and proved, would be inoperative to devise lands in this state. It acquired no additional force from the recording. A certificate will be made that the title to the lands in question did not pass under the testator's will, but descended to his heirs at law.

In preparing this opinion, I have not overlooked the fact that upon the testator's death, in 1885, the lands in question descended to his heirs at law, and that their title was vested before the act of 1886 was passed. But inasmuch as the act of 1882, which was in force when the testator died, is, in all respects material to this controversy, identical with the act of 1886, I preferred to consider the case as if controlled by the latest act on this subject.

VAUGHN v. BARRET.

5 Vt. 333. 1833.

This was an action of debt on judgment brought by Wm. Vaughn, administrator upon the estate of John W. Mott, deceased, late of the city, county and state of New York. The writ in this case was dated and served on the first of September, A. D. 1831. It was alleged in the declaration that the judgment was recovered by John W. Mott, aforesaid, against the defendant, by the consideration of the Rutland county court, at their term, began and holden at said Rutland on the 2d Monday of Sept. A. D. 1826, for the sum of four hundred and fifty-seven dollars and nine cents, for damages and costs, and that no part of said judg ment has been paid except $309.88, being part of the damages which had been allowed against the estate of Erastus Barker, leaving the sum of one hundred and thirty-six dollars and two cents damages, and the further sum of twelve dollars and nine cents costs, making in whole $148.11, being the residue of said judgment. The defendant pleaded that after the recovery of said judgment and before the commencement of this suit, to-wit, on the 20th of October, 1827, Henry Mott, of the said city of New York, was regularly appointed administrator by James Campbell, surrogate of the said city of New York, upon the estate of the said John W. Mott; and that afterwards, to-wit, on the 24th day

of November, A. D. 1830, the said Henry Mott as administrator as aforesaid, for a valuable consideration executed to the said Jaazaniah a discharge of said judgment in favor of said John W. Mott. To this plea, the plaintiff replied that prior to the said 24th day of November, A. D. 1830, the time at which the said Henry Mott discharged the judgment, to-wit, on the third of April, A. D. 1830, the said William Vaughn was regularly appointed administrator upon the estate of the said John W. Mott, by the probate court for the district of Rutland, but there was no profert of the records of said probate court. And that the defendant at the time of the recovery of the said judgment against him in favor of the said John W. Mott, and long before and ever since, has been and still is an inhabitant of the state of Vermont, residing in said probate district, and not a citizen or inhabitant of the state of New York. To which replication there was a general demurrer and joinder in the demurrer. The county court rendered judgment for the plaintiff, and the defendant excepted; whereupon the case comes here for reconsideration.

PHELPS, J. It appears that John W. Mott, being a citizen and resident of New York, obtained a judgment against the defendant, and afterwards died in New York. Administration of his effects was there committed, by the surrogate, to Henry Mott, and administration of the effects of J. W. Mott in this state, was granted to the plaintiff, by the probate court, for the district of Rutland within which the defendant resided. Subsequently the defendant obtained a discharge from Henry Mott, and, the plaintiff having brought this action, the defendant pleads that discharge in bar. The question is, will the discharge avail him? The disposition of effects left vacant by the decease of the owner has ever been regarded as a matter strictly of local jurisdiction. It is indeed a proceeding in rem; and in every country, is considered as falling within the jurisdiction of the particular state, province or district, in which the effects are situate.

In England, where this subject is committed to the ordinary, if there are effects in two dioceses, administration must be taken in the provincial court; and if there are effects in two provinces, i. e., within the jurisdiction of the two archbishops, administration must be taken in both. The reason given is, that they are each supreme jurisdictions, and neither can act in the other.

Bac. Abr. tit. "Executors," E; Hardress, 216; 1 Salk. 39-40; 3 Bl. Comm. 509. So no notice is taken there, of administration granted abroad, nor does a grant of administration in England extend to the colonies. The same view of the subject has ever been taken in the United States. Hence, an administrator appointed in a foreign state has no authority in the United States. Graeme v. Harris, 1 Dall. 456; Dixon v. Ramsay, 3 Cranch, 319; Lewis v. McFarland, 9 Cranch, 151; Selectmen of Boston v. Boylston, 2 Mass. 384. So letters of administration granted in one of the states are of no authority in another. This point has been repeatedly decided by the courts of the United States. See Fenwick v. Sears, 1 Cranch, 259; Dixon v. Ramsay, 3 Cranch, 319; Champlin v. Tilley, 3 Day, 304, Fed. Cas. No. 2,586. It has been so held in Maine (see Stearns v. Burnham, 5 Greenl. 261); in New Hampshire (see Sabin v. Gilman, 1 N. H. 198); in Massachusetts (see Goodwin v. Jones, 3 Mass. 514); Selectmen of Boston v. Boylston, 2 Mass. 384; Borden v. Borden, 5 Mass. 67; Richards v. Dutch, 8 Mass. 506; Stevens v. Gaylord, 11 Mass. 256); in Connecticut (see Riley v. Riley, 3 Day, 74; Stanton v. Holmes, 4 Day, 87); and similar decisions have been had in Virginia, Kentucky, Ohio, and North Carolina. So far indeed has this doctrine been carried, that in some states, they do not hold an administrator appointed abroad responsible within their ju risdiction, nor an administrator appointed within the state, responsible for effects received out of their jurisdiction. See 2, 5 and 8 Mass., cited above.

This subject has also been before our courts, and similar decisions had. See Dodge v. Wetmore, Brayt. 92; also, Lee v. Havens, Id. 93. The case of Lee v. Havens is strictly in point with the present. In that case an administrator appointed in Massachusetts had attempted to evade our jurisdiction, by indorsing a note due from a citizen of this state to his intestate there. A suit was brought by the endorser, but the court held the indorsement nugatory as the administration had no interest in, or control over, the note in question. In short, if the courts of this state have jurisdiction, it follows that the courts of no other state can have. The idea of a concurrent jurisdiction, in such a case, is absurd and impracticable. If any reason be necessary to show the propriety of the decisions on this subject, it is

found in the obvious propriety, not to say necessity, of protecting the rights of our own citizens who may be creditors of the intestate. To suffer the effects of the intestate to be eloined, without attending to these rights, is an act of comity to other jurisdictions which no state does, or will exercise. An idea seems to have been entertained, that the jurisdiction over the debt in this case followed the person of the creditor. But it is to be observed, that jurisdiction, or the right of administration in respect to debts due a deceased person, never follows the residence of the creditor. They are always bona notabilia, unless they happen to fall within the jurisdiction where he resided. See Bac. Abr. "Executors," E; Cro. Eliz. 472. Judgments are bona notabilia where the record is (Ld. Raym. 855; Carth. 149; 8 Mod. 244; Anon., 6 Geo. II., cited by Selw.), specialties, where they are at the time of the creditor's decease (Lum v. Dodson, cited in Selw. N. P.; Byron v. Byron, Cro. Eliz. 472), and simple contracts where the debtor resides (Carth. 373; Salk. 37; Ld. Raym. 562).

An attempt is also made to support this defence upon the rule of lex loci contractus. This rule in most cases is founded upon the supposed intent of the parties. Further than this it is a matter of comity merely, as no independent state is bound to execute, or be governed by, the laws of another. To apply the rule, however, to a case like the present, and permit the interference of another state with subjects falling within our jurisdiction, would be an abandonment of our sovereignty. All transactions taking place in New York, upon matters subject to their jurisdiction, if regular by their laws, would be properly regarded here. A judgment rendered there if the parties and subjectmatter are within their jurisdiction, would be held conclusive; and even the act of a sheriff executed there would, under like circumstances, be esteemed valid, if called in question here. But we should hardly concede to their courts the power of acting upon the title of our lands, or to their sheriffs that of disposing of them at auction.

The judgment of the county court is therefore affirmed.

Concerning the Payment of Debts and Legacies.*

BRILL v. WRIGHT ET AL.

112 N. Y. 129. 1889.

Appeal from supreme court, general term, Second department.

Action by Job Seaman Benjamin against William H. Wright, executor, etc., of Job Seaman, deceased, and James O. Cronk and Matilda Cronk, for a legacy given to the plaintiff by said will, to require an account by the executor, and, in case of a deficiency of the personalty, to charge plaintiff's legacy on the real estate. The latter two defendants were residuary legatees. Pending the action the plaintiff died, and it was revived in the name of Rowland Brill, his administrator. The special term adjudged the legacy a charge on the realty, which was affirmed on appeal to the general term (44 Hun, 628, mem.), and the defendants again appeal.

ANDREWS, J. Where in a will general legacies are given, followed by a gift of all the rest and residue of the real and personal property of the testator by a residuary clause in the usual form, and nothing more, it must now, we think, be regarded as the established rule in this state that the language of the will alone, unaided by extrinsic circumstances, is insufficient to charge the legacies upon the lands included in the residuary devise. This was clearly the opinion of Chancellor Kent in the leading case of Lupton v. Lupton, 2 Johns. Ch. 614, as appears by his comment on the case of Brudenell v. Boughton, 2 Atk. 268; although his judgment in that case rested in part upon the circumstance that, in the will then under consideration, there was a prior devise which easily permitted an interpretation reddendo singula singulis of the residuary clause. In Hoyt v. Hoyt, 85 N. Y. 142, Folger, C. J., referring to Lupton v. Lupton, and other cases, justly stated that they asserted the doctrine that, "unaided and alone, the words that make up the usual residuary clause of a will are not enough to evince an intention in the

*See Sec. 1045, Vol. 7, Cyclopedia of Law.