Helme v. Sanders, 10 N.C. 563, 3 Hawks 563 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 563, 3 Hawks 563

Helme v. Ransom Sanders, administrator of John Sanders, who was executor of Ellick Sanders.

> From Johnston.

It is the duty of an executor here, to take out letters testamentary in another state fot the purpose of suing for a debt due there, if the interest of the estáte which he 1-presents require it; and in determining this latter point, the magnitude of the debt, the distance and probahl.- expense are to be considered. An omission to doit, when necessary, amounts to a devastavit.

Dr: nr upon a judgment quando, suggesting & devasta-vit in John Sanders as thp executor of Ellick Sanders} tried before Daniel, Judge. The suit was originally brought against John Sanders, and after his death, the present defendant, Ms administrator, was brought in by sci.fa.

On the trial, the plaintiff produced in evidence a judgment quando acciderint in Johnston County Court, May term, 1817, in favour of the present plaintiff, against John Sanders as executor of Ellick Sanders, for $ 127 31. To prove a devastavit, he then offered the inventory returned by John Sanders as executor, at November term, 1815, wherein he made a list of several promissory notes due Ellick Sanders, as being in his hands, and among them the note of one Davis, due in 1811, on which there remained due 77i. 10s. and at the bottom of the inventory were these words: “The above notes are considered desperate, and I will only be charged with them if collected.”

Plaintiff then proved that Davis was solvent, and it also appeared that he resided in Columbia, South Carolina; and had there resided some time before the death of Ellick Sanders. It was also in evidence, that John Sanders had twice sent the note to South Carolina and requested payment of it from Davis, who refused, assigning as a reason the want of money.

Defendant offered in evidence judgments quando, obtained by different plaintiffs against John Sanders as executor of Ellick Sanders, at August sessions, 1816, of Johnston County Court, to the amount of glOQO and upwards; none of which, however, had been paid, nor had any process been sued out on them by the plaintiffs therein.

For the plaintiff it was contended, that the executor of Ellick Sanders had been guilty of a devastavit so as to charge him in this action, by not suing for and recovering the amount of the note of Davis. On this point the Court charged, that an executor qualified to a will in this state, is not bound, nor can he bring suit for money due his testator beyond its limits and jurisdiction: and further, that an executor named in a will, by proving the same here, and taking out letters testamentary, creates thereby no legal obligation on himself to take out letters testamentary in another state, so as to recover by suit money due his testator in that state; though he may do so, and bo may receive the money without suit and give a disdnirgc of the debt, when it will become assets with which be is chargeable.

The plaintiff submitted to a nonsuit, and a new7 trial having been refused, plaintiff appealed.

Haywood, for plaintiff.

Devereux, contra.

Hall, Judge

I think an executor ought to use the same diligence in collecting the debts of his testator, as he would use in collecting his own, provided he is a man commonly careful and diligent in the management of his own affairs, and this without regard to the consideration whether the debtor lives in one state or another. All the personal estate of the testator, wherever it is, belongs to the executor, ((5 Co, 47.) and he ought to use ordinary diligence to collect it. (2 Brown 186. Bac. Ab. Executor, B. 2.) Perhaps to collect a small debt in a distant state would cost more than the amount of the debt; but every case must depend upon its own circumstances. Procuring letters testamentary in another state, is not of itself a decisive objection. As the jury were otherwise informed, I think there should be a new trial.

Another objection is made in this Court, and that is to the action being revived against the administrator of John Sanders• Arnold v. Executor of Lanier, (1 Law Repos. 528.) decides this case. That was an action of deceit, brought against an executor for the deceit of the testator in selling an unsound slave. Judge Sea-weut, delivered the opinion of the Court as follows: The act of 1799 declares that no action of detinue or trover, or action of trespass, where property either personal or real, is in contest, and such action of trespass is not merely vindictive, shall abate by the death of either party. This is an action of trespass, though not vi el arms and the passions and feelings have no concern; it is in fact to recover for an act done by the defendant’s testator, whereby he has been made richer and the present plairi-tiff poorer; wherefore we are all of opinion that the plaintiff is entitled to judgment. The same remark is applicable to the present case. I therefore think this objection not a good one.

Henderson, Judge.

The law of the domicil of the owner governs the transfer and transmission ab intestado of goods. A will, therefore, made according to the forms of that domicil, passes such property wheresoever it may be situated; and if proven in the Courts of that country, when offered in evidence in a foreign country, proof is not gone into of the execution of the will, but only of the probate. Such foreign probate, therefore, authorizes the executor to receive debts, take into his possession the property of his testator, and to do all acts appertaining to his office, except sustaining the character of an executor when he is the reus actor or plaintiff in a cause in Court; this character he cannot sustain here, not for want of right, but for want of such documentary evidence of the right that the Court can see upon an inspection (for the Court does not, at that stage of the business, go into proof) that he is executor; lie cannot, therefore, make a> profert of his letters testamentary, obtained in a foreign country, for want of authentic documentary evidence which our Courts can recognize without proof. He must, therefore, obtain letters testamentary here. But this is not obtained by proving the will here de novo, for in that case it would be making our law, and not the law of the place where he had his domicil, the rule of decision. Our Court of Probate goes into evidence as to the fact of the foreign probate only; and if satisfied of that fact, issues letters testamentary, that is, gives documentary evidence which our courts recognize as genuine. The taking out letters here is nothing more than obtaining the proof necessary for the executor to sustain his real character in our Courts, owing to our forms, If. ° therefore, the interests of the testator requires it, the executor is bound to do it. It is a devastavit to omit it, if thereby the estate sustains a loss. The magnitude of the debts lo be sued for, the distance, the expense, are to be taken into consideration, in ascertaining whether the interest ■>£ the estate requires it. Hut A lien the probate has been made in a sister state, mo think that the constitution of the United States, and the law of the United States, thereupon gives to the probate., when authenticated according to the law of the United States, such an authentic form, as that our Courts will recognize the probate without proof, and that such probate may be proffered to the Court to sustain the character of an executor. So that take it either way, the executor has been guilty of a de-vastavit in not attempting to collect the debt due in South Carolina, and therefore there should be a new trial. In saying that goods are regulated in their transfer and transmission ah intestato by the lex loci, we do. not include such property as owes its origin to the peculiar laws of any particular country, such as stock in bank and other corporate bodies. Such property is a creature of the law, and may be regulated by the will of the legislature of that country which gives such property existence.

Judgment reversed.