Wickersham v. Johnston

California Supreme Court Oct 26, 1894 No. No. 15564Published

Before: Fitzgerald, Haven, McFarland

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Holding. Executors of a foreign estate lack the authority to sell promissory notes belonging to the estate without a court order, and a foreign judicial record consisting only of a final order without the underlying proceedings is insufficient to prove the estate's authority.

Issues

Whether executors of a foreign estate may sell promissory notes without a court order under California law.
Whether a foreign judicial record consisting only of a final order is sufficient to prove the authority of executors.
Whether section 1906 of the Code of Civil Procedure allows for the proof of a foreign judicial record by a certified copy.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“They were assets of the estate of John Lancaster, deceased, and could be sold only under and by an order of the probate court.”

“We are satisfied, that a foreign judicial record may be proved by a copy thereof, attested and certified as provided by said section 1906 of the Code of Civil Procedure.”

Synopsis

Appeal from a judgment of the Superior Court of Humboldt County.

The facts are stated in the opinion of the court.

It was error for the court to admit in evidence what purported to be a copy of the judicial record of a foreign country, as it was authenticated in accordance with the provisions of section 1906 of the Code of Civil Procedure, which applies only to original records. (See Code Civ. Proc., secs. 1906,1907; Practice Act, sec. 451.) The judgment should be reversed because of the failure of the plaintiff to plead or prove the laws of Great Britain defining the mode of appointment, powers, or duties of the executors or administrators of the estate of a decedent. This constituted reversible error. (Riendeau v. Vieu, 21 N. Y. Supp. 501.) A foreign law is a question of fact, and must be alleged and proved like any other fact. (Liverpool etc. Go. v. Phoenix Ins. Go., 129 U. S. 397; Monroe v. Douglass, 5 N. Y. 447; Norris v. Harris, 15 Cal. 254; Hill v. Grigsby, 32 Cal. 55; Shumway v. Leakey, 67 Cal. 458.) As there was no allegation or proof of the foreign law, it will be presumed to be the same as the law of this state. (Norris v. Harris, 15 Cal. 253; Hickman v. Alpaugh, 21 Cal. 225; Hill v. Grigsby, 32 Cal. 55; Marsters v. Lash, 61 Cal. 622; Shumway v. Leakey, 67 Cal. 458; Loaiza v. Superior Court, 85 Cal. 12; 20 Am. St. Rep. 197.) The alleged record consists of wliat purports to be simply an extract from the minutes of the court, and is under our laws fatally defective and wholly inadmissible. (Freeman on Judgments, 603; Young v. Rosenbaum,, 39 Cal. 646; Tessier v. Englehart, 18 Neb. 167; Clemmer v. Cooper, 24 Iowa, 185; 95 Am. Dec. 720; Moore v. Hood, 9’Rich. Eq. 311; 70 Am. Dec. 212; Carpenter v. Pier, 30 Vt. 81; 73 Am. Dec. 290; Ashley v. Laird, 14 Ind. 222; 77 Am. Dec. 67; Rape v. Heaton, 9 Wis. 328; 76 Am. Dec: 269, 275, 279; Whidden v. Seelye, 40 Me. 247; 63 Am. Dec. 662; Bimeler v. Dawson, 4 Scam. 536; 39 Am. Dec. 430; Sherwood v. Miller, 37 Mo. App. 48; Abbott’s Trial Evidence, 537; Sawyer v. Maine etc. Ins. Co., 12 Mass. 291; Mason v. Wolff, 40 Cal. 249; Harper v. Rowe, 53 Cal. 233.) An executor has no power to dispose of choses in action without an order of court. (Code Civ. Proc., sec. 1524; Estate of Radovich, 74 Cal. 536; 5 Am. St. Rep. 466; Huse v. Den, 85 Cal. 390; 20 Am. St. Rep. 232.) .

The record of the foreign judgment was properly admitted in evidence, as a judicial record of a foreign country may be proved by a certified copy thereof, properly attested as required by section 1906 of the Code of Civil Procedure. (See Code Civ. Proc., secs. 1906,1907; Loiv v. Burrows, 12 Cal. 181; Parke v. Williams, 7 Cal. 247; Ferguson v. Harwood, 7 Cranch, 408; 1 Greenleaf on Evidence, sec. 514.) It was. not necessary to prove that the foreign cdurt had jurisdiction to make an order admitting the will to probate. (Qoldtree v. McAlister, 86 Cal. 99.) It will be presumed that the foreign court had jurisdiction to admit the will to probate. (Code Civ. Proc., sec. 1963, subd. 16.) An allegation that a foreign judgment was duly made is sufficient; and it is not necessary to allege the jurisdictional facts,*but that would be a matter of defense under the foregoing section of the Code of Civil Procedure. (McLaughlin v. Nichols, 13 Abb. Pr. 244; Freeman on Judgments, sec. 453; Phelps v. Duffy, 11 Nev. 80.) The plaintiff clearly-liad a right to maintain this action. (See Petersen v. Chemical Bank, 32 N. Y. 21; 88 Am. Dec. 298; Harper v. Butler, 2 Pet. 239; SolinsJcy v. Fourth Nat. Bank, 82 Tex. 244.) An executor or administrator may sell or dispose of negotiable instruments or choses in action by indorsement to another, or to a distributee, without an order of the probate court, and such transfer passes the title, so as to enable the transferee or distributee to maintain an action on them; nor can the maker, in the absence of fraud, abate such action for a want of authority to make the transfer. (See Weider v. Osborn, 20 Or. 307. See, also, Hough v. Bailey, 32 Conn. 288; Marshall Co. v. Hanna, 57 Iowa, 375.)

McFarland, J. The plaintiff brought three actions-against the defendant, each upon a promissory note-made by the defendant to one John' Lancaster, since deceased, who was a British subject and a resident of-England, where he died testate on the 21st of April, 1884. The three actions were by the consent of parties- and an order of the court consolidated. The court rendered judgment for plaintiff for the amount of the principal and interest of said three notes, with costs, etc. Defendant appeals from the judgment.

The judgment of the lower court went upon the theory, founded upon the findings, that the two sons of the deceased, George Granville Lancaster and John Lancaster (Jr.), were appointed by the will of the deceased as the executors thereof, and qualified as such; and -were also appointed “ administrators of the personal estate” of the deceased John Lancaster; that the will of the deceased was duly probated in an English court; that by said will the said sons were also made residuary legatees; and that on November 15, 1880, the said sons, George and John, as such executors and administrators, and being the owners of said notes, “ sold, transferred, and set over” the same to the plaintiff herein.

[411]The main evidence in the case introduced by plaintiff is found in a certain commission to take the testimony of said George and John Lancaster, issued to John 0. New, consul general of the United States at London, by which it was undertaken to prove all the foregoing facts as to the death of John Lancaster, deceased, the existence of the will, its probate, issuance of letters testamentary and letters of administration to the sons, etc. Many objections were made by appellant to various parts of the evidence contained in said commission; but we will assume for the present that the evidence contained in this commission sufficiently shows the facts above referred to. There was no evidence at all tending to show what the law was in the foreign country touching any of the questions which are raised here; and it must, therefore, be assumed that the law with respect to those matters was the same there as in California. (Norris v. Harris, 15 Cal. 254; Hickman v. Alpaugh, 21 Cal. 226; Hill v. Grigsby, 32 Cal. 55; Marsters v. Lash, 61 Cal. 624; Monroe v. Douglass, 5 N. Y. 447; Liverpool etc. Co. v. Phenix Lns. Co., 129 U. S. 445.) This rule applies to England as well as to sister states of the American nation. In Liverpool etc. Co. v. Phenix Ins. Co., 129 U. S. 445, the supreme court of the United States say: “Thelaw of Great Britain since the Declaration of Independence is the law of a foreign country, and, like any other foreign law, is matter of fact, which the courts of this country cannot be presumed to be acquainted with, orto have judicial knowledge of, unless it is pleaded and proved.”

Wickersham v. Johnston

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