Harper v. Butler — 27 U.S. 239

Majority — Marshall C.J.

p. 239

J. Harper, Plaintiff in error vs. Anthony Butler, Defendant in error.

Syllabus

By the Jaw of Mississippi, the assignee of a chose in action may institute a suit in his own name. When therefore an executor, having proved the will. of his testator, in Kentucky, had assigned a promissory note due to the estate by a citizen of Mississippi; the suit was well brought by the assignee, without any probate of the will in that state.

ERROR to the district court of the United States for the. district of Kentucky.

The only question submitted to the court .was, whether the assignee of a chose in action; assigned by an éxecutor in the state where hé had proved the will and taken out letters testamentary, where the debt was contracted, and where'the testator lived and died; could maintain an action in another state, without a new probate and new letters testamentary taken out in the state in which the action was brought.

The question arose on the demurrer of the' defendant to the plaintiff’s replication; setting out the. probate, letters testamentary, assignment, &.c.. The district court sustained, the demurrer and decided against the plaintiff’s right of action.

The causes of demurrer shown by the defendant in error, were:

1. 'That the replication do^s not allege and set forth that the will of the testator was proved, and*, that. letters testamentary were granted to the executor in the state of Mississippi.

2. That the replication, does riot show that th’e will of the testator was proved;, and probate, thereof granted to the executor or any other person within the jurisdiction of the court; nor that it was granted by a tribunal of competent jurisdiction.

Mr Jonés, for the plaintiff,

contended that the assignment being .consummate in the jurisdiction where the executor’s,

p. 240

authority was indisputable, operated a complete transfer of the chose in action there; and carried with' it a right of action every where ;, to which no new probate, or letters testamentary, could have added any validity whatsoever.

No counsel appeared for the defendant. ■

delivered the opinion of the Court.

This is an action of debt brought by the plaintiff in error, in the court of the United States for the district of Mississippi, as the assignee of Henry Clay, executor of James Morrison deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the state of Mississippi, nor had letters testamentary therein been granted to Henry Clay the executor. To this plea there was a replication, which set. out the probate of the will in the.state of Kentucky, the letters testamentary to the executor, and the assignment, in the state of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication, the defendant .demurred. The court gave judgment for the defendant, and the plaintiff has sued out this writ of erjror.

The district, court proceeded on tne idea that the executor could not transfer a chose in action in Kentucky, because the obligor did hot reside in that state. This court supposes the law to be otherwise. The assignment in KenV tacky could not enable the assignee to sue in the courts of Mississippi, unless the law of the court. authorized an as-signee to sue in his own name. But since this is permitted in the courts of Mississippi, the plea in abatement cannot be sustained.

The judgment is reversed, and the cause remanded to the district court with directions to over-rule the demurrer.