Petersen v. . Chemical Bank , 29 How. Pr. 240 ( 1865 )

The evidence that the domicile of the testator, Aaron Cohen, was at New Haven, Connecticut, was sufficient, I think, to authorize the probate of his will in the court of that State. The probate when so made is at common law conclusive, and cannot be collaterally questioned, while it remains unreversed or unrepealed. (Allen v. Dundas, 3 T.R., 125; Colman v.Sarrell, 1 Ves., 54.) Upon the issue in the pleadings in this case, as to the place of domicile of the testator, there does not seem to me to be sufficient evidence to have authorized a jury to find it was in New York; and it was no error in the judge at the trial, that he refused to submit that as a question of fact to the jury; besides, I think it was an immaterial issue. Jurisdiction of the probate of the will having been obtained in the Connecticut court, as well by the fact of domicile there, as by the possession of assets; and the due authentication of the probate and letters being shown, the will was evidence of the conference of title of the personal property of the testator to the executor, in every country where it was situated. (Story's Conflict of Laws, § 465, and authorities cited.) "The executor has the property of the goods of the testator vested in him before probate. (Comyn's Dig., Administrator, B, 9.) He has the property of the goods vested in him before actual possession. (Id., B, 10.) He may alienate them before probate. (Id., B, 9.) This power is now restricted by our statute (2 Rev. Stat., 71, § 16, marginal paging), until after letters testamentary are granted. We are to presume in the absence of proof, that the Connecticut statute is the same as our own. The executor may receive payment, and give sufficient discharges for moneys due. (Parsons v. Lyman, 20 N.Y., 103.) If money be due or payable to the testator, the executor shall have action for it; he represents the person of his testator. (Com. Dig., B, 11.) And so upon any contract made with his testator. (Id.) These rights and powers, however, to bring the action or to enforce his rights, under the authority of his letters testamentary, is limited to the sovereignty, by virtue of whose laws he receives his appointment. Parsons v. Lyman, (20 N.Y., 112); but this case also holds, that an executor having letters in Connecticut in the absence of letters here, can receive payment of debts, take the delivery of property, and give a valid discharge within this State. The case of Robison v. Crandall (9 Wend., 426), holds, that a suit on a note payable to bearer, could be sued upon here in the individual name of the administrator to whom letters of administration had been granted in Pennsylvania, on the ground that he was the real owner of the note; though he could not sue here in his representative character. In the case ofMiddlebrook v. The Merchants' Bank (24 How. Pr., 267), it was held at Special Term, "that an executor who has obtained probate and letters testamentary in Connecticut, where he resides, can dispose of the testator's property in this State without taking out ancillary letters here. In Smith v. Miles (1 T.R., 480), ASHURST J., held, that the right to property in the executor was immediate upon the death of the testator, and the right draws after it constructive possession; that probate was the mere evidence of right; and in Hutchins v. State Bank (12 Metcalf, 421), it was held, that an executrix having probate and letters granted in New Hampshire could sell and transfer stock in a bank in Massa chusetts, without having the will allowed and recorded in the latter State. The action in this case is not brought by the executor, and the authority of the executor is only in question so far as to determine what I think is the real point in this case, to wit, can the executor within the State of Connecticut, alien a demand, due to his testator from a person living in this State, so that the alienee, or assignee, can bring an action in his own name? 1. I know of no statute restraint upon the right of alienation in this State, none was shown to exist in Connecticut, and restraints have never been favored at common law. "It is a rule of common law that the power of alienation is an inseparable incident to the right of property, for the law knows of no such anomaly as the right of property without the absolute and universal power of disposal. (Bell on Husband and Wife, 504.) In Fettiplace v. George (1 Ves., 49), Lord THURLOW said, "the moment property can be enjoyed, it must be enjoyed with all its incidents." And Lord COKE cites a Latin maxim, the translation of which is, "that it is unjust that freemen should not have the free disposal of their own property." (Co. Litt., 223, a.) This right of alienation or right to sell is not more free and unrestricted than the right to purchase. This assignment constituted a legal transfer of the claim in question to the plaintiff, the fact being found by the jury. 2. What then are the plaintiff's rights, as the legal owner of this claim? Since choses in action are made assignable by statute, the action need not be brought in the name of the executor, but must be brought in the name of the party in interest. (Code, §§ 111, 112, 113.) The action is then brought in the right name. The assignee, of course, has purchased the claim subject to all equities which the defendants had against the assignor, but no equities are claimed against it by the defendants. The objection, that the assignee had no right to sue until he showed himself qualified, is not an equity set up against the demand. The objection to the qualification of the executor might be true; he could not sue a demand in Connecticut until he obtained his letters testamentary there; he probably cannot sue in this State without ancillary letters obtained here; but all this has nothing to do with the validity or the equities of the demand itself. The defendants set up no equities against the demand itself, nor against the testator by counterclaim, recoupment or offset. They stand in no relation of trustees for the creditors of the testator residing in this State, if any there were. They are bound to pay their liability, whenever a person lawfully authorized to discharge it presents it for payment. The personal disability of the executor to sue is no defense to this action when brought by one against whom no such disability exists. This was settled by the late case of McBride v. Farmers' Bank (26 N.Y., 450.) The principle established in that case is, I think, conclusive of this. This claim in this case is conceded to be just; there is no legal or equitable defense to it on the merits; it was legally assigned to the plaintiff; he holds it absolutely; he is under no legal disability to sue. The principle insisted on by the defendants, "that the assignee of a foreign executor stands in no better position than the executor himself, who can confer no rights that he does not himself possess," is true so far as the merits of the question, or the absolute rights of others are concerned, and so far as the act of the executor or the rights of his assignee shall come in conflict with the local policy or laws of this State, or with the rights of its citizens. No such conflict appears to me to exist in this case.

I am of opinion that the judgment should be affirmed.

Judgment affirmed.