10. But it must be conceded, that where there are no creditors beyond the limits of the principal administration, there is no reason why the debtors of the estate may not, by making payment to the personal representative in the place of the princi pal administration, obtain a valid release of the cause of action. And it is upon this ground, we apprehend, that it has been so often affirmed and decided, that, although the authority of the personal representative is limited to the state where he is appointed, he may nevertheless collect the effects of the decedent in any other country, and give a valid release to all who may have there incurred any liability to the estate.11

11. It is upon this ground we apprehend, that, as held by Nelson and Curtis, JJ. in Mackey v. Coxe,12 in every case of an auxiliary administration, it depends upon the discretion of the Probate Court granting such administration, after the satisfaction of all claims within that jurisdiction, or where none such exist, whether the remaining assets should be there distributed by the administration within that jurisdiction, or remitted to the principal administration for distribution there; and until that question is determined the ancillary administrator is in no default. 12. It must follow from this proposition and it is abundantly fortified by the decisions in the different American states13

upon the rule stated in the text. Stacy v. Thrasher, 6 How. U. S. 44; Hill v. Tucker, 13 How. 458; McLean v. Meek, 18 How. 16.

"Stevens v. Gaylord, 11 Mass. 256; Story, Conflict of Laws, §§ 515, 515 a, and cases cited.

18 How. U. S. Rep. 100.

"Heirs of Porter v. Heydock, 6 Vt. R. 374. This subject is considerably discussed in Dawes v. Head, 3 Pick. 128, which was the case of an ancillary administration, and the intimation here is, that where the whole property is not sufficient to pay all the debts, the creditors in the ancillary administration should only be paid their ratable proportion, taking the property and debts in both jurisdictions into account, and that the balance be remitted to the principal administration, to be then distributed to creditors there, in order to make them equal with the other creditors. But this rule has not been followed in more recent cases.

that so long as there are creditors within the jurisdiction of the ancillary administration, they will have a legal right to insist upon having all the assets within that jurisdiction there administered and distributed; and the residue in the hands of the ancillary administrator, whether he may be the same or a different person from the one holding the principal administration, may be remitted to the principal administration for distribution there, or the administrator in the ancillary administration may be ordered to pay over the amount to those persons who shall be found entitled to receive the same in the principal administration, so as to enable them to take the benefit of any security for faithful administration in the ancillary jurisdiction, as was done in Heirs of Porter v. Heydock.18 This question is elaborately discussed in Jennison v. Hapgood.14

13. While the principal administration, so far as all claims against the estate are concerned, unless it be creditors in the place of an ancillary administration, is entitled to receive and distribute the whole estate; and as it will make no difference as to all other claimants whether the distribution is in fact made in one place or another, since, wherever made, it must be made according to the law of the place of the domicil of the deceased, the ancillary administrator has no binding duty of administering, beyond collecting and remitting to the principal

14 10 Pick. 77. This subject is considerably discussed in Churchill v. Boyden, 17 Vt. R. 319. And the opinion here expressed is, that only resident creditors will be considered in an ancillary administration, and that such creditors will be paid in full, where the estate upon the whole is clearly sufficient for that purpose, and the balance remitted to the principal administration for distribution among the legatees or next of kin. It is, however, held, that this last is only by courtesy, and that a final distribution may be made in the place of the subsidiary administration, if for any reason it is deemed expedient. And it is also said, that in cases where the entire funds of the estate are insufficient to pay creditors in full, it is more common to make only a pro rata payment to the local creditors. This rule seems to be favored, in addition to cases elsewhere referred to by the following: Davis v. Estey, 8 Pick. 475; Miller's Estate, 3 Rawle, 312; Olivier v. Townes, 14 Martin, 93.

administrator, except so far as to satisfy the claims of creditors within his own jurisdiction. Hence a very strict construction has been adopted as to the extent of the claims of an ancillary administrator in regard to the effects of the deceased. As where the ancillary administration brought suit against a person who was indebted to, or had in his possession, money belonging to the estate in his hands, but who did not reside within the jurisdiction of the ancillary administration, it was held no recovery could be had, as such debt or money did not constitute assets within the jurisdiction, and that it made no difference that no other administration upon the estate had been taken, and that there were creditors within the ancillary jurisdiction unsatisfied.15 The ancillary administration cannot be allowed to draw into its jurisdiction any assets not locally situated within its limits.

14. It is upon this ground that some of the discrepancies, or apparent discrepancies, in the American cases, as to the right of the principal administrator to receive payment of a debt due the estate, where the debtor resides out of the jurisdiction, provided there are no unsatisfied creditors within that jurisdiction, may be reconciled. But so long as such creditors remain unsatisfied, a payment of debts in that jurisdiction to the principal administrator will afford no defence against a suit by an ancillary administrator appointed in that jurisdiction.16

♫ Abbott, Admr. v. Coburn, 28 Vt. R. 663.

15

Vaughn v. Barret, 5 Vt. R. 333; Shaw, Ch. J., in Rand v. Hubbard, 4 Met. R. 252. It is here held that debts due the estate in any state constitute a ground of probate jurisdiction in the place of the residence of the debtor, according to the rule of the English law that such debts constitute bona notabilia in the place of the residence of the debtor. Hilliard v. Cox, 1 Ld. Ray. 562. We have said nothing in our text in regard to the question of bona notabilia, which occupies considerable space in the English books on the settlement of estates, because it has no application to questions arising in the American states, except incidentally. It will be found sufficiently defined in 2 Black, Comm. 509. Where any person at the time of his decease had chattels, either in possession or action, in more than one diocese, of the value of £5 or more, it

15. There are some intimations in the American decisions, that where the assets in the ancillary administration are more than sufficient to pay the debts there, and all the property belonging to the estate is less than the debts, so that there will be a deficiency in the principal administration for payment of debts, that full payment is not to be made to the creditors in the ancillary administration.17 But unless there is some special statute to that effect,18 we do not well comprehend, upon general principles, how this blending of the two administrations can be effected. As no creditor, out of the jurisdiction of the ancillary administration, can present his claim before the commission of the ancillary administration, the personal representative can, strictly speaking, know nothing of any other creditor, and he has nothing to do with the general settlement of the estate. All claimants, except local creditors, should, more properly, be referred to the principal administration.19

16. The final distribution among all the claimants of an estate can more conveniently and, unless for special reasons it is otherwise ordered by an ancillary administration, should be made in the place of the principal administration.20 We shall have occasion to pursue this topic more in detail under the head of Settling Accounts and Marshalling Assets.

gave the archbishop or metropolitan of the province jurisdiction of the administration, which could therefore only be taken in the prerogative court of such province. Unfortunately, in the economy of the American governments, there is no provision for embracing different states in a prerogative administration, which would tend very much to simplify and render uniform the proceedings in the settlement of estates situated partly within the limits of different states. 17 Dawes v. Head, 3 Pick. 128; Davis v. Estey, 8 Id. 475.

18 Mass. Gen. Stat. c. 100, §§ 40, 42; 3 Met. 114.

19 Richards v. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 Mass. 387.

20 Fay v. Haven, 3 Met. R. 109; Wheelock v. Pierce, 6 Cush. 288. It is here held, that although the principal administrator have assets sufficient to pay all debts and take ancillary administration where there are creditors, he is not bound to pay these latter creditors beyond the amount received within that jurisdiction. They must resort to the principal administration, where the assets were received and are to be administered.

17. It may not be out of place to repeat here some portion of our discussion of this and analogous topics, in the late edition of Mr. Justice Story's Conflict of Laws.21

(1.) There is a very elaborate note of the American cases upon this general subject in the later editions of Kent's Commentaries, in which it is very clearly shown, that the law of this country recognizes no privity between the different administrations in different states, but that each is sovereign within its own limits, and none have any authority beyond that extent. To this point may be cited numerous leading cases from different states, where the subject is extensively discussed.23

(2.) The subject of remedies, in regard to the distribution of the estates of deceased persons, in the national tribunals, where the parties in interest reside in different states, has been considerably discussed in the Supreme Court of the United States. It is there settled that a creditor cannot have an execution in a court of the United States, so as to levy upon the property of an estate represented as insolvent, and which is in the course of settlement as such.24 Whether it is competent for state authority to compel foreign creditors, in all cases, to seek their remedies in the state courts against the estates of decedents, to the exclu

Story, Confl. Laws, Redfield's ed. §§ 529 a-529 m.

Vol. 2, pp. 434, 435.

"Goodall v. Marshall, 11 N. H. R. 88; Dawes v. Boylston, 9 Mass. R. 337; Stevens v. Gaylord, 11 id. 256; Porter v. Heydock, 6 Vt. R. 374; Bullock v. Rogers, 16 Vt. 294; Abbot v. Coburn, 28 Vt. R. 663; Fay v. Haven, 3 Met. R. 109; Gravillon v. Richard's Exr., 13 Louis. R. 293; Mothland v. Wireman, 3 Penn. R. 185. It was held, in an early case in Vermont, Hunt v. Fay, 7 Vt. R. 170, that where the principal administration was in one state, and a creditor having his domicil there failed to present his claim before the commissioners, by which he was barred from any recovery of the same in that state, that having removed into another state, where there was an ancillary administration, he could not present it there, his neglect to present it in the first instance having extinguished his debt. But according to present views, the debt was only barred as a claim upon the estate so long as he remained within that jurisdiction.

"Williams v. Benedict, 8 How. 107; Peale v. Phipps, 14 id. 368; Bank of Tennessee v. Horn, 17 How. 157.