Dixon Executors v. Ramsay Executors

• Decision Date: 01 February 1806
• Citation: 7 U.S. 319,2 L.Ed. 453,3 Cranch 319
• Parties: DIXON'S EXECUTORS v. RAMSAY'S EXECUTORS
• Court: U.S. Supreme Court

7 U.S. 319

3 Cranch 319

2 L.Ed. 453

DIXON'S EXECUTORS v. RAMSAY'S EXECUTORS.

February Term, 1806

ERROR to the circuit court of the district of Columbia, upon a judgment in favour of the defendants, upon a general demurrer to their plea, which (after oyer of the plaintiff's letters testamentary) stated, that the defendants' testator, at the time of making the promises, &c. and from thence, always, until his death, resided in the town of Alexandria, in the county of Alexandria, in the district of Columbia, and that the defendants have always resided in the same town, and that the plaintiffs have not obtained probat of the said

letters testamentary, at any place within the district of Columbia, or the United States of America.

E. J. Lee, for the plaintiffs in error. The question is, whether the plaintiffs must take out letters testamentary in the district of Columbia, before they can maintain an action as executors.

There is nothing in the laws of Virginia, which requires that letters testamentary should be there taken out upon a foreign will, provided they have been taken out in the country where the testator lived and died. The 14th section of the act of Virginia, P. P. 162, relates only to the title to lands under a will.

If, then, there is nothing required by the laws of Virginia, the right, and the powers of the executors depend upon the rules of the civil law, and the law of that country of which the testator was a subject.

By the law of England, an executor may commence suit before the probat. 1 Com. Dig. 2 Bac. Ab. 413.

The very naming of an executor is a disposition to him, of all the testator's personal estate, for he comes in loco testatoris, and is entitled to the surplus, after payment of debts and legacies, 2 Bac. Ab. 423. He derives all his power, not, like an administrator, from the government of the country, but from the will of his testator.

The debts due to the estate, follow the person of the creditor, not that of the debtor, and the disposition of them is to be governed by the laws of that country of which the testator was a subject. 2 Bos. and Pul. 229, 230, Bruce v. Bruce. 3 Vez. jun. 200, Bempde v. Johnstone. Appendix to Cooper's Bankrupt law, 29, Babille's opinion. Vattel, b. 2, ch. 3, § 8, 109, 110, 111. 3 Dallas, 370, 377, (note.) 4 T. R. 184, 175, Hunter v. Potts.

The case of Fenwick v. Sears, ante, vol. 1. p. 259, was that of an administrator who derives his whole authority from the laws of the place; it therefore cannot decide the present case, which is that of an executor who derives his whole authority from the will of his

testator. That case, too, was decided under the peculiar laws of Maryland, which differ from those of Virginia upon this subject. By the law of Maryland, 1798, ch. 101, § 4, no alien can be an executor or administrator.

But it is said, that the rights of creditors require that the executor should give security for the faithful administration of the estate. But this would be of no avail, if the executor, after giving security, should choose to return to England. For...