Ghilain v. Couture

• Decision Date: 07 May 1929
• Parties: GHILAIN v. COUTURE et al.
• Court: New Hampshire Supreme Court

146 A. 395

GHILAIN

v. COUTURE et al.

Supreme Court of New Hampshire. Hillsborough.

May 7, 1929.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Action by Mary L. Ghilain, administratrix of the estate of John G. Ghilain, against Alphonse L. Couture and another for the death of plaintiff's intestate. Case transferred on defendants' exceptions to a denial of their motion to dismiss. Exceptions overruled.

Case for causing the death of the plaintiff's intestate. The writ is dated May 12, 1926, and contains a special declaration wherein it is set forth that the plaintiff's intestate, John G. Ghilain, died on the 13th day of May, 1924, as a result of injuries sustained the same day by being burned while in the defendants' theater in Manchester, this state. The plaintiff, Mary Ghilain, is described as a resident of Boston in the county of Suffolk and commonwealth of Massachusetts, and as administratrix of the estate of John G. Ghilain, late of said Boston, deceased intestate, and the defendants are both described as residents of said Manchester. The plaintiff was appointed as such administratrix by the probate court of said Suffolk county on May 29, 1924.

The action was entered at the September term, 1926, of the superior court. On the 13th day of February, 1928, the defendants filed a formal plea of the general issue and a brief statement of facts stating that the plaintiff had never been appointed administratrix in this state, that ancillary administration had never been taken out in this state, and claiming that an administrator is without power in a state other than that from which he received his appointment, and asking that the action be dismissed.

The defendants excepted to a denial of their motion to dismiss. At the hearing thereon there was filed a certificate of the probate court for Hillsborough county, this state, showing that said Mary Ghilain was appointed administratrix of the estate of said deceased by that court on April 4, 1928.

The court found as a fact that the plaintiff ought to have opportunity to try her case upon its merits unless she is precluded by law, and ruled that there is no law to bar her, and that the case should stand for trial in its order upon the general issue; to which findings and rulings the defendants excepted.

Transferred by Young, J., upon the defendants' bill of exceptions, which was allowed, all questions of law raised thereby being reserved.

Sullivan & White, of Manchester, and Robert W. Upton, of Concord, and Winthrop Wadleigh, of Milford, for plaintiff.

Warren, Howe & Wilson, and Robert P. Bingham, all of Manchester, for defendants.

SNOW, J. This action was brought by the plaintiff as administratrix by appointment in Massachusetts, the domicile of the deceased, against defendants, resident in this state, to recover for death from an injury received here.

In claims for death the nature of the right of action, and the party in whom it is invested, are fixed by the lex loci delicti. Marshall v. Railroad, 81 N. H. 548, 124 A. 550; 2 Warton Confl. Law (3d Ed.) 480d(7); Lower v. Segal, 59 N. J. Law, 66, 34 A. 945; 5 R. C. L. Confl. Law, § 133; 8 R. C. L. "Death," 45; Am. L Inst. Restatement Confl. Law (Tent.) §§ 427, 432. The plaintiff's right of action, if any, is therefore determined by the law of this state. At the time of the accident the sole basis for such a right was P. S. c. 191, §§ 10-13. Poff v. New England Tel.

6 Tel. Co., 72 N. H. 164, 55 A. 891. This statute authorized an action to recover damages for death caused by wrongful physical injury to the person, for the benefit of the widow or widower and the children, if any, otherwise for the benefit of the heirs at law of the deceased; said action to be brought at any time within two years after the death of the injured party and not afterwards. Though not expressed in so many words, the statute clearly contemplated that actions to enforce the right should be brought by the "administrator of the deceased party." P. S. c. 191, § 12; Cogswell v. Railroad, 68 N. H. 192, 194, 44 A. 293. See Laws 1887, c. 71, § 1. The interpretation of the quoted words is the principal and the controlling issue presented.

The contentions of the defendants are that the plaintiff, domiciliary administratrix, was not an "administrator of the deceased party" within the meaning of the statute, and that she was therefore wholly without authority to bring the suit; that her attempted action was a mere nullity; and that, the limitation having run, the plaintiff's writ is incapable of amendment by substitution of herself as the ancillary administratrix so as to relate back and cure her defective suit.

In support of their contention of the plaintiff's want of authority the defendants cite the general rule that an administrator cannot sue outside of the state of his appointment, and assert that the Legislature, acting in the light of the repeated recognition of this rule by our courts (Sabin v. Gilman, 1 N. H. 193; Goodall v. Marshall, 11 N. H. 88, 89, 90, 35 Am. Rep. 472; Taylor v. Barron, 35 N. H. 484, 495; Leonard v. Putnam, 51 N. H. 247, 249, 12 Am. Rep. 106; Luce v. Railroad, 63 N. H. 5.88, 590, 3 A. 618), must have intended that only a domestic administrator could bring action under the statute. Reliance upon the rule as a controlling factor in interpreting the legislative intent invites inquiry as to its rationale and scope, for it is unlikely that the Legislature gave weight to an abstract, statement of the rule in disregard of the ground upon which it is based and the limits to its application.

While the rule presupposes that an administrator has no claim to recognition as a matter of riyht, beyond the bounds of the state of his appointment (Goodall v. Marshall, supra, page 89 of 11 N. H.; Luce v. Railroad, supra, page 590 of 63 N.H.), such want of legal right is not the reason for the rule. The rule does not arise from any want of inherent authority in the court to accord such recognition. Leonard v. Putnam, supra, 252 of 51 N. H. See Lomas v. Hilliard, 60 N. H. 148, 149. No statute or infrangible principle of the common law forbids it. In fact the early usage here was to admit administrators appointed in other jurisdictions, particularly in Massachusetts, to sue in our courts. Wood v. Weld, Smith, 367. Such usage was founded on curtesy, which had its origin in the acceptance by the several New England colonies of a recommendation of intercolonial commissioners that the probate of wills and the appointment of administrators in one colony be given force in the others. Smith, 500, 501; Goodwin v. Jones, 3 Mass. 514, 3 Am. Dec. 173; Stevens v. Gaylord, 11 Mass. 256, 260. The practice was discontinued for want of reciprocity. Smith. 367.

The official character and acts of foreign representatives are being constantly recognized, and rights based thereon enforced by the courts of all the states in numerous situations. An executor or administrator, authorized by the law of the deceased's last domicile, will be recognized as the person to whom ancillary probate will be granted in another state (2 Wharton Confl. Law [3d Ed.] § 608), and he may appeal from a decree appointing another to such office. Graves v. Tilton, 63 N. H. 192, 193; Hutchins v. Brown, 77 N. H. 105, 107, 88 A. 706; Smith v. Sherman, 4 Cush. (Mass.) 408; In re Shaw's Estate, 81 Me. 207, 16 A. 662; In re Miller's Estate, 92 Iowa, 741, 61 N. W. 229. A domiciliary administrator, in the absence of ancillary administration, may take possession of and remove the goods or effects of the decedent in another jurisdiction, or collect a debt due from a debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. Luce v. Railroad, supra, 590 of 63 N. H. (3 A. 618) and cases cited. See 42 Haw. Law Rev. 608. A domiciliary administrator appointed in another state may make a valid sale and assignment of stock owned by his decedent in a corporation in this state if voluntarily transferred upon the latter's books and a new certificate issued to the purchaser. Luce v. Railroad, supra, 591 (3 A. 618); Gove v. Gove, 64 N. H. 503, 504, 15 A. 121. An administrator or executor may recover dividends on stock in a foreign corporation (Smith v. Cuyler, 78 Ga. 654, 3 S. E. 406), and vote at corporation meetings upon stock standing in the name of his testator or intestate (In re Cape May & D. B. N. Co., 51 N. J. Law, 78,16 A. 191). An executor or administrator of a deceased inventor may sue in the United States Circuit Court of another state for damages for an infringement of a patent without taking out letters in the latter state. Connor v. New York, N. H. & H. R. Co., 28 R. I. 500, 565, 68 A. 481, 18 L. R. A. (N. S.) 1252, 13 Ann. Cas. 1033. An administrator may sue in a foreign jurisdiction upon any rights which did not form part of the estate of the deceased but accrued to him after the death. Wilson v. Tootle (C. C.) 55 F. 211; 2 Beale Oases Confl. Laws, 111, note. A receiver appointed by the courts of another state may sue in our courts. Thompkins v. Blakey, 70 N. H. 584, 587, 49 A. Ill. The courts of each state will give appropriate force to the official character of a guardian or other custodian appointed in another state. Butler v. Butler, 83 N. H.——, 143 A. 471. A foreign guardian may maintain habeas corpus to obtain the custody of a minor ward. Hanrahan v. Sears, 72 N. H. 71, 73, 54 A. 702. See Leonard v. Putnam, supra, 253 of 51 N. H.

While the recognition of foreign representatives and the effect given to their official acts in these and other divers situations have been justified and explained upon various considerations consistent with the rule, their very number and variety tend to show that, in a larger sense, the so-called rule that executors and administrators will not ordinarily be granted extraterritorial recognition, and therefore will not generally be permitted to bring actions in the courts of...