Hargrave v. Turner Lumber Co.

• Decision Date: 09 January 1940
• Docket Number: 35536.
• Court: Louisiana Supreme Court
• Parties: HARGRAVE v. TURNER LUMBER CO.

193 So. 648

194 La. 285

HARGRAVE v. TURNER LUMBER CO.

No. 35536.

Supreme Court of Louisiana.

January 9, 1940

Rehearing Denied Feb. 5, 1940.

Appeal from Twenty-Seventh Judicial District Court, Parish of St Landry; Isom J. Guillory, Judge.

Proceeding by Minnie Griffin Hargrave against the Turner Lumber Company in revendication of an interest in land, with a claim for damages for cutting and removing timber, wherein defendant called the St. Landry Timber Company in warranty, and the succession of Charles B. Box was sought to be called in warranty. From a judgment maintaining an exception to the jurisdiction filed by the executors of Charles B. Box deceased, the Brooklyn Cooperage Company appeals.

Affirmed.

Dubuisson & Dubuisson, of Opelousas, for Brooklyn Cooperage Co., warrantee and appellant.

Edward G. Burleigh, of Opelousas, for estate of Charles B. Box, called in warranty, appellee.

ODOM Justice.

The facts and pertinent issues involved in this case are stated as follows by the trial judge:

‘ Charles B. Box died testate at his home in Midnight Humphreys County, Mississippi, on June 19, 1931. In his will he appointed Auvergne Williams, a resident of the State of Tennessee, and Henry Alcus, a resident of the State of Louisiana, as his joint executors. They were confirmed by the chancery court of Humphreys County, Mississippi, and letters testatmentary were issued to them by said Court. The estate has not been closed and they are still functioning as the testamentary executors of Box.

‘ During his lifetime Box sold certain lands situated in St. Landry Parish, Louisiana, with full warranty of title, to Brooklyn Cooperage Company, which, with like warranty, sold the same lands to St. Landry Timber Company, which, with like warranty sold said lands, with other property, to Turner Lumber Company. Among the lands so sold was the S 1/2 of the SW 1/4 of the Section 11, T-3-S, R-5-E. The plaintiff herein, Minnie Griffin Hargrave, claims to be the owner of an undivided one-half interest of said one-half quarter section, and has brought this suit against the defendant, Turner Lumber Company, in revendication thereof together with a claim for damages for cutting and removing the timber which grew on said land. Turner Lumber Company has called St. Landry Timber Company in warranty, St. Landry Timber Company in turn has called Brooklyn Cooperage Company in warranty, and Brooklyn Cooperage Company has sought to call the Succession of Box in warranty. The Succession has been cited through Auvergne Williams and Henry Alcus, testamentary executors, and process has been personally served on Alcus in Orleans Parish, this State. The executors have filed an exception, or plea, to the jurisdiction of the Court ratione personae. As grounds for objecting to the jurisdiction of the court, the Succession sets out:

" That the appointment of the said Henry Alcus as a co-executor of the Estate of Charles B. Box by the Chancery Court of Humphreys County, State of Mississippi, has no legal effect outside of the State of his appointment; ' (Art. IV)

" That the said Henry Alcus, although individually domiciled in the State of Louisiana, has never been and is not presently in this State in his official capacity as executor of said Estate; ' (Art. V)

" The exceptor is a non-resident or foreign estate insofar as the Courts of Louisiana are concerned, and, as such, can not be subjected to the jurisdiction of this Court in this proceeding in personam by the aforesaid service of process.'(Art. VI).'

After thus stating the facts and the issues involved, and after discussing at length the law applicable to such case, the trial judge concluded:

‘ The court is of the opinion that notwithstanding the fact that the executor, Alcus, is a resident of Louisiana and was personally served in this State, yet, since the Succession of Box is a non-resident succession and owns no property in this State and Alcus has not qualified as executor in our courts (or has not been recognized here), the Succession is not legally present in the State, and the court is without jurisdiction to render a personal judgment against it. Service on the executor in the instant case amounts to no more than substituted service on the Succession, and cannot support a personal judgment against it.’

The conclusion reached by the trial judge is correct. In Succession of Box owns no property in the State of Louisiana, and the executors have never been recognized as such by the courts of this state. The Brooklyn Cooperage Company, which purchased the property from Charles B. Box under full warranty of title, prayed that his succession be called in warranty and that it be cited through Williams and Alcus, who were appointed and confirmed as executors by the courts of Mississippi. It prayed that, in case judgment should be rendered against it in any given sum, it in turn have judgment against the Succession of Box for a like sum.

It is not suggested by counsel for appellant that there is any statute of the State of Mississippi authorizing an executor or other succession representative to act in his representative capacity in foreign jurisdictions. We therefore assume that the State of Mississippi has no such statute. In the absence of such statute, the executors of Box were without authority to represent the succession in the State of Louisiana. In Agee v. Brent et al., 132 La. 821, 61 So. 837, it was held that the appointment of an administratrix of an estate in the State of Tennessee conferred upon such administratrix no power to act as such in the State of Louisiana. The court cited in support of its ruling Henderson's Heirs v. Rost, 15 La.Ann. 405; Burbank v. Payne & Harrison, 17 La.Ann. 15, 87 Am.Dec. 513, and Succession of Taylor, 23 La.Ann. 22. In Mason, Administrator, v. Executors of Haller Nutt, 19 La.Ann. 41, this court said:

‘ An administrator of an estate has not authority beyond the limits of the State that appoints him.

‘ He can neither administer the property of the estate situated in another State, nor collect debts therein owing to the estate.(Schneller v. Vance) 8 La. [506] 508 (28 Am.Dec. 140). (Burbank v. Payne & Harrison) 17 La.Ann. 15 (87 Am.Dec. 513).

‘ He must be confirmed in his administration by the courts of the State in which the property is situated or the debts are owing, before he can administer the property or sue therein for the debts.’

While Alcus, one of the executors of the estate of Charles B. Box, is present in the State of Louisiana, he is present here as an individual, but is not present in his official capacity as executor. It is well settled that an executor as an individual and as an official is, in the eyes of the law, two separate and distinct persons. McMaster v. Gould, 240 N.Y. 379, 148 N.E. 556, 40 A.L.R. 792; Helme v. Buckelew, 229 N.Y. 363, 128 N.E. 216. Alcus was cited in his representative capacity, but in that capacity he is regarded in law as a resident of the State of Mississippi, where he was appointed, confirmed, and where letters testamentary were issued to him. Therefore, for the purposes of the instant suit, he must be regarded as a foreign executor.

The rule as regards the bringing of suits against foreign administrators and executors in a court outside the state issuing his letters has been stated in Section 512, Restantement of the Law of Conflict of Laws, at page 617, as follows:

‘ No action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent.’

In commenting upon the statement quoted above, the writers of the Restatement of the Law stated that the rationable to be derived from the above quoted statement was this:

‘ The administrator holds the assets of...