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resident decedent are found. The courts of such state should not enforce the recovery of debts due the foreign decedent without such ancillary administration, otherwise the assets could be converted into money, taken without the state and distributed in a foreign jurisdiction, which would compel local creditors to go into such foreign jurisdiction to collect their claims.”1

But the personal representative of the decedent, appointed in the jurisdiction of the decedent's domicile, is entitled to the possession of the personal property of the estate wheresoever situated and, having title thereto, he is authorized to demand possession of chattels and payment of choses in action in other jurisdictions, although he may not be able to enforce his demands by suit. If, however, there are no conflicting claims, or debts of the decedent to be paid in the jurisdiction wherein the demand is made or the personalty situated, a voluntary surrender of the property to the foreign representative of the decedent or the payment of debts to him is held valid.72 Should ancillary administration be

71 Wilkins v. Ellett, 108 U. S. 256, 27 L. Ed. 718, 2 Sup. Ct. 641; Brown, Jr., v. Smith, 101 Me. 545, 115 Am. St. Rep. 339, 64 Atl. 915; Maas v. German Savings Bank, 176 N. Y. 377, 98 Am. St. Rep. 689, 68 N. E. 658; Appeal of Gray, 116 Pa. St. 256, 11 Atl. 66, 70; Laughlin v. Solomon, 180 Pa. St. 177, 179, 57 Am. St. Rep. 633, 36 Atl.

704.

An ancillary administrator has the right to the possession of the assets of the decedent within the state wherein he is appointed, and may recover from a domiciliary

administrator the possession of a certificate of deposit in an insolvent bank situated within the state, and which the receiver of the bank had refused to allow as a valid claim.-McCully v. Cooper, 114 Cal. 258, 55 Am. St. Rep. 66, 35 L. R. A. 492, 46 Pac. 82.

72 Wyman v. United States, 109 U. S. 654, 656, 27 L. Ed. 1068, 3 Sup. Ct. 417; Equitable Life Assur. Assoc. v. Vogel's Ex'x, 76 Ala. 441, 52 Am. Rep. 344; Selleck v. Rusco, 46 Conn. 370; Citizens' Natl. Bank v. Sharp, 53 Md. 521; Schluter v. Bowery Savings Bank,

granted to one other than the personal representative appointed in the jurisdiction of the decedent's domicile, the local appointee should disclose his appointment to persons within the state owing debts to the estate or having custody of its assets, and reduce the property of the estate to possession. He should act with reasonable dispatch; he can not be permitted to remain silent and without objection allow the domiciliary representative to take possession of the assets of the estate and remove them beyond the jurisdiction, and then recover them or their value from those who surrendered them in good faith and without notice of his appointment. The fact of the local grant of ancillary administration is not such constructive notice as to change those otherwise acting in good faith.73

§ 1385. Personal Representative May Be Sued Only in Jurisdiction Wherein He Is Appointed.

An administrator is bound to account for all assets which he receives in his representative capacity to the proper tribunal of the jurisdiction wherein he derives his authority, and the courts of other states have no right to control or interfere with the application of such assets. An administrator appointed in one state, being unable to sue in his official capacity in the courts of another state, is not liable in his official capacity to a suit in the courts of the latter state by a claimant against the estate." The

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rule applies even though the foreign administrator may, after his appointment, take up his residence in such other state and bring assets of the estate within its jurisdiction.75

To allow a judgment to be secured against an administrator in his official capacity in the courts of a jurisdiction other than that wherein he is appointed would in effect be a direction that he pay the judgment out of assets which are under the jurisdiction of the court of another state, and would be an interference with the jurisdiction of such court.76

Not only can a suit against an executor or administrator in his official capacity be brought in no other courts than those of the state wherein he is appointed, but a judgment against him in his representative capacity can have no effect beyond the confines of such state. Beyond such jurisdiction the executor or administrator can exercise no authority or do or omit any act which will affect the due administration of the estate under the authority of the court which appointed him. No consent can extend his limited powers to extraterritorial acts which may result in a judgment against the assets of the estate. He has no authority to prosecute suits in a foreign jurisdiction except by permission and authority of such jurisdiction and only as to assets of the estate therein, and a

156, 35 L. Ed. 112, 11 Sup. Ct. 525; Jefferson v. Beall, 117 Ala. 436, 67 Am. St. Rep. 177, 23 So. 44; Turner v. Risor, 54 Ark. 33, 15 S. W. 13; Hedenberg v. Hedenberg, 46 Conn. 30, 33 Am. Rep. 10; Davis v. Smith, 5 Ga. 274, 47 Am. Dec. 279; Judy v. Kelley, 11 Ill. 211, 213, 50 Am. Dec. 455; Brai

thwaite v. Harvey, 14 Mont. 208, 43 Am. St. Rep. 625, 27 L. R. A. 101, 36 Pac. 38.

75 Hedenberg v. Hedenberg, 46 Conn. 30, 33 Am. Rep. 10.

76 McGarvey v. Darnall, 134 Ill. 367, 10 L. R. A. 861, 25 N. E. 1005; Burton v. Williams, 63 Neb. 431, 88 N. W. 765.

good objection to a suit therein brought against him in his representative capacity may be made on the ground of lack of jurisdiction."

In many jurisdictions statutes have been enacted authorizing a foreign executor or administrator to bring suit in the local courts regarding assets within their jurisdiction. Such statutes, while authorizing a foreign representative to sue, do not make such foreign representative liable to be sued locally by claimants of the estate.78

§ 1386. The Same Subject: Exceptions to Rule: Suits in Equity.

There is an apparent exception to the rule that an executor or administrator can be sued only in the jurisdiction of his appointment, as where, by taking possession of foreign assets, he is held liable as an executor de son tort; but this exception is not universal.79 And it is held that equity has jurisdiction to prevent waste and to preserve the property for its proper purposes where a foreign representative brings the assets of the estate into the local jurisdiction and is there guilty of fraud, waste or mismanagement whereby those entitled to the benefits of the estate may be irreparably damaged.80 However, a foreign representative can not be enjoined by a local court of equity unless he is within the jurisdiction of

77 Jefferson v. Beall, 117 Ala. 436, 67 Am. St. Rep. 177, 23 So. 44.

78 Vaughan v. Northrup, 15 Pet. (U. S.) 1, 10 L. Ed. 639; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Sloan v. Sloan, 21 Fla. 589; Burton v. Williams, 63 Neb. 431, 88 N. W. 765.

79 See § 1263.

80 Anderson v. Caunter, 2 Myl.

& K. 763; Colbert v. Daniel, 32 Ala. 314; Falke v. Terry, 32 Colo. 85, 75 Pac. 425; Gates v. McClenahan, 124 Iowa 593, 100 N. W. 479; Hussey v. Sargent, 116 Ky. 53, 75 S. W. 211; Holzer v. Thomas, 69 N. J. Eq. 515, 61 Atl. 154; Collins v. Steuart, 2 App. Div. (N. Y.) 271, 37 N. Y. Supp. 891.

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such court,81 and it is essential that assets of the estate be within the jurisdiction of the court.82 And a court of equity may compel a foreign representative who brings the assets of the estate within the jurisdiction of the court, to account for the same where, by reason of the insufficiency of the bond of the foreign representative, or the insolvency of the sureties, or by reason of fraud, mismanagement, or some other equitable consideration, irreparable loss and damage will be suffered by the creditors and distributees of the estate unless relief be granted. Equity in such a case does not necessarily interfere with the functions of the probate court of another jurisdiction, but charges the foreign representative as trustee for those entitled to receive the assets in his possession.88

§1387. The Same Subject: Voluntary Submission to Jurisdiction.

Where all parties without objection submit the matter in controversy to a court having jurisdiction of the subject matter and the cause regularly proceeds therein to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of the court, even though the case be taken into it by appeal from an inferior court which did not have jurisdiction of the subject matter.84 The reason of the rule just stated is

81 Kanter v. Peyser, 51 N. Y. Super. Ct. 441.

82 Garden v. Hunt, Cheves Eq. (S. C.) 42; Fugate v. Moore, 86 Va. 1045, 19 Am. St. Rep. 926, 11

S. E. 1063.

83 Lewis v. Parrish, 115 Fed. 285, 53 C. C. A. 77; Atchison's Heirs v. Lindsey, 6 B. Mon. (Ky.)

86, 43 Am. Dec. 153; Brownlee v Lockwood, 20 N. J. Eq. 239, 255; Alger v. Alger, 31 Hun (N. Y.) 471; Tunstall v. Pollard's Admr., 11 Leigh (Va.) 1.

84 In re Crawford's Estate, 68 Ohio St. 58, 96 Am. St. Rep. 648, 67 N. E. 156. To the same effect, see Davis v. Connelly's Exrs., 4

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