Brown, Jr. v. Smith

• Decision Date: 13 September 1906
• Citation: 64 A. 915,101 Me. 546
• Parties: BROWN, JR., v. SMITH.
• Court: Maine Supreme Court

64 A. 915

101 Me. 546

BROWN, JR.,

v. SMITH.

Supreme Judicial Court of Maine.

Sept. 13, 1906.

Report from Supreme Judicial Court, Waldo County.

Action by F. W. Brown, Jr., against Charles E. Smith to recover certain lands. Case reported. Judgment for defendant.

The plaintiff held by assignment a mortgage of the demanded premises, given May 28, 1887, by Albert D. Bumps, of Thorndike, Me., to George Tyler, of Boston, Mass., to secure a certain judgment recovered by said Tyler against said Bumps in the Supreme Judicial Court, Waldo county. Afterwards the said Tyler died, and Isabella J. Tyler, of Waltham, Mass., was duly appointed administratrix of the estate of said Tyler by the probate court of Middlesex county, Mass. The administratrix then assigned said mortgage to the plaintiff.

There was no ancillary administration on the estate of the said deceased, George Tyler, in the state of Maine. The defendant contended, among other things, that the administratrix of the estate of said deceased. George Tyler, had no power to make a valid assignment of the aforesaid mortgage given to her intestate, as she had been appointed administratrix in another state while the mortgage was of land in the state of Maine.

The action was tried at the April term, 1906, of the Supreme Judicial Court. Waldo county, and at the conclusion of the evidence it was agreed to report the case to the law court, "to be determined upon such evidence as is competent and legally admissible."

Argued before WISWELL, C. J., and STROUT, RAVAGE, POWERS, PEABODY, and SPEAR, JJ.

F. W. Brown, Jr., and W. H. McLellan, for plaintiff. R. F. Dunton and W. P. Thompson, for defendant.

POWERS, J. Writ of entry to recover certain lands in Thorndike. The case comes here on report.

To make out title plaintiff introduced: (1) A duly recorded mortgage of the demanded premises from Albert D. Bumps, of Thorndike, Me., to George Tyler, of Boston, Mass., dated May 28, 1887, given to secure a certain execution and judgment recovered by said Tyler against said Bumps in this court in said Waldo county; (2) copies of records of the probate court of Middlesex county Mass., showing that December 10, 1889, Isabella J. Tyler, of Waltham, in the county of Middlesex, was duly appointed administratrix of the estate of George Tyler, late of said Waltham, deceased; (3) assignment from said administratrix to the plaintiff of said mortgage, duly recorded, and dated November 21, 1904. This makes a prima facie case, if an administratrix appointed in another state has power to assign a mortgage given to her intestate upon real estate in this state.

It is a well-settled principle of the common law that the power and authority of an administrator or executor over the estate of the deceased is confined to the sovereignty by virtue of whose laws he is appointed. In recognition of this principle provision is made by our statutes for the granting of ancillary administration on the estate of nonresidents who died leaving estate to be administered in this state, or whose estate is afterwards found therein. Rev. St. c. 65, § 7; chapter 66, §§ 14, 15, and 16.

One reason at least upon which this rule is founded, is to prevent the effects or credits of the deceased found in any state, which may be needed to satisfy debts due to the citizens of that state, from being withdrawn from its jurisdiction. That no such necessity in fact exists can never be known with certainty in any given case, unless administration is granted, and an opportunity thereby afforded to creditors to present their claims. Mansfield v. McFarland (Pa.) 51 Atl. 763. It is said in Stearns v. Burnham, 5 Me. 261, 17 Am. Dec. 228, that the principles of justice and policy, upon which similar statutes to those above cited were founded, "would seem to lead our courts of law to that course of proceedings which would harmonize with those principles and have a manifest tendency to produce the same beneficial results." In that case it was accordingly held that an executor appointed under the laws of another state cannot indorse a promissory note payable to his testator by a citizen of this state so as to give the indorsee a right...