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being answerable for it to the estate of the intestate. court decreed distribution, refusing to direct the fund
In Pursons v. Lyman the court adopted this docFor he makes himself accountable for it by bringing trine of Judge Story's, saying: “I have come to a bis action, and he may well declare that the debt is conclusion in accordance with the views of Judge due to himself."
Story, that whether the funds realized here after the So where a wote held by the decedent is payable to payment of domestic debts ought to be left in the bearer, the foreign executor or administrator may sue hands of an executor appointed by the Probate Court on it in any State without taking out letters there. of the testator's domicile in a sister State, to be fully Robinson v. Cranda!, 9 Wend. 425; Barrett v. Barreit, administered under the order of that court, should de. 8 Greenl. 353; Wilkins v. Ellett, 108 U. S. 256; Story pend upon the special circumstances of each case." Confl. Laws, $ 517; see also $ 516; Klein v. French, 57 In Despard v. Churchill the doctrine is reaffirmed : Miss. 662.
“And the better rule is that whether the courts of ono The reason for this rule is that when the note comes State are to deem distribution of the assets collected lawfully into his possession, by virtue of his authority in it under auxiliary letters granted by them or remit as the personal representative of the decedent, he be- the disposition thereof to the courts of the testator's comes the bearer, and may sue on it iu his individual domicile is not a question of jurisdiction, but of judiname. The personal representative cau sue in a for- | cial discretion under the circumstances of the particueigu jurisdiction on any cause of actiou in favor of the lar case." decedent which accrues subsequently to his death, as
In this case, as in Parsons v. Lyman, a remission of in such case he is not required to sue in his represen
the funds was ordered. It appears that certain betative capacity. Griswold D. Central Vermont, 20 quests in the will which were void under the laws of Blatchf. 212; Hall v. Harrison, 21 Mo. 227; Rucks v. New York were valid under the laws of California, the Taylor, 49 Miss. 552; Barton v. Higgins, 41 Md. 539. testator's domicile. The next of kin claimed the
The judgmeut in one jurisdiction either in favor of property in New York to the extent of these void beor against an executor or administrator, there is no quests. They were residents of New York, and evidence in favor of or against an executor or admin-claimed distribution in that State; but the court was istrator in a foreign jurisdiction. Stacy v. Thrasher, compelled to remit the funds to the domiciliary exec6 How. (U. S.) 44; McLean v. Meek, 18 id. 16; Low v. utors in California for the following reasous, which are Bartlett, 8 Alien, 259; Woodruff v. Schultz, 49 Iowa, very tersely and clearly expressed by Judge Folger, 430; Price v. Muce, 47 Wis. 23; Hatchett v. Berney, 55 writing the opinion in that case: “As has been stated, Ala. 40.
the courts of this State may not directly aid in carryThe administration in the State in which the dece. ing out here a bequest which is in violation of its statdent was domiciled at the time of his death is the ute law and contrary to a policy of which it is tenadomiciliary administration; every other administra- cious. And yet they may not hold the bequest void tion is ancillary. Duwes v. Head, 3 Pick. 141; Stevens when it is valid by the law of the State by which the v. Gaylord, 11 Mass. 256; Williams v. Williams, 5 Md. disposition of the property is to be governed. The one 67: Clark v. Clement, 33 N. H. 563; Parsons v. Ly- would be to transgress the written law of this State; man, 20 N. Y. 103, 122 ; In re Hughes, 95 id. 55; Harvey | the other would be to disregard an unwritten rule of v. Richurds, 1 Mason, 480; Despard v. Churchill, 53 V. law, well settled and of extensive and frequent appliY. 192; Story Confl. Laws, $ 518.
cation." After the creditors who are residents of the State in But the court held that certain bequests to parties which ancillary administration has been granted are
living in the Atlantic States, and which were valid, paid in full, or their proportionate share in case the should be paid by the New York executors out of the estate is insolvent, whether the courts of the State of
funds in their hands in that State. To this extent reancillary administration will in every case direct that mission of the New York property to the domiciliary the balance of the estate be remitted to the domicili. executors was not decreed. ary representative is doubtful. This is the usual In Guier v.O'Daniel the Pennsylvania court distribcourse pursued, but the.general trend of authority is uted property of an intestate domiciled in Delaware toward the very reasonable doctrine that the disposi- / without directing it to be sent to de representatives tion of the balance, so far as its remission to another in the latter State. jurisdiction is concerned, rests in the discretion of the In re Hughes the rule is thus siated : “Where there tribunals of the State in which the ancillary adminis
are two administrators of a single estate, one in the tration has been granted. Parsons v. Lyman, 20 N. Y. place of the domicile of the testator or intestate, and 103, 125; Dawes v. Head, 3 Pick. 128; Despard v.
the other in a foreign jurisdictioa, whether the courts Churchill, 53 N. Y. 192; In re Hughes, 95 id. 55; Har- af the latter will decree distribution of the assets colvey v. Richards, 1 Maso1, 380; Guier v. O'Daniel, 1 | lected under the ancillary administration or remit Birney, 349, note.
them to the jurisdiction of the domicile is not a quesThis doctrine enables the State to protect not merely tion of jurisdiction, but of judicial discretion dependthe rights of its resident creditors of the estate, but ing upon the circumstances of the particular case." also legatees and next of kin who are domiciled The court in this case reversed the decision of the surwithin it.
rogate and the General Term of the Supreme Court, In Harvey v. Richards the testator had died in Cal- and refused to order the funds in the State of New cutta, leaving a will which was proved there, and let York to be paid over to the administrator of Pennsylters were there issued to the executors. Subsequently vania, in which State the intestate was domiciled at administration witb the will annexed was taken out
the time of his death, but directed the distribution in Massachusetts. The bill was filed in the Circuit among the next of kin in New York. The decision Court of the United States for distribution of the was clearly right. There were no creditors or other property in Massacbusetts among the next of kin who
persons interested in the estate in Penusylvania. were all residents of tbat State, the property in Massa
There was absolutely no reason for remitting the funds chusetts not having been disposed of by the will. The
to the domiciliary administrator in Pennsylvania, and
the law regulating distribution among the next of kin money in the State in which he was appointed, next of
In view of this well-settled rule that the laws of the
death, and he has assets and creditors in two or more In the other case the action was on the bond of an jurisdictions, and the assets in one State will pay the ancillary administrator, whose decedent died domi. creditors there in full, or a larger percentage than the ciled in England, and was prosecuted for the benefit of assets in the other State will pay the creditors there, the town of Boston as residuary legatee under the will what will the courts of the State of which the fortuof the decedent, whose name was Thomas Boylston. nate creditors are citizens decree with regard to the It was claimed that the bond was forfeited because it applicatiou of all the assets there to the payment of was the duty of the ancillary administrator to pay not the resident creditors? If the jurisdiction in which only debts, but legacies also, which were payable to the fortunate creditors reside is the State in which anresidents of the jurisdiction in which the ancillary cillary administration has been granted, all the decisrepresentative was appointed. Although the residu- ions and dicta on the subject support this doctrine, ary legatee was a municipal corporation of that State, that the resident creditors shall be paid out of the local the court decided that the administrator was justified assets only their proportionate share, having regard to in remitting the balance of the assets after payment of all the assets, wherever situated, and all the creditors debts to the domiciliary representative in England. in both jurisdictions, and the balance will be remitted The court said: “The rights of legatees, especially of to the State in which domiciliary administration has residuary legatees, as well as the next of kin in the
been granted. Accordingly if the estate in the State case of intestacy, depend upon the laws of the country of ancillary administration will pay eighty cents on where the deceased had his home and domicile from a dollar to the creditors there, and the estate in the whom the bequest or succession is claimed, and for State of domiciliary administration will pay only ten that purpose all the choses in action and personal ef- cents on a dollar to the resident creditors of that State, fects are to be deemed local, and to be there accounted and the wbole estate will pay all creditors fifty cents for and finally administered wherever collected or ac- on a dollar, the courts of the former State will direct cruing to the executors or administrators. The ad. the balance remaining after paying the resident credministration granted within this State has been justly itors fifty cents on a dollar, to be remitted to the domstyled ancillary in respect to the administration in iciliary administrator. Topman v. Chapman, 1 Const. the Prerogative Court. The defendant has an au. S. C. 292; Dawes v. Head, 3 Pick. 128, 143-148; Davis thority to collect and pay debts, and is liable for the v. Estey, 8 id. 475; Fox v. Carr, 16 Hun, 434, 440; Fay contracts and debts of the testator recoverable, and v. Haven, 3 Metc. 109, 114; 2 Kent Com. 434, Lawwhich may be enforced within this jurisdiction, but rence v. Elmendorf, 5 Barb. 73, 75; Northland v. Wisehe is not liable in the Court of Probate upon any par- man, 3 Penn. 185; Miller's Estate, 3 Rawle, 312. tial account to be there rendered and adjusted, to a The leading case is Dawes v. Head. The opinion of decree either of payment or of distribution, whether Parker, C. J., on this point is most able and convincfor a legacy or to one claiming by a supposed succes- ing. It is true that what was said by the distinsion of the decedent's effects.''
guished jurist on the subject was obiter; but no one These cases however cannot be considered as settling can read his exhaustive argument without being imthe law in Massachusetts against the doctrine that the pressed with the soundness of the dootrine which he question of remission is one of judicial discretion, and there enunciates. He says: “In relation to the effects in Dawes v. Head, 3 Pick. 128, the court said that pos- found within our jurisdiction, and collected by the aid sibly the assets collected under the aucillary adminis- of our laws, a regard to the rights and interests of our tration might be directed to be paid to legatees living citizens require that those effects should be made anin the jurisdiction of such administration unless the swerable for debts due to them in jilst proportion to circumstances of the case should require the funds to
the whole estate of the deceased, and all the claims upon be sent to the jurisdiction of domiciliary administra- it, whatever they may be.” * “ We cannot think tion.
however that in any civilized country advantage ought The question however is important in only this re- to be taken of the accidental circumstance of property pect: If the courts of the ancillary administration or- being found within its territory which may be reduced der the funds remitted, legatees and next of kiu must to possession by the aid of its courts and laws to seenforce their claims in a foreign jurisdiction. But quester the whole for the use of its own subjects or whatever form they are compelled to resort to, all the citizens where it shall be known that all the estate and authorities agree that the law of the domicile of the effects of the deceased are insufficient to pay his just decedent controls the distribution to next of kin and debts. Such a doctrine would be derogatory to the the validity al all legacies. Whenever courts have di.
character of any government. Under the English bankrected the ancillary representative to disburse the rupt system, foreigners as well as subjects may prove
their debts and share in the distribution. It was so edly be considerable, but this would not be so great an
of by the tribunals of that jurisdiction.
of the courts in another jurisdiction, where they were competent to embrace and settle all cases of that na- found, to direct their return to the jurisdiction of the ture, even if the powers of our Court of Probate are domicile. This course would be alike demanded by a not sufficiently extensive; which however is not cer- sense of justice and the comity of States. A removal tain. The administrator here should be held to show under such circumstances would rightly be considered the condition of the estate abroad the 3mount of an act of usurpation to which courts would not lend property subject to debts, and the amount of debts their sanction." But the court decided that it would and a distribution could be made upon perfectly fair not direct the property to be remanded to Pennsyland equitable principles. The delay would undoubt- / vania, as there were no creditors or other interested
parties there, and all persons interested in the estate assets collected in such foreign jurisdiction, may be desired a distribution in the State of New York by held liable to creditors in the State to which he comes the administrator there.
to the extent of such assets. Campbell v. Tracey, 7 It would seem to follow logically from this case that Cow. 64; Evans 7. Tatam, 9 Serg. & Rawle, 252, 259; where a representative collects a simple contract | Bryan v. McGee, 2 Wash. Cir. 337; Swearingen's E.crs. claim of the decedent from a foreign debtor, he may v. Pendleton's Eærs, 4 Serg. & Rawle, 389, 392. be required to turn over the sum collected to the rep- But these cases are disapproved by Story in his resentative of the domicile of the debtor. Such debt, Conflict of Laws ($ 514 b), and the New York and as we have already seen (when not evidenced by any other cases are disapproved in Judy v. Kelley, 11 Ill. writing), has its situs in the jurisdiction in which the 211; S. C., 50 Am Dec. 455. The two cases from Penndebtor resides. Collection of such debt by a foreign sylvauia are overruled in Magraw v. Irwin, 87 Peun. representative is therefore a removal of assets from St. 139. that jurisdiction, and under the authority of the above In Hedenburgh v. Hedenburgh, 46 Conn. 30, the forcase the assets so removed must be returned. But see eign executor was held not to be liable as to foreigu Fox v. Carr, 16 Hun, 434. In this case it was held that assets, but the court said, that the rule was different the removal of the debtor from North Carolina, the with respect to domestic assets; that the foreign exdomicile of the decedent, to New York, made the debt ecutor must account for the latter to resident credite assets in New York for which the administrator there ors. Judge Story approves this doctrine as to liabilcould sue, although the debtor was there only tempo- | ity for domestic assets. He says: “In the first place rarily and was still a citizen of North Carolina. Noth. let us suppose that an executor or administrator ing was said regarding the obligation of the adminis-should go into a foreign country, and without there trator to remit the whole sum collected to the domi- taking out new letters of administration should there ciliary administrator. On the contrary the court collect property, effects and debts of his testator or said: “If there are creditors here it will probably be intestate found or due there, the question might arise his duty to apply the assets in his hands to their pay- whether he would not thereby to the extent of his rement, but that will work no injustice to foreign cred-ceipt and collection of such assets be liable to be sued itors."
in the courts of that country. by any creditor there. It is a general rule that an administrator is not Upon general principles it would seem that he would chargeable with assets in a foreign jurisdiction. Sher- so be liable." $ 514. Cases may arise where it would be man v. Page, 85 N. Y. 123; Selectmen of Boston v. necessary for courts to entertain jurisdiction over forBoylston, 2 Mass. 384; Hedenburg v. Hedenburg, 46 eign executors and administrators to prevent a failure Com). 30; Fay v. Haven, 3 Meto. 109.
of justice. Such was the case of McNamara v. Dwyer, It has been held that he must include such property 7 Paige, 239, already referred to. Where the reprein his inventory in the State where be was appointed. sentative is seeking to defraud those interested in the Estate of Butler, 38 N. Y. 397. But this case does not estate by going into a foreign State the courts of that hold that the administrator is bound to account for State should compel him to aocount for the fuuds in such assets. See Sherman v. Page, 85 N. Y. 123, his hand, as trustee to those entitled to them. Ses 129.
also Brown v. Knapp, 17 Hun, 160; Alger v. Alger, 31 In Schultz v. Pulver, 11 Wend. 363, it was held that ) id. 471. it is the duty to take reasonable measures for collect- In Parsons v. Lyman, 20 N. Y. 103, 115, the court ing a debt due the decedent from a non-resident held that an executor of a decedent who died in Condebtor, and was responsible for his failure so to do.necticut, having collected in New York a debt due the But in that case there was no administrator in the decedent from a resident of New York before taking foreign State. But he is not liable if he is unable to out letters in New York, is bound to account for the collect the debt after reasonable diligence, and he may money in Connecticut, and that he cannot be comeven be allowed the money necessarily expended in pelled to account for the same in New York on his good faith in his efforts to make such collection. Bow- being subsequently appointed in New York to adminman v. Carr, 5 Lea (Tenn.), 571.
ister the estate there. But there was no occasion for In Selecimen of Boston v. Boylston, 2 Mass. 384, the his accounting in New York for the money, because administrator, who was appointed in Massachusetts as the court said: “When the moneys were paid, was sought to be made accountable for all assets which and for many years afterward, there was no person re. had come into his hands in Eugland, the domicile of siding in New York who had even the smallest interthe decedent, the administrator having also been ap
ast in them." pointed in England. The court very properly held In Whitehurst v. Whitehurst, 6 Virg. Law J. 54, it apthat he was bound to account for only the Massachu-peared that the decedent died in North Carolina; the setts assets.
same person was appointed in that State and in Vir. In Sherman v. Page, 85 N. Y. 123, the testator died ginia; he collected assets of the estate in Pennsy?in New York leaving property there and in Michigan, vania, Maryland and North Carolina, and brought and appointing by his will different executors to exe- them all to Virginia. Held, that the administrator cute his will in the two States. P. was appointed ex- was bound to account in the latter State for the whole ecutor in New York, and G. and J. in Michigan. Cer- estate wherever collected, although it was not all coltain residents of New York were named as legatees, lected in the decedent's domicile. and their bequests were directed to be first paid. . P. That a testator may appoint differerst executors in used all of the New York assets in paying debts, leav- different States is well settled, and neither executor ing nothing for the legatees there. The court held can control the property in the State in which the testhat he was not accountable to them for any property tator has appointed another executor. Sherman v. in Michigan; but that the legatees themselves must Page, 85 N. Y. 123, 128; Despard v. Churchill, 53 id. 192; enforce their claims in Michigan, and that they could Hartnett v. Wandell, 60 id. 346, 351; Sherman v. Page, use the name of the New York executor there if neces. 21 Hun, 59. sary, and that if he refused to allow his name to be In McCabe v. Lewis, 75 Mo. 296, 307, it was decided used, the surrogate could compel him to do so upon that the public administrator of Missouri could not his being indemnified.
maintain an action against an administratrix in LouThere are authorities which hold that a foreign ex- isiana, who it was alleged had fraudulently converted ecutor or administrator who comes into a State in part of the assets of the estate to her own use and which he has not been appointed, bringing with him brought them to Missouri, having rendered an account
and made a final settlement in Louisiana; that the Where an ancillary administrator sells real property action must be brought by creditors and distribu- to pay debts the cases all agree that the proceeds of tees.
the sale are to be accounted for and distributed in the In McCord v. Thompson, 92 Ind. 565, it appeared that jurisdiction in which the property was situated. Peck the intestate was domiciled in Illinois. His admin- v. Mead, 2 Wend. 471; Hooker v. Olmstead, 6 Pick. 481; istrator sold property of the intestate there to a citi- Goodwin v. Jones, 3 Mass. 514, 519, 520; Lawrence v. zen of Indiana who gave note therefor payable in the Elmendorf, 5 Barb. 73; Story Confl. Laws, $ 523. latter State at a bank. The note was left in the bank In Lawrence v. Elmendorf, the court held that while for collection. On demand the maker paid it to the the distribution of the proceeds should be made under administrator appointed in Indiana. The action was the laws of the State where the property was located, brought by the Illinois administrator on the note, and yet that it should be so made as to produce equality the foregoing facts were held not to constitute any among all creditors in all jurisdictions. The decision defense, the court deciding that the payment to the was that creditors who had received a dividend on Indiana administrator was unauthorized. Suppose their claims in New Jersey were not entitled to any the estate is insolvent and there are administrators in share of the proceeds of the sale of real property in two different jurisdictions and assets in both, and in New York until other creditors who had not been each there is a different law regulating preferences in paid any thing should receive the same dividend on the payment of a decedent's debts, what doctrine their claims, and that the balance, if any, should be should govern the distribution of the assets in the distributed pro rata. The court thus states the broad State of the ancillary administration? There is no doctrine which should control in all cases of conflictadjudication on this point; but the opinion of the ing administration: “I think the true principle which writer is that the courts of the State of ancillary ad- should govern in all cases of double administration is ministration should consider all the assets in both as it was stated to be by the plaintiff's counsel upon the States as being in that State, and all the creditors as argument, so to marshal the different funds under adbeing domestic creditors, and then determine the ministration as to produce equality among all creditpro rata share of the resident creditors and remit the ors whether foreign or domestic." balance. To illustrate: Suppose the total assets in The question of preference is in all cases to be deboth States were $10,000, and the debts in the State of termined by the law of the actual location of the propancillary administration $5,000, and that half of the erty, and not by the law of the decedent's domicile or assets were there. Now if the debts in the State of of the residence of the creditor. Story ('onfi. Laws, the decedent's domicile were $15,000, the creditors in $ 524; Holmes v. Remsen, 20 Johns. 265; 2 Kent. Com. the State of ancillary administration would be en- 432; McElmoyle v. Cohen, 13 Pet. 312; Olivier v. titled to twenty-five per cent of the assets there or Townes, 14 Martin, 93, 99. $1,250 of the $5,000, and the balance would have to be If therefore the law of the jurisdiction of ancillary remitted. But suppose that under the laws of the administration prefers certain classes of debts which State of ancillary administration, judgments were en- in the State of the decedent's domicile are not entitled to preference, and that $1,000 of the $5,000 of titled to preference, the resident creditors of the fordebts there were judgment debts; and $9,000 of the mer jurisidiction are controlled by such law, but nondebts in the other State were judgment debts. The resident creditors, whether living in the State of the court of the State of ancillary administration would decedent's domicile or elsewhere, are not affected by treat the foreign judgment creditors the same as do- it directly, because they must resort to the assets in mestic judgment creditors for the purpose of ascer- the hands of the domiciliary administrator (Barry's tajuing the rights of the resident creditors, and it Appeal, 88 Peun. St. 131), and all assets in his hands would thus appear that the resident judgment credit- are payable to creditors according to the laws of the ors must be paid in full, and the balance, to-wit, $4,000, State in which he was appointed. would be remitted to the other State, and the balance In Denny v. Faulkner, 22 Kaus. 89, the court deof the resident creditors would receive nothing. This cided that it would ex comitate recognize the title of doctrine is in accord with the principles embodied in an administrator appointed in Nebraska of an intesthe opinion of Parker, C. J., in Dawes v. IIead. In tate who was domiciled there at the time of his death that case he declared that as no preferences were or- where the administrator had come into Kansas and dained by the statutes of Massachusetts, the court in had there taken peaceable possession of property of fixing the proportionate share of the resident credit- the decedent located there, there being no creditors ors should consider all the creditors in that and in the or next of kin or ancillary administration in that foreign jurisdiction where preferences were made by State. law, as entitled to share equally “disregarding any There is a dictum in In re Hughes, 95 N. Y. 55, to fauciful preference which may be given to one species the effect that where the domiciliary administrator is of debts over another.” The principle which lies at seeking to have assets in another State turned over to the foundation of the whole opinion in that case is him, he must show that there are creditors in his juthat non-resident creditors, when the share of resi-risdiction whose claims are unpaid, if there are no next deut creditors is to be ascertained, are to be consid- of kin or legatees there. The burden is on him to es. ered for all purposes the same as domestio creditors. tablish the existence of such creditors. On such apIt follows inevitably as corollary of this principle that plication debts in the decedent's domicile will not be the foreign creditors are to be regarded as entitled to presumed. The court said: “Under these circumthe same preferences as domestic creditors in fixing stances we think it was incumbent on the foreign adthe pro rata of domestic creditors, and that if there ministrator to show that there were unpaid debts of would not be more than enough to pay the preferred the estate in Pennsylvania, requiring that the fund debts, foreign and domestic, in full,the preferred cred- should be remitted, and that in the absence of such itors who are residents are to be first paid and the proof it must be presumed that there were none. balance remitted to the domiciliary administrator or And in Harvey v. Richards, 1 Mason), 380, Judge executor, even though some of the domestic creditors Story says: “If the foreign executor chooses to lie receive nothing, and the assets remitted are amply | by and refuses to render any account of the foreign sufficient to pay them in full. If the law of preference fund in his hands so far as to enable the court here to in the State of the decedent's domicile prescribes a ascertain whether the fund is wanted abroad for the different rule of distribution, the creditors then will payment of debts or legacies or not, he has no right to have to submit to it.
complain if the court refused to remit the assets and