Harvey v. Richards

| U.S. Circuit Court for the District of Massachusetts | May 15, 1818

STORY, Circuit Justice.

The question, which has now been argued, lies at the very foundation of the plaintiff’s suit, and is of great importance and no inconsiderable difficulty. I have taken *time to consider it; and after a full consideration of all the authorities, commented on with so much learning and ability by the counsel, I am now to pronounce the result of my own judgment on the case. For the purposes of the argument, it is assumed or conceded, that the testator ■(dying intestate as to the residue of his estate, of which distribution is now sought) was at his decease domiciled at Calcutta, in the East Indies; that his will has been duly proved, and administration there taken upon his estate by his executor; that the defendant has under the directions of that executor taken administration of the testator’s estate in Massachusetts, and in virtue thereof has received a large sum of money, which now remains in his hands; that no part of this money is wanted at Calcutta for the payment of any debts or legacies under the will; and that the plaintiff is a citizen of Rhode Island, and domiciled there; and, as one of the next of kin of the testator, is entitled to a moiety of the undevised residue of the testator’s estate. The question then is, whether, under these circumstances, this court as a court of equity can proceed to decree an account and distribution of the property so in the hands of the defendant; or is bound to order it to be remitted to Calcutta, to be distributed by the proper tribunal there.

There are some points involved in the argument, which may be disposed of in a few words. In the first place the distribution, whether made here or abroad, must be according to the law of the place of the testator’s domicile. This, although once a question vexed with much ingenuity and learning in courts of law, is nowso completely settled by a series of well considered decisions that it cannot be brought into judicial doubt. Vatt. b. 2, c. 8, § 110; Denizart, voce “Domicil,” §§ 3, 4; Voet, lib. 38, tit. 17, § 34; Vinn. Sel. Quest, lib. 2, c. 19; Van Leeouen, Censura Forensis, lib. 3, c. 12; Hub. par. 1, lib. 3, tit. 13, § 20, sub finem; Id. par. 2, lib. 1, tit. 3, § 15; Bynker-shoek, Quest. Priv. Juris, lib, 1, c. 16, pp. (Ed. 1767, folio) 334, 335; Kaimes, Pr. Eq. b. 3, c. 8, § 4; Ersk. Inst. b. 3, tit 9, § 4; Pipon v. Pipon, Amb. 25; Burn v. Cole, Id. 415; Thorne v. Watkins, 2 Ves. Sr. 35; Bruce v. Bruce, 2 Bos. & P. 229, note; 6 Brown, Parl. Cas. 566; Balfour v. Scott, Id. 550; Bempde v. Johnstone, 3 Ves. 198; Sill v. Worswick, 1 H. Bl. 690; Hog v. Lashley, 6 Brown, Parl. Cas. 577; Drummond v. Drummond, Id. 601; Phillips v. Hunter, 2 H. Bl. 402; Hunter v. Potts, 4 Term R. 182; Somerville v. Lord Somerville, 5 Ves. 750; Dixon’s Ex’rs v. Ramsay’s Ex’rs, 3 Cranch [7 U. S.] 319; Goodwin v. Jones, 3 Mass. 514" court="Mass." date_filed="1807-11-15" href="https://app.midpage.ai/document/goodwin-v-jones-6403134?utm_source=webapp" opinion_id="6403134">3 Mass. 514; Richards v. Dutch, 8 Mass. 500; Dawes v. Boylston, 9 Mass. 337" court="Mass." date_filed="1812-10-15" href="https://app.midpage.ai/document/dawes-v-boylston-6403933?utm_source=webapp" opinion_id="6403933">9 Mass. 337; Desesbats v. Berquier, 1 Binn. 336" court="Pa." date_filed="1808-04-02" href="https://app.midpage.ai/document/desesbats-v-berquier-6313347?utm_source=webapp" opinion_id="6313347">1 Bin. 336; Guier v. O’Daniel, Id. 349, note; Potter v. Brown, 5 East, 124. In the present case, the law of Calcutta, or rather of the province of Bengal, is,as I apprehend, the law of England; and as that is the same as the law of Massachusetts, the distribution would be the same, as if the testator had died domiciled here. In the next place, the court of chancery has an ancient and settled jurisdiction to decree an account and distribution of a testator’s and an intestate’s estate, on the application of the legatees or next of kin (Matthews v. Newby, 1 Vern. 133; Howard v. Howard, Id. 134; Goodwin v. Ramsden. Id. 200; Winchelsea v. Norcloffe, 2 Ch. R. 367; Mitf. Pl. Ch. 114; Coop. Eq. Pl. 39, 127); and supposing this to be a fit case for the application of its authority, the present suit would fall completely within that jurisdiction. In the next place, the equity powers and authorities of the courts of the United States are, in cases within the limits of their constitutional jurisdiction, co-equal and co-extensive, as to rights and remedies, with those of the court of chancery. The present is a suit between citizens of different states, over whom this court has an unquestionable right to entertain jurisdiction; and it will follow of course, that the plaintiff is entitled to the relief she prays for, if it be competent and proper for any court of equity to grant it.

Having disposed of these preliminary points, we may now return to the consideration of the great question in controversy. Stated in broad terms it comes to this, whether a court of equity here has competent authority to decree distribution of intestate property collected under an administration granted here, the intestate having died domiciled abroad, and the distribution being to be made according to the law of his foreign domicile. The counsel for the defendant deny such authority under any circumstances; the counsel for the plaintiff as strenuously assert it „

This is a question involving the doctrines of national comity, or, what may be more fitly termed, international law. And looking to it as a question of principle, it would not seem to be attended with any intrinsic difficulty. The property is here, the parties are here, and the rule of distribution is fixed. What reason then exists, why the court should not proceed to decree according to the rights of the parties? Why should it send our own citizens to a foreign tribunal to seek that justice, which it is in its own power to administer without injustice to any other person? I say without injustice, because it may be admitted, that a court of equity ought not .to be the instrument of injustice; and that if in the given case such would be the effect of its interposition, it ought to withhold its arm. This, however, would be an objection, not to the general authority, but to the exercise of it under particular circumstances. The argument, however, goes the length of denying the existence of that authority, whatever may be the circumstances of the case. Yet cases may be readily imagined, in which it might not be inequitable to interfere, nay, in which there might be very cogent reasons for interference. Suppose there are no debts abroad, and no heirs or legatees abroad, but all are here, and apply to the court for a decree of distribution; is the court bound to remit for the vain purpose of putting the legatees or distributees to great expense and delay in seeking their rights in a foreign tribunal? Suppose two executors are appointed by the testator, one abroad and one here (and such cases are not uncommon) — Chetham v. Lord Audley, 4 Ves. 72; De Mazar v. Pybus, Id. 644, — and the bulk of the property is collected here, and all the legatees are here; shall the court direct the domestic executor to remit the whole property to the foreign executor, because it is to be distributed according to the law of the foreign domicile? Suppose further, the executor here is himself the residuary legatee, or, in case of intestacy, the administrator here is the next of kin, and entitled to the surplus; shall he be required to remit the property abroad, that he may be there decreed to receive it again ? Suppose legacies, payable out of particular funds here, or a specific legacy of property here, shall not the legatee be entitled to recover of the administrator or executor here, because the testator was domiciled in a foreign country? Suppose a legacy to charitable uses in this country, good by our law, but which, from motives of policy, the courts of the foreign country decline to enforce; shall it be said, that our courts are bound to enforce, by remitting the property there, a policy, by which they are injured? Whatever may be thought of the last case, there can be no doubt, that the others present circumstances, where equity would strongly persuade us, that it would be the duty of our courts to entertain jurisdiction, and decide on the rights of the parties. There are many other cases, in which it would seem fit to vindicate and assert the proper rights of our citizens and our own laws. This very case, under one aspect, would have presented a question, of which our own tribunals might as justly have claimed an exclusive cognizance, and which, I trust, they would have decided with as much impartiality, as the tribunals of the testator’s domicile. Major Murray was an American citizen, born in Rhode Island; and if he left no lawful heirs (as has been argued in a former part of this case), his property here, supposing he had acquired no foreign domicile, would have undoubtedly fallen as an escheat to that state; and It would deserve consideration, whether the change of domicile would work any alteration in that respect. Under such circumstances, would it be proper to send the state of Rhode Island to solicit its rights from a foreign tribunal in the East Indies?

One objection urged against the exercise of the authority of the court is, that as national comity requires the distribution of the property according to the law of the domicile, the same comity requires, that the distribution should be made in the same place. This-consequence, however, is not admitted; and it has no necessary connexion with the preceding proposition. The rule, that distribution shall -be according to the law of the domicile of the deceased, is not founded merely upon the notion, that moveables have no-situs, and therefore follow the person of the proprietor; even interpreting that maxim in its true sense, that personal property is subject to that law, which governs the person of the owner. Sill v. Worswick, 1 H. Bl. 690. Nor is it, perhaps, founded upon the presumed intention of the deceased, that ali his property should be distributed according to the law of the place of his domicile, with which he is supposed to be best acquainted and satisfied; for the rule will prevail even against the express intention of the deceased, unless the mode in which that intention is expressed, would give it legal validity as a will. Desesbats v. Berquier, 1 Binn. 366" court="Pa." date_filed="1808-04-06" href="https://app.midpage.ai/document/benner-v-frey-6313351?utm_source=webapp" opinion_id="6313351">1 Bin. 366; 2 Hub., b. 1, tit. 3, § 4. It seems, indeed, to have had its origin in a more enlarged policy, founded upon the general convenience and necessities-of mankind; and in this view the maxim-above stated flows from, rather than guides, the application of that policy. The only reason, why any nation gives effect to foreign laws within its own territory, is the endless embarrassment, which would otherwise be introduced in its own intercourse with foreign-nations. The rights of its own citizens would be materially impaired, and, in many instances. totally extinguished by a refusal to-recognise and sustain the doctrines of for•eign law. The ease now under consideration is an illustration of the perfect justice and wisdom of this general practice of nations. A person may have moveable property and debts in various countries, each of which may have a different system» of succession. If the law rei sitae were generally to prevail, it would be utterly impossible for any such person to know in what manner his property would be' distributed at his death, not only from the uncertainty of its situation from its own transitory nature, but from the impracticability of knowing, with minute accuracy, the law of succession of every country, in which it might then happen to be. He would be under the same embarrassment, if he attempted to dispose of his property by a testament; for he could never foresee, where it would be at his death. Nay more, it would be in the power of his debtor, by a mere change of his own domicile, to destroy the best digested will; and the accident of a moment might destroy all the anxious provisions of an excellent parent for his whole family. Nor is this all. The nation itself, to which the deceased belonged, might be se, riously affected by the loss of his wealth, from a momentary absence, although his true home was in the centre of its own territory. These are great and serious evils, pervading every class of the community, and equally affecting every civilized nation-. But in a maritime nation, depending upon its commerce for its glory and its revenue, the mischief would be incalculable. The common and spontaneous consent of nations, therefore, established this rule from the noblest policy, the promotion of general convenience and hap. piness, and the avoiding of distressing difficulties, equally subversive of the public safety and private enterprise of all. It flowed from the same spirit, that dictated judicial obedience to the foreign commissions of the admiralty. “Sub mutuaevieissitudinis obtentu, damus petimusque vicissim,” is the language of the civilized world on this subject. There can be no pretence, that the same general inconvenience or embarrassment attends the distribution of foreign effects according to the foreign law by the tribunals of the country, where they are situate. Cases have been already stated, in which great inconvenience would attend the establishment of any rule, excluding such distribution. It may be admitted also, that there are eases, in which it would be highly convenient to decline the jurisdiction, and to remit the parties to the forum domicilii. Where there are no creditors here, and no heirs or legatees here, but all are resident abroad, there can be no doubt, that a court of equity would direct the remittance of the property upon the application of any competent party. The correct result of these considerations upon principle would seem to be, that whether the court here ought to decree distribution, or remit the property abroad, is a matter, not of jurisdiction, but of judicial ■discretion, depending upon the particular circumstances of each ease. That there ought to be no universal rule on the subject; but that every nation is bound to lend the aid of its own tribunals for the purpose of enforcing the rights of all persons having title to the fund, when such interference will not be productive of injustice or inconvenience, or conflicting equities.

It is farther objected, that a rule, which is to depend for its application upon the particular circumstances of each case, is too uncertain to be considered a safe guide for general practice. But this objection affords no solid ground for declining the jurisdiction, since there are an infinite variety of cases, in which no general rule has been or can be laid down, as to legal or equitable relief, in the ordinary controversies before judicial tribunals. In many of these, the difficulty is intrinsic in the subject matter; and where a general rule -cannot easily be extracted, each case must, and indeed ought to, rest on its own particular circumstances. The uncertainty, therefore, is neither more nor less than what belongs to many other complicated transactions of human life, where the law administers relief ex aequo et bono.

Another objection, addressed more pointedly to a class of cases, like the present, is the difficulty of settling the accounts of the estate, ascertaining the assets, what debts are sperate, what desperate, and, finally, ascertaining what is the residue to be distributed, and who are the next of kin entitled to share. And to add to our embarrassment, we are told, that we cannot compel the foreign executor to render any account in our courts. I agree at once, that this cannot be done, if he is not here. But I utterly deny, that the administrator here cannot be compelled to account to any competent court for all the assets, which he has received under the authority of our laws. And if the foreign executor chooses to lie by, and refuses to render any account of the foreign funds in his hands, so far as to enable the court here to ascertain, whether the funds are 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. And as to settling the estate, or ascertaining who are the distributees, there is no more difficulty than often falls to our lot in many cases arising under the ordinary probate proceedings.

All these objections are, in fact, reasons for declining to exercise the jurisdiction in particular cases, rather than reasons against the existence of the jurisdiction itself. It seems, indeed, admitted by the learned counsel for the defendant, that if there be no foreign administration, it would be the duty of the court to grant relief upon an administration taken here. Yet every objection, already urged, would apply with as much force in that as in the present case. The property would be to be distributed according to the foreign law of the deceased’s domicile. The same difficulty would exist, as to ascertaining the debts and legacies, and the assets and distributees entitled to share. But it is said, that in the case now put, the administration here would be the principal administration, whereas in the case at bar, it is only an auxiliary or ancillary administration. I have no objection to the use of the terms principal and auxiliary, as indicating a distinction in fact as to the objects of the different administrations; but we should guard ourselves against the conclusion, that therefore there is a distinction in law as to the rights of parties. There is no magic in words. Each of these administrations may be properly considered as a principal one, with reference to the limits of its exclusive authority; and each might, under circumstances, justly be deemed an auxiliary administration. If the bulk of the property, and all the heirs and legatees and creditors were here, and the foreign administration were only to recover a few inconsiderable claims', that would most correctly be denominated a mere auxiliary administration for the beneficial use of the parties here, although the domicile of the testator were abroad. The converse case would of course produce an opposite result. But I am yet to learn, what possible difference it can make in the rights of parties before the court, whether the administration be a principal or an auxiliary administration. They must stand upon the authority of the law to administer or deny relief, under all the circumstances of their case, and not upon a mere technical distinction of very recent origin.

T have already intimated my opinion as to the true principle, that ought to regulate cases of this nature; and I have endeavoured to answer .the moát pressing objections, satisfactorily at least to my own mind. If, therefore, the question were res integra, I should have no difficulty in deciding, that whether distribution ought or ought not to be decreed, should depend upon the circumstances of each case; that no universal rule ought to be laid down on the subject; or at least, that the rule should be. flexible, and depend for its application upon the equity of the particular case presented to the court. But it is §aid, that the case no longer stands upon general principles; and that the doctrine has passed in rem judicatam. If it be so, it will be my duty, as well as my inclination, to submit to authority; for nothing can be more dangerous than, upon private doubts, to disturb the landmarks of the law. Several cases have been cited from the Massachusetts Reports upon this subject. The first case is Selectmen of Boston v. Boylston, 2 Mass. 384" court="Mass." date_filed="1807-03-15" href="https://app.midpage.ai/document/selectmen-of-boston-v-boylston-6402979?utm_source=webapp" opinion_id="6402979">2 Mass. 384, in which the court held, that an administrator with the will annexed of a foreign testator is not bound, upon taking administration here under our statute (St. June 24, 1785, c. 12), to account for any property received by him abroad under the foreign administration. And the court relied upon the express language of the statute, that the judge of probate in such cases may take bonds, “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 whole reasoning of the court manifestly proceeds upon the supposition," that as to the estate here, the judge of probate may proceed to settle it, like other estates; and so certainly is the language of the statute. The case then is, as far as it goes, an authority against the defendant. Soon afterwards the same case came again before the cpurt (Selectmen of Boston v. Boylston, 4 Mass. 318" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/selectmen-of-boston-v-boylston-6403217?utm_source=webapp" opinion_id="6403217">4 Mass. 318), when it was distinctly held, that the administrator was bound to account before the probate court for the effects here at the suit of the appellants, who were residuary legatees. S. P. Jauncy v. Sealey, 1 Vern. 397. On that occasion the court said, the administration here “is to be considered, not only as a means of collecting the effects of the deceased within this jurisdiction, but of answering, according to the rules of the same jurisdiction, the'demands of creditors and all legal liens upon those effects. By the will, under which the administrator is acting, it appears, that the appellants are residuary legatees. They have, therefore, a direct and immediate interest in the account of the administrator, and in every process, which can be instituted, to determine the amount of the effects collected, and the charge, to which they are liable; or, in other words, of obtaining the residuum of T. B.’s (the testator’s) effects within this jurisdiction.” With respect to the merits of the decree in this case, it is no part of my business to enter into any discussion. But it is most manifest, that the court did contemplate, that the administrator was bound fully to account here, not only to creditors, but to all others entitled to the fund, as next of kin, or residuary legatees. And if the court had been then of opinion, that it was bound to remit the proceeds abroad at all events, it seems difficult to conceive any substantial grounds, upon which their decree rested. Por if the account was to be taken here, and then the balance in the hands of the administrator remitted, it would still be necessary to take the account again in the foreign jurisdiction; and if that jurisdiction could reach all the effects received here, as well as abroad, what was done here could not be conclusive upon it. And if the foreign tribunal could not, in virtue of the original grant of administration, compel the administrator to account for effects received here by the exercise of its ordinary powers, (for I speak not here of the extraordinary powers of a court of chancery,) the legatees would be without relief in both jurisdictions. This case came again before the court in a suit brought under the direction of the court upon the probate bond of the administrator. Dawes v. Boylston, 9 Mass. 337" court="Mass." date_filed="1812-10-15" href="https://app.midpage.ai/document/dawes-v-boylston-6403933?utm_source=webapp" opinion_id="6403933">9 Mass. 337. In the intermediate time, however, the court in Richards v. Dutch, 8 Mass. 506" court="Mass." date_filed="1851-10-15" href="https://app.midpage.ai/document/guild-v-cranston-8319857?utm_source=webapp" opinion_id="8319857">8 Mass. 506, decided generally, without assigning any reasons, that under St. 1785, c. 12, the administrator may be held to pay debts to creditors here, if" any such are claimed of him; but that legatees, who claim only from the bounty of the testator, must resort to the country of the testator, where the will was originally proved, and by the laws of which his effects are to be distributed, to obtain tile bounty they claim. Accordingly this doctrine was recognised in Dawes v. Boylston, Hr. Justice Sewall (who seems to have been the only judge, who sat upon its final decision) declaring, “that the rights of legatees, especially residuary legatees, as well as of the next of kin in a case of intestacy, depend upon the laws of the country, where the deceased had his home and domicile, from whom the bequest or succession is claimed; and to that purpose, all the choses in action are to be deemed local, to be there accounted for and finally administered, wherever collected, or accruing in possession to the executor or administrator.” And farther, that the administrator, by virtue of his administration here, “has an authority to collect and pay debts, and is liable for the contracts and duties of the testator recoverable, and which may be enforced within this jurisdiction; but is nót liable, in the court of probate, upon any partial account to be there rendered and adjusted, to a decree either of payment or distribution, whether for a legacy, or to any claiming by a supposed succession, of the deceased’s effects.” And farther, that the jurisdiction abroad is “exclusive in whatever regards the final settlement of the estate, the ascertaining of the. residue after payment of the debts, and the appointment and distribution thereof.” The decision of the court upon the whole view of the case, was, that the administrator was compelled to render an inventory and account to the probate court of the assets received here; and that his refusal so to do was a breach of the probate bond; but that the residuary legatees were not entitled to any farther relief.

It has been supposed by the plaintiff’s counsel, that this doctrine has been shaken in a more recent case (Stevens v. Gaylord, 11 Mass. 256" court="Mass." date_filed="1814-09-15" href="https://app.midpage.ai/document/stevens-v-gaylord-6404190?utm_source=webapp" opinion_id="6404190">11 Mass. 256), where the court, adverting, to the facts, said: “If it should appear upon due examination in our probate court, that T. (the deceased) had his home in Connecticut, we should cause the balance remaining in the hands of the administrator here, to be distributed according to the laws of Connecticut, or transmitted for distribution by the administrator in Connecticut, under the decree of the probate court there.” But I cannot perceive in this language any sufficient warrant to justify me in the conclusion, that it was meant to overturn, or bring into doubt, two solemn decisions of the court. I feel myself compelled, therefore, (very reluctantly, I confess,) to admit,- that by the law of Massachusetts the probate courts have no jurisdiction, e'ther originally or by a suit on the probate bond, to compel a final settlement or distribution of the estate of a foreigner, whose assets have been collected here under what is called, an “ancillary” or “auxiliary” administration. And if this were a case depending upon the local law of the state, so conclusive should I deem it upon me, not only from the learning and authority of the court itself, but from the necessity of holding, upon principles of public convenience and policy, the judicial construction of state tribunals upon their own laws conclusive upon all other tribunals, that I should not scruple to adopt it in its whole extent, whatever might be my own doubts on the subject. But the case here does not depend upon the local law of Massachusetts. Although a court of probate of that state can administer no relief in virtue, of its statutable powers, it does not follow, that a court of chancery cannot in the exercise of its equitable jurisdiction; for the equity powers of such a court must be judged of by its own principles applied to its own organization, and not by the limited rules applied to ecclesiastical tribunals. Besides; the question here is properly a question of international law, dependent upon no local usages, but resting on general principles. The parties are citizens of different states, and their rights must be decided, not merely by the authority of one state, but by principles applicable to all states. Whether, therefore, we are to decide by the doctrines of Massachusetts, or by the opposing doctrines of other states, must depend upon the reasons, upon which those doctrines are respectively built. That a contrariety of opinion exists is most manifest, since the courts of Pennsylvania sustain jurisdiction in cases like the present, and decree distribution to the next of kin according to the law of the place of his domicile. Guier v. O’Daniel, 1 Bin. 349, note. And see, also, Desesbats v. Berquier, Id. 336.

In this state of embarrassment, it would have been a great relief to my mind, if the reasons, on which the -state court of Massachusetts proceeded, had been expounded with the usual fulness. But no reasons are given for this particular doctrine. Nor do all the authorities which have been cited on the present argument, appear to have been brought in review before that court. There is, too, a qualification of its doctrine in favor of creditors, the ground of which it would have been most desirable to ascertain. Why should not legatees and distributees be entitled to recover out of the assets here, as well as creditors? It is true, that legatees claim by the bounty of the testator; but it is a legal right, as fixed and vested as the right of the creditor. And, as to distributees, the case is still stronger; for that rests not on the bounty of the intestate, but on the law of the land, which, at the same time, enables the creditor to receive his debt out of the assets, and the next of kin to claim the residue. If it be said, that it b.elongs to the public policy of a country to sustain the claims for debts due to its citizens, it seems to me no less to belong to that policy to sustain any other claims of its citizens, which are founded in justice and law. If it be said, that the assets are to be distributed by a foreign law, and it is very difficult and laborious to learn, what that law is, and to apply it correctly, the same objection applies to the payment of debts. The priority of debts, the order of payment, the marshalling of assets for this purpose, and, in cases of insolvency, the mode of proof as well as of distribution, differ in different countries. And if in case of debts, the court here is to apply the lex domicilii, the same embarrassment will arise, as in other cases of distribution to the next of kin. There is no more difficulty in .the order of payment of legacies, than of debts. And courts of law must, in these cases, ascertain and apply the foreign law precisely in the same manner they do in other cases. Feaubert v. Turst, Finch, Prec. 207, 1 Brown, Parl. Cas. 129; Fremoult v. Dedire, 1 P. Wms. 429. I pressed the learned counsel for the. defendant, at the argument, for a solid ground, on which to sustain the distinction in 'favor of creditors, either upon principles of national comity, ur public convenience, or substantial justice. I heard no vindication of it in either view. And cases may readily be imagined, in which such a distinction might work injustice. Suppose by the lex domicilii, the debts are primarily a charge on the realty, and not on the personal estate; shall the creditor here be permitted to exhaust the personal assets here, when the succession to the real and personal estate may be different in the foreign country? Suppose the assets abroad and at home have a different order of succession or distribution, shall the creditor here be permitted to defeat that order? ² If not, then the court here must apply the lex domicilii to protect the heirs; and must ascertain the nature and extent of that law (vide Bowaman v. Reeve, Finch, Prec. 577); and if so, why not proceed to distribute the property among those, who are the cestuis que trust entitled to it The case was very properly put at the argument, whether a court here could refuse here to sustain a suit by a cestui que trust against his trustee here, simply because the trust originated in, and was to be governed by, the law of another country. It was admitted, that it could not; and so certainly are the authorities. Feaubert v. Turst, Finch, Prec. 207, 1 Brown, Parl. Cas. 129; Fremoult v. Dedire, 1 P. Wms. 429. But it was said, that the administrator here is a trustee for the administrator abroad, and not for the next of kin; and that the cestuis que trust cannot follow the property in the hands of a mere agent of the trustee. These positions, in their general latitude, are certainly not well founded. The administrator here is not a mere agent of the administrator abroad. He collects and receives the assets in his capacity as administrator generally; and so far as it may be wanted for payment of debts and legacies, he holds it in trust for the creditors and legatees, and as to the residuum in trust for the next of kin. And even if he were a mere agent of a trustee, the cestuis que trust would be entitled to claim the fund directly from him; for a court of equity may follow a trust fund in whosesoever hands it may be found. Newland v. Champion, 1 Ves. Sr. 105; Doran v. Simpson, 4 Ves. 651. Could the administrator abroad sue the administrator here to recover the assets collected here? . I apprehend not The creditors, legatees, and heirs, are the only persons competent to sue in respect to their own interests; and the administrator, as such, could have no remedy. See Stevens v. Gaylord, 11 Mass. 256. I confess myself unable to admit the distinction in favor of creditors, without admitting, at the same time, the like rights in favor of legatees and heirs. Nor have I been able to find that distinction sustained or adverted to in any other authorities.

It remains to examine the English decisions upon the point now before the court. The earliest case, which I have met with} is Bowaman v. Reeve, Finch, Prec. 577, which was a suit brought by specific legatees of a person domiciled in Holland against the executor and residuary legatee, who had taken out letters of administration, to recover satisfaction out of such residuum for the value of their specific legacies, which had been taken possession of by the creditors in Holland in payment of their debts; and the chancellor decreed satisfaction accordingly, and did not remit the legatees for relief to the domestic forum. Next followed Tourton v. Flower, 3 P. Wms. 369; but there no such objection was raised; and the case went off upon another ground, viz. the want of competent parties to sustain the suit against the English administrator. Then came the case of Pipon v. Pipon, Amb. 25; Id. (Blunt’s Ed.) append. “D,” Lord Hardwicke’s opinion is given from Sergt. Hill’s MSS. It was a bill in equity, brought by the plaintiffs as representatives of several sisters of the intestate, against the defendants, who were his sisters, and had taken administration of the intestate’s estate in London, and had received a bond debt of 509L due there. The suit was for a distribution of the 5001.; and the question was, whether it should be distributable according to the laws of England, it being found within the province of Canterbury, in which case the plaintiffs would be entitled to a part? Or whether it should be distributed according to the laws of Jersey, where the intestate resided at the time of his death, in which case the plaintiffs by those laws would not be entitled to any part of it? Lord Hardwicke dis•missed the bill, and is reported to have said: ■“I should be very unwilling to go into the •general question, for it is very extensive. ■This is merely the case of a debt. The question, then, is, whether the plaintiffs, as next of kin, have a right to call for- an account of this part of the residue only? And I think there is not sufficient ground for it If I were to go into the general question, the personal estate follows the person, and becomes distributable according to the law or custom of the place, where the intestate lived. The words of the statute are very particular, viz. the residue undisposed of is to be distributed, so that the plaintiffs are wrong in •coming into this court for an account of only part; for by that statute, an account must be decreed of the whole, and the general administrator is not before the court” I cannot help suspecting, that there is some error in the language here imputed to Lord Hard-wicke; for if the distribution was to be according to the lex domicilii, the statute of distributions (St. 22 & 23 Car. II. c. 10), alluded to by his lordship had nothing to do with the case, for it was not governed by the law of England, but of Jersey. And if the •distribution was to be by the lex loci rei sitae, then the fund in the hands of the administrator here was the whole residue, which was distributable under the statute. So that, in cither way, the reasoning was untenable. The true ground, on which the judgment stands, is that suggested by his lordship himself; the plaintiffs were not entitled, for the assets were distributable according to the law of Jersey, which excluded them from any share. And so the case was understood by Lord Mansfield (Burn v. Cole, Amb. 413), and by Lord Loughborough (Sill v. Worswick, 1 H. Bl. 665, 690), and also by Lord Hardwicke bimself, in a subsequent case (Thorne v. Watkins, 2 Ves. Sr. 35). And it may, perhaps, be gathered from this last case, though obscure in its language, that his meaning in the other reasoning was, not that the next of kin might not maintain a bill for a distribution of the residue here, but that to entitle him to maintain such suit, he must show, that he is entitled by the lex domicilii. ‘‘It was never thought,” said his lordship, alluding to the case of Hanse Towns v. Jacobson [cited in 2 Ves. Sr. 34], “that on the death of a person having those funds, a bill must be brought by the next of kin of a particular part of that personal estate; the rule must be, that a bill must be brought for the whole, according to what I laid down in Pipón v. Pipón; otherwise it would destroy the credit of the funds; for no foreigner would put into them if, because a title must be made up by administration or probate of the prerogative court of England, it was to be distributed different from the laws of his own country.” The reason here given shows, that his lordship was referring to a bill by the next of kin claiming against the lex domicilii, and not to a bill by the next of kin claiming by that law. And surely it will not be pretended, that a person, who by the lex domicilii would be exclusively entitled, as heir, to the residue of the personal estate situate abroad, although not entitled to the residue of the personal estate situate at home, could not maintain a suit for the residue abroad, simply because he could not make title also to the residue at home. Suppose a specific legacy of all the property abroad, shall not the legatee be entitled to claim it here, because he cannot also claim all the property devised to others? Vide Nisbett v. Murray, 5 Ves. 149. Lord Hardwicke certainly did not mean to say, in Thorne v. Watkins, 2 Ves. Sr. 33, that a distribution might not be legally made under a foreign administration; for he says, “it is generally granted on foundation of the administration granted here, and then it must be distributed as here;” not that it must be distributed here. And in that very case he compelled a Scotch executor to account for and distribute funds, which were received by him to be distributed according to the law of Scotland, he being at tne same time an English administrator of one of the next of kin, under the Scotch law entitled to share, who died domiciled in England. It is true that the case before the court called for an account of the intestate’s estate only; but if Lord Hardwicke had believed, that the account and distribution of the Scotch estate belonged of right to Scotch tribunals only, it seems difficult to believe, that the fact that the administrator was also executor of the Scotch estate, would have made any difference in his decision.

But if Lord Hardwicke’s opinion be not susceptible of the explanation, which I have endeavored to give to it, it is not too much to declare, that it is entitled to less weight, than it might otherwise claim, from the very great light, which the learned discussions of more modern times have thrown over the whole subject. In Kilpatrick v. Kilpatrick (cited 6 Brown, Parl. Cas. 584) Lord Kenyon, in a case, where money was in court belonging to a Scotch estate, instead of remitting it to Scotland, decreed distribution according to the Scotch law, giving to the executor, who was also residuary legatee, one moiety, and to the widow the other moiety, which she was entitled to claim by the jus relictae of Scotland. In form the case differs very much from that now before the court; but, in substance, the testator was by the Scotch law intestate as to the moiety of the personal estate, which was decreed to the widow; for of that portion he could not legally dispose by testament. Vet the objection might have been urged there, which Lord Hardwicke is said to have urged in Pipon v. Pipon, that the widow could not sustain a claim for a moiety of this portion of the estate, but ought to bring a bill for a moiety of the whole estate, which could only be in Scotland. In Bruce v. Bruce, 2 Bos. & P. 229, note, and 6 Brown, Parl. Cas. 566, the whole question was most elaborately discussed, whether the lex rei sitae or the lex domi-cilii was to prevail in the distribution of intestate property. The ease arose in the court of sessions in Scotland, between the heirs claiming by the law of Scotland and those claiming by the law of England; and the court decreed distribution of the property according to the law of England; and this decree was affirmed in the house of lords. During the whole of this discussion, not a doubt was breathed by any one, that the court was competent to decree the distribution. This was followed up by Balfour v. Scott, 6 Brown, Parl. Cas. 550, where the same points were in judgment; and by Hog v. Lashley, Id. 577, where the same principle was applied to testate property. In Bempde v. Johnstone, 3 Ves. 198, there were cross bills filed for distribution by different heirs, according to the law of Scotland and of England; and the question was, where the intestate was domiciled. The lord chancellor decided, that his domicile was in England, and decreed distribution accordingly. In Somerville v. Lord Somerville, 5 Ves. 750, precisely the same question arose; and the master of the rolls, (Sir R. P. Arden,) after a most elaborate argument, decided, that the intestate’s domicile was in Scotland, and decreed distribution according to the law of Scotland.

It is remarkable, that the objection, which has been urged at the bar, never occurred, either to the learned counsel or to the court in any of those cases. I can account for it in one way only, and that is, that the law was considered clearly settled, that such a distribution might be made, whenever there were competent parties before the court to require it. It has been stated at the bar, that in all the cases, in which the English courts have decreed distribution, the original executors or administrators were before the court. Whether this be so or not, does not clearly appear in all the cases. But, in my judgment, this circumstance is wholly immaterial. The administrator here is not the less an administrator, because he is not clothed with the same character abroad. If the court can compel a distribution of the assets here, there can be no distinction, whether the person, who administers them, be or be not the original administrator. It is sufficient, that he is the legal and exclusive representative of the deceased, as to those assets. And if, because the foreign administrator is within the jurisdiction, the court will compel him to account and distribute all the assets, foreign as well as domestic, it establishes the authority of the court to an extent greatly beyond what is necessary for the decision of this cause. Vide Nisbett v. Murray, 5 Ves. 149. Chetham v. Lord Audley, 4 Ves. 72.

Prom this review of the English authorities, there can be no doubt, that the municipal courts of England will, upon a principle of the law of nations, in the case of a stranger, domiciled abroad, and having property in England, distribute that property, in case of death, by the laws of his own country. And so the law is explicitly laid down by one of their best elementary writers. Coop. Pl. Eq. 123.

I have made some researches in the works of foreign jurists, for the purpose of ascertaining, what is the practice, of nations governed by the civil law. Those researches have not been very satisfactory; but they leave little room to doubt, that foreign tribunals sustain suits to enforce distribution of assets collected there under auxiliary administrations upon the doctrines so familiar in those courts, that the situs rei, as well as the presence of the party, confers a competent jurisdiction. 2 Hub. p. 2, lib. 5, tit. 1, § 48; 1 Hub. p. 1, lib. 3, tit. 13, § 20, sub finem; 1 Domat, 531, note; Constit Frederii. Imp. tit. 1, § 10; Bynk. Quest. Priv. Jur. lib. 1, c. 16.

Upon the whole my judgment (though delivered with the greatest deference for a different judgment entertained by others) is, that a court of equity here has authority to decree distribution in cases like the present, according to the lex domicilii, upon the application of the legatees, or the next of kin or other competent parties; that whether it will decree distribution must depend upon the circumstances of each case; and that it is incumbent on those, who resist the distribution, to establish in the given case, that it may work injustice or public mischief. This doctrine is, as I think, sustained by principles of public policy, .and is perfectly consistent with international comity. It stands also commended by its intrinsic equity. And although the authorities are not uniformly in its favor, yet they leave the court at liberty to pronounce' that judgment, which, if the question were entirely new, it would be disposed to entertain. Vide Toll. Ex’rs. 387; 1 Wood. Lect. 384, 385.

2 There are some curious cases of this conflict of rights growing out of the laws of different countries. See Anandale v. Anandale, 2 Ves. Sr. 381; Balfour v. Scott, 6 Brown, Parl. Cas. 560; Drummond v. Drummond, Id. 601.

3 MS. Records. Court of Assistants, Suffolk County, March, 1691. Andrew Belcher v. James Lloyd. Appeal from the county court in an action on a charter-party. The appellant desired a special jury of merchants, which was accordingly granted. There are many like cases.