« ForrigeFortsett »
tion of personal property, has repeatedly been declared to constitute a part of the municipal jurisprudence of this country. The difficulty has been not in the rule itself, but in the application and execution of it. In Topham v. Chapman,b it was said, that though the distribution was to be according to the laws of the country of the domicil
right of the surviving parent, whether father or mother, to transfer the domicil of the minor children, if done in good faith. If a party has two contemporary domicils, and a residence in each alternately, of equal portions of time, the rule which Lord Alvanley was inclined to adopt was, that the place where the party's business lay should be considered his domicil. Lord Thurlow, in Bruce v. Bruce, 2 Bos. f Pull. 229, note. 3 Vesey, 201, 202.5 Ibid. 786—789. See 1 Johns. Cas. 366, note, and 4 Cou. cn': Rep. 516, note, for a collection of authorities on this question of domicil. See also supra, vol. i. p. 74–81, as to the domicil for commercial purposes, and in tho purview of the law of nations. Domicil is distinguished by the various situations to which it is applied. There is a political, a civil, and a forensic dornicil. There is a domicil arising from birth, and from the domestic relations, and from election. Bynk. Quæst. Jur. Prio. lib. 1. ch. 16. Henry on Foreign Law, App. 181-208. Code Napoleon, No. 102–111. Repertoire de Jurisprudence, art. Domicile. Toullier, Droit Civil Francais, tom. i. p. 318. Story's Comm. on the Conflict of Laws, ch. 3. Burge's Comm. on Colonial and Foreign Laws, vol. 1. ch. 2. tit. Domicile. A resident and inhabitant mean the same thing. But inhabitancy and residence do not mean the same thing as domicil, when the latter is applied to successions to personal estates ; but they mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence. Roosevelt v. Kellogg, 20 Johns. Rep. 208. Ch. Walworth, 8 Wendell's Rep. 140. Seo also 4 Wendell. 603. Residence, combined with intention, constitutes a domicil. Whether the residence be long or short is immaterial, provided the intention of residenco is wanting in the one case and exists in the other. Code Napoleon, art. 103. Touillier, vol. 1. 323. art. 372. Hennen v. Hennen, 12 Lou. Rep. 190. Guier v. O'Daniel, 1 Binney, 349, note.
• Dixon v. Ramsay, 3 Cranch's Rep. 319. United States v. Crosby, 7 Ibid. 115. Blane v. Drummond, 1 Brockenbrough's Rep. 62. Kerr v. Moon, 9 Wheaton, 565. Desebats v. Berquier, 1 Binney's Rep. 336. Decouche v. Savatier, 3 Johns. Ch. Rep. 210. Holmes v. Remsen, 4 Ibid. 469, 470. Dawes v. Boyleston, 9 Mass. Rep. 337. Harvey v. Richards, 1 Moson's Rep. 408. Crofton v. Ilsley, 4 Greenleaf's Rep. 134. Stent v.
Leod, 2 M. Cord's S. C. Ch. Rep. 354. Story's Com. on the Conflict of Laws,
391-393.402_411. Leake v. Gilchrist, 2 Dev. N. C. Rep. 73. • 1 Const. Rep. S. C. 292.
of the intestate, yet that his debts in a foreign country must be collected and paid according to the law of that country. Administration must be granted where the debts were ; for an administrator has no power beyond the jurisdiction in which he received his letters of administration ; and the home creditors must first be paid before the administrator could send the surplus fund to the country of the proper domicil of the intestate.a Much
• The general rule in England and in this country is, that letters testa. mentary, or of administration, granted abroad, give no authority to sue or be sued in another jurisdiction, though they may be sufficient ground for new probate authority. Tourton v. Flower, 3 P. Wms. 369. Lee v. Bank of England, 8 Vesey, 44. Dixon v. Ramsay, 3 Cranch's Rep. 319. Doe v. McFarland, 9 Ibid. 151. Pond v. Makepeace, 2 Metcalf's Rep. 114. Sabin v. Gilman, 1 N. H. Rep. 193. Goodwin v. Jones, 3 Mass. Rep. 514. Riley v. Riley, 3 Day's Rep. 74. Morrell v. Dickey, 1 Johns. Ch. Rep. 153. Dangerfield v. Thurston, 20 Martin's Louis. Rep. 232. Kerr v. Moon, 9 Wheaton, 565. Armstrong v. Lear, 12 lbid. 169. Story's Com. on the Conflict of Laws, p. 422. Vaughan v. Northrop, 15 Peters' U. S. Rep. 1. In N. Carolina, it is now held that probate of a will in another state and duly authenticated, supersedes the necessity of a new probate in that state. Lancaster v. M.Bryde, 5 Iredell, 421. The administration on a foreigner's estate must be taken out where he died, though the assets there are distributable according to the law of the country of his domicil. Aspinwall v. The Queen's Proctor, 2 Curteis, 241 In Carmichael v. Ray, 1 Richardson's S. C. Rep. 116, administration was granted in S. Carolina on the estate of an intestate domiciled there, but it was held, after an able and learned discussion, that a suit could not lie in that state in trover for chattels held by the intestate in N. Carolina, as the title of the administrator did not extend to personal property in a foreign state. The case of executor is different. His title is good jure gentium, and operative when confirmed by the authority of the jurisdiction in which it is to operate. But the administrator's title under grant from the authorities of the intestate's domicil, does not de jure extend or attach to the property in another's jurisdiction. A new title or a recognition of the authority must be derived from the foreign government, and then it is merely ancillary to the original power as to the collection and distribution of effects, and is made subservient to domestic claims, and the residuum is transmitted to the foreign country after the final account is settled in the domestic forum. On this difficult subject of conflicting claims under probate powers from different states, it was held after a full and learned discussion in Connecticut, in the case of Holcomb v. Phelps, 16 Conn. Rep. 127, that where administration was granted in New York on the estate of A., who
discussion took place on this part of the *subject in Harvey v. Richards.a
It was held, upon a masterly consid
was domiciled in New York, and the assets were removed to Connecticut by the administrator and a new administration was granted there to ano. ther person, that the first administrator was not answerable there by suit for the assets, and that the authority from New York was his protection. See infra, p. 434. n. a. S. P. In McNamara v. Dwyer, 7 Paige, 239, the chancellor was of opinion that the creditors and next of kin were not confined in their remedies against an executor or administrator to the courts of the country in which the letters testamentary or of administration were granted. It was adjudged that the court of chancery had jurisdiction to compel a foreign executor or administrator to account for the trust funds which he received abroad and brought with him into the state, and without taking out letters of administration in New-York on the estate of the deceased. So it has been adjudged in the court of appeals in Virginia, after an elahorate discussion, that if an executor takes out letters testamentary in England, and removes to Virginia, and brings the assets with him, he may be sued there for an account of his administration, and for debts and legacies. Tunstall v. Pollard, 11 Leigh's Rep. 1. 36. But the assets will be applied and distributed according to the laws of the state or country from whom he derived his authority to administer. It is held in other cases that a foreign administrator may receive payment anywhere, and give an acquittance. Doolittle v. Lewis, 7 Johns. Ch. Rep. 45. Stevens v. Gaylord, 11 Mass. Rep. 256. Trecothick v. Austin, 4 Mason's Rep. 16. 33. Atkins v. Smith, 2 Atk. Rep. 63. Nisbet v. Stewart, 2 Der. f. Battle's Rep. 24. Mr. Justice Story, in his Conflict of Laws, is of opinion that upon principles of international law, a payment to an original administrator as against a foreign administrator subsequently appointed in the domicil of the debtor would not be good, and that the latter administrator would be entitled to recover the debt, inasmuch as the prior and original administrator had no right to demand it. But in Vaughn v. Barrel, 5 Vermont Rep. 333, a contrary doctrine is declared, and it was adjudged, upon full discussion, that an administrator appointed in another state, had no authority to settle and discharge a debt due from a citizen of Vermont to his intestate, and that such discharge would be no bar to an action for the debt by the administrator appointed in Vermont. Under the local law of Pennsylvania, letters of administration granted in another state are a sufficient authority to maintain an action in that state. M'Culloch v. Young, 1 Binney's Rep. 63. This is the case in Ohio. Statutes of Ohio, 1831, p. 241. 8 Ohio Rep. 228. And in Tennessee, by the statute of 1809, and the vision is commended in Smith v. Marry, 7 Ye as just and liberal. But foreign executors and administrators cannot be
* 1 Mason's Rep. 403.
eration of the case that whether a court of equity would proceed to decree an account and distribution according to the lex loci rei sitæ, or direct the assets to be
sued in Tennessee, as such, in virtue of their foreign letters testamentary or of administration. Allsup v. Allsup, 10 Yerger, 283. And to entitle the executor or administrator to sue in Tennessee, on the fact of the foreign probate or letters, he must produce a duly authenticated copy of the
Statute Laws of Tennessee, 1836, p. 78. In the Revised Statutes of Pennsylvania, relating to orphans' courts, as reported in January, 1831, the law of Pennsylvania was recommended to be made to agree, in this particular, with the law of most of the other states. In Massachusetts and Ohio, no will is effectual to pass either real or personal estate, unless duly proved and allowed in the probate court ; and the probale of a will devising real estate is conclusive as to the due execution of the will, equally as it is of a will of personal estate. Mass. Revised Statutes, 1835, part 2. tit. 3. ch. 62. sec. 20. Swazey v. Blackman, 8 Ohio Rep. 1. So, the probate is equally conclusive on trials at law, in Maine, Connecticut, and Virginia : (4 Greenleaf, 225. 5 Ibid. 494. 1 Day, 170. 1 Leigh, 293,) whereas in Pennsylvania, the probate of a will is conclusive as to chattels, and only prima evidence of title under it as to lands. In England, the probate is evidence of the will as to chattels, but none at all as to lands, for the ordinary has no jurisdiction over wills as to lands. The confirma. tion of foreign letters testamentary, of administration, and of guardianship, is made very simple and easy in Alabama and Indiana by their statule codes. It is by filing with the clerk of the court where suit is brought, the same authorities or authenticated copies thereof. The guardian is to give new security, as well as to file a copy of the appointment, in order to have the privilege of a resident guardian. So, in Virginia, a will duly authenticated and proved in another state, or in a foreign country, will be admitted to probate, if the proof abroad be such, that if mado in Virginia, it would have been admitted to proof, as a will of chattels, or of lands, as the case may be. Ex parte Povall, 3 Leigh's Rep. 816. In Massachusetts and Maine, a will proved and allowed in any other state, or in a foreign country, according to the laws of such state or country, may be filed and recorded, on producing an authenticated copy to the judge of probate of any county in which there is any estate, real or personal, on which the will may operate ; and the judge is to hear the case on the probate of the will on giving the prescribed notice of the time and place. If allowed, it is to be filed and recorded, and to have the same force and effect as if proved in the usual way; and letters testamentary or of administration, with the will annexed, are to be granted. Mass. Revised Statutes of 1835, part 2. tit. 4. ch. 3. Act of Maine, 1821. See, also, State v. Judge of Probates, 17 Louis. Rep. 486, as to a similar rule and practice in Louisiana.
*distributed by the foreign tribunal of the domicil of the party, would depend upon circumstances. The situs rei, as well as the presence of the parties, conferred a competent jurisdiction to decree distribution, according to the rule of the rex domicilii ; and such a jurisdiction was sustained by principles of public law, and was consistent with international policy. The court was not bound, at all events, to have the assets remitted to the foreign administrator, and to send the parties entitled to the estate abroad, at great expense and delay, to seek their rights in a foreign tribunal. Though the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad. Whether the court here ought to decree distribution, or remit the property abroad, was a matter of judicial discretion, and there was no universal or uniform rule on the subject.
The manner and extent of the execution of the rule were well discussed and considered, in the supreme court of Massachusetts. A person was domiciled at Calcutta, and died there insolvent, and his will was proved, and acted upon there. Administration was taken out in Massachusetts, on the probate of the will in the East Indies; and assets came to the hands of the administrator at Boston, sufficient to pay a claim due citizens of the United States, and a judgment debt due a British subject in England ; but all the assets were wanted to be applied, in the course of administration, by the executor at Calcutta. It was held, that the administrator here was only ancillary to the executor in India; and the assets ought to be remitted, unless he was compelled by law to appropriate them here to pay debts. It was not decided whether he was compelled to pay here; but if it were the case, it would only be the American creditors; and the British creditor was not entitled to come here and disturb the legal course of settlement of the es
* Dawes v. Head, 3 Pick. Rep. 128.