Hare v. O'Brien

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE MESTREZAT:
• Citation: Hare v. O'Brien, 233 Pa. 330, 82 A. 475 (Pa. 1912)
• Decision Date: 02 January 1912
• Docket Number: 30
• Parties: Hare v. O'Brien, Appellant

82 A. 475

Hare v. O'Brien, Appellant

233 Pa. 330

No. 30

Supreme Court of Pennsylvania

January 2, 1912

Argued October 3, 1911

Appeal, No. 30, Oct. T., 1911, by defendant, from judgment of C.P. Armstrong Co., Dec. Term, 1909, No. 99, for plaintiff non obstante veredicto in case of Wellington R. Hare Administrator d.b.n. of the Estate of Patrick O'Brien deceased, v. Robert P. O'Brien. Affirmed.

Assumpsit on a foreign judgment. Before PATTON, P.J.

The opinion of the Supreme Court states the case.

Error assigned was in entering judgment for plaintiff for $19,314.47 non obstante veredicto.

The judgment is affirmed.

R. L. Ralston and R. A. McCullough, for appellant. -- The action was barred by the Act of March 15, 1832, P.L. 135; McCullough v. Young, 1 Binney, 63; Brodie v. Bickley, 2 Rawle, 431; Sayre v. Helme, 61 Pa. 299; Mansfield v. McFarland, 202 Pa. 173; Viosca's Est., 197 Pa. 280; Laughlin v. Solomon, 180 Pa. 177; Moore v. Fields, 42 Pa. 467; Cole v. Cunningham, 133 U.S. 107 (10 S.Ct. Repr. 269); Galbraith v. Rutter, 20 Pa.Super. 554; Sweeny v. Hunter, 145 Pa. 363; Com. v. Stambaugh, 22 Pa.Super. 386.

These facts place the case squarely within the ruling of this court in Lines v. Lines, 142 Pa. 149.

Harry C. Golden, with him H. L. Golden, for appellee. -- Where a debt, fixed by the decree of a court of competent jurisdiction in another state, is due by citizens of Pennsylvania to the estate of one who had his domicile at the time of his death in said foreign state, the administrator of the domicile may sue for and recover the debt, in the courts of this state, without first taking out letters of administration here: Moore v. Fields, 42 Pa. 467; Shakespeare v. Fidelity Ins., etc., Co., 97 Pa. 173; Shinn's Est., 166 Pa. 121; Wilkins v. Ellett, 108 U.S. 256 (2 S.Ct. Repr. 641); Talmage v. Chapel, 16 Mass. 71; Tittman v. Thornton, 16 L.R.A. 410; Arizona Cattle Co. v. Huber, 4 Arizona, 69; McCarthy v. Troll, 118 S.W. Repr. 416; Miller v. Hoover, 121 Mo.App. 568; Low v. Burrows, 12 Cal. 181; Boulden v. Penna. R.R. Co., 205 Pa. 264; Viosca's Est., 197 Pa. 280.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

Patrick O'Brien died intestate in 1903 in the state of Ohio, and domiciliary letters of administration were granted to his widow. She resigned, and letters de bonis non were granted to Wellington R. Hare, the plaintiff in this case, who duly qualified. Some time prior to his death O'Brien had placed various sums of money in the hands of his son Robert, the defendant, in trust, to be invested and the interest or income to be paid to Patrick. Hare brought an action against Robert in the court of common pleas of Wyandot county, Ohio, to enforce payment of the money alleged to have been placed in Robert's hands, and recovered a decree or judgment against Robert for $18,000. The suit was in the nature of a foreign attachment, and certain real and personal estate of Robert in Wyandot county was attached in the hands of garnishees. Robert was not personally served but appeared by counsel, put in an answer and contested the suit. The decree or judgment entered against him in the common pleas was subsequently, on his appeal, affirmed by the Supreme Court of Ohio. About $6,000 was realized on the judgment out of Robert's property in Ohio. On October 11, 1909, Hare brought the present action in the common pleas of Armstrong county, Pennsylvania, on the decree or judgment obtained by him in Ohio, and seeks to recover the balance due thereon. On the trial of the cause the court directed a verdict for the defendant, but subsequently entered judgment non obstante veredicto for the plaintiff. The defendant has taken this appeal. Hare has not administered on O'Brien's estate in Pennsylvania, but on September 1, 1909, letters of administration were issued in Armstrong county to Carl A. O'Brien.

The appellant denies the right of the plaintiff to recover, and contends that sec. 6 of the Act of March 15, 1832, P.L. 135, 1 Purd. 1074, prohibits the plaintiff, a foreign administrator, from suing on the Ohio judgment in this state, and especially as there is an ancillary administrator here; that to allow a recovery would authorize the assets of the decedent to be removed from this state to the injury of our citizens who are creditors, and that the Ohio court did not have jurisdiction over the subject-matter of the action.

At common law, a foreign executor or administrator had no authority as such to bring an action outside the jurisdiction of his appointment. Our act of 1705, 2 Stat. at Large, 195 changed the common law in this respect, and provided that a foreign executor or administrator, producing letters here, could bring an action in any court of this province. The present law on the subject is the sixth section of the Act of March 15, 1832, P.L. 135, 1 Purd. 1074, which re-established the common law, and provides as follows: "No letters testamentary or of administration, or otherwise purporting to authorize any person to intermeddle with the estate of a decedent, which may be granted out of this commonwealth shall confer upon such person any of the powers and authorities possessed by an executor or administrator, under letters granted within this state." This act, it may be observed, is limited in its operation, and in terms, simply prohibits a foreign representative from exercising in Pennsylvania "any of the powers and authorities possessed by an executor or administrator under letters granted within this state." A foreign administrator cannot sue here for choses in action or other assets of the decedent's estate whose situs is in this state. Under the statute, they must be administered by an ancillary administrator, and hence the domiciliary administrator cannot intermeddle with them. What the former may do, the latter cannot do. This is the settled law of the state. In this case, we are not dealing with assets of the decedent within this jurisdiction which can be administered by an ancillary administrator. The present action was brought on a judgment obtained by the plaintiff in Ohio, the domicile of the decedent, on a claim against the defendant who appeared and resisted a recovery. The situs of the judgment was in Ohio, and it was an asset of decedent's estate in Ohio and not in Pennsylvania: Viosca's Est., 197 Pa. 280, 287; Arizona Cattle Co. v. Huber, 4 Ariz. 69; Attorney General v. Bouwens, 4 Mees. & W. 171. As said by WOODWARD, J., in Moore v. Fields, 42 Pa. 467, 472, an action brought here by a foreign administrator on a decree obtained in another state: "That money was never subject to administration in Pennsylvania. It was an administered fund before it was brought here." The suit in Ohio was brought to enforce the payment of a claim for money placed in the hands of the defendant by the decedent in his lifetime and to be subsequently accounted for to the decedent, and was not brought to recover specific securities of the decedent's estate in this jurisdiction in the possession of the defendant, a resident of this state. The debt was merged in the judgment which belonged to the administrator personally, subject to the duty to account to the estate of the decedent in the state of the latter's domicile. He holds the legal title, subject only to his trust as administrator: 1 Freeman on Judgments (4th ed.), sec. 217. He is fixed for the amount of the judgment and can only relieve himself by showing that he exercised reasonable diligence to recover it. It is his duty to pursue the judgment debtor wherever he may be found, if, by doing so, payment may be enforced. The domiciliary administrator may therefore sue in his own name in another state on a judgment recovered by him in his representative character in the state of the domicile: 1 Freeman on Judgments (4th ed.), sec. 217; 2 Wharton, Conflict of Laws (3d ed.), sec. 615 1/2; 18 Cyclopedia of Law, 1239, and cases cited in the notes. The administrator sues as an individual and not in a representative capacity; and, it may be added, that he may bring a transitory action in any state where the defendant may be found and on service of its process the court will acquire jurisdiction regardless of where the cause of action arose: Alley v. Caspari, 80 Me. 234; 6 Am. St. Repr. 178; Fisher v. Fielding, 67 Conn. 91; 52 Am. St. Repr. 270; Mowry v....