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BROWN VS. THE PUBLIC ADMINISTRATOR.

In the matter of the Estate of EDGAR CUTHBERT, deceased.

BROWN VS. THE PUBLIC ADMINISTRATOR.

The statute directing judgments docketed, and decrees enrolled against the deceased, to be paid, according to their respective priorities, before bonds and other obligations, does not refer to foreign judgments, or to judgments recovered in the courts of other States.

A judgment recovered in another State, has no greater force, in respect to the distribution of the assets of a deceased person, than a foreign judgment. Neither at common law, nor under the statutes of this State, have judgments recovered in another State any title to priority of payment over simple contract debts. Creditors claiming on such judgments, must come in with the creditors of the deceased, described in the fourth class of the section of the statute, which prescribes the order in which debts shall be paid.

J. S. THAYER, Public Administrator, in person.

THE SURROGATE.-The deceased, at the time of his death, was indebted to the petitioners, Brown & Dimock, upon a judgment for $405,08, recovered against him in the County Court of Craven County, in the State of North Carolina; and application is now made for an order for the payment of the judgment, as a debt entitled to preference under the statute directing judgments docketed, and decrees enrolled against the deceased, to be paid according to their respective priorities, beforer ecognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. (2 R. S., 3d ed., p. 151, § 29.) The provision of the Constitution of the United States, that "full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings, of every other State," and that Congress may "prescribe the manner in which such acts, records, and proceedings, shall be proved, and

BROWN VS. THE PUBLIC ADMINISTRATOR.

the effect" thereof (Const., Art. 4, § 1), does not of itself, in respect to a question of administration, give any greater force or efficacy to a judgment recovered in another State, than belongs to a foreign judgment. For all purposes of administration, such judgments are to be considered as foreign judgments. Foreign judgments have no proper force of themselves here, except as prima facie, and perhaps, with certain exceptions, conclusive evidence of a cause of action. (Cummings vs. Banks, 2 Barb. Sup. Ct. R., 602.) In other respects, they rank only as simple contract debts. Assumpsit is maintainable on a foreign judgment. If such judgments are to be considered, in a strict and proper sense, judgments within the meaning of our laws, then they must have all the consequences of judgments; and if capable of being docketed here, bind lands, and rank as judgment debts in the distribution of the personal assets of deceased persons. It would also follow, as a consequence, that executors and administrators must, at their peril, take notice of such foreign judgments. That the provisions of our statutes relative to docketing judgments, and enrolling decrees, do not apply to foreign judgments and decrees, or judgments of other States, is obvious; and as judgments and decrees have no preference of payment unless docketed or enrolled, it is equally obvious that foreign judgments and decrees are entitled to no preference. But apart from this consideration, foreign judgments have never been held at common law to have any preference over simple contract debts. After the act of Union, it was decided that an Irish judgment had no force as a record in England; and Chief Justice Abbott, in discussing the question, said, "I have inquired of a very learned person, whether, in marshalling assets, it is considered to be entitled to priority as an English judgment, and the result of that inquiry is, that it is not." (Harris vs. Saunders, 4 B. & C., 411-413; Otway vs. Ramsay, ibid., 414; See Dupleix vs. De Roven, 2 Vern., 540; Walker vs. Witter, Doug., 1; Ferguson vs. Mahon, 11 A. & E., 179.)

ST. JURJO vs. DUNSCOMB AND BECKWITH.

I am therefore of opinion that creditors on foreign judgments, and judgments of other States, are not entitled to any priority of payment, but must come in with the creditors of the deceased described in the fourth class of the section of the statute which prescribes the order in which debts shall be paid.

In the matter of the Estate of JACINTO TEXIDOR, deceased.

If

In the case of a foreign will, it is the usage to grant administration with the will annexed to the attorney in fact of the foreign executor. there be no one authorised to apply as such attorney, letters issue according to the statute, to the legatees, widow, and next of kin. The grant of administration is regulated by the law of the place where the assets are situated.

J. N. BALESTIER, for Petitioner.
T. SEDGWICK, for Contestant.

THE SURROGATE.-The attorney of the foreign executor, having presented for probate a foreign exemplification of the will, and a power of attorney, authorising administration with the will annexed, a resident debtor objects to the issuing of letters, on the ground that, by the law of the testator's domicil, Porto Rico, foreign assets cannot be collected by the executors without the special authorisation of the testamentary tribunal of the domicil, unless the will expressly authorises such collection. So far as there is any evidence of the existing law of Porto Rico on this subject, as I understand it, the want of authority in the executors to collect foreign assets without the sanction of the courts in Porto Rico, relates only to a collection of the foreign

ST. JURJO VS. DUNSCOMB AND BECKWITH.

Our law

debts without the intervention of administration. goes beyond that; and, even with such a special authorisation, the executor cannot collect the assets here, unless he takes out letters. All this, however, is aside of the question of the grant of administration, which is governed by the law of this place, and not by that of Porto Rico. Administration with the will annexed, belongs, as a matter of right, by our statute, to the parties interested under the will, or the next of kin of the testator, in a certain prescribed order. It is true that, as a matter of comity, the custom has prevailed in this court, time out of mind, to grant letters to the attorney of the foreign executor; but if no such application be made, administration must go according to the statute. If the power now produced were insufficient, then I would have to treat the case the same as if there were no application on the part of the foreign executors, and grant administration under the statute; and in that view, the applicant being the husband of one of the residuary legatees, and all the other parties in interest being non-resident aliens, he would be entitled to letters, without claiming under the power.

But I think the power quite sufficient to justify administration, on the ground that the will authorises the collection of foreign assets. The will, in speaking of certain notes, requires the executors to "take the necessary steps to collect the same, as well as all other sums which may be due" the testator. It directs the executors "to present exact reports of what is found in money and in documents, for due record;" confers upon them "full powers, that after his death they may enter upon his property, and dispose of the moveable part thereof;" and expressly mentions in terms the testator's accounts with commercial houses in the United States.

Besides, the present motion relates merely to administration, and not to distribution; and if the objection be valid against the grant to the attorney of the executors, then legatees, next of kin, the public administrator, or

HALL VS. M'LAUGHLIN,

creditors, may intervene. It is, I believe, universal law, that the distribution is governed by the law of the domicil, and the grant of administration by the lex loci rei sita. There can be no risk, therefore, in the debtor paying the administrator here. The administrator obtains his authority from the surrogate, and that affords protection to the testator's debtors resident here, according to the established rules respecting the administration of the estates of deceased persons, prevailing wherever the civil law governs. There seems, therefore, to be no reasonable ground for delaying the issuing of letters.

In the matter of the Estate of WILLIAM MCLAUGHLIN, deceased.

The testator devised certain property to his wife during her widowhood, until his youngest son should arrive at age, when he directed it to be sold by his executors, and the proceeds to be distributed as prescribed in his will. After sundry legacies, he gave "all the rest, residue, and remainder," of his estate to his wife absolutely. The widow having died, the assignee of parties entitled to legacies out of the proceeds of property devised to the testator's wife during her widowhood, cited the executor to account, claiming that on the death of the widow, the time designated for the sale of the premises had arrived-Held, that the direction to sell was conditional, and the legatees of the proceeds of the sale when made, have no claim until the power can be executed according to the provisions of the will. The time set for the execution of the power is, "when" the testator's youngest child should attain majority. A direction to convert realty into personalty to pay legacies, is not accelerated so long as the condition on which it is to take effect is capable of literal consummation.

DAVID HARRISON, JR., D. T. WALDEN, for Petitioner.

I. The petitioner is entitled to an account, he having a demand against the personal estate of the deceased, as

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