining payment. In Vroom v. Van Horne ( supra), Chancellor WALWORTH stated that the result of the cases in this State seemed to be that a foreign executor or administrator appointed by the proper tribunal of the decedent's domicil was authorized to take charge of the property here and to receive debts due to the decedent in this State where there was no conflicting grant of letters here, and where it could be done without suit. The same principle is stated as good law by Judge STORY, in Trecothick v. Austin (4 Mason, 33), though rather by way of illustration than as a point adjudged.
Assuming then that the respondent was justified in collecting in the moneys due the estate by New York debtors, so far as he was able to do it without suit, I do not see how it is possible to state any distinction between the assets thus realized, after they were so realized, and the assets which, at the death of the testator, were situated in Connecticut. The respondent was accountable for the whole to the Probate Court in Connecticut, and it would be exceedingly preposterous for him to set up any exemption from accountability, arising out of the circumstance that the moneys had been paid by debtors residing in another jurisdiction. When the moneys were paid, and for many years afterwards, there was no person residing in New York who had even the smallest interest in them. By the general rules of law the debts thus converted into money had no locality other than that of the creditor's domicil, in Connecticut; and when they had been thus converted and the avails had been brought into the jurisdiction of the creditor's domicil, their origin and former history became immaterial, as I conceive, for any purpose whatever. Besides, they were not only brought into Connecticut, but were placed under the control of the Probate Court of that State. The annual accounts rendered by the respondent to the court, by which he reported the manner in which the moneys were invested, and the action of the court in accepting and allowing his repeated accounts and schedules, was the exercise of the jurisdiction of the court respecting them, as full and complete as though the moneys had been paid into court and had been invested by one of its officers pursuant to its orders. The idea of subsequently withdrawing them from that jurisdiction and subjecting them to the jurisdiction of the Probate Court of New York appears still more unreasonable when we consider, what is admitted on all hands, that the construction of the will, and the respective titles, rights and duties of the executors and of the legatees, must be ultimately determined according to the law of the testator's domicil, namely that of the State of Connecticut. If the administration of these assets is to be conducted under the orders of the Surrogate of the county of New York, still the rule of decision is the law of Connecticut, which the New York court must ascertain by proof and apply by its judgments. Clearly, the jurisdiction should not be transferred from the country of the testator's domicil to New York, unless it is required by some imperative rule of law. I feel confident that it is not required or permitted by any legal principle whatever.
But it is said that the executors have voluntarily submitted these assets to the jurisdiction of the Surrogate's Court by applying for and taking out letters testamentary in New York, and by subsequently asking for the settlement of their accounts before the Surrogate. But it is certain that this was not the intention of the executors, and the acts themselves do not naturally look to any such results. There were assets yet remaining in New York, namely, the leasehold houses and the insurance stock. These presented a legal occasion for the executors' clothing themselves with probate authority in this State, quite independent of any consideration relating to the realized assets which they were administering under the authority of the Probate Court in Connecticut. Having converted the leasehold estates into money and securities, it became necessary for them to account before the Surrogate in respect to that portion of the estate. When they applied for the citation, the reasonable inference surely is that they designed to adjust the matters which were properly cognizable before the Surrogate, and not those to which his jurisdiction did not extend; and when, on the returns of the citations, which was their first appearance in the Surrogate's Court, they brought in their accounts, the nature of the proceeding became quite apparent. Those accounts were limited to the leasehold houses and the insurance stock, and there was no reference to any other portion of the estate.
The nature of this second administration and its relation to the primary administration in Connecticut will be subsequently adverted to; but at present it is enough to say that the Surrogate's letters did not confer on the New York court any jurisdiction over the assets which were in the course of administration under the orders of the Connecticut court. It has already been shown that there was no difference, as to the probate jurisdiction, between the money realized before the taking out of letters here from New York debtors and that which arose out of property originally situated in Connecticut. The Surrogate did not consider that the New York letters gave him jurisdiction over the latter, for he disclaimed any interference with what he considered properly Connecticut assets, and limited himself to disposing of the portion of the general assets which had been paid by debtors residing here, and the leasehold houses and insurance stock. In this disclaimer he was clearly right. Suppose a person dying here to have assets in several States of the Union — a case which may often happen — administration taken out here would not be recognized in the other jurisdictions, and it might therefore be necessary for the administrator, by himself or by his agents, to take out letters in several other States. Under what authority the assets realized under these subordinate administrations should be finally distributed may be questionable; but certainly no one will contend that the fact of taking out letters, for instance in Texas, for the collection of a small debt there, would confer upon the Probate Court of that State the administration of the assets realized here at the place of the domicil of the intestate. The true rule is that the executor is liable to account in each jurisdiction where he receives his authority, for the assets collected by virtue of that authority. ( Story's Conf. of Laws, § 513.)
I think it very plain from these considerations that the Surrogate fell into an error in assuming to make a decree for the distribution of the assets realized and placed under the jurisdiction of the court of Probate in Connecticut long before the executors applied for letters testamentary in this State. He had no jurisdiction except as to the income and proceeds of the leasehold property and the insurance stock. This would lead to the simple reversal of the Surrogate's decree, so far as it was appealed from by the present respondent; for it is impossible to separate the directions given in it respecting the Connecticut assets, of which he had no jurisdiction, from those to which his jurisdiction extended.
But upon the record being remitted to his court, the Surrogate will be called upon to make a decree for the disposition of the money and securities in the hands of the executors arising out of the leasehold houses and the insurance stock. The position of the respondent is that in stating the account of these assets he is entitled to carry the balance in his hands into his accounts with the estate as administered under the direction of the Probate Court of Connecticut, so that, his administration in this State being thus closed, the estate shall be thenceforward administered as an entirety under his first appointment in Connecticut. The appellants on the other hand maintain that no such transfer can be made, but that the Surrogate must continue to exercise his jurisdiction over this portion of the assets until the administration is finally closed. The determination of this question would, as a practical matter, involve only considerations of economy and convenience, were it not for the difficulty which has arisen upon the construction of the will, as to which it is possible that the courts of the respective States may eventually hold different opinions. The question of construction does not appear to depend upon any local laws of the two States, for if it did, it is conceded that the law of Connecticut must govern; but it depends rather upon the interpretation of the language of the will, the principles of law applicable to the instrument being mainly, though not entirely, the same in both States. It does not necessarily follow because the Connecticut law must furnish the rule, that the courts of that State only are competent to pass upon the question; for it frequently happens that the right to money or property in litigation in the courts of one State is to be determined by the law of another. If, however, the solution of the question as to the proper court for administering these New York assets, depends upon the special circumstances of the case, and is in any respect a matter of judicial discretion, then the consideration that the law of the domicil is the one to be applied, affords a reason of some weight in favor of remitting the question to the courts of the government where that law is the one habitually administered. It is also to be borne in mind that there are no creditors of the estate in this State or elsewhere, and that though the legatees have now a residence here, they were all, when the trust was created by the death of the testator, and for many years afterwards, domiciled in Connecticut, and that they have since come here voluntarily. The other facts bearing upon the question are, that in any event the greater portion of the estate is to be administered in Connecticut, the amount of the assets there being about five-sixths of the whole; that the executors, one of them being also a beneficiary, resided there at the making of the will and have continued to do so. The legatees must necessarily remain suitors of the Connecticut Court of Probate in respect to the greater part of their interest in the estate. The appellants are residuary legatees, and the amount constituting the residue must always depend upon the allowance to be made to the executors for losses and expenses, as to which it is certainly possible that the two probate tribunals may differ in their judgments. These considerations, and the general propriety and manifest convenience of a unity of judicial supervision in respect to a matter essentially entire and indivisible, would lead me to adopt the respondent's views if consistent with the rules of law.
The general provisions of the Revised Statutes, relative to the returning of inventories, the accounting of executors and administrators, and enforcing the payment of debts, legacies and distributory shares, do not contemplate the administration of a part of an entire estate, the residue of which is subject to the control of some other probate tribunal. For instance, the inventory is to embrace an account of all the assets of the deceased without any exception; the accounting is to be of the assets generally; the entire indebtedness of the deceased is to be paid; and the whole estate is to be distributed among creditors, legatees, widow and next of kin, according to their respective rights; and the Surrogate is to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share, to whom the same shall be payable, and the sum to be paid to each person. So the distribution of property not bequeathed is to be made according to certain rules of succession, which may differ widely from those which obtain in other States. (2 R.S., 82, § 2; id., 84, §§ 11, 12, 16; id., 87, § 27; id., 92, §§ 52, 54; id., 93, § 60; id., 95, §§ 70, 71; id., 96, § 75.) I do not doubt but that these provisions could be accommodated to the case of separate administrations of the same estate under different governments if absolutely necessary, though they refer in terms to domestic administration of an entire estate; but they show that it was not within the contemplation of the Legislature that a case could arise where an estate would be subject to two probate jurisdictions. Under the direction to determine all questions respecting an alleged debt or legacy, a conflict between the two jurisdictions might naturally arise. In the case before us there is a question of considerable difficulty upon the construction of the will, whether the executors have a discretion to pay Joseph H. Parsons $20,000 every two years, or only $10,000; and upon this point the Supreme Court of Errors in Connecticut and the Surrogate here entertain different opinions. The Surrogate would, no doubt, feel bound to decree payment according to his construction of the will, so far as the assets under his control should extend, while the Connecticut Court of Probate, acting under the construction established by the highest court in that State, might very probably consider this an over-payment, and with hold the amount supposed to be overpaid from the next biennial payment. So the last mentioned court might consider the payment of interest, which the Surrogate would judge it his duty to order, as legally applicable to the fixed payments directed by the will, and order the future installments to be diminished accordingly. I need not enlarge upon the inconveniences and embarrassments which would be likely to arise out of this double jurisdiction over the same estate; for if by law the assets are necessarily to be administered in this way they must be encountered as they best may.
But I am of opinion that the Surrogate may, and that in this case he ought, after having adjusted the accounts of the executors, and ascertained the net amount of New York assets with which they are chargeable, to remit the jurisdiction in respect to future directions to the Court of Probate of Connecticut. The only provisions of the statute in any way affecting the question is that which authorizes a Surrogate to recognize and issue letters testamentary upon a foreign will upon the production of an authenticated copy of it under the seal of the foreign court before which it was proved, and the one which declares that where a will has been made by a person not domiciled here but leaving assets in this State, and letters testamentary or of administration have been granted upon it by competent authority in any other State of the United States, the person so appointed, on producing letters, shall be entitled to letters of administration here in preference to any other person except a relative entitled thereto and except the public administrator of the city of New York. (2 R.S., 67, § 68; id., 75, § 31.) It is apparent from this that the Legislature contemplated that in certain cases the same person might be an executor or administrator under the laws of another State where the deceased was domiciled at his death, and also, as to assets here, under the laws of this State. It also appears that a discrimination was made in favor of the Probate Court of a sister State of the Union, over those of a foreign country; for the recognition of other letters testamentary is limited to such as had been issued by competent authority in one of the United States. The effect of letters issued here to an executor or administrator producing similar authority from another State is not declared in the statute, nor do I find that the courts of this State have ever been called upon to pass upon such a question. Chancellor WALWORTH speaks of such letters as ancillary to those issued by the courts of the testator's domicil. ( Vroom v. Van Horne, supra.) No doubt such letters confer the usual power to reduce the assets to possession, and clothe the Surrogate and court with authority to call the executors or administrators to account, and to make a decree for the disposition of assets. It does not however follow that, in the case of an executor, the power simultaneously existing in the Probate Court of the testator's domicil is to be lost sight of, or that the dispositions of the will must be fully executed here to the extent of the effects realized under the Surrogate's letters. The only adjudications which I have found bearing directly upon the question are those in the Supreme Judicial Court of Massachusetts, and the Circuit Court of the United States sitting in that State. In the Selectmen of Boston v. Boylston (2 Mass., 384), it was held that one who had taken out letters testamentary in England as executor of the will of a person domiciled and dying there, and had afterwards proved the will in Massachusetts — which by statute of that State was equivalent to letters of administration — was not bound to account in Massachusetts for assets received in England. The case came before the court again, and although the point then decided is not important here, it was said in stating the grounds of their decision that the administration in Massachusetts was to be considered not only as a means of collecting the effects of the testator within that jurisdiction, but of answering according to the rules of the same jurisdiction the demands of creditors and all legal liens upon those effects. The town of Boston was the residuary legatee under the will in question, which was that of Thomas Boylston. The court added that the Selectmen of Boston had therefore a direct and immediate interest in the account of the administrators, and in any process which could be instituted to determine the amount of the effects collected and the charge to which they were justly liable; or in other words in ascertaining the residuum of the testator's effects within that jurisdiction. The general question next came before the court in Richards v. Dutch (8 Mass., 506). The plaintiff was an administrator with the will annexed of one Murray, who was domiciled at Calcutta, where he died. He took out letters of administration in Massachusetts, and sued the defendant for the avails of goods consigned by the testator to him in that State. The defendant set up that he was a legatee under the will of the testator of the very property for which he was prosecuted. This depended upon certain language in the will by which the testator gave certain property which he had sent to America, to the persons to whom he had sent it, in general terms; and the question was whether the defendant and the property which he claimed to hold were embraced in that language. There was a verdict for the defendant, which the court set aside; and one of the grounds of the judgment was that in the case of administration in Massachusetts on a foreign will, "the administrator may be held to pay debts due to creditors here if any such are claimed of him; but legatees who claim only from the bounty of the testator must resort to the country of the testator where the will was originally proved and by the laws of which his effects were to be distributed." The controversy upon the will of Thomas Boylston came before the court again in a case reported in 9 Mass., 337, which was an action on the bond taken upon granting administration in Massachusetts, and was prosecuted for the benefit of the town of Boston as residuary legatee under the will. The question now under consideration was directly involved, as the court were called upon to declare whether the bond was forfeited, and if it was what should be the amount for which execution should issue. It was held that the administrator was bound to account and to pay the domestic debts, if any, but that he was not compellable to pay the legacy to the town of Boston or any part of it. The court say, "the rights of legatees, especially of residuary legatees, as well as the next of kin in the case of intestacy, depend upon the laws of the country where the deceased had his home and domicil from whom the bequest or succession is claimed, and for that purpose all the choses in action and personal effects are to be deemed local, and to be there accounted for and finally administered, wherever collected or accruing to the executors or administrators. The administration granted within this State has been justly styled ancillary in respect to the administration in the Prerogative Court. The defendant has an authority to collect and pay debts, and is liable for the contracts and debts of the testator recoverable and which may be enforced within this jurisdiction; but he is not liable in the Court of Probate, upon any partial account to be there rendered and adjusted to a decree either of payment or of distribution, whether for a legacy or to one claiming by a supposed succession of the deceased's effects." The court held that the defendant was liable to render an account of the effects realized by him in Massachusetts, and was not bound to do anything more. The case has additional weight on account of the fact that the residuary legatee was a Massachusetts municipality, and that the testator must have contemplated that the legacy would eventually be paid here. If those legatees had been Englishmen domiciled in England at the testator's death, and had afterwards come to Massachusetts, the case would have been parallel with the one now before the Court.
The same principle was recognized in Fay v. Haven (3 Metc., 109, 114). A person domiciled in Louisiana made his will there, appointing executors who took upon themselves the administration, and one of them afterwards came to Massachusetts and took out administration there. The court said that the administration in Massachusetts was merely ancillary, and the only duty devolving upon the administrators would be to collect the debts here and appropriate so much of the avails of same to the payment of the debts due to the citizens of Massachusetts as would be authorized by the general solvency or insolvency of the estate, and remit the balance to the place of the principal administration. See also Jennison v. Hapgood (10 Pick., 77), and Dawes v. Head (3 id., 128). In the last case the court say that possibly the assets collected under the ancillary administration might be directed to be paid to legatees living in the jurisdiction of such administration, unless the circumstances of the case should require the funds to be sent abroad.
Judge STORY, in the interesting case of Harvey v. Richards (1 Mason, 380), has examined the question with very great attention. He considers it to be well settled in Massachusetts in the way I have mentioned, but that it is limited in its application to the Probate Courts and does not extend to suits in equity brought in the Federal Courts in that State. And it is proper to say that he does not approve of the extent to which the doctrine has been carried even in respect to the Court of Probate. He considers the correct rule upon principle in all courts to be this: that whether the court, which is not that of the testator's domicil, but in which administration has been subsequently obtained, ought to decree distribution or remit the property abroad is a matter not of jurisdiction, but of judicial discretion depending on the particular circumstances of each case; that there ought to be no universal rule on the subject; but that every nation is bound to lend the aid of its own tribunals for the purpose of enforcing the rights of all persons having title to the fund, when such interference will not be productive of injustice, or inconvenience, or conflicting equities. The case before him was a bill in equity in the Circuit Court of the United States in Massachusetts. It was a case under the same will mentioned in Richards v. Dutch, the primary administration being in Calcutta. The property, which was the subject of the suit, had been sent by the testator to Boston; and it was not embraced in the will made in Calcutta but was personal property unbequeathed, and was not a residue. The next of kin resided in Massachusetts, and the administrator in that State was a different person from the executor in Calcutta. Distribution to the next of kin was decreed.
I have come to a conclusion, in accordance with the views of Judge STORY, that whether the funds realized here, after the payment of domestic debts, ought to be left in the hands of an executor appointed by the Probate Court of the testator's domicil in a sister State, to be fully administered under the order of that court, should depend upon the special circumstances of each case; and that in the case now before us the considerations which have been adverted to forbid the Surrogate to attempt to execute the trusts of the will in this jurisdiction; that after settling the accounts of the respondent, the latter should be allowed to administer all the assets of the estate under the direction of the court in Connecticut, from which he received the first letters testamentary. We are not therefore, I think, called upon to pass upon the questions of construction arising upon the will, but we leave them to the court whose duty it thus becomes to decide all questions regarding the distribution of the moneys of the estate.
The effect of the judgment of the Supreme Court is to reverse the whole of the Surrogate's decree appealed from by Mr. Lyman, and to require the executors to account for the assets realized in New York after the issuing of letters testamentary here. The views expressed in this opinion will be accomplished by a general judgment of affirmance of the judgment of the Supreme Court. What has been said respecting the principles upon which the account is to be taken and the disposition of the net balance of the New York assets, will no doubt be conformed to in the future proceedings before the Surrogate. The costs of both parties in this appeal are to be paid out of the trust fund.
All the judges (except SELDEN, J., who was absent) concurring,