But with respect to the rights of creditors who are residents of the State in which the assignment takes place, the courts are divided. Some of the decisions hold that they should be bound by the laws of their own State, and that they cannot, by going into another State, set at naught the work of their own law."

Although this would seem to be the juster and the wiser view, many decisions will be found extending the same privileges to these as to other creditors. However this may be, it is certain that the courts of the State where the assignment occurs may peremptorily enjoin its own citizens from going abroad to attach the property of the insolvent.9

Cole v. Cunningham, 133 U. S. 107, 128; Livermore v. Jenckes, 21 How. 126; Long v. Girdwood, 150 Penn. St. 413, 24 Atl. 711, 23 L. R. A. 33; Plestorov. Abraham, 1 Pai. Ch. (N. Y.) 236; May v. Wannemacher, 111 Mass. 202, 209; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 369. 7 In speaking of a similar question arising with respect to voluntary assignments (ante, § 134, note 6), it was said that the better opinion was that the citizens of the place of assignment should be put on the same footing as the residents of other States outside the forum. There the question was one of the construction of the lex situs et fori. Here the question is not at all a question of statutory construction, but of jurisdiction and submission to a personal law.

8 Cole v. Cunningham, 133 U. S. 107, 128; May v. Bank, 122 Ill 551, 13 N. E. 806; Rhawn v. Peters, 110 Ill. 350; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Willetts v. Waite, 25 N. Y. 577, 583; Taylor v. Badoux, 92 Tenn. 249, 21 S. W. 522; Commercial Bank v. Motherwell Co., 95 Tenn. 172, 31 S. W. 1002. See Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 369.

9 Cole v. Cunningham, 133 U. S. 107; Dehon v. Foster, 4 Allen (Mass.), 545. It is otherwise, if the assignment is voluntary. Warner v. Jaflruy, 95 N. Y. 248.

CHAPTER XIII.

TRANSFER BY SUCCESSION.

§ 139. Titles of Administrator and Distributee distinguished. — It is a general rule, upon the death intestate of an owner of property, that his personalty is to be committed to an administrator, whose first duty is to pay the decedent's debts, and after they are paid to turn over the residuum of the estate to those appointed by law as his successors in the ownership of the property, known as his "distributees" or "next of kin."

The title vested in the administrator, and subsequently in the distributees, results not from any voluntary act on the part of the owner, but from the act of the law. Furthermore, so far as the administrator is concerned, his title is vested in him primarily for the protection of creditors, incidentally only for the distribution of the estate amongst the next of kin. With respect to its primary purpose, therefore, the title of an administrator is in many respects analogous to that of an assignee in involuntary bankruptcy. Like such assignee, the administrator is a quasi-officer of the law; his authority and title, originating in an act of the law, is ex proprio vigore of no exterritorial force, and will not, as to creditors, extend to personalty situated elsewhere than in the State of his appointment.

1

The principles regulating the administration of a decedent's estate, including the law governing his appointment, title, powers, duties, and liabilities, have been already discussed in detail at another place, to which reference is now made.2

But if we suppose that there are no debts, or that they have all been paid, the administration of the estate ceases, and its distribution commences. It is the law governing this distribu tion into which we are now to inquire.

1 Ante, §§ 137 et seq.

2 Ante, §§ 105 et seq.

It is the well established general rule that the law of the last domicil of the deceased owner is the "proper 99 law to govern the distribution of his personalty, not the lex situs of the property (though that law may perhaps be applied in certain excep tional cases, where the situs and the forum coincide); nor the law of the owner's domicil at the time he acquired the property in question; nor the law of the decedent's actual situs at the time of his death. The transfer is involuntary and by act of the law, and therefore it is the owner's legal situs or domicil that furnishes the proper law; and the transfer being effected at the time of his death, it is his domicil at that time that is to be looked to. Hence the general rule that the law of the last domicil of the decedent is the proper law.

§ 140. Persons to Take as Distributees Capacity of Distributees to Take. - From what has been said in the preceding section it will be seen that the classes of persons who are to succeed to a decedent's personalty as his distributees or next of kin will be determined by the law of the decedent's domicil at the time of his death.1

3 Sharpe v. Crispin, L. R. 1 P. & D. 611; Somerville v. Somerville, 5 Ves. 750; Ennis v. Smith, 14 How. 400, 424; Wilkins. Ellett, 9 Wall. 740, 742; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 874; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116; Shultz v. Pulver, 3 Pai. Ch. (N. Y.) 182; s. c. 11 Wend. 361; Vroom v. Van Horne, 10 Pai. Ch. 549, 42 Am. Dec. 94; Hegeman v. Fox, 31 Barb. (N. Y.) 475; Parsons v. Lyman, 20 N. Y. 103; Petersen v. Chemical Bank, 32 N. Y. 21, 44, 88 Am. Dec. 298; Despard v. Churchill, 53 N. Y. 192, 199; White v. Tennant, 31 W. Va. 790, 8 S. E. 596; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 57; Atchison v. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153, 156; Shannon v. White, 109 Mass. 146; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61. If there are no creditors of the decedent, either local or domiciliary, it is usually considered unnecessary to remit the personalty to the owner's domicil for distribution. The local courts may distribute it, but in accordance with the provisions of the lex domicilii. Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116; Gravillon v. Richards, 13 La. 293, 33 Am. Dec. 563, 565; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472. But see Succession of Petit, 49 La. Ann. 625, 21 So. 717. It will also be remembered that the succession to land is always to be governed by the lex situs of the land. Ante, § 12.

1 Story, Confl. L. § 481 a; Sharpe v. Crispin, L. R. 1 P. & D. 611; Bruce

Thus, in Mayo v. Equitable, etc. Society, a young man, born in Virginia, went to Tennessee to seek employment, where he remained for a year; he then went to Mississippi, where he remained about a year; returned to Tennessee, where he stayed a month; and then, on account of constant ill-health, returned to Virginia, where he shortly afterwards died. While in Mississippi he had insured his life in the Equitable Assurance Society, and on his return to Virginia left the policy in Mississippi for safe-keeping. The question arose in Mississippi as to the persons entitled to the proceeds of the policy. By the law of Virginia, where the court held the decedent to have been domiciled at his death, the father (who was heavily indebted) was the sole distributee. By the law of Mississippi other members of his family would have shared in the distribution. Notwithstanding the hardship of the case (which evoked much sympathy from the court) it found itself constrained to hold that the lex domicilii at the time of the death must govern; that the youth's estate belonged to the father under the law of Virginia; and that the impoverished family could receive only what was left after paying the father's creditors.

So where the question is not what classes of the kin shall succeed to the property, but whether or not a particular member of the class named by the law of the decedent's domicil, to whom some personal disability is attached, can succeed to the property along with other members of the same class, the "proper law" to determine his capacity of succession, it is believed, is the law of the decedent's domicil, not the law of the domicil of the particular distributee whose capacity is in question. In Bruce v. Bruce, the inquiry was whether the decedent's half-brother was entitled to succeed to his estate along with a whole brother. The case was held to turn entirely upon the domicil of the decedent, no mention being made of the half-brother's domicil. By the English law, the half-brother was entitled to a share;

v. Bruce, 2 Bos. & Pul. 229; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116; Ennis v. Smith, 14 How. 400, 425. 271 Miss. 590, 15 So. 791.

2 Bos. & Pul. 229.

by the law of Scotland, he was not. It was held that the decedent's last domicil was England, and that its law must control.

But if the natural

The instance in which this point has most frequently arisen is the case of bastards claiming the right to succeed to a relative's estate. If both the decedent and the bastard are domiciled in the same State at the time of the former's death, no question will arise as to what is the "proper law." The two domicils coincide, and the lex domicilii will govern. child is domiciled in a State different from the deceased relative, and by the law of one State the capacity to succeed with the other next of kin is given, while denied by the law of the other State, the solution is not so simple. It would seem to be clear that if the lex domicilii of the decedent should forbid succession by the bastard, he could not inherit, because the decedent's property is legally situated at the domicil of the owner, and the prohibitions of that law should be conclusive." On the other hand, if the law of the decedent's domicil permits the bastard's succession, while the law of the bastard's domicil does not, a moment's reflection will show that the policy of the latter law cannot be directed towards injuring the bastard, but towards protecting the estates of its citizens who die intestate from such doubtful claims. It cannot be supposed that the law of the bastard's domicil was intended to prevent one of its own citizens (even though he be a bastard) from being enriched by sharing in the estate of a foreigner, since the good fortune of the bastard can in no way impair in any way the policy of his domicil. In other words, it would seem manifest that the incapacity to succeed imposed upon the bastard by the law of his domicil, was only an incapacity to succeed to the property of residents of his domicil."

But in these cases of involuntary transfer, as in other cases, there may be occasions, where the law of the actual situs and forum may be substituted for the law of the legal situs of the

4 Doglioni v. Crispin, L. R. 1 H. L. 301.

Sharpe v. Crispin, L. R. 1 P. & D. 611.

• Quite a different question arises where the bastard has been legitimated, or in case of adopted persons. See ante, § 12.