argned that complainants are barred on account of their laches. The testimony tends to show that the children of the first marriage were in some way induced to believe that they were not entitled to any part of their money until the youngest sister came of age. As soon as this happened they took steps to recover their dues. They were in Penusylvania, the property in Missouri, They cannot well be told that their delay shall deprive them of their rights, provided they can show the property or the proceeds thereof, when by doing so they cannot possibly wrong anybody, unless it be a wrong to point out to their relations that what they supposed they were heirs to, others had an interest in. i'he statute of limitations presents no bar, nor are the claimants bound to resort to law to obtain their rights. Being satisfied from the evidence in the case that the proceeds of the railroad judgment went into and constitnted the fund by which the property of Margaret Armstrong was bought and improved, the judgment and decree of the court will be that the real estate in controversy be declared trust estate, to be sold for the benefit of the children of the first and second marriage; that an account be taken of valuable and lasting improvements made by the defendants, or either of them; the payment of taxes, insurance, and the value of the rents since the defendants had possession thereof. On the coming in of the master's report the proceeds will be equally divided between the complainants and respondents.
and others, Adm'rs, v. HOLDER and others.
(Circuit Court, D. Kan8a8. November, 1880.)
ExECUTORS AND ADMINISTRATORS-SUITS BY.
In 'the ab,sence of a statutory provision an administrator cannot sue outside of the state in which he is commissioned.
2. SAME-FOREIGN ADMINIS'fRATOR MAY COLLECT ASSETS.
Notes owned by deceased at the time of his death, secured by mortgages lands in another state, aroassets in the hands of his administrator appointed in the state where he resided at the time of his death, and his administrator may sue on them in the state where the land lies by which their payment is secured.
Pratt, Brumback et Ferry, for complainants. G. G. Clemens, for respondent. MCCRAiw, C. J. The complainants sue as administrators of the estate of Stillman Witte, who. died intestate in the state of Ohio, in which state the complainants were appointed administrators.
EELLS V. HOLDER.
The respondent demurs to !he bill upon the ground that the com· plainants cannot sue in this state in virtue of a grant of administra. tion in Ohio. In the absence of a statutory provision, it is clear that an administrator cannot sue outside of the state in which he is com. missioned. Dixon', Ex'rs v. Ramsey's Ex'rs, 3 Cranch, 519; Fen. wiak v. Sears, 1 Cranch, 259; Noonan v. Bradley, 9 Wall. 894. The statute of Kansas, however, provides as follows:
"An executor or administrator appointed in any other state or county may sue or be sued in any court in this state, in the capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued." Compo Laws 1879. p. 436, § 2491.
The suit is upon notes secured by mortgage upon real estate situated within this district. The mortgagee and payee of the notes was a citizen of Ohio, and died there, while the mortgagor is. a citizen of this state. . Counsel for respondent concedes that the statute authorizes a foreign administrator to sue in this state in certain cases, but insists that, according to the allegations of the bill, the complainants' had no right to bring this particular action, because they did not by 'tirtue of their appointment as administrators become the owners of the notes and mortgage sued on; that the title did not pass to them so as to enable them to sue and recover. This presents the question whether the notes and mortgage, being the property of Stillman Witte, a citizen of Ohio at the time of his death, passed as assets into the hands of his administrators in that state, the mortgage being upon Kansas land and the mortgagor and maker of the notes resid. ing in the latter state. In other words, were the notes and mortgage assets of the estate of Witte in the state of Kansas or in the state of Ohio? '],1he bill avers, and the demurrer admits, that at the time of the execution of the notes and mortgage the said Stillman Witte was a citizen of Ohio, and so continued until 1875, when he died intestate. It is now well settled that a mortgage given to secure a promissory note is a mere security and an incident to the note. Whereever the note is held and owned, there the mortgage follows. Can it be doubted that the notes sued on in this case were the property of Witte in Ohio at the time of his death, and that they became assets of his estate in that state ?Property of this character-mere chases in action-has in law no locality separate from the parties by whom it is owned. In the case of the State. Tax on Foreign-held Bonds, 15 Wall. 300, it was held that bonds issued by a railroad company are property in the hands of the holders, and when held by non-residents
of the state in whioh the oompany wits inoorporated they are property beyond the jurisdiotion of that state. It was further held in that oase that the faot that the bonds were seoured by mortgage upon property situated in Pennsylvania did not make them property within that state, and this for the reason that a mortgage under the laws of Pennsylvania, as here, though in form a oonveyance, is a mere seourity for a debt, and transfers no estate in the mortgaged premises. "It has long been settled," says the supreme oourt in Wilkins v. Elliott, Adm'r, 9 Wall. 740, "and is a prinoiple of universal jurisprudenoe in all civilized nations, that the personal estate of the deoeased is to be regarded, for the purposes of suooession and distribution, wherever situated, as having no other locality than that of his domioile; and if he dies intestate the suooession is governed by the law of the plaoe where he was domiciled at the time of his decease, and not by the conflicting laws of the various places where the property happened at the time to be situated." It follows that the notes and mortgage sued on in this case were assets of the estate of Witte in the state of Ohio, and as such passed to his administrators in that state, who had,. aooording to the ;plain terms of the statute of Kansas, the right to sue upon them "in like manner and under like restriotions as a non-resident may sue." This statute clearly authorizes a foreign exeoutor to sue in this state to recover any debt whioh is assets in his hands. I am not prepared to say t4at it does not authorize suoh an executor or administrator, in the absenoe of administration in this state, to sue in this state upon any debt upon whioh the deceased might have sued at the time of his death; but it is not neoessary in this oase to deoide that point. It is enough for the present to hold that the debt sued for was assets in Ohio, and there passed to oomplainants. Demurrer overruled.
ROBINSON TOBAoao Co. v. PHILIPS and others.
(Circuit Court, S. D. New York.
Where a cause was set down for hearing upon the pleadings OIl defendant's motion, expressly to preclude complainant from introducing evidence which it was its duty, under the rules, to introduce in time to permit defendants to reply, complainants cannot be permitted to introduce exhibits and documents not made by proper reference a portion of the bill.