
    SUPREME COURT.
    James C. Gulick, administrator, &c., respondent agt. Ellen P. Gulick and Frances M. Gulick, an Infant, by her Guardian, &c., appellants.
    Where the defendant was appointed administratrix in California, of the estate of her deceased husband, who was a resident of that state, and there received and took possession of the property and effects of the intestate, with which she subsequently removed to this state,
    Held, that an action could bo sustained against her here on a claim of indebtedness against the estate, which arose from assets received by the intestate in his lifetime as administrator, appointed in California, of the estate of an intestate who also resided there. (The briefs, with the authorities in this case, will be found to be important on this question.)
    
    
      New York General Term, December, 1860.
    
      Present, Sutherland, P. J., Ingraham and Bonney, J. J.
    Appeal from an order overruling demurrers.
    The case, as made by the complaint, is briefly this: In the years 1851 and 1852, John C. Gulick and Richard M. Gulick, were residents of the state of California. That while so residing, John became indebted to Richard, in the sum of $2,300, for money loaned. That after such loan, and in April, 1852, Richard died intestate at California, leaving personal property there. That after the death of Richard, John possessed himself of the property left by Richard, to the amount of $2,000. That in 1855, John died at Honolulu, leaving the defendants, Ellen P. Gulick, (bis widow,) and Frances M. Gulick, (who was sued by the name of Mill i cent F.) his only child. That the defendant Ellen P. was appointed administratrix of the estate of John, in California. That she and her daughter Frances M., at some place beyond the jurisdiction of this court, took possession of John’s property to the extent of from $15,000 to $20,000, and that Ellen P. has brought the property so taken into this state, and has the same here, and that Frances M. her daughter claims some interest therein.
    The complaint also shows, that the plaintiff, in November, 1857, was appointed the administrator of Richard M. Gulick, deceased, by Hon. Alexander W. Bradford, surrogate of the county of New York, and then demands that the defendants account to the plaintiff, and that he be paid the indebtedness of John to plaintiff’s intestate, and for the property of plaintiff’s intestate, which John took after his death.
    Both defendants demurred on the following grounds: 1st. Want of jurisdiction over the cause of action. 2d. Plaintiff has no legal capacity to sue. 3d. There is a defect of parties plaintiff. 4th. There is a defect of parties defendant. 5th. Misjoinder of actions. 6th. Not sufficient facts to constitute a cause of action. The demurrers were overruled at special term; and, thereupon, the defendants brought these appeals.
    Nelson Smith, for the appellants.
    
    I. The plaintiff has improperly united in his complaint a cause of action arising on contract with one arising out of a tort. These causes of action could not have been joined before the Code, (Martin agt. The Mayor, 1 Hill, 545; Pell agt. Lovett, 19 Wend., 546,) and cannot now. (Code, §167.)
    II. As a suit in equity for an account of administration of the assets of James C. Gulick, deceased, there is a defect of parties.
    1. The deceased’s personal representative should have been made a party defendant. (Humphrey agt. Humphrey, 3 P. Wm. R., 349.) The California letters of administration to Mrs. Gulick do not help the plaintiff. (Story’s Eq. Pl., § 179.) The courts of this state will take no notice of foreign administration. (Doolittle agt. Lewis, 7 John. Ch., 47 ; Bond agt. Graham, 1 Hare, 482 ; Vermilyea agt. Beatty, 6 Barb., 431; Vaughan agt. Northrup, 15 Peters, 1.)
    
      2. The other creditors of the deceased should have been plaintiffs, or the action brought in behalf of the plaintiff, and all such other creditors.
    III. The complaint does not state facts sufficient to constitute a cause of action against either deféndant, or to give the court jurisdiction.
    1. If the action be founded on the statute, as a suit against next of kin, (2 R. S., 451, §§23, 24,) the complaint is bad, for that it does not show that any assets bad been paid or distributed to the defendants by the administrator of John C. Gulick, deceased.
    2. Bichard M. Gulick was domiciled in California at the time of his death; that is the place of principal administration of his estate. (Churchill agt. Prescott, 3 Bradf. R., 233; Fay agt. Haven, 3 Met., 114.) The administration on his estate here is ancillary or subordinate to the administration had, or which may be had, in California. (Churchill agt. Prescott, id.) An ancillary administrator, in respect to his right to compel an accounting, is limited to the assets which are in the state at the time of the death of his intestate. He cannot assert any claim to property received by a foreign administrator, although such property had been brought into this state. (Story’s Conflt. of Laws, §§514, 515; Curry agt. Buckam, 1 Dowl. & Ryl., 35; Jauncey agt. Sealey, 1 Vern., 397; Fay agt. Haven, 3 Met., 109.) Neither can a creditor, through the instrumentality of an ancillary administration, compel an account of assets received abroad. (Fay agt. Haven, 3 Met., 114.)
    3. The defendant, Ellen P. Gulick, as foreign administratrix, is not suable here. No action can be maintained against any administrator in bis official capacity, in the courts of any country except that from which he derives his authority to act, in virtue of the letters of administration granted to him. ( Vaughan agt. Northrop, 15 Peters, 1; Bond agt. Graham, 1 Hare, 482; Bell agt. Tyler, 2 Myl. & Cr., 89; Vermilyea agt. Beatty, 6 Barb., 431; Fay agt. Ha
      
      ven, 3 Met., 114, 115.) In Vaughan agt. Northrop, supra, a bill was filed on the equity side of the circuit court of the District of Columbia, in favor of the next of kin of James Moody, deceased, who was domiciled in Kentucky at the time of his death, against Northrop, Moody’s administrator, appointed in Kentucky. The bill alleged that Northrop, as administrator, had .received money from the general government at Washington, and prayed an account and distribution. Northrop pleaded to the jurisdiction of the court, upon the ground that he was only responsible to the court in Kentucky. The district court, on the argument of that plea, dismissed the bill, and on appeal to the supreme court of the United States, the judgment of the district court" was unanimously affirmed. The case is precisely in point, and the question being one which may occasion a conflict of laws between the different states, and the decision being of the highest federal court, should be followed.
    In Fay agt. Haven, (3 Met., 109,) the action was on a-bond given to the plaintiff as judge of probate for the county of Middlesex. The facts were, that Samuel Liver-more died domiciled in New Orleans. Haven was one of the executors under his will, duly authorized as such to act under the laws of Louisiana. That on his application he was appointed administrator of Livermore in Massachusetts by Fay, a judge of probate, and gave the bond. Liver-more had creditors in Massachusetts, and the action on the bond was to compel Haven, as administrator in Massachusetts, to account for property which he had received as executor of Livermore in New Orleans, and the court held he was not liable. The case is in point, Haven was a foreign executor as respected the assets of Livermore received in New Orleans. The creditors of Livermore were endeavoring to compel him to account in Massachusetts, and were defeated. While, in this case, Mrs. Gulick is a foreign administratrix, and the plaintiff, a creditor, is endeavoring to compel her to account here for property collected abroad. The only difference is, the plaintiff, here standing in the shoes of his intestate, is a foreign creditor, without offering ¡any apology to the court for not applying for relief in California, where all parties resided, whereas in Haven’s case tthp creditors were resident in Massachusetts.
    In Vermilyea agt. Beatty, (6 Barb., 431,) it was held that a foreign administrator Avas not suable at law in the courts of this state. Campbell agt. Toucey, (7 Cow., 64,) was considered ¡and decided not to be laAV. And there is no decision or dictum in this state in fa\ror of the jurisdiction iaoav asserted, except McNamara agt. Dwyer, (7 Paige, 239.) That Avas a very special case, Avhere to prevent a failure of justice, and of absolute necessity the chancellor asserted jurisdiction. There the executor had AvithdraAvn himself and the estate from the jurisdiction of the foreign tribunal, and had squandered and misapplied the trust estate; but that case disclaims jurisdiction to compel a foreign administrator to account when he is amenable to the courts of his own country.
    , The subsequent case of Brown agt. Brown, (1 Barb. Ch., 189, 195, 217,) clearly shoAvs that the jurisdiction will not be asserted, except in very extreme cases, cases in Avhich no remedy exists elseAvhere. Even applying the cases of McNamara agt. Dwyer, and Brown agt. Brown, to this suit, and the plaintiff’s complaint is entirely devoid of equity. He does not show that he or his intestate’s home administrator has ever presented the claim to Mrs. Gulick in California, or that any effort had been made there to obtain relief, or that Mrs. Gulick does not reside there, or that she or her sureties are insolvent, or that she has Avasted or misapplied the estate of her intestate, nor any other fact to shoAV any grounds for the interference of this court.
    IV. Account will not lie against an infant. (2 Greenl. Ev., §35; Harker agt. Whittaker, 5 Watts, 474.) Nor against a wrongdoer. (2 Greenl., §35.) Nor against an executor de 
      
      son tort. (3 Met., 115; 6 Barb., 230.) Nor in any case where there is no privity of contract or of law.
    J. W. Edmonds and H. D. Van Orden, for respondents.
    
    The indebtedness of John 0. Gulick to the intestate, the grant of administration to the plaintiff and the fact that defendants have in their possession in this state, property of the debtor are admitted, and the main question presented by the demurrer is whether our tribunals can reach that property so as to enforce the pajonent of the debt ?
    I. If it cannot be reached in this action then it can be reached in no way, and though the debtor, when he died left abundant means to pay his debts, there is no means of enforcing the payment.
    1. Payment cannot be enforced in California, because neither defendants nor property are there, and both defendants and property being in this state, payment of the debts can be enforced nowhere but here.
    2. One great merit of the common law is its elasticity, and under it the power of reaching wrongs and applying remedies in all cases. Boni judiéis est ampliare justitiam (id est, jurisdictionem) per Ld. Mansfield, (1 Burr., 304.) Ubi jus ibi remedium. Johnston agt. Sutton, (1 T. R., 512.) Per Ld. Holt, in Ashby agt. White, (2 Ld. Ray., 953.) 1 Smith’s Lead. Cases, 130, (Hare & Wallace’s 5th Am. ed., p. 360.) See Gale’s ed. of Ld. Raym., 597.
    II. Acting upon this principle the courts at an early day, though the rule was that a foreign administrator could not be recognized in them, adopted the practice of making him liable in our courts for property which he brings within our territory.
    1. It is, in fact, a proceeding in rem, kindred to foreign attachment.
    2. The principle of this remedy was adopted as long ago as about 1600, in the following words: “If the executor have goods in any part of the world he shall he charged in respect of them. For many merchants and other men, who have stock and goods of great value beyond sea are indebted here in England, and God forbid that those goods should not be liable to their debts, for otherwise there would be great defect in the law.” (Dowdale’s case, 6 Co. R., 47, per Ld. Coke.)
    3. It has been received and sanctioned in this state, and is the unquestioned law here, however much it may be questioned in other states. Campbell agt. Tousey, (7 Cow., 64,) in our supreme court; McNamara agt. Dwyer, (7 Paige, 239,) in our court of chancery; where it was carried so far as to hold the party to bail on ne exeat. See also in Pennsylvania Willing agt. Perot, 5 Rawle, 264; 4 Serg. & R., 389; 9 id., 252; and in Virginia 11 Leigh R., 1, 36.
    4. In the case of Campbell and Tousey, the party was sued as executor de son tort, but the fact that such executor-ships are abolished with us makes no difference. Our Revised Statutes have provided a direct action like this as a substitute. (2 R. S., 449, §17; Id., 451, §23.)
    Thus the principle is not disturbed, though the form of the remedy is changed. But our court of chancery held the party liable in that court, without charging him de son tort, and this action is the equity remedy, and precisely that suggested by the chancellor. (McNamara agt. Dwyer, 7 Paige, 243.)
    III. It is now a prevailing principle that foreign administration will be so far recognized as to give our courts jurisdiction, where the situs rei and the presence of the parties unite. And distribution will be decreed in the situs rei, though it is according to the rule of the lex domicilii. 2 Kent Com., 433, where .it is said “ such a jurisdiction is sustained by principles of public law, and is consistent with national policy.” (Harvey agt. Richards, 1 Mason, 403,)
    IV. And when assets of a foreign intestate are found here, it is a matter of option with our courts whether they will order distribution here or cause the funds to be remitted abroad.
    1. In such case, if there are creditors here, our courts will order distribution here to the extent of paying then-debts, and not compel creditors here to go abroad for then-pay. (Dawes agt. Head, 3 Pick., 123.)
    2. This grows out of the principle that it is the duty of every government to protect its own citizens in the recovery of their debts.
    3. In the case of a solvent estate this is always done, but where the estate is insolvent it is merely a question of national comity whether creditors residing here shall be first taken care of or the assets be sent abroad for general distribution. (See Mothland agt. Wiseman, 3 Penn. R., 185.)
    4. It is on the same principle that obtains in our courts in cases of ancillary administration here on a foreign intestate’s estate, when creditors here are taken care of and the surplus only sent abroad. (2 Kent’s Com., 5th ed., 434, note; Miller’s Est., 3 Rawle, 312; Porter agt. Heydock, 6 Verm. R., 374; Fay agt. Haven, 3 Metc., 109 ; Cummings agt. Banks, 2 Barb. S. C., 607.)
    V. Accordingly the principle has been incorporated into our statute.
    1. The surrogate has power to grant administration, where an intestate not being an inhabitant of this state shall die out of the state, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate. (2 R. S., 73, ^ 23.)
    2. Thus the whole assets coming into this state are made subject to our law.
    3. Where administration is thus granted of such property, the duty of the administrator is,
    1. To make an inventory of all the assets. (2 R. S., 82, § 2.)
    2. To get the assets into his possession, and for that purpose all persons having them in their possession are to account for them. Not, as of old, to creditors as executors de son tort, hut to the administrator. (2 R. S., 81, § 60. 449, §17.)
    4. These enactments have incorporated into our law the principle, that domestic creditors shall not he driven abroad to get their pay when there are assets here, no matter in whose hands they may be, and it is that principle which we invoke in this case.
    5. And so far as our suit is an éffort to get possession of the assets of our intestate which came into the possession of the defendant’s intestate, these provisions of our statutes are strictly applicable and are strictly followed.
    6. So that whether our action be regarded as an attempt to coerce the payment of a debt, or an attempt to obtain possession of our intestate’s estate, there is enough to maintain the action.
    VI. The defendant, as the representative of the estate of John C. Gulick having come into this state, and brought here that estate, and there being creditors, it was her duly here to take out administration, in order to afford those creditors their remedy.
    1. Letters taken out by her here could be the only title she could have here to hold the property.
    
      2. And bringing the property here charged with the trust of paying the debts, she is properly chargeable here as such trustee. (Bond agt. Graham, 1 Hare, 483; Logan agt. Fairlie, 1 Myl. & Cr , 59; Cummings agt. Bank, 2 Barb. S. C. R., 607.)
    3. And she cannot divest herself of that trust by willfully omitting to put it in the legal form of administration.
    4. We are not thus to be deprived of our rights by her omission of duty. (Ubi jus ibi remedium ; Story on Conf. Laws, §512, et inde.)
    
    VII. All that it will be necessary for us to prove, to maintain our action, is, that defendant possessed herself of the assets, and she can discharge herself only by proving" plene administravit, or ne unques executor.
    
    
      Anderson agt. Counter, (2 Myl. & Keene, 763,) was a case ’almost on all fours with ours. Gaunter and Clubley took out letters in India on the estate of Oarnegy. Clubley died, and his wife administered in India on his estate, and became possessed of his assets there. She was a party to this suit in England by Carnegy’s residuary legatees, and the court held it could be maintained against her, not for the purposes of general administration, but only to require her to account of what she had received as his executrix, and charge her with the balance, she being accountable there as executrix of an executor for what the executor had received.
    VIII. The result of all these cases and principles is, that whether foreign administration shall be recognized among us, being matter of comity and not obligation; so in all cases of foreign intestacy, we so exercise the duty of comity as first to protect our own citizens in respect to property actually within our limits and subject to our jurisdiction. (Dawes agt. Head, 3 Pick. R., 128.)
    And we do not permit a-foreign jurisdiction to withdraw property within our control from its obligation to pay debts owing to our citizens. (Story on Conf. Laws, §514.)
   By the court, Bonney, Justice.

We see no cause to question the correctness of this judgment. The surrogate of New York, upon the facts stated in the complaint, clearly had power to grant letters of administration upon the estate of Richard M. Gulick in this state, and the plaintiff as such administrator is the proper representative of this estate, and authorized to prosecute any action for its benefit. (3 R. S., 5th ed., 158, § 23.)

The counsel for the appellants strenuously insists that the facts stated constitute no cause of action against either of the defendants, of which this court can take jurisdiction.

The alleged cause of action is an indebtedness of the estate of John C. Gulick to the estate of Richard M. Gulick. For such a cause, doubtless, an action may be maintained in this court if the parties are properly subject to its jurisdiction. The plaintiff is the proper representative in this state of the estate of Richard, and there can be no doubt of his right to sue here.

The defendant, Ellen, is within the jurisdiction of the court, appears in the action, and has here in her possession the property out of which plaintiff claims this indebtedness should be satisfied. Prima facie she is subject to the jurisdiction of the court.

But it is said the defendant, Ellen, as also appears from the complaint, was appointed administratrix of the estate of John C. Gulick, in the state of California, and there received the property of that estate, which she has brought with her, and now has in her possession, as such administratrix, in New York, and that for any claim against the estate of the intestate no action or proceeding can be taken or maintained against her, out of California, where only she can be required to account or answer as such administratrix. Can this position be maintained ?

The case of Campbell, adm’r, &c., agt. Tousey, ex'r, &c., (7 Cowen, 64,) was an action for money lent to defendant’s testator. At the trial it appeared that said testator resided and died in Pennsylvania, and defendant there took out letters testamentary, and qualified as executor; that as such executor he received in Pennsylvania $700 of assets, which he brought to this state, and that he here received further assets. The judge at circuit charged that defendant was liable for all the assets which he still retained in his hands, or which he had expended or disposed of in this state, otherwise than in the due course of administration; whether they were received in this state, or originally received in Pennsylvania, and thence brought to this state. On motion by defendant for a new trial the court held that there was no error in this charge; that if a foreign executor is liable to be sued here, of which there could be no question, he must, from the very nature of the case, prima facie, be responsible for the assets, which are shown to have been in his possession within this state, no matter where they may have been received; and in the opinion it is said this is the only way in which an executor, under such circumstances, can be reached.

This decision, and the reasons given for it, apply emphatically to the principal case now before us, and are decisive of it, unless they have been overruled, or the law has been since changed by statutory enactment.

The case of McNamara agt. Dwyer, (7 Paige, 239,) expressly approves the doctrine of the case in Cowen, and was decided in conformity therewith; and the case of Brown agt. Brown, (1 Barb. Ch. R., 189,) recognizes the same doctrine as settled law. We have been referred to no case in our own courts which overrules or questions the decisions above mentioned; and the cases cited from the reports of other states, or of the English courts, even if directly conflicting, (which we do not understand them to be) are not authority for disregarding those decisions, in conformity with which the demurrer of the principal defendant was overruled.

The complaint states that Melicent P. Guliclt, has or claims some interest or right in the property which the plaintiff alleges to be in the possession of the other defendant, and seeks to have applied to the payment of the debt for which this action is brought, and, if the action can be maintained against said other defendant, said Melicent is a proper party under § 118 of the Code.

The order made at special term must be affirmed, with ten dollars cost.  