While, ordinarily, jurisdiction over a person is based on the
power of the sovereign to seize and imprison him, it is one of the
decencies of civilization that, when the power exists and has been
asserted at the beginning of a cause, the necessity of maintaining
the physical power is dispensed with.
Under the full faith and credit clause of the federal
Constitution, if a judicial proceeding is begun with jurisdiction
over the person of the party concerned, it is within the power of
the state to bind that person by every subsequent order in the
Page 228 U. S. 347
A state may make the whole administration of the estate a single
proceeding and provide that one undertaking it within the
jurisdiction shall be subject to the order of the court until the
estate is closed, and that he must account for all that he recovers
by order of the probate court.
Under the law of Michigan, an executor who has been removed must
account to the administrator de bonis non
for all property
that has come into his hands, and he is bound by a decree of the
probate court in a proceeding in which he has been personally
served with notice or appeared.
Courts of other jurisdictions owe great deference to what the
court concerned with the case has done; the probabilities are that
the local procedure follows the traditions of the place.
This Court will assume that the decree of a probate court
charging an executor with all the goods of the testator that had
come into his possession and with waste in neglect to pay over was
within its jurisdiction.
Want of power of the court making it to enforce a decree does
not affect its validity, and if the court had jurisdiction at the
inception of the case, courts of other states must give it full
faith and credit.
Jurisdiction is power, and is not affected by the insanity of
one over whom the court has acquired jurisdiction, and an executor
against whom a decree is entered after appearance, appointment of
guardian ad litem,
and full consideration of the case at
the expense of the estate is not deprived of his property without
due process of law by such decree.
175 F. 667, 681 reversed.
The facts, which involve the degree of full faith and credit to
be given by the courts of one state to a decree of the probate
court of another state, are stated in the opinion.
Page 228 U. S. 351
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are suits brought in the Circuit Court for the District of
Utah upon decrees of the Probate Court of Ottawa, Michigan. The
defendant demurred to the complaints, the circuit court sustained
the demurrers, and
Page 228 U. S. 352
gave judgments for the defendant, and these judgments were
affirmed by the circuit court of appeals. 175 F. 667, 681. A short
statement of the facts alleged at great length in the complaints
will be enough.
William M. Ferry died in 1867, domiciled in Ottawa County,
Michigan. His will was proved, and the defendant, Edward P. Ferry,
was appointed executor by the Ottawa Probate Court, qualified, and
entered upon his duties. In 1878, he removed to Utah and becoming
incompetent, was put under the guardianship of two sons, W. Mont
Ferry and Edward S. Ferry, in 1892. In 1903, residuary legatees and
devisees petitioned the Michigan probate court that the defendant
be removed from his office of executor, that he be ordered to
account for the unadministered residue of the estate, and that the
Michigan Trust Company be appointed administrator de bonis
with the will annexed. Notice of the petition and time and
place of the hearing was given by publication and also was given to
the defendant and his guardians personally in Utah. The guardians,
by order of the Utah court, appeared and asked for the appointment
of a guardian ad litem,
which was made, and an answer and
cross-petition praying for affirmative relief were filed.Lawyers
were retained and paid out of the defendant's estate by order of
the Utah court. There were various proceedings, the end of which
was that the plaintiff was appointed administrator de bonis
the cross-petition was denied, and it was decreed that
the defendant was indebted to the estate for $1,220,473.41. The
defendant being entitled to one-fourth of the above sum as
residuary legatee, he was declared liable for $915,355.08, and
ordered to pay it over within sixty days to the Michigan Trust
Company. The defendant also had been appointed by the same court
executor under his mother's will, and, after proceedings like those
that we have described, was declared
Page 228 U. S. 353
liable for $16,458.81, which, too, he was ordered to pay to the
plaintiff within sixty days.
Ordinarily, jurisdiction over a person is based on the power of
the sovereign asserting it to seize that person and imprison him to
await the sovereign's pleasure. But when that power exists and is
asserted by service at the beginning of a cause, or if the party
submits to the jurisdiction in whatever form may be required, we
dispense with the necessity of maintaining the physical power and
attribute the same force to the judgment or decree whether the
party remain within the jurisdiction or not. This is one of the
decencies of civilization that no one would dispute. It applies to
Article 4, § 1, of the Constitution, so that, if a judicial
proceeding is begun with jurisdiction over the person of the party
concerned, it is within the power of a state to bind him by every
subsequent order in the cause. Nations v.
24 How. 195, 65 U. S.
-204. This is true not only of ordinary actions, but
of proceedings like the present. It is within the power of a state
to make the whole administration of the estate a single proceeding,
to provide that one who has undertaken it within the jurisdiction
shall be subject to the order of the court in the matter until the
administration is closed by distribution, and, on the same
principle, that he shall be required to account for and distribute
all that he receives by the order of the probate court.
The court below, admitting the power of the Michigan court to
adjudge the true state of the account of the assets in the
defendant's hands and to require him to transfer them to his
successor, denied its power to adjudge him liable for assets
converted to his own use, and to decree that he should pay the
amount from his own property. We believe that this is the law in
some of the states (United States v. Walker, 109 U.
), but it is no less well established in many that
an executor must account for all the property that has come to his
hands, and the
Page 228 U. S. 354
proceedings end with a decree that he pay over the sum with
which he is chargeable, either to his successor or the ultimate
distributees, such a decree indeed being a condition precedent of
the cumulative remedy on the bond. Storer v. Storer,
Mass. 390, 392, 393; Cobb v. Kempton,
154 Mass, 266, 269;
Murray v. Wood,
144 Mass.195, 197; Probate Ct. v.
31 Vt. 373, 376. In Beall v.
16 Wall. 535, 83 U. S. 540
it is recognized that some states have made it the duty of an
administrator who has been displaced to account to the
administrator de bonis non,
and very many decisions to
that effect are cited correctly in 2 Woerner, Adm, 2d ed., § 352,
p. 748. Vide id,.
§ 536, pp. 1181-1182.
As there can be no doubt of the power of the states to give the
larger scope to an account, which indeed is not illogical in view
of the fuller modern development of the notion that an executor
holds all the assets in a fiduciary capacity, the only question in
any case is what the state has seen fit to do. Upon this question,
courts of other jurisdictions own great deference to what the court
concerned has done. It is a strong thing for another tribunal to
say that the local court did not know its own business under its
own laws. Even if no statute or decision of the supreme court of
the state is produced, the probability is that the local procedure
follows the traditions of the place. Therefore, we should feel
bound to assume that the Michigan decree was not too broad in the
absence of statute or decision showing that it was wrong.
But, unless and until the Supreme Court of Michigan shall decide
otherwise, we are of opinion that the probate court was right. The
statutes provide for charging an executor in his account with the
whole of the goods of the deceased that come to his possession, and
with waste in case of neglect to pay over the money in his hands or
of loss to the persons interested. Liability on the bond is stated
as alternative. Comp.Laws 1897, §§ 9428,
Page 228 U. S. 355
9435. Comp.Laws 1857, §§ 2977, 2984. It is said by the supreme
court that money received by an administrator, and unjustifiably
paid out, is still in his hands in contemplation of law, and that
parties interested may surcharge or falsify his account, Hall
25 Mich. 428, 432, 436, and again that the assets
of an estate are not regarded as administered until they have been
collected and applied as required by law or the will of the
testator; until that time, the jurisdiction of the probate court
remains. Lafferty v. People's Saving Bank,
76 Mich. 35,
50. See farther, Stevens v. Ottawa Probate Judge,
Mich. 526, 533-534, arising out of this case. In re Saier's
158 Mich. 170, 173. In short, Michigan in a general
way adopted the Massachusetts probate system, Campau v.
1 Mich. 416, 417, according to which assets are not
administered by being converted to the executor's own use, but must
be charged to him in his account. If the defendant properly was
charged in his account with all that came to his hands and that was
not distributed according to law, it was within the power of the
probate court to order him to distribute that amount or to pay it
to his successor in the trust. Lafferty v. People's Savings
76 Mich. 35, 71.
It follows from what we have said that a petition to the probate
court that the defendant be ordered to account covered all his
receipts as executor, and that notice of the petition was notice
that the accounting would have that scope. The decree upon the
account was made with full jurisdiction, and, apart from the
insanity of the accountant, could be sued upon, Storer v.
6 Mass. 390; Cobb v. Kempton,
154 Mass. 266,
269, and was entitled to full faith and credit elsewhere.
Fitzsimmons v. Johnson,
90 Tenn. 416, 428-429, 433. It is
true that it could not be enforced in Michigan while the defendant
remained out of the state. But, while the want of power to
Page 228 U. S. 356
enforce a judgment or decree may afford a reason against
entertaining jurisdiction, Giles v. Harris, 189 U.
, 189 U. S. 488
it has nothing to do with the validity of a decree when made. A
decree in equity against a defendant who had left the state after
service upon him, and had taken all his property with him, would be
entitled to full faith and credit where he was found. The judgment
of a court "may be complete and perfect, and have full effect,
independent of the right to issue execution." Mills v.
7 Cranch 481, 11 U. S. 485
See Kimball v. St. Louis & San Francisco Ry. Co.,
Jurisdiction is power, and the power of the Michigan court was
not affected by the insanity of Ferry. The authority of the state
to remove him and to require his account to be settled at the same
time remained, and therefore, subject to any restrictions that
might be imposed by the Fourteenth Amendment, it was for the state
to determine how he should be represented and what steps should be
taken to protect his rights. As the jurisdiction extended only to
the cause, and not to any independent proceeding for guardianship,
the orders made necessary were orders in the cause. But we do not
perceive what more could have been done to secure Ferry's rights.
Still less do we see any ground for declaring the decree invalid
because of the Fourteenth Amendment. The steps taken were concurred
in by the only courts that had anything to say about it -- the Utah
court that controlled his person, and the Michigan court that
controlled the cause. On the whole case, our opinion is that the
judgment should be reversed.
MR. JUSTICE McKENNA and MR. JUSTICE LAMAR dissent. MR. JUSTICE
VAN DEVANTER took no part in the decision.