Though the cause of action created in Virginia is not penal in its nature and its enforcement does not offend our sense of justice or menace the public welfare, it by no means follows that the cause of action is enforceable against the executors of the wrongdoer. True, the foreign statute provides that such a cause of action shall not abate by the death of the wrongdoer, and the general rule is that "whether a claim for damages for a wrong survives the death of the wrongdoer or of the injured person is determined by the law of the place of wrong." (Proposed Final Draft No. 3 of the Restatement of the Law of Conflict of Laws by the American Law Institute, § 426.) (Cf. Orr v. Ahern,107 Conn. 174; Friedman v. Greenberg, 110 N.J.L. 462.) The question, however, is not whether the cause of action created by the laws of the State of Virginia survives the death of the wrongdoer, but whether the law of this State permits the representative of the deceased wrongdoer to be sued on such a claim.
On that question the comment upon the general rule contained in the proposed draft is illuminating. "If a claim for damages for injury survives by the law of the place of wrong, recovery may be had upon it by or against the representative of the deceased party, provided the law of the state of suit permits the representative of the deceased party to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had."
This State has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It may even be regarded as a vested right against the wrongdoer. There can, *Page 383 however, be no vested right to enforce a claim for damages out of the property of a deceased resident of this State unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. Indeed, the Legislature has expressly provided that "For wrongs done to the property rights or interests of another for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-seven-a of the General Construction Law, except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death." (Decedent Estate Law [Cons. Laws, ch. 13], § 120.) It is not without significance that this provision has been inserted in the Decedent Estate Law intended to govern the devolution and administration of property within this State belonging to residents of this State. The Legislature has not merely failed to provide, as many other States have done, that causes of action for personal injury shall survive the death of the wrongdoer, but the Legislature, though it has affirmatively provided for the prosecution of some causes of action against the executors and administrators of a wrongdoer after his death, has expressly refused to sanction causes of action for personal injury against such executors or administrators. Where neither common law nor a statute permits the bringing of an action against executors or administrators of a *Page 384 deceased resident, the courts of this State are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the State of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each State may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister States to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no State has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors or administrators appointed by the courts of another State. Here comity does not determine the jurisdiction of the courts of the decedent's domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.
The result would not, however, I think, be different if the question were really one of comity, for comity depends upon the public policy of the State, and the Legislature has declared the public policy of this State when it provided that no action for personal injuries may be maintained against the executors or administrators of a decedent who resided in this State. A rule that would permit the depletion of the estate of a deceased resident through enforcement of claims for damages for personal injuries sustained outside of the State, where the Legislature has denied such remedy for injuries within the State, seems to me unreasonable and sustained by no *Page 385 authority outside of the Minnesota cases cited by Judge HUBBS. There is nothing said or decided in the case of Loucks v.Standard Oil Co. (224 N.Y. 99) which supports such holding.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The second certified question should be answered in the negative and the other questions not answered.