GRAHAM v. LYBRAND et al., 142 F. 109

BAKER, Circuit Judge, after stating the facts, delivered the opinion of the court. The bill should first be stripped of certain allegations that are utterly irrelevant to the cause of action against the defendant executors. Whether in April, 1901, the grandchildren, who became executors in July, took from their grandfather after he became unconscious the personalty he had in Ohio and sent it to Wisconsin, is as immaterial as if some one else had done the act. And the promise of the executors’ attorney that the executors would pay the judgment in favor of the Ohio treasurer is unavailing.

The attorney, without express authority to that end being shown, could not bind his clients by his promise that they would pay. And the executors were merely the hands of the Wisconsin court in administering the estate in their possession. Their possession was the court’s possession. They would have no right on their own motion to go to Ohio and make promises to pay. And their action in that line could not create by estoppel in the plaintiff administrator a right to any part of the fund in the Wisconsin court, which would not otherwise exist. The bill cannot be construed as a suit by Graham.

The rule that an administrator may sue in his own name upon a, cause of action which accrued to him in his representative character (Newberry v. Robinson [C. C.] 36 Fed. 841; 13 Am. & Eng. Ency. of Law, 951) has no application here. So far from showing that Graham as administrator ever came into possession of, or became accountable to creditors for, the assets that Lybrand had held in Ohio, the bill must be taken, as against the pleader, to allege that those assets were surreptitiously taken and sent to Wisconsin in Lybrand’s lifetime.

The cause of action, therefore, accrued to Lybrand, and so Graham’s right, if any, is to proceed as administrator solely. Under the pertinent and material averments of the bill, the question then comes 'to this: Could the domiciliary administrator maintain in the federal court in Wisconsin a suit to compel the ancillary executors to turn over to him assets of the estate which was being administered in the Wisconsin state court? In saying no, it is enough to notice two of the grounds of demurrer.

If there were no enabling statute in Wisconsin, a foreign administrator could not sue either in the federal or state courts, because the force of the laws of the foreign state and the powers of its courts and their officers are not extraterritorial. Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Johnson v. Powers, 139 U. S. 156, 11 Sup. Ct. 525, 35 L. Ed. 112. The Wisconsin statute would permit the plaintiff, if no administration was being had in Wisconsin, to file a duly authenticated copy of his appointment and to sue for the possession of property which had belonged to his decedent at the time of his death.

But if administration is going on in Wisconsin, the statute leaves the foreign administrator disqualified to come into the state and take independent action to gather in the assets. The fund is in the charge of the Wisconsin state court. The federal court in Wisconsin would have the right to adjudicate against these defendants the amount of á claim against the estate; but it rightly declined to order the officers of the Wisconsin state court to turn over a fund under the control of that court to the officer of the Ohio state court for administration there. Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L.

Ed. 867. If the Ohio court desired a portion of the assets in Wisconsin, possibly a more fortunate outcome would have resulted from sending its ambassador with a proper petition to the court where the fund was; but, even so, the event would depend upon comity rather than right. The decree is affirmed.