Burrowes v. Goodman

• Decision Date: 18 May 1931
• Docket Number: No. 379.,379.
• Citation: 50 F.2d 92,77 ALR 249
• Parties: BURROWES v. GOODMAN.
• Court: U.S. Court of Appeals — Second Circuit

77 ALR 249, 50 F.2d 92 (1931)

BURROWES v. GOODMAN.

No. 379.

Circuit Court of Appeals, Second Circuit.

May 18, 1931.

Herman C. Pollack, of New York City, for appellant.

Mackey & Marchisio, of New York City (Francis L. Driscoll and Richard J. Mackey, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Summary judgment, on a motion therefor, was obtained against appellant, on a complaint alleging a personal liability as a stockholder of the First National Bank of Dunn, N. C., pursuant to the National Banking Law (sections 5151, 5234, Rev. Stat. 12 USCA §§ 63, 192; section 1, c. 156, Act of June 30, 1876 12 USCA § 191; section 23, Federal Reserve Act 38 Stat. 251, 12 USCA § 64). The appellee was appointed receiver pursuant to section 5234 of the Revised Statutes. The appellant is the executrix under the will of Harry Goodman by appointment of the register of wills of Philadelphia county, Pa. All the property of the estate is in Pennsylvania. Her testator owned ten shares of stock of the par value of $100. On December 31, 1928, the Comptroller of the Currency levied an assessment against the stockholders of the bank, payable February 7, 1929, and the amount of the assessment levied against the appellant's testator was $1,000.

The appellant, as executrix, appeared generally in the suit brought to recover this sum, and the court below held that jurisdiction of the appellant might be sustained. Appellant being a Pennsylvania executrix, by appointment, argues that she might be sued only in Pennsylvania. But the question is presented as to whether a foreign executrix, having entered a general appearance, may submit to the jurisdiction of a court outside the district where she has been appointed to administer the estate. There is no statute in New York authorizing suit by or against a foreign executor. Section 160 of the Decedent's Estate Law of New York (Consol Laws, c. 13) was repealed by chapter 660 of the Laws of 1926. In Lawrence v. Nelson, 143 U. S. 215, 12 S. Ct. 440, 36 L. Ed. 130, doubt was expressed as to the validity of an administrator's appearance. The judgment entered, however, was supported because later the administrator filed a bill of review under the local statute of Arkansas and a decree thereon was entered which confirmed the original decree. But that decision does not authorize a foreign executrix to consent to be sued. The same may be said of the appellee's other authority to which we are referred. Helme v. Buckelew, 229 N. Y. 363, 128 N. E. 216. A foreign executor filing a complaint for an accounting was held subject to a decree against him, as parties are held in such a proceeding. Lackner v. McKechney, 252 F. 403 (C. C. A. 7).

Ordinarily an executrix' office is conferred by the appointing judge and is limited to the confines of the domiciliary jurisdiction. To obtain standing in another jurisdiction, in another state, he must have the permission of the laws of that state. His recognition to title or assumption of obligation is by consent of the state or through ancillary letters. With no recognition accorded by New York state, appellant could not sue and she cannot force herself upon the court's jurisdiction. Moore v. Mitchell, 281 U. S. 18, 50 S. Ct. 175, 74 L. Ed. 673. In the Moore Case, an action was brought by a county treasurer of Indiana in the United States District Court of the Southern District of New York. The trial court dismissed the complaint 28 F.(2d) 997, which dismissal was affirmed by this court 30 F.(2d) 600, 65 A. L. R. 1354, and on appeal to the Supreme Court it was held that, so far as a county treasurer's capacity to sue goes, the District Court is indistinguishable from the New York courts. "He * * * has no better standing to bring suits in courts outside Indiana than have executors, administrators, or chancery receivers without title, appointed under the laws and by the courts of that state. It is well understood that they are without authority, in their official capacity, to sue as of right in the federal courts of other states. From the earliest times, federal courts in one state have declined to take jurisdiction of suits by executors and administrators appointed in another state." In McMaster v. Gould, 240 N. Y. 379, 148 N. E. 556, 558, 40 A. L....