due to the deceased, will his receipt be a sufficient discharge to the debtor, supposing that that jurisdiction was not one in which the debt could have been recovered, and another administrator afterwards sues for the debt in the proper court for its recovery? On principle, it should not be a sufficient discharge.

In Daniel v. Luker, 1571, Dyer 305, Dalison 76, it was held that a release by one administrator was no answer to a suit in another jurisdiction, to the administrator in which the debt was thought more properly to belong; but the question between the two administrators was thought to depend on the locality of the deed at the time of the death, a notion exploded by Whyte v. Rose, quoted under § 88. In Shaw v. Staughton, 1670, 3 Keble 163, it seems to have been thought that the question whether even a recovery by one administrator was an answer to an action by another depended on the determination to which of the two the debt more properly belonged.

Besides the property which under the doctrine thus far developed passes primarily by an English grant, the wide extent which is given in this country to the liability of an administrator and to judicial administration of the effects of a deceased person may lead to the result that property is ultimately deemed to be comprised in such a grant, although it has been reduced into possession since the death under a foreign title or at least without any assistance from the English title.

§ 91. If a foreign administrator sends or brings to England any personal assets of the deceased, for his administration of which he has not yet accounted in the jurisdiction from which he derives his title, and which he has not caused by any specific appropriation to lose their character as part of the deceased's estate, a creditor or beneficiary may maintain an action here for their judicial administration, and an injunction and receiver will be granted in case of need to prevent their being removed out of the jurisdiction. But in accordance with § 57 an English administrator must be constituted and made a party to the action, the assets administered in which will be deemed to have passed by the grant to him.

Lowe v. Fairlie, 1817,2 Mad. 101, Plumer: Logan v. Fairlie, 1825, 2 S. & St. 284, Leach: Sandilands v. Innes, 1829, 3 Sim. 263, Shadwell: Bond v. Graham, 1842, 1 Hare, 482, Wigram: Hervey v. Fitzpatrick, first motion, 1854, Kay 421, Wood; receiver granted.

In Anderson v. Caunter, 1833, 2 My. & K. 763, which was a suit by a creditor

against the Indian executrix of the debtor's Indian executor, who it was charged had possessed assets of the debtor, Leach held that the presence of an English administrator of that executor was unnecessary, saying that his estate could not be administered in the suit. But in Tyler v. Bell, 1837, 2 My. & Cr. 89, 110, lord Cottenham pointed out that this was irreconcilable with what the same judge had said in Logan v. Fairlie.

In Arthur v. Hughes, 1841, 4 Beav. 506, Langdale, there had been such a specific appropriation as to take the case out of this §. The principle was thus stated by Wigram in Bond v. Graham: "If an executor or administrator has so dealt with the fund that by reason of such dealing it has ceased to bear the character of a legacy or share of a residue, and has assumed the character of a trust fund in a sense different from that in which the executor or administrator held it-if it has been taken out of the estate of the testator and appropriated to or made the property of the cestui que trust-it may not be necessary that the cestui que trust should bring before the court the personal representative of the testator in a suit to recover that part of the estate."

§ 92. So also any personal liability for a breach of trust in dealing with any assets of the deceased, which under the ordinary rules governing the competence of the English court may be enforceable against a foreign administrator in this country, may be enforced by or in the presence of an English administrator of the deceased, the fruits of such action being in fact an asset of the deceased recoverable here.

Anderson v. Caunter, which as to this point is not impugned by Tyler v. Bell : see these cases referred to under the preceding §. Twyford v. Trail, 1834, 7 Sim. 92, Shadwell; decree against estates of Hall and J. A. Simpson. The last case also shows that the English executor of a foreign executor is not executor of the original testator, as the English executor of an English executor is.

§ 93. But the mere presence in England of a foreign administrator, who is accountable in the jurisdiction from which he derives his title for assets received by him, but who has not so dealt with those assets as to make himself personally liable for a breach of trust, will not enable any one to maintain an action against him for judicial administration here, although for that purpose the plaintiff has procured an English grant.

Jauncy v. Sealey, 1686, 1 Vern. 397, Jeffreys: Hervey v. Fitzpatrick, second motion, 1854, Kay 434, Wood.

§ 94. And although a foreign heir who has accepted the succession

without benefit of inventory may probably be sued in England on the personal obligation he has thereby assumed towards the creditors of the deceased, and, if so, an English grant of administration is not necessary for that purpose, yet no action can be brought against him here for judicial administration, because his liability is not in respect

of assets.

Beavan v. Hastings, 1856, 2 K. & J. 724, Wood.

§ 95. If an English administrator, without obtaining a foreign grant of administration, succeeds in reducing assets of the deceased into possession abroad, he will be liable to account for them in a judicial administration in this country, or on an issue upon assets in answer to the action of a creditor independent of judicial administration, just as if they had been received by authority of the English grant.

Dowdale's case, 1604, 6 Coke 46b; sub nom. Richardson v. Dowdele, Cro. Ja. 55; Common Pleas, on an issue upon assets, Walmsley dissenting. Atkins v. Smith, 1740, 2 Atk. 63, Hardwicke; where it would seem from the obscure note that the doctrine was applied to a case of judicial administration. Story understands that the English executor who in Dowdale's case was made liable for assets received by him in Ireland had received them under an Irish grant of administration, and accordingly treats that decision as irreconcilable with the modern ones: Conflict of Laws, § 514 a. If such were the fact, the decision would not be reconcilable with the doctrine of § 93, since it can scarcely be held that any difference ought to be made in the position of a person under a foreign grant by the circumstance of his holding an English grant as well: but I do not find the Irish grant mentioned in either of the reports of Dowdale's case. Story considers that an administrator who obtains assets of the deceased in a country where he has no grant will be liable in that country as executor de son tort: Conflict of Laws, § 514. This may well be true, and yet he may be also liable in the country from which he derives his grant.

In Stirling-Maxwell v. Cartwright, 1879, L. R., W. N. 1879, p. 73, the court of appeal affirmed the decision of Hall (1878, L. R., 9 Ch. D. 173) who had held that if an English probate or letters of administration are not expressly limited to the English assets, no such limitation will be introduced into a judgment for administration founded on them, although the deceased was domiciled abroad, unless there has been a decree for judicial administration abroad, as to which case the judge reserved his opinion. In Sandilands v. Innes, 1829, 3 Sim. 263 (see above, under § 91), Shadwell said that the account of the assets brought to England would incidentally make it necessary to take an account of all the assets possessed under the foreign administration. These authorities can hardly be considered as establishing either that there is no dis

good

tinction between the case of an English administrator who has received foreign assets under a foreign grant and that of one who has received such assets without a foreign grant, or that the liability of a foreign administrator to account in England for the assets received under his foreign grant can depend on whether he has or has not an English grant also.

Principal and Ancillary Administrations, and Questions arising in Administration prior to the Distribution of the Surplus.

When the estate of a deceased person includes both personalty in England and property elsewhere, so that there are or may be concurrent administrations in different countries, that in the country of the deceased's domicile is called the principal administration and the others are called ancillary. It has been seen at p. 88 that an English administration consists of two parts, first, realizing the personal estate of the deceased and paying his debts, and secondly, distributing the surplus among those who are entitled by will, or by law in case of Intestacy. The first part belongs to an ancillary administration as well as to a principal one, for the English courts, maintaining the paramount authority of the situs over the assets themselves as distinct from the beneficial interest in their clear surplus, a principle which we have already seen carried out in the necessity for an English grant in order to the possession of the English assets, consistently make it their rule to allow creditors to seek their remedy in England against the English assets, notwithstanding that the administration in this country is ancillary. That rule may be made the subject of the next §.

§ 96. An English grant of probate or administration renders the executor or administrator liable to account in an English court, to creditors of the deceased, for the assets received under it; so that even if the deceased was domiciled abroad, such executor or administrator cannot be required to hand over, and cannot safely hand over, any part of those assets to the heir or administrator of the domicile, until they have been cleared of debt.

But it is much less clear how far the second part of the duty of

Vadmi

administration, the distribution of the surplus, is held to be incumbent on an English personal representative when the deceased died domiciled abroad. Since the law of the domicile, and the authority of the court of the domicile where it has been consulted, are admitted to govern the rights in the surplus (§§ 54, 55), much may be said for the expediency of requiring that all questions relating to such rights shall be brought before the court of the domicile. Even in the case of intestacy, the law of succession must be best known to the courts of the country where it is in force; still more, where a will is concerned, than which no class of documents is more fertile in legal disputes, ought the courts of that country to be appealed to by the law of which it must be interpreted and the validity of its dispositions ascertained.

§ 97. I think it may be laid down that where no action for administration is pending in England, and there is in the deceased's domicile either a personal representative in the English sense, charged with the distribution of the property, or an heir or universal legatee holding the property for his own benefit subject to actions by particular legatees, an English executor or administrator who pays over to such person the surplus of the English assets after clearing the estate will be held in England to be discharged by such payment.

In Pipon v. Pipon, 1744, Ambl. 25, lord Hardwicke refused to entertain a suit by persons claiming as next of kin the clear English assets of an intestate domiciled in Jersey, not merely because the general administrator was not before the court, but also saying "the plaintiffs are wrong in coming into this court for an account of only part, for by the statute [of distributions] an account must be decreed of the whole ;" and "if I was to direct an account of the whole, the courts in Jersey would act contrary, which would be to involve people in great difficulties." It is true the reporter makes lord Hardwicke add, "this case differs from where a specific part consists of chattels here in England;" but that dictum is not reconcilable with the rest of the judgment, and I suspect the real words were "this case differs from a specific legacy of chattels here in England." In Enohin v. Wylie, 1862, 10 H. L. 1, it was laid down by lord Westbury that where the domicile of the deceased was foreign, not only the English executors or administrators, but even the English court, supposing the estate here to have been under judicial administration, ought to hand over the surplus of the English assets to the persons who are entrusted with the administration of the estate in the domicile, in order to be distributed by them among the persons