Metcalf v. Clark , 41 Barb. 45 ( 1864 )

By the Court, Bockes, J.

Appeal from an order granted at a special term, setting aside the summons, complaint, warrant of attachment and all proceedings herein.

We can have no doubt that the defendant, Wilson, was, through the instrumentality of the plaintiff, or of those acting in his behalf, inveigled into this state with the purpose of effecting service upon him of the summons in this action. He was enticed within the jurisdiction of the court for a purpose to which the court will not give its sanction. As was said in Carpenter v. Spooner, (2 Sandf. 717,) the proceeding was a trick for the purpose of giving to this court jurisdiction of the action. The service of the summons, and all subsequent proceedings in the action dependent thereon should therefore be vacated. (Goupil v. Simonson, 3 Abb. 474. Stein v. Valkenhuysen, Ellis, Black. & Ellis, 65. Williams v. Bacon, 10 Wend. 636. Snelling v. Watrous, 2 Paige, 314.) The order of the special term, however, if put on this ground, should have set aside the service of the summons instead of the summons itself. But this is, probably, of no great moment in this case.

I am satisfied that the warrant of attachment was unauthorized, and hence was properly vacated. Even if the plaintiff had a cause of action in this state, against the defendants as executors of Matthew Clark, deceased, the attachment was unauthorized. Proceedings against them to obtain an application of the property of the estate to the payment of the debts of the testator must be taken, and conducted in the same way as if letters testamentary were granted to executors in this state. Letters ancillary or auxiliary may be granted here in the case of foreign executors, when administration here becomes necessary. But in no case is a warrant of attachment authorized against executors. The property of the estate is trust property in their hands, and must be dealt with as such for the benefit of all having an interest in it. Proceedings by attachment are proceedings at law for the benefit of the individual claimant. An injunction may perhaps issue, in some cases, against foreign executors or administrators, with a view to the preservation of the trust property, hut the action then must be one in equity, involving some unjust and unlawful proceeding in regard to it on the part ■of the executors or administrators. Proceedings by attachment are clearly inapplicable for the purpose of compelling the settlement of .the estate of a deceased person or of enforcing payment by the executor of an individual demand contracted by the deceased, without charging the executors with any breach of duty except a neglect to pay the debt.

If I am correct in the above conclusions, the order of the special term was substantially correct. It probably, in strictness, should have been an order setting aside and vacating the service of the summons, and also subsequent proceedings in the action, including the warrant of attachment and proceedings thereon.

It seems to me, however, very clear that an ordinary action at law—which is this case, according to the facts presented on this appeal—cannot be maintained in this state against foreign executors as such. It has been for a long time the settled rule that a foreign executor cannot maintain an action here by virtue of his appointment abroad. (McNamara v. Dwyer, 7 Paige, 239. Slatter v. Carroll, 2 Sandf. Ch. 584. Smith v. Webb, 1 Barb. 230. 2 Kent, 432. Lawrence v. Lawrence, 3 Barb. Ch. 71. Willard on Executors, 162, 163. Story on Confl. of Laws, § 513.)

And I deem it equally well settled that an action at law, as distinguished from an action in equity, cannot be maintained in this state against a foreign executor or administrator. This was so expressly decided in Vermilya v. Beatty, (6 Barb. 429.) This point is considered in a note to Kent's Commentaries, (2 Kent, 431, 2, note c,) where it is said that the general rule in England and in this country is, that letters testamentary, or of administration, granted abroad, give no authority to sue or be sued in another jurisdiction, though they may be sufficient ground for new probate authority. The authorities both in England and in this country are there cited. So it was held, in Campbell v. Tousey, (7 Cowen, 64,) that an executor or administrator, appointed in a neighboring state, could not be sued as such, here. The action was maintained in that case, however, inasmuch as the defendant was shown to be an executor de son tort; that is, he was an executor, here, de son tort. As was said by Edwards, J. in Vermilya v. Beatty, he was held liable here, not as a foreign executor, but as an executor in this state by reason of his acts here. But the office of executor de son tort is now abolished. (2 R. S. 449, § 17. Babcock v. Booth, 2 Hill, 185. Willard on Executors, 140.)

Judge Story declares the rule as stated in Vermilya v. Beatty, and in the note to Kent’s Commentaries, above cited. He says no suit can be maintained against a foreign executor or administrator, as such, in the court of any other country except that from which he derives his authority to act, for he has no positive light or authority over those assets situated elsewhere, and can only be held there to answer for his acts in regard to them. We are referred to three cases where actions have been maintained in this state against foreign executors or administrators. (Campbell v. Tousey, 7 Cowen, 64. McNamara v. Dwyer, 7 Paige, 239. Gulick v. Gulick, 33 Barb. 92.) The first of these cases was an action at law, and was maintained, as I have above suggested, on the ground that the defendant had made himself responsible here as an executor de son tort, which office has since been abolished by statute. And in that case it was held that the defendant was not liable to be sued in this state by virtue of his foreign appointment. In McNamara v. Dwyer the action was an equitable one, and was sustained because of its equitable character, and the chancellor there expressed a doubt whether the defendant could be called on to answer here in a court of law. So the action was maintained in Gulick v. Gulick, on the strength of the decision in McNamara v, Dwyer, as an action in equity. The case of Slatter v. Carroll, (2 Sandf. Ch. 573,) was also an action in equity, and was maintained on the principle of the decision in McNamara v. Dwyer. I am not cited to any case where an action has been maintained against a foreign executor, except on an allegation of such facts and circumstances as would constitute the action one in equity, as distinguished from an action at law, simply for the recovery of money. It was said in Brown v. Brown, (1 Barb. Ch. 189,) that the case must be a special one, to be shown by the bill, before the action could be maintained. But this objection to the action is matter of defense. It cannot be urged on a motion to set aside the summons. It is a matter to be pleaded, as to which an issue may be found, to be tried as an issue in the cause. The order appealed from is substantially correct. The only tenable objection to it is formal merely. It should have been an order setting aside the service of the summons and all subsequent proceedings, and also to vacate the warrant of attachment. With this modification the order should be affirmed. And inasmuch as the merits of the motion as urged and discussed by counsel are found to be with the defendants, they should have the costs of the appeal.

[Schenectady General Term, January 5, 1864.

With the modification above suggested the order appealed from must be affirmed, with ten dollars costs of appeal.

Potter, Bockes and James, Justices.]