Upon a question between heir and devisee as to the competency of the testator at the time of making his will, it was held to be no misdirection to tell the jury that they might take into consideration statements made by the testator as to the dispositions contained in his will, and which, in fact, corresponded therewith, as throwing back light on the period at which the will was executed (a year before), and as affording means of inferring what was the state of his competency at that period (u). SECTION VI. Of the probate of wills of foreigners, &c., and of British subjects domiciled out of the jurisdiction of the court. in this country, be proved here: If the testator died without leaving any personal property in this If the deceased country, generally speaking, his will need not be proved left no personalty in any Court of Probate here: and, therefore, where his will need not the plaintiff, as administrator of I. S., who died at Naples, brought his bill to have a discovery of the intestate's personal effects, the defendant pleaded that the deceased had by his will made him, the defendant, his executor, and he had proved the will according to the law of the country; and he denied that the deceased had left any estate but what was at Naples: and this plea was held good (x),39 improper control had been exercised should be admitted. Herster v. Herster, 116 Pa. St. 612; S. C., 122 Id. 239. And evidence of conversations between the wife and the witness, after the death of the testator, and upon the day of his death, may be given to show the influence of the wife, continuing up to the time of death. Mullen v. Helderman, 87 N. C. 471. But declarations of a legatee made after the factum, tending to show undue influence, are not competent, Will of Ames, 51 Iowa 596; but if made at or about the time it is error to exclude them. Horn v. Pullman, 72 N. Y. 269. But a memorandum of a declaration by a testator made intermediate between the making of the will and his death is not admissible to show an intent different from that expressed in the will. Thomas v. Lines, 83 N. C. 191. In case of one suffering from disease, upon the question of whether the disease had reached such a stage at a given time before it had developed itself, that the patient was incapable of making a will, the opinions of his neighbors-men of good common sense-are of more value than that of medical experts. Rutherford v. Morris, 77 Ill. 397. In New Jersey, on an issue of undue influence, declarations respecting previous occurrences are not evidence of such occurrences. Rusling v. Rusling, 9 Stew. (N. J.) 603. (u) Sutton v. Sadler, 3 C. B., N. S. 99. See also Whiteley v. King, 17 C. B. N. S. 756. (x) Jauncey v. Sealey, 1 Vern. 397. Post, Pt. I. Bk. V. Ch. II. § I. 39. The personal property and assets of a decedent, though situate in different jurisdictions, constitute but one But if a foreign executor should find it necessary to institute a suit here, to recover a debt due to his testator, he must prove unless his executhe will here also,40 or a personal representative must tor institute be constituted by the Court of Probate here to adminis estate, and must be distributed according to the law of the domicil at the time of the death. But when they are in several jurisdictions, and administration is granted in each, each administrator is accountable in the courts of the state in which he was appointed, and each administration must be settled where it was granted. Equitable Life Assurance Society v. Vogel, 76 Ala. 441. If the testator leave personal property within the jurisdiction, the will may be proved there, even though, at his death, the testator were domiciled elscwhere, and the will has not, at the time, been proved at the place of his domicil. Hyman v. Gaskins, 5 Ired. 267; Wood v. Matthews, 73 Mo. 477; Varnar v. Bevil, 17 Ala. 286; Jaques v. Horton, 76 Id. 238; Stevens v. Gaylor, 11 Mass. 255; Gordon's Case, 5 Dick. 397. The courts of New Jersey have no jurisdiction to require an executor appointed in Pennsylvania of an estate of a resident of New Jersey to account, although the beneficiary's efforts to obtain an account in Pennsylvania have proved futile. Vandyke v. Vandyke, 9 Stew. (N. J.) 521. See also Cocks . Varney, 15 Id. 514. And this is also held in Pennsylvania, it being said that such executor must account in the foreign jurisdiction, Musselman's Appeal, 101 Pa. St. 165; and in such case, no proceedings will lie in Pennsylvania either by an administrator de bonis non cum testamento annexo, or by a legatee and cestui que trust under the will to charge such executor, or his representative, with assets of the estate, until an account has been filed in the foreign state, showing a balance in his hands. Id. suit: " 40. The phrase "foreign executor' is never used to signify the non-residence of the individual holding the office, but it refers to the foreign origin of the representative character. That is the sole product of the foreign law, and depends upon it for existence, and cannot pass beyond the jurisdiction of its origin. Hopper v. Hopper, 125 N. Y. 400. It may be said that letters testamentary have no extra-territorial effect. Wright v. Gilbert, 51 Md. 146; Dickinson v. Seaver, 44 Mich. 624; Luce v. Manchester & Lawrence R. R.Co., 63 N. H. 588; Turner v. Linam, 55 Ga. 253; Succession of Butler, 30 La. Ann. 887; Stewart v. O'Donnell, 2 Dem. 17; Hatchett v. Berney, 65 Ala. 39; Ferguson v. Morris, 67 Id. 389; Mosely v. Burrow, 52 Tex. 396; Sims v. Hodges, 65 Miss. 211; Jackson v. Scanland, Id. 481; Moore v. Jordan, 36 Kans. 271; Sloan v. Frothingham, 72 Ala. 589; Harris v. Moore, Id. 507; Buck v. Johnson, 67 Ga. 82; Corrigan v. Jones, 14 Col. 311. It is now held, almost universally, that, although the executor or administrator cannot maintain a suit in a foreign state, to recover personal property, or collect a debt due the estate, yet he is permitted to take possession of any such property peaceably, without suit, and he may collect a debt that is voluntarily paid to him, and in case there be no conflicting administration in the state where such property was situate, or debt due, the courts of that state will recognize the title of the foreign executor or administrator as rightful, and protect it as fully as if he had taken out administration there. Putnam v. Pitney, 45 ter ad litem (y). So an executor having obtained probate in Ireland could not bring an action here as executor, even to recover Irish assets, without having obtained probate in England also (z). For the courts here will not recognize *any will of personalty except such as the Court of Probate of this country has by the probate adjudged to be the last Minn. 242; Selleck v. Rusco, 46 Conn. 370; Metamara v. Metamara, 62 Ga. 200. In Missouri, the defect of parties, where a suit is brought, in that state, by a foreign administrator, must be taken advantage of in the trial court, by demurrer or answer. If not so objected to, it will be deemed to be waived, and such objection cannot be raised for the first time on appeal. May v. Burk, 80 Mo. 675. See Dye v. Gritton, 29 Ill. App. 54. Where an action is brought by a foreign executor, in Michigan, before the will is probated there, such action will be made good by the subsequent probate before the hearing. Gray v. Franks, 86 Mich. 382. Under 3267, R. S. of Wisconsin, the same rights and remedies are accorded to a foreign executor or administrator as to one appointed in Wisconsin, upon his filing his appointment, or a duly authenticated copy thereof, in any county in Wisconsin, Murray v. Norwood, 77 Wis. 405; it is immaterial whether the decedent had property or not in the county in which the appointment, or copy, is filed. Id. A foreign executor or administrator (y) Attorney-General v. Cockerell, 1 Price, 179, by Richards, B. Mitf. Pl. 177, 4th edition. Tyler v. Bell, 2 M. & Cr. 89. Attorney-General v. Bouwens, 4 M. & W. 193. (2) Carter v. Crofts, Godb. 33. Whyte v. Rose, 3 Q. B. 508, per Tindal, C. J. But now sealing an Irish probate or a has no standing as a party plaintiff in the courts of New York, without taking out letters in that state. Farrington v. American Loan & Trust Company, 18 Civ. Pro. 135. Nor can an administrator appointed in one state maintain, as such, any suit in another state. Johnson v. Powers, 139 U. S. 156. And this rule prevails largely throughout the United States. Wright v. Gilbert, 51 Md. 146; Gibson v. Ponder, 40 Ark. 195; Fugate v. Moore, 86 Va. 1045; Sloan v. Sloan, 21 Fla. 589; Matter of Webb, 11 Hun 124; Buck v. Johnson, 67 Ga. 82. Nor can a non-resident maintain a suit, in the courts of Pennsylvania, against a foreign administrator, who has no assets in Pennsylvania. Magraw v. Irwin, 87 Pa. St. 139. So too, in New York, where an action is brought against a foreign administrator, for work and services done at his special instance and request, in the absence of allegations that there are assets in New York, the court has no jurisdiction. Murphy . Hall, 38 Hun 528; Fischer v. Fischer, 50 N. Y. Super. 74. But in Illinois, he may maintain an action to recover damages for injuries to the person of his intestate. Wabash, St. Louis & Pacific Ry. Co. v. Shacklett, 10 Ill. App. 404. Nor Scotch confirmation gives them a like force and effect as if a probate had been granted. See 20 & 21 Vict. c. 79, § 95; 21 & 22 Vict. c. 95, § 29, and Rule 73, P. R. 1862 (non-contentious), as to Irish probates and 21 & 22 Vict. c. 56, §§ 9, 12 & 14, as to Scotch confirmations. will (a). Therefore, if a testator die in India, and his personal estate be wholly there, and his executor be resident there and the will be proved there, yet if a part of the assets remain in the hands of the executor unappropriated, and come to be administered in England, and a legatee in England institute a suit here for the payment of his legacy out of such unappropriated assets, administration to the testator ought to be taken out in this country, and the administrator made a party to the suit (b). So to a bill which seeks an account of the can the assignee of a foreign executor maintain an action on a note and mortgage, in South Carolina. Dial v. Gary, 24 S. C. 572. Nor can a foreign administrator sue for possession of his intestate's land, in Arkansas. Fairchild. Hagel, 54 Ark. 61. Nor can he be substituted in the place of the deceased in an action pending against him at the time of his death. Matter of Webb, ubi supra. However a foreign executrix may maintain an action in her individual name, on a judgment recovered by her, as executrix, in another state on a debt due to her testator. Lewis v. Adams, 70 Cal. 403. But an action in a Federal court will not abate on account of the death, but the executor must take out letters in the state where the action is pending, for which purpose a reasonable time will be allowed. Kropff v. Potts, 7 N. J. L. J. 11. annexo may sue out an order of attachment in Kansas. Dunlap v. McFarland, 25 Kans. 488. Executors appointed by a court of another state have no authority to prosecute, in their representative capacity, a special proceeding, in the State of New York. Their power cannot be exercised beyond the geographical limits of the state wherein the same originated, and this disability is not confined to the maintenance of actions. Stewart v. O'Donnell, 2 Dem. 17. But in Mississippi, a foreign executor may maintain an action if he complies with Code 1880, § 2091; otherwise he cannot. Hope v. Hurt, 59 Miss. 174. The courts of New York have no equitable jurisdiction over a foreign executor, to compel an accounting, and enjoin the withdrawal of assets situate in New York, when the executor is neither within nor served with process within the state, Kanter v. Peyser, 51 N. Y. Super. 441; but an administrator appointed in a foreign country coming into New York with assets may be required to account in his character as trustee to one entitled to a distributive share without taking out letters. Marshall v. Bresler, 1 How. Pr. N. S. 217. But such administrator may be proceeded against, in a proper action, (b) Logan v. Fairlie, 2 Sim. & Stu. 284. 1 Myln. & Cr. 59. See also Low v. Fairlie, 2 Madd. 101. assets of an intestate, who died in India, possessed by a personal representative there, a personal representative of the intestate, constituted in England, is a necessary party, though it does not appear that the intestate, at the time of his death, had any assets in England (c). And it may be stated, as a fully established rule, that in order to sue in any court of this country, whether of law or equity, in respect of the personal rights or property of a deceased person, the plaintiff must, except in the case brought in equity, to compel an accounting for such assets. Field v. Gibson, 20 Hun 274. Although it is well settled that foreign administrators or executors cannot be sued as such, it is equally well settled that if such executor or administrator come within such jurisdiction, and bring with him assets or property belonging to the trust estate, he may be held to account as a trustee for those entitled to the effects in his hands. Dillard v. Harris, 2 Tenn. Ch. 196; Johnson v. Jackson, 56 Ga. 326; Lake v. Hardee, 57 Id. 459; but in a case where an administrator brings choses in action into the jurisdiction and settles them without suit, he cannot afterward be sued in that jurisdiction for the proceeds of such choses in action. Metamara v. Metamara, 62 Ga. 200. Where a foreign executor or administrator is sued in the courts of a state foreign to his appointment, the nature and the extent of his liability will depend upon the laws of the state where he derived his authority to administer the assets of the decedent. Hoskins v. Sheddon, 70 Ga. 528. A foreign administrator cannot be sued in his representative capacity in the courts of New Jersey. Durie v. Blauvelt, 20 Vr. 114; Banta v. Moore, 2 McCart. 97; Porter v. Trall, 3 Stew. (N. J.) 106. Nor can an executor be called to account in New Jersey, where the will of the non-resident testator has never been proved in that state. Cocks v. Varney, 15 Stew. (N. J.) 514. Where a non-resident testator held a mortgage on lands in New Jersey, the mere filing of an exemplified copy of his will in the proper county of New Jersey does not qualify his executors to maintain a suit to foreclose the mortgage, Porter v. Trall, ubi supra; he should take out letters testamentary in New Jersey. Id. Since the above decision, this matter has been regulated in New Jersey, by statute, it being provided (P. L. 1879, p. 28) that executors or administrators, by authority of foreign letters, may prosecute actions in the courts of New Jersey, provided that upon commencing suit, they file in the office of the clerk of the court in which such suit shall be brought an exemplified copy of the record of their appointment. But in South Carolina, the filing of such exemplified copy, and the marking of it "filed and admitted to probate," by a probate judge, does not authorize executors to bring an action there without letters issued. Patterson v. Pagan, 18 S. C. 584. But in Michigan, the failure of the probate judge to record the authenticated copy of a foreign will, which has been proved and admitted to probate, is a mere omission of clerical duty, and will not invalidate the proceedings. Clow v. Plummer, 85 Mich. 550. (c) Tyler v. Bell, 2 Myln. & Cr. 89. Bond v. Graham, 1 Hare, 482. See post, Pt. V. Bk. II. Ch. II. |