A difficult question on the subject of the distribution of the property of intestates arose in the K. B. in England, in 1767,

who trusted the branch where property was situated. The Supreme Court of Louisiana, in Gravillon v. Richard, 13 Louis. 293, followed the Massachusetts doctrine, and declared that it was competent for the courts of probate 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 authorized 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. 475, it was held, that where the original administration was in another state, and that in Massachusetts only ancillary, and 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 Dowl. & Ryl. 35. Holcomb v. Phelps, supra, p. 431, n. c. Story's Confi. of Laws, § 518. Nor can a judgment against one furnish a right of action against the other; for, in contemplation of law, there is no privity between them. Brodie v. Bickley, 2 Rawle, 431. Story on the Conflict of Laws, § 522. In Mothland v. Wieman, 3 Penn. 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 belonged, 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 C. 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, § 513, comes to the same conclusion, and see also supra, p. 420,) that the new administration is made subservient to the rights of creditors, legatees, and distributees, resident within the country; and that the residuum 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 cred

But a judgment in favor of the principal administrator is a bar to an action for the same cause against an ancillary administrator in another state. Goodall v. Marshall, 14 N. Hamp 161. See Hill v. Tucker, 13 How. U. S. 458.

in the case of The King v. Hay. (b) A father and his * 435 * only daughter perished at sea, in the same vessel and in

itors, 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. 506, Dawes v. Boylston, 9 Idem. 337, and Stevens v. Gaylord, 11 Idem. 256, 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, 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.3 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 Sanford's Ch. 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 he 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, § 514 b. In the case of the Earl of Winchelsea v. Garretty, 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 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. Hamp. 88, by Mr. C. 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 intestato 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 govern

(b) 1 Blacks. 640.

3 Lawrence v. Kitteridge, 21 Conn. 577.

• Ordronaux v. Helie, 3 Sandf. Ch. 512.

one catastrophe; and a question suggested by the case was, who took under the statute of distributions. If the father died

ment where 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 diverso intuitu, and with more or less inconvenience. The most important cases may be perused with much profit and pleasure. Such are the cases referred to, supra, pp. [431-434,] and more especially those of Harvey v. Richards, Dawes v. Head, Goodall v. Marshall, Heirs of Porter v. Heydock, Holcomb v. Phelps, Mothland v. Wiseman, Carmichael v. Ray, and Gravillon v. Richard. 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 the distribution, both in succession and in bankruptcy. The Supreme Court of the United States, in Aspden v. Nixon, 4 How. U. S. 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 the suits were to be regarded as suits between different parties, and that the property in controversy was 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 C. Justice and of Mr. McLean, and it cannot be received without much misgiving.

The Massachusetts Revised Statutes of 1836, part 2, tit. 4, ch. 70, secs. 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, his 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 the assets. After the domestic

5 Loomis v. Farnum, 14 N. Hamp. 119. See Laws of N. Hamp. c. 1110, (1851.)

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 not decide the question. The arguments on each side were equally ingenious and inconclusive. Lord Mansfield recommended a compromise, as he said there was no legal principle on which he could decide it. The same question arose again in the Prerogative Court, in 1793, in Wright v. Sarmuda. (a) The husband, wife, and children all perished together in a vessel which foundered at sea; and Sir William Wynne, after a long and learned discussion, held it to be the most rational presumption that all died together, and that none could transmit rights to another. So, again, in Taylor v. Diplock, in 1815, (b) in a like case, Sir John Nicholl assumed that the parties (who were husband and wife) perished at the same moment; and he could not decide on any survivorship in the case, and consequently granted administration to the representatives of the husband. (c) The English law has hitherto

creditors have so received their just proportion, other creditors, who prove their debts, may then receive their proportion; but no one is to receive more than would be due to him if the whole was to be divided ratably 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 movable 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 site. Warren v. Hall, 6 Dana, 452.

(a) 2 Phill. 266, n. Afterwards, in Colvin v. Procurator-General, 1 Hagg. Eccl. 92, Sir John Nicholl held the presumption of law in such a case to be, that the husband survived.

(b) 2 Phill. 261.

(c) So, also, in the case of Murray, in the English prerogative court, 1 Curteis, 596, the husband, wife, and child perished together by shipwreck, and administration was granted on the husband's effects, as of a widower. And in Satterthwaite v. Powell, Ibid. 705, where husband and wife were drowned at the same time, the property passed to the next of kin of the party in whom it was vested, and neither party could claim as

• Perkins v. Stone, 18 Conn. 270. Lawrence v. Elmendorf, 5 Barb. (N. Y.) 73.

waived the question, and, perhaps, prudently abandoned as delusive all those ingenious and refined distinctions which have been raised on this vexed subject by the civilians. The latter draw their conclusions from a tremulous presumption resting on the dubious point which of the parties, at the time, *436 under the difference of age or sex, or of vigor and maturity of body, and quickness and presence of mind, was the most competent to baffle and retard the approaches of death. (a)

survivor. The wife's effects passed to her next of kin, to whom administration was granted. See, also, the case of Coye v. Leach, 8 Metcalf, 371.

(a) This curious question was much discussed in the civil law, and the presumption as to which was the longest liver, vibrated between parent and child, according to circumstances. (Dig. lib. 34, tit. 5, ch. 10, secs. 1 and 4, and 23, 24, de Rebus Dubiis.) It was also very ingeniously and elaborately handled in Causes Célèbres, tom. iii. pp. 412-432, and a number of cases cited. The decisions had not been steady or consistent. M. Talon, the eloquent avocat général, took a distinguished lead in the discussions. The ancient French jurisprudence had nothing fixed on the subject, and continued floating and uncertain, with a very shifting presumption in favor of one or another person, according to age and sex, and manner of the death, until the law was reduced to certainty by the Code Napoleon. (Toullier, Droit Civil Français, tom. iv. No. 76.) By the Code Napoleon, Nos. 720, 721, 722, and by the Civil Code of Louisiana, Nos. 930933, which has adopted the same provision, when two of the next of kin perish together, without it being possible to be known which died first, the presumption of survivorship is determined by circumstances. If the parties were both under fifteen years of age, the eldest shall be presumed to have survived. If above sixty, the youngest shall be presumed to have survived. If they were between the age of fifteen and sixty, and of different sexes, the male shall be presumed to have been the survivor, provided the ages were within a year of each other. If of the same sex, then the youngest of the two is presumed to have survived.

The cases on this difficult subject in the jurisprudence of the civil law of the continental nations of Europe and of England, are collected and stated in Burge's Com. on Colonial and Foreign Laws, vol. iv. pp. 11-29. The case of Pell v. Ball, on the same subject, occurred in the Court of Chancery in South Carolina, and was decided in January, 1840. (1 Cheves Eq. 99.) The husband and wife both perished, with many others, in the dreadful destruction of the steamer Pulaski by explosion of a boiler in the night of June 14th, 1838, on her passage from Charleston to New York. The wife (Mrs. Ball) was seen alive on the wreck for a short time after the explosion, but the husband was not seen after the explosion. Chancellor Johnston decided upon that fact in favor of the survivorship of the wife. There was a ground of probability founded upon posi tive proof of that fact, superior to anything founded on arbitrary presumptions, and the decision was no doubt logical and correct.1

1 In the case of Moehring v. Mitchell, 1 Barb. (N. Y.) 264, where a mother and daughter went to sea in the steamship President, which never was heard of after leaving port, the chancellor held that there could be no presumption that the daughter survived the mother, but both must be considered to have perished at the same moment.

In Wing v. Angrave, 8 H. of Lords Cas. 183, it was decided that by the law of England