Allen v. Philadelphia Sav. Fund Soc.

The plaintiffs, citizens of New Jersey, and executors of the will of M. A. English, who was also a resident of New Jersey at the time of her death, sue the defendants, the Philadelphia Saving Fund Society, to recover a debt of ¡FS3S.90, with interest. The affidavit of defense admits the existence of the debt; but avers that M. A. English died “without leaving father, mother, husband, children or other lineal descendants;” that the money due is, therefore, subject to collateral inheritance tax, under the statutes of Pennsylvania, and sets this averment up as an answer to the suit. No other defense is presented, and no other can therefore be considered. That this is insufficient, cannot, we think, be seriously doubted. In Kintzing v. Hutchinson, [Case No. 7,834,] Oct. 19, 1877, Judge Strong, sitting in the circuit court for the district of New Jersey, held that the statutes referred to have no application to choses in action here, belonging to one domiciled in another state at the time of his death, though his legal representatives may have to come here- to reduce them to possession. Even if this were in conflict with the construction put on these statutes by the courts of this state it would bind us. The learned judge, however, on careful review of the cases, concludes that it is not.

If the law were otherwise, the result would be the same; the averment still would not constitute a defense. If the plaintiffs based their right to sue on letters issued here, the contrary would not, we presume, be suggested. But if they may sue here on the letters issued elsewhere, (and the defendant has not questioned this,) their right to recover is precisely the same as if the letters had been *511issued here. If the state can sustain a claim for the tar, as suggested, it cannot sustain it against the defendant, hut must look to the balance of estate in the hands of the legal representatives of the deceased, after they have reduced it to possession and paid the debts. "When necessary it may raise an administration for this purpose. Judgment must therefore be entered for the plaintiffs notwithstanding the affidavit of defense. We desire it distinctly understood that the defense set up by the affidavit and urged in the argument, does not, as we understand it, involve the question whether the plaintiffs can sue for the debt on the letters issued in New Jersey. That question was not presented in any form.