Fletcher's Adm'r v. Sanders

• Decision Date: 01 November 1838
• Citation: 37 Ky. 345
• Parties: Fletcher's Admr. v. Sanders and Wier.
• Court: Kentucky Court of Appeals

37 Ky. 345

Fletcher's Admr. v. Sanders and Wier.

Court of Appeals of Kentucky.

November 1, 1838

FROM THE CIRCUIT COURT FOR FAYETTE COUNTY.

Mr. M C. Johnson for plaintiff.

Mr Owsley for defendants.

OPINION

ROBERTSON CHIEF JUSTICE

Statement of the case.

Johnt Bartlet having, by his last will, published in the year 1813 devised to his wife Margaretta, after the payment of his debts, all his estate, consisting chiefly of his joint stock in the mercantile firm of Bartlet & Cox, in the city of New Orleans, and of about seven thousand dollars on deposit in a bank at Cincinnati in Ohio, and of some household furniture in Kentucky, and having died early in the year 1814, in the said city of New Orleans, in the State of Louisiana, where he was then domiciled--Joseph H. Hawkins and Lewis Sanders, of the city of Lexington, (who, together with Samuel Winter and William W. Montgomery, of the city of New Orleans, were nominated as the executors of the will,) had the same proved and admitted to record in the County Court of Fayette, in which the city of their residence was situated; and having taken the oaths prescribed by law, executed an executorial bond, in the penalty of twenty thousand dollars, with James Wier as their surety, and with a condition requiring them among other things, " well and truly to administer according to law" --" the goods, chattels and credits" of the testator, which should come to their " hands, possession, or knowledge."

On the 25th of January, 1816, Joseph H. Hawkins bought Mrs. Bartlet's interest, as a devisee, in the mercantile establishment of Bartlet & Cox, for which he agreed to pay her whatever James Morrison, Charles Wilkins and William W. Montgomery, should determine to have been the value of it on the 1st of January, 1816; and afterwards he advanced to her about seventeen thousand dollars.

Sanders and Hawkins sold, in Lexington, the household furniture belonging to the testator at his death, for about nine hundred dollars, and disposed, also, of the money deposited by him in the Cincinnati bank, nearly the whole of which latter sum was applied to the payment of an individual debt due by Sanders to the same bank; and seven hundred dollars of the furniture sale was received by Hawkins; the residue by Sanders.--But they never, either reported any inventory of the testator's estate, or made any settlement with the County Court of Fayette.

Mrs. Bartlet having intermarried with Thos. Fletcher, and afterwards, died, her husband, who survived her, was qualified as her administrator, and, in February, 1824, he brought a suit in chancery, in the Fayette Circuit Court, against Sanders and the surety Wier, alleging that, Hawkins having died insolvent, no person had been appointed his personal representative, and praying for a decree for an account of the personal estate of the testator. And, the administrator having died during the pendency of the suit, it was revived in the name of Rchard Hawes, as administrator de bonis non.

The answer of Sanders contain nothing material, except what will be hereafter noticed; and that of Wier required proof of most of the more important allegations; denied that the County Court of Fayette had jurisdiction to grant probate of the will, and insisted that, if that Court had any jurisdiction it was circumscribed to the assets which might have been subject to administration in Kentucky, and that the executorial bond, if binding at all, should be deemed obligatory on him as surety, to no greater extent than those local assets.

The Circuit Court having dismissed the bill, the following questions are presented for revision: first--Could the suit be revived in the name of the administrator de bonis non? Second--Had the County Court of Fayette any jurisdiction? Third--If it had, to what extent was Wier's bond obligatory on him as surety? Fourth--Was the plaintiff in error entitled to any relief, and, if any, what?

First. Whatever might be the technical rule in an action at law, we have no doubt that, in equity, a suit brought by an administrator, may be revived and prosecuted by an administrator, de bonis non, after the administrator's death. 1 Williams on Executors, 597; Owen v. Curzon, 2 Vernon, 237; Mitf. Plead. 64, 4th ed. n. 9.

A suit in chancery instituted by an administrator may be revived, after his death, by an administrator, de bonis non. As to an action at law, query.

No court of this State has jurisdiction to grant probate of a will or letters of administration on the estate of a decedent, who not domiciled here, died abroad--unless assets are are found in this State; and then the jurisdiction belongs exclusively to the county where the assets are. But--

Second. As the proof leaves no room for doubting that the testator's domicil was in the State of Louisiana. where he died, no Court in this State had jurisdiction to grant probate of his will, or letters of administration. unless he had assets here. Nor, although the fact of his having household furniture within the limits of Kentucky, at the time of his death, as well as at the date of the probate, has been admitted by Wier, would the County Court of Fayette have had any jurisdiction, unless that property, or some of it, had been in the county of Fayette; and there is no positive proof, as against Wier, that any of it was there; for although Sanders, in his answer, says that it was all there, yet his answer is not, as such a matter, conclusive against Wier, who admits only that the testator had assets in Kentucky.

But the practical doctrine is well settled, that the assumption of jurisdiction by a probate court of this State, is prima facie evidence of the fact that such court had rightful authority to act as it did, and throws on any person who may deny its jurisdiction, the burthen of proving that it had transcended its authority. Proof of the fact that Bartlet was not domiciled in Kentucky, may, perhaps, have been sufficient to countervail the presumption of jurisdiction arising from the mere assumption of cognizance by the County Court of Fayette. But then, the sale of the furniture in Lexington, and the admission by Sanders, coupled with that of Wier, should, in our opinion, be sufficient to confirm the prima facie presumption of jurisdiction in that Court, in the absence of any other fact to the contrary, than that of the testator's foreign domicil at the time of his death.

Where a court of probate, in this State, has taken jurisdiction, the presumption is in favor of its legality; and he who alleges that the court has exceeded its jurisdiction, must show it; for that, proof that the decedent was a non-resident, not domiciled here, would be, prima facie sufficient; but might be rebutted, by showing that some of his effects were sold by the ex'or or adm'r here.

We are, therefore, of the opinion, that the fiducial bond taken by the County Court of Fayette, is, to some extent at least, obligatory on Wier, as a statutory bond.

Third. It is a well settled doctrine, that letters of administration granted by one nation or State, can have no operation, per se, within the jurisdiction of another nation or State; and that, therefore, such authority, being local, can, de jure, vest no right of suit in any other country than that in which it was granted; for, as it is the duty of every government to secure to its own citizens, a just participation in the distribution of the assets within its protection and control, belonging to every deceased debtor of any of those citizens, wherever he may have lived or died, it is an established rule of international law, that assets shall be administered under the authority of the local sovereign. And consequently as every administrator must, also, account to the proper tribunal of the country from which he derived all his authority, he is responsible to no foreign government for the administration of assets received under that authority, and can not either sue or be sued, in his representative character, in a foreign State. (Story on the Conflict of Laws, 422, and the numerous cases therein cited.

Letters of administration granted by one nation or State, can have no operation, per se, in another. Every administrator being accountable to the tribunal from which he received his authority, no one is responsible to any foreign government; nor can he sue or be sued, in his fiduciary character in any foreign State.

But, nevertheless, movable property having no situs --because it is deemed personal, and therefore subject to the law of the owner's domicil, in every respect except for the purposes of administration--it should be distributed according to the law of that domicil. (Ibid. 420.)--And therefore, if an administrator, appointed under the law of the domicil, can rightfully get possession of assets anywhere, it would be but right that it should do so; and, of course, if he should be permitted to get into his hands as assets from a foreign country, without suing for them, and without obtaining new letters of local adminstration, they may be deemed assets in his hands at the domicil, and he may be responsible for the administration of them, according to the law of the domicil. And if he can not lawfully get possession of such assets in a foreign country, without subjecting himself to the responsibilities of a local administration, it would be right to endeavor to obtain such local authority, unless some other person shall have been appointed to administer those assets.--Ram. on Assets, Ch. XVI. p. 235, and 2 Williams on Exetors, 1016.

The movable property of a decedent, being personal, is subject to the law of his domicil for every purpose except administration; and is distributable according to that law.

An administrator appointed under the law of...