Thurber v. Carpenter

• Decision Date: 26 January 1895
• Citation: 18 R.I. 782,31 A. 5
• Parties: THURBER et ux. v. CARPENTER et al.
• Court: Rhode Island Supreme Court

31 A. 5

18 R.I. 782

THURBER et ux.

v. CARPENTER et al.

Supreme Court of Rhode Island.

Jan. 26, 1895.

Bill by C. E. Thurber and wife against Edwin F. Carpenter, administrator, and another, to enjoin the sale of certain real estate under power of sale contained in a mortgage executed to a nonresident by the duly appointed foreign administrator of said nonresident. Decree for respondents.

J. Osfield, Jr., and Henry J. Dubois, for complainants.

James L. Jenks and T. W. Robinson, for respondents.

STINESS, J. This is a bill to enjoin the completion of a sale of real estate in Pawtucket, in this state, under a power of sale contained in a mortgage given by the complainants to William Carpenter, deceased, late of Attleboro, Mass., and also to set aside the mortgage. The respondent Edwin F. Carpenter was duly appointed administrator upon the estate of William Carpenter in Massachusetts, and under the power in the mortgage, which ran to the mortgagee, his executors, administrators, and assigns, he advertised the property for sale at public auction, and sold the same to the respondent Phillips. The preliminary question, whether a foreign administrator can execute such a power in this state, is the one which is now argued to the court. The advertisement of the sale was signed by "Edwin F. Carpenter, Assignee of the Mortgagee," and the complainants urge that he was not an assignee, because there had been no formal assignment of the mortgage to him; and also that, as administrator in another state, he has no standing or power to act as such in this state. In Douglas v. Hennessy, 15 R. I. 272, 3 Atl. 213, 7 Atl. 1, and 10 Atl. 583, it was held that an administrator is an "assign" of his intestate by act of law, if such a construction comports with the character and intent of the instrument, as it certainly does in this case. The proper name having been signed, by one who was in fact an assignee, we do not see that there was need to set out the mode of the assignment, whether by act of the parties or by act of law.

But the question remains, could he, as a foreign administrator, execute the power in this state? There can be no doubt of the rule that an administrator cannot sue, as such, outside of the state where he is appointed; nor of the rule that, as to real estate, the law of the place where it lies is to govern in case of its transfer. Under these rules it has been held that a foreign administrator cannot assign a mortgage where it affects the title to real estate. Cutter v. Davenport, 1 Pick. 81, was a case of this kind which is very often cited. The opinion held that, under the statute common to most of the states, both the land and the debt were to be treated as personal property in the hands of the executor, and that he could dispose of it as if it had been personal estate pledged, but that the statute related only to local, and not to foreign, executors and administrators. It then goes on to say that after foreclosure the land becomes the principal thing, because the debt is then extinguished to the extent of the value of the land, and that an administrator who is appointed in the state could not convey real estate, except as provided by statute. The harmony of these positions is not clearly apparent, but, from other parts of the opinion, and from the cases cited, the real ground of the decision seems to...