Barton v. Higgins

Robinson, J., delivered the opinion of the Court. In 1858, W. S. Barton, executor of John Metcalfe, recovered judgment against Henry O. Middleton in the Circuit Court for the county'of Spotsylvania, Virginia, for the sum of §2800. Middleton died leaving real estate in Maryland, which was sold under a decree of the Circuit Court for Anne Arundel County, for the payment of his debts. On the 22nd June, 1868, Barton, executor of Metcalfe," filed in the proceedings for the sale of the real estate a copy of the judgment thus recovered by him and prayed to be allowed the same. To this claim exceptions were filed by certain creditors, and the Court being of opinion that the letters testamentary granted in Virginia, conferred no power upon the executor to collect or administer assets belonging to the testator in this State, ratified the auditor’s account except as to the claim of Barton, executor, in regard to which final action was suspended in order that letters of administration might be taken in this State. Subsequently letters of administration were granted in this State to James R. Howison, who also filed a copy of the judgment thus recovered by Barton, executor, and prayed to be allowed the same. Exceptions were filed by the creditors to this claim, and the plea of limitations also interposed. The Court overruled the exceptions, but sustained the plea of limitations, and on the 31st December, 1873, ratified the auditor’s account, rejecting the claim of Barton, executor, upon the judgment recovered’ by him in Virginia, and also rejecting the claim of Howison, administrator, except as to the sum of §97.02. From this order appeals were taken by Howison, administrator, and also by Barton executor, and Howison administrator, assignee of Barton. At the hearing of the case in this Court motion was made to dismiss the appeal of Barton executor, and Howison administrator, upon the ground that no appeal was [546] taken from the order of the Court of March 6th, rejecting the claim as presented by Barton, executor, within the time prescribed by the Code. This motion however.must be overruled. In no just sense can the order of March 6th, be considered as', a final order or decree. On the contrary, by the express terms of the order final action in regard to this claim was suspended. The final order was not passed until 31st December, 1813, and on appeal from this order all previous orders passed in the cause may be reviewed by this Court. Code, Art. 6, secs. 20, 21, 22; Crawford vs. Claggett, 12 G. & J., 115 ; Dugan vs. Gittings, 3 Gill, 138; Ware vs. Richardson, 3 Md., 505 ; Stem vs. Cox, 16 Md., 533; Vickers vs. Tracey, 22 Md., 198; Chenowith vs. Smith, 29 Md., 18. This brings us to the question as to whether there was error in rejecting the claim filed by Barton, executor. We fully agree with the Court below that the letters testamentary granted in Virginia, conferred no power upon the executor to collect or administer assets due the testator in this State. But there is a wide distinction between an attempt on the part of a foreign executor to bring a suit in this State upon an original cause of action due the d'ecedent, and his right to enforce the payment of a judgment already recovered by him in the State where his letters testamentary were granted. In the latter case, the judgment becomes a new debt due to him as administrator, and his right to sue for the same does not depend upon his letters of administration. Strictly speaking, the suit should be brought in his own name, but it is well settled, that if he sues in his representative capacity, he need not make proferí of letters of administration., and although he does describe himself in the nar. as administrator, yet such description will be rejected as mere surplusage. This was decided in Hargrave vs. Whitehall, Doug., 4, note, where an action of indebtitatus assumpsit was brought by the plaintiff as administrator, upon a judgment recovered by [547] him as administrator against the defendant in the Mayor’s Court in Calcutta. The declaration alleged that the defendant was indebted to the plaintiff as administrator in the sum therein mentioned, and which had been adjudged to him as administrator. The defendant demurred specially, and showed for cause that there was no profert of letters of administration, hut the Court said, this was unnecessary, because the action having been brought upon a judgment. recovered by the administrator, he was not obliged to describe himself as administrator, and having done so it was mere surplusage. In Talmaye vs. Chappel, 16 Mass., 71, the precise question presented by this appeal was considered and decided. In that case, the plaintiff, as administrator, sued the defendant. upon á judgment recovered hy him as administrator in New York, and so described himself in the declaration, and the defendant pleaded in bar that at the time of the rendition of the judgment, the parties were all residents of the State of New York, and that the plaintiff was appointed administrator in that State, and had not taken out letters of administration in Massachusetts. The Court said, “We think the plea in bar had.” £f The action is on a judgment already recovered hy the plaintiff, and it might have been brought hy him in own name and not as administrator. For the debt was due to him, he being answerable.” for it to the estate of the intestate, and it ought to be considered as so brought, his style of administrator being merely descriptive, and not being essential to his right to recover. It is important to the purposes of justice that it should he so ; for an administrator appointed here could not maintain an action upon this judgment, not being privy to it.” This case and the principles upon which it was decided, were approved by the Supreme Court in Biddle vs. Wilkins, 1 Peters, 686. We are of opinion, therefore, that the Court erred in rejecting the claim of Barton, executor of Metcalfe and [548] the order of the 6th of March, 1873, and the final order of the 31st of November, 1873, must he reversed, and the cause remanded, in order that the auditor may state an account in conformity with these views. (Decided 5th March, 1875.) Order reversed, and cause remanded.