To sustain an action upon an administration bond for the benefit of a creditor, there must have been, if the estate is solvent, a judgment of court, ascertaining the debt, and then a demand of satisfaction on the administrator; if insolvent, an allowance of the debt by commissioners, a decree of distribution, and a like demand; where fore, where an ancillary administrator on an insolvent estate of a person domiciled in a foreign country, represented the estate as insolvent, and commissioners were appointed, and the claims allowed by them were less than the assets here, and the judge of probate decreed payment of such debts in full, and on demand the administrator refused to make such payment, it was held, that the decree, treating the estate as solvent, was a nullity, no decree being in such case necessary or authorized by law, and that the non-performance of it was not a breach of the bond.
One of two persons, both subjects of, and domiciled in, the same foreign country, dies indebted to the other, and an original administration is granted in the foreign country and an ancillary one here. Held, that such debt, though it may had been contracted here, must be referred for settlement to the original administration.
Where the whole estate of a deceased person domiciled abroad is not sufficient pay all his debts, it seems that the funds collected by an ancillary administrator here are not to be applied to the payment in full of the debts due to our own citizens; but the proper course should be, to retain the funds here for a pro rata distribution according to our laws among our citizens, having regard to all the assets in the hands of the administrators, both principal and ancillary, and to all the debts due by the laws of either country, and disregarding any preference that may be given to one species of debt over another, and to remit any surplus to the principal administrator. Whether such a disposition of the funds here may be ordered by the probate court, quaere; but it seems that it may be on a bill in chancery.
Whether citizens of another of the United States can be considered as upon the same footing with the citizens of this State in regard to such funds, quaere. But in the case of a solvent estate it seems that they may enforce their demands against the ancillary administrator here having assets.
This was an action of debt upon a probate bond given by Joseph Head as principal, and the other defendants as his sureties, upon letters of administration with the will annexed being granted to him on the estate of Thomas Stewart; and the suit was prosecuted for the benefit of Robert Lenox, a citizen of New York, James Sheafe, a citizen of New Hampshire, and Thomas Bruce, a subject of Great Britain and living in London.
To a plea of performance the plaintiff replied, that the administrator represented the estate as insolvent; that afterwards, on the 18th of January, 1819, commissioners were
appointed to examine all claims of the creditors of the estate, and that they allowed Lenox and Sheafe a certain sum upon their claim; that on the 8th of January, 1822, the judge of probate decreed, that inasmuch as the goods and estate in the hands of the administrator, according to his account before that time settled and allowed, were more than sufficient to pay all the claims which had been allowed by the commissioners, as well as the amount of a judgment which had been recovered by Bruce and been added to the report of the commissioners, the administrator should forthwith pay to the several creditors named in the report the full amount of their several claims with interest; and that on the 12th of February, 1822, Lenox and Sheafe presented the decree to the administrator, and demanded payment of their claim, and the interest due thereon, which the administrator refused to make, and so had broken his bond.
The defendants rejoined, that Stewart was a native subject of the king of Great Britain, and was, on the first of June, 1814, and long before and until the time of his decease on the 23d of December, 1816, domiciled at Calcutta in Bengal; that his last will and testament, dated in October, 1814, was duly proved by John Palmer, of Calcutta, one of the executors, in January, 1817, in the Supreme Court of Judicature at Fort William in Bengal, and that the estate and effects of Stewart were in a due course of administration at Calcutta before the allowance and registry of the will in the Probate Court in this county; that Stewart died insolvent, and that his estate and effects in the hands of his executor in Calcutta were insufficient to pay the demands duly registered there against the estate, among which was that of Lenox and Sheafe; that Bruce was a native subject of the king of Great Britain, and was in 1807, and had been ever since, domiciled in the city of London; that the goods &c. of Stewart in the hands of the administrator were all needed in Calcutta by the executor, to enable him to pay the just and legal claims against
the estate, and to settle the same, and duly to perform his duties as executor according to the laws in force in Bengal.
To this there was a general demurrer.
The non-payment of Bruce's debt was not assigned in the replication as a breach of the bond, but by the consent of the parties it was to be considered as if it had been so assigned.
The cause was first argued at March term, 1823, and afterwards in writing, by Aylwin for the plaintiff and S. Hubbard for the defendants.
Argument for the plaintiff. This Court, upon the general principles of our law, has jurisdiction in this case. 1. Because the property of the deceased is within this State. Fitz. N. B. 114 B; Co. Lit. 261 b; Sir L. Jenkins's Life, vol 1, p. lxxix; 3 Bl. Com. 107; and Col. Law of 1644 (Anc. Chart. &c. 49, 50), which accords with more recent statutes.
2. Because the representative of the deceased is here. Bissell v. Briggs, 9 Mass. 462 ; Jacobs v. Hull, 12 Mass. 25 ; Barrell v. Benjamin, 15 Mass. 354 .
3. The Court has jurisdiction and has a right to decree payment of the debts in question, upon the ground of positive law. The St. 1785, c. 12, "for the filing and recording of wills proved without this government," gives a general authority to the judges of probate to "take bonds of the executor or grant administration of the said testator's estate lying in this government, with the will annexed, and settle the said estate in the same way and manner as by law he may or can upon the estates of testators, whose wills have been duly proved before him."
The object of taking a bond from the executor or administrator, by our laws, is not only to procure an inventory, but also to compel the discharge of the debts of the deceased, so far as the assets may extend. With this view various positive regulations have been made by the legislature, which are universal in their character and language; one of which has been pursued in the present instance by a suit on the probate bond, upon refusal of payment of debts due from the deceased, after they had been established by judgment of a court of law or by commissioners. The administrator of the
deceased foreigner has here sought the protection of our law, has clothed himself with its powers, and has given bonds to discharge his trust, in the same manner as if the deceased had been a citizen and been domiciled with us. The debt due to Lenox and Sheafe is due to citizens of the United States, who are entitled to all the privileges of citizens of this State; that due to Bruce was actually contracted here, and its validity has been established by the judgment of this Court against the representative of the deceased. Further, it is a general principle of jurisprudence, that the law of the forum, in which the suit is instituted, shall be the guide in furnishing the remedy; and whatever may be that law, the party prosecuting is entitled to the benefit of it. Blanchard v. Russell, 13 Mass. 1 ; Pearsall v. Dwight, 2 Mass. 87 .
It is objected, however, that although the ground taken may support the jurisdiction of our courts inter vivos, yet it will not reach the argument assumed in the defence, which rests on a principle of public law, giving exclusive jurisdiction over the property of a deceased person to the forum domicilii; and that the decision in Dawes v. Boylston, 9 Mass. 337 , furnishes an answer to the construction attempted to be given to the statute for the filing of wills proved without the State.
It is therefore necessary to examine this supposed rule and to ascertain its true extent; whether if it be allowed as it regards the transmission and succession of property, it controls the general law of debtor and creditor which subjects property to an implied hypothecation, or excludes the courts of the place where the property may be found, from limiting or varying the application of such rule, according as it may be beneficial or injurious to the citizens of the State. And it is apprehended that it will appear from the following authorities, that the rule is not a part of the public law received among modern nations, but that it is occasionally practised by some and assented to by others, and has for its basis only the positive law of particular states, and the conventional law of others arising from treaty. Grot. De Jure Bell. ac Pac. lib. 2, c. 7;
ibid. lib. 2, c. 6, § 14, and Barbeyrac's note 6; Vattel, liv. 2, § 110; Martens, liv. 3, c. 3 § 17, 18; Domat, part. 2, lib. 1, pref. art. 13, (2nd ed. Lond. 1737, p. 530); ibid. part. 2, lib. 1, tit. 1, § 2, art. 9; Pothier, Des Successions, c. 1, art. 1, § 1, and art. 2, § 1; Code (Civil) Napoleon, art. 11, 726, and Motifs &c. no. 4, 5; U. S. Laws (edit. 1815), vol. 1, pp. 80, 153, 179, 232, 269. And if the rule of the lex domicilii in respect to successions is not a part of the recognised law of nations, the argument of the defendants, so far as it rests upon that assumption, must fail.
It has been suggested, however, that it may be considered as a rule of interpretation adopted by the common law, and not of jurisdiction; and that the effect given to transfers under the bankrupt laws in England and Scotland, and to the cessio bonorum of Holland, and other analogous assignments, support this distinction.
It is not questioned, that the right of disposing of property inter vivos is derivable from the law of nature, and has been sanctioned by writers on the law of nations; yet the extent in which it may be exercised in different countries is not settled, and the principle is far from being universal. On this subject it has been remarked, that the English courts have exhibited a distressing versatility of opinion, when deciding upon the effect of transfers in cases of bankruptcy. The cases of Cleve v. Mills, 1 Cooke's Bankr. Law, (4th ed.) 303, -- Waring v. Knight, ibid. 307, -- Mawdesley v. Parke, Cullen's Bankr. Law, 243, -- and Wilson's case (cited in 1 H. Bl. 691), decided by Lord Hardwicke, -- are against extending the effect of an assignment beyond the territory of the bankrupt's domicile; while in Sill v. Worswick, 1 H. Bl. 665, and other cases there cited, Hunter v. Potts, 4 T. R. 182, with the Scotch cases in 1 Rose (Append.), 462, the position is affirmed, that such an assignment vests the property, wherever situated, in the assignees. See also Selkrig v. Davies, 2 Dow, 230. In the cases between Holmes and Remsen, 4 Johns. Ch. R. 460, and 20 Johns. R. 229, the subject has been discussed and exhausted; it will be sufficient to refer to them. See also Ex parte Cridland, 3 Ves. & Beame, 97, 100, 101; Brickwood v. Miller, 3 Meriv. 279, 281, 283.
Whatever may be the true rule on this subject in Great
Britain and Ireland, none seems to have been settled at the time of our revolution.
If the effect of the assignment of a bankrupt's property rests on its being a judicial transfer, nothing but the principle of comity will require its being enforced elsewhere; and in such case, according to the decisions of the courts of Maryland, Pennsylvania, Connecticut and the United States, it must be subordinate to the claims of our own citizens, and of those whose legal diligence in our courts shall give them a priority. Burk v. M'Clain, 1 Har. & M'Hen. 236; Wallace v. Patterson, 2 Har. & M'Hen. 463; Milne v. Moreton, 6 Binn. 353; Taylor v. Geary, Kirby, 313; Harrison v. Sterry, 5 Cranch, 289.
But it is not perhaps of importance, in regard to the suit at bar, how the law may be settled respecting cases of transfer inter vivos. For the rights to inherit the property of deceased persons, and to bequeath by will, do not appear to be universally admitted as natural, but only as civil rights, and they must consequently depend on the law of each particular state. 1 Collect. Jurid. 323; Taylor's Civ. Law, 537. But by the law of England, and of our country, an alien may make a will, or if he dies intestate his personal property shall be distributed among his next of kin, according to the rules of his domicile. The case is then freed by positive law from the difficulties which might otherwise have arisen in considering it in connexion with these abstract principles.
We are therefore brought to what are presumed to be the main questions in this case: -- Are these rights of succession and of bequeathing subordinate to the claims of creditors and of our own citizens? And can such claims be enforced in our courts of justice?
It is believed that no authority can be found which expressly maintains the negative of these inquiries. Reliance seems to be placed on deductions from the general principles before
adverted to, but it is apprehended that they do not reach the case of debtor and creditor.
It may be well to observe, that there does not appear to have been established by the English courts, any distinction like that set up in Dawes v. Boylston, 9 Mass. 337 , between principal and auxiliary administrations. 1 Gibson's Codex, 472, in notis; 1 Roll. Abr. 908; Daniel v. Luker, Dyer, 305, pl. 58; Cooper's Eq. Pl. 122; Wentw. Off. Exec. c. 11, p. 47. And in a late case in the House of Lords, on an appeal from Scotland, the jurisdiction of that court was not denied, when the residuary legatee sued an executors who had proved a counterpart of a will in India, the other parts of which had afterwards been proved by his co-executors in England. Graham v. Keble, 2 Dow, 17, and 2 Bligh, 127.
From that case it may be gathered, that the Court of Session will entertain jurisdiction on the ground that a party sued has property within the territory of Scotland, and that they will not remit a legatee to the forum domicilii, or to the tribunal of the country where the principal or original administration was granted.
This is in conformity with the principles laid down in Harvey v. Richards, 1 Mason, 407. And the whole reasoning of Parsons C. J., in Goodwin v. Jones, 3 Mass. 516 , proceeds on the ground of the jurisdiction of our courts over the property here of deceased strangers. So in the case of Gaylord v. Stevens, 11 Mass. 269 , this Court did not consider any contrary rule to be established by Dawes v. Boylston.
On the other hand, the current of opinion of different courts in the United States is strongly in favor of the jurisdiction, and that the claims of suitors here, and of our own citizens, who are creditors, shall be preferred. Harrison v. Sterry, 5 Cranch, 299; Milne v. Moreton, 6 Binn. 361; Holmes v. Remsen, 20 Johns. R. 265; Goodwin v. Jones, 3 Mass. 517 , 523; Selectmen of Boston v. Boylston, 4 Mass. 324 ; Richards v. Dutch, 8 Mass. 515 ; Dawes v. Boylston, 9 Mass. 350 , 356.
If the claims of creditors were more doubtful, the argument
ab inconvenienti would justly have great weight against adopting the rule contended for by the defendants. Every country regulates the order of payment of the creditors, and charges the real or personal estate, or both, according to its own rules of policy and convenience. Equality is equity; and unless that be preserved throughout all countries as it regards the fund to be applied and the order of payment, injustice will be done. Besides, there can seldom be any reciprocity, even if our courts were disposed to remit their citizens to the foreign or original administrator for payment. Take, for example, the present case. The executor in India is governed by the laws of England; he therefore can prefer any one creditor in equal degree, to the exclusion of the others; he may pay himself in full; he must pay all debts due on judgments before those due on simple contract, and if a foreigner brings a judgment rendered in his own country, he is told that his claim is regarded by the English law merely as a debt by simple contract. Toller's Law of Exec. 267; 2 Fonbl. on Eq. 405, bk. 4, pt. 2. c. 2, § 2; Walker v. Witter, 1 Doug. 1; Duplein v. De Roven, Vern. 540. No more hardship therefore arises from the insufficiency of the property in India to pay the debts due there from Stewart, than there does from the inequality in the English mode of payment. Philips v. Hunter, 2 H. Bl. 412, 413.
Independently of this, another objection arises; in England the real estate is not chargeable with the debts; here every species of property is liable to them; so that the advantage would be clearly on one side. This is a sufficient reason for not applying the principles of comity; according to the 3d axiom of Huber, part. 2, lib. 1, tit. 3, De Conflictu Legum.
Argument for the defendants. The defendants contend, that the estate of Stewart should be settled according to the law in force in Bengal, which is the law of England, and that it is within the discretion of the Court, either to settle the estate here agreeably to such law, or to remit it to the proper tribunal for that purpose.
Personal property is subject to the law which governs the person of the owner: -- a principle founded in the convenience
and necessities of mankind, and adopted by so many nations as to give it the force and character of international law.
This is illustrated in various ways: -- 1. The actual assignment of a debt or chose in action in another state or country, if valid by the law of the land where the assignor resides, is recognised and admitted in the state or country where the same is due, or happens to be, at the time of the assignment, as either a legal or equitable transfer of the property. See the citations in the note. [Note p136-1]
2. All marriages which are not positively criminal are sustained, if valid in the country where they are solemnized, and by the contract of marriage the personal property passes to the husband, wheresoever the same may be situated. [Note p136-2] 3. In the case of lunacy it was held, that a committee appointed in England might sue for and recover property in Scotland, equally as if there had been a voluntary assignment. Morrison's case, cited in Thorne v. Watkins, 2 Ves. sen. 37.
4. The distribution and disposition of personal property is governed by the lex domicilii, and not by the lex loci rei sitae. This is well settled by many decisions of different tribunals in England [Note p136-3] and in this country, [Note p136-4] and is recognised by the
writers on the civil law and the law of nations; [Note p137-1] as will appear by the citations in the notes.
5. Contracts made in foreign states, and to be there executed, if valid by the laws of such states, are valid in every other state, and in accordance with this principle the courts of other states continually give effect to such contracts, so far as the remedies provided by their laws will possibly permit. [Note p137-2]
From these positions it follows conclusively, that personal property, the conveyance, disposition, and distribution of it, and the contracts and instruments relating to it, are governed by the law of the owner's domicile; which law other states, when required to act judicially thereon, are bound to respect and enforce. To this rule there appears to have been advanced but three exceptions: -- 1. Where the contract entered into by the foreigner is made with reference to a country, other than that in which the foreigner is domiciled, and to be executed there: -- 2. Where the contract cannot be executed without a direct violation of some positive law of the country where the execution is sought to be enforced: -- and, 3. Where the citizen of a state, in which the contract is sought to be enforced, will sustain an injury by giving the contract or foreign laws effect.
Without considering in this place the bearing of either of these exceptions, it may be laid down as the general rule of law, deduced from the foregoing authorities, that the personal estate and effects of a foreign bankrupt living, and of a foreign solvent person dead, are to be governed by the laws of their domicile; and it results as a necessary consequence, that the personal estate and effects of a foreign insolvent person dead,
are to be subjected to the same rule; for the rule is not founded on the incidental circumstance of solvency or insolvency, but on the broad principle, that personal property is subject to the law which governs the person of the owner; whose rights are respected, and whose duties are enjoined, as well after death as in full life: a principle enforced by national comity, which is acquiring new efficacy and vigor in the enlightened and enlarged policy that now pervades the judicial tribunals of the civilized world.
If the above conclusion is correctly drawn, the defendants have committed no breach of duty; on the other hand, the administrator is entitled, in the proper court, to a decree, either directing the disposition and settlement of the estate according to the foreign laws, or ordering him to remit the property to the foreign executor for such settlement. And what reasonable objection can there be to such a course? Whose rights will be violated? What known and acknowledged rule of law be infringed?
But it is asserted, that as the property and the representative of the deceased are here, and as our courts have from the first settlement of the country sustained jurisdiction in cases where either the person or the property was here, the Court is therefore bound in this case to render judgment for the plaintiff. To this it is replied, that it has not been the unvaried practice of our courts to sustain actions, where the property only of a foreigner, and not his person, has been within their jurisdiction; Robertson v. Kerr, 3 Mass. 25 , note; and it is also suggested, that the citation from Anc. Chart. 50, relates entirely to citizens of the colony who should be absent from their homes.
It is admitted, however, in this case, that the administrator is, for certain purposes, the representative of the deceased foreigner; and also that the judicial proceedings for obtaining possession of the property of the deceased must be regulated exclusively by the laws of this commonwealth; wherefore the defendants contend, that it is not a question of jurisdiction, in
which the rights of territorial sovereignty are involved, which the Court are to determine, but it is a rule of interpretation and decision only which they are to make, and which rule is to be enforced in conformity to those principles of international law before mentioned. Dixon's Exec. v. Ramsay's Exec. 3 Cranch 324.
The plaintiff also contends, that this Court, having jurisdiction, ought to enforce payment of the demands of creditors, upon the ground of positive law; and he relies on St. 1785, c. 12, § 1. This statute was not made with reference to insolvent estates. It relates to wills proved out of the State, and authorizes the granting of administrations ancillary to those where the original wills have been proved. It provides no new rules of distribution, nor is there any new provision on the subject of debts, and the bond itself does not in terms require their payment. The condition is that the administrator shall truly administer according to law, without saying what that law is. We say it is the law of the testator's domicile. In relation to the debts of a deceased solvent person no question like the present can arise. Neither does the statute of 1784, c. 2, for "the distribution of insolvent estates," relieve the case from embarrassment on the part of the plaintiff. That statute relates especially, if not exclusively, to citizens of this commonwealth, and to estates to be settled here, and not to estates of which the administrations are merely ancillary to foreign administrations. The administration in the case at bar is strictly ancillary. Stevens v. Gaylord, 11 Mass. 263 .
It is said, however, that the rights of succession and of bequeathing are subordinate to the claims of creditors and of our own citizens, and therefore the plaintiff ought to prevail; but it is to be observed, that notwithstanding the elaborate research of the plaintiff's counsel, not a case has been found in which such a claim as the present has been sustained. Many cases have been cited in which respectable judges have thrown out dicta to that effect, but they are expressed by way of caution to exclude conclusions, rather then to settle principles. In truth they can hardly be said to discuss them. (See the cases cited from Har. & M'Hen. and compare Harrison v.
Sterry, 5 Cranch 299, and Milne v. Moreton, 6 Binn. 361, with Dixon's Exec. v. Ramsay's Exec. 3 Cranch 324, and Holmes v. Remsen, 4 Johns. Ch. Rep. 488.) In the cases of Selectmen &c. v. Boylston, 4 Mass. 324 , Richards v. Dutch, 8 Mass. 515 , and Dawes v. Boylston, 9 Mass. 355 , in which it is intimated that the ancillary administrator may be held to pay debts due to creditors, the point did not arise, whether he was liable under circumstances like the present. No question of insolvency was started; the statute was not analyzed; and the reasons which in Richards v. Dutch led the Court to refer the legatee to the foreign tribunal, are still stronger in the case of a creditor. The statute furnishes no reason for the qualification in favor of creditors; there is no series of precedents to sanction it; there is nothing to be drawn from the argument ab inconvenienti which does not apply with equal force to a creditor as to a legatee; national comity will surely respect the rights of a legatee; national comity will surely respect the rights of a legatee with as much vigilance as those of a creditor. To establish the claims of the plaintiff, as a general rule of law, will lead to manifold inconveniences, and in many cases to great injustice. Harvey v. Richards, 1 Mason, 421, 423.
As it regards the inequality arising from the marshalling of assets, there is no practical injustice in thus referring the domestic creditor to the foreign tribunal, for in entering into contracts with foreigners he well understands that he incurs the risk of seeking his debt in a foreign land, and indeed the very course of his dealing will lead him in most cases to prefer his claim where his debtor is domiciled; and if property happens to be found where the creditor lives, then if the property is remitted, such claim will be remitted with it, or if a settlement is ordered, where the property is found, according to the foreign law, then the claimant on the spot will at least stand with every advantage over absent creditors for enforcing his claim.
With respect to the exception, that the lex domicilii is not to govern where citizens may sustain an injury by giving the foreign laws effect, it may be asked, is this exception founded on the principles of natural justice? Is not the true rule this,
that each nation shall lend the aid of its tribunals for the purpose of enforcing the rights of all persons having title to the fund, and not use those tribunals as mere instruments to secure the claims of its own citizens, without regard to the rights of others? And though different remedies may be afforded by different countries, and therefore some claims may be preferred to others, vet it is not our province to seek to remove such inequalities by adopting arbitrary rules of our own with regard to foreigners. It is our true policy to administer equal and impartial justice between them and our own citizens, on the principle of an international law, and thus exhibit the wisdom of our government and the integrity of our courts, and hold forth an unerring example for other nations to follow.
But the Court are not called upon to decide the question as it regards our own citizens. Bruce, it is agreed, is a foreigner, and though Sheafe and Lenox are citizens of the United States, the defendants contend that they are not thereby virtually citizens of this State. Bissell v. Briggs, 9 Mass. 464 ; Pearsall v. Dwight, 2 Mass. 89 ; Greenwood v. Curtis, 6 Mass. 380 ; Stevens v. Gaylord, 11 Mass. 269 .
The defendants believe, on the authority of Stevens v. Gay lord and Harvey v. Richards, that it is in the discretion of the Court, either in this present case, or upon a direct appeal from the court of probate, to decree a distribution here according to the lex domicilii, or to direct the property to be transmitted for distribution by the executor in Calcutta, according as the interest of the estate shall require.
PARKER C. J. We are satisfied, that the facts appearing in these pleadings show no breach of the condition of the bond.
The administration was granted here upon a copy of a will previously proved in a foreign country, in which an executor was appointed, who became duly qualified to act as such in the country where the will was proved. The testator had his domicile there at the time of his death, and the effects collected here are wanted there to enable the executor to pay the creditors of the deceased, his estate being in fact insolvent. The administration here is therefore purely ancillary, and the administrator
here is only the deputy or agent of the executor abroad; [Note p142-1-1] so that whatever effects he may have collected here are to be sent to the foreign executor, unless by virtue of our laws he is compellable to appropriate those effects to the payment of debts which may be due to citizens of this commonwealth or of the United States. This is an important question, which it is not necessary to decide in this action, because, admitting such to be the duty of the administrator, the creditors, at whose instance this action is instituted, have not brought themselves within the principles which alone can sustain a suit upon the probate bond. In order to sustain the action for the benefit of a creditor, if the estate be solvent, the debt must have been ascertained by a judgment of court, after which there must have been a demand of satisfaction upon the administrator. If the estate be insolvent, the debt must have been ascertained by commissioners appointed by the judge of probate, who thereupon shall have made his decree of distribution, on which a demand must likewise have been made upon the administrator by the creditor who would cause the bond to be sued. [Note p142-1-2] In relation to the debt of Lenox and Sheafe, no judgment has been recovered, and yet the estate administered upon is treated as solvent, for the judge has decreed payment of the whole sum due. His decree in this respect is a nullity, and the non-performance of it is no breach of the bond. If the estate were solvent, then the administrator would pay on demand without any decree; if he did not, a suit might be brought and the goods and estate of the deceased taken in execution, or a suit might then be brought upon the bond; for it is only after such a process that the sureties on the bond are responsible. The recovery of a judgment, when the estate is not insolvent, is made by the statute a condition precedent to a suit on the administration bond. [Note p142-2]
Neither is the non-payment of the debt of Bruce a forfeiture of the bond. The decree of the judge of probate respecting this debt is void, for the reason before stated, that it awards payment of the whole debt on the ground that the effects in the hands of the administrator were sufficient to pay all the debts, that is, that the estate was solvent; which, if true, shows that the judge of probate had no authority
to make a decree respecting it. But this debt was rejected by the commissioners, a suit has been brought upon it, and judgment recovered, and we will suppose that a demand has been made upon the administrator, though this fact is not stated; nevertheless we think there is no forfeiture of the bond. Bruce, the creditor, is a British subject, and had, at the time when the suit was commenced, and now has, his domicile in London in the kingdom of Great Britain. Though the debt of the deceased to him may have been contracted here, it must be referred to the laws of the country of the debtor for settlement; and it ought not to be in the power of a British subject to disturb the legal course of settlement of an estate, by claiming payment in whole, of the mere ancillary administrator in a foreign country, when by means thereof all the other creditors may be greatly injured. The fact appearing in the pleadings, that the estate of the deceased is insolvent, and that the administration granted here is not original but ancillary, it is the duty of the administrator here to remit all the effects which he may collect, to his principal, unless our own citizens may be creditors and the funds should be retained for their use. Bruce is not in that condition, but is subject entirely to the laws of Great Britain, and should not be allowed to intercept the due course of administration in his own country. For these reasons we think the non-payment of his debt, though ascertained by a judgment, is no breach of the condition of the administration bond.
Thus this action is determined without touching the questions upon which it was supposed it would turn, which are of a novel and delicate nature, and though often glanced at, do not appear to have been decided either in this or any other State of the Union. We wish to avoid any thing which may be construed into a conclusive adjudication, and yet are of opinion that it will be useful to throw out for consideration the results of our reasonings upon this subject.
If the technical difficulties upon which this cause has been decided had not occurred, but the estate had been rendered insolvent here, and a decree of distribution for a proportion had been issued, or if the debt of Lenox and Sheafe had
been ascertained by a judgment, and the pleadings to a suit on the bond had been the same in that case as now, the question would be, whether the funds collected here by an ancillary administration should be appropriated to the payment of such debts as might be regularly proved here, notwithstanding it was made to appear that the whole estate was insufficient to pay all the debts, and that the effects here were wanted by the executor abroad, to enable him duly to administer the estate. It has been contended that this should be done, because the administrator has given bond here in the same manner as if this were the original administration, and because the statute which authorizes this administration, requires that the judge of probate shall settle the estate in the same way and manner as he would if the original will had been proved here. With respect to the bond, it will be saved by a faithful administration of the estate according to law; and with respect to the settlement by the judge of probate, this must be understood to authorize him to require the administrator to account, and that the due course of proceedings in the probate office shall be observed. It certainly cannot be construed to mean that in all cases a final settlement of the estate shall take place here; if it did, then if there were no debts here, and none to claim as legatees or next of kin, it would be necessary for all such to prove their right and receive their distributive shares here, notwithstanding the settlement must in such case be made according to the laws of the country where the deceased had his domicile. But we think in such case it would be very clear, that the assets collected here should be remitted to the foreign executor or administrator; for it seems to be a well settled principle, that the distribution is to be made according to the laws of the country where the deceased was domiciled; [Note p144-1] and if any part is to be retained for distribution here, it will be only by virtue of some exception to this general rule, or because the parties interested seek their remedy here; in which case it might be within the legal discretion of the court here to cause distribution, or to remit, according to the circumstances and condition of the estate. [Note p144-2]
An exception to the general rule grows out of the duty
of every government and its courts, to protect its own citizens in the enjoyment of their property and the recovery of their debts, so far as this may be done without violating the equal rights of creditors living in a foreign country. In relation to the effects found within our jurisdiction and collected by the aid of our laws, a regard to the rights and interests of our citizens requires that those effects should be made answerable for debts due them, in a just proportion to the whole estate of the deceased and all the claims upon it wherever they may be. In the several cases which have come before this Court, where the legal character and effects of an ancillary administration have been considered, the intimations have been strong, that the administrator here shall be held to pay the debts due to our citizens. The cases Richards v. Dutch, Dawes, Judge &c. v. Boylston, Selectmen of Boston v. Boylston, and Stevens v. Gaylord, are of this character. In all these cases, however, we must suppose the Court had reference to a solvent estate, and in such case there seems to be no question of the correctness of the principle; for it would be but an idle show of courtesy to order the proceeds of an estate to be sent to a foreign country, the province of Bengal for instance, and oblige our citizens to go or send there for their debts, when no possible prejudice could arise to the estate, or those interested in it, by causing them to be paid here; and possibly the same remark may be applicable to legacies payable to legatees living here, unless the circumstances of the estate should require the funds to be sent abroad. Whether citizens of other States claiming payment of their debts of the administrator here, are to be put upon the same footing with citizens of Massachusetts, by virtue of the privileges and immunities secured to them by the constitution of the United States, is a point which we do not now decide. But without doubt the courts of the United States, having full equity powers, would enforce payment upon the principles above states, where there is no suggestion of insolvency of the estate. There would be no doubt, we think, that payment of debts by the administrator here, after sufficient proof that
they were due and an allowance of his account therefor by the probate court with proper notice, would be faithful administration according to the condition of his bond, and would be a proper way of accounting to the principal administrator abroad.
In regard to effects thus collected within our jurisdiction, belonging to an insolvent estate of a deceased person having his domicile abroad, the question may be more difficult. We cannot think, however, that in any civilized country advantage ought to be taken of the accidental circumstance of property being found within its territory, which may be reduced to possession by the aid of its courts and laws, to sequester the whole for the use of its own subjects or citizens, where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government. Under the English bankrupt system, foreigners as well as subjects may prove their debts and share in the distribution. Without doubt, in other foreign countries where there is a cessio bonorum, or other process relating to bankrupts' estates, the same just principle is adopted. It was so under our bankrupt law while that was in force, and no reason can be suggested why so honest and just a principle should not be applied in the case of insolvent estates of deceased persons. It is always practised upon in regard to persons dying within our jurisdiction, having had their domicile here; that is, creditors of all countries have the same right as our own citizens, to file their claims and share in the distribution. There cannot be then a right in any one or more of our citizens, who may happen to be creditors, to seize the whole of the effects which may be found here, or claim an appropriation of them to the payment of their debts, in exclusion of foreign creditors.
It is said this is no more than what may be done by virtue of our attachment law, in regard to the property of a living debtor who is insolvent. But the justness of that law is very questionable, and its application ought not to be extended to cases, by analogy, which do not come within its express provisions.
What then is to be done with the effects collected here
belonging to an insolvent estate in a foreign country? Shall they be sent home in order to be appropriated according to the laws of that country? This would often work great injustice, and always great inconvenience, to our own citizens, whose debts might not be large enough to bear the expense of proving and collecting them abroad; and in countries where there is no provision for an equal distribution the pursuit of them might be wholly fruitless. As in Great Britain, our citizens, whose debts would generally be upon simple contract, such as bills of exchange, promissory notes, accounts, &c. would be postponed to creditors by judgment, bond, &c., and even to other debts upon simple contract which might be preferred by the executor or administrator. It would seem too great a stretch of courtesy to require the effects to be sent home and our citizens to pursue them under such disadvantages. What then shall be done to avoid, on the one hand, the injustice of taking the whole funds for the use of our citizens to the prejudice of foreigners, when the estate is insolvent, and on the other, the equal injustice and greater inconvenience of compelling our own citizens to seek satisfaction of their debts in distant countries?
The proper course would undoubtedly be, to retain the funds here for a pro rata distribution according to the laws of our State among the citizens thereof, having regard to all the assets, either in the hands of the principal administrator or of the administrator here, and having regard also to the whole of the debts which by the laws of either country are payable out of those assets, disregarding any fanciful preference which may be given to one species of debt over another, considering the funds here as applicable to the payment of the just proportion due to our own citizens; and if there be any residue, it should be remitted to the principal administrator, to be dealt with according to the laws of his own country, the subjects of that country, if there be any injustice or inequality in the payment or distribution, being bound to submit to its laws. [Note p147-1] The only objection which can be made to this mode of adjusting an ancillary
administration upon an insolvent estate, is, the difficulty and delay of executing it. The difficulty would not be greater than in settling many other complicated affairs, where many persons have interests of different kinds in the same funds. The powers of a court of chancery are competent to embrace and settle all cases of that nature, even if the powers of our court of probate are not sufficiently extensive; which however is not certain. The administrator here should he held to show the condition of the estate abroad, the amount of property subject to debts, and the amount of debts, and a distribution could be made upon perfectly fair and equitable principles. The delay would undoubtedly be considerable, but this would not be so great an evil as either sending our citizens abroad, upon a forlorn hope, to seek for the fragments of an insolvent estate, or paying the whole of their debts out of the property without regard to the claims of foreign creditors. And if the probate court has not sufficient power to make such an equitable adjustment, a bill in equity, in which the administrator here should be the principal respondent, would probably produce the desired result, as then time and opportunity could be given to make known the whole condition of the estate, and all persons interested might be heard before any final decree; in the mean time the administrator could be restrained from remitting the funds until such decree should be passed.
Rejoinder adjudged good.
[Note p136-1] Solomons v. Ross, 1 H. Bl. 131, note; Jollet v. Deponthieu, ibid. 132, note; Holmes v. Remsen, 4 Johns. Ch. R. 460, 476, 480; Hunter v. Potts, 4 T. R. 182; Sill v. Worswick, 1 H. Bl. 665; Philips v. Hunter, 2 H. Bl. 405; Smith v. Buchanan, 1 East, 11; Bank of Scotland v. Cuthbert et al. 1 Rose's Bankr. Cas. 462, 478; Selkrig v. Davies, 2 Rose's Bankr. Cas. 291 and 2 Dow, 230; Neal v. Cottingham, 1 H. Bl. 132, note; Odwin v. Forbes, 1 Buck's Bankr. Cas. 57; Cooper's Bankr. Law, 27, 30; Bird v. Caritat, 2 Johns. R. 345; Goodwin v. Jones, 3 Mass. 517 .
[Note p136-2] Feaubert v. Turst, Prec. Ch. 207; S. C. 1 Bro. Parl. Cas. 38 (2nd ed. p. 129); Medway v. Needham, 16 Mass. 157 ; Holmes v. Remsen, 4 Johns. Ch. R. 472; Bank of Scotland v. Cuthbert, 1 Rose's Bankr. Cas. 481.
[Note p136-3] Potter v. Brown, 5 East, 124; Pipon v. Pipon, Amb. 25; Burn v. Cole, ibid. 415; Thorne v. Watkins, 2 Ves. sen. 35; Bruce v. Bruce, 2 Bos. & Pul. 229, note; Sill v. Worswick, 1 H. Bl. 665; Philips v. Hunter, 2 H. Bl. 402, Hunter v. Potts, 4 T. R. 182; Bempde v. Johnstone, 3 Ves. jun. 198; Somerville v. Somerville, 5 Ves. jun. 750; Balfour v. Scott, 6 Bro. Parl. Cas. 550; Hog v. Lashley, ibid. 577; Kilpatrick v. Kilpatrick, ibid. 584; Drummond v. Drummond, ibid. 601; Toller's Law of Ex. (3d ed.) 387.
[Note p136-4] Desesbats v. Berquier, 1 Binn. 336; Guier v. O'Daniel, ibid. 349, note Dixon's Exec. v. Ramsay's Exec. 3 Cranch, 319; Harvey v. Richards, 1 Mason, 381; Holmes v. Remsen, 4 Johns. Ch. R. 460; Richards v. Dutch, 8 Mass. 515 ; Dawes v. Boylston, 9 Mass. 355 .
[Note p137-1] Voet, lib. 38, tit. 17, § 34; Denisart, Collection, &c., voc. Domicile, § 3, 4; Vinnii Quaest. Select. lib. 2, c. 19; Bynk. Queast. Jur. Priv. lib. 1, c. 16; Huber. Prealect. part. 1, lib. 3, tit. 13, § 21; ibid. part 2, lib. 1, tit. 3, § 15; 3 Dallas, 377; Heinec. De Testamentifactione, tom. 2 (ed. 1746, 4to.), p. 971, § 30; Lord Kaimes's Princ. Eq. bk. 3, c. 8, § 4; Ersk. Inst. bk. 3, tit. 9, § 4; 1 Collect. Jurid. 324, 329; Vattel, liv. 2, § 85, 109, 110.
[Note p137-2] Robinson v. Bland, 2 Burr. 1080; Holman v. Johnson, Cowp. 343; Mostyn v. Fabrigas, ibid. 175; Smith v. Buchanan, 1 East, 6; Melan v. Fitzjames, 1 Bos. & Pul. 138; 2 Fonbl. 443, bk. 5, c. 1, § 6; 3 Dallas, 370; Huber. part. 2, lib. 1, tit. 3, § 7, et seq.; Pearsall v. Dwight, 2 Mass. 84 ; Barrell v. Benjamin, 15 Mass. 357 ; Greenwood v. Curtis, 6 Mass. 377
[Note p142-1-1] Harvey v. Richards, 1 Mason 381; Stevens v. Gaylord, 11 Mass. 256 ; Case of Miller's estate, 3 Rawle 312; Potter v. Titcomb, 7 Greenl. 316; Campbell v. Sheldon, 13 Pick. 8 .
[Note p142-1-2] Revised Stat. c. 70, § 4.
[Note p142-2] Revised Stat. c. 70, § 3. See Newcomb v. Wing, post, 170, note 1; Ring v. Burton, 5 Greenl. 45; Potter v. Titcomb, 7 Greenl. 302; Judge of Probate v. Briggs, 5 N.H. 66; Coffin v. Jones, 5 Pick. 61 ; Dawes v. Sweet, 14 Mass. 105 ; Prescott v. Parker, 14 Mass. 429 .
[Note p144-1] Pipon v. Pipon, Ambler, 25; Bruce v. Bruce, 2 Bos. & Pul. 229, note; Olivier v. Townes, 14 Martin 99; Shultz v. Pulver, 3 Paige 182; De Sobry v. De Laistre, 2 Harr. & Johns. 193, 224, 228; Holmes v. Remsen, 4 Johns. Ch. R. 460; S. C. 20 Johns. R. 229; Vattel, bk. 2, § 85, 103, 110, 111; Harvey v. Richards, 1 Mason 418; Story on Conflict of Laws, 403 et seq.; Jennison v. Hapgood, 10 Pick. 100 ; Decouche v. Savetier, 3 Johns. Ch. R. 190; Guier v. O'Daniel, 1 Binn. 349; Williamson v. Smart, Taylor, 219; Cameron & Norw. 146.
[Note p144-2] See Jennison v. Hapgood, 10 Pick. 100 ; 1 Story on Equity, 552.
[Note p147-1] Davis v. Estey, 8 Pick. 475 ; Harvey v. Richards, 1 Mason 381; Jennison v. Hapgood, 10 Pick. 77 ; Case of Miller's estate, 3 Rawle 312; Hooker v. Olmstead, 6 Pick. 481 ; Richards v. Dutch, 8 Mass. 506 ; Harrison v. Sterry, 5 Cranch 289; Milne v. Moreton, 6 Binn. 353, 361; Olivier v. Townes 14 Martin 93, 99; De Sobry v. De Laistre, 5 Harr. & Johns. 193, 224; Holmes v. Remsen, 20 Johns. R. 265; Decouche v. Savetier, 3 Johns. Ch. R. 190; Wms. on Executors, 208; Story on Conflict of Laws, 423; 2 Kent's Comm. (2d edit) 433, 434.
In this State, by the Revised Statutes it is enacted, that the estate of a deceased person, insolvent, shall, as far as practicable, be so disposed of that all his creditors, here and elsewhere, may receive each an equal share, in proportion to their respective debts. Revised Stat. c. 70, § 23.