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that the non-liability of a foreign representative to suit in the courts of another jurisdiction is a matter personal with himself, being a privilege which may be waived; but some authorities hold that it is a matter of jurisdiction and that an executor or administrator can not confer jurisdiction by consent where suit is brought against him in a state other than that of his appointment.85

§ 1388. Judgment Against Administrator in One Jurisdiction of No Force Against Administrator in Another Jurisdiction.

A judgment against an ancillary administrator in the jurisdiction of his appointment is not competent evidence to show a right of action against the domiciliary executor or administrator in another state or affect the assets of the estate therein, and conversely a judgment against the domiciliary executor or administrator is of no greater force.86 The reason of the rule is that administrators in different jurisdictions are entirely independent of each other and a judgment against one can not affect the other

B. Mon. (Ky.) 136; Newark Savings Inst. v. Jones' Exrs., 35 N. J. Eq. 406; Ellis v. Northwestern Mut. L. Ins. Co., 100 Tenn. 177, 43 S. W. 766.

85 Jefferson v. Beall, 117 Ala. 436, 67 Am. St. Rep. 177, 23 So. 44; Flandrow v. Hammond, 13 App. Div. (N. Y.) 325, 43 N. Y. Supp. 143.

86 Stacy v. Thrasher, 6 How. (U. S.) 44, 12 L. Ed. 337; Jefferson v. Beall, 117 Ala. 436, 67 Am. St. Rep. 177, 23 So. 44; Johnston v. McKinnon, 129 Ala. 223, 29 So.

696; McGarvey v. Darnall, 134 III. 367, 10 L. R. A. 861, 25 N. E. 1005; Smith v. Goodrich, 167 Ill. 46, 47 N. E. 316; Elting v. First Natl. Bank, 173 Ill. 368, 50 N. E. 1095; Shinn's Estate, 166 Pa. St. 121, 45 Am. St. Rep. 656, 30 Atl. 1026, 1030; State v. Fulton, (Tenn.) 49 S. W. 297.

Compare: Laughlin v. Solomon, 180 Pa. St. 177, 57 Am. St. Rep. 633, 36 Atl. 704; Fugate v. Moore, 86 Va. 1045, 19 Am. St. Rep. 926, 11 S. E. 1063; Garland's Admr. v. Garland's Admr., 84 Va. 181, 4 S. E. 334.

or any assets which he might have received. There is no privity between such administrators, and the rule is not altered even though the same person is granted original administration in one jurisdiction and ancillary administration in another.87

§ 1389. What Court May Compel the Personal Representative

to Account.

The rights and liabilities of an executor or administrator are purely representative and exist only by force of official character and are limited to the jurisdiction wherein the appointment is made. Such jurisdiction reserves to itself full and exclusive authority over all assets of the estate within its boundaries.88 The established rule is that an executor or administrator must settle his accounts in the court exercising probate jurisdiction wherein he receives his appointment,89 and the courts of another jurisdiction have no authority to compel him to account regarding any assets coming into his hands in his representative capacity under an appointment by another court.90 The rule extends to all assets which

87 Johnson v. Powers, 139 U. S. 156, 159, 35 L. Ed. 112, 11 Sup. Ct. 525; Johnson v. McKinnon, 129 Ala. 223, 29 So. 696.

An administrator in New York was held a stranger to a judgment against the administrator in Michigan, although the same individual was the representative in both states.-Johnson v. Johnson, 63 Hun (N. Y.) 1, 4, 17 N. Y. Supp. 570.

88 Reynolds V. Stockton, 140 U. S. 254, 35 L. Ed. 464, 11 Sup. Ct. 773; Hatchett v. Berney, 65 Ala.

39; Braithwaite v. Harvey, 14 Mont. 208, 43 Am. St. Rep. 625, 27 L. R. A. 101, 36 Pac. 38; Hopper v. Hopper, 125 N. Y. 400, 12 L. R. A. 237, 26 N. E. 457; State v. Fulton, (Tenn.) 49 S. W. 297.

89 Musselman's Appeal, 101 Pa. St. 165.

As to the power of a court of equity to compel a foreign executor or administrator to account, see § 1386.

90 Lewis v. Parrish, 115 Fed. 285, 53 C. C. A. 77; Clopton v. Booker, 27 Ark. 482; Elting v.

properly come into the hands of an executor or administrator in his official capacity. Where a domiciliary administrator receives assets of the estate in another jurisdiction through voluntary payment or delivery to him, he must account for the same as though they had been collected in the jurisdiction of his appointment. Although he may thereafter take out ancillary letters in the state wherein such assets were paid or delivered to him, his duty to account for such assets is under his principal and not under his ancillary appointment.91 A court of equity, however, in certain cases, in order to conserve the estate and protect those entitled to its benefits, has authority to compel an accounting from a foreign representative who brings assets of the estate within the jurisdiction of the court.92

§ 1390. Conclusiveness of Order Settling Account or Discharging Administrator.

The Constitution of the United States (Art. 4, § 1) provides that full faith and credit shall be given in each state to the judicial proceedings of every other state. The rule is that, subject only to the inquiry as to the jurisdiction of the court rendering the judgment, and impeachment for fraud, a judgment rendered in one state should be given full faith and credit in all other states.93

Biggsville First Natl. Bk., 173 Ill. 368, 50 N. E. 1095; Snyder v. Hochstetler, 88 Iowa 621, 55 N. W. 573; Dawes v. Boylston, 9 Mass. 337, 6 Am. Dec. 72; Parsons v. Lyman, 20 N. Y. 103; Musselman's Appeal, 101 Pa. St. 165; Egan v. Wirth, 26 R. I. 363, 58 Atl. 987.

91 Parsons v. Lyman, 20 N. Y. 103. See, also, McCully v. Cooper,

114 Cal. 258, 55 Am. St. Rep. 66,
35 L. R. A. 492, 46 Pac. 82; Schlu-
ter v. Bowery Sav. Bank, 117
N. Y. 125, 15 Am. St. Rep. 494,
5 L. R. A. 541, 22 N. E. 572.
92 See 1386.

93 Cole v. Cunningham, 133 U. S. 107, 33 L. Ed. 538, 10 Sup. Ct. 269; Simmons v. Saul, 138 U. S. 439, 34 L. Ed. 1054, 11 Sup. Ct. 369.

94

The judgment of a court of competent jurisdiction can not be impeached collaterally for error or irregularity, yet it can be attacked for want of jurisdiction, or fraud or imposition in securing the judgment. Subject to such considerations, the settlement of the account of an executor or administrator by the court wherein he was appointed is conclusive upon all other courts.95 But the settlement of the account of an administration in the court of his appointment, or a judgment finally discharging him as administrator,97 may be attacked in the courts of another state on the ground that the order settling the account or securing the discharge was obtained by fraud practiced upon the heirs and the court. §1391. Distribution of Residue After Ancillary Administra tion.

96

The distribution of an estate should naturally be had under the supervision of the court of the domicile of the decedent wherein original administration was granted. The law of the domicile of the decedent governs the distribution, and the construction of the will, if any, as to personalty, and the domicile is the proper forum wherein distribution should be had.98 However, the jurisdiction of the courts of one state can not be usurped by foreign tribunals, and the general rule is that the residue of an estate subject to ancillary administration, after the pay

94 Dobson v. Pearce, 12 N. Y. 156, 62 Am. Dec. 152.

95 Clark V. Blackington, 110 Mass. 369; Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032; Matter of Crawford's Estate, 11 O. C. D. 605, 21 Ohio Cir. Ct. R. 554.

96 Clark Mass. 369.

V. Blackington, 110

97 Coleman v. Howell, 131 N. C. 125, 42 S. E. 555.

98 Young v. Wittenmyre, 123 Ill. 303, 14 N. E. 869; Fletcher's Admr. v. Sanders, 7 Dana (Ky.) 345, 32 Am. Dec. 96; Jennison v. Hapgood, 10 Pick. (Mass.) 77.

99

ment of debts and expenses, should be delivered to the domiciliary representative by the ancillary administrator only after the settlement of the final account of the latter. And as to whether or not there should be a distribution under the ancillary administration to those entitled ultimately to receive the property, is a matter largely within the discretion of the court, to be decided according to the circumstances of the particular case.1 The claims of creditors in the jurisdiction wherein ancillary administration is had should be satisfied before the assets of the estate are transferred to the domiciliary representative.2 And where there are no creditors in the jurisdiction of the domicile of the decedent and there are parties entitled to a distribution of the property in the jurisdiction wherein the ancillary administration is had, the court may properly refuse to cause the residue to be transmitted to the domiciliary representative.3 But where distribution is had under ancillary administration, the distribution of the personalty must be according to the law of the domicile of the decedent.*

99 Wright v. Phillips, 56 Ala. 69; Gibson v. Dowell, 42 Ark. 164; Estate of Gable, 79 Iowa 178, 9 L. R. A. 218, 44 N. W. 352; McIntire v. Conrad, 93 Mich. 526, 53 N. W. 829; Parsons v. Lyman, 20 N. Y. 103; Jones v. Jones, 39 S. C. 247, 17 S. E. 587, 802.

1 Wright v. Phillips, 56 Ala. 69; Dalrymple v. Gamble, 66 Md. 298, 7 Atl. 683, 8 Atl. 468; Newell v. Peaslee, 151 Mass. 601, 603, 25 N. E. 26; Matter of Dunn, 39 App. Div. 510, 513, 57 N. Y. Supp. 444;

Matter of Hughes, 95 N. Y. 55; Moses v. Hart's Admr., 25 Gratt. (Va.) 795.

2 Smith v. Howard, 86 Me. 203, 41 Am. St. Rep. 537, 29 Atl. 1008; Newell v. Peaslee, 151 Mass. 601, 25 N. E. 26; Cowden v. Jacobson, 165 Mass. 240, 43 N. E. 98.

8 In re Welles' Estate, 161 Pa St. 218, 28 Atl. 1116, 1117.

4 Potter v. Brown, 5 East 124; Thornton v. Curling, 8 Sim. 310; Hewitt v. Cox, 55 Ark. 225, 15 S. W. 1026, 17 S. W. 873; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61;

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