Leake v. Gilchrist

• Decision Date: 30 June 1829
• Citation: 13 N.C. 73
• Court: North Carolina Supreme Court
• Parties: FRANCIS T. LEAKE v. ANGUS GILCHRIST.

13 N.C. 73

FRANCIS T. LEAKE

v.ANGUS GILCHRIST.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1829

FROM RICHMOND.

1. Debts due by specialty follow the person of the obligee, and are assets where he has a domicile.

2. Where a decedent has no fixed residence, administration on his estate is properly granted by the courts of the State where he died.

3. An administrator appointed in another State has no right to sue in the courts of this, but where he has the possession of a bond due his intestate, and assigns it, his assignee can maintain an action in his own name.

4. Principles of the lex fori and lex domicilii discussed by TOOMER, J.

DEBT upon a single bond, made by the defendant, payable to one Daniel McKennon, and assigned to the plaintiff by one John McLeod, the administrator of the obligee.

The defendant, besides the pleas of payment and a set-off, pleaded "that the writing obligatory declared on is of right the property of Archibald Gilchrist and Polly McKennon, to whom letters of administration on the estate of Daniel McKennon, the obligee, issued from the Court of Common Pleas, etc., of Richmond County."

On the trial it appeared that McKennon, the obligee, died in Marion District, South Carolina, in February, 1825; that in March following letters of administration on his estate were issued by the ordinary of that district to John McLeod, who, in September, 1825, assigned the bond in suit to the plaintiff; that in April, 1825, letters of administration upon the estate of McKennon, the obligee, issued to Archibald Gilchrist and Polly McKennon, from the county court of Richmond; that the defendant at the date of the bond, and ever since, had resided in Richmond county, where it was executed, and that Daniel McKennon had at that time, up to the period of his dath, no fixed habitation, but

that he resided some times in this State and some times in South Carolina.

His Honor, Judge DANIEL, instructed the jury that the plea must be taken to be a denial of the validity of the assignment,and that the administrator appointed by the ordinary in South Carolina could not make a legal assignment of the bond, so as to enable the assignee to maintain a suit in the courts of this State.

In submission to this opinion of his Honor the plaintiff suffered a non-suit, and appealed to this Court.

TOOMER, J. Real property is governed by the law of the country where the land lies, personal estate by the law of the country where the owner has his domicil (2 Ves. & Bea., 131). The succession to the personal property of an intestate is regulated by the law of that place which was his domicil at the time of his death. For that purpose there can be but one domicil (Somerville v. Somerville, 5 Ves., 750). These are settled principles of international jurisprudence. They are founded on public policy, and are conducive to publicconvenience (2 Kent Com., 344). To ascertain, then, the right of succession to the personal estate of an intestate it is necessary to inquire where was his domicil at the period of his decease. If it were in South Carolina the laws of that State must furnish rules for the succession to and the distribution of his personal estate. For these purposes there can be but one domicil; although there is some times difficulty in ascertaining that domicil, when the deceased has had more than one place of residence, at each of which he continued occasionally to reside to the period of his death.

The statement made by the presiding Judge shows that the intestate had no fixed residence, but resided occasionally in South Carolina and occasionally in this State, and that he died in Marion District, in South Carolina, where McLeod, the assignor, was duly constituted administrator of his estate. If the intestate had a fixed domicil the laws of that country must control the right of succession to his personal estate, without regard to the laws of the place where he may have casually been at the moment of his decease. The intestate being at a place, and dying there, is prima facie evidence that he was domiciled there; and the presumption is much strengthened when it appears that he had no domicil of a more permanent or fixed character than that at which he died. The circumstance of the intestate's death occurring in South

Carolina, if it were not his home, might be explained and the presumption rebutted. But unexplained, and in the absence of other testimony, we must take that place to have been his domicil, at the time of his death; and the laws of that State will furnish rules for the succession to and the distribution of his personal estate. The administrator appointed in South Carolina would be entitled to all the effects of the deceased in that State, including the bond, to be distributed according to the laws of the intestate's domicil. The deceased dying in South Carolina, and having the specialty there, he who obtained possession of it would disregard the claims of an administrator appointed in this State, and would only notice the title of an administrator appointed there.

By the laws of England debts due by specialty are deemed the goods of the intestate in that diocese where the securities happen to be at the time of his death. Debts due by simple contract follow the person of the debtor, and are esteemed goods in that diocese where the debtor resides at the time of the creditor's death. Bac. Abr., Title Executors, E. 2; Com. Dig., B. 4; 3 Salk., 70, 164; Cro. Eliz., 472. "An administrator appointed in Ireland released a bond debt due to the intestate from a person in Ireland; but the bond being in England at the death of the intestate, an administrator appointed in England maintained an action there on the same bond against the obligor, because the administrator appointed in Ireland had no control of the debt, and no authority to release it." Dyer 305; 11 Mass., 268. "Why is this principle not applicable in our country? Why should not a specialty belonging to the intestate be assets in that State where it was at the time of the intestate's death ? And why should it not become the property of the administrator duly appointed in that State? It is to be inferred from the statement of this case that the bond which is the subject-matter of this controversy was in South Carolina, in the possession of the intestate, at the time of his decease.

If South Carolina were the place of the intestate's domicil at the period of his death, and the specialty was also there at that time, administration duly granted by competent authority in that State would give the administrator right to take possession of the specialty, and he would acquire good title thereto. Having acquired possession of the bond he could receive payment and give an acquittance, or he could release the debt and discharge the obligor. Doolittle v. Lewis, 7 Johns. Ch., 49. Authority to collect the debt and discharge the obligor certainly implies power to assign the obligation, if it be negotiable. By the principles of universal law he who has the title to

property may sell and dispose of it; and he who obtains it from the owner may assert and exercise the rights of ownership.

As the plaintiff claims under the assignment of McLeod, the administrator of the obligee, it is necessary for the plaintiff to show the title of the assignor. To establish this fact the domicil of the obligee and the place where the bond was at the time of his death were subjects of inquiry. The testimony was not full on these points; but the plaintiff may have omitted to introduce more evidence to prove these facts, by discovering that the presiding judge thought the plaintiff's case defective on another and distinct ground.

It was admitted on the trial that McLeod, the assignor, was duly constituted administrator of the deceased obligee, in March, 1825, in Marion District in South Carolina, where the intestate had died in the preceding month of February; and that the bond had been executed in this State in October, 1824, and the assignment was made in September, 1825, but it does not appear at that place. Nor do I think the place where the assignment was made material; if the specialty were negotiable, and the administrator had title thereto, it was assignable by him in either State.

The law of the place where the contract was made is the law of the contract; by which it is to be expounded, and by which its incidents and properties are to be ascertained. Harrison v. Sterry, 5 Cranch, 289, 298, 302. This specialty was executed in our State. By our laws it is negotiable, and all the rights and interests of the obligee can be transferred by endorsement. If, then, the specialty were in South Carolina at the time of the intestate's death, and that was the place of his domicil, and it thus became the property of McLeod, the administrator, and being negotiable by the laws of the placewhere it was made, like promissory notes, and having been regularly transferred by endorsement to the plaintiff, the property is vested in him.

But it is correctly said that the administrator appointed in South Carolina can not bring an action in his representative character in our Courts. Administration granted in another State gives no authority to sue here. Morrell v. Dickey, 1 Johns. Ch., 156; Anon. 2 N. C., 355; Butts v. Price, 1 N. C., 289; 1 Cranch, 259; 3 P. Wins., 369. Hence it is contended, that although the specialty rightfully came to the hands of the assignor, was his property, was negotiable, and was duly transferred to the plaintiff, yet the assignee claiming under the assignment could claim no other right or interest than that enjoyed by the...