SHERWOOD VS. JUDD. sailing master. What was this man's general habit of life? That is always the great and leading inquiry in questions of domicil. While on land, where were his business interests centered, where did his occupations fix him and his necessities call him—what was the point of his home affections? As between Sherwood's short and occasional visits to Connecticut and the continued character of his abode in New York, whether at housekeeping or boarding, married or unmarried—as between the entire absence of interest in property or business there, and the presence of all his interests here-could it be said without violence to every fair and natural inference to be drawn from the habits and pursuits of mankind, that his purpose, his objects and his employments here were temporary, and that there was a fixed intention of a settled habitation at Fairfield? I concede the principle that sailors while following their avocation, do not necessarily change their domicil; but it is true, nevertheless, that sailors may change their domicil, and, as, if they mind their business, they have but little time to spend on land, we are limited perforce to a narrow sphere of observation or field of deduction. But even within that small compass we may discover a few facts that would be controlling. If a sailor marries, supports his wife, and invariably returns to her when on land, that circumstance alone would go far to make her place of residence his own home and abode. But there is a wide difference between a mariner shipping from one port or another, and equally at home in any, without a single tie to attach himand the master of a vessel, a man of substance, having his business always centered in one spot, from which he is absent only for a temporary purpose, to which he constantly returns, where he marries and lives with his wife, where he describes his residence in a sworn official document, and where he dies. The home of the former is about as unstable and floating as the element on which he earns his livelihood, that of the latter as determined, constant, and settled as the nature of his pursuits admits. As to the former, we may be compelled to resort to the domicil of origin in default of finding any other, GINOCHIO vs. PORCELLA. as to the latter, there can be no difficulty in discovering his usual abode and habitation. I have no hesitation in the presert instance, in determining that the decedent's domicil was at the time of his death, as well as antecedently, in the city of New York, and distribution must accordingly be decreed according to the statutes of this State. GINOCHIO VS. PORCELLA. In the matter of the Estate of ANTONIO PORCELLA, deceased. UPON a question of assets the declarations of the deceased may be admissible as pertinent to the inquiry whether the administrator has made the proper efforts to administer the estate, but they are not binding as declarations to charge the representative with assets. An executor or administrator is not concluded by the statements of the deceased, but is only obligated to a faithful attempt to realize the largest amount from the assets which have come to his knowledge. The testimony of a witness in one suit, cannot be received as evidence in another suit although between the same parties. Where the wife of the intestate, after his decease, but before the news of his death had reached her, received debts due to him, acting as his agent to make collections during his absence for her support,-Held, that having appropriated the money to the purpose authorized, in good faith, she was not liable to the creditors of the deceased. Whether the debtor who had paid under such circumstances, could be compelled to pay a second time on an action being brought by the administrator,-Quare? A judgment against an administrator is no evidence of assets. The Revised Statutes have altered the rule of the common law in this respect. The judgment only establishes the amount due by the estate. The estate cannot be distributed without the action of the Surrogate or a court of equity, nor can execution issue without the permission of the Surrogate. GERARDUS CLARK, for Creditors. I. The administratrix has been guilty of perjury and fraud in the administration of the estate, particularly in respect to the inventory. 1. In respect to the item of ten dollars paid GINOCHIO VS. PORCELLA. by Bartolomeo Solari, which should be fifty-five, according to the deposition of Solari, and the evidence of Mrs. Volpe, John Sturla, Stephano Missieu, and L. B. Missieu. 2. In respect to the forty dollars received from Mr. Reynolds. It is shown that it should be eighty-seven dollars, at least, which was paid by Joseph Martini. See his deposition and the receipt of Mrs. Porcella and of Montegrif. 3. She states the indebtedness of Levoroni at ten dollars: we have shown she received from him forty dollars. See Levoroni's and Antinossi's evidence. 4. She entirely omits the thirty dollars cash received by her from Lewis Vicare. 5. She omits the indebtedness of Carressa Cavernare and Sebastiano Solari, although she had the documentary evidence of at least two of them in her possession. II. We have proved assets sufficient to pay the debts. III. The judgments by default are conclusive evidence of assets. (4 Cowen, 445; 18 J. R., 503; 1 J. Ca., 276; 3 T. R., 685; 2 Saund., 219, note 8.) W. C. FREEMAN, PHILIP REYNOLDS, for Administratrix. 1. The default permitted by the administratrix in the suit by the creditors against the estate is no evidence of assets. (Nicholas vs. Chapman, 9 Wend., p. 452; Parker's Exrs. vs. Gainer's Admr., 17 Wend., 559; Butler vs. Hempstead's Admr., 18 Wend., 666; Allen and Wife vs. Bishop's Exrs., 25 Wend., 414; Dayton on Surrogate Law, page 110, &c., to 116.) 2. Declarations by an intestate, while living, of property owned by or due to him, are not evidences of assets in the hands of the administratrix, unless it is shown the same belonged to or was owing to the intestate at the time of his death, and has been or might have been reduced to possession by the administratrix. GINOCHIO VS. PORCELLA. LAW SCHOOL 3. Payments made to a wife by debtors of her husband, and by his authority and in his absence from the country, and prior to knowledge of his death, and prior to granting letters of administration to the wife, and used by her in support of herself and children, do not constitute the wife an administratrix de son tort. RARY. 4. Payment to a wife under such circumstances is a payment to the husband's agent, the wife, in the absence of the husband, she being considered in law his agent. (Church vs. Landers, 10 Wend., p. 79.) 5. To constitute an administrator de son tort, knowledge of death must be brought home to the person collecting or intermeddling with the estate, and the general rule is that a party entitled to administration can do nothing as administrator before letters of administration are granted to him. (Williams on Executors, p. 210; Ib., 216, note 1; Ib., 217, note 1; 1b., 332.) 6. A husband is bound to support his wife, and money paid her during his absence from the country, and used for that purpose, cannot be claimed by creditors, if the same be reasonable. THE SURROGATE.-The decedent embarked from the city of New York for California, the twentieth of January, 1853, leaving his family here. He died the twenty-seventh of February next ensuing; and his wife having administered, an effort has been made on the part of his creditors to establish assets beyond the amount stated in the inventory. The parties and the witnesses are Italians, little conversant with our language, and having peculiar modes of transacting their humble business-which circumstances in conjunction with some conflict of testimony, render it somewhat difficult to ascertain the facts with precision. It is in proof, that the GINOCHIO VS. PORCELLA. intestate after his departure from New York, stated his property and credits at seven hundred dollars, and if we include the bad debts due to him, this estimate was not grossly exaggerated. His declarations on this point may be admissible as pertinent to the inquiry, whether the administratrix has made the proper efforts to administer the estate, but they are not binding as declarations upon the administratrix, so as to charge her with that amount of assets. Upon a question of due administration, an executor or administrator is not concluded by the statements of the deceased, but is only obligated to a faithful attempt to realize the largest amount, from the assets which have come to his knowledge. It would be difficult to find a person willing to accept such a trust at the hazard of being compelled to account for the property, at the value or estimate placed upon it by the deceased. As between the estate and creditors, the declarations of the decedent may be conclusive; but as to the personal liability of the trustee, they have no other force or effect than to put the latter on their being brought home to him upon a reasonable inquiry, and effort at collection. With the exceptions hereafter noted, the debts due to the intestate Porcella, appear to have been worthless. The debtors were Italian strollers, or organ-players-about as unpromising subjects of lawsuits and executions as could well be imagined. One of them, at one time made a show of offering to pay, provided he received certain securities, which he alleged the administratrix possessed, but that was the last that was heard of him: and another, whom the administratrix followed to Boston, decamped in the night with his organ, leaving his debt unpaid. It would be utterly unjust to charge her for these claims. If the creditors think themselves more likely to be successful in the pursuit of these itinerant musicians, they may take an assignment of the demands, and make the effort at their own risk, on giving a proper indemnity to the estate. The intestate before his departure sold a piano to B. Solari. The claimants allege, that fifty-nine dollars were due on this contract at the time of Porcella's death; while the adminis |