Helme v. Buckelew

Decision Date07 July 1920
Citation229 N.Y. 363,128 N.E. 216
PartiesHELME v. BUCKELEW.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by George A. Helme against Mary E. Buckelew, executrix of Frederick L. Buckelew, deceased. From an order of the Appellate Division (191 App. Div. 59,181 N. Y. Supp. 104) affirming an order of the Special Term denying defendant's motion to set aside the service of a summons, defendant by permission appeals.

Reversed, motion granted, and certified question answered in the negative.

The Appellate Division certified the following question:

‘Did the court acquire jurisdiction, under section 1836a of the Code of Civil Procedure, over the defendant as executrix and of the cause of action herein by personal service of the summons within this state upon said defendant?’

Appeal from Supreme Court, Appellate Division, First department.

Martin Conboy, of New York City, for appellant.

J. Ard Haughwout, of New York City, for respondent.

CARDOZO, J.

A foreign executrix served with a summons while temporarily within the state contests the jurisdiction of the court to go forward with the suit to judgment. On motion to vacate the service, she shows that she is herself a resident of the District of Columbia; that her testator was a resident of New Jersey, where his will was admitted to probate and where letters testamentary were issued; that no property of any kind belonging to the testator is now or ever was in the state of New York; and that after due notice to all creditors, the estate has been distributed in New Jersey in conformity with law. None of these averments is controverted by the plaintiff. The question is whether, in such circumstances, section 1836a of the Code of Civil Procedure (Laws 1911, c. 631) subjects the executrix to suit. The section reads as follows:

‘An executor or administrator duly appointed in any other state, territory or district of the United States or in any foreign country may sue or be sued in any court in this state in his capacity of executor or administrator in like manner and under like restrictions as a nonresident may sue or be sued, if, within twenty days after any such executor or administrator shall commence, or appear in, any action or proceeding in any court in this state or within twenty days after he shall be required or directed by summons or otherwise to appear therein, there shall be filed in the office of the clerk of the court, in which such action or proceeding shall be brought or be pending, a copy of the letters testamentary or letters of administration issued to such executor or administrator duly authenticated as prescribed by section 2704 of the Code of Civil Procedure; in default whereof all proceedings in such action or proceeding may be stayed until such duly authenticated copy of such letters shall be so filed.’

Until the adoption of that section in 1911, the general rule was that a foreign administrator or executor could neither sue nor be sued in the courts of this state. Hopper v. Hopper, 125 N. Y. 400, 403,26 N. E. 457,12 L. R. A. 237;Morrell v. Dickey, 1 Johns. Ch. 153;Doolittle v. Lewis, 7 Johns. Ch. 45,11 Am. Dec. 389; Dicey, Conflict of Laws (2d Ed.) p. 451. The disability to sue might be removed by force of comity. Not so easy was it to terminate the immunity from suit. Vaughan v. Northup, 15 Pet. 1, 5, 10 L. Ed. 639. A distinction was then drawn between administrators and executors. The distinction had its origin in the source of title. With administrators, the source of title is the grant of letters of administration; with executors, the will. 14 Halsbury, Laws of England, Executors and Administrators, §§ 263, 270. ‘The executor's interest in the testator's estate is what the testator gives him. That of an administrator is only that which the law of his appointment enjoins.’ Hill v. Tucker, 13 How. (U. S.) 458, 466 . A foreign administrator was viewed, therefore, as the agent of a foreign sovereignty. The nature of his office made him accountable in the courts of the domicile, and not elsewhere. Vaughan v. Northup, supra. Another sovereignty, if it found him within its territorial limits, might render a judgment that would be effective in the disposition of local assets. It could not render a judgment generally, in personam, which the courts of the domicile would be under a duty to respect. Johnson v. Powers, 139 U. S. 156, 159, 11 Sup. Ct. 525, 35 L. Ed. 112;Low v. Bartlett, 8 Allen, 259;Goodwin v. Jones, 3 Mass. 514, 3 Am. Dec. 173;McLean v. Meek, 18 How. (U. S.) 16, 15 L. Ed. 277;Stacy v. Thrasher, 6 How. (U. S.) 44, 12 L. Ed. 337. Even though the same man was the administrator in two jurisdictions, the judgment rendered against him in one was no evidence in the other. Aspden v. Nixon, 4 How. (U. S.) 467, 11 L. Ed. 1059.Johnson v. Powers, supra. Foreign receivers, unless they were also statutory assignees, were subject to like rules. Reynolds v. Stockton, 140 U. S. 254, 272, 11 Sup. Ct. 773, 35 L. Ed. 464;Converse v. Hamilton, 224 U. S. 243, 259, 32 Sup. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292. Executors, however, were held to occupy a position which had some elements of difference. Like administrators, they were not subject to suit in another jurisdiction until letters were granted to them. Apparently the reason for this was that the courts of another jurisdiction were not bound to recognize their authority. If, however, their authority was recognized, as where they took out ancillary letters, a judgment obtained in one jurisdiction was not void of all effect when put in evidence in another. If the same person was executor in two states, a judgment rendered against him in the courts of the domicile, i. e., of primary administration, was conclusive in the courts whose adminsitration was ancillary or secondary. Carpenter v. Strange, 141 U. S. 87, 104, 11 Sup. Ct. 960, 35 L. Ed. 640;Owsley v. Central Trust Co. (D. C.) 196 Fed. 412, 418. Even if the persons were not the same, there were times and purposes for which the judgment had a limited effect. Hill v. Tucker, 13 How. (U. S.) 458, 466, 14 L. Ed. 223;Hopper v. Hopper, 53 Hun, 394, 397, 6 N. Y. Supp. 271;Id., 125 N. Y. 400, 26 N. E. 457,12 L. R. A. 237. Executors, unlike administrators, stood in privity with each other. Hill v. Tucker, supra.

These were the general rules as they stood before the statute. They were not, however, without exceptions. According to some decisions, an executor or administrator might submit to the jurisdiction of the foreign courts, and the judgment would then bind him everywhere. Lawrence v. Nelson, 143 U. S. 215, 222, 12 Sup. Ct. 440, 36 L. Ed. 130;Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29, 37 Sup. Ct. 492, 61 L. Ed. 966;Newark Savings Inst. v. Jones, 35 N. J. Eq. 406;Babbitt v. Fidelity & Trust Co., 70 N. J. Eq. 655, 63 Atl. 18. Cf., however, Flandrow v. Hammond, 13 App. Div. 325,43 N. Y. Supp. 143. But even without waiver of immunity, a court of equity took jurisdiction at times over foreign representatives when it was necessary to intervene for the administration of local assets. Field v. Gibson, 20 Hun, 274, 276; Lockwood v. Brantly, 31 Hun, 155, 157; McNamara v. Dwyer, 7 Paige, 239, 32 Am. Dec. 627;Brown v. Brown, 4 Edw. Ch. 355;De Coppet v. Cone, 199 N. Y. 56, 61,92 N. E. 411,20 Ann. Cas. 841,139 Am. St. Rep. 844;Bergmann v. Lord, 194 N. Y. 70, 86 N. E. 828. Cf. Dicey, supra. That jurisdiction was exceptional, and was kept within narrow bounds. It was not extended to actions at law, at least since the statutes abolishing the office of an executor de son tort. Brown v. Brown, supra, distinguishing Campbell v. Tousey, 7 Cow. 64. See, also, Field v. Gibson, supra; De Coppet v. Cone, supra; Holmes v. Camp, 219 N. Y. 359, 372,114 N. E. 841. It was limited to cases where a failure of justice would follow if equity withheld relief. Either the foreign representative by a devastavit or other tort had put himself in the position of an individual wrongdoer (Dicey, supra), or there was a res within the jurisdiction to be disposed of or preserved (Holmes v. Camp, supra).

The plaintiff says that this amendment of the Code, in a single sentence of sweeping, if indeterminate, application, has uprooted these established principles which have long regulated the conflict of jurisdiction between courts of different sovereignties.

I have little doubt that it was part of the purpose of the statute to remove the disability which formerly attached to foreign executors and administrators when suing in our courts as plaintiffs. I shall assume, even though it may be unnecessary to decide, that the purpose was to this extent effective. The removal of a disability, as distinguished from an immunity, comes properly within the field of comity. Vaughan v. Northup, supra. It is when we pass to that part of the statute which deals with the liability of foreign representatives as defendants that difficulties begin.

If the purpose of the statute was to permit the recovery of a judgment which, irrespective of the consent of the jurisdiction of the domicile or of the presence of assets within this jurisdiction, would bind foreign administrators and executors everywhere as a judgment in personam, the statute registers a futile effort. In the language of Learned Hand, J., in Thorburn v. Gates (D. C.) 225 Fed. 613, it ‘would necessarily be brutum fulmen in its result, and unconstitutional in its inception.’ That this is so in its application to administrators, I think is hardly doubtful. ‘The administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of those assets, according to the lex loci.’ Story, J., in Vaughan v. Northup, supra. The man who is the foreign administrator we may make our own administrator if we please, when the nature of...

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