In some states by statute a will duly proved and valid to pass title to real estate therein is sufficient to pass title to real estate in another jurisdiction upon the filing and recording of a duly certified copy of such will or of certified copies of the will and the record of probate. In the absence of statute, however, the rule is that a will, although duly admitted to probate in one jurisdiction, will not pass real property in another jurisdiction unless executed with all the formalities required in such other jurisdiction regarding devises of real estate.10

§ 1370. Foreign Executors May Be Conferred Local Rights by Statute.

In many of the jurisdictions of the United States statutes have been enacted which allow foreign executors or administrators to maintain actions therein under conditions prescribed by the statute creating such right. These statutes vary greatly, some applying only to particular causes of action, others requiring various conditions such as filing a certified copy of the will, if any, a certified copy of the probate record, the giving of a bond, or the like. The statutes of the particular jurisdiction involved

for taking possession of local assets, see § 1263.

9 O'Brien v. Woody, 4 McLean (U. S.) 75, 18 Fed. Cas. No. 10398; Currell v. Villars, 72 Fed. 330; Apperson v. Bolton, 29 Ark. 418.

See Synopses of Statutes, Appendix, Pt. One, this volume.

As to statutory regulations regarding foreign wills, see § 277.

As to recording certified record of the probate of a foreign will, see $281.

As to ancillary administration, see § 282.

10 Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Richards v. Miller, 62 Ill. 417; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am. Dec. 321; Barstow v. Sprague, 40 N. H. 27; Nelson v. Potter, 50 N. J. L. 324, 15 Atl. 375; Moody v. Johnson, 112 N. C. 798, 17 S. E. 578; In re Clayson's Will, 24 Ore. 542, 34 Pac. 358; Holman v. Hopkins, 27 Tex. 38.

must be consulted in all cases and strictly followed. The effect of complying with the statutory requirements or of taking out ancillary letters of administration places a foreign executor or administrator in the same position and with the same rights and with the same power to prosecute actions as are vested in any representative locally appointed.11

§ 1371. Who May Apply for Ancillary Administration.

The question as to who are entitled to ancillary letters of administration is largely regulated by statute in the various jurisdictions, but usually the right to such administration is accorded to those who are entitled thereto by the law of the decedent's domicile, thus the domiciliary representative generally has the preference.12

While it has been said that the representative appointed in the domicile of the decedent is not required to apply for ancillary administration in other jurisdictions wherein property of the estate may be located,18 yet the creditors of the decedent have the right to have the assets. of the estate collected in order that they may be applied in satisfaction of their claims; and it is the duty of the domiciliary executor or administrator to either administer the assets of the estate in all jurisdictions or see that ancillary administration is had in other states wherein property of the estate may be found.1 If the

11 Hopper v. Hopper, 125 N. Y. 400, 12 L. R. A. 237, 26 N. E. 457. 12 Goods of Vannini, (1901) P. 330; Goods of Meatyard, (1903) P. 125; Clark v. Holt, 16 Ark. 257; Matter of Bergin's Estate, 100 Cal. 376, 34 Pac. 867; Matter of Miller's Estate, 92 Iowa 741, 61 N. W. 229; Dalrymple v. Gamble, 66 Md. 298,

7 Atl. 683, 8 Atl. 468; Pinney v. McGregory, 102 Mass. 186.

13 Sanders v. Jones, 43 N. C. 246.

14 Ramsay v. Ramsay, 196 Ill. 179, 63 N. E. 618; Matter of Newell's Estate, 38 Misc. Rep. (N. Y.) 563, 77 N. Y. Supp. 1116.

domiciliary representative does not apply for ancillary administration, those interested in the estate or under the will, as the case may be, may apply for letters.15

§ 1372. When and How Application for Ancillary Administration May Be Made.

The application for the grant of administration of the local effects of a non-resident decedent may be made either prior or subsequent to the grant of administration in the jurisdiction of his domicile.16 If made prior thereto, application and proof will be required to be made as in the case of any original application for the probate of a will or of the grant of administration in the case of intestacy, jurisdictional facts being necessary to be shown as in other cases. Though the will of a decedent be first proved in a state other than that of his domicile, such probate is entitled to the same faith and credit as any such proceeding.17 If administration has previously been granted in the domicile of the decedent, such fact is usually established by filing in the local jurisdiction a certified copy of the record of probate of the jurisdiction of the domicile. Foreign wills may be proved by a certified copy of the will itself. This matter is regulated by statute in many states.18

15 Matter of Engle's Estate, 124 Cal. 292, 56 Pac. 1022; Appeal of Lawrence, 49 Conn. 411.

16 Bowdoin v. Holland, 10 Cush. (Mass.) 17; Burnley's Admr. v. Duke, 1 Rand. (Va.) 108.

17 Walton v. Hall's Estate, 66 Vt. 455, 29 Atl. 803.

III Com. on Wills-18

18 See § 282.

As to recording certified record of the probate of a foreign will, see § 281.

See Synopses of Statutes, Appendix, Pt. One, this volume.

§ 1373. Revocation of Ancillary Administration.

Where administration has been granted upon the local assets of the estate of a non-resident decedent and a valid will is thereafter admitted to probate in the jurisdiction of the decedent's domicile, it would seem that the grant of administration should be revoked in order that the will might be established and administration be had thereunder as if the will had been originally produced.19 If administration has been secured by fraud it unquestionably may be set aside.20 However, the rule seems to be that a grant of ancillary administration is not revoked because of the subsequent issuance of letters testamentary or of administration in the jurisdiction of the domicile of the testator.21 The reason is that the administration of the estate of a decedent lying within the bounds of one state and the granting of letters of administration regarding the property within its confines is vested in the courts of such state. Such courts have power and discretion in the matter of the appointment of executors or administrators, uncontrolled by foreign tribunals. The same principle applies to the removal of the appointee. If ancillary letters of administration be granted to a foreign executor, his power to administer the local assets is because of the local appointment. Should he be removed from his position of trust by the court of the decedent's domicile wherein his original appointment was made, such removal does not in itself work a revoca

19 Shephard v. Rhodes, 60 Ill. 301.

20 Broughton v. Bradley, 34 Ala. 694, 73 Am. Dec. 474: Estate of Mackin, 14 Phila. (Pa.) 328.

21 Clark v. Holt, 16 Ark. 257; Cosby v. Gilchrist, 7 Dana (Ky.) 206; Burnley's Admr. v. Duke, 1 Rand. (Va.) 108.

tion of the grant to him of ancillary letters of administration.22

§1374. Basis of and Reason for Ancillary Administration.

Where either real or personal property of an estate is located within a jurisdiction other than that of the domicile of the decedent, the courts of the state wherein such property is found may appoint a representative to administer the property of the estate within the jurisdiction, irrespective of any domiciliary appointment. This is done for the purpose of conserving the estate and of satisfying the claims of creditors,28 the rule being, unless altered by statute, that a domiciliary executor or administrator can enforce no rights regarding the estate outside of the jurisdiction of his appointment. Even though the domiciliary representative may be authorized by statute to collect the assets within the local jurisdiction, yet the granting of ancillary administration is a matter within the discretion of the court.24 The principle is well settled that the power and authority of an executor or administrator over the estate of a decedent is confined to the sovereignty by virtue of whose laws he is appointed.25 Beyond the confines of the jurisdiction of the

22 American Missionary Assn. v. Hall, 138 Mich. 247, 101 N. W. 535. Compare: Matter of Gilleran, 50 Hun (N. Y.) 399, 3 N. Y. Supp. 145, decided under N. Y. statute.

Where the domiciliary administrator was granted ancillary letters in another jurisdiction, the revocation of his letters in the jurisdiction of the domicile did not revoke his ancillary letters.Huntington v. Moore, 1 N. M. 489.

23 Matter of Gennert's Estate, 96 App. Div. (N. Y.) 8, 89 N. Y. Supp. 37; Maas v. German Savings Bank, 176 N. Y. 377, 98 Am. St. Rep. 689, 68 N. E. 658.

24 Epping v. Robinson, 21 Fla. 36; Moore v. Tanner's Admr., 5 T. B. Mon. (21 Ky.) 42, 48, 27 Am. Dec. 35.

25 Doe v. McFarland, 9 Cranch (U. S.) 151, 3 L. Ed. 687; Gilman v. Gilman, 54 Me. 453; Beaman