Moore v. Jordan

• Decision Date: 02 March 1887
• Parties: HARRIET MOORE, as Administratrix of the Estate of Horace Moore, deceased, v. JOHN S. JORDAN, et al
• Court: Kansas Supreme Court

13 P. 337

36 Kan. 271

HARRIET MOORE, as Administratrix of the Estate of Horace Moore, deceased, v. JOHN S. JORDAN, et al

Supreme Court of Kansas

March 2, 1887

Error from Shawnee District Court.

ACTION by Harriet Moore, as administratrix of the estate of Horace Moore, deceased, against John S. Jordan and three others, to recover upon five promissory notes, and to foreclose a certain real-estate mortgage which had been given by defendants Jordan and wife to secure the payment thereof. Trial at the April Term, 1884, and judgment for defendants. The plaintiff brings the case here. The material facts appear in the opinion.

Judgment affirmed.

Case & Moss, for plaintiff in error.

G. C Clemens, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action to recover a debt evidenced by five promissory notes executed in favor of Horace Moore by the defendants John S. Jordan and Helen J. Jordan, and to foreclose a mortgage which had been given by these defendants on lands in Shawnee county, Kansas. The action was brought by Harriet Moore, as administratrix of the estate of Horace Moore, deceased, and she alleged that she was duly appointed and qualified under the laws of the state of Colorado. It was alleged that subsequent to the execution of the mortgage, John S. and Helen J. Jordan had conveyed their interest in the premises to the defendant, M. G. Coughlin. The defendants answered that they were residents of the state of Kansas, and have been domiciled in Kansas since and long prior to the death of Horace Moore. Among other defenses they allege that at the time of his decease Horace Moore was a resident of, and had his home and domicile in the state of Illinois, and was only temporarily sojourning in Colorado at the time of his death; that the notes and mortgage which came into the possession of the plaintiff are not, and never have been, assets in her hands; that according to law she has no interest in nor title to the notes and mortgage, nor to the proceeds thereof; no power to collect or receive anything on account of them, or to release or acknowledge satisfaction thereof, and no right or authority to bring or maintain an action thereon in this state against the defendants.

It is further alleged that soon after the decease of Horace Moore, administration of his estate was duly granted to Newell H. Moore, in the county of Kendall in the state of Illinois, where the intestate resided at the time of his decease; and that Newell H. Moore qualified as administrator, and continues in the discharge of his duties as such; and that the defendants have fully settled with him all matters between said defendants and the estate, including the notes and mortgage. The written receipt of Newell H. Moore is set out in the answer.

The controverted question of fact to which the greater part of the evidence was directed, relates to the domicile of Horace Moore at the time of his death. Upon this question the jury found specially that at and immediately prior to the time of his death, his residence and domicile were in Illinois, and not in Colorado. He had resided in Illinois for a great many years, but shortly before his death he made several visits to Colorado with his son, and for the benefit of his son's health. In company with his son he went to Colorado in February, 1879, and remained there until October of the same year, when he died intestate. He had acquired considerable property, the greater part of which was left in Illinois, but he took with him to Colorado the notes and mortgage in controversy, where they were found at the time of his death. The testimony regarding his domicile was conflicting, and its sufficiency is challenged by the plaintiff in error; but the finding is not without support, and as the question was fairly submitted to the jury, we must regard the finding as conclusive here. Letters of administration were issued by the county court of Arapahoe county, Colorado, to the plaintiff soon after the death of the intestate, authorizing her to administer upon the estate found in Colorado. Soon afterward letters of administration were granted to Newell H. Moore, in Illinois, and it appears that both of these administrators, the one in Colorado and the other in Illinois, qualified as required by the laws of these states respectively, and entered upon the discharge of their official duties. The notes and mortgage came into the possession of the plaintiff as administratrix in Denver, Colorado, and were never in the possession of the opposing administration. What then, is the legal effect of these facts? The court in its charge ruled, and we think correctly, that the notes and mortgage were not assets in the hands of the plaintiff, and that she could not maintain an action thereon under the authority conferred by the laws of Colorado. The right of the defendants to avail themselves of this defense, though questioned by the plaintiff, cannot be doubted. In an action brought by a foreign administrator in Wisconsin, upon a bond secured by mortgage on real estate situate there, the defendants set up as a defense that the plaintiff had no right to maintain the action, but that an administrator had been appointed under the laws of' Wisconsin, which appointment vested in the latter all rights of action upon the bond. The supreme court of the United States held that the defense was good, saying:

"The bond in suit was bona notabilia in Wisconsin, and a plea that the subject of the action constituting such bona notabilia y was, on the death of the decedent, in another jurisdiction than the one which appointed the administrator suing as plaintiff, has always been a good answer to the action. It is an averment of facts which in law excludes all right to or control over the property in that state by the foreign administrator." (Noonan v. Bradley, 9 Wall. 394; Ins. Co. v. Lewis, 97 U.S. 682.)

The mere fact that the notes and mortgage chanced to be in Colorado does not give plaintiff title to them, nor make them assets in her hands. Prior to the death of the intestate, the notes had no fixed situs, but followed the domicile of the owner, wherever that might be. After his death they lost their transitory character and became local. The principal administration to which all others are subordinate is at the domicile of the intestate, and the universally recognized rule of law is that the succession to and distribution of personal estate is governed by the law of the place where the intestate was domiciled at the time of his death.

"The original administrator, therefore, with letters taken out at the place of the domicile, is invested with the title to all the personal property of the deceased, for the purpose of collecting the effects of the estate, paying the debts, and making distribution of the residue according to the law of the place or directions of the will, as the case may be." (Wilkins v. Ellett, 9 Wall. 740; Story on Conflict of Laws, § 379.)

However the letters of administration confer no authority beyond the limits of the state granting them. The title acquired by the administrator of the domicile is but a fiduciary one, and can only be enforced in another state by permission of its laws. No state is required under any rule to surrender the effects or debts due to an intestate domiciled elsewhere to the prejudice and injury of its own citizens. Although the title and...