In re Accounting of Hughes

Andrews, J.

The surrogate of the county of Kings had jurisdiction to grant letters of administration of the goods, chattels and effects of the intestate, Peter Hughes, within this State by virtue of subdivision 4, sec. 23, art. 2, tit. 2, chap. 6, part 2 of the Bevised Statutes. The intestate died at Braddock, Pa., of which State he was an inhabitant, leaving no assets in this State, but leaving assets in Pennsylvania, which were subsequently brought into the county of Kings, and were within that county when the letters were granted.

*60 So, also, the surrogate had jurisdiction on the final accounting of the administrator to decree final distribution of the estate of the intestate in his hands.

Where there are two administrators of a single estate, one in the place of the domicile of the testator or intestate and the other in a foreign jurisdiction, whether the courts of the latter will decree distribution of the assets collected under the ancillary administration, or remit them to the jurisdiction of the domicile, is not a question .of jurisdiction, but of judicial discretion depending upon the circumstances of the particular case. This is the rule declared by Story, J., in the leading case of Harvey v. Richards ( 1 Mason, 380 ), and the doctrine of that case has been expressly affirmed by this court in Parsons v. Lyman (20 N. Y. 103), and Despard v. Churchill (53 id. 192 ). This doctrine, however, does not interfere with the general principle of law that personal property is distributable, and that succession thereto is regulated, by the law of the decedent’s domicile. The courts of the country, where the ancillary jurisdiction is granted, when decreeing distribution, apply the law of the domicile, unless such application will interfere with the rights of domestic creditors, or infringe some controlling principle of public policy.

(Harvey v. Richards, supra ;

Story Con. Laws, § 524;

Dawes v. Head, 3 Pick. 130 .)

There being no principle of public law requiring the assets of a decedent to be remitted for distribution to the authority or jurisdiction of the domicile, it remains to consider whether the decree of the surrogate, in this case, remitting the assets in the hands of the New York administrator to the Pennsylvania administrator for distribution is justified by a sound judicial discretion in view of the particular circumstances. The administration here was prior in point of time. The letters to the appellant were issued January 5,1880. The administrator in Pennsylvania was appointed January 12,1880, upon the request of Hughes, the New York administrator, who became surety upon his bond. The assets in the hands of the New York administrator ready for distribution amount to $31,827.16, and comprise the bulk of the estate. The intes *61 tate left five brothers and sisters, his only next of kin, all of whom reside in this State, and presumably consent to distribution here. It is not denied that the rule of distribution is the same in Hew York as in Pennsylvania.

It is assigned, as one reason in support of the decree of the surrogate, that there are creditors of the intestate in Pennsylvania whose debts are unpaid. If there are such creditors entitled to payment out of the fund in the hands of the administrator here, it would afford a reasonable ground for remitting it to the jurisdiction of the domicile. But the proof not only fails to show affirmatively the existence of creditors in Pennsylvania, but presumptively negatives their existence. The foreign administrator was permitted, upon his application to intervene on the accounting before the surrogate, to claim that there were such creditors. But he produced no evidence to substantiate the claim. On the contrary, it was shown by the testimony of the appellant, which was uncoritradicted, that soon after his brother’s death he went to Braddock, and after diligent inquiry was only able to find a debt of $400, and some small debts to servants and physicians owing by the intestate, lie further testified that the Pennsylvania administrator recovered, with his assistance, certain assets of the intestate there, and afterward informed the appellant by letter that he had in his hands a surplus of $2,600 after paying all debts due and demands against the estate. Under these circumstances, we think it was incumbent on the foreign administrator to show that there were unpaid debts of the estate in Pennsylvania requiring that the fund should be remitted, and that in the absence of such proof it must be presumed that there were none. “ If,’ ’ said Story, J., in Harvey v. Richards (supra), “ the foreign executor chooses to lie by and refuses to render any account of the foreign fund in his hands, so far as to enable the court here to ascertain whether the fund is wanted abroad for the payment of debts or legacies or not, he has no right to complain if the court refuses to remit the assets, and distributes them among those who may legally claim them.” The silence of the foreign administrator; the fact that *62 the intestate was a priest without a family, and not engaged in business; that no claim has been presented to the Hew York administrator by any creditor, although his appointment was known at the place of the intestates’ domicile, are circumstances which strengthen the conclusion from the other evidence that this alleged ground for remitting the fund has no foundation.

We can conceive of but one other plausible ground for supporting the claim that the fund should be remitted to Pennsylvania, and that is that the assets now in possession of the Hew York administrator were in Pennsylvania at the death of the intestate, and were taken therefrom and brought into this State without authority of law. It appears that the bonds and securities were at the intestate’s death in his house at Braddoclc, in charge of his housekeeper. The appellant, who resided in Brooklyn, went to Pennsylvania shortly after the testator’s death, and after consulting counsel in Pittsburgh, and being advised that he had the right to do so, and believing that there were sufficient assets remaining in that State to pay all the debts there, brought the bonds and securities to Brooklyn and immediately applied for and obtained letters of administration there. The removal by the appellant of the assets from Pennsylvania was illegal. The jurisdiction over the assets of an intestate is local, and upon his death their care devolves of necessity upon the sovereignty of the country where they may be, until a legal representative of the intestate is appointed who shall be entitled to their custody.

(Heirs of Porter v. Heydock, 6 Vt. 374 .) The right of the domestic sovereignty over vacant assets pending the appointment of an administrator, besides being founded upon necessity, arises also from the general duty of the State to guard the interests of domestic creditors and claimants. Where assets so situated have been illegally removed from the jurisdiction of the domicile to the prejudice of domestic creditors, or others interested in the estate, it would we conceive be the plain duty of the courts in another jurisdiction where they were found to direct their return to the jurisdiction of the domicile. This course would be alike demanded by a sense of justice and the comity of States. Aremoval under such *63 circumstances would rightly be considered an act of usurpation to which courts would not lend their sanction. But conceding the illegality of the removal of the assets from Pennsylvania, how does the case now stand? The surrogate found as a fact that the removal by the appellant was without any wrongful intent. He was one of the next of kin, and none of them resided in Pennsylvania. There are no unpaid creditors in that State, and the only persons interested in the distribution are in the State of New York. The assets being in fact here, the surrogate of Kings county acquired jurisdiction to grant administration. He was not deprived of jurisdiction because the assets were irregularly bi’ought here, nor does that fact deprive him of jurisdiction to decree distribution. The rights of all parties entitled to protection will be fully protected by a distribution by our courts. The only difference between a distribution here and a remission of the fund to Pennsylvania for distribution there, is that in the latter case the fund would be subjected to double commissions, the surrogate here having by his decree awarded commissions to the appellant. It would, “be an idle show of courtesy,” under these circumstances to remit the fund to the foreign jurisdiction when the only effect would be to deplete it by unnecessary charges and expenses to the prejudice of all the parties beneficially interested.

In Guier v. O'Daniel (1 Binney, 349, note), the court in Pennsylvania distributed the property of an intestate domiciled in Delaware according to the laws of the domicile. In Parsons v. Lyman (supra)

the court directed a residuum to be remitted to Connecticut, the jurisdiction of the domicile, because a question had arisen as to the construction of the will of the decedent, in respect to which the courts of Connecticut differed from our own. And it appeared that the executor, and one of the beneficiaries, and most of the assets were in that State. In Despard v. Churchill (supra)

the court remitted the assets to California, because the bequests contained in the will, although valid by the law of California, the place of the testator’s domicile, were invalid here. Both these cases turned upon special circumstances, but in both the court recognized the jurisdiction *64 asserted in Harvey v. Richards .

We think the surrogate erred in refusing to decree distribution.

The judgment of the General Term and the decree of the surrogate should therefore be reversed, and the case remitted to the surrogate for further proceedings in accordance with this opinion, with costs to both parties to be "paid out of the estate.

All concur.

Judgment accordingly.