the person of his ward in another State, the parents (natural guardians) have no such restricted authority. It is universally conceded that they have in general the same control over their children when abroad that they have at home."

§ 116. Status of Guardian with respect to Ward's Property. — So far as concerns the ward's property, the appointment of a guardian, though primarily, is not solely for the protection and benefit of the ward. He may be brought into business relations with third persons, whose rights the law must protect. It follows therefore, as in the case of executors and administrators, nowithstanding the general legal fiction that personalty has its legal situs at the domicil of the owner, that if the ward should own personalty in other States, before any one can deal with the property there as guardian of the ward, he must be appointed guardian with all the formalities and securities required by the law of the actual situs of the property. It is generally admitted that the appointment of a guardian, whether in the ward's domicil or elsewhere, gives him no exterritorial authority over the ward's personal property.1

And if such is the rule with respect to personal property, a fortiori is it the rule where the ward's property is immovable. Here it is well settled that the lex situs of the land governs, and that law usually requires a guardian to qualify there before he can act with respect to land.2

• Johnstone v. Beattie, 10 Cl. & F. 42; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534. But see ante, § 83.

1 Kraft v. Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. 569, 571; Rogers v. McLean, 31 Barb. (N. Y.) 304; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153, 156; Lamar ». Micou, 112 U. S. 452; Hoyt v. Sprague, 103 U. S. 613, 631. There is some tendency to give effect to the domiciliary guardianship in cases where citizens of the situs are not interested. See Lamar v. Micou, 112 U. S. 452; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534; Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66; Earl v. Dresser, 30 Ind. 11, 95 Am. Dec. 660, 664-665.

2 Whart. Conf. L. § 268; Hoyt v. Sprague, 103 U. S. 613, 631; Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66, 69; Rogers v. McLean, 31 Barb. (N. Y.) 304. It is said that a guardian appointed in one State has no right even to receive the profits of the ward's real estate located elsewhere, unless he has been duly appointed guardian in the State where the land lies Story, Confl. I. § 504. See Smith v. Wiley, 22 Ala. 396, 58 Am. Dec. 262.

But after the claims of all third persons are disposed of, or if none arise, the general principle, as between guardian and ward, is the same that regulates the accountability of the executor or administrator to the legatees or distributees. The law of the legal situs of the personalty controls questions arising solely between guardian and ward; that is, the lex domicilii of the owner (the ward).

Thus, in Lamar v. Micou, the guardian was appointed in New York, while the wards were domiciled in another State. He invested the wards' money in a manner that was lawful under the New York law, but rendered him responsible for its safety under the law of the wards' domicil. The court held that he was accountable according to the latter law. In the course of the opinion, Mr. Justice Gray says: "The form of accounting, so far as concerns the remedy only, must indeed be according to the law of the court in which relief is sought; but the general rule by which the guardian is to be held responsible for the investment of the ward's property is the lex domicilii of the ward."

If the ward has property in his domicil, it is generally the duty of the domiciliary, rather than of an ancillary, guardian to maintain him, even though he be actually in another State, and a fortiori, if he is in the State of his domicil. But if he has no property in the State of his domicil, so that the principal guardian is unable to maintain him, an ancillary guardian will then be permitted to give or send him funds for his maintenance, subject to a strict accountability."

The principles regulating the powers, duties, and liabilities of the committees or guardians of idiots, insane persons, convicts, etc., are closely analogous to those controlling the ordinary relation of guardian and ward. In general, however, only the property interests of the ward, not his person, are intrusted to this class of fiduciary.

8 112 U. S. 452.

Kraft v. Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. 569.
Stephens v. James, 1 Mylne & Keene, 627.

See Rogers v. McLean, 31 Barb. (N. Y.) 304; Glaser v. Priest, 29 Mo. App. 1; Schneller v. Vancé, 8 La. 506, 28 Am. Dec. 140.

§ 117. Status of Receivers - In General. Receivers are fiduciaries appointed by a competent court to take charge of and control property litigated, pending the litigation. The appointment of such a fiduciary is usually incidental to the winding up of insolvent partnerships and corporations. Through the appointment of a receiver the court obtains possession and control of the litigated property, preserves it from waste and destruction, secures and collects the proceeds and profits, and ultimately distributes it according to the rights and priorities of those entitled.

A receiver is nothing more than an officer or creature of the court that appoints him. His acts are the acts of the court, whose jurisdiction may be aided, but not in general enlarged or extended, by his appointment. His powers are for the most part only coextensive with the authority of the court conferring upon him his official character.1

It will be observed that the status of a receiver is to a certain extent assimilated to that of the fiduciaries already discussed. But the dual character of the status is in this instance minimized, if not altogether lost. His appointment is principally, if not exclusively, for the benefit and protection of creditors; only in a very slight degree, if at all, do the original owners of the property profit by his appointment.

It follows therefore that the receiver's status is more strictly local than that of either administrator or guardian. Even here, however, there is the distinction between primary or principal and ancillary receiverships. The first court which assumes jurisdiction and appoints a receiver is the court of "principal" administration, while the courts of other States may appoint "ancillary receivers " of the property there situated. The position of a receiver may be likened to that of an assignee in involuntary bankruptcy, rather than to that of an administrator or guardian.

Receivers, being mere officers of the court appointing them, it will be readily seen that, inherently and as a matter of right, 1 Catlin v. Wilcox Silver Plate Co., 123 Ind. 477, 8 L. R. A. 62

2 Reynolds v. Stockton, 140 U. S. 255.

See Booth v. Clark, 17 How. 322; post, §§ 137, 138.

they can have no title, power, or authority beyond the limits of that court's jurisdiction.

But upon principles of comity, always recognized and in general acted upon, receivers appointed in one jurisdiction are permitted elsewhere to protect interests and enforce claims of which they are the custodians." But the title of the foreign receiver to property in a State whose residents are creditors of the insolvent concern will not be recognized there as against them, at least if they are not parties to the foreign litigation out of which the receivership grew. In order to give him such rights against citizens of the State where the property in question is located, he must be appointed a receiver by its courts."

So, if the recognition of the foreign receivership would contravene the policy of another State, it will not be recognized there. Nor will it be recognized, even as against non-resident creditors who have attached or otherwise secured a lien upon the property before it was actually vested in the receiver, unless perhaps where the lien creditor is a citizen of the same State whose court has appointed the receiver.10

Property situated in the State of his appointment becomes vested in the receiver by the very fact of his appointment, without possession thereof actually taken by him; but as to property outside of that State, in those cases where the authority of a for

4 Catlin v. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62; Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189; Booth v. Clark, 17 How. 334.

5 Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189; Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 397; Pond v. Cooke, 45 Conn. 126, 29 Am. Rep. 668; Willetts v. Waite, 25 N. Y. 577; Chicago, etc. R. R. Co. v. Packet Co., 108 Ill. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716.

6 Catlin v. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62; Humphreys v. Hopkins, 81 Cal. 551, 6 L. R. A. 792; Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189; Willetts v. Waite, 25 N. Y. 577.

See Farmers' Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 31 L. R. A. 403, 42 N. E. 707.

Boulware v. Davis, 90 Ala. 207. 9 L. R. A. 602, 6 Am. St. Rep. 189.
Catlin v. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62.

10 Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395. See post, § 138.

eign receiver will be recognized, he will not be regarded as having acquired title until he has actually gained control over the property.11

If, being vested with the title to the property in the State of his appointment, the receiver should afterwards remove it to another State, where it is attached by creditors, whether resident or non-resident, his title having already fully vested is superior. 12

In the absence of conflicting claims of creditors in other jurisdictions, it is generally conceded that a foreign receiver may deal with the insolvent's property as if it were in the State of his appointment.18 As between two courts of concurrent jurisdiction, such as a Federal court and a State court in the same State, both having jurisdiction of the cause, the settled rule now is that the court first obtaining jurisdiction of the res is entitled to retain it until the litigation is terminated, whether or not a receiver actually has possession of the property. Indeed the same principle applies in other cases also where a conflict of jurisdiction between the two classes of courts is threatened.15

14

While these general powers are usually recognized as conferred upon foreign receivers, it will sometimes be convenient, and even necessary, to appoint ancillary receivers in other jurisdic

11 As against citizens of the State of his appointment, he stands vested with the title to all the property, even that which is outside the court's jurisdiction. See Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395; Osgood v. Maguire, 61 N. Y. 524; Bagby v. R. R. Co., 86 Penn. St. 291.

12 Pond v. Cooke, 45 Conn. 126, 29 Am. Rep. 668; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716; Chicago, etc. R. R. Co. v. Packet Co., 108 Ill. 317, 48 Am. Rep. 557. See Humphreys v. Hopkins, 81 Cal. 551, 6 L. R. A. 792; Alley v. Caspari, 80 Me. 234, 6 Am. St. Rep. 185, note. 18 Willetts v. Waite, 25 N Y. 577, 584.

14 Shields v. Coleman, 157 U. S. 168; Hamilton v. Chouteau, 6 Fed. 339. But where the State receivership ceases before the new cause of action arises, the federal courts may then assume jurisdiction. Andrews v. Smith, 5 Fed. 833. And where a receiver of a State court acts unlawfully he may be sued in tort in a federal court. Curran v. Craig, 22 Fed. 101.

15 Thus, in Byers v. McAuley, 149 U. S. 608, it was held that property in the hands of an administrator appointed by a State court could not be disturbed by process issued from a federal court.