Brown v. Brown

The Vice-Chancellor :

If the court of chancery has jurisdiction at all of this bill, it may be exercised by the vice-chancellor of the first circuit: some portion of the property in question being situated within the circuit.

But the principal ground of the demurrer is, that the defendants, being foreign executors, are not liable to be sued or called to an account in the courts of law or equity of this state.

The will was made in Rhode Island, where the testator resided, where the bulk of his estate is situated, where the will has been proved and letters testamentary granted, and where the executors reside. Some funds of the testator had been invested by him in stocks in the city of New York; and remained so invested as well at the period of his death as at the time of the filing of this bill. The complainant, a resident of New York, is one of the residuary devisees of the estate ; and he files this bill for the purpose of calling the defendants to an account in relation to the whole estate and of having his residuary share ascertained and secured or paid to him and of preventing, in the meantime, the funds invested here from being transferred or removed out of this jurisdiction.

The defendants have not qualified as executors under the laws of this state, not having proved the will or taken out any letters of administration here. As a general rule, suits cannot be brought by or against foreign executors or administrators : that is, they cannot sue or be sued as such by virtue of an appointment or authority derived from the laws of another state: Story’s Con. of Laws, § 515.

It is true, that, previous to our revised statutes, an executor or administrator coming from abroad into this state and here collecting property or money of the decedent, without first taking out letters under the laws of the state, might be sued as an executor de son tort; and such was the case of Campbell v. Tousey, 7 Cow. 64. But the revised statutes have abolished this remedy by 'action against any person as executor in his own wrong, (2 R. S. 449, § 17,) and made ample provision for a legally constituted executor or administrator, (Ib. 75, § 31,) so that a suit similar to that of Campbell v. Tousey could not now be sustained at law.

True, also, there are cases in which the court of chancery will assume jurisdiction over foreign executors and administrators at the instance of creditors, legatees or next of kin; still, these must be special cases and where, but for the interference of this court, there would be manifestly a failure of justice or only a hopeless remedy elsewhere. Instances are pointed out by the chancellor in McNamara v. Dwyer, 7 Paige’s C. R. 239 and in which case he deemed himself called upon to assume jurisdiction over a foreign administrator who had left his own country and come here, bringing with him the property of which he was administrator and was engaged in wrongfully applying it to his own use.

The bill in question does not present such a case, nor attempt to show that the complainant cannot have an adequate remedy in the courts of the State of Rhode Island. This complainant is not a creditor seeking payment of a debt contracted with him in the State of New York and upon the faith of funds or property placed within this jurisdiction and which it might be unjust to withdraw from his reach. He is a volunteer claiming the gift of a residue of a large estate under a will made in the State of Rhode Island, where the bulk of the property is situated and where the persons entrusted by the testator with its management reside and where the testator, doubtless, contemplated that the affairs of his estate should be closed and settled. The will was made with reference to the laws of the testator’s domicil; and by those laws are the affairs of his estate to be administered, the accounts settled and the residue ascertained and distributed. The complainant, in taking his share, must be left, at all events, to the operation of the lex loci of the testator’s domicil in regard to his rights; and in my opinion he must also be left to pursue his remedy according to the lex fori of Rhode Island, unless, indeed, he could show, which he has not done," that by some act of the defendants, in removing their persons or the property from that jurisdiction, any remedy, which he might undertake to pursue there, would be fruitless.

The demurrer must be allowed ; and the bill dismissed, with costs.