Park v. Walsh

California Court of Appeal Apr 16, 1927 No. Docket No. 5848.Published

Before: Cashin

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Holding. The court held that a foreign executor is under no legal duty to submit to the jurisdiction of a foreign court to revive an action pending against a deceased testator, and therefore denied the petition for a writ of mandate.

Issues

Whether a foreign executor has a legal duty to appear in a foreign court to continue an action pending against a deceased testator.
Whether a writ of mandate may compel a foreign executor to submit to the jurisdiction of a foreign court.

Disposition. denied

Quotations verified verbatim against the opinion

“no valid enactment of that state has sought to impose upon such executors the duty of submitting to the jurisdiction of its courts”

“respondent, as executor, trustee, or as residuary legatee under the will, is under no duty enjoined by law to do the acts sought to be compelled in this proceeding.”

[380]

CASHIN, J.

— A petition for a writ of mandate directing James E. Walsh, as the residuary legatee and as executor and trustee under the last will and testament of Bichard Varick Dey, deceased, to execute for transmission to the clerk of the supreme court of New York in and for the city of New York an instrument sufficient to constitute an appearance by him as defendant in an action filed therein against the deceased in his lifetime.

The deceased, a resident of the state of California, died in the state of New York on October 21, 1925, leaving estate in the former, but none in the latter state. On November 27, 1925, after proceedings had his last will and testament was duly admitted to probate in the superior court of California in and for the city and county of San Francisco, following which letters testamentary thereon were issued to respondent Walsh, who is now the qualified and acting executor thereof.

By the provisions of the will the estate was devised and bequeathed to respondent as trustee for the uses and purposes therein named, he being also a residuary legatee thereunder. The action mentioned, which was brought by petitioner against Dey as the sole defendant for the recovery of damages for an alleged breach of contract, was tried and submitted before the latter’s death and has not been decided. It is admitted that the statutes of New York provide that “a judgment shall not be entered against a party who dies before a verdict, report or decision is actually rendered against him. In that case the verdict, report or decision is void” (sec. 478, Civil Practice Act of New York)

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and, by section 84 of the same act, that “in case of the death'of a sole plaintiff or sole defendant, if the cause of action survives or continues, the court upon motion must allow or compel the action to be continued by or against his representatives or successor in interest.”

As grounds for his application petitioner alleges that the deceased, having left no estate therein, no ancillary administration can be had in New York; that the court in which the action is pending is without power to enforce the appearance by respondent, but, should such appearance be entered, is authorized by law to render and enter its judgment; that the claim on which the action was brought was

Park v. Walsh

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CASHIN, J.

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