Cooper v. Ives

The opinion of the court was delivered by Smith, J.: Under the statutes of this state, where the real estate in controversy is situated, Lucina M. Ives, the widow of the testator, inherited the whole of it. (Gen. Stat. 1899, § 2459; Gen. Stat. 1897, ch. 109, § 19.) The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. (Woern. Am. Law Adm. § 168.) The decree of the supreme court in Jefferson county, New York, in the suit brought by the widow against the legatees and others, in which there is a recital that the defendants below were heirs of Willard Ives, deceased, and entitled to participate in the distribution of his estate, can have no force here. The deceased left surviving him no children, brother, sister, or descendants of any, or father or mother, and the decree rendered in the New York court could in no manner affect the descent of the property to the widow, as fixed by our statute; nor could the New York court pass on the title to real estate in Kansas. In the case of Carpenter v. Strange, 141 U. S. 87, 105, 11 Sup. Ct. 960, 966, 35 L. Ed. 640, 647, it was held that the supreme court of New York was without power to adjudge the conveyance by a testator to the defendant of lands in Tennessee to be fraudulent and void, and to annul the same. The court said : “The real estate was situated in Tennessee and governed by the law of its situs, and while by means — 400 — of its power over the person of a party a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant; as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court has no inherent power, by the mere force of its' decree, to annul a deed or to establish a title.” See, also, McCartney v. Osburn et al., 118 Ill. 403, 9 N. E. 210; Watkins v. Holman et al., 16 Pet. 25, 10 L. Ed. 873. It is stated by counsel for defendants in error that the ground on which the court below rendered judgment in favor of the parties represented by him was that after the dismissal of the action against the executrix the plaintiff below was in the position of seeking to recover on a stockholder’s liability, with no stockholder in court against whom a judgment could be obtained. This brings us to a consideration of the necessity of the presence of the executrix of the will of Willard Ives, deceased, before the court in an action to enforce such a liability. It will be observed that Lucina M. Ives, the widow, was a party in her individual capacity only, and was in default for answer. In McLean v. Webster, 45 Kan. 644, 26 Pac. 10, a creditor of a decedent, without taking out letters of administration, was allowed to subject real estate in the possession of the heir to the satisfaction of the creditor’s claim, there being no other debts against the estate. The petition in the McLean case described the land which descended to the heir, and prayed that the same be held subject to the payment of the debt sued on. There was an attachment in that case as in — 401 — this, ancillary to the main action. In both cases the allegations in the petitions and the relief demanded were intended to operate as an equitable attachment of the real estate sought to be appropriated. The decision in the McLean case proceeds on the principle that the heir at law or devisee is personally liable for the debts of the ancestor to the value of the property received by him. See, also, Rohrbaugh v. Hamblin, 57 Kan. 393, 46 Pac. 705. Counsel for defendants in error lays stress on the statutory provision that permits stockholders to be charged by motion, or that permits the plaintiff in the execution to proceed by action to charge the stockholders with the amount of his judgment. (Gen. Stat. 1899, §1192 ; Gen. Stat. 1897, ch. 66, §50.) The relation between a stockholder and the corporation is contractual. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.) If, in the present case, the creditor had held the note of Ives, the stockholder, for the amount of his statutory liability, and had brought an action thereon to subject this land to its payment, his right to recover would have been sustained, under the authority of McLean v. Webster, supra. The obligation is as much contractual in its nature in this as in the supposed case. There was no person interested in the estate of Willard Ives, deceased, except Lucina M. Ives, his widow, to whom this land descended. There was nothing more to be done by her as executrix in the way of administering the trust. All the debts and legacies were paid and she retained the bare title of executrix, with nothing further to administer on. Had this corporation been a going concern, dividends earned on its stock could safely have been paid to her as an individual, free from all liability of the corporation to a subsequently-appointed executor. — 402 — (Vail v. Anderson, 61 Minn. 552, 64 N. W. 47.) At the time this action was tried below, Mrs. Ives, in her representative capacity, was á mere trustee, nominally for creditors and legatees, but in fact for herself alone. She was the sole beneficiary. In the case of Railway Co. v. Mills, 57 Kan. 687, 47 Pac. 834, a widow, appointed administratrix of the estate of her dead husband in Missouri, in such capacity brought suit in our courts against a railway company for wrongfully causing her husband’s death, which occurred in this state. Under the statutes of Missouri, recovery in such actions is limited to the wife of the deceased, where such relation exists. There being an allegation in the petition that she was the widow, it was held that the right of action was not limited to her in her representative capacity, but that she could recover in her character as widow. As before stated, the heir at law inheriting property is chargeable with the debts of the ancestor to the valúe of the property received. Under this rule, Mrs. Ives, being the sole heir under our law, can be held liable as an individual up to the value of the property. It is not necessary that the liability be fixed by a judgment against the representative of the dead stockholder in such case. The present action assimilates itself to that of a proceeding in rem. In no event can the inheritor be compelled to pay more than the value of the property. We can see no good reason for requiring the executrix of the deceased stockholder to be made a party, inasmuch as the relief sought is against the heir alone, by reason of her heirship, for an amount measured by the worth of what she inherited from the stockholder. We think judgment should have been entered against Mrs. Ives in the court below. It follows from what has been said that — 403 — the land, having been attached at the commencement of the action as the property of Lucina M. Ives, and she being liable to the extent stated for the debt of the decedent, the court did not err in overruling the motion to dissolve the attachment. Counsel for defendants in error urges that the plaintiff below ought not to be allowed to proceed against real estate in Kansas because there was personal property in the hands of the executrix in New York which should have been first exhausted. We cannot concur with him in this contention. In Woerner on American Law of Administration, 2d ed., section 158, it is said: “But the administration in each state is wholly independent, whether in the hands of the same or of different executors or administrators, in no wise impaired, abridged or affected by a previous and, a fortiori, by a subsequent, grant of administration in another state.” In the case of Rosenthal, Adm’r, etc., v. Renick et al., 44 Ill. 203, it was held that a citizen of another state, where the administration had been granted, might come to the state of Illinois and cause administration to be taken out there, a claim to be allowed, and real estate sold for its payment, and that it was not necessary to show that the personal estate in the other state had been exhausted. So in Lawrence’s Appeal from Probate, 49 Conn. 411, a part of the syllabus reads: “Held, to be no objection to an order for the sale of real estate here to pay debts, that there was personal property in the state of principal administration sufficient for their payment. And that a court of probate had no right, as a matter of discretion, to refuse to order a sale of real estate here, in view of the personal property there.” — 404 — The claim that the liability must be enforced by a receiver of the insolvent corporation, as provided by sections 14 and 15 of chapter 10 of the Laws of 1898 (Gen. Stat. 1899, §§1260, 1274), has been decided against the contention of defendants in error in the case of Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331. The judgment of the court below will be reversed, with directions to the district court to proceed further in accordance with this opinion. Dosteb, O. J., concurring.