Low v. Burrows , 12 Cal. 181 ( 1859 )

Baldwin, J.,

delivered the opinion of the Court—Terry, O. J., and Field, J., concurring.

One William Young recovered judgment in 1851, in the Court of Common Pleas of New York, against defendant. Afterwards, in 1853, Young having cRed, his son, of the same name, took administration on his estate in the Surrogate’s Court of the City of New York. Young, the administrator, transferred and assigned to one Swartwout this judgment, who afterwards transferred it to the plaintiff. The questions made on the trial of the case in the Court below were these : 1. That the exemplification of the proceedings of the Surrogate’s Court was not sufficient to admit it in evidence—the certificate not being in form or substance as prescribed by Act of Congress, or the statute of this State. 2. That the administrator in New York had no right to assign the judgment—the debtor residing at that time beyond the State of New York.

As to the first question : It seems that the Surrogate is Judge and Clerk of the Court. This being so, it is only necessary that the certificate should state the main facts which are made necessary by the Acts of Congress to the authentication of the records of a Court, which has both Judge and Clerk. In this case the certificate states that A. W. Bradford is Surrogate of the City and County of New York, and acting as Clerk of the Surrogate’s Court; that he has compared the transcript of the papers with the original records in the matter of the estate of William Young, and finds the same to be correct, and a true copy of all the proceedings; and that the certificate is in due form of law.

In testimony of which he sets his hand and affixes his seal of office.

We do not see what more could be required to authenticate to us the records which the officer certifies. The papers show upon their face the jurisdiction of the Court. It is not necessary that the complaint should aver this jurisdiction, and if it were, the defect should have been noticed by demurrer, not by motion to exclude or objection to the admissibility of the transcript.

The second objection is equally untenable. We concede that the administrator has power over only those assets within the State where letters are granted ; and we might concede that in the case of notes, bonds, etc., on debtors who live and have their property beyond the jurisdiction, the administrator has no jurisdiction or dominion. But this is not the case in respect to judgments. There can be no doubt if a debtor, against whom the intestate in his lifetime obtained judgment, though at the time of the death of the intestate the debtor was beyond the jurisdiction, afterwards came within the jurisdiction, the administrator might proceed to collect the money from him. The effect of a judgment, as such, unlike a note, is confined to the State where rendered. It is therefore record evidence of a debt. It may be sued on, it is true, out of the State.' But it is not easy to see how an administrator of the creditor in California could take to himself as assets a judgment remaining on record in New York, merely from the fact that the debtor happened, for the time being, to reside in California. If the debtor went back to New York, or had property there, it is clear that the California administrator could not collect the money. If he collected anywhere, it would not be by virtue of the judgment in New York vesting in him any title to it, but merely because the transcript of the judgment gave him evidence upon which he might sue. The judgment is a record, and for any use to be made of it, or any power to enforce it, by execution or other process, must belong to the administrator in New York; or this anomaly would result: That the administrator in California would own the judgment for the purpose of suing on it in California, and the administrator in New York would own it for the purpose of collecting it by issuing execution in New York. We think no such doctrine can be maintained.

If the New York administrator owned it for one purpose—for the purpose of collecting it by execution in New York—he owned it for the purpose of receiving the money on it; if the defendant chose voluntarily to pay it, it matters not where the defendant resided at the time. If he could receive the money or collect it, he could assign it for value.

The authorities cited by the appellant maintain this distinction. (See particularly Attorney General v. Bowmens, 4 Meis. and W. 171.) Lord Abinger laid down the rule thus : “ Whatever may have been the origin of the jurisdiction of the ordinary to grant probate, it is clear that it is a limited jurisdiction, and can be exercised in respect of those effects only, which he would have had himself to administer in case of intestacy, and which must therefore have been so situated as that he could have disposed of them in pios usus. As to the locality of many descriptions of effects, household and movable goods, for instance, there never could be any dispute ; but to prevent conflicting jurisdictions between different ordinaries, with respect to choses in action and titles to property, it was established as law that judgment debts were assets, for the purposes of jurisdiction, where the judgment is recorded; leases where the land lies; specialty debts where the instrument happens to be; and simple contract debts where the debtor resides at the time of the testator’s death; and it was also decided that, as bills of exchange and promissory notes do not alter the nature of the simple contract debts, but are merely evidences of title, the debts due on these instruments were assets where the debtor lived, and not where the instrument was found. In truth, with respect to simple contract debts, the only act of administration that could be performed by the ordinary would be to recover or to receive payment of the debt, and that would be done by him within whose jurisdiction the debtor happened to be.” (So it said in Vaughn v. Barrett, 5 Vermt. 333.) “ An idea seems to have been entertained, that the jurisdiction over the debt in this case followed the person of the creditor. But it is to be observed that jurisdiction or the right of administration in respect to debts due a deceased person, never follows the residence of a creditor. They are always bona notabilia, unless they happen to fall within the jurisdiction where he resided. (See Bac. Ab. Exois E. Cro. Eliz. 172.) Judgments are bona notabilia where the record is. (Ld. Rayd. 855 ; Garth. 149 ; 8 Mod. 244; Anon 6 Geo. II., cited by Selw.) Specialties where they are at the time of the creditor’s decease (Sum. v. Dobson, cited in Selw. N. P.; Byon v. Byron, Cro. Eliz. 472), and simple contracts where the debtor resides (Carthew, 373 ; Salk. 37 ; Ld. Rayd. 562).”

In this last case, one Matt recovered judgment in Vermont; administration was taken on the plaintiff’s estate in that State ; the plaintiff resided in New York at the time of judgment, and also at the time of his death; the defendant in the judgment procured and pleaded a release from the New York administrator. The Supreme Court of Vermont held the release ineffectual; and it was in answer to the argument that the debt followed the residence of the creditor, that the Court used the language above quoted. Had the judgment been obtained in New York, it is clear, from the reasoning and authorities cited by the Court, that it would have upheld the power of the New York administrator over the judgment, as assets of that jurisdiction. In fact, the right of the Vermont administrator is placed upon the fact of the rendition of the judgment there.

The industry of the counsel of respondents has collected numerous cases in which the power of administrators over assets of the estate has been declared, but he has cited no case which denies the right of the administrator of the creditor of the deceased to control or collect a judgment rendered within the jurisdiction where letters were granted, although the debtor resides in a different jurisdiction.

The right of an administrator, at common law, to assign the choses in action of the intestate is not denied; and nothing in the legislation or jurisprudence of New York to the contrary has been shown.

The Court below excluded the record offered on the trial, and this was excepted to. This exclusion might have induced the plaintiff to decline introducing complete proof of the assignment, etc., as, if introduced under the ruling of the Court, it would have been insufficient to maintain the action.

The judgment of the Court below is reversed, and cause remanded.