Grand Trunk Western Railroad v. Kaplansky

Btjtzel, J. The order dismissing the' bill of complaint should be affirmed. There is much'to be said against''the appointment of .nonresidents as well as residents who are citizens of foreign nations, as administrators of estates. It is quite obvious that the *137 appointment of such persons as a rule is sought solely for the purpose of bringing litigation on behalf of the estate within the jurisdiction of the Federal court. While the law does not expressly forbid the appointment of a nonresident as an administrator, the probate court may nevertheless order the removal of an administrator for nonresidence. 3 Comp. Laws 1929, § 15595. Nonresidence is ground for the exercise of discretion both as to the appointment and the removal of an executor named in the will. Breen v. Kehoe, 142 Mich. 58 (1 L. R. A. [N. S.] 349, 113 Am. St. Rep. 558); 3 Comp. Laws 1929, § 15573. One textbook writer has gone so far as to state that the conclusion to be drawn from the statute is that nonresidents are incompetent to be originally appointed as administrators. Breen v. Kehoe, supra. In the instant case both decedents were residents of this State. In the one case the widow, a resident of this State, petitioned the court to appoint a citizen of the Union of Socialist Soviet Eepublics (Eussia) as administratrix; in the other, the parents of the decedent, being the next of kin and residents of this State, petitioned for the appointment of a citizen of Great Britain as administratrix. Administration was issued as requested. The appointees, though aliens, are residents of this State. We feel that there is an impropriety in the appointment of citizens of foreign governments as officers of the law. An administrator should be amenable to process at all times. An alien may reside here only temporarily. We frown upon such an appointment although the law does not directly forbid it. Such practice, however, can be avoided by the probate judge in the exercise of his discretion or it can be outlawed by legislation. The latter we cannot direct. *138 I do not believe, however, that the act providing for public administrators, 3 Comp. Laws 1929, § 15611 et seq., amends or repeals in its entirety 3 Comp. Laws 1929, § 15586, which authorizes the court to appoint as administrator the nominee of the widow, husband or next of kin if such person be suitable or competent to discharge the trust as administrator of the estate. 3 Comp. Laws 1929, § 15586, supra, provides: “Administration of the estate of a person dying-intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to the same in the following order: “1. The widow, husband or next of kin, or a grantee of the interest of one or more of them, or such of them as the judge of probate may think proper, or such person or persons as the widow, husband, next of kin or grantee may request to have appointed, if suitable and competent to discharge the trust; “2. If the widow, husband, next of °kin or grantee, or the person selected by them shall be unsuitable or incompetent, or if the widow, husband, next of kin or grantee shall neglect for thirty days after the death of the intestate to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it; “3. If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the judge of probate may think proper.” Section 15612, 3 Comp. Laws 1929, relied upon in the foregoing opinion (Justice Potter’s) as mandatory, states in the second section that: “When *139 ever there is no widow, husband or next of kin entitled to a distributive share in the estate of the decedent, resident of the United States, competent or willing to take out letters of administration on such estate,” a public administrator shall be appointed. In the cases at bar it appears that each of the decedents, as well as the widow in the one case and the next of kin in the other, were residents of this State. There is no showing whatsoever that either the widow or the next of kin were not competent to act. Moreover they did act, when they petitioned the court to appoint persons by them specified. 3 Comp. Laws 1929, § 15612, supra, was adopted subsequent to 3 Comp. Laws 1929, § 15586. There is nothing in either the title or body of the public administrator act (3 Comp. Laws 1929, § 15612 et seq.) declaring an intent to repeal 3 Comp. Laws 1929, § 15586 et seq. If the two acts can be harmonized or reconciled in any reasonable manner, both should stand. We do not believe it was the intention of the legislature to deprive the court of the right to appoint suitable and competent residents of this State, at the request of the widow or next of kin, who may be inexperienced in business and may therefore prefer to have the estate administered by some trusted relative, friend, or business associate, or some other able person. It will be noted that the earlier statute, 3 Comp. Laws 1929, § 15586, subd. 2, provides that (1) where the widow, husband or next of kin, or the person selected by them, shall be unsuitable or incompetent, or (2) where the widow, husband or next of kin shall neglect to apply for administration, or (3) where the widow, husband or next of kin shall neglect to request that administration be granted to some other person, administration may be granted to one or more of the *140 principal creditors, if any such are competent and •willing to take it, or, in the event that there are none, then to such other person or persons as the court may think proper. We believe it was the purpose of 3 Comp. Laws 1929, § 15612, to make it mandatory upon the court to grant administration to the public administrator, rather than to creditors or to any other person, in the situations specified in 3 Comp. Laws 1929, § 15586, subd. 2, quoted above. Thus 3 Comp. Laws 1929, § 15612, should be interpreted as requiring the granting of administration to the public administrator only where there is no widow, husband or next of kin residing in the United States, competent or willing to themselves act as administrator or to request the appointment of another as administrator. In this manner the two acts can reasonably and fairly be harmonized. We therefore hold that under the facts in the instant cases the appointments were not illeg’al. It is unnecessary to discuss whether the appointment of an administrator may be attacked collaterally in another court. The jurisdiction of the Federal courts over suits by administrators whose citizenship is diverse from that of the opposing party has been definitely upheld in the case of Mecom v. Fitzsimmons Drilling Co., Inc., 284 U. S. 183, 186 (52 Sup. Ct. 84, 77 A. L. R. 904), where the court stated: “It is settled that the Federal courts have jurisdiction of suits by and against executors and administrators if their citizenship be diverse from that of the opposing party, although their testators or intestates might not have been entitled to sue or been liable to suit in those courts for want of diversity of citizenship. Childress v. Emory, 8 Wheat. (21 U. S.) 642; Coal Co. v. Blatchford, 11 Wall. (78 U. S.) 172; Rice v. Houston, 13 Wall. (80 *141 U. S.) 66; Amory v. Amory, 95 U. S. 186; Blake v. McKim, 103 U. S. 336; American Bible Society v. Price, 110 U. S. 61 (3 Sup. Ct. 440); Continental Insurance Co. v. Rhoads, 119 U. S. 237 (7 Sup. Ct. 193). * * * “His citizenship (the administrator’s) rather than that of the beneficiaries, is determinative of Federal jurisdiction. * * * “It has been held that the same rule applies in the case of suits by administrators to recover for death by wrongful act, whether the statute provides that the amount recovered be for certain relatives of the decedent or be general assets of the estate. Harper v. Railroad Co., 36 Fed. 102; Popp v. Railway Co., 96 Fed. 465; Cincinnati H. & D. R. Co. v. Thiebaud, 52 C. C. A. 538 (114 Fed. 918); Bishop v. Railroad Co., 117 Fed. 771; Memphis St. R. Co. v. Bobo, 146 C. C. A. 634 (232 Fed. 708). * * * “His appointment was regular and in accordance with the statutes; and. the decree of the probate court may not be collaterally attached in the present proceeding. See McGehee v. McCarley, 33 C. C. A. 629 (91 Fed. 462); American Car & Foundry Co. v. Anderson, 127 C. C. A. 587 (211 Fed. 301). It is nevertheless insisted that if the petitioner’s appointment was accomplished for the purpose of avoiding diversity of citizenship and consequent removal into the United States court, the parties to that proceeding, — the petitioner, the widow, and her attorney, — were in a conspiracy to defeat Federal jurisdiction. “But it is clear that the motive or purpose that actuated any or all of these parties in procuring a lawful and valid appointment is immaterial upon the question of identity or 'diversity of citizenship. To go behind the decree of the probate court would be colláterálly to attack it,' not for lack of jurisdiction of the' subject-matter or absence of jurisdictional. facts, but to inquire into purposes and *142 motives of the parties before that court when, confessedly, they practiced no fraud upon it.” The order of the trial court dissolving the preliminary injunction and dismissing the bill is affirmed, with costs to defendants. North, Fead, Wiest, and Bushnell, JJ., concurred with Butzel, J.