
    Delos T. Johnson, Adm’r, App’lt, v. George P. Johnson and Devillo M. Johnson, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    Evidence—Foreign judgment.
    In proceedings instituted under the statute of Michigan, the defendants and others filed claims against the estate of their father, in which they obtained judgment against this plaintiff allowing such claims. Plaintiff was afterwards appointed administrator by the courts of this state. In an action to set aside a deed made to defendants by their father, in consideration of love and affection, by which he is claimed to have rendered himself insolvent. Held, that such judgment affected only the assets in Michigan, and was not admissible in favor of plaintiff as evidence of indebtedness.
    Appeal from a judgment entered upon a referee’s report in the Erie county clerk’s office, April 28, 1890, dismissing the plaintiff’s complaint, with costs.
    This appeal was before this court at a prior term, and the judgment appealed from was affirmed. A reargument was ordered upon the application of the appellant.
    
      George L. Kingston, for applt; William, H Clark, for resp’ts.
   Lewis, J.

This action was brought in the supreme court, Erie ■county against the defendants, under chap. 314 of the Laws of 1858, by the plaintiff, as administrator of the estate of John Johnson, deceased, for himself, as administrator, and on behalf of the creditors of Johnson, to set aside a deed of real estate in Erie county, given by Johnson, deceased, to the defendants, in consideration of love and affection only, and rendering himself thereby insolvent. The case was tried before a referee, and judgment was rendered dismissing the plaintiff’s complaint, and from that judgment this appeal was taken.-

The deceased, John- Johnson, was formerly a resident of Erie ■county in this state. He owned the premises described in the ■complaint, situated in Erie county; he also owned a small .amount of personal property in the county of Erie, worth less than $200. A few months prior to his death he removed to the county of Genesee, in the state of Michigan, where his four sons ■ and one daughter then lived. He died there intestate on the 1st day of October, 1887, leaving him surviving his five children, two of whom are the defendants in this action. A day or two before his death he conveyed to the defendants the farm in Erie ■county of the value of about two thousand dollars. He had at the time of his death only some trifling articles of personal property in the state of Michigan.of the value of twenty-two dollars.

On the 7th of November, 1887, letters of administration were ■duly issued and granted to the plaintiff by the probate court of Genesee county in the state of Michigan, appointing him administrator of the goods, chattels, etc., of said deceased, within the state of Michigan. Thereafter, and on January 31, 1888, ancillary letters of administration of the estate of Johnson were granted to plaintiff by the surrogate of Erie county. On the 7th of November, 1887, the probate judge of Genesee county, in "the state of Michigan, nominated and appointed three commis.sioners, with full power and authority to receive, examine and adjust all claims and demands of all persons against the estate of -Johnson. In due time the defendants Devillo M. Johnson and George P. Johnson, and Homer L. Johnson and Evaline J. Pierce, respectively presented claims against the estate of their father to :said commissioners. The commissioners duly examined into the •claims, and determined that the deceased was indebted at the -.time of his death in the sum of $300 to the defendant Devillo M. Johnson, $25 to the defendant George P. Johnson, $192 to Homer L. Johnson, and $125 to his daughter Evaline J. Pierce; .■-and they made and filed a report of their doings with the probate court as above stated. No appeal was taken from the report, and their decision under the Michigan statute became .final.”

Thereafter and on'or about the 1st of November, 1888, this action was commenced by the plaintiff, and upon the trial thereof before the referee, plaintiff offered in evidence an exemplified ■copy of the records of the said proceedings in the state of Michigan, for the purpose of establishing that the deceased was indebted as stated in the commissioners’ report at the time of his decease. No other evidence of indebtedness was given ; the referee held that the record was not evidence of the indebtedness of the deceased here, and that the plaintiff had failed to make a case and dismissed the complaint. The question presented by this appeal is whether, as against these defendants, the record was evidence that the deceased was indebted as reported by the commissioners .at the time he executed the conveyance.

The statutes of Michigan provide for the appointment of commissioners in such eases, and authorize them to receive and allow claims against estates; their decision when filed in the office of the probate court, if not appealed from within six months, becomes final, and forms the basis upon which the probate judge makes distribution of the assets of the estate.

The statute makes no provision for any confirmation of the commissioners’ report by the probate court. The commissioners, act judicially in the allowance of claims and as between the parties to the controversy, and as to the payment of the claims out of the estate in the control of the probate court, the decision has the-effect of a judgment in that state. It cannot be collaterally impeached by the parties thereto. Shurbun v. Hooper, 40 Mich., 503.

The proceeding in the state of Michigan was for the purpose of reaching and distributing the assets of the'deceased in that, state. When that was accomplished, it was no longer effectual for any purpose.

The judgment .or decree was against the plaintiff in his representative capacity. Had it been a judgment rendered in this state against an administrator appointed here, it would not be evidence against the grantees in an action to set aside a conveyance as. fraudulent, brought by such judgment creditors. Sharpe v. Freeman, 45 N. Y., 802.

The revised statutes of New York give no competency to judgments against executors and administrators as evidence against, heirs-at-law or grantees; such judgments remain a debt to the same extent as before they were recovered, to be established as if judgment had not been obtained. The heir-at-law may still contest the validity and legality of the debt; such a judgment does not-, bind the real estate of the deceased. Sharpe v. Freeman, supra.

The record could not be used as evidence in behalf of the creditors against the administrator in this state. The judgment was against the plaintiff in his administrative capacity only; his representation of the estate was a qualified one; it did not extend beyond the assets of which the court in that state had jurisdiction. Johnson v. Powers, 139 U. S., 156; Halsted v. Buster, 140 id., 278.

¡While the plaintiff represented, the estate in Michigan and also-in New York, he was simply a representative in each state; he had no personal interest in the assets, and if, in a proceeding-against him in this state in his representative capacity, the record would not be, as we have seen, evidence against him, it could not. be used in his behalf.

The administrator of the estate in New York is a stranger to* the Michigan'judgment, as are also the grantees of the realty here.

In the case of Taylor v. Barron, 35 N. H., 484, in a well considered opinion, Judge Bell holds and cites a number of authorities-in our court, as well as in the courts of England, to sustain his-conclusion that an administrator appointed in one state has no-power over the property of the intestate in another state ; that he-cannot be sued elsewhere on a judgment again'st him rendered in the state where he was appointed. That upon the principles of the common law a judgment -rendered in one state for or against, an administrator there appointed is res inter alios as to an administrator appointed in another government, and as to the assets under his control there. There may be several representatives of the same deceased person; the administrator or executor as to the per■sonal estate, and the heirs as to the real estate; bat the administrator cannot bind the heirs by his acts in pais, or in court, as to the-indebtedness of the estate. An admission by the heirs does not bind the administrator, nor the- reverse, and a judgment in favor or against either “ is not evidence for or against the other.” The fact that the defendants were parties to the proceedings in Michigan does not make the judgment admissible evidence against them here. The administrator represented the estate subject to the administrative laws of that state. He also represented the •creditors and legatees in respect to the estate in Michigan, but he is in no way bound by the determination there in respect to the others regarding the estate here.

It is true that the defendants presented their claims to the Michigan tribunal, and they were allowed; but that proceeding was for the purpose simply of distributing the assets in that state. The administrator in his action here does not represent the defendants, for their interests are hostile to his action here.

The decision in Johnson v. Powers, 139 U. S., 156, is an authority upon the doctrine stated there, and applies to this case, and warrants the holding that the judgment in Michigan is not admissible evidence here, although offered by the administrator himself in such an action as this. It is not evidence against these ■grantees. If, as we have seen, the Michigan record was not evi•dence of indebtedness of the deceased, the plaintiff failed to show that at the time the conveyance was made the deceased owed • debts; he therefore failed to make a case, 'and his complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  