This action was commenced by Eliza Kenner, Sept. 3, 1890, against the defendant Syme, upon two promissory notes made Dec. 21, 1892, in New Orleans, Louisiana, each for $1,500, by Allen and Syme, copartners, then residents in New Orleans, to their own order, one payable Aug. 1, 1885, and the other Sept. 1, 1885, and indorsed by the makers to Eliza Kenner, who then resided and continued to reside until her death in Mobile, Alabama. The notes were the last of a series given in payment of the rent of a rice plantation in Louisiana, which Mrs. Kenner, at the time of their date, leased to Allen and Syme for three years ending December 31, 1885. The lease contained a provision that if the lessees should be deprived of the use of the premises by and through any causes beyond their control, or any fortuitous event, they should be allowed a reduction of the amount pro tanto.
Allen and Syme entered into possession of the premises and at the end of two years failed, and their creditors took possession of their movable property on the plantation, with the result that they did not operate the plantation the third year. We agree with the courts below that Allen and Syme must be held to have brought this misfortune upon themselves by their own improvidence, and that it could not be properly called a "fortuitous event," which the Civil Code of Louisiana defines as "that which happens by a cause which we cannot resist."
Eliza Kenner died in the state of Virginia in July, 1891, but her domicile was in Mobile, in the state of Alabama. This action was revived in the name of the present plaintiff in October, 1896, ancillary letters testamentary having in September, 1896, been issued to him by the surrogate of the county of New York. The defendant, by his answer and upon the trial, challenged the jurisdiction of the surrogate of the county of New York to issue the ancillary letters, the *Page 517 ground of the challenge being that such letters were issued upon the record of the probate of Mrs. Kenner's will, and of the issue of letters testamentary thereon by a court in the state of Louisiana, where she did not live, where she did not die, and where her will was not executed, instead of by a court in the state of Alabama, in which she was domiciled at the time of her death, and in which she executed her will.
Section 2695 of the Code of Civil Procedure limits the power of the surrogate to grant ancillary letters upon a foreign probate in the case of a will of personal property made by a person who resided in some other state or territory of the Union at the time of the execution thereof, or at the time of his death, to the case of probate in the state or territory where the will was executed, or the testator resided at the time of his death.
In August, 1896, the present plaintiff, M. Temple Taylor, by his attorney, presented a petition to the surrogate of the county of New York for ancillary letters testamentary, ostensibly under section 2695 of the Code of Civil Procedure. The petition stated correctly the facts, except that it stated that the will was executed in Louisiana, which was not true. Accompanying the petition was a duly certified transcript of the record of the probate of the will in the court in Louisiana, and of letters testamentary issued to the plaintiff, with a copy of the will, and proofs including a statement of the testimony of the subscribing witnesses, substantially as required by sections 2695, 2698, 2704. From this transcript it distinctly appeared that the will of Mrs. Kenner was executed in the state of Alabama, and that she resided in that state at the time of her death, that is, had her domicile there. It thereby appeared that the case was not one in which the surrogate had jurisdiction to issue ancillary letters upon the transcript of the record of the probate and proceedings produced before him from the court in Louisiana. The surrogate was probably diverted from examining the record before him by the statement in the petition that the will was executed in Louisiana. But the office of the petition was to institute the proceeding *Page 518 and bring the Louisiana record into court for examination by the surrogate. Manifestly, if the petition contradicted the record upon a jurisdictional fact, the record should prevail, since one of the purposes of the provisions of the Code of Civil Procedure in this behalf is to give full faith and credit in proper cases to judicial proceedings of a sister state. No mistake in the petition would create the record of a probate in Alabama or change the facts presented by the Louisiana record that the testatrix executed her will in Alabama and was domiciled there at her death. The record showed that the surrogate had no jurisdiction. (Riggs v. Cragg, 89 N.Y. 479; Matter ofHawley, 104 N.Y. 250; Morrow v. Freeman, 61 N.Y. 515;Matter of Catholic Protectory, 77 N.Y. 342.)
It is suggested that, however this may be, the plaintiff was duly appointed executor in Louisiana, and thus became the owner of the assets of the deceased. This position would have more force if Louisiana had been the domicile of the testatrix, since the law of the domicile governs the succession of personal property. The rule still remains that a foreign executor or administrator cannot sue as such in this state, although in cases where there are no creditors of the decedent within the state the reason of the rule has little force. (Parsons v. Lyman,20 N.Y. 103; Petersen v. Chemical Bank, 32 N.Y. 21; TorontoGen. Trust Co. v. Chicago, B. Q.R.R. Co., 123 N.Y. 37.) The administration in the state of Louisiana, however, was under the Revised Code of that state as follows:
"Art. 1220. The succession of persons domiciled out of the state of Louisiana and leaving property in this state at their demise, shall be opened and administered upon as are those of citizens of the state, and the judge before whom such succession shall be opened shall proceed to the appointment or confirmation of the officer to administer it under the name and in the manner pointed out by existing laws."
"Art. 1668 (1681). Testaments made in foreign countries and other states of the Union cannot be carried into effect on *Page 519 property in this state without being registered in the court within the jurisdiction of which the property is situated, and the execution thereof ordered by the judge."
Thus, the professed purpose of the administration in Louisiana was that the will of the testatrix might "be carried into effect on property in this (that) state." It did not purport to extend to the property of the testatrix in the state of her domicile or in any other state, or to be a universal administration, but to cover the administration in that state, like the ancillary administration sought in this state, the ancillary being supplemental to the principal administration, and, except as to domestic creditors, subordinate to it. (See sec. 2700, Code C.P.)
It is said that this is a collateral attack, but as it is a question of the jurisdiction, the attack can be made collaterally. The defendant had no interest in the proceeding or standing to challenge it until the plaintiff asserted against him his right to represent Mrs. Kenner. He could do no more than raise the issue at his first opportunity.
The defendant also urges the Statute of Limitations of Louisiana as a defense. The Appellate Division held that it was not well taken, because the defendant took up his residence in this state before the expiration of five years after the maturity of the note. The question is an interesting one, but it is not necessary for us to decide it.
It follows that the plaintiff did not show his right to maintain this action.
The judgment must be reversed, with costs; new trial granted, costs to abide the event.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.
Judgment reversed, etc. *Page 520