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CATHARINE HILL, PLAINTIFF IN ERROR, v. JOSEPH W. TUCKER

December 1, 1851

CATHARINE HILL, PLAINTIFF IN ERROR,
v.
JOSEPH W. TUCKER, EXECUTOR OF ABNER ROBINSON, DECEASED.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana. It was argued in conjunction with the succeeding case of Goodall v. Tucker, but the facts being somewhat different, they are reported separately. On the 6th of December, 1842, Abner Robinson, of the city of Richmond, Virginia, made his last will, and appointed William R. Johnson and Joseph Allen, of Virginia, and Thomas Pugh and Joseph W. Tucker, of Louisiana, his executors. On the 21st of December, 1842, the will was proved in Virginia, and letters testamentary granted to Johnson and Allen, the executors. Tucker qualified as executor in Louisiana, but at what time the record did not show. On the 29th of February, 1848, Catharine Hill filed her petition in the Circuit Court of the United States for the Eastern District of Louisiana against Tucker, as executor. The proceedings in the Circuit Court, together with the points excepted to, are all stated in the opinion of the court, and need not be repeated. It was argued in this court by Mr. Johnson and Mr. Duncan, for the plaintiff in error, and Mr. Taylor, for the defendant in error. The points made by the counsel for the plaintiff were the following: 1. That the judgments in Virginia were evidence against the defendants, they being coexecutors with the defendants in such judgments. Stacy v. Thrasher, 6 How. 58; 1 Salk. 299; 1 Com. Dig. Adm'r, B. 9; 2 Bla. Com. 507; Dixon's Ex'rs v. Ramsay's Ex'rs, 3 Cra. 319, 1 Cond. Rep. 547; 3 Bac. Ab. Ex'rs and Adm'rs, p. 30, 52. 2. That if the judgments were not evidence, the plaintiffs were entitled to recover upon the original causes of action, they being proved, and not being barred by the Louisiana law of prescription. Article 3505 of the Civil Law says: 'Actions on bills of exchange, notes payable to order or bearer, except bank-notes, those of all effects negotiable or transferable by indorsement on delivery, are prescribed by five years, reckoning from the day when these engagements were payable.' Article 3517 provides that 'a citation served upon one joint-debtor, or his acknowledgment of the debt, interrupts prescription with regard to all others, and even their heirs.' In Goodall's case the suit was brought on the 29th February, 1828, less than ten years after the bond sued upon matured. In Louisiana ten years is the limitation, and the law upon the subject is always the law of the forum. Lacoste v. Benton, 3 La. An. Rep. 220; Spiller v. Davidson, 4 Id. 171; Graves v. Routh, Adm'r, 4 Id. 127; Young v. Crossgrove, Id. 234, 235; Wheeling v. Preston, 12 Rel. 141; 2 La. An. Rep. 315, 646; Story's Conflict of Laws, 576. In Hill's case the same authorities are referred to, and she had a right to sue in her own name, she having been recognized by the District Court as universal legatee, and being assignee of the judgments. 10 Mart. Rep. 117; 2 N. Series, 296.

The opinion of the court was delivered by: Mr. Justice Wayne delivered the opinion of the court.

Mr. Taylor, for defendant in error.

Upon the trial of the cause, the court decided, as if instructing a jury, these two propositions:

1st. That the Virginia judgment against Joseph Allen and William R. Johnson, executors of the last will and testament of Abner Robinson, appointed and qualified under the will in Virginia, was not evidence against the defendant; and

2d. That the original cause of action as to the defendant was barred by prescription, and the plaintiff excepted to the two decisions. If there be no error in these decisions, the judgment of the court below must be affirmed.

I. In Louisiana, testamentary executors are merely administrators, in the most limited sense of the term. They have none of the qualities, capacities, or rights of executors under the common law. No argument, however extended, would make this clearer than a simple reference to the articles of the Louisiana Code, relating to the administration of estates of decedents under the authority of law. Articles 1091, 1106 to 1123, 1126 to 1148, provide for the appointment of persons to administer the estate of persons dying intestate. Articles 1651 to 1655, 1670, 1671 and 1672, 1659, 1661, 1662, 1663 1666 to 1668 provide for the appointment of persons to administer the estates of persons who leave testaments, and define their powers. From an examination of these articles, it will be at once apparent that a testamentary executor differs in no respect, so far as to his rights, powers, and duties, from the ordinary administrator. And if this be true, then it is certain that the record in question could not be evidence against the defendant, for, as the learned Story has remarked in his Conflict of Laws, sect. 522, 'When administrations are granted to different persons, in different States, they are so far deemed independent of each other, that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration; for in contemplation of the law there is no privacy between him and the other administrator.' Without citing other authorities on this point, I will merely refer to the case of Stacy v. Thrasher, decided by this court, (6 Howard, 58,) in which the doctrine is fully recognized. See Deneale v. Stumps's Ex'rs, 8 Peters, 531. If it be true, as there stated by Chief Justice Marshall, that 'it is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them,' and that 'it could not be given in evidence against them,' it is not easy to perceive that there was error in this decision.

II. The law of the forum applies as to prescription. Code of Practice, 13; Story's Conflict of Laws, sect. 576, 578; LeRoy v. Crowninshield, 2 Mason, 151; Huber v. Steiner, 29 Eng. C. L. Rep. 308, (2 Bingh. N. C. 202.)

Actions 'on all effects negotiable or transferable by indorsement or delivery, are prescribed by five years, reckoning from the day when these engagements were payable.' C. C. of La. 3505. And this prescription runs 'against persons residing out of the State.' C. C. 3506.

To make our law of prescription applicable, it is necessary that the obligation sued on be one transferable by indorsement or delivery, and the question whether it be in fact so transferable is to be decided by the law of the place where the contract was entered into. Story's Conflict of Laws, sect. 242; Code of Practice of La. 13. Is the bond sued on negotiable or transferable by indorsement or delivery? This must be determined by the common law, as received and in force in the State of Virginia, where the instrument under consideration was executed.

I will not weary the court by going into an examination of the original effects of assignments of incorporeal rights under the common law, or of the modes of enforcing them. Nor will I give an account of the origin and peculiar character of bills of exchange, growing out of the necessities of trade. It is sufficient for my present purpose to remark that promissory notes, notwithstanding the exigencies of commerce, did not acquire this peculiar feature,–the capacity of being transferred by indorsement or delivery,–until it was given to them by the statute of Anne, when, for the first time under the common law, they were made assignable at law, and were placed on the same footing as bills of exchange. Bonds and other instruments in writing were made assignable in the same manner in Virginia, by statute, in 1748 which was confirmed by the act of 1786. 1 Rev. Code, 484. Such bonds as the one sued on became, from the adoption of these statutes in Virginia, transferable by simple indorsement, or by mere delivery. Seymour v. Van Slyck, 8 Wend. 421; Downing v. Backenstoes, 3 Caines, R. 136. And the very point has been determined in Virginia. Makies's Ex'rs v. Davis, 2 Washington, 219; Drummond v. Crutcher, Id. 218.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

It was argued with the case of Goodall v. Tucker, but the facts being somewhat different, and the prayers to the court not exactly alike in both cases, it will be necessary to consider them separately.

First then as to Catharine Hill's case.

She filed a petition in February, 1848, in the Circuit Court of the United States for the Eastern District of Louisiana against Tucker, the executor of Robinson. She was the widow and sole devisee of James P. Wilkinson, who resided in Richmond, Virginia, and after his death intermarried with Hill, by whose authority she prosecuted this suit.

Robinson lived also in Richmond, although his property was chiefly situated in Louisiana. In December, 1842, Robinson died in Richmond, having made a will a few days before his death, and appointed, as executors, William R. Johnson and Joseph Allen, of Virginia, and Thomas Pugh and Joseph W. Tucker, of Louisiana. Johnson and Allen qualified as executors in Virginia, and Tucker in Louisiana.

The causes of action, in the suit brough by Catharine Hill, were the four following, which will be separately ...


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