Brodie v. Bickley

The opinion of the court was delivered by • Gibson, C. J. — The question raised by the demurrers is, whether debt lies against an administrator here on a judgment against a foreign administrator of the same intestate. Did an administrator represent the person of the intestate without qualification or restriction, the plaintiff’s, argument would be incontrovertible. But it is clear, that his c.ommision extends only to assets of which the ordinary had jurisdiction; and it constitutes him a representative of the intestate no further than as regards the administration of those particular'assets. His power is but co-extensive with that of him from whom it is derived; and it is, consequently, incompetent, directly or indirectly, to affect assets which belong to another jurisdiction. This principle is plainly discernible in the few decisions that bear upon the point. As was held in Dowdale’s Case, 6 Rep. 42, an administrator may be sued in a foreign country; because, the action being transitory, follows his person, and the jury may inquire of assets in his hands at home or abroad. But the judgment would not affect any, assets, the administration of which had not been committed to him; as in Borden v. Borden, 5 Mass. Rep. 67, where a judgment in Massachusetts against one who had obtained administration in Rhode Island, was held insufficient to warrant execution [437] of the intestate’s land. In perfect accordance with this, is The Select Men of Boston v. Boylston, 2 Mass. 384, and Dawes v. Boylston, 9 Mass. 337, in which it was determined, that an administrator, under letters taken out in Massachusetts, could not be cited to account for assets received as administrator cum testamento annexo, in England. Thus we see that an administration under foreign authority, has no connexion with an administration granted here; and according to the maxim by which concurrent rights are to be viewed, as if they existed separately in different persons, a judgment against a foreign administrator could not be the foundation of an action against the same person to affect assets in his hands by' virtue of administration here, in as much as the privity to support it must be official, and not personal. If, however, he were administrator here at the time of the judgment abroad, it might be otherwise, as the jury might inquire of the assets in his hands there as well as at home. The privity between an administrator de bonis non, and his predecessor, which has been pressed as analogous, is entirely different, the former being the official successor of the latter, while in the case of separate administrations .of different parts of the same estate, the authority of each administrator is respectively paramount to that of the other. But the case of an executor de son tort, who represents the person of the decedent only so far as regards the assets with which he has intermeddled, is, as far as it goes, entirely analogous; and in Nass v. Vanswearingen, 7 Serg. & Rawle, 192, it was determined, that a judgment against him is insufficient to authorise execution of the decedent’s land. The authority of an administrator, under letters granted in a sister state, to meddle with the assets here, is an anomaly, produced by an unexampled spirit of comity in the courts of this state, which will probably be attended, in this respect, with perplexity and confusion. In theory, therefore, there are insuperable objections to the action; and, as regards convenience and justice, how stands it in practice? A confession of judgment is an admission of assets which creates no liability to the other creditors, or the persons entitled to distribution; and personal liability, even to the plaintiff, may be obviated by restraining the judgment to assets quando acciderint. What then is to prevent collusion? On the principle of the argument, even naked admissions of the foreign administrator would be competent to charge the assets here. To guard against this, the law necessarily limits the power of an administrator to assets, for the due administration of which he and his sureties are responsible. Of the reason and policy of this, the case at bar, in which the foreign judgment is marked to the use of the administratrix who suffered it, is a forcible illustration. It is of little moment, that such a judgment is not conclusive, and that if there be fraud in fact, the administrator here may show it. It is sufficient that the doctrine would shift the burden of proof in the first instance, and send the defen [438] dant abroad, under every possible disadvantage, to investigate transactions, the’secret springs of which must necessarily be hidden from him. In every view, then, the defendant’s demurrer must be sustained, and the plaintiff’s demurrers overruled. Huston, J., and Tod, J., were absent in consequence of indisposition. Judgment for the defendant.