Conceding the general rule to be, in actions of trover, that the plaintiff must have had the right of possession at the time of the alleged conversion, and that the action must be governed by the law which was in force at the time and place of the conversion, which was in New York, and conceding also that the plaintiff could not have enforced by suit in New York, her right of possession, except by mere comity, or by the consent of the parties, without first having taken out ancillary letters of administration in that state, the question still remains whether or not the plaintiff had the right topossession in New York of the property converted. She may have had this right without having the right to sue there. If she had this *Page 965 right, and the property was converted, and the party guilty of conversion comes within the jurisdiction where the letters of administration were granted, and personal service can be obtained upon him, surely the administratrix would have the right to sue in trover, which is a transitory action, for the recovery of the value of the property of the estate so converted. In fact, it would become the duty of the administratrix to bring such suit.

The doctrine that letters testamentary or of administration have no operation or effect outside the state or country in which they are granted, does not go to the extent of restricting the authority of a domiciliary representative absolutely to the jurisdiction of the domicile. He may sue in the courts of another state if permitted by the statutes of that state to do so. as is the case in Florida, or he may do so, in the absence of such statutes, if no objection is made by the defendant to his maintenance of the action. So, too, he may, and should, collect assets in a foreign jurisdiction, if payment or delivery is made to him voluntarily, so that resort to the local courts is not necessary. 13 Am. Eng. Encyc. of Law, 2nd. Ed., pages 918, 945-947; 3rd Schouler on Exec. Admin., page 2014. In the authority last cited, it is said: "It is held in several American cases, consistently with this rule, that, no conflicting grant of authority appearing, the domicilary appointee of another state may take charge of and control personal property of the deceased in the state of its situs." Citing Parsons v. Lyman, 20 N.Y. 103; Vroom v. Vanhorn, 10 Paige (N.Y.) 549, 42 Am. Dec. 94.

It is a general rule that the situs of personal property is the domicile of the decedent (Schouler on Exec. Admin., sec. 793), though this rule might not displace the rule in actions of trover, above referred to, that the law *Page 966 of the time and place of the conversion controls the right to recover in such action.

"The rule that a foreign representative has no standing in court to sue for the recovery of debts due or on any cause of action belonging to the decedent unless thereto authorized by local statutes, is considered in another part of this article. But it does not follow from this rule that he is in no case concerned with or possessed of authority in respect to assets beyond the jurisdiction of the courts of the state or country in which he was appointed. As the personal representative of the decedent, deriving his authority from the laws of the decedent's domicile, he is invested with the title to all the personal estate, wherever it may be locally situate; and though he may be disqualified from suing in a foreign jurisdiction, there are several ways in which he may get in foreign assets without the aid of the foreign courts. Thus it is held by an almost unbroken line of authorities that he may receive voluntary payment from a foreign debtor, and give a valid acquittance, if ancillary letters have not been granted by the probate court of the foreign debtor's residence; and as incidental to his authority to receive such voluntary payments he may satisfy and release mortgages of land in foreign jurisdictions. * * * The domiciliary representatives may also take peaceable possession of any personal property in a foreign jurisdiction, if he can do so without suit; and if a foreign debtor comes into the jurisdiction of the domiciliary representative, or own property therein, the domiciliary representative may sue him there, notwithstanding the liability which may attach in consequence of an ancillary administration in the jurisdiction of the debtor's residence. Not only has an executor or administrator the power in certain cases to collect debts due from foreign debtors, but it is also held to be his duty to the extent of his conscious ability, *Page 967 to do so, and the court of the domicile may compel him to account for willful neglect to perform that duty; and he will be allowed the expense of a bona fide but unsuccessful attempt to make the collection." 13 Am. Eng. Encyc. of Law, pages 932-934; 11 Rawle C. L., pages 152, 433, 437; 24 C. J. pages 1118 to 1121.

It would appear in this case that the administratrix appointed by the Florida court, there being no ancillary letters of administration in New York, had the legal title and the right of possession which ordinarily goes with it, and while possibly not having the right to remove, as against local creditors, the property from the state of New York without taking out ancillary letters, it might be well that she had, as against a wrongdoer, who took possession of and converted the property without authority, such right of possession as would give her the right to sue in trover such person who wrongfully took possession of and converted the property, by a suit in the jurisdiction of her appointment when such person was found there, and therefore subject to the personal service of process, in this, a transitory action. It is exceedingly doubtful that such a tort-feasor has any standing in court to assert that the administratrix had no right of possession in New York, by reason of not having taken out ancillary letters there, and that he, the tort-feasor, could, therefore, take possession of and convert the property with impunity. If ancillary letters had been granted to some other person than the plaintiff below in the State of New York at the time of the conversion, a different question might arise from the one here presented.

Nor can it be said that the administratrix has no right of action for conversion of personal assets of the estate between the time of the death of plaintiff's intestate and the granting of letters of administration. It would be *Page 968 monstrous to hold that nobody has a right of property in the personal assets of a decedent until letters testamentary are granted, for to so hold would be to place such property at the mercy of all comers, whether creditors scrambling for the collection of their debts or mere vandals taking advantage of the unprotected situation of the assets. So it must needs be that the right of the personal representative when appointed relates back to the time of the death of the decedent, and confers a right of action, either to recover actual possession of property of the estate taken before his appointment or to recover damages for the conversion of such property; just as the personal representative has the right to recover property fraudulently taken from the intestate during his lifetime, as well as to enforce all debts due him at the time of his death.

"It is well settled that the title of the administrator to the property of his intestate relates back and takes effect from the time of the death of the decedent, legalizing all acts otherwise valid done by the administrator before his appointment, and vesting in him causes of action accruing between the granting of letters and the death of the intestate." 11 Am. Eng. Encyc. of Law, 2nd Ed., pages 908 and 909, and cases cited; Vroom v. Horne, 42 Am. Dec. 94; Wonson v. Sayward, 23 Am. Dec. 691; Babcock v. Booth, 38 Am. Dec. 578. In Tharp v. Stallwood, 44 E. C. L. 397, it was said by Tindal, C. J., "It would be strange indeed of an administrator might sue for a trespass committed in the lifetime of his intestate, and for one committed after the granting of letters of administration, but not for one committed in the intermediate time."

Suppose, for the purpose of illustration, a farmer living in Florida also had a farm in Georgia, and after his death, some person should take possession and convert to his own use the farming utensils, cattle and other stock found on *Page 969 the farm in Georgia, and subsequently, when an administrator had been appointed in Florida, the person guilty of the conversion should come within the jurisdiction of the appointment, in Florida, could it be said that the Florida administrator could not bring suit against such person in trover for the damages occasioned to such estate? We do not think so. The law contemplates no wrong without a remedy, and what remedy would be more appropriate than an action by the administrator in trover against the wrong-does when found within the jurisdiction of his appointment? Nor would this conclusion be different if the law of Georgia prevented the Florida administrator from bringing suit in Georgia to recover possession of the assets of the estate unless he first obtained letters of administration in Georgia.

I have, for the reasons above pointed out, reached the conclusion that this case should not be reversed for the reasons set forth in the majority opinion.

ELLIS, J., concurs.