
    
      ASTOR vs. WINTER.
    
    If the petition concludes with a prayer for the attachment of a specific debt, the sheriff cannot attach any thing else.
    Appeal from the court of the first district.
    Samuel Winter, a native of New-York, having migrated to this state, amassed by his own industry a considerable fortune. In the year 1812 he returned to the state of New-York, where he made a will according to the laws of that state, instituting as his exclusive heirs, and by an universal title, his brothers and sis
      ters. His father is not named in the will : his mother, Mary Winter, is named as a legatee by a particular title, and she, with three of his brothers, are named guardians of such of his brothers and sisters, as may not be of age at his death. He appointed Thomas L. Harman, Thomas Callender, Nicholas Girod and his brothers Elisha, Gabriel and Joseph, hie executors with seisin of the succesion.
    East’n District.
    
      June, 1820.
    Afterwards he returned to New-Orleans, where, in October 1813, he died without lawful issue and without having revoked or altered his will.
    The instituted heirs having been, both before and since his death inhabitants of New-York.
    His father and mother were also, then and before and have ever since been, inhabitants of New-York, as was also at the date of the will, and before and ever since the plaintiff, (John Jacob Astor) and where also the debt on which the suit is brought was contracted.
    The petition alleged that the defendant is the plaintiff’s debtor, is father and forced heir of Samuel Winter, the testator, that he is insolvent and refuses to accept his share of the succession, in fraud of the plaintiff and his other creditors.
    The petition prayed that the defendant might be cited to shew cause, why he should not accept the succession within a time to be limited by the judge, or, that the defendant might be authorised to accept in his stead : the citation issued, but was not served on the defendant.
    The plaintiff prayed an injunction, injoining the executors from paying over to the defendant, the said third part of the inheritance. The plaintiff also prayed an attachment of a certain debt of E. Livingston, to the defendant ; which attachment was laid on the said fund in the hands of the debtor, and further was laid by the sheriff on the alleged share of the defendant of the succession, in the hands of the executors.
    The attorney, appointed by the court for the defendant as an absentee, pleaded 1st. specially to the jurisdiction of the court, and 2d, to the merits. The assignee of the debt attached intervened, pleading specially assignment and possession prior to the attachment. The instituted heirs also intervened, averring the leading facts, the validity of the will and possession under it, and protesting against the jurisdiction of the court, &c.
    The district court dismissed the suit, being of opinion that there was not any property of the defendant attached, so as to give it jurisdiction. The plaintiff appealed.
    
      
      Livingston, for the plaintiff.
    The defendant, being a forced heir was seized ipso facto of the estate of his son: and of course the succession is a property, on which an attachment will lie.
    Filiifam.,says the Digest, sunt, ipso jure et immediate hœredes, ut quasi pro ipsis defunctis habeantur, dominiumque rerum patèrnurum, magis continuari in illos, quam transferri videatur. L. 11, ff. de lib. et posth. The ascendants, being forced heirs as well as descendants, the same principle must apply to them.
    Forced heirs are seized in full right by the death of the ancestor. Civil Code, 234, art. 122, Nay, such an heir transmits the inheritance of his own ancestor to his heir, without having accepted it. Id. 162, art. 84. The heir can only be deprived of the estate in cases provided by law. Id. 174, art. 126. 6 Pand. Franc. 369. Napoleon Code, 781. When there are no forced heirs, the instituted heir has the seizure. Civil Code, 234, art. 124.
    This seizure lasts till there be a renunciation or refusal to accept, and this renunciation shall not be presumed ; but must be proven to have been made, according to the forms provided by law. Every man is presumed to be solvent, his succession, is supposed worth accepting, and in renouncing it, the legal heir abandons a right and nemo facile presumitur donare. 9 Pand. Franc. 85. 2 Jurisp. de la cour de cassation. 2 party 420. Civil Code, 164, art. 89.
    Before the renunciation, therefore, the property is in the legal heir, and must be subject to the payment of his debts. We have seen that, if he die before any act of acceptance, without having renounced, the estate of his ancestor is in law so far considered as vested, that it constitutes a part of his own, and passes to his heir : if it pass to his heir, it must be in the hands of the latter, subject to the debts of the immediate ancestor. It would be strange that property not liable to the debts of a man, during his life, should become so by his death.
    Admitting that the estate of the ancestor does not vest in the heir till after an acceptance, the creditors of the latter have over it the same power, which their debtor has. When an insolvent debtor refuses to accept a rich inheritance in fraud of his creditors and with a view to prevent them from being paid out of the property, which such inheritance would give him, his creditors shall be admitted to accept it for him. Civil Code, 162, art. 83. The creditors of the heir, who refuses an inheritance to the prejudice of their rights, can be authorised by the judge to accept it in the name of their debtor, and in his stead. Id. 164, art. 92.
    It is objected that the debtor must be insolvent and have taken the benefit of some act for the relief of debtors of this description. This is not the common meaning of the word. Civil Code, 4, art. 14. Many persons are said to have died insolvent, who never took advantage of any such relief, and in the 92d article, the code speaks of a debtor, in general terms, without restraining its provision to insolvent ones.
    It is objected that no single creditor may be admitted to accept, on the refusal of the heir. True it is ; but the petition expressly prays that all creditors who choose to do so, may be permitted to accept.
    
      The Napoleon Code, art. 798, has the same provision, and under it a single creditor has been permitted to accept. 6 Pand. Franc. 394. 4 Sirey, 2 part 167. 7 Id. part 2, 719. Code Civil annote, 275.
    The defendant either refused to accept or he did not ; if he have our attachment holds the property ; if not, we have a right to accept for him.
    Lastly, it is said the defendant cannot be compelled to appear. If the estate vested in him, ipso facto, by the death of the ancestor, then he has been cited, and had notice of the suit, by the attachment of his property. If it did not, then he comes within the provision of the statute. When an absentee, not possessed of an estate within this territory, susceptible of being administered by a curator, shall be, either directly or indirectly, interested in any suit, it shall be the duty of the judge, before whom the suit shall be pending, to appoint a proper person to defend the rights of the absentee, if he be not otherwise represented within this territory, and if he has not himself appointed an attorney. Civil Code, 14, art. 8. But his appearance and answer cures all defects of citation, if there were any.
    Smith, for the defendant.
    The question that obviously first presents itself in this cause is, has the court jurisdiction of the matter ?
    Certainly not by consent ; by what sufficient process then can the defendant be made amenable here to the plaintiff’s demand ? By the record it appears, that the citation (prayed for and issued) has not been in any manner signified to the defendant ; it equally appears, that he could not be competently cited, that he is a stranger, a native and inhabitant of New-York, and then, before and since, resident out of our jurisdiction.
    Does the injunction on the executors inhibiting the delivering over, to the defendant, of one third of the inheritance, supply the place of the abortive citation, or, at all contribute to make parties to the suit ? They were not called upon to answer ; and they were obviously not competent, in the name of the defendant, as a forced heir to resist this demand on the one hand to compel his acceptance of one third of the inheritance, and on the other, to sue themselves and the instituted heirs for a reduction of bequests, and a partition of the succession, in violation of that very instrument, which the law makes it their duty to defend and execute.
    If then the defendant be before the court, it must be by virtue only of the attachment. A suit by attachment is a proceeding in derogation of the civil and common law, and of the first principle of the law of nature. For it is an axiom of eternal justice, that no man can be condemned without having been heard. And on this firm basis rests the general rule of universal practice, requiring, in order to the jurisdiction of a court over a party, some personal notification, apprising him of the nature and extent of the demand against him. (Curia Fe
      
      lipica, tit. citation. fo. 65. ch. 42. no. 2.) The extraordinary process of attachment has been introduced for the encouragement of commerce, by facilitating the recovery of debts, and thereby enlarging the sphere of credit. Being an exception to the general rule, and a very rigorous proceeding, it must be construed strictly. Shall the plaintiff, then, in the first place, have the benefit of an attachment more than co-extensive with the prayer of his petition ? He has prayed for the attachment of a particular fund, in the hands of Edward Livingston, Esquire, as garnishee : but not for the attachment of any other fund, nor, has he asked in general terms for the attachment of all the property of the defendant, within this jurisdiction.
    So far, therefore, as the process has pursued the prayer, the evidence in the cause shews the attachment to be void : since the fund of Mr. Livingston’s debt had been regularly assigned by the defendant and received and accepted by the agents of the persons to whom it was assigned, long before the date, even of the judgment alleged as the plaintiff’s title (see assignment and Harman’s deposition.) Process, being the immediate offspring of the prayer of the petition, must be in strict conformity to it. A petition without prayer for process, at all, would hardly justify the issuing of any particular form of it : it would not be the duty of court ex officio to issue a process not asked for by the parties interested. And, certainly, in a petition wholly silent on that subject, if a prayer, for some process, could be justly implied at all, merely from the exhibition of the demand of a debt, it must be merely the natural and universal process of citation.
    But though the attachment was not subject to this fatal objection, and be deemed not the less regular for being extended, beyond the prayer, to the alleged share of Joseph Winter in this succession, it is nevertheless without foundation. The nature of the process of attachment, its very name and prescribed form, all import taking and holding possession. The order of a compulsory and exclusive possession seems to be essential to this process. As in ordinary cases, a judicial demand is signified by a personal citation ; in attachment, it is effected by depriving of that possession of property which every man is presumed to have of his own. Privation of possession being deemed perhaps an equivalent notification to personal summons.
    If this be a true account of it, then no man can be, by this process, drawn into court as a defendant; but by the attachment of that of which he has the right of possession.
    
      Now, any right of Joseph Winter, whatever it might be, being unaccompanied by possession, and resisted by the adverse possession and right of the instituted heirs is, at best, but litigious, and not to be established without a suit. An action of reduction at least, would be necessary, in which not only his right to any thing, but also his relative proportion of the different parts of the estate would have to be established by a complicated suit. Now, is this, a point to be settled by a mere attachment of his supposed but unpossessed and resisted right ? Does the mere fact of the attachment convert the plaintiff into his agent for so extensive fi purpose, and enable him in one and the Same suit, not only to establish his debt against the defendant ; but, to go on and assert the defendant’s supposed rights as an heir, against the instituted heirs who (as will be shewn) hold full possession under the will ? Who would be the defendants in such a suit ? What kind of judgment could be rendered ? Could judgment of debt be rendered for the plaintiff against the defendant, collectively With judgment in the action of reduction, in favour of the defendant, as legal heir against the heirs by will ? But, independently of these shocking incongruities ; if the plaintiff could, for the purpose of supporting the jurisdiction of the court, validly assert for the defendant his rights in the action of reduction, the judgment would be conclusive, as well, if in favour of the instituted heirs, as, if against them. And, is it possible that the interests of a defendant in attachment, as an heir of a succession (which might be an hundred fold more valuable than the asserted debt) could be made dependant on the prudence, or knowledge, or care perhaps of a trivial interest of the attaching creditor! But suppose, on the one hand, the action of reduction to be so prosecuted to a successful result, what would become of the surplus, that might be due to the defendant, as one of the heirs ? Assuredly the attachment creditor, after satisfaction of his debt, could no longer be constructive agent of the defendant, so as to have a right to retain fiduciary possession of this surplus. To whom could he deliver it? None of the other parties, to the suit in reduction, could take his place as agent. But, suppose on the other hand (a very possible event) that the plaintiff should fail in his principal suit, not being able to prove his debt, or, being nonsuited for some defect of form or proof ; what then would become of the action of reduction, that would have been moved by him, as constructive agent of the defendant, and in which sales, perhaps sacrifices of real, or personal estate might have been made ? The plaintiff, in reduction, would certainly then turn out to have been a fictitious party. The whole proceeding in attachment would prove to have been radically defective, and the sales, made in such an action, though under an order of the court, would be void to all intents and purposes ; and this, probably to the serious inconvenience of heirs and innocent purchasers.
    If then, as is deemed manifest, a suit could not be maintained (by the plaintiff in attachment) to establish the supposed rights of the defendant as heir, in order to lay a foundation for the attachment, how else could it be supported ? That is, how could it appear that there was an attachment of property belonging to the defendant, so as to enable the plaintiff to prove his debt, and take judgment against him, when the very existence of the defendant’s supposed right of property must depend on the successful result of a suit which the plaintiff has no power to institute ?
    The remedy by attachment not only calls for an affidavit of debt, and of the absence, or approaching departure of the debtor ; but this process having no foundation on natural equity, must be, in every respect, strictly pursuant to the act. The statute authorises the attachment of the property, that is, the undisputed property of the defendant. It authorises interrogatories to a garnishee as to the fact of his being indebted to, or holding property for the defendant, and even the exhibition of proof otherwise of that naked fact ; but, if the defendant’s title be denied, the act provides no mode by which the plaintiff can interfere to establish that title by suit against the party in possession. But, independently of the silence of the statute of attachment on the subject, since the judgment must (in justice to the adverse party) be conclusive, whichsoever way the balance might incline, there would be manifest injustice in thus exposing the defendant to the possibility of the greatest losses on account of, perhaps, an insignificant debt. And, however, the violation of natural equity evident in the proceeding of attachment may in general be softened in its practical effects, by the presumption, that every man’s distant property would be under the controul of an agent who would, in such event, apprize the owner of its jeopardy, no such reasonable presumption can arise, in regard to a defendant’s unpossessed, resisted rights, to alleviate the natural injustice of the proceeding, and all the evils obviously flowing from it.
    
      Power to sue, in the name of another person, may arise either from the appointment of law, or from express authority to that effect, emanating from the party concerned, or perhaps, an authority implied from the nature of the employment of an agent, or his relations with his constituent, raising an undeniable presumption, that such authority had been conferred. Does the situation of the plaintiff, in an attachment, come under either of these descriptions ? He is obviously not authorised by the expressed will of the defendant, nor from the appointment of law ; still less can such authority, in the last place, be implied from the relation between them, which is a relation only of hostility.
    But how is it with regard to the fact of possession ? Is there any reasonable ground for maintaining that the testamentary heirs are not, as they pretend, in the actual and exclusive possession under the will ? In the very face of the fact, it is contended that they are not, on the authority of what shall be presently endeavoured to be shewn to be an erroneous construction and application of an article, under the head of the testamentary institution of heirs. It is as follows :—“ Whether the forced heirs have or “ have not been instituted by the testator, they “ are by his death, of full right, seized of all the property of the succession, and the heir in- “ stituted universally is bound to demand of “ them the property contained in the testament.” &c. Civ. Code, 234, art. 122.
    
    Would it not be enough to answer, that, in point of fact, the will, after having been duly proven in the court of probates, was ordered to be executed, and that it was actually, and not fictitiously, carried into execution on behalf of the instituted heirs ? And that actual and not fictitious possession was taken of the succession in the same behalf. And does not the single fact of the effectual sale of the real estate by and on behalf of the substituted heirs, import the rightful delivery of possession to the vendee ? How could the possession be delivered to the purchaser, unless first held by the vendors ? And was not that possession peaceable, uninterrupted, and bona fide, as of owners, from the day of the testator’s death? (See Civil Code. T. Possession, 466, art. 16. Ibm. 478. art. 23.)
    
    Before examining the context of this article, (art. 122. p. 234, head Institution of heir) and the particular connexion in which it stands, let us look a moment at the other and preceding provisions of the code on the same subject, which are explicit, simple, unconnected with other matter, and bearing directly on the question, how, or by what steps one person becomes heir, or, successor of another ?
    It is admitted that the several articles of the code, relative to the state of property, or ownership of succession, immediately on the death of the last proprietor, are to be so construed, so that all, if possible, may stand. It is but the application of a familiar rule of construction. Now, by recurring to the head “ of acceptance” of the inheritance, the only source, one would suppose, from which light could be expected to be shed on this point of inquiry, we find it expressly enacted, that, no person can be compelled to accept an inheritance, in whatever manner it may have descended to him (art. 71, p. 160). But, if (on the idea of the plaintiff's counsel) already, immediately on the death of the ancestor, and ipso facto merely, a man be, of necessity, actually seized as heir ; to say, that he is not compelled to accept the inheritance, or, at least, to take it without acceptance is abuse of language. If so, then, by the plaintiff’s construction of art. 122, p. 234, on which alone, he relies to shew the actual possession of the defendant, it is manifestly made to abrogate the article already referred to, which, unequivocally gives him an option on the subject. art. 71, p. 160.
    
      But, in addition to the article affording him this option, it is further expressly enacted (art. 72, 73, p. 150, 2) that the acceptance has the effect of giving him seizin of the succession, entitling him to all the rights, and subjecting him to all the obligations of the ancestor. If such be the effect of the acceptance, then, without and until acceptance, that effect cannot have begun to exist, as wanting its efficient cause. Unless it can be shewn to be true in jurisprudence, though false in philosophy, that an effect can exist without a cause ; and that in law , cause and effect are co-relative terms. This article, therefore, also, must fall before the plaintiff’s sweeping construction of the art 122, p. 234.
    But is it true, that we are obliged to see in that article an intended repeal, or a contradiction of the preceding articles in question’ though all were enacted and promulgated as law at one and the same time ? If from the context, such intention or contradiction be not evident, it must receive another construction.
    Let us examine it. “ Whether the forced heirs have, or have not been, instituted by the testator, they are by his death, (that is, not in virtue of any declaration of his will and dependency on it) of full right seized of all the property of the succession, and the heir instituted universally (far from being entitled merely on account of his institution, to deprive them of the right allowed by law, to accept, if they choose) is bound to demand of them the property contained in the testament, &c.
    This provision, both from its context and from the head under which it stands, seems to be declaratory of the rights of forced heirs, merely as they may be opposed by those of an heir instituted universally : exhibiting them rather in that relative light, than in an absolute manner, defining and analysing the particular features of their hereditary character : and intended to protect such legal heirs against the effects of a testament in favor of another person, tending to give him possession of the estate. If such be the real object, then there is no necessity of converting it against them, into a privation of a privilege (already secured to them by precise texts of law concurring with the law of nature) to wit : an option to become heirs, to be expressed by an acceptance of the inheritance. The legal rights of the one seem to be viewed merely, in a general manner, as opposed by the testamentary rights of the other. With reference, therefore, to the rights of the instituted heir, the forced heirs may well be said to be, by the death of the testator, seized of full right of all the property of the succession. For the death of the testator gives the forced heir a full right to accept the succession, and he may maugre any bequest or institution, subsequently exert that right, which does then by its retroactive effect (but still, only fictitiously) give him seizin from the death of the testator ; but how ? By causing him to be considered as if he had then taken possession of the estate. But with reference to his own right to an option on the subject, there is nothing in the phraseology of the article to oblige us to conclude that it was intended to trench upon the freedom of his consent, more especially since such a construction would be revolting to natural justice, and draw after it a virtual repeal of the preceding articles, 71, 72, 73, 74, p. 160, 2, of the code. The ancestor at his death, by a presumption of law, is supposed to consent to the transmission of his estate to his legal successor, which, like every other case of the alienation of property remains without effect and void, unless followed by the consent of him to whom the law would consign it. The effect of the acceptance, in giving this new seizin of the succession, may perhaps, not inaptly be said by its magnitude, to cast into shade and obliterate to the eye the interval of time between it and the death of the ancestor. Further, this fictitious antedated seizin ensuring the acceptance, must like every other fiction of law, be adopted in so far as it is favorable to the party for whom it was created ; but never be tolerated to his injury.
    To conclude then on this branch of the subject, this seizin of the forced heir spoken of (a. 122) as derived from the death of the testator, when taken in the connexion in which it stands, is to be viewed rather as an avoidable benefit than as a fact : and, that, in the train of events, beginning with the death of the ancestor, the heir may be said to be seized in fact, in the following order of time and manner, and to the following effects : 1. By acceptance, the heir becomes in fact seized, as the true effect of it, according to the 73d and 74th articles, p. 162, under the head of acceptance of the succession.
    2. Which acceptance, by operation of law, has a retro-active effect reaching back to the death of the ancestor “ causing him to be considered, as if he had taken possession of the estate” at that time, according to the 72d articles, p. 160.
    3. And thus (that is by virtue of the acceptance) he becomes not actually, but through this legal fiction, seized by the death of the ancestor according to article 122, p. 234, under the bead of institution of heir. But still fiction can be nothing more than the resemblance of truth : and until what is the true effect of acceptance come to be produced by its efficient cause, the very archetype has not yet been formed from which to shadow out that fictitious seizin which is referred back to the antecedent period of the ancestor’s death.
    But it is next contended, that though the attachment be not sustainable on account of any seizin of the defendant, still the plaintiff, as his creditor, has a right to accept the succession in his stead : and for this position, the following provisions are relied on.
    1. “ When an insolvent debtor refuses to accept a rich succession in fraud of his creditors, and with a view to prevent them from being paid out of the property, which such inheritance would give him, his creditors shall be admitted to accept for him,” Civ. Code, 162, art. 83.
    
      2. “ The creditors of the heir who refuses an inheritance, to the prejudice of their rights, can be authorised by the judge to accept in the name of their debtor and in his stead.” Civil Code, 164, art. 92.
    
      Now, the idea that would seem most obviously to arise from a perusal of these articles, without reference to any particular case, is this : Since the right of the supposed creditors is made contingent on the fraudulent refusal to accept, they import in the first place, on, the part of the debtor an election; and that his right to an election must be concluded (or if exerted adversely to them, must be defeated) by some judicial proceeding against him ; resulting (according to the first provision) in the creditors being “ admitted to accept for him” : or, according to the second in their being “ authorised by the judge to accept in the name of their debtor, or in his stead.” If so, then the first step in the proceeding (and without which, the court could not take jurisdiction of the cause) is, that the debtor must be cited to shew cause. For without that reasonable notice, there could be no party defendant ; no competent judicial proceeding, in which to establish against him, the very material facts required to be made out by the creditors. In this case then, there being no citation, the plaintiff has not entered on the threshold of the proceeding.
    But has the plaintiff even, so established his character of creditor as to entitle him to challenge this single privilege against the will of the testator, and against the rights of the instituted heirs, and against the general rule of law, protecting the freedom of heirs in the acceptance of successions ?
    Creditors, of whatever description, may, with reference to their debtors, be divided into two classes. Creditors of solvent, and of insolvent debtors.
    With regard to solvent debtors, suppose a holder of a bill, or note, or bond, for instance, should come into court, alleging that his supposed debtor is heir of an inheritance which he refuses to accept in order to defraud or injure him.
    Would he not be told “ first, prove your debt ;” your debtor has a right to be heard, and to this end, he has a previous right to legal notice ; after he shall have been heard, until (by your recovery of judgment against him) he can be allowed no longer to deny your debt, it will still be incumbent on you, to shew, as a matter of distinct inquiry, two very material facts. 1. “ That an inheritance has accrued to him, which he has refused.” 2. “ That the refusal is intended to defraud, or actually injures you. For you are urging in your favor an exception to the general rule protecting the freedom of heirs; and against these strong allegations also, he will have a right to defend himself, and to insist on personal citation.”
    But, how could the fraud or injury proceeding from a solvent debtor be completely proved ? Not by the vague and negative opinions of witnesses as to the non existence or inaccessible situation of any other property, but by the experimental proof of an execution, the stated test appointed by law to ascertain how far payment of a judgment can be effectuated. And until search by the sheriff, an officer sworn to do that duty, has been made in vain, and duly certified into court the highest proof, the case could afford of that fact, would not have been produced. The necessity of it, in such case, may be likened to the required proof, the subpœna of an absent witness, on a motion for a continuance ; or, the sheriff’s return of non est inomtus, in order to fix the responsibility of bail. So long as a debtor is liable to be sued by an individual creditor, so long is he liable to suffer execution, and his case to afford that practical proof of his fraudulent, or injurious refusal of a succession.
    This then must be the course of proceeding of every creditor so situated, against every heritable debtor, except only, in the case of declared insolvency, in which the estate of an insolvent becomes vested in the mass of his creditors, which in common with the estate and the insolvent himself, are represented by syndics, or assignees.
    This construction of the articles 83, p. 162, and 92, p. 164, is the more confidently urged, since it seems best to reconcile them with another provision which prescribes the mode of recovering for a forced heir, his share of a succession bequeathed to others, and which strictly limits the right to sue for the reduction of the bequests to the forced heir himself “ his heirs or assigns.” See art. 28, p. 214.
    For, in the case of an avowed insolvent, the represented mass of his creditors would be “ his assigns” and in that of a debtor on execution, a continuance in prison, or a concealment or withdrawal of his person from the reach of process (constituting under all bankrupt and insolvent systems, acts of bankruptcy or insolvency) and affording the proper proof of a fraudulent, or injurious refusal to accept, would justify a decree in like manner, appointing the execution creditor “ his assignee” for that purpose.
    But, has the plaintiff here, a right to issue execution ? He has never issued an execution even in New York (where judgment for part of his demand was obtained) to test the practicability of recovering payment there ? He could not at the commencement of this suit, have issued execution there, without a revival of his judgment of two years old by scire facias. 9 Johns. 79, Vanderheyder vs. Gardinier.
    
    But, independently of this reasoning, the defendant is a stranger, and as such, neither entitled to the benefit, nor subject to the operation of our laws, unless he first voluntarily submit to our jurisdiction.
    Though the character of a stranger, and that merely of an absentee, coincide in this one particular of not being personally present, still there is an intrinsic difference between them. The character of an absentee is known to our laws, by a precise description, and which therefore admits of no other. He is defined to be a person who has departed his accustomed domicil, or usual place of residence within the state. To him belong a series of rights, commencing with the commencement of his absence, and gradually diminishing, passing from the presumption of absence to the declaration of absence, until at length, they become evanescent and lost in the rights of his presumptive heirs, which rise in a corresponding series, gradually augmenting from the provisional possession under security, to full possession, without security or accountability for their administration, until it terminate in the acquisition of the absolute property of the estate. Can this idea, be identified with that of a mere stranger to our laws and jurisdiction ? Where is his accustomed domicil, from which he must have departed in order to become an absentee ? He resides in a country whither our laws cannot reach him, or his concerns. How then can they take cognizance of any of his movements of departure or return ? Counting from what point of time, shall the legal presumption of his absence arise, entitling his heirs (if our laws could take notice of that relationship) to claim provisional possession of his estate ? Or, when shall be pronounced the judicial declaration of an absence which has never begun.
    The truth is, the laws of every state are formed for the benefit, exclusively, of its own inhabitants, or of those, who have voluntarily performed some act, that subjects them wholly, or in some respect to its jurisdiction. This results from the very nature of civil societies, and the name of municipal law. To suppose a more extended sphere of operation, or object of legislation would lead to the idea, not properly of the effects of law, but of a conflict of sovereignties.
    The complex idea of law embraces necesrily, the more simple ones of reciprocal power and obedience. And if the municipal law of one state could be “imagined to be intended in any degree to influence the rights of the inhabitants of another, as such—then, since what (in this respect) would be true of it, would be true of every other nation, it would involve this absurdity, that the inhabitants of each and every nation could be subject at the same time, to different and contradictory laws.
    It follows, that the laws of this state on the subject of successions for instance, however general may be the terms of description of the different classes and rights of heirs (though literally broad enough to embrace all mankind without exception, in so far, as they contain no express national discrimination of individuals) still they cannot be construed to extend to strangers who have never voluntarily, by any act, subjected themselves in any degree or respect to our jurisdiction, and of course not to the defendant in this cause. To ascribe to our laws a wider range would be to impute to our legislature the folly of a law without a sanction, a vain and idle form which in this court at least is an inadmissible supposition.
    
      But, where after all, is the fraud on the plaintiff or injury to his rights as a creditor? Both parties being inhabitants of New-York, the relations between them there, could alone be adopted as the ground of decision in this cause. Could the plaintiff contend in a court of justice in New-York, that the defendant was seized of a succession here in virtue of laws to which he was not subject ? Or, that his omission to lay claim to an inheritance in Louisiana, was a refusal in fraud and prejudice of his creditors, authorising the plaintiff as one of them, to accept in his stead in the character of a forced heir according to the laws of Louisiana ? If so, then would a New-York judicature be deciding on the rules of inheritance, and the rights of her citizens, according to the laws of another state in contradiction to her own.
    But, suppose the defendant even came to Louisiana, and recovered one third of the succession as a forced heir, could he not have been afterwards compelled by a court of equity on his return, to account for the amount to the instituted heirs ? Or, if the plaintiff could now recover by this attachment, in the face of all other objections to it, could not the instituted heirs afterwards, in equity there, compel him to refund ? Would not a court of chancery there, say to the defendant in the one case and to the plaintiff in the other : “ it is the duty of a good citizen first to submit to the laws of his own country ; as well, the laws regulating descents and testamentary dispositions, as any others. So, we cannot take notice of a foreign law, as binding on one of our own citizens, to which he has not submitted, much less would it become us to enforce his submission by pronouncing him guilty, according to such foreign law of a fraud upon his creditors : and a testament executed here in due form by a competent testator, in favor of competent heirs, shall be carried into effect, and enforced as between our own citizens, as well concerning property abroad, as at home : and, that it shall never be permitted to the (defendant as) pretended legal heir by a foreign law, or his creditors, to evade the operation of our testamentary laws, by laying claim to property abroad which they know to be by our law's the property of others in exclusion of them.” (See, in the support of this point, the dictum of Ch. J. Tilghman, 4 Binney, 372, Bank N. Ameri. vs. M’Call.
    
    If such would be the principles of a decree of a court of chancery in New-York, ought it not be the rule of this court in this cause ? “ We always import (says lord Ellenborough) together with their persons, the existing relations of foreigners, as between themselves, according to the laws of their respective countries : except indeed, when they clash with the rights of our own subjects here, and one or other of the laws must necessarily give way, in which case our own is entitled to the preference. This having been long settled in principle, and laid up amongst our acknowledged rules of jurisprudence, it is needless to discuss it further.” 5 East, Potter vs. Brown, 131.
   Mathews, J.

delivered the opinion of the court. This is a suit of attachment, in which the plaintiff claims a debt, as set forth in his petition, and requires that the defendant should be compelled to accept an inheritance, descended to him by the death of his son Samuel, or that he, the creditor, on his refusal, should be authorised to accept it in his name and stead. The prayer for an attachment is confined to a credit of the defendant, in the hands of E. Livingston.

The object of the action is to obtain the benefit secured to creditors, by the 83d and 92d articles of the Code, on the subject of accepting or renouncing successions, and the prayer for an attachment is intended to give jurisdiction to the court ; the defendant being an inhabitant of another state, where an ordinary process of citation could not reach him. So far as it relates to the credit, attached in the hands of the garnishee, it is clear that before service of the attachment, the defendant had legally assigned it over to other persons, and it was not then liable to be attached as his property, and did not afford means to the court of jurisdiction in the cause.

The petition states the testament of Samuel Winter, the son of the defendant, sets forth the legal claim and right of the father to one third of the succession as forced heir ; although the whole had been willed away by the testator, and prays that his executors should be enjoined from disposing of the estate, as directed by his will. In pursuance of this prayer, an injunction was allowed by the judge of the court o quo ; and a writ of attachment having issued in general terms was served on the executors and all the property of the defendant in their possession was attached.

Admitting that the court had no jurisdiction by the levy of the attachment on the credit in. the hands of Livingston ; it is contended on the part of the plaintiff “ that the defendant being forced heir to his son is seized de plein droit, and of course that the succession is a property liable to attachment.”

The provisions of the code, which authorise the creditors of an insolvent debtor to accept an inheritance, which the latter may have fraudulently renounced to their prejudice, are so evidently just and equitable, that the court perhaps, in its anxiety to give them effect, did not allow, on the first hearing of the cause sufficient importance to the objection of the defendant, made to the jurisdiction of the court below ; on the ground of the attachment being limited to a specific credit, which had ceased to exist at the time of levying it. Being of opinion that the district court was correct, in considering the execution of the writ of attachment, beyond the prayer of the plaintiff’s petition, as irregular and void, it is unnecessary to investigate the question whether or no, forced heirs are seized of an inheritance in such a manner, as to subject it to be attached by their creditors, before acceptance. We would only remark that it is one of considerable difficulty in its solution, and that perhaps some further legislative provisions would he necessary to enable our courts to carry into effect the articles of the code above cited, in cases like the present where ordinary process cannot reach the heir.

If the suit is not sustained by the proceedings on the attachment, it is clear that no legal measures have been taken to compel the appearance of the defendant. The answer of a person appointed by the court does not cure the defect in the levy of the attachment, which so far from waiving, he pleads in opposition to the jurisdiction assumed in the cause. The eighth article of the code on the subject of curatorship of absent persons is relied on by the appellant’s counsel, as giving authority to the judge of the district court, to appoint a defender for the appellee, and that, in consequence of such appointment, he was brought legally before the court to have his rights decided on.

We believe that this rule is not applicable to cases like the present, which is a suit instituted directly against the absent person, not one pending before the court, in which his rights and claims may be involved.

This view of the case precludes the necessity of enquiring into any of the other matters offered for consideration.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court a quo be affirmed with costs. 
      
      
         Martin, J. did not join in this opinion, having been of counsel in the cause.
     