In re the Final Accounting in Hart's Estate , 1 Tuck. Surr. 133 ( 1870 )

The Surrogate.

Solomon Hart died in the State of Kentucky, leaving assets in .the county and State of Hew York. Benjamin Hart, a nephew of the intestate, was appointed his administrator here by me. Benjamin Hart also received a power of attorney from the next of kin of the intestate residing abroad.

The inventory of the 'intestate shows that there was a large amoimt of personal property in this State. The final account of the administrator .shows that there is yet a, large surplus, after payment of debts, for distribution.-

Among the claims presented here against the estate of the intestate, was one by the executrix of Michael. Hart (who in his life time was the father of Benjamin Hart, this administrator), for the amount due on a promissory • ■note, dated Richmond, February, 1852, payable .to Michael Hart, or order, eight months after date, at the Bank. of. Kentucky, for $4,500. The administrator, Benjamin Hart, paid this note, to which act objection is made by the other next of kin.

- An auditor having been appointed, it appeared before him that the note had been secured by a mortgage of the same date, upon land of which the intestate was then seised, in the State of Kentucky. It did not appear whether the security was good for the -amount due. It was alleged that the intestate was an alien, and that his realty had' escheated; but of this there was no evidence, nor, in my. opinion, 'was it a material fact in the case. The auditor reports that the payment of the note was properly made by the administrator, and there can be no doubt that he is correct. • .

• Where , a debtor dies out of this State, leaving assets'here which are administered upon here, these assets are liable in the first instance to his creditors here. (Peterson v. Chemical Bank, 29 How. Pr. Rep., p. 240.) And - this liability or preference is not affected by the fdct that . the contract is made, or is to be performed, in a foreign ' country, or by the fact that the creditor has his remedy elsewhere. (Harison v. Sterry, 5 Cr. S. C. Rep., pp. 289, 299; See Holmes v. Remsen, 20 John., 229.) That this ■ debt was due is not denied or contested; the note was here, the executrix of the, payee.was here, the adminis- ' trator of the maker, was here; and. the payment was-properly made here.

It is but just, however, that the real estate which was . of the intestate, in Kentucky, should be relieved of the lien of the mortgage made to secure this note. I shall therefore direct, , as a condition of allowing this voucher to the administrator, that-he procure such a satisfaction piece as may be necessary under the laws of Kentucky, to be made by such a representative of Michael Hart’s estate as the laws of Kentucky may recognize for that purpose, and file the same in the proper office of record there.