it, that a legatee, who is able to adduce satisfactory evidence of his rights under such will, may, in a court of equity, obtain relief against those interested in the estate and who have been guilty of such suppression or destruction, on the ground of fraud, or spoliation and suppression.12 lently destroyed, without his consent or knowledge. Bulkley v. Redmond, 2 Bradf. Sur. Rep. 281; Chrisholm v. Ben, 7 B. Mon. 408; Graham v. O'Fallan, 3 Mass. 510. If a will be mutilated, or partially or wholly destroyed by the testator, or by his direction, while not in a competent state of mind to make an effective revocation, (ante, Part I. § 25, pl. 37, n. 64,) it will have no operative effect upon the instrument, and probate will be granted, the same as if no such act had been done, so far as the contents of the instrument can be ascertained. Rhodes v. Vinson, 9 Gill, 169; Apperson v. Cottrell, 3 Port. 51. In South Carolina, in a trial to set up a lost will, the declarations of the alleged testator that he had no will, or that he had destroyed his will, are competent evidence for the contestants. Durant v. Ashmore, 2 Rich. 184. And in this case the declarations of the plaintiff, that he did not believe the deceased left a will, are competent evidence against him. In New York the statute prescribes the requisite proof to establish a lost will. 2 Rev. Stat. 68, § 74. 1. That the loss must have occurred after the death of the testator, unless it happened fraudulently in his lifetime. 2. The contents must be clearly and distinctly established by two credible witnesses, a copy or draft being regarded equal to one witness. These proofs are indispensable in all courts and for all purposes. Harris v. Harris, 36 Barb. 88, 574. These questions, before the statute, were cognizable in equity, where the devisees (but not the heirs, whose remedy at law was held adequate) might maintain a bill to set up a will, claimed to have been revoked, and for that purpose to set aside the revoking will. Bowen v. Idley, 6 Paige, 46. But this jurisdiction is here controlled by the statute. In resisting the probate of a will, it is competent, upon general principles, to introduce any proof which shows that the instrument propounded is not a valid subsisting will; and for that purpose to show that the same was revoked by a subsequent will, which was fraudulently destroyed, or destroyed by the testator when incompetent to perform a testamentary act. Nelson v. McGiffert, 3 Barb. Ch. 158. "Lord Hardwicke, in Tucker v. Phipps, 3 Atk. 360. It is here said, "Where the will is destroyed or concealed by the executor, if the spoliation is proved plainly, (though the general rule is to cite the executor into the ecclesiastical courts,) the legatee may properly come here for a decree upon the head of 8. It seems to have been the settled practice of the English ecclesiastical courts to require all papers, referred to in the will in such a manner as to become important and essential portions of it, to be deposited in the registry of the court, the same as the will itself.13 But the court may, where any proper necessity exists therefor, order the will of any of the testamentary papers to be delivered out of the registry, to be used as evidence elsewhere, when necessary.14 But that will seldom be the case where the probate, as in most of the American states, is conclusive evidence of the will and its contents, both as to real and personal estate. 9. It is held in the English courts of equity, as we shall show more fully hereafter, that it is not competent for those courts to interfere with the probate of a will affecting only personal estate, the exclusive jurisdiction of that matter being in the ecclesiastical courts, and the same rule obtains in the American courts of equity.15 But it has sometimes been held, that where a particular legacy is obtained by fraud and imposition upon the testator, or under a promise of acting as trustee for the use spoliation and suppression." The same rule is established in Vermont. Mead v. Heirs of Langdon, cited in 22 Vt. Rep. 50. See also Buchanan v. Matlock, 8 Humph. 390. 13 1 Wms. Exrs. 289, 290, and notes. 14 Ibid. The latest order of this kind cited by Mr. Williams, is that of the will of Napoleon Bonaparte, with its codicils, which was delivered out of the registry, (after notarial copies had been made,) in order to be sent to the proper place of record in France. 1 Wms. Exrs. 290. See also Gibbs in re, 28 Law J. Prob. 90, which was where the executor resided abroad and had to be sworn to the requisite affidavit, verifying the will before commissioners appointed for the purpose, the original will went with the commission, and an exemplified copy was left in the registry. 15 Allen v. McPherson, 1 Phill. C. C. 133, and cases cited; Barnesly v. Powell, 1 Vesey sen. 284. See also 5 Beav. 469; Gaines v. Chew, 2 How. U. S. R. 619; Wild v. Hobson, 2 Vesey & B. 105. A court of equity has no jurisdiction to decide that the probate of a will is erroneous. Taylor v. Creugh, 8 Ir. Ch. Rep. 281. of another, a bill in equity will lie to compel the legatee to stand as trustee for the next of kin or person beneficially entitled.16 SECTION II. JURISDICTION OF MATTERS AFFECTING THE SETTLEMENT OF ESTATES. 1. The primary probate jurisdiction is in the place of the domicil of deceased. 2. No one can justify interfering with the estate except by letters testamentary. 3. The executor can only do necessary acts, admitting no delay, before probate. 4. Letters testamentary relate to the time of the decease. n. Executors de son tort; the nature and extent of their responsibility. 5. The authority of the executor or administrator is limited to state where granted. 6. There are some apparent objections to the rule. (1.) Where perfect title has been acquired by the personal representative. (2.) Where any other person has so acquired title. 7. With these, and similar exceptions, the authority is local. 8. Creditors and effects give jurisdiction for ancillary administration. 9. Such administration considered wholly independent. 10. Where no creditors beyond the principal administration, debtors everywhere may pay the personal representative there. 11. Where there are no remaining creditors, the ancillary administration may remit to the principal administration. 12. But so long as there remain creditors, they may insist upon a distribution there. 13. The ancillary administration strictly restricted to its own jurisdiction. 14. The principal administration may collect effects belonging to the estate in any jurisdiction where no creditors of the estate remain. n. The effect of bona notibilia in England, explained. 15. After payment of debts, funds should be remitted to principal administration. 16. The final distribution can be more conveniently made there. 17. Consideration of points discussed in Redfield's edition of Story's Conflict of Laws. "Kennell v. Abbott, 4 Vesey, 802; Lord Lyndhurst, in Allen v. McPherson, 1 Phill. C. C. 133, 144, 145. So equity will set aside a probate fraudulently obtained. Meadows v Kingston, Amb. 762; post, § 15, pl. 3, where the matter is more fully discussed. (1.) Citation of cases to show that there is no privity between the representatives of an estate in different states. (2.) The jurisdiction of the national courts not excluded, but essentially modified, by state proceedings in settlement of estates. (3.) Foreign creditors may recover judgment in national courts, but must present it to probate court before decree of distribution. (4.) But where assets are sufficient to pay all debts, the United States courts will, in equity, direct the personal representative to pay a judgment in those courts, before making distribution to legatees and next of kin. (5.) Discussion of the question of the necessity of universal heir having administration in foreign forum. (6.) That is not necessary, where the heir claims in his own right. (7.) Where the national courts assume to disregard the authority of the state courts, as to what the law of the state is, their decisions rest upon no sound principle. § 2. 1. THE jurisdiction of the probate of wills, and of everything pertaining to the settlement of estates is, primarily, exclusive in the probate court for the district in which the testator is domiciled at the time of his decease.1 This general rule is of such universal acceptance in all the American states, as scarcely to require any authority in its confirmation. Of such unqualified extent is this rule, that a will cannot be used as evidence affecting the title of personalty in any court of common law or equity, until it has been proved and allowed in the probate court,2 with the single exception of a bill in equity against the heirs and executor for a fraudulent suppression of the will as before stated.3 2. The only ground upon which an executor can justify any intermeddling with the estate, or any act towards the settlement of the same, is by the production of letters testamentary, with 1 Godolph. pt. 1, c. 22, § 2; 2 Black. Comm. 508; 1 Wms. Exrs. 264. Rex v. Netherseal, 4 T. R. 258, 260; 1 Wms. Exrs. 172; Strong v. Perkins, 3 N. H. Rep. 517, 518; Kittredge v. Fulsome, 8 id. 98. And a will made and proved abroad or in one of the American states, before it is used as evidence in any other state, must be there recorded. Wilson v. Tappan, 6 Ohio, 172; Bailey v. Bailey, 8 id. 239; Ives v. Allyn, 12 Vt. R. 589; Campbell v. Sheldon, 13 Pick. R. 8; Campbell v. Wallace, 10 Gray, 162. the probate of the will, from the Probate Court having the proper jurisdiction of the same.1 3. By the English law an executor could do many, indeed most acts pertaining to his office, except maintaining and defending suits, before proof of the will, or obtaining letters testamentary.5 But as in the American states an executor has no such legitimate authority under the will, before probate, we shall not enumerate these acts. It will be sufficient to state that these acts, under the American practice, are confined to two classes: 1. Those which are strictly necessary and indispensable, such as providing for the decent burial of the deceased. 2. Those which are requisite to preserve the property of the estate, and for the comfortable support of the family, until the will can be put in the way of probate." 1 Jarman, Perk. ed. 218; Ante, n. 1. 1 Wms. Exrs. 256, 263, and cases cited. And as a general thing, where the probate of the will is contested, a special administrator, pendente lite, as it is called, will be appointed, who will perform the necessary duties pertaining to the office of executor or administrator, until the controversy is determined. This will be controlled by the statutes of the different states. Those persons who wrongfully intermeddle with the goods or effects of any deceased person are denominated executors in their own wrong, or de son tort; and questions affecting their responsibility occupy considerable space in the English books. The American courts have sometimes held such persons liable to an action at the suit of creditors of the estate. But there has always been manifested a marked disposition here to narrow the range of such responsibility, and virtually to expunge the term from the law. It is, in itself, a subject resting upou no just basis of correlative rights and responsibilities; but operates chiefly in the nature of a penalty, for intermeddling with the effects of deceased persons. We have devoted no space to the topic in this work, because it is so nearly obsolete in the American courts, that it would seem unjust to the profession to tax them with the expense of what is only speculatively useful, when so much which is practically so has to be omitted. The early American cases discuss the topic only in a theoretical point of light, finally coming to the conclusion, that, if it were conceded that one may incur the responsibility of an executor in his own wrong, by an unauthorized inter |