the law regulating distribution among the next of kin was the same in both States. The court very truly said: "The only difference between a distribution here and a remission of the fund to Pennsylvania for distribution there is that in the latter case the fund would be subjected to double commissions. It would 'be an idle show of courtesy' under these circumstances to remit the fund to the foreign jurisdiction when the only effect would be to deplete it by unnecnssary charges and expenses to the prejudice of all the parties beneficially interested."

In Massachusetts it would seem that a different doctrine obtains. Richards v. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 id. 337. In the first case the court said of an ancillary administrator with regard to his accountability for assets in his State: "The administrator may be held to pay debts due to creditors here if any such are claimed of him; but legatees, who claim only from the bounty of the testator must resort to courts of the testator where the will was originally proved, and by the laws of which his effects were to be distributed."

In the other case the action was on the bond of an ancillary administrator, whose decedent died domiciled in England, and was prosecuted for the benefit of the town of Boston as residuary legatee under the will of the decedent, whose name was Thomas Boylston. It was claimed that the bond was forfeited because it was the duty of the ancillary administrator to pay not only debts, but legacies also, which were payable to residents of the jurisdiction in which the ancillary representative was appointed. Although the residuary legatee was a municipal corporation of that State, the court decided that the administrator was justified in remitting the balance of the assets after payment of debts to the domiciliary representative in England. The court said: "The rights of legatees, especially of residuary legatees, as well as the next of kin in the case of intestacy, depend upon the laws of the country where the deceased had his home and domicile from whom the bequest or succession is claimed, and for that purpose all the choses in action and personal effects are to be deemed local, and to be there accounted for and finally administered wherever collected or accruing to the executors or administrators. The administration granted within this State has been justly styled ancillary in respect to the administration in the Prerogative Court. The defendant has an authority to collect and pay debts, and is liable for the contracts and debts of the testator recoverable, and which may be enforced within this jurisdiction, but he is not liable in the Court of Probate upon any partial account to be there rendered and adjusted, to a decree either of payment or of distribution, whether for a legacy or to one claiming by a supposed succession of the decedent's effects."

These cases however cannot be considered as settling the law in Massachusetts against the doctrine that the question of remission is one of judicial discretion, and in Dawes v. Head, 3 Pick. 128, the court said that possibly the assets collected under the ancillary administration might be directed to be paid to legatees living in the jurisdiction of such administration unless the circumstances of the case should require the funds to be sent to the jurisdiction of domiciliary administration.

The question however is important in only this repect: If the courts of the ancillary administration order the funds remitted, legatees and next of kin must enforce their claims in a foreign jurisdiction. But whatever form they are compelled to resort to, all the authorities agree that the law of the domicile of the decedent controls the distribution to next of kin and the validity al all legacies. Whenever courts have directed the ancillary representative to disburse the

money in the State in which he was appointed, next of kin and legatees have received the same measure of justice that would have been accorded them in the State where the decedent resided at the time of his death. Whitehurst v. Whitehurst, 6 Va. L. J. 54; Guier v. O'Daniel, 1 Binney, 349, note; In re Hughes, 95 N. Y. 55, 60, 63; Harvey v. Richards, 1 Mason, 380; Dawes v. Head, 3 Pick. 130; Despard v. Churchill, 53 N. Y. 192; Parsons v. Lyman, 10 id. 103; 2 Kent Com. 429, 430.

In view of this well-settled rule that the laws of the decedent's domicile will be regarded and followed in the disbursement of ancillary assets in the State where they are located, the doctrine which refuses to remit these assets to another jurisdiction for distribution in all cases is certainly a very just and reasonable one. Cases may arise where it will be necessary or wise to so remit them, but in many instances it will be found to be for the better interests of all to decree distribution of ancillary assets where they are found.

Suppose the decedent is insolvent at the time of his death, and he has assets and creditors in two or more jurisdictions, and the assets in one State will pay the creditors there in full, or a larger percentage than the assets in the other State will pay the creditors there, what will the courts of the State of which the fortunate creditors are citizens decree with regard to the application of all the assets there to the payment of the resident creditors? If the jurisdiction in which the fortunate creditors reside is the State in which ancillary administration has been granted, all the decisions and dicta on the subject support this doctrine, that the resident creditors shall be paid out of the local assets only their proportionate share, having regard to all the assets, wherever situated, and all the creditors in both jurisdictions, and the balance will be remitted to the State in which domiciliary administration has been granted. Accordingly if the estate in the State of ancillary administration will pay eighty cents on a dollar to the creditors there, and the estate in the State of domiciliary administration will pay only ten cents on a dollar to the resident creditors of that State, and the whole estate will pay all creditors fifty cents on a dollar, the courts of the former State will direct the balance remaining after paying the resident creditors fifty cents on a dollar, to be remitted to the domiciliary administrator. Topman v. Chapman, 1 Const. S. C. 292; Dawes v. Head, 3 Pick. 128, 143-148; Davis v. Estey, 8 id. 475; Fox v. Carr, 16 Hun, 434, 440; Fay v. Haven, 3 Metc. 109, 114; 2 Kent Com. 434, Lawrence v. Elmendorf, 5 Barb. 73, 75; Northland v. Wiseman, 3 Penn. 185; Miller's Estate, 3 Rawle, 312.

The leading case is Dawes v. Head. The opinion of Parker, C. J., on this point is most able and convincing. It is true that what was said by the distinguished jurist on the subject was obiter; but no one can read his exhaustive argument without being impressed with the soundness of the doctrine which he there enunciates. He says: "In relation to the effects found within our jurisdiction, and collected by the aid of our laws, a regard to the rights and interests of our citizens require that those effects should be made answerable for debts due to them in just proportion to the whole estate of the deceased, and all the claims upon it, whatever they may be.” *** "We cannot think however that in any civilized country advantage ought to be taken of the accidental circumstance of property being found within its territory which may be reduced to possession by the aid of its courts and laws to sequester the whole for the use of its own subjects or citizens where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government. Under the English bankrupt system, foreigners as well as subjects may prove

*

their debts and share in the distribution. It was so under the bankrupt law while that was in force, and no reason can be suggested why so honest and just a principle should not be applied in the case of insolvent estates of deceased persons. It is always practiced upon in regard to persons dying within one jurisdiction having had their domicile here, that is, creditors of all countries have the same rights as our own citizens to file their claims and share in the distribution. There cannot be then a right in any one or more of our citizens who may happen to be creditors to seize the whole of the effects which may be found here or claim an appropriation of them to the payment of their debts in exclusion of foreign creditors. It is said this is no more than what may be done by virtue of our attachment law in regard to the property of a living debtor who is insolvent. But the justness of that law is very questionable, and its application ought not to be extended to cases by analogy, which do not come within its express provisions. What then is to be done with the effects collected here belonging to an insolvent estate in a foreign country? Shall they be sent home in order to be appropriated according to the laws of that country? This would often work great injustice and always great inconvenience to our citizens whose debts might not be large enough to bear the expenses of proving and collecting them abroad, and in countries where there is no provision for an equal distribution the pursuit of them might be wholly fruitless. As in Great Britain, our citizens whose debts would generally be upon simple contract, such as bills of exchange, promissory notes, accounts, etc., would be postponed to creditors by judgment, bond, etc., and even to other debts upon simple contract which might be preferred by the executor or administrator. It would seem too great a stretch of courtesy to require the effects to be sent home and our citizens pursue them under such disadvantages. What then shall be done to avoid on the one hand the injustice of taking the whole fund for the use of our citizens to the prejudice of foreigners when the estate is insolvent, and on the other the equal injustice and greater inconvenience of compelling our own citizens to seek satisfaction of their debts in distant countries?

"The proper course would undoubtedly be to retain the funds here for a pro rata distribution according to the laws of our State among the citizens thereof, having regard to all the assets either in the hands of the principal administrator or of the administrator here, and having regard also to the whole of the debts which by the laws of either country are payable out of those assets disregarding any fanciful preference which may be given to one species of debts over another, considering the funds here as applicable to the payment of the just proportion due to our own citizens; and if there be any residue it should be remitted to the principal administrator to be dealt with according to the laws of his own country, the subjects of that country if there be any injustice or inequality in the payment or distribution being bound to submit to its laws. The only objection which can be made to this mode of adjusting an ancillary administration upon an insolvent estate is the difficulty and delay of executing it. The difficulty would not be greater than in settling many other complicated affairs where many persons have interests of different kinds in the same funds. The powers of a court of chancery are competent to embrace and settle all cases of that nature, even if the powers of our Court of Probate are not sufficiently extensive; which however is not certain. The administrator here should be held to show the condition of the estate abroad the amount of property subject to debts, and the amount of debts and a distribution could be made upon perfectly fair and equitable principles. The delay would undoubt

edly be considerable, but this would not be so great an evil as either sending our citizens abroad upon a forlorn hope to seek for the fragments of an insolvent estate, or paying the whole of their debts out of the property without regard to the claims of foreign creditors. And if the Probate Court has not sufficient power to make such an equitable adjustment, a bill in equity, in which the administrator here should be the principal respondent would probably produce the desired result as their time and opportunity could be given to make known the whole condition of the estate, and all persons interested might be heard before any final decree. In the meantime the administrator could be restrained from remitting the funds until such decree should be passed." It is unnecessary to make any apology for quoting so largely from an opinion so exhaustive and convincing upon a point so important.

In Davis v. Esler, 8 Pick. 475, the court adopted the doctrine so ably supported by Parker, C. J., and decided that the resident creditors were entitled to only their pro rata share, and that the balance must be remitted to the domiciliary representative. While it is the rule that all foreign creditors may come into the State of the decedent's domicile to collect their claims, yet no creditor of that State can enforce his claim against assets in the hands of an ancillary administrator. Such administrator, after paying resident creditors, must remit the balance of the funds to the domiciliary representative, and the creditor of that State must enforce his claim there. Barry's Appeal, 88 Penn. St. 131.

The reason for this doctrine is very plain. Were such creditor allowed to collect his claim in the foreign State he might thus secure an unlawful preference or more than his pro rata share.

So careful are the courts to maintain the integrity of the principle that the property of a decedent within any jurisdiction is subject to the claims of citizens of that jurisdiction, that the courts hold that if such property is fraudulently or wrongfully removed the courts of the State where it is found must order it to be returned to its original situs, there to be disposed of by the tribunals of that jurisdiction.

In re Hughes, 95 N. Y. 55, 62. In this case it appeared that the administrator, who was afterward appointed in New York, went to Pennsylvania, the domicile of the decedent, and took the assets he found there into his possession and brought them to New York. The court said: "The removal by the appellant of the assets from Pennsylvania was illegal. The jurisdiction over the assets of an intestate is local, and upon his death their care devolves of necessity upon the sovereignty of the country where they may be until a legal representative of the intestate is appointed who shall be entitled to their custody. Heirs of Porter v. Heydock, 6 Vt. 374. The right of the domestic sovereignty over vacant assets pending the appointment of an administrator, besides being founded upon necessity, arises also from the general duty of the State to guard the interests of domestic creditors and claimants. Where assets so situated have been illegally removed from the jurisdiction of the domicile to the prejudice of domestic creditors or others interested in the estate, it would, we conceive, be the plain duty of the courts in another jurisdiction, where they were found, to direct their return to the jurisdiction of the domicile. This course would be alike demanded by a sense of justice and the comity of States. A removal under such circumstances would rightly be considered an act of usurpation to which courts would not lend their sanction." But the court decided that it would not direct the property to be remanded to Pennsylvania, as there were no creditors or other interested

and made a final settlement in Louisiana; that the action must be brought by creditors and distributees.

In McCord v. Thompson, 92 Ind. 565, it appeared that the intestate was domiciled in Illinois. His administrator sold property of the intestate there to a citizen of Indiana who gave note therefor payable in the latter State at a bank. The note was left in the bank for collection. On demand the maker paid it to the administrator appointed in Indiana. The action was brought by the Illinois administrator on the note, and the foregoing facts were held not to constitute any defense, the court deciding that the payment to the Indiana administrator was unauthorized. Suppose the estate is insolvent and there are administrators in two different jurisdictions and assets in both, and in each there is a different law regulating preferences in the payment of a decedent's debts, what doctrine should govern the distribution of the assets in the State of the ancillary administration? There is no adjudication on this point; but the opinion of the writer is that the courts of the State of ancillary administration should consider all the assets in both States as being in that State, and all the creditors as being domestic creditors, and then determine the pro rata share of the resident creditors and remit the balance. To illustrate: Suppose the total assets in both States were $10,000, and the debts in the State of ancillary administration $5,000, and that half of the assets were there. Now if the debts in the State of the decedent's domicile were $15,000, the creditors in the State of ancillary administration would be entitled to twenty-five per cent of the assets there or $1,250 of the $5,000, and the balance would have to be remitted. But suppose that under the laws of the State of ancillary administration, judgments were entitled to preference, and that $1,000 of the $5,000 of debts there were judgment debts; and $9,000 of the debts in the other State were judgment debts. The court of the State of ancillary administration would treat the foreign judgment creditors the same as domestic judgment creditors for the purpose of ascertaining the rights of the resident creditors, and it would thus appear that the resident judgment creditors must be paid in full, and the balance, to-wit, $4,000, would be remitted to the other State, and the balance of the resident creditors would receive nothing. This doctrine is in accord with the principles embodied in the opinion of Parker, C. J., in Dawes v. Head. In that case he declared that as no preferences were ordained by the statutes of Massachusetts, the court in fixing the proportionate share of the resident creditors should consider all the creditors in that and in the foreign jurisdiction where preferences were made by law, as entitled to share equally "disregarding any fanciful preference which may be given to one species of debts over another." The principle which lies at the foundation of the whole opinion in that case is that non-resident creditors, when the share of resident creditors is to be ascertained, are to be considered for all purposes the same as domestic creditors. It follows inevitably as corollary of this principle that the foreign creditors are to be regarded as entitled to the same preferences as domestic creditors in fixing the pro rata of domestic creditors, and that if there would not be more than enough to pay the preferred debts, foreign and domestic, in full, the preferred creditors who are residents are to be first paid and the balance remitted to the domiciliary administrator or executor, even though some of the domestic creditors receive nothing, and the assets remitted are amply sufficient to pay them in full. If the law of preference in the State of the decedent's domicile prescribes a different rule of distribution, the creditors then will have to submit to it.

Where an ancillary administrator sells real property to pay debts the cases all agree that the proceeds of the sale are to be accounted for and distributed in the jurisdiction in which the property was situated. Peck v. Mead, 2 Wend. 471; Hooker v. Olmstead, 6 Pick. 481; Goodwin v. Jones, 3 Mass. 514, 519, 520; Lawrence v. Elmendorf, 5 Barb. 73; Story Coufl. Laws, § 523.

In Lawrence v. Elmendorf, the court held that while the distribution of the proceeds should be made under the laws of the State where the property was located, yet that it should be so made as to produce equality among all creditors in all jurisdictions. The decision was that creditors who had received a dividend on their claims in New Jersey were not entitled to any share of the proceeds of the sale of real property in New York until other creditors who had not been paid any thing should receive the same dividend on their claims, and that the balance, if any, should be distributed pro rata. The court thus states the broad doctrine which should control in all cases of conflicting administration: "I think the true principle which should govern in all cases of double administration is as it was stated to be by the plaintiff's counsel upon the argument, so to marshal the different funds under administration as to produce equality among all creditors whether foreign or domestic."

The question of preference is in all cases to be determined by the law of the actual location of the property, and not by the law of the decedent's domicile or of the residence of the creditor. Story Confl. Laws, § 524; Holmes v. Remsen, 20 Johns. 265; 2 Kent. Com. 432; McElmoyle v. Cohen, 13 Pet. 312; Olivier v. Townes, 14 Martin, 93, 99.

If therefore the law of the jurisdiction of ancillary administration prefers certain classes of debts which in the State of the decedent's domicile are not entitled to preference, the resident creditors of the former jurisidiction are controlled by such law, but nonresident creditors, whether living in the State of the decedent's domicile or elsewhere, are not affected by it directly, because they must resort to the assets in the hands of the domiciliary administrator (Barry's Appeal, 88 Penn. St. 131), and all assets in his hands are payable to creditors according to the laws of the State in which he was appointed.

In Denny v. Faulkner, 22 Kaus. 89, the court decided that it would ex comitate recognize the title of an administrator appointed in Nebraska of an intestate who was domiciled there at the time of his death where the administrator had come into Kansas and had there taken peaceable possession of property of the decedent located there, there being no creditors or next of kin or ancillary administration in that State.

There is a dictum in In re Hughes, 95 N. Y. 55, to the effect that where the domiciliary administrator is seeking to have assets in another State turned over to him, he must show that there are creditors in his jurisdiction whose claims are unpaid, if there are no next of kin or legatees there. The burden is on him to establish the existence of such creditors. On such application debts in the decedent's domicile will not be presumed. The court said: "Under these circumstances we think it was incumbent on the foreign administrator to show that there were unpaid debts of the estate in Pennsylvania, requiring that the fund should be remitted, and that in the absence of such proof it must be presumed that there were none.

And in Harvey v. Richards, 1 Mason, 380, Judge Story says: "If the foreign executor chooses to lie by and refuses to render any account of the foreign fund in his hands so far as to enable the court here to ascertain whether the fund is wanted abroad for the payment of debts or legacies or not, he has no right to complain if the court refused to remit the assets and