Opinion
Appeal from superior court, county of Los Angeles.
SYLLABUS
1. FOREIGN EXECUTRIX -- RIGHT TO SUE IN CALIFORNIA.
Under the California statute the foreign executrix cannot maintain an action in its courts, either as such executrix or individually, for a claim due the testator, without having first obtained ancillary letters testamentary or of administration. Code Civil Proc. § 1913.
2. FOREIGN EXECUTOR OR ADMINISTRATOR -- AUTHORITY OVER LOCAL ASSETS.
Under the California statute the local administration of the estate of a deceased non-resident may be treated as ancillary, and the surplus, after payment of the local debts and expenses, may, by order of the, court, be delivered to the executor or administrator of the domicile, and to that end the latter may apply to the California court for such an order; but beyond such right the executor or administrator of the domicile can have no authority over the local assets.
Victor, Montgomery & Smith and Brown & Hutton, for appellant.
Thorn & Stevens, for respondents.
In bank.
OPINION
MYRICK, J.
Action on a judgment. The complaint averred that on the fifteenth of March, 1877, in a district court in the state of Texas, in an action pending between the plaintiff, as executrix, and the defendants, it was adjudged that the defendants pay to plaintiff, as executrix, a sum named, and on that day judgment was accordingly duly rendered. The plaintiff's testator died in 1872, the will was admitted to probate, and in the same year letters testamentary were issued to plaintiff and plaintiff duly qualified; wherefore, the plaintiff, as executrix, prayed judgment against defendant for the amount of the judgment, interest, and costs. The complaint was filed March 17, 1882. The complaint was demurred to by defendant Adams on the grounds, (1) the plaintiff had no legal capacity to sue, being executrix only by appointment in Texas, and having no authority beyond the jurisdiction of that state; (2) the cause of action is barred by section 336, Code Civil Proc.; and (3) the facts stated are not sufficient to constitute a cause of action. The demurrer was overruled, and the cause was tried on the issues raised by the answer. The court found that "all the allegations of the plaintiff's complaint are true and correct," and rendered judgment against Adams for the amount prayed for. Subsequently, on motion of defendant Adams, a new trial was granted, but upon what ground was not stated. It is therefore to be seen if the order can be sustained on any ground.
When this case was decided by this court in department, the court used the following language:
"(1) The plaintiff, as a foreign executrix, could not maintain an action in the courts of this state without first obtaining ancillary letters of administration or testamentary. Section 1913, Code Civil Proc., declares, `* * * that the authority of * * * an executor or administrator does not extend beyond the jurisdiction of the government under which he was invested with authority.' The official character of the plaintiff was derived from the letters granted to her in the state of Texas; and, as it was confined to the limits of the state, it was not recognizable in California. Therefore she could not, in that capacity, maintain an action here. If it became necessary for her to sue in this state to recover a debt due to the estate which she was administering in Texas, her first step was to obtain letters of administration from the proper court in this state, by subjecting herself to the regulations prescribed by the laws of the state; otherwise her official character cannot be recognized by the courts, and she has no capacity to sue in the courts of the state." 7 Pac. Rep: 779.
We are satisfied with the views thus expressed. In the petition for hearing in bank the plaintiff said:
"We conceded that the plaintiff, as executrix, under her letters issued in Texas, could not maintain an action here on a claim due to the testator, Nat. Lewis, but contended that she, having there in Texas recovered a judgment in her individual capacity, the court should and would treat all of the allegations as to the death of Lewis and the issuance of letters as surplusage, and should give us judgment in favor of plaintiff individually."
In reference to this, we say, the plaintiff sued as executrix, and not in her individual capacity; as executrix she prayed judgment. But if she had sued in her individual capacity, section 1913 would have been an answer. She had not reduced the property sued for, viz., the amount owing to her testator, to possession, but was endeavoring to make use of the courts of this state for that purpose. We think the statutes of this state in this regard have furnished a harmonious system. If there be assets of the estate of a testator in this state administration may be had, (the administrator having power to reduce the same to possession by suit or otherwise,) and if the testator was a non-resident, the administration here may be treated as ancillary, and after the payment of the local debts and expenses the surplus, may, by order of the court, be delivered to the executor or administrator of the domicile, and to that end the executor or administrator of the domicile may doubtless apply to the court in this state for such order; but beyond that no authority over the assets here seems to have been given to the executor or administrator of the domicile.
As a new trial was granted, it is not necessary to consider the sufficiency of the findings. The order is affirmed.
We concur: ROSS, J.; McKEE, J.; MORRISON, C. J.