Johnston v. Wallis — 20 N.Y. St. Rep. 567

Majority

p. 567

William S. Johnston, Resp’t, v. Hamilton Wallis et al., as Ex’rs, etc., App’lts^[1] .

(Court of Appeals,

Filed January 15, 1889 )

Headnote

1. Foreign executors—When mat sue or be sued

As a general rule foreign executors can neither sue or be sued outside of the jurisdiction in which they were appointed In this state the rule is confined to claims and liabilities resting wholly upon their representative character.

p. 568

2. Same—Specific performance.

Foreign executors may sue or "be sued on a contract made by themselves as to property, the title to which vested in them as executors, when the contract is made in this state and relates to property within the state. The executory contracts of executors may be specifically enforced.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff.

W%lhato O. Wilson, for app’lts; Thompson, Weeks & Town, for resp’t.

This is an action in equity to compel the specific performance by the vendors of a contract to sell and assign a judgment recovered by John McAnerney and others in the supreme court of this state against a corporation known as the Hudson River Iron Company. The judgment was assigned to one Alexander H. Wallis, who was a resident of Hew Jersey, and died leaving a last will and testament, which has been duly proved in that state, and by which the defendants were appointed executors. They have qualified and entered upon the performance of their trust. They thereafter. made a written. contract with one Jacob Russell, all whose rights have passed to the present plaintiff, to sell and assign to him such judgment for a price to be fixed as follows. The judgment was a lien or supposed to be a lien upon certain lands under the waters of the Hudson river near Poughkeepsie in this state and had no value beyond such lien. Arbitrators were chosen to fix the value of one acre of the upland and that value multiplied by the number of acres subject to the lien was to be the purchase-price of the judgment. That value was ascertained, the price tendered and a deed duly demanded which was refused, and thereupon this action was brought. The plaintiff had judgment which the general term affirmed and the defendants appealed to this court.

They rely mainly upon the proposition that as foreign executors they could not sue or be sued in this state, and acquire all their rights from and owe their responsibilities ,to another jurisdiction. That is the general rule, but in this state at least is confined to claims and liabilities resting wholly upon their representative character. In Lawrence v Lawrence, ( 3 Barb. Ch. Rep. 74 ) the rule was declared to be applicable only to suits brought upon debts due to the testator in his lifetime or based upon some transaction with him: and does not prevent a foreign executor from suing in our courts upon a contract made with him as such executor. Of course where he can sue upon such a contract, he may be sued upon it. The remedy must run to each party or neither. In the present case the action is not founded upon any transaction with the deceased but upon a contract which the defendants tnemselves made. By

p. 569

force of tlie will and their appointment they became owners of the judgment. Their title although acquired under the foreign law was good. In Petersen v. Chemical Bank. ( 32 N. Y. 21 ) the foreign executor sold an obligation of the estate and his assignee sued upon it. The action was sustained on the grounds that the title of the foreign executor was good and he could transfer it, and while he could not have sued upon it his assignee was not prevented. In this case therefore the defendants were owners of the judgment and could lawfully contract for its sale. Having done so they were liable upon that contract, which could be enforced against them because they made it, and it did not derive its existence from any act or dealing of their testator. We agree therefore with the courts below that the action could be maintained.

Objection is made that the arbitrators valued the land under water and not the upland. The arbitrators certify that they valued the land per acre lying between the rail road and the river1 That was upland and not land under writer. While they describe it as 11 8-10 acres that may be rejected as an immaterial element of the description, and does not establish that their valuation extended to anything but the upland. Taking their whole report together its lair meaning is that they valued one acre of upland at twenty live dollars and so the value of the 11 8-10 was two hundred and ninety live dollars.

The judgment should be affirmed, with costs.

All concur.

Cases cited

Petersen v. Chemical Bank 32 N. Y. 21 N.Y. p. 569