Skip to Content

Colonial Cases

Estate of Wolcott and Co., 1854

[insolvency]

Estate of Wolcott, Bates and Co.

United States Consular Court, Shanghai
1854
Source: The North-China Herald, Shanghai, 19 August 1854

 

ON Tuesday last a meeting of the creditors of the Estate of the late Messrs. Wolcott, Bates & Co. of this port, was held in the United States Consular Court.  The following opinion of the Court was then read by R. C. Murphy, Esq., the United States Consul, - whereby it will be seen, in how disadvantageous a position the foreign Creditors of the estate are placed and those who have only small claims in a manner excluded, because no one would hazed the risk of uncertain contingent expenses, by employing an Agency in New York.  The power vested in an Executor in the United States is altogether unknown to British law - and seems to us to require some controul of a higher power over it -

UNITED STATES OF AMERICA

CONSULAR COURT.

This the 15th day of August 1854, the United States Consular Court for Shanghai met pursuant to previous notice, present Robert C. Murphy Consul, acting judicially, B. Vreeland and C.D. Nye, Esqs., Citizens of the United States as associates, and taking up the case of various United States Citizens versus the Estate of Wolcott, Bates & Co., gave the following unanimous opinion.

In August 1852, Fletcher Westray the managing clerk of the firm of Wolcott, Bates & Co., finding the house unable to meet its liabilities, rather than see the property attached by domestic creditors, determined to declare their inability to meet demands and to call in the representative of the United States to interpose the Authority invested in him for the protection of absent creditors.  This was done and the late Vice-Consul of the United States of America on the 23rd August 1852, at a Meeting of the resident creditors held at the Consulate informed them that the affairs of the late firm were in his hands and that he had no objection for one or two of their number to be selected to act with him in their final adjustment.  This was accepted and Messrs. A. G. Dallas and A. Bowman were selected as co-assignees or co-administrators with the United States Vice-Consul.  Under their administration the Estate was carefully collected.

The mail of the 20th February 1853, brought letters from Messrs. F. H. Wolcott and Charles M. Wolcott executors of H. G. Wolcott deceased formerly head of the firm of Wolcott, Bates & Co., announcing their executorial appointment under the will of the late H. G. Wolcott and refusing to send in their accounts or in any way acknowledge the authority of the United States Vice-Consul or his associates.  Other parties in the United States took the same course.

Thereupon the United States Vice-Consul addressed the executors remonstrating with them on their refusal to send in their accounts.

At about this stage of the proceeding the co-administrators Messrs. A. G. Dallas and A. Bowman having rendered all the assistance deemed necessary in the examination of the Books of the late firm and the realizing in money all the available assets, resigned.

About the 8th of August 1853, H. H. Warden, Esq., one of the local creditors attached the property of the late firm in the Vice-Consul's hands to the amount of his claim, which of course threw the further settlement of the Estate into the Consular Court.  The Vice-Consul was himself an interested party and therefore disabled, and referred the same with all the documents books and papers relating thereto to His Excellency Humphrey Marshall United States Commissioner in China, who assumed jurisdiction thereof.

The foregoing history of this case is taken from the Consular record in this office embraced in letters dated 23rd and 28th February and 6th August 1853, addressed to Messrs. Geo. B. Morewood & Co. New York, F. H. Wolcott and C. M. Wolcott New York, Wolcott & Westray New York, and lastly to the Hon'ble Humphrey Marshall United States Commissioner to China.

But to resume; from the 8th of August 1853, this case was in the hands of His Excellency Humphrey Marshall United States commissioner.  His Excellency acting in his judicial capacity instructed the Clerk of his Court to issue a decree of injunction to Edward Cunningham, Esq., to restrain from paying out the funds of the Estate of Wolcott, Bates & Co., to C. M. Wolcott or F. H. Wolcott executers of H. G. Wolcott deceased, or any body else, until further order, and requiring said Cunningham, to answer in 80 days, said order granted on application of H. H. Warden, Esq., creditor of said Estate.  The court also ordered that subpoenas issue to Charles M. Wolcott as assignee, and to C. M. Wolcott and F. H. Wolcott as executors of H. G. Wolcott deceased, accompanied by a true copy of the bill of injunction against said Cunningham, and that the subpoenas and copy of bill attached be sent to the United States Marshall for the East district of New York with directions to serve copies of the same on defendants and to make his return to this Court by the earliest overland mail, requiring each of them to appear and answer within six months from the filing of said bill, or that the same would be taken as confessed against them and the court will proceed to a final decree in the premises.

This order was served on the parties named, in New York, in December 1853, but the return thereof was not till the departure of His Excellency Commissioner Marshall, and the arrival of His Excellency Commissioner McLane and the assumption of duties at this port of the present incumbent, all of which facts are set forth in exhibits on this record hereafter following.

Under date of the 29th July 1854, the attention of this court was called to the case of United States Citizens versus Estate of H. G. Wolcott deceased, by His Excellency Mr. McLane United States commissioner in China, stating that his predecessor the Hon'ble Humphrey Marshall had assumed jurisdiction of the case in consequence of the inability of Edward Cunningham, Esquire, then Vice-Consul of United States of America, who was himself a creditor and claimant, but that no such objection could be taken now, and for this reason would leave the case to be disposed of by the Consular Court where it appropriately belonged.

By an examination of the papers it appears that Messrs. C. M. Wolcott and F. H. Wolcott of New York, under date of 6th December 1852, gave notice to the United States Vice-Consul at Shanghai that they were duly appointed executors of the last will and testament of H. G. Wolcott deceased, accompanying their notice with copies of letters testamentary duly authenticated and ordering him to pay over all the assets of the Estate of Henry G. Wolcott deceased, to the United States Consul of Shanghai subject to their order, which more fully appears in exhibits attached to this record.

These papers leave but one question for this Court to decide, viz: shall the Estate be distributed here to all the creditors, foreign and domestic, pro rata, or transmitted to the Executors for final adjustment?

The right of an administrator over assets at the "situs" of the property to the satisfaction of all creditors foreign and domestic, pro rate, is unquestioned, he may administer, or he may not, it is a simple question of discretion for the court, a majority of the Supreme court of the United States having treated the right of one administrator to claim from an administrator abroad acting at the "situs" of the property for creditors residing there, as hardly worthy attention or regard, unless as a matter of courtesy and in the exercise of a wide discretion.

A demand of the assets has been formally made on the administrators here by the duly appointed executors of Henry G. Wolcott deceased and recognizing the rights of executors to assets wherever found the Court order that Edward Cunningham, Esq., the receiver of the Commissioner's Court transmit the remaining assets of the Estate of Henry G. Wolcott deceased to C. M. Wolcott and F. H. Wolcott at New York, executers of the last will and testament of Henry G. Wolcott deceased after deducting there from the costs, Consuls' and Clerks' fees, and the Clerk of the Court is herby ordered to transmit to the said executors a copy of this record in full together with an inventory of all the books and papers now on file in this Court, as also to specify on an exhibit attached to this record the respective amounts deducted from the Estate for costs, Consuls' and Clerks' fees with the balance transmitted to the said executors by Edward Cunningham, Esq., as per order of this Court, expressing therein the enhanced value of said assets by purchase of Bills of exchange.

R. C. MURPHY, Consul U.S.A. Acting Judicially.

C. D. NYE, Associate.

B. VREELAND, Associate.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School