to enforce their claims against local assets would be destroyed."
Unquestionably, there are circumstances in which a debtor who has paid his debt to the foreign domiciliary executor or administrator will not be required again to pay that debt. Wilkins v. Ellett, supra, discloses one situation of this kind. There, it will be noted, no local creditor was prejudiced. Indeed, in the instant case, as it has now developed, there being no local creditors, none would have been prejudiced. Under the equitable doctrine against unjust enrichment, courts have been, and should be loath, to require double payment, and they have not so required where no one has been prejudiced by the original payment.
To say, however, that under some circumstances the voluntary payment by a local debtor of local assets to a foreign domiciliary executor or administrator will afford a valid acquittance of the debt is very different from saying that the debtor who does not voluntarily pay such assets to such foreign representative should be liable in damages, and that is the only question here. In at least one jurisdiction, where payment to a foreign domiciliary representative is settled by statutory provision to be a good acquittance, it has been held that the debtor is not thereby required to make payment to such domiciliary representative. Joy's Executor v. Swanton Savings Bank & Trust Co., 1940, 111 Vt. 106, 10 A.2d 216, 218. In that case, the court said: "It cannot be reasonably assumed that the Legislature intended to impose an absolute duty to pay over and thus afford a speedy opportunity to remove from the jurisdiction assets which should be applied to the payment of claims of resident creditors."
If the right to sue is qualified by a provision that gives to an interested party the right to require a bond for the protection of local creditors, it is difficult to see how there can be a right to demand such payment, without suit, in the absence of comparable protection to local creditors. By pursuing either the course of applying for ancillary administration or instituting a suit, in which a bond for the benefit of local creditors may be required, the foreign domiciliary representative has open to him all reasonable means to collect assets of the estate without depriving local creditors of the rights which it is clear the Congress intended them to enjoy. It is not to be questioned that, where voluntary payments can be made without hazard to the rights of others, it is in the public interest that they be encouraged as avoiding unnecessary expense and litigation. But to penalize a local debtor, who does not make a voluntary payment of local assets to a foreign domiciliary representative without requiring some protection against claims of local creditors, or waiting a reasonable time to give such creditors, if any, an opportunity to assert their rights, would tend to render nugatory the public policy reflected in the statutory provisions now in force.Quite obviously, all local assets could in such cases be removed from the jurisdiction before local creditors had knowledge of the death of the decedent, or opportunity to assert their rights. Furthermore, a debtor ought not to be subjected to the hazard of double payment, or even the burden of litigation to resist it, and it cannot be said that one unreasonably withholds property of another when he does so only to protect himself from that eventuality. The fact that there are no local creditors could not, in ordinary cases, be known until a reasonable time had elapsed for them, if any, to assert their rights. I think it is clear that in all but exceptional cases, of which this does not appear to be one, the period of one year fixed by Section 18 -- 501, supra, is the period one may reasonably await the assertion of claims of local creditors, unless otherwise protected against such claims.
I think it is significant that not one case has been called to my attention by counsel, or discovered by me in my research, in this jurisdiction, or any other, in which damages such as here claimed have been either sought or allowed.
My conclusion is that the defendant did not unreasonably withhold the payment of the assets of the decedent to the plaintiff, and, therefore, interest, not a part of the contractual obligation, but as damages, cannot be recovered by the plaintiff in this action.
The motion for summary judgment will be denied.