Bertha M. FARNSWORTH, individually and as Administratrix of the Estate of Ray A. Farnsworth, Sr., Maricopa County, Arizona, Melvin Farnsworth, individually and as Executor of the Estate of Ray Farnsworth, Sr., in the Republic of Mexico, Ray A. Farnsworth, Jr., Anna M. Vance, Eina Baker, Verl Farnsworth, Dorothy Ulmer, LaRee Wright, and Merrill Farnsworth, Appellants,
M. L. HUBBARD, Appellee.
Rehearing Denied Jan. 18, 1955.
[78 Ariz. 163] Johnson & Shelley, Mesa, for appellants.
John E. Madden, Phoenix, for appellee.
[78 Ariz. 164] LA PRADE, Justice.
The facts leading to this appeal are these: Ray Farnsworth, a resident of Mesa, Arizona and now deceased, owned and possessed a lead mine in Mexico, under a Mexican mine title, which he had contracted to sell to the appellee M. L. Hubbard. Hubbard had taken possession and made periodic remittances to Farnsworth as contemplated by the terms of the contract. Ray Farnsworth later died intestate in Arizona, survived by his widow and ten children.
His widow was appointed administratrix in Maricopa County, Arizona. One of his sons, Melvin Farnsworth, was by a Mexican court appointed executor of the estate in Mexico. Farnsworth is designated by the parties as 'executor' though there is no showing of a will in Mexico. It appears that the only asset of the decedent in Mexico was his interest in this mine as licensee or concessionaire from the Mexican Government. Subsequent to his appointment Melvin Farnsworth, as executor of the Mexican estate, gave notice to appellee to quit the mine, claming that appellee had breached the contract of sale. In response to this demand Hubbard brought this suit seeking a declaratory judgment of the rights of the parties under the contract and for a temporary restraining order, which later issued. Melvin Farnsworth then made no further attempt to dispossess appellee on the theory that appellee had breached the contract. During the declaratory judgment proceedings below a Mexican creditor of the decedent demanded payment of a debt. Farnsworth, as executor, was authorized by the Mexican court to take possession of the lead mine on behalf of this creditor. Appellee was then dispossessed. Thereafter, appellee amended his complaint to claim specific performance of the contract and damages for losses sustained by the dispossession. By a later supplemental complaint damages were also claimed by appellee for his dispossession from an adjacent mine owned by him. Appellee was unable to enter this second mine due to alleged acts of the foreign executor. The court below granted appellee specific performance of the contract, damages for dispossession from both mines, and permanently enjoined the representative and all the heirs of Ray Farnsworth, Sr., from interfering with appellee's possession.
Appellants here made sixteen assignments of error pertaining to the various rulings and holdings of the court below. Many concern the power of the court below to take jurisdiction over Melvin Farnsworth in his capacity as foreign executor under the laws of Mexico, a question which recurs throughout the proceedings below. We will first confine our remarks to the status of the foreign executor before the court.
Appellant contends that the trial court had no power to take jurisdiction over the foreign executor. Appellee disagrees, and presents three arguments. The first is that the common law permits suits [78 Ariz. 165] against foreign representatives. Appellee states that cases to the contrary are mere innovations due to the influence of various legal writers. In support of this position appellee cites cases decided roughly between 1800 and 1850. On reviewing these cases we cannot agree with appellee's conclusion for their holdings are irreconcilable. Compare Vermilya v. Beatty, 1848, 6 Barb., N.Y., 429, with Brown v. Knapp, 1879, 17 Hun., N.Y., 160. Notice the manner in which the court in Gulick v. Gulick, 1860, 33 Barb., N.Y., 92, reads the holdings of Cambell v. Tousey, 1827, 7 Cow., N.Y., 64, and McNamara v. Dwyer, 1838, 7 Paige, N.Y., 239, 32 Am.Dec. 627. See Swearingen v. Pendleton, 1818, 4 Serg. & R., Pa., 389, and Evans v. Tatem, 1823, 9 Serg. & R., Pa., 252, 11 Am.Dec. 717. These cases neither support appellee's view that jurisdiction to sue a foreign administrator was characteristic of the common law, nor the contrary view that such was prohibited by the common law. At the present time this ambiguity found in the older cases appears to be substantially resolved. The general rule is that jurisdiction does not exist to sue a foreign administrator, and that he must be sued in the jurisdiction issuing his letters. In re Paine's Estate, 1937, 128 Fla. 151, 174 So. 430; Pirnie v. Andrews, D.C.S.D.N.Y.1939, 30 F.Supp. 157; Hargrave v. Turner Lumber Co., 1940, 194 La. 285, 193 So. 648; Feldman v. Gross, D.C.N.D.Ohio 1952, 106 F.Supp. 308; Bennett v. Harrisville Combing Mills, Inc., Sup., 1952, 111 N.Y.S.2d 462; cf. Jasper v. Batt, 1953, 76 Ariz. 328, 264 P.2d 409.
Various legal writers assert this to be the general rule. See 3 Beale, The Conflict of Laws, section 512.1 (1935); Dicey, Conflict of Laws, Rule 132(p) (3rd ed., 1922); Stumberg, Conflict of Laws, 445 (1951); Wharton, Conflict of
Laws, section 616 (3rd ed., Parmele, 1905); Restatement, Conflict of Laws, section 512 (1934). The rights and duties of an administrator are defined by the jurisdiction in which he receives his appointment. For other courts to regulate his actions would create confusion and possibly inconsistent duties. The refusal of most courts to grant jurisdiction to sue a foreign administrator and their requirement that such administrator be sued in the jurisdiction giving him his authority appears to be a sound practice with which we are in accord.
Appellee next argues that even if the general rule is that such foreign administrators may not be sued in Arizona that an exception to this rule is applicable on the facts of this case. The exception, generally recognized, is that when a foreign administrator controls assets of the decedent in a court's jurisdiction, then suit will be permitted. Cutrer v. State of Tennessee, ex rel. Leggett, 1911, 98 Miss. 841, 54 So. 434, 35 L.R.A.,N.S., 333; Holmes v. Camp. 1916, 219 N.Y. 359, 114 N.E. 841; Sylvania Industrial Corporation v. Lilienfeld's Estate, 4 Cir., 1943, 132 F.2d 887, 145 [78 Ariz. 166] A.L.R. 612. This exception to the general rule appears to be based upon the considerations stated in Cambell v. Tousey, N.Y., supra, where the court said, 7 Cow. at page 67:
'It is the only way in which an executor, under such circumstances, can be reached. He cannot be compelled to account here, even in relation to the assets received in this state; for having taken no letter of administration here, he is not amenable in that way to any of our courts. He cannot be reached in Pennsylvania, because both his person and the assets are beyond its jurisdiction; and if he is not liable when sued here, for the assets received there, he never can be compelled to apply them to the debts of his testator.'
But cf. Michigan Trust Co. v. Ferry, 1913, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867.
Appellee claims that both foreign administrator and assets of the decedent are within Arizona. Melvin Farnsworth, in his individual capacity and as executor, was considered to be before the court, and the decedent left assets in Arizona. But a further element is lacking. The assets in Arizona were under the control of the domiciliary administratrix, not Melvin Farnsworth. The exception is intended primarily to deal with the foreign representative who is present with assets of the foreign estate, or where such administrator actually controls assets in another jurisdiction where no domestic administrator has been appointed. In an attempt to meet this objection appellee states:
'* * * the suit involved an Arizona drawn and executed contract with a situs in Arizona (performable in Arizona) concerning a mining title with a situs in Arizona.'
Assuming, arguendo, appellee is correct the consequence desired does not follow. If the property is held within the domiciliary jurisdiction, then the Arizona appointed administratrix would be accountable for its management. But that would not justify suit against the foreign administrator as argued by appellee. Moreover, we find appellee's characterization of the location of this asset incorrect. The lead mine is an immovable, having its situs in Mexico. It is of no moment that decedent's interest therein is considered as personalty under Mexican law. It requires no argument to indicate that the removal of this asset from the jurisdiction of the Mexican court is impossible. The exception is inapplicable on the facts presented here. Appellee's assumption appears to be that if personalty then the Arizona court has jurisdiction to affect this property. This is incorrect. The domiciliary jurisdiction has no authority to interfere with the foreign administration of decedent's estates. Keenan v. Tonry, 1940, 91 N.H. 220, 16 A.2d 705, 132 A.L.R. 1362; Restatement, Conflict of Laws, section 466 (1934). This is true even if the asset is [78 Ariz. 167] considered personalty. In re Rowley's Estate, 1934, 178 Wash. 460, 35 P.2d 34. It may be true that the domiciliary representative is considered to have title to all decedent's personal property wherever to be found. But this is true only until such
foreign jurisdictions appoint domestic administrators as was done here. In re Nolan's Estate, 1940, 56 Ariz. 366, 108 P.2d 391; In re Rowley's Estate, supra; Bowles v. R. G. Dun-Bradstreet Corporation, 1940, 25 Del.Ch. 32, 12 A.2d 392. That foreign jurisdictions will often follow the distribution rules of the domiciliary state does not diminish the power of those courts to administer assets found in their jurisdiction. In re Glassford's Estate, 1952, 114 Cal.App.2d 181, 249 P.2d 908, 34 A.L.R.2d 1259; In re Nolan's Estate, supra.
The final contention made by appellee on this point is that the common law rule has been changed by the legislature. Appellee would have us read sections 27-703 and 21-506, A.C.A.1939, as permitting suits against foreign administrators even if no assets of the decedent are within this jurisdiction. Appellee's argument is based upon the wording of these statutes. Section 27-703 reads in part:
'Any person interested in the administration of a trust, or of the estate of a decedent, infant, insane, incompetent or insolvent person, may have a declaration of the rights or legal relations to ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or to determine any question ...