county of the province was obliged to do so again in any other county, "wherever such testator's or intestate's estates may be." Following this act it was held in McCullough v. Young, 1 Binn. 63, that an administration granted in Maryland would enable the administrator to sue here, and this was followed in other cases noticed more particularly hereafter, though there is a notable absence of any reference to the statute, and the decisions are put on the ground of comity alone. In Brodie v. Bickley, 2 Rawle, 431, however, the statute was apparently overlooked entirely, Gibson, C. J., saying: "The authority of an administiator, under letters granted in a sister state, to meddle with the assets here is an anomaly, produced by an unexampled spirit of comity in the courts of this state which will probably be attended with perplexity and confusion." The act of March 15, 1832, changed the law, and withdrew the authority of parties acting under foreign letters. But that act was held in Moore v. Fields, 42 Pa. St. 467, not to apply to a suit by a foreign administrator for assets which had never been subject to administration in this state, and subsequent statutes have exempted certain classes of property from the prohibition of the act of 1832. The course of decision and enactment on this subject is reviewed by our brother Dean in Shinn's Estate, 166 Pa. St. 121, 45 Am. St. Rep. 656, and need not be further discussed here. It is referred to only to show that the policy of the state, both legislative and judicial, has not 181 been to enforce the common rule as to foreign administrators in all its breadth, even in regard to suits by them, and a fortiori in regard to suits against them which stand on a different footing. As to these the ground of the objection entirely fails. A suit by a Pennsylvania creditor against a foreign executor within this jurisdiction does not seek to take any assets away, to the prejudice of domestic claimants, but, on the contrary, enlarges the protection given by this sovereignty to its own citizens. Our cases accordingly show that such actions have been sustained, within the limitations required by due regard to the precedence of other courts as to matters within their jurisdiction, and the rights of executors and others answerable to such jurisdiction.

In Swearingen v. Pendleton, 4 Serg. & R. 389, the defendant, being executor in Virginia and also in Pennsylvania, was held liable here for assets in his hands without regard to whether they came to him here or in Virginia, and it was not a good defense that he had not yet accounted in Virginia. In Evans v. Tatem, 9 Serg. & R. 252, 11 Am. Dec. 717, the defendant,

being administratrix in Pennsylvania, was sued in Tennessee and decree entered against her. Suit then being brought here on that decree, and defendant pleading that, as administratrix in Pennsylvania, she was not amenable to the courts of Tennessee, judgment was given against her, Tilghman, C. J., saying: "Wherever he [the executor] goes he carries with him the obligation to administer the assets," and, citing Swearingen v. Pendleton, 4 Serg. & R. 389, "it was held that a suit might be sustained in Pennsylvania against an executor who had administered (i. e., taken out letters testamentary) in Virginia; so that this point may be considered as settled." Bryan v. McGee, 2 Wash. C. C. 337, was a bill by a creditor of decedent to charge the administrator, who demurred on the ground that he was administrator by letters in New Jersey and could only be held to account there, but the court said: "Defendant, having property in his hands belonging to the estate of Davis Magee, may, in equity, be called upon for that property in any place."

In Brodie v. Bickley, 2 Rawle, 431, already referred to, the reaction began, and it was said by Gibson, C. J., that the administrator's commission (i. e. his representative capacity) "extends only to assets of which the ordinary had jurisdiction; 182 and it constitutes him a representative of the intestate no farther than as regards the administration of those particular assets," but he adds also: "As was held in Dowdale's case, 6 Rep. 46, an administrator may be sued in a foreign country; because the action, being transitory, follows his person, and the jury may inquire of assets in his hands at home or abroad. But the judgment would not affect any assets the administration of which had not been committed to him." What, however, was decided in the case was, that an administrator was not chargeable with assets in another jurisdiction never within his control, and there was no such privity as would support an action of debt against an administrator here on a judgment against a foreign administrator of the same intestate.

The same principle was again enforced in Mothland v. Wireman, 3 Penr. & W. 185, 23 Am. Dec. 71. Chief Justice Gibson again asserted the merely local authority of an administrator and repeated his disapproval of the extent to which comity had been carried. But the decision went only to the extent that an administrator here was not chargeable with assets in the hands of a coadrainistrator in Maryland, which had never been within his control. The second paragraph of the syllabus is incorrect in stating that he would not be chargeable if he had obtained pos

session of the Maryland assets, for although Chief Justice Gibson in the opinion says, "granting the assets to have actually come to his hands, I am unable to see why he should account for them here"; yet this was arguendo only, and there was no such fact in the case, as is pointed out by our brother Dean in Shinn's Estate, 166 Pa. St. 121, 45 Am. St. Rep. 656, already cited. The next case, Magraw v. Irwin, 87 Pa. St. 139, was regarded by the learned court below as having overruled Swearingen v. Pendleton, 4 Serg. & R. 389, Evans v. Tatem, 9 Serg. & R. 252, 11 Am. Dec. 717, and the cases heretofore cited, and it is plain that the opinion leans, as does Chief Justice Gibson's in Brodie v. Bickley, 2 Rawle, 431, and Mothland v. Wireman, 3 Penr. & W. 185, 23 Am. Dec. 71, against the earlier doctrine. But a careful consideration of the facts shows that, notwithstanding the unfriendly attitude of the opinion, the authority of those cases is not overthrown. Magraw, a citizen of Maryland, died there, and letters testamentary were granted there to his widow, who filed an account and was awarded certain stocks and bonds of Pennsylvania corporations, as legatee. These were the only assets ever in Pennsylvania, and they were withdrawn by the executrix 188 under the authority of the acts of 1836 and 1850. Then the executrix died, and the defendant was appointed administrator cum testamento annexo, and, coming into Pennsylvania, was sued by another nonresident, a creditor of his testator. The opinion of this court, quoting the general rule that no action lies by or against an executor except in the forum of his letters testamentary, admits that it is in conflict with Swearingen v. Pendleton, 4 Serg. & R. 389, and Evans v. Tatem, 9 Serg. & R. 252, 11 Am. Dec. 717, and, as already said, indicates an unfriendly attitude to those cases, but continues by a discussion of the facts, and gives the reason of the decision as follows: "By a regular and valid decree those assets were taken out of her [the widow's] hands as administratrix and given to her as legatee. . . . . It therefore follows that the succeeding administrator, the plaintiff in error, cannot be chargeable either here or elsewhere, with the assets thus administered and distributed." The decision, therefore, goes no further than the principle of Brodie v. Bickley, 2 Rawle, 431, and Mothland v. Wireman, 3 Penr. & W. 185, 23 Am. Dec. 71, that an administrator is not chargeable with assets in another state which have never been within his control, or, to express it with special reference to the facts of the case, that a defense of plene administravit is good, although the administration was in another state and by a prior

executor. That principle is sound and in harmony with all our

cases.

Notwithstanding the adverse criticism to which Swearingen v. Pendleton, 4 Serg. & R. 389, and the other cases have been subjected, we regard them as of unshaken authority, and it must be taken as the rule in Pennsylvania that a foreign executor within the jurisdiction of our courts is liable to suit by a resident creditor of his decedent, and such suit will be sustained unless it trenches unduly on the jurisdiction of another court already attached, or would expose parties subject to such jurisdiction to inequitable burdens. The subject of defenses to such actions we are not called upon at present to discuss.

It follows that the demurrer should have been overruled. The docket entries show that an affidavit of defense was filed, but, as it is not before us, we cannot enter a final judgment.

Judgment reversed and record remitted for further proceedings.

EXECUTORS AND ADMINISTRATORS - FOREIGN - SUITS AGAINST.-The general rule, sustained by the weight of authority, is that no action or sult can be maintained either by or against an administrator outside the state of his appointment, until he has first taken letters in the foreign jurisdiction: Extended note to Shinn's Estate, 45 Am. St. Rep. 672; also, notes to Jackson v. Johnson, 89 Am. Dec. 273. If foreign executors or administrators come within the jurisdictional limits of a state, they are liable to be sued there by creditors or to be brought to an account by legatees or distributees: Extended note to Alley v. Caspari, 6 Am. St. Rep. 184; McCully v. Cooper, 114 Cal. 258; 55 Am. St. Rep. 66, and note.

HERON V. PHOENIX MUTUAL FIRE INSURANCE Co.

[180 PENNSYLVANIA STATE, 257.]

INSURANCE-FIREWORKS, CONDITION AGAINST KEEPING.-If a fire insurance policy provides that it shall be void, "if the hazard be increased by any means within the control or knowledge of the insured or if there be kept, used, or allowed on the above premises fireworks," and other named explosives, the temporary storing of an assorted lot of fireworks on the insured premises, though for celebration purposes, with the knowledge and consent of the insured, is such a breach of the condition of the policy as to abeolutely avoid it in case of loss arising from the accidental explosion of such fireworks.

H. H. Gilkyson, for the appellant.

R. T. Cornwell and G. G. Cornwell, for the appellee.

259 STERRETT, C. J. This action of assumpsit, brought to recover the value of certain household goods, etc., insured by de

fendant company and destroyed by fire on July 3, 1895, involves the construction of certain provisions of the policy in suit.

There is no controversy as to any of the material facts. For the purpose of celebrating the 4th of July of that year, plaintift bought a lot of assorted fireworks, which were delivered at his residence on the morning of the 3d, and were shortly afterward, with his knowledge and approbation, placed in the parlor for use on the following evening. In some unexplained way, they took fire on the afternoon of the same day, and caused the damages for which this suit was brought.

The defense interposed by the insurance company was, that 260 placing the fireworks in plaintiff's house, with his knowledge and consent, and permitting them to remain there, was a violation of the following clause of the policy, and rendered the latter void: "This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void . . . . if the hazard be increased by any means within the control or knowledge of the insured, . . . . or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greck fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine, or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight or at a distance not less than ten feet from artificial light)."

The defendant's contention as to the proper construction of the above-quoted clause is clearly presented in its requests for charge recited in the first three specifications, respectively. Each of these requests were refused by the learned trial judge, and the jury was instructed to find for the plaintiff the amount of the loss he "sustained by reason of the fire." The third request was that, "under all the evidence in the case, the verdict of the jury must be for the defendant."

We have never gone to the length that other courts have in construing away express provisions or stipulations as to forfeiture. While some hold that it is permissible to use the articles prohibited by the general printed clause, provided they are such as naturally pertain to the stock of goods or property described in the written part of the policy, this court has refused to go so far. In Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. St. 66.