(dissenting):
While conceding, as we must, that the judgment in its present shape cannot stand, I regret that I cannot agree with the majority of the court in the final disposition which is to be made of this case. I do not think that the charges of fraud or collusion are fairly to be sustained by the evidence. It may jn-operly be inferred, as I think, that this property was brought into this State merely for purposes of convenience,' and that when that was done, Mrs. Collins had no other intention than to subject herself to the jurisdiction of the courts of New Jersey for the adjudication of her rights. She says, and there seems to be no reason to doubt the truth of what she says, that she renounced as executor, and that. Steuart ivas appointed and qualified because of the inconvenience which would result if she, as executrix, attempted to pursue her claim against the estate. When Steuart was appointed, these securities were within, this State, certainly by no act of his. It cannot be said that because he was willing that this claim, which was manifestly just, should be adjudicated upon by the courts of this State, he was in collusion with the plaintiff, or willing to defraud the estate of which, he was executor.
Disregarding the charges of fraud and collusion, it seems to me the case is a very simple one. The objection to maintaining the .action arises from the fact that the estate as such is not represented. Without discussing the question whether it is necessary that the *288estate should be represented, it seems to me that that, objection is not an insuperable one, for which the complaint should be dismissed. No objection' that there was á defect of parties was taken by the defendant. So far ■ as he is concerned, therefore, he has. waived it. (Code Civ. Proc. §§488,498,499.) It can only be taken advantage of when it is apparent that a complete adjudication as to the rights of the parties require that other persons should be brought in. The law says that when that appears, the court must require other parties to be brought in if that can be done. , (Code Civ. Proc. § 452.) That it can be done in this case I have no doubt. - It is'quite true that there is not now in this State an executor of this estate appointed by our own courts. But the plaintiff, who is a creditor of the estate, and a large quantity of the assets of the estate, are within our jurisdiction. It is clearly within the power of the courts upon the petition of a creditor to appoint an ancillary administrator who shall take possession of these assets and hold them subject to the jurisdiction of this court until the claims of the domestic creditors shall be adjudicated. (Dawes v. Head, 3 Pick. 127, 145 ; Harvey v. Richards, 1 Mason, 381; Story. Confl. Laws, 715, et seq.) This mode of proceeding is recognized as proper for the protection of our own citizens, and is frequently pursued. I think an opportunity should be given in this case for the plaintiff to follow it.
The principle laid down by the majority of the court is far reaching, and in my judgment may be productive of great inconvenience. It cannot be limited merely because of the difficulty of applying it. It must control whether the property be in New Jersey or in India; wherever a civilized nation has courts for the adjudication of the rights of property. Within the principle which it is. sought to establish, in this case, if the executor has been appointed by the courts of New Zealand, we would have iio discretion, but must dismiss the complaint and remit our own citizen to an application to the courts of that distant country to obtain those rights which the judicial machinery of this State is perfectly competent to give. I think that no such rule should be adopted unless it is absolutely necessary, and it does not seem to me that that necessity exists in view of the facts of this case.
For that reason .I must dissent from so much of the judgment as dismisses the complaint. • . '