Freeman's Appeal

68 Pa. 151 | Pa. | 1871

The opinion of the court was delivered,

by Read, J.

Isaac Brown Parker died in Burlington, N. J., where he was domiciled, on the 10th September 1865, having made his will on the 18th August in the same year, which was admitted to probate by the surrogate of Burlington county on the 5th October following, and letters testamentary were issued to the executors, John Brown Parker and Frederick Watts, who were both citizens of Pennsylvania. On the 30th November 1865, letters testamentary were issued by the register of wills of the county of Philadelphia to the said executors.

A first and second account embracing all the assets of the estate were filed by the executors in New Jersey, and allowed by the Orphans’ Court, but no distribution was made, that according to the practice of that state being done in the Court of Chancery upon a bill filed, praying for a decree of distribution under the will. On the 13th February 1868, the executors filed their first account with the register of wills of Philadelphia county, which embraced only the Pennsylvania assets, which had been also embraced in the New Jersey accounts. This account was audited, the report of the auditor confirmed, and the decree of the Orphans’ Court affirmed by the Supreme Court on the 11th May 1869. On the 27th March 1869, in Parker’s Appeal, 11 P. F. Smith 478, the Supreme Court held that the Pennsylvania assets were not to be transmitted to the executors of the domicil (New Jersey) for distribution, there being domestic claimants within the jurisdiction of the ancillary administration. It will be observed that all the proceedings in the courts of Pennsylvania only embraced and applied to the Pennsylvania assets. There was no attempt or pretence to distribute the New Jersey assets in this state.

On the 15th April 1870, Mrs. Marcia R. Freeman, a daughter and legatee of the testator, presented her petition to the Orphans’ Court, praying a decree should be made, ordering the executors to pay her her share of all the assets of the estate for distribution, including the New Jersey assets, over which the court never had assumed jurisdiction, as well as the Pennsylvania assets, over which they had plenary power which they had exercised.

The simple question was then presented, Had the ancillary administration any rights or power over the New Jersey assets in the hands of the executors of the domicil which are for distribution by the tribunals of that state ? The reasoning in Parker’s Appeal, which shows the ancillary administration should not transmit its assets to the principal administration, á fortiori shows the principal administration cannot be called upon to transmit its assets to the ancillary administration. Upon general principles no such decree could be made by the Orphans’ Court, nor is any such power given to it by the language of the Act of Assembly: Lewis v. County of Chester, 10 P. F. Smith 325. The original will was proved in New Jersey, and remains of record there, and a copy of it duly authenticated was produced for probate to the register here, and letters testamentary were issued to the executors under the 12th section of the Act of 15th March 1832. The 16th section of that act, prescribing the form of bond to be given by a non-resident executor, shows exactly the power of these executors under the letters testamentary issued here: a shall make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased being within this Commonwealth.”

The domicil of the testator governs the form and construction of his will as to personal estate and as to its distribution, which is made by the appropriate tribunal in each state. It seems therefore to involve an absurdity to ask that the assets of the principal administration .should be transferred to the ancillary ' administration.

The reasons of the learned president judge for dismissing the petition are so satisfactory that

The decree or order is affirmed and appeal dismissed at the costs of the appellant.