Giddings' Ex'rs v. Green

• Decision Date: 01 January 1880
• Citation: 48 F. 489
• Parties: GIDDINGS' EX'RS v. GREEN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

48 F. 489

GIDDINGS' EX'RS v. GREEN et al.

United States Circuit Court, E.D. Virginia.

1880

HUGHES J.

This is a suit in chancery, brought by the executors, under letters taken out in Ohio, of Calvin Giddings, deceased, who was a citizen of that state, and whose will was proved there; the executors, of course, being also citizens of Ohio. The object of the suit is to subject a certain piece of land near the town of Hampton, in this state, to the lien for part of the purchase money of the land evidenced by a negotiable note which had been indorsed to the testator in his life-time by the vendor of the land, and which matured some eight months after the death of the testator, and after the qualification of the complainants as his executors in Ohio. The note was found by the executors among the testator's effects in Ohio. The vendee of the land, who is the principal defendant in the bill, is not a resident of this state, but is a resident of New Jersey; nor has process been served upon him but he has appeared by counsel, and pleads that the complainants ought not to be heard in this suit, because they have never received nor obtained letters of administration upon their testator's estate from any court or authority in the state of Virginia.

The sufficiency of this plea to defeat this suit is the only question before me in this cause. It is a technical defense. There is no principle of law more firmly established than that, where there are assets in one state of a deceased resident of another state, they cannot be collected by suit except by an executor or administrator having letters of administration from a court of the state in which the assets are sued for. Otherwise, if there should be creditors of the deceased person in such state, they would be driven to a different jurisdiction to assert their claims, and their rights would depend upon the laws of another forum than that in which their rights of action arose. The authorities establishing this principle of law are so numerous that it is useless to cite them. But it may well be doubted whether this principle extends so far as to deny to the personal representative of a decedent, under all circumstances, the right to sue as such in any jurisdiction except that from which his letters of administration issued. Suppose an executor in Ohio has found among the effects of his testator in that state a jeweled watch, or valuable horse, or other specific article of corporeal property, and has put it into his inventory of the testator's effects, and the title to it has become vested in him, and he has become liable for it in Ohio to Ohio creditors; and suppose this article of property is stolen and carried into Virginia, and found in the possession of one of her citizens. Will it be contended that the Ohio executor, who, as such, has the exclusive title to the property, cannot sue for its recovery in Virginia; and can it be pretended that a Virginia executor, who has no title, must be appointed, or, if appointed, must sue for this property not vested by law in him' In such a case the right of action attaches to the person of the particular executor in which the title of the property has vested, and not to his office, considered in the abstract. Story, Confl. Laws, Sec. 516, and cases there cited. If such executor suing in Virginia, described himself as executor, the words...