Summary
noting that in Ghilain, "a foreign domiciliary administrator was allowed to sue under our wrongful death statute without the necessity of the appointment of an ancillary administrator in this state"
Summary of this case from Tillotson v. Dartmouth-Hitchcock Med. Ctr.Opinion
No. 4894.
Argued December 6, 1960.
Decided January 20, 1961.
1. An action upon a promissory note commenced by a foreign domiciliary administrator against a resident maker of the note was held maintainable by the heirs at law of the decedent following assignment of the note to them and the granting of a motion for substitution of their names for that of the administrator as parties plaintiff.
ACTION OF ASSUMPSIT, to recover on a promissory note, secured by a personal property mortgage, in which the defendant was the maker and the plaintiff an assignee for value. The declaration in the writ also contains additional counts for deceit in the sale of the personal property which was the subject of the note and mortgage.
At a conference before trial the defendant moved to dismiss on the ground that the plaintiff, a domiciliary administrator appointed by the probate court in Vermont, could not maintain this action against the defendant, a resident of New Hampshire. The Court indicated that it would grant the motion but allowed the plaintiff ten days to submit any authorities which would sustain his right to maintain this action. Within the ten-day period the plaintiff filed a motion for substitution of parties plaintiff as follows.: "Now come Ruth C. Forbes and Russell D. Coburn, who being the sole heirs of Clarence W. Coburn late of West Fairlee, Vermont, deceased, and being the persons to whom the note and mortgage which are the subject of this action have been assigned, move that they be substituted as parties plaintiff in this action." The motion was accompanied by an assignment of the note and mortgage by the plaintiff administrator to the sole heirs at law (Ruth C. Forbes and Russell D. Coburn) together with a copy of a decree from the probate court in Vermont authorizing the assignment to be made.
During a subsequent hearing the Court granted the plaintiff's motion for substitution of parties plaintiff and made the following ruling: "It is ruled that the original plaintiff as an administrator appointed by the State of Vermont cannot maintain this action but since the motion to substitute an assignee of the administrator as party plaintiff has been granted this date the [defendant's] motion to dismiss is denied." Defendant's exception to the allowance of plaintiff's motion for substitution of parties plaintiff was reserved and transferred by Grimes, J.
Edes Hobbs (Mr. Edes orally), for the plaintiffs Ruth C. Forbes and Russell D. Coburn.
Mack M. Mussman for the defendant.
The common-law concept that an administrator appointed in one state could not sue in another state and also had no power over personal property in another jurisdiction received uncritical acceptance in our early cases. Thompson v. Wilson, 2 N.H. 291; Taylor v. Barron, 35 N.H. 484; McDowell, Foreign Personal Representatives, pp. 63, 77 (Michigan Legal Studies, 1957). While this concept stated a general rule it was recognized that the "general rule is somewhat limited" (Keenan v. Tonry, 91 N.H. 220, 223) and various exceptions were developed in its application to particular situations. Ehrenzweig, Conflict of Laws, s. 15 (Part 1, 1959); Note, The Capacity of Executors and Administrators to Sue in a Foreign Jurisdiction, 50 Colum. L. Rev. p. 518 (1950). Thus, a foreign administrator was allowed to collect an asset of the estate if a voluntary payment was made by the debtor. Luce v. Railroad, 63 N.H. 588. Another exception permitted the domiciliary administrator in another jurisdiction to assign the note and the security for it to an assignee who could bring suit in this state. Gove v. Gove, 64 N.H. 503, 505, which overruled Thompson v. Wilson, supra, and Taylor v. Barron, supra, and ignored a contrary dictum in Heywood v. Hartshorn, 55 N.H. 476 as well. See anno. 10 A.L.R. 276, 285. Another departure from the rule was Ghilain v. Couture, 84 N.H. 48, 51, in which a foreign domiciliary administrator was allowed to sue under our wrongful death statute without the necessity of the appointment of an ancillary administrator in this state.
The general rule of incapacity of foreign administrators to sue and collect personal assets of an estate has not only produced the exceptions to the rule previously mentioned but has been subject to steady attack by recent commentators. Ehrenzweig, Conflict of Laws, s. 14 (Part 1, 1959); Leflar, Conflict of Laws in 1957 Annual Survey of American Law, 49 (1958); McDowell, Foreign Personal Representatives, c. VI; Stimson, Conflict of Laws and the Administration of Decedents' Personal Property, 46 Va. L. Rev. 1345 (1960). Whatever may be said for or against the general rule we do not have to directly pass on it inasmuch as the administrator is no longer a party and the assignees bring themselves within one of the exceptions to the rule.
The record in this case clearly demonstrates that the Court was aware of the general rule as well as its exceptions as developed in this jurisdiction. Gove v. Gove, 64 N.H. 503 is adequate authority for permitting the domiciliary administrator to assign the claim to the heirs at law who were not hampered by procedural incapacity. This exception has a practical desirability even if it is subject to theoretical criticism. See Goodrich, Conflict of Laws (3d ed. 1949) p. 559; 3 Beale, Conflict of Laws 1512 (1935). The Court's allowance of the motion for substitution of parties plaintiff is not only supported by Gove v. Gove, supra, but by the practice that has been allowed in analogous situations. See Swan v. Bill, 95 N.H. 158, 161; Upton v. White, 92 N.H. 221, 227. As was pointed out in Ghilain v. Couture, 84 N.H. 48, 51, no "infrangible principle of the common law forbids it." The Court's ruling allowing the motion to substitute the assignees of the administrator as parties plaintiff and denying the defendant's motion to dismiss was correct.
Exception overruled.
All concurred.