First Department, March, 1920. * * [Vol. 191. State can authorize an action to be brought within its jurisdiction against a New Jersey executor. Babbitt v. Fidelity Trust Co. (70 N. J. Eq. 651) is cited as an authority sustaining this contention. That was an action in the courts of New Jersey against a Pennsylvania executor. The court stated: "The general rule is well settled that an executor or administrator cannot in his representative capacity, maintain any action, suit or proceeding, either at law or in equity, in the courts of any sovereignty other than those under whose laws he was appointed or qualified, without obtaining an ancillary grant of probate or letters from the court of probate of such other sovereignty, unless power to sue in the foreign jurisdiction has been conferred upon him by statute *. And similarly the rule is that an executor or administrator cannot be sued in his representative character, unless he is made liable by statute, either at law or in equity, in the courts of any State or country other than that in which he received his appointment." The court held that inasmuch as the laws of New Jersey had not authorized such an action against foreign representatives the action could not be maintained. No reference is made to the laws of Pennsylvania. All the cases cited in the opinion are New Jersey cases. There can be no question but that the jurisdiction of the courts of a State is fixed and determined by the Constitution or laws of the State, and cannot be extended or limited by the laws of any other State. The jurisdiction of courts is part and parcel of the sovereign power of the State. The jurisdiction of the State within its own territory is necessarily exclusive and absolute; it is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty, to the extent of the restriction, and an investment to the same extent in that power which could impose such restriction. (The Exchange, 7 Cranch, 116, 135.) In the present case we are not advised of the cause of action. The action was commenced by the personal service upon the defendant within this State of a summons, with a notice that in default of appearance of answer judgment would be taken for $25,000. The action is, therefore, an action at law. The defendant appearing specially upon affidavits alleging that she was and is a resident of Washington, District of Columbia, App. Div.] First Department, March, 1920. and that letters testamentary were issued to her by a probate court of New Jersey, and that there are no assets of the estate within the State of New York, moved for an order directing the service of the summons and the summons be vacated and set aside and decreeing that the Supreme Court of the State of New York obtained no jurisdiction over the defendant. The grounds of the motion were: (1) That service was not made on any person authorized to act as executrix of the decedent's estate within the State of New York. (2) That the attempted service does not constitute due process of law. (3) That the service of the summons can have no force or effect to confer jurisdiction upon the court over the executrix of the estate, or any part thereof. (4) That a judgment herein would deprive the executrix and the said estate and the persons entitled to any portion thereof, of their property without due process of law, in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. (5) That no judgment in this action would be entitled to full faith and credit or to any faith and credit under the provisions of section 1 of article 4 of the Constitution of the United States. We will consider these objections to the jurisdiction seriatim. It is unfortunate that there are no pleadings in the case so that the facts of this particular cause of action are not before us admitted by a demurrer if the alleged jurisdictional defect appeared upon the face of the complaint or the facts relied upon to show the lack of jurisdiction set forth in an answer. Considered generally the first three objections have no merit. (1) As we have heretofore stated, a foreign executor is authorized to act as such in the State of New York, not to administer the estate, but to collect the assets, the sole disqualification that formerly existed being that he could not maintain an action, but he could collect from a resident debtor or receive property, provided the same was voluntarily paid or given, and his receipt therefor would be good as against a subsequent claim by a domestic creditor or an ancillary administrator. (Wilkins v. Ellett, supra.) He could assign choses in action, and although plainly made for the purposes of suit in his behalf which he could not bring, the assignee could prosecute the action in our courts. (Petersen v. Chemical Bank, supra.) He could exerAPP. DIV.- VOL. CXCI. 5 First Department, March, 1920. [Vol. 191. cise a power of sale of mortgaged lands situate within this State. (Doolittle v. Lewis, supra.) As a matter of comity the courts of this State have recognized the grant of foreign letters by courts of other States. As a matter of public policy, a personal disqualification was imposed against their suing or being sued in our State. The Legislature has now removed this disqualification and by filing copies of the foreign letters the capacity to sue and be sued in their representative capacity is given. How far foreign laws, appointment of foreign receivers, insolvency assignees and personal representatives of a decedent are to be recognized and given effect in this State is a matter of comity and public policy. The Legislature is the proper authority to declare the public policy of the State. By the enactment of section 1836-a of the Code of Civil Procedure, the public policy that had theretofore prohibited foreign representatives being litigants in our courts was declared no longer existent. Therefore, service of the summons was made upon a person, authorized in that behalf, to act as executrix of the decedent's estate, within the State of New York. (2) That the service of a summons issued from a court of general original jurisdiction, affording the party an opportunity to appear, answer and be heard in his defense, according to the settled law and practice, is due process of law, is too evident to require demonstration. (3) We have shown under (1) that the service of the summons confers jurisdiction upon the court over the executrix, and not only now, but always gave jurisdiction in equity actions over any portion of the estate situated in this State. (4) Section 1836-a of the Code of Civil Procedure does not violate section 1 of the Fourteenth Amendment of the Constitution of the United States. The Code section applies to all persons similarly situated, and makes applicable to foreign executors and administrators the law and procedure which had from time immemorial obtained with respect to non-residents of the State. There can be no arbitrary or unjust deprivation of any one of property thereunder. The summons is the usual process for the institution of judicial action. There is no difference in the method of trial or procedure from the ordinary modes prescribed by law. It secures to the parties an opportunity to be heard respecting the justice of the judgment sought, and the proceedings are governed by the general rules App. Div.] First Department, March, 1920. established in our system of jurisprudence for the securing of private rights. (Hagar v. Reclamation District No. 108, 111 U. S. 701, 708.) If any property is taken as a result of this action it will be because, according to the settled principles of jurisprudence, such a taking is authorized by a judgment of a court of competent jurisdiction, after a trial of the issues, or a full opportunity to meet the issues of which the defendant has failed to take advantage. (5) If a judgment is entered in this action it would be entitled to full faith and credit in all other States. By the Constitution of the United States and the acts of Congress supplemental thereto (U. S. Const. art. 4, § 1; 1 U. S. Stat. at Large, 122, chap. 11; now U. S. R. S. § 905), full faith and credit must be given in each State to the judgments of the courts of other States. It is recognized as a well-settled principle of law that the State of the forum may by law recognize foreign letters testamentary or of administration and may allow the foreign representative to sue, or to be sued in the courts of the State. All of the statements of the general rule holding otherwise expressly state that such rule obtains only in the absence of such enabling acts. An action against a foreign executor or administrator as such (like an action against a domestic executor or administrator) is an action in personam. The Supreme Court of the United States in cases that will be considered more in detail later, said: The argument seems to be " that the judgment against the administrator is against the estate of the intestate, and that his estate, wheresoever situate, is liable to pay his debts. * * This argument assumes that the estate has a sort of corporate entity and unity. But this is not true, either in fact or in legal construction. The judgment is against the person of the administrator, that he shall pay the debt of the intestate out of the funds committed to his care." (Stacy v. Thrasher, 6 How. [U. S.]44, 60; Johnson v. Powers, 139 U. S. 156, 161.) The action being against the person of the executrix and personal service having been made within this State, and such service authorized by the laws of this State, the court acquired jurisdiction of the person of the defendant and could enter a valid judgment in the action. We must assume that the subject-matter of the action will be such as to be within the jurisdiction of the court, for otherwise we cannot consider it possible that the First Department, March, 1920. [Vol. 191. courts of this State would give judgment in plaintiff's favor and the defendant will have full opportunity to present that question should it arise before any judgment could be entered. The two cases last above cited are urged for the proposition that a judgment granted against an administrator in another State does not bind the administrator in the State of the domicile. In those cases, however, the question arose upon judgments granted against ancillary administrators, and it was held that there was no privity between the two administrators, for they derived their authority from different sovereignties, and were distinct persons in their representative capacity, although the same person was appointed both domiciliary and ancillary administrator. Where, however, the action is against the foreign representative as such there are not different persons appointed in different jurisdictions. The foreign representative is the party to the action and as to him the judgment will be conclusive and entitled to full faith and credit in other States. This decision does not run counter to the case of Pennoyer v. Neff (95 U. S. 714), for there a judgment in personam was granted upon substituted service without the State, nor to the case of Riverside Mills v. Menefee (237 U. S. 189) which rests upon the same ground. It was therein held that unless the foreign corporation was doing business within the State, service of a process upon an officer of said corporation temporarily within the State was not personal service, but an attempt to make substituted service which would not authorize a personal judgment. The order should be affirmed, with ten dollars costs and disbursements. CLARKE, P. J., DOWLING and MERRELL, JJ., concur; LAUGHLIN, J., dissents. LAUGHLIN, J. (dissenting): A copy of the summons was delivered to the defendant in the county and State of New York on the 17th of July, 1919. The title of the action shows that it was brought against the party served not individually but as executrix of the last will and testament of Frederick L. Buckelew and there was indorsed on the summons a notice to the effect that upon default in |