Babbitt v. Fidelity Trust Co.

GAimisosr, V. C. It is apparent from the above resume of the pleadings that the objects of this bill are various. The complainant seeks, as to matters that concern the pleading defendants, to enjoin them from bringing actions upon the note she gave to Wood; to have this note and the pledge of her interest in her father’s estate as collateral thereto, and the assignment of such interest, also given as collateral, declared to be null and void. In so far as the so-called assignment was a transfer of interest in real estate, it does not appear that the executors have any interest, since, of course, Wood’s title thereunder would pass to his heirs-at-law, unless his will otherwise disposed of it. She also seeks an accounting from the trustee, the Fidelity Trust Company, in which accounting Wood, or since his death the representatives of his estate, are undoubtedly interested because of the pledge and assignment given by her as collateral to the note given to Wood, and presumably now held by them. [655] If this bill did not call for an accounting from the trustee, I think it too clear to admit of discussion that these foreign executors could not be made amenable by compulsory process in this slate in such a suit. Whether such issues would be determined in a suit in which an account was being taken, if all of the parties to be affected were before the court, it is not necessary for me to and I do not decide. The only arguable ground upon which, the complainant can seek to maintain the jurisdiction of the court over these foreign executors is that this is a bill for an accounting and that they are interested in the subject-matter of the account. It is undoubtedly the law that in a suit for an accounting in equity, it is proper to make parties defendant all those who have or who apparently have any interest in the subject-matter of the accounting. From the charges in the bill it is clear that the decedent, represented at his domicile by these foreign executors, had such an interest in the subjcet-matler of this accounting as to make him or those representing him proper parties thereto. The complainant insists that these defendants have been properly joined, for, as he says in Ms brief, “they might have determined to assent and, by the entry of appearance, submit to the jurisdiction of this court.” Although courts disagree as to whether or not voluntary submission to suits by foreign executors confers jurisdiction upon the court (13 Am. & Eng. Encycl. L. (2d ed.) 961), our courts are among those which hold affirmatively upon this subject. 13 Am. & Eng. Encycl. L. (2d ed.) 961. But this does not aid the complainant. The court of errors and appeals has directly passed upon a similar principle which controls the present situation. In the case of Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 730 (1903) (at p. 732), that court said: “The reason given in the court below for the order in question was that it was necessary or proper for the complainants to make these persons defendants in the bill, and that they ought to have an opportunity to defend the suit. This may be conceded, but it by no means follows that they can be-obliged to submit to the [656] jurisdiction, or that their presence is necessary to enable the court to deal with the rights of other parties in the suit.” * * * At p. 733: “It remains, therefore, only to determine whether the matters stated in this plea show the defendants to be be3rond the compulsory jurisdiction of the court, and if they do, then formally to dismiss the defendants from the controversy in which they declare themselves unwilling to participate.” Wood having died in Philadelphia, and the executors of his will being there commissioned, and no grant having been made in New Jersey to them, they are, as to us, foreign executors, and they have declared themselves unwilling to participate in this suit. In strictness, the grant of administration operates only within the jurisdiction where it is granted. It gives no legal right to collect debts or recover the possession of property elsewhere. Lewis v. Grognard, 17 N. J. Eq. (2 C. E. Gr.) 425 (Green, Ordinary, 1865) : 13 Am. & Eng. Encycl. L. (2d ed.) 916. The general rule is well settled that an executor or administrator cannot, in his representative capacity, maintain any action, suit or proceeding, either at law or in equity, in the courts of any sovereignty other than those under whose laws he was appointed or qualified, without obtaining an ancillary grant of probate or letters from the court of probate of such other sovereignty, unless power to sue in the foreign jurisdiction has been conferred upon him by statute. Lewis v. Grognard, supra; Porter v. Trall, 30 N. J. Eq. (3 Slew.) 106 (Chancellor Runyon, 1878); 13 Am. & Eng. Encycl. L. (2d ed.) 945. And similarly the rule is that an executor or administrator cannot be sued in his representative character, unless he is made liable by statute, either at law or in equity, in the courts of any state or country other than that in which he received his appointment. Durie v. Blauvelt, 49 N. J. Law (20 Vr.) 114 (Supreme Court, 1886) ; Rusling v. Brodhead, 55 N. J. Eq. (10 Dick.) 200 (Vice-Chancellor Stevens, 1896); 13 Am. & Eng. Encycl. L. (2d ed.) 957. The fact that in law the personal representative of the decedent, deriving his authority from the law of the decedent’s [657] domicile, is invested with the title' to all the personal estate, wherever it may be locally situate, enables him to receive voluntary payments from a foreign debtor and give a valid acquittance (13 Am. & Eng. Encycl. L. (2d ed.) 932), does not make it proper for the complainant to bring suit in this state against such foreign executors. While it may be true that in theory the right of Wood, with respect to the complainant’s interest in the estate of Campbell, is now vested in the foreign executors of Wood, the law is well settled that they may not assert this right by any legal proceedings unless they qualify themselves in the manner above stated; or, to put it in another way, Wood’s right against the complainant’s interest in the estate of Campbell may not be asserted by anyone except a duly-qualified representative in the State of Hew Jersey. Similarly, I think, it should be held that nothing which affects that right should be done in the absence of a duly-qualified representative of the estate in this state. Story Eq. Pl. (Redf. ed.) 185 § 179. If these foreign representatives may not sue with respect to it, I do not think they should be held to be suable. Apart from those cases in which the foreign representatives have voluntarily submitted themselves to the jurisdiction, those cases, referred to by the complainant and found in the text-books and authorities, in which a foreign executor has been sued out of the jurisdiction <of his appointment will all be found to rest upon some affirmative action taken by the foreign representative within the jurisdiction of the court, or cases in which, but for the interference of a court of equity, there would manifestly be a failure of justice or only a hopeless remedy elsewhere. 13 Am. & Eng. Encycl. L. (2d ed.) 959, 963. It is not shown in the case at bar that the foreign executors of Wood have in any way attempted to act in the State of Hew Jersey, or to do any act with respect to any assets that are within the State of Hew Jersey. It would not seem that this is a case in which the complainant is without remedy, or that there will be a manifest failure of justice, if these foreign executors are not held amenable to pro [658] cess in this suit, because administration ad litem may be obtained to represent the estate, the precedents and practice with respect to which will be found in Dan. Ch. Pl. & Pr. (6th Am. ed.) 196, *201 et seq.; Dick. Ch. Prec. (Rev. ed.) 57 et seq.; Dick. Prob. Ct. Pr. 56 et seq.; Lothrop’s Case, and note thereto, 33 N. J. Eq. (6 Stew.) 246 (Runyon, Ordinary, 1880). Eren if this be a suit in which limited administration of the character just alluded to would not be proper, the complainant could proceed under the twenty-third section of the Orphans Court act. P. L. 1898 p. 721. Under that section any person who desires to have a foreign will probated in this state for any purpose may apply to the ordinary, who, upon being satisfied with respect to certain facts, shall admit the same to probate and issue letters testamentary, or of administration with the will annexed. Under all of the authorities, therefore, I conclude that these foreign executors are not amenable to compulsory process in this suit, and that the plea should be sustained. The practice with respect to the form of the plea, and the propriety of raising this question by plea, and the effect of the judgment on the plea, are settled in the case of Wilson v. American Palace Car Co., supra.