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tate in his own country. If there were no legal claimants with us, in *the character of creditors, le- *434 gatees, or next of kin, the administrator would be bound to remit the assets to the foreign executor, to be by him administered according to the law of the testator's domicil; and if any part of the assets were to be retained, it would form an exception to the general rule, growing out of the duty of every government to protect its own citizens in the recovery of their debts. The intimation has been strong, that such an auxiliary administrator, in the case of a solvent estate, was bound to apply the assets found here to pay debts due here; and that it would be a useless and unreasonable courtesy, to send the assets abroad, and the resident claimant after them. But if the estate was insolvent, the question became more difficult. The assets ought not to be sequestered for the exclusive benefit of our own citizens. In all civilized countries, foreigners, in such a case, are entitled to prove their debts, and share in the distribution. The court concluded that the proper course in such a case would be, to retain the funds, cause them to be distributed pro rata, according to our own laws, among our own citizens, ha»ing regard to all the assets, and the whole aggregate amount of debt here and abroad, and then to remit the surplus abroad to the principal administrator. Such a course was admitted to be attended with delay and difficulty in the adjustment; but it was thought to be less objectionable, than either to send our citizens abroad upon a forlorn hope, to seek for fragments of an insolvent's estate, or to pay them the whole of their debts, without regard to the claims of foreign creditors.*
• In the case ex parte Ryan, (Newfoundland Rep. 113.) it was held, that in the case of the insolvency of two brunches of the same firm, one in England, and the other in Newfoundland, the property in each country was exclusively divisible among the creditors who trusted the branch where the property was situated. The supreme court of Louisiana, in Gravillon v. Richards, 13 Louts. Rep. 293, followed the Massachusetts
A difficult question on the subject of the distribution of the property of intestates, arose in the K. B. in England,
doctrine, and declared that it was competent for the courts of probates in Louisiana, to order the remission of funds belonging to a foreigner domiciled in France, but dying at New-Orleans, to the representatives in France authorised to receive them, and that policy and justice required such a transmission, inasmuch as the creditors were in France, and none in Louisiana. In Davis v. Estey, 8 Pick. Rep. 475, it was held, that where the original administration was in another state, and that in Massachusetts only ancillary, aud the estate was insolvent, the creditor in Massachusetts was only entitled to a pro rata dividend, though the assets in Massachusetts were sufficient to meet his demand. In the case of these different administrations, each is deemed so far independent of the others, that property received under one, cannot be sued for under another, though it may at any time be within the jurisdiction of the latter. Currie v. Bircham, 1 Dosal, <J- Ryl. Rep. 35. Holcomb v. Phelps, supra, p. 431. n. c. Nor can a judgment against one, furnish a right of action against the other; for in contemplation of law, there is no priority between them. Lightfoot v. Bickley, 2 Rawie's Rep. 431. Story on the Conflict of Lawe, p. 434. 436, 437. In Mothland v. Wiseman, 3 Penn. Rep. 185, the subject was well discussed. It was held, that the liability of the administrator to account, and his title to the assets, was commensurate only with the jurisdiction of the authority that appointed him, and the trust was in exclusion of foreign interference, and was regulated by the law of the loci rei site. This principle was indispensable to the protection of the resident or domestic creditors, who were not to be sent abroad to assert their claims in foreign courts, so long as there were assets within the control of the domestic administration. The foreign courts might impair the priorities allowed by the domestic law, or bar claims by shorter statutes of limitation. The intestate's effects were to be collected and administered under the authority of the local jurisdiction, in which they were at his death, and with the permission to foreign creditors to participate in proportion to their debts, respect being had to the aggregate of the estate and debts, whether foreign or domestic. If there be no domestic claimants, or they be satisfied. then the local auxiliary administrator is to remit the assets, when collected, to the primary administrator at the place of the intestate's domicil, and to whom they rightfully belong for administration. This is not the case as to executors, whose title, flowing from the will, extends to the assets wherever found. The opinions of the Ch. J. in this case, and in the case of Miller's Estate, 3 Rawle, 312, are drawn with much precision and force; and the general American rule from these Pennsylvania cases, and from decisions in Massachusetts and South Carolina, seems to be, (and Mr. Justice Story, in his Commentaries on the Conflict of Laws , p. 423, comes to the same conclusion, and see, also supra, p. 420,) that the new administration in 1767, in the case of The King v. Hay.* A father and his *only daughter perished at sea, in *435
is made subservient to the rights of creditors, legatees, and distributees' resident within the country; and that the residunm was transmissible to the foreign country only when the final account had been settled in the proper domestic tribunal, upon the equitable principles, adopted in its laws. Some of the authorities above referred to, speak of the domestic legatees and distributees as being entitled, after creditors, to have their claims satisfied out of the assets arising within the authority of the ancillary administrator; but other cases, as Richards v. Dutch, 8 Mass. Rep. 500, Dawes v. Boyleston, 9 Ibid. 387, and Stevens v. Gaylord, 11 Ibid. 257, held, that they are to resort to the primary administration abroad, where the residuary assets are to be transmitted. The case of the Heirs of Porter v. Heydock, 6 Vermont Rep. 374, followed the principles declared in the cases of Dawes v. Head, and Harvey v. Richards, and decided, that it appertained to the courts in Vermont, when the ancillary administration was granted there, to settle and adjust the accounts of the administrator touching assets received in Vermont; and that it was discretionary in them to order distribution in Vermont, or remit the effects to the place of the principal administration for that purpose. It rested on courtesy and expediency alone, and it is the usual course to remit them; but it will not be adopted when the rights of those entitled to the estate would be endangered by it. So in Slatter v. Carroll, 2 Sandford's Ch. Rep. 573, a foreign resident owned lands in New-York, and conveyed them to a trustee there to sell and distribute the proceeds and remit the balance for distribution at the domicil. It was held that the court would direct the fund to be remitted, or retain and distribute it in New-York, according to the circumstances of the case, in reference to the convenience of creditors, and of the accounting parties. In the case of Fay v. Haven, 3 Metcalf, 109, being the latest case in Massachusetts, it was held that the assets received by a foreign executor or administrator in the foreign state where the testator resided, were to be administered in such state, and that under the ancillary administration in Massachusetts, he was not held to pay debts due to creditors in that state out of assets received abroad, though be had paid all the creditors elsewhere, and had the requisite balance in hand received from the assets in the state where the principal administration was granted. The creditors must resort to the tribunals of the foreign state. See the just criticisms of Mr. Justice Story on some of the American cases on this point, in his treatise on the Conflict of Laws, 2d edit. 429—432. In the -case of the Earl of Winchelsea v. Garetty, 2 Keen, 293, A. was domiciled -in England and died intestate leaving real estate in Scotland, and the bond-debts were paid by the heir out of the real estate, and it was held that
* 1 Blacks. Rep. 640.
the same vessel, and in one catastrophe, and a question suggested by the case was, who took under the
the heir was entitled to relief out of the personal estate in England, as being by the law of the domicil the primary fund for the payment of debts. This vexed subject of the distribution of assets being in different states, was discussed in Goodall v. Marshall in 11 N. H. Rep. 88 by Mr. Ch. J. Parker with his usual ability, and the result of the decision of the court was, that the laws of the place under which an ancillary or auxiliary administration was taken, governs the distribution of the assets in the payment of debts there, but that the distribution of the estate among the heirs and legatees is to be made according to the law of the domicil of the testator or intestate at his death. And if a person domiciled in another government dies leaving personal property in New-Hampshire and an ancillary administration is taken out there, and the estate be insolvent, all the creditors of the deceased are entitled to prove their claims and have the real as well as personal estate duly applied in satisfaction thereof, and they are entitled to pursue their claims in every government whore administration is taken and to avail themselves of all the estate of the debtor until fully paid.
The question of the payment of debts and distribution of the assets of testators and intestates, being in different jurisdictions, by trustees acting under the authority of different probate powers, primary and ancillary, has been frequently examined and discussed in our American courts with great learning and ability, and while the general principles are acknowledged in all of them, the difference seems to consist in the local application of some of them on minor points. The spirit of justice pervades them all, though it may be obtained dieerso intuitin and with more or less inconvenience. The most important cases may be perused with much profit and pleasureSuch are the cases referred to supra, p. p. 431—434, and more especially those of Hareey v. Richards, Dawes v. Head, Goodall v. Marshall, heirs of Porter v. Heydock, Holcomb v. Phelps, Mothland v. Wiseman, Carmiehael v. Ray, and Oraeillon v. Richards. Mr. More the learned editor of Lord Stair's Institutions, vol. i. note A. 8, states that great confusion would prevail unless the law of the domicil be held to be the rule of distribution, both in succession and in bankruptcy. The supreme court of the United States in Aspden v. Nixon, 4 Howard 467, has very much narrowed the doctrine and application of comity in the case of concurrent administrators in different governments over the assets of the same testator or intestate. A. was domiciled in England and died there leaving assets both in England and America, and letters testamentary were taken out in both countries, and the claim under each power was restricted to the limits of the country to which the letters extended, and it was considered that the Pennsylvania Executor could not rightfully transmit his assets to be distributed by the foreign jurisdiction, for that the suits were to be regarded as suits between different parties, and that the property in controversy was statute of distributions. If the father died first, the personal estate would have vested in the daughter, and, by her death, in her next of kin, who, on the part of the mother, was a different person from the next of kin on the part of the father. The right to succeed depended upon the fact which person died first, and that fact could not possibly be known, as the vessel perished at the same time. It was said to be the rule of the civil law, to found its presumptions on the relative strength, arising from the difference of age and sex of two persons; but these presumptions were shifting and unstable. The court did
different and the local laws different, and that the exercise of comity among different states was little more than a barren theory. This decision however it is to be observed, met the dissent of the Ch. Justice and of Mr. Mc Lean, and it cannot be received without much misgiving.
The Massachusetts Revised Statutes of 1835, part 2. tit. 4. ch. 70. sec. 21—26, have finally settled this question in that state. They direct, that if administration be taken out on the estate of a person who was of another state, or a foreigner, the estate after payment of debts, should be disposed of according to his will, if validly made according to the law of Massachusetts. If no will, the real estate descends according to the law of that state, and his personal estate is to be distributed according to the law of his domicil, after the payment of all debts for which he was liable in that state. The residue may be thus distributed by the probate court in which the estate is settled, or it may be transmitted to the executor or administrator, if any, in the place of the deceased's domicil, to be there disposed of, as the court, under the circumstances of the case, shall think best. If the deceased died insolvent, bis estate in Massachusetts is to be disposed of as far as practicable equally among his creditors there and elsewhere. His estate is not to be transmitted to the foreign executor, or administrator, until the domestic creditors have received their just proportion of all the estate, wherever found, applicable to the payment of common creditors; and the domestic creditors are to receive their just proportion before any other creditor shall be paid out of assets. After the domestic creditors have so received their just proportion, other creditors, who prove their debts, may then receive their proportion; but no oue is to receive more than would be dun to him, if the wholo was to be divided rateahly among all the creditors. The balance, if any, to be transmitted as aforesaid.
In Kentucky, the law of the domicil of the intestate is not regarded as to the succession to moveable property, so far as his creditors in that state are concerned. The administration for the benefit of creditors is regulated by the lex loci rei sitat. Warren v. Hall, 6 Dana, 452.