Laughlin v. Solomon

• Decision Date: 22 February 1897
• Docket Number: 467
• Citation: 36 A. 704,180 Pa. 177
• Parties: Robert Laughlin, Charles A. McManus and William King, Trading as Laughlin & McManus, to the use of John S. Hopkins, Receiver, Appellants, v. William Solomon, Executor of the Last Will and Testament of Isaac Solomon, deceased
• Court: Pennsylvania Supreme Court

36 A. 704

180 Pa. 177

Robert Laughlin, Charles A. McManus and William King, Trading as Laughlin & McManus, to the use of John S. Hopkins, Receiver, Appellants, v. William Solomon, Executor of the Last Will and Testament of Isaac Solomon, deceased

No. 467

Supreme Court of Pennsylvania

February 22, 1897

Argued January 12, 1897

Appeal, No. 467, Jan. T., 1896, by plaintiff from judgment of C.P. No. 3, Phila. Co., March T., 1896, No. 386, sustaining demurrer to statement. Reversed.

Assumpsit on promissory notes.

The defendant demurred to the statement:

1. Because the aforesaid receiver has no jurisdiction to sue for or recover accounts outside of the jurisdiction of the state of Pennsylvania, and the said executor was appointed by and subject to the courts of the state of Delaware, and there is no averment of an appointment of the said executor as ancillary administrator in the state of Pennsylvania, or any averment of any right to administer in Pennsylvania, but is subject to the courts of the state of Delaware, and any claim against the said estate must be sued out in said state, or service obtained upon some properly authorized administrator in Pennsylvania.

The court sustained the demurrer. McMICHAEL, J. filing the opinion of the court.

Error assigned was in sustaining the demurrer.

Judgment reversed and record remitted for further proceedings.

Thomas R. Elcock, with him Bernard Gilpin, for appellant. -- The case now under consideration comes before the court on a demurrer to the statement, so that it is admitted that the defendant is a resident of Philadelphia county. Can it therefore be assumed by the court at this stage of the progress of the case that the executor has not assets of the estate in this jurisdiction which were either here when his testator died or brought here by the executor since; in either of which cases there can be no doubt of the right of the plaintiff to maintain his action against the executor. It is also true that by reason of the permanent and fixed character of the executor's citizenship and domicile in Philadelphia the personal property of the estate acquires a situs here, too. In case of Lightfoot v. Bickley, 2 Rawle, 431, Mr. Chief Justice GIBSON said, as was held in Dowdale's Case, 6 Rep. 46, "An administrator may be sued in a foreign country, because the action transitory follows his person, and the jury may inquire of assets in his hands at home or abroad."

The weight of authority in Pennsylvania is overwhelmingly in favor of the right of its citizens to sue an executor of a person dying in another state, provided the executor dies within the jurisdiction of the court in which the suit is brought: Swearingen v. Pendleton, 4 S. & R. 389; Evans v. Tatem, 9 S. & R. 252.

No paper-book or argument was offered for appellee.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The general rule as stated in the text books is that an executor can only sue or be sued in his own forum: Am. & Eng. Ency, of Law, title Conflict of Laws, XIV. c. But in Pennsylvania the rule cannot be stated so broadly. Where any party invokes the assistance of a court, claiming to act en autre droit, he must show such a right as will be recognized by the forum, and as an executor or administrator's right to act for his decedent depends on his representative character conferred by letters testamentary, these latter cannot of course give authority beyond the jurisdiction of the officer granting them. Hence the deduction is plain that a foreign executor cannot sue in another tribunal by virtue of his foreign letters alone. But it is quite another step to say that he cannot be sued there.

The technical ground for refusing a right of action dependent solely on foreign letters testamentary is that it would be giving extra territorial force to the judgment or decree of a foreign court or officer, and an interference with the jurisdiction of our own courts. But the more practical ground is that of public policy to prevent assets from being taken out of the state to the possible injury of our own citizens, creditors, who might thus be forced to go to a foreign tribunal to obtain satisfaction of their claims. This is the ground on which it was put by Chief Justice GIBSON in Mothland v. Wireman, 3 P. & W. 185, where he said that such a rule was "indispensable to the protection of the domestic creditors." And that this is the ground on which the rule is enforced is shown by the cases on ancillary administration, which uniformly hold that the duty of the ancillary administrator here is to account to domestic creditors, and, after they are satisfied, to pay over the balance to the primary or domiciliary administrator: Miller's Estate, 3 R. 312; Parker's Appeal, 61 Pa. 478; Barry's App., 88 Pa.131. Some cases hold that the ancillary administrator may distribute to foreign creditors who present their claims here, or where there are no foreign creditors, even to legatees: Dent's App., 22 Pa. 514; Del Valle's App., 3 Cent. Rep. 163; Welles's Estate, 161 Pa. 218. But these do not affect the general principle that after domestic claimants are protected, our courts will recognize the representative authority of a foreign administrator by turning over to him any surplus that may remain in this jurisdiction.

Pennsylvania has always been liberal in comity to other states. By the act of 1705 concerning the probate of wills, 2 Stat. at large, ch. 133, pp. 195-197, all letters of administration granted out of the province, being produced here under the seals of the courts or offices granting them, were declared as sufficient to enable the executors or administrators to bring actions in any court as if said letters had been granted here; and no person proving a will or taking out letters of administration in any county of the province, was obliged to do so again in any other county, "wherever such testator's or intestate's estates may be." Following this act it was held in M'Cullough v. Young, 1 Bin. 63, that an administration granted in Maryland would enable the administrator to sue here, and this was followed in other cases noticed more particularly hereafter, though there is a notable absence of any reference to the statute, and the decisions are put on the ground of comity alone. In Brodie v. Bickley, 2 Rawle, 431, however, the statute was apparently overlooked entirely, GIBSON, C.J., saying "the authority of an administrator, under letters granted in a sister state, to meddle with the assets here, is an anomaly, produced by an unexampled spirit of comity in the courts of this state which will probably be attended with perplexity and confusion." The act of March 15, 1832, changed the law, and withdrew the authority of parties acting under foreign letters. But that act was held in Moore v. Fields, 42 Pa. 467, not to apply to a suit by a foreign administrator for assets which had never been subject to administration in this...