Scotland. He contracted certain debts and died. The creditors went against the land in Scotland and subjected it, and the heirs sought exoneration out of the English personalty. The Scotch law distinguished between "heritable bonds" and "movable debts," making the former primarily chargeable on the land, and the latter on the personal estate. The decedent's debts belonged to the latter class. The English law made the personalty primarily liable for all debts. The English court held that exoneration should be decreed on the ground that the heir was made a quasi-creditor of the personal estate by the law of Scotland (the situs of the land), and the English law coinciding, there was no reason why exoneration should be denied.

On the other hand, in Drummond v. Drummond," a person domiciled in England owned real estate in Scotland, upon which he granted a "heritable bond" to secure a debt contracted in England. He died intestate; and the question was whether this debt was ultimately to be borne by the real or personal estate. By English law the personal estate was the primary fund for the payment of all debts. By the law of Scotland, the real estate was the primary fund for the payment of "heritable bonds." It was said for the heir that the personal estate must be distributed according to the law of England (the decedent's domicil), and must bear all the burdens to which it is by that law subject. But in answer to this it was said that the land must go to the heir in accordance with the law of Scotland, bearing all the burdens to which it is by that law subject. The court refused to decree exoneration. In this case the laws of the situs of the two funds were in conflict.

In Staigg v. Atkinson, 12 a testator, after charging his lands with the payment of his debts, provided for his widow, without expressing an intention to bar her of her dower. He owned lands in Minnesota and certain mortgaged lands in Massachusetts. The executor, under a power in the will, sold the Minnesota land and brought the proceeds to Massachusetts. By

11 6 Bro. P. C. 601, cited in Brodie v. Barry, 2 Ves. & B. 127, 132, and in Story, Confl. L. § 487.

12 144 Mass. 564, 12 N. E. 354.

the Minnesota law, the provision for the wife in the will did not bar her dower in the land there in the absence of an expressed intention to that effect in the will. That law also provided that her dower should be subject, in its just proportion with the other real estate, to such debts of the deceased as were not paid out of his personal estate. By Massachusetts law her dower was free from the debts of her husband. By the common law of both States, when mortgaged land and other land of a decedent were both charged together with debts, they were bound to contribute ratably to the payment. The widow sued the executor in Massachusetts for her dower share in the proceeds of the Minnesota lands, claiming that she was entitled thereto free from any duty to contribute to pay off the mortgage on the Massachusetts land. But the Massachusetts court held that she must contribute, since under the lex situs of the Minnesota land she was bound to contribute, in the absence of personalty sufficient to pay the husband's debts, and since by the laws of both States mortgaged land was entitled to exoneration pro rata out of the other lands of the decedent.18

The equitable principle of contribution between heirs or devisees in the administration of their deceased ancestor's estate is closely assimilated to that of exoneration, and in the main would seem to be governed by similar rules, when the lands in possession of the several heirs or devisees are in different States, whose laws are conflicting touching the order in which the lands are to be primarily liable for the debts. Indeed, contribution in these cases is but a partial exoneration.

The same general principles are applicable here. If the heir of land in one State, subjected to a debt of his ancestor, claims exoneration or contribution from the heir of the lands in another State, not only must he show himself entitled to such relief by the law of the place where his own land is situated, whereby he is constituted a quasi-creditor of the other heir, but the same relief must also be open to him under the law of the State where the land in the hands of the second heir is situated. 14

13 See also Maxwell v. Hyslop, L. R. 4 Eq. 407.

14 See Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.

§ 113. Termination of Status of Executors or Administrators - Auxiliary or Ancillary Administrations. It has already been observed that the fiduciary status is peculiar, being recognized by the law, not for the benefit of the fiduciary himself, nor chiefly for the benefit of the legatees or other beneficiaries, but mainly for the purpose of dealing with third persons, creditors, debtors, or claimants of the estate. Such third persons may be residents of the decedent's domicil or of other States, and the decedent's personalty may have its actual situs in his domicil or elsewhere.

The primary or principal administration is that conducted at the domicil of the decedent, for there is the legal situs of his personal property. But the legal situs of the personalty yields to the actual situs wherever, under the general exceptions to the "proper law," the lex fori may be substituted for the lex domicilii. Administration proceedings constitute one of these exceptions, for the protection of residents of the forum.

Hence, as we have seen, the domiciliary or principal administrator will not ordinarily be permitted to administer assets in another State, merely by virtue of his domiciliary appointment and qualification, but there must be a fresh appointment and qualification in every State where there are assets.

These are known as ancillary administrations because they are subordinate and auxiliary to the principal or primary or domiciliary administration, and after their purposes are served by satisfying all creditors and claimants in the State of their creation, they are ultimately responsible to the principal administration for the balance of the assets unadministered, and are generally bound to remit such balance to the domicil for distribution. Such is the general theory of ancillary administrations.1

1 Wilkins v. Ellett, 9 Wall. 740, 742; Harvey v. Richards, 1 Mason, C. C. 380, 409; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 N. Y. 192, 200; Cross v. Trust Co., 131 N. Y. 330, 346; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482; Stevens v. Gaylord, 11 Mass. 256; Dawes v. Head, 3 Pick. (Mass.) 128, 145, 147; Davis v. Estey, 8 Pick. 475; Jennison v. Hapgood, 10 Pick. 77, 19 Am. Dec. 258; Fay v. Haven, 3 Met. (Mass.) 109, 114; Merrill v. Ins. Co., 103 Mass. 245, 248; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116.

The rights, duties, and liabilities of the principal and ancillary administrators, while administering the funds in their hands, have already been considered in preceding sections, and will not be here repeated. It may be observed however in this connection that although it is often assumed that ancillary administrations are created solely for the benefit of such claimants as are residents of the forum, and although that in truth is the real basis upon which they rest, yet such administrations being once created, both convenience, comity, and justice require that the courts of the forum should be open to all claimants who choose to prove their claims there, provided such liberality would not work an injury to those who are actually citizens of the forum, as by exhausting the assets and forcing the citizens themselves to resort to the domiciliary forum.*

8

But it is especially to the relations between the ancillary and domiciliary administrations that attention will now be directed. Generally speaking, it is the duty of the ancillary administration to collect and pay all debts and claims by or against the estate, arising in the State of such administration, and then to make a settlement before the courts of that State pursuant to its laws, finally remitting any balance found to exist to the

2 Ante, §§ 105 et seq.

8 See Despard v. Churchill, 53 N. Y. 192, 199–200; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 483; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117; Stevens v. Gaylord, 11 Mass. 256, 269.

4 De Sobry v. De Laistre, 2 Har. & J. (Md.) 191, 3 Am. Dec. 535, 536; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472, 477-479 and note; Dawes v. Head, 3 Pick. (Mass.) 128, 145; Harvey v. Richards, 1 Mason, C. C. 380, 407. See Bank v. Lacombe, 84 N. Y. 267; Atherton Co. v. Ives, 20 Fed. 894; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368. In the last case a distinction is taken between citizens of one of the States of the Union and citizens of foreign countries. This question or one closely analogous is discussed hereafter. Post, § 138.

5 Lamar v. Micou, 112 U. S. 452; Vaughn v. Northup, 15 Pet. 1; McLean v. Meek, 18 How. 16, 18; Harvey v. Richards, 1 Mason, C. C. 380, 414; Stevens v. Gaylord, 11 Mass. 256, 269; Dawes v. Head, 3 Pick. (Mass.) 128, 144 ; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 N. Y. 192, 199 ; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482; Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712. The cases show that in general the accountability of an ancillary administrator is solely to the courts of his own State. See

domiciliary administration, there to be administered and distributed as the lex domicilii of the decedent directs.

But it must not be supposed that the courts of the State of ancillary administration are always bound to remit, that they have no jurisdiction to retain and themselves distribute the balance. It seems to have been supposed at one time that there was no other step save to remit the balance to the courts of the domicil, and that legatees or distributees, though residing in the State of ancillary administration, must apply to the domiciliary courts for the distribution. But the modern and more reasonable doctrine is that it is not a matter of jurisdiction, but lies within the sound judicial discretion of the court administering the fund, whether after administration it shall proceed to assign their shares to resident legatees or distributees, or remit the fund to the domicil of the decedent, and thus force these parties to resort thither. Though the usual rule is to remit, circumstances may justify the other course. The discretion will usually be exercised in favor of the local distribution of the balance only in those cases where the legatees or distributees are citizens of the forum, where the funds are not needed by the domiciliary administration for the payment of debts, and where to remit them would cause inconvenience, trouble, and perhaps loss to the legatees or distributees resident in the forum.

Vaughn v. Northup, 15 Pet. 1; Fay v. Haven, 3 Met. (Mass.) 109, 116. And until he has satisfied all the creditors in his own jurisdiction, no other administrator, not even the domiciliary administrator, can oust him of his authority or lay claim to any property situated there, or recover there of any debtor of the estate. Merrill v. Ins. Co., 103 Mass. 245. But if the ancillary administrator has been guilty of fraud so that he may be sued upon his personal responsibility, as for a breach of trust, he may be held accountable therefor in any forum acquiring jurisdiction over him. In such case the accountability is in the court of chancery for breach of the trust. Leach v. Buckner, 19 W. Va. 36; McNamara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627; Powell v. Stratton, 11 Gratt. (Va.) 792, 797.

• Richards v. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 Mass. 337.

7 Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478; Harvey v. Richards, 1 Mason, C. C. 380, 409; Despard v. Churchill, 53 N. Y. 192, 200; Parsons v. Lyman, 20 N. Y. 103.