173 P. 688 | Utah | 1918
Lead Opinion
This appeal is taken from a judgment rendered in the district court of Salt Lake County in favor of Mrs. Marietta T. Stanley, respondent, for a partial distribution of the assets of the estate of Allen G. Campbell, who died testate June 16, 1902, at Riverside, Riverside County, Cal. Mr. Campbell’s will, so far as material here, is as follows:
“I, Allen G. Campbell, whose residence is in Salt Lake City, Utah, though' now temporarily living in California, hereby make this, my last will and testament. * * *
"Item 7. I hereby appoint my said wife, Eleanor, guardian of the persons and estates of my and her said three
“Item 8. I hereby direct that ail my coal and iron mines situate in Iron County, Utah, shall be held for the price of $300,000.00; that all my lead, silver, and gold mines situate in Beaver County, Utah, shall be held for the price of $150,-000.00; that all my now patented lead, silver, gold, and copper mines situate in Yellow Pine Mining District, Lincoln County, Nevada, be held for the price of $200,000.00; and my Brick Consolidated gold mines situate in Vanderbilt mining district, San Bernardino County, California, be held for the price of $500,000.00, until my said daughter Caroline Neil Campbell shall arrive .at the' age of twenty-one years, or, in case of her death before that time, until she would have arrived at the age of twenty-one years if she had survived, unless said properties are sold before that time at the prices herein stipulated; and said properties, as groups, shall be sold separately or together, when the price herein mentioned, or more, can be obtained. * * *
(It is admitted that Caroline Neil Campbell will be twenty-one years of age in October, 1919.)
‘ ‘ Item 12. * * * The money received after my death from each of said groups shall be divided and paid over as follows, to wit: Four-sixths of the net proceeds from each group shall be invested in United States government bonds for the benefit of and to be owned by my said three children by my wife, Eleanor; one-sixth shall be paid to my said son Charles Rufus, and one-sixth shall be paid to my nephew William B. Stanley, until $600,000.00 have been divided and paid over from the first sales of said properties. * * *
“Item 14. All of my other property not herein'specially devised and bequeathed, and all property which I may hereafter own or may be entitled to, I hereby designate as ‘residue,’ and I- hereby devise and bequeath the same to my said wife, in trust, nevertheless, for my said three children, # # *
“Item 21. I hereby appoint and nominate, as executrix of this will, my wife, Eleanor Campbell, and she is hereby authorized to act as executrix of this will without any bond whatever. * * *
“Item 22. I hereby authorize my said executrix * * * to lease any part of my estate without any order of court, on such terms as * * * she may think best, such lease, however, not to extend beyond the respective periods herein mentioned. * * *
“Witness my hand * * * at the place of my residence in Salt Lake Gity, Utah, this October 31, 1900.
“(Signed) Allen G-. Campbell.”
The will was duly admitted to probate in the state of California on July 7, 1902. Eleanor Campbell, now Eleanor Campbell O’Kelly, was appointed executrix thereunder.
The deceased left property of large value in the states of California, Nevada, and Utah. On August 11, 1902, the will was admitted to probate in this state, and about the same time it was admitted to probate in the state of Nevada.
It is admitted that the administration in California is the domiciliary, and those in this state and in Nevada are ancillary, and that appellant, Eleanor Campbell O’Kelly, is the duly qualified and acting executrix in each of the states mentioned. Respondent, Marietta T. Stanley, is the widow of William B. Stanley, one of the devisees mentioned in the will, and succeeded to all the right, title, and interest of said William B. Stanley, in the estate of Allen G. Campbell, deceased, and her residence, since June 10, 1902, has been, and now is. in Salt Lake City, Utah. The trial court found and the correctness of the finding is not challenged or in any way questioned, that—
“the original inventory value of the estate of said decedent in Utah was about $365,000, and the value of the property of said decedent now in Utah is $180,000, and consists of real and personal property. On September 5, 1902, the proper court in Utah authorized a transfer of $70,000 in cash from the
The case, as presented by this appeal, stripped of all verbiage and redundant matter, presents, as stated by counsel for Mrs. Stanley (respondent) in their brief, the question: “Have the courts of this state jurisdiction over the property ■of a decedent inside of this state?” Counsel for appellant, answering this question, say in their brief: “There is no question but that the courts of Utah have jurisdiction over property within the state of Utah.” Thus being conceded, it ought to end the controversy respecting the jurisdiction of the district court to enter the judgment from which this appeal is taken. Counsel, however, with much earnestness, vigorously assail the judgment on the ground that the court was without jurisdiction to render it. In their brief they say:
“Letter’s of administration have no extraterritorial operation, and do not, as a matter of right, confer authority over
This is conceded. Counsel, nevertheless, have devoted much space in their brief to the discussion of the question. And practically all of the cases cited by them declare this rule of elementary law, but the cases have no material bearing on any controverted question in this case. It would therefore avail nothing to' cite, review or discuss them here. In their discussion of the question they seem to take the position that if the domiciliary administration were in this state the court would have jurisdiction to render the judgment, but that, since the administration in this state is ancillary, the Court acted without jurisdiction. While it is conceded that in an ancillary administration the court may subject assets within the state to satisfy the claims of creditors, it, nevertheless, may not distribute assets within its jurisdiction payable to legatees and distributees. This, in view of the undisputed facts in the ease at bar, is the logic of their argument when reduced to its last analysis. 'We shall consider the two propositions together.
“No state need allow property of a decedent to be taken without its borders until debts due to its own citizens have been satisfied; and there is nothing in the Constitution of the United States, aside from the full faith and credit clause, to prevent a state from giving a like protection to its own citizens or residents who are interested m the surplus after payments of debts.” (Italics ours.)
In Re Lathrop Estate, 165 Cal. 243, 131 Pac. 752, California was the jurisdiction of ancillary' administration, New York that of the domiciliary administration. In that case the
In the case of Harvey v. Richards, Fed. Cas. No. 6184, Mr. Justice Story, in the course of a well-considered opinion, said:
“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 creditors. 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*497 it be said that it belongs 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.”
And again:
‘ ‘ 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. ’ ’
And again:
‘ ‘ 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.”
And again:
“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. * ® * Whether distribution ought or ought not to be decreed should depend upon the circumstances of each case. * * * 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.”
The learned author and jurist in the course of the foregoing opinion cites with approval one of the early English decisions (Bowaman v. Reeve, Finch, Prec. 577). Referring to that case, he said:
"It was a suit brought by specific legatees of a person domiciled in Holland against the executor and residuary legatee, who had taken out*498 letters of administration, to recover satisfaction out of such residuum for the value of their specific legaciesj 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.”
Tlie case of Bowaman v. Reeve and tbe case at bar are identical in principle. We have quoted somewhat copiously from Harvey v. Richards, because it seems to us that it is a complete answer to, and meets every objection urged against the jurisdiction of the trial court to render the judgment under consideration.
In Moses v. Hart, 25 Grat. (Va.) 795, the court said:
‘ ‘ If the court of the ancillary administrator consents to a transmission of the assets abroad, it is a mere matter of courtesy, and not because there1 is any obligation to do so. That courtesy ought never to be exercised to the injury or inconvenience of domestic claimants, whether they be creditors, legatees, or distributees. The one has as much right to the protection of the government as the other. It is not a just principle to subject our own citizens to the expense, trouble, and hazard of redress in foreign tribunals when our own courts are entirely competent to afford it.”
In Porter v. Estate of Heydock, 6 Vt. 374, the court said:
“ Although the general practice may be to remit the fund for distribution abroad [referring to the domiciliary distribution], still this will never be done under circumstances where, instead of facilitating a final adjustment, and securing the rights of all, it would tend to embarrass or prevent that adjustment, and jeopardize the rights of the parties.”
The following authorities also support the doctrine contended for by respondent on this point: Story’s Conflict of Laws, p. 425; 18 Cyc. 1228-1236, and cases cited; Wœrner, Am. Law of Admin. sec. 167; State v. District Court, 41 Mont. 357, 109 Pac. 438; In re Welles Estate, 161 Pa. 218, 28 Atl. 1116, 1117; In Matter of Hughes, 95 N. Y. 55; Carr v. Lowe’s Executors, 7 Heisk. (Tenn.) 84; Parsons v. Lyman, 20 N. Y. 103; Parker’s Appeal, 61 Pa. 478; Rader v. Stubbelfield, 43 Wash. 334, 86 Pac. 560, 10 Ann. Cas. 20; In re Kelley’s Estate, 122 Cal. 379, 55 Pac. 136.
We do not wish to be understood, from what is here, said, as holding, or intimating that if the executrix had not merged the money received as royalties with the assets designated as residue, there would even then be any question as to the validity of the judgment under consideration.
Assuming, for the sake of argument, that the money re; ceived as royalties and' merged with the residue is, in contemplation of law, in California, it nevertheless does not P low that the district court was without jurisdiction. TN record shows that all of the property in this state belongin'? to the estate except that mentioned in item eight of the will was bequeathed and devised to the executrix and the three children, and it also clearly shows that the executrix has purchased the interest of Charles Rufus Campbell; therefore the executrix, her three children, and Mrs. Stanley are the only persons interested in the assets of the estate situated in this state, and are the only persons interested in the money received as royalties. The record further shows that much, if not practically all, of the assets in Utah producing revenue is residue and is held in trust by the executrix for her three children. Now, $1,661.65 of the trust funds belong to Mrs. Stanley. The estate, therefore, has that amount of her money which, with interest, amounts to $2,082.52, as found by the court. The district court in the exercise of a sound discretion and its equity powers, directed that the money belonging to Mrs. Stanley and held in trust by appellant, as executrix, be paid to her. Now what possible difference can it make to the estate, or to any person interested therein, whether Mrs. Stanley is paid out of the portion of the trust fund in California or out of the portion in Utah ? This question will admit of but one answer, and that is that it cannot make any difference to any-person except Mrs. Stanley. In other words,
Counsel for the executrix in their printed brief say:
“In Utah there is a half section of land particularly devised to minor children. * * * Respondent proposes to levy upon this property and take it away from these children without their consent for the purpose of satisfying her alleged claim.”
And they further assert that—
“property which is vested in other devisees and legatees (the three children herein mentioned) would be seized to satisfy the payment of the $2,000, and sold perhaps at a great sacrifice.”
This visionary and speculative conclusion of . counsel respecting the probable, or even possible, effect of the enforcement of the judgment in question on the $180,000 of the assets within the jurisdiction of the trial court' is groundless. The court found, and the finding is not assailed, that, “in addi
It is suggested that thé district court was without jurisdiction to render the judgment because the royalties were. received from mines situated in California and Nevada. In other words, it is suggested that money received as royalties from mines belonging to decedent can be distributed by the courts only of the respective states in which the mines are situated, regardless of where the royalties may be or the disposition the executrix may have made of them. If such were the rule, the courts of one state could not legally make any order in probate proceedings respecting money — assets—within the state received as royalties from mines or as- rents from
It is conceded that, if this obligation grew out of contractual relations existing between the estate and Mrs. Stanley, thei’e would be no question respecting the validity of the judgment.
The executrix having refused and failed to comply with the request of her deceased husband in the distribution of the money received as royalties, as clearly expressed in the will, and having diverted it to a purpose not contemplated by the will, by merging it with the residue, the obligation now possesses all of the essentials of a debt. The fact that Mrs. Stanley’s rights are determined, protected, and enforced by the application of equitable principles and rules of equitable procedure, rather than by strict technical legal rules, does not change the character of the obligation in that regard.
In 1 Beach, Trusts and Trustees, section 188, the author says:
“All persons acting as trustees or agents in the settlement of estates are held by courts of equity to a very rigid accountability in the discharge of their fiduciary obligations.” -
Suppose, for example, the executrix should receive in California sums of money — proceeds—from the mines mentioned in item eight of the will that are situated in Utah, and merge the same with the residue or other assets specifically bequeathed to the three minor children, we know of no rule of law or principle of equity that would prevent the courts of this state from making an order, on proper application therefor, that Mrs. Stanley be paid out of the residue or other assets in this state specifically bequeathed to the three minor children.
Counsel for appellant in their printed brief say that Mrs. Stanley’s right to receive anything must grow out of the fact that appellant has received royalties in California and Nevada from certain mining properties mentioned in item eight of the will, and that “the jurisdiction of the California and Nevada courts attached to the mining properties from which the royalties were received, and it necessarily follows that the same jurisdiction attached to the money and royalties received as assets of the estate.” Again they say: “Respondent’s right to receive these royalties is challenged, and the matter can, at most, only be determined in the jurisdictions in which the properties from'which the royalties were received are situated.” And that “this question involves a construction of the will, not by the courts of the state of Utah, but by the courts of the states where the mining property from which the royalties were received are situated. ’ ’
Under the plain provisions of the will, Mrs. Stanley, as we have pointed out, had a one-sixth interest in the money received as royalties from the mining properties until the executrix, as stated, in utter disregard of the desire and intention of her deceased husband, and in violation of her trust, diverted it from the purpose designated in the will, and merged it with assets of the estate specifically bequeathed and devised to. the three children mentioned, which assets are held in trust by the executrix for the children. Mrs. Stanley, therefore, has an interest in these assets, of which a large portion is in this state, equal to the sum of money that she was entitled to receive from the money paid as royalties.
“Except as otherwise provided, the validity and interpretation of wills are governed, when relating to real property within this state, by the law of this state; when relating to personal property, by the law of the testator’s domicile. ’ ’
It will be noticed that this section in plain and unmistakable terms provides that the “interpretation” of wills shall be governed, when relating to personal property, by the law of the testator’s domicile, and not, as counsel’s argument seems to imply, by the interpretation given wills by the courts of a sister state where the domiciliary administration is had.
In 40 Cyc. 1384, it is said:
“In order that a law of one jurisdiction may govern in the construction of a will in another jurisdiction it must be proved, and in the absence of such proof the law of the forum will govern. ’ ’
The trial court found, and the finding is not assailed, that “Allen Gr. Campbell, for many years prior to his death, was an experienced mining man, and well acquainted with all of his mining properties, and the property mentioned in item eight of his said will had and has no substantial value except' for mining purposes.” It is therefore determined that the value of the mines consists of the ore and tailings only contained therein. Item eight of the will declares in part that the mines in question “shall be held” at certain prices until Caroline Neil Campbell shall arrive at the age of twenty-one years. Item twelve declares, in part, that “the money received after my death from each of said groups of mines shall be divided and paid over as follows, to wit. * * * one-sixth shall be paid to my nephew William B. Stanley.” As stated by counsel for Mrs. Stanley in their brief, “when tail-ings- and ore are taken from the mining property it is not being held; it is being consumed. ’ ’
In .3 Lindley on Mines (3d Ed.) section 861, p. 2135, the author says :
“We have already seen that mineral in place is land; that when it is taken therefrom and changed into personal property real estate has to that extent been destroyed. It is obvious that the normal relation of landlord and tenant does not contemplate destruction of the estate by the tenant, and that such destruction cannot properly be called ’use.’ It is equally plain that the so-called ‘rent’ in a mining lease is something more than a return for the possession and use of real property. While the contract is in name a lease, it 'amounts in fact to a sale, and if it grant the right to take all the mineral, it is a sale of real estate — the lessee’s interest is a fee in the mineral and the lessor’s so-called rent is purchase money for real estate.’’
Assuming, but not conceding, that the extracting of ore in place and removing it and the tailings from the mines under the lease was in no sense a sale of any part of the property,
Moreover, this court, in the case of In re Campbell, 27 Utah, 362, 75 Pac. 851, construed item twelve as well as other'provisions of the will. The construction there placed on item twelve is clearly against the contention here made by counsel for the executrix. And it is not made to appear that the courts of California have given the provision, or, for that matter, any provision, of the will a construction different from that given it by this court. Therefore the legal presumption, as stated, is that the rule of construction respecting the points here involved is the same in California as it is in this state.
This case may be summarized as follows: Certain bequests are made in item eight of the will to the executor in trust for her three children, to Charles Rufus Campbell, and to Mrs. Stanley. These bequests are to be paid out of the proceeds of the property, mining claims, therein mentioned. The property is situated in California, Nevada, and Utah. The executrix has purchased the interests of Charles Rufus Campbell. Therefore the only parties interested in the proceeds are the executrix, her three children, and Mrs. Stanley, who is, and for twelve years has been, a resident of this state. The executrix has received money as royalties from the mines in California and Nevada which she has merged with the assets designated in the will as residue. The executrix by thus breaching her trust has placed in and merged with the residue, $9,969.88, that does not belong there. Under what process of reasoning, may we ask, can it be held that this money, which was wrongfully diverted from the purpose designated in the will and merged with the residue, belongs to decedent’s three children? Under the will, as construed in Re Campbell, supra, $1,661.65 of this money belonged to Mrs. Stanley. By an examination of the will it will be seen that the bulk of the
"The property is here, the parties are here, and the rule of distribution is flxed. [In re Campbell, supra.] .What reason, therefore, exists why the court should not proceed to decree according to the rights of the parties? Why should it send our citizens to a foreign tribunal to seek there justice which it is in its power to administer without injustice to any other person?”
It is suggested by counsel that that case is distinguishable from the case at bar. The distinction, if there be a discernible one where there is no difference in principle, consists in the case at bar being a much stronger case for the application of the doctrine contended for by respondent than is the case of Harvey v. Richards. In that case the domiciliary administration was in Calcutta. The executor appointed by the will of the testator resided in Calcutta. Richards was appointed administrator to collect assets in Massachusetts, none of which were necessary to satisfy either debts or legacies in Calcutta. The plaintiff in that case, a Rhode Island citizen, entitled to share in the estate, sought a distribution of assets in Massachusetts. The question thus presented to the court was “whether the defendant should be ordered to distribute the effects in his hands among the next of kin in this country or should send them to Calcutta to be distributed by the executor there.” It will be noticed in that case that the plaintiff was not a citizen or resident of Massachusetts, where the ancillary administration was had. In the case at bar Mrs. Stanley is a resident of this state, the bulk of the residue in which, because of the act of the executrix in violation of her
The Supreme Court of California,. in the case of In re Campbell’s Estate, 149 Cal. 712, 87 Pac. 573, a case in which the validity of certain provisions of this will was involved, summarized what there purports to be the questions presented to, and the conclusions arrived at by, this court in the case of In re Campbell’s Estate, 27 Utah, 361, 75 Pac. 851, as follows:
‘ ‘ The will was admitted to prohate in the State of Utah, and ancillary administration was had there through an administrator with the will annexed, appointed by the courts of that state, in which a large part of the land involved in the controversy is situated. The administrator with the will annexed reported to the courts of that state a sale of .some of the property there situated, made by him without any order of the court, and at a price much less than that fixed by the will, and, of course, within the prohibited^ period. By regular proceedings for that purpose in the courts of that state, the sale was confirmed.”
The important and controlling question decided by this court in that case is stated in the opinion as follows:
' ‘ The testator sold one of the aforesaid groups [referring to the mines mentioned in item eight of the will] for $126,000, and there was paid to him $83,494.28. Since his death the balance of the purchase price of said group, $42,505.72, has been paid to the said William B. Stanley, as administrator, and which ho now has in his possession. Charles Kufus Campbell, the son of the testator, * * * filed a petition in the district court of Salt Lake county, * * * and prayed for an order directing the $42,595.72 so paid to the administrator, less the inheritance tax due thereon, to be distributed to the beneficiaries thereof in the proportions directed by the will. The executrix, Eleanor Campbell, in her own behalf, and as guardian of her minor children, answered, denying that under the provisions of the will the said sum of $42,505.72 was subject to distribution until tho said Caroline Neil Campbell became of the age of twenty-one years, or, in case of her death, until she would have reached that age. William B. Stanlay, the administrator, answered, and admitted tho allegations of the petition, and joined with the petitioner in praying for the distribution of said sum. A distribution in accordance with the prayer of -the petition -was granted.”
The foregoing quotation from the decision of this court clearly shows that the money distributed was the balance of
We think it probable that if the California court had had a correct understanding of the questions presented to and decided by -this court in the In re Campbell’s Estate Case it would have approved of the rules of law therein enunciated.
Mr. Justice GIDEON has filed an opinion in which he dissents from the reasons expressed and the conclusions reached in this opinion.
It is axiomatic that a judicial opinion cannot be more correct and sound than is the premise on which it is based. Mr. Justice GIDEON’S opinion is grounded on a wrong and unsound premise, which premise, to wit, the alleged lack of power or jurisdiction of the trial court to render the judgment under consideration, rests on propositions some of which wholly fail to, and others but partially, reflect the questions presented by this appeal, and on propositions that are antagonistic to and inconsistent with each other. The learned justice says:
“The controlling questions in this case, * * * as disclosed
It will be seen by a casual examination of the record and this opinion that,the questions propounded by Mr! Justice GIDEON in his first proposition are not involved in the case. No claim is made that the courts of this state “can deprive the California and Nevada courts of the right to construe the will,” etc. Nor is there an expression in this opinion that suggests that the Utah courts have any such power.- There are, however, numerous statements in the opinion which clearly show that we hold to the contrary. In fact, later on in the dissenting opinion it is said :
“It is conceded by counsel for respondent that the courts of our state will not attempt to administer or distribute the assets of an estate located in another state. ’ ’
In other words, we are here told that it is conceded that one of the “controlling questions” that is propounded in the first proposition contained in the dissenting opinion is not in the case at all, which is correct.
Mr. Justice GIDEON further says:
“It seems to me that this court must, in order to determine the rights of the respondent to the moneys in question, determine hér rights in the lands from which the royalties are obtained. ’ ’
As we have stated, the title to the lands is not in issue. Neither is Mrs. Stanley’s right to receive one-sixth of the money received from the mines in question a controverted question. In paragraph four of the petition it is alleged that:
“The said decedent, in item twelve of said will, directed that if any money should be received after his death from any of said groups of mines, there should be divided and paid over out of the same four-sixths of the net proceeds of each group
Paragraph 3 of the answer of the executrix is as follows:
“Admits the allegations contained in paragraph 4 of said petition. ’ ’
Mrs. Stanley’s'right to one-sixth of the moneys received from the mines mentioned in item eight of the will being admitted by the answer, how it can be seriously contended that before the court can enforce this admitted and conceded right of hers it must first determine her right in the land from which the money was obtained, which is not directly, indirectly or remotely an issue in the case, is to the writer incomprehensible.
Mr. Justice GIDEON also says:
“It is * * * conceded that the courts of this state in the distribution of personal property are controlled by the construction or interpretation of the will made by the courts of the domiciliary administration. At the oral argument of this case counsel conceded these two propositions to be elementary. ’ ’
The learned justice is in error. This, we think, clearly appears from the following excerpts from the brief of counsel for respondent, viz.:
“Appellant urges that the Utah courts cannot control the courts of California and Nevada, which we admit; and vice versa, those courts cannot control the Utah courts in the distribution of property within this state. ’ ’
And again:
“Appellant states that, if a decedent dies intestate, his personal property in the ancillary jurisdiction is to be distributed according to the law of the state of his domicile. This is elementary law and is constantly being followed by the courts. * * * Suppose A. is domiciled in California and dies intestate, leaving personal property in Utah. Then, when the courts in Utah distribute such personal property, they follow the law
The foregoing clearly reflects counsels’ position, which is in harmony with the provisions of section 2822, Comp. Laws Utah 1907, heretofore briefly considered and discussed.
The judgment of the district court is affirmed, with costs.
Dissenting Opinion
(dissenting).
The controlling questions in this caso, as I view the facts as disclosed by the record and contained in the opinion of Mr. Justice McCARTY, are, as stated by appellant in her brief:
“(1) Can the Utah court deprive the California and Nevada courts of the right to construe the provisions of a will in their jurisdictions, and as to real estate or the proceeds of real estate within those jurisdictions? (2) Can respondent, under an order of the Utah court, seize property in Utah which belongs to other legatees, for the purpose of paying an alleged claim and legacy growing out of the receipt of mining royalties in other states?”
The will of deceased has been admitted to probate in both the states of Nevada and California, and it is admitted that the administration in the state of California is the domiciliary administration. Appellant objects to the jurisdiction of the courts of this state upon two grounds: (1) That it is an effort to distribute property not within the jurisdiction of the state; and (2) that she is entitled to have the will construed, to determine the rights of the petitioner (respondent) to receive any part of the royalties, by the courts of the domiciliary administration.
It is conceded by counsel for respondent that the courts of one state will not attempt to administer or distribute the assets of an estate located in another state. It is also conceded that the courts of this state in the distribution of personal property are controlled by the construction or interpre
“Except as otherwise provided, the validity and interpretation of wills are governed, when relating to real property within this,state, by the laws of this state; when relating to personal property, by the law of the testator’s domicile.”
If the royalties in question be held to be personal property and were actually within this state, under the provisions of that statute it would be the duty of the court to distribute such personal property according to the construction of the
If the royalties in question had been received from mining properties located in this state, then a different question would be presented; but, under the admitted facts as they appear in the record, I am unable to come to any other conclusion than that the rights of petitioner in that money should not be determined by the courts of this state.
In the main case relied upon by respondent, and from which numerous quotations are made in the majority opinion (Harvey v. Richards, Fed. Cas. No. 6184), the facts are not at all
“Stated in broad terms it eonies to this, whether a court of equity here has competent authority to decree distribution of intestate property collected under an administration granted here, tl\e intestate having'died domiciled abroad, and the distribution being' to be made according to the law of his foreign domicile.”
Further on in the opinion the court says:
“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? “ * *”
In the case at bar the property is not here, the rule of dis- . tribution is not fixed. On the contrary, it is the contention of the executrix that she is entitled to have the rule of distribution fixed by the courts of the domiciliary administration before she be required to pay any part of the royalties to the petitioner or before the petitioner has any right to demand the same.
For the reasons indicated, I dissent.
Dissenting Opinion
(dissenting).
If the conclusions of the majority of this court were based upon the proposition that, in view of the undisputed facts of this case, the affirmance of the judgment could not result in any injury to any one interested in the estate and as giving to Mrs. Stanley, one of the legatees under the will, what she ultimately would be entitled to from the estate, I should readily concur in the affirmance of the judgment. The decision, however, is so broad and sweeping, and withal asserts a number of propositions in which I 'cannot agree, that I feel impelled to dissent so far as those propositions are concerned.
For example, the majority make no distinction whatever between the rights of a creditor who has claims against an estate and those of a legatee claiming under the will. It is broadly asserted that the claims of a legatee who claims under the will should be protected the same as those of a creditor by the court of ancillary probate, and many cases are cited which,
I am in thorough sympathy with the proposition that the courts of the state in which some of the property of the testator is located should protect the rights of the legatees who are domiciled in such state. Where, however, as here, a dispute respecting the meaning of the will, and hence respecting the rights of, the legatees under it, exists, then, in my judgment, the courts of ancillary probate should not order a distribution of any part of the estate until the rights of the legatees are determined by the court of domiciliary probate. Of course, in actions to settle disputes respecting real property the title to which is based upon a will, the courts of the state in which the real estate is located necessarily must be called upon to construe the will. In such actions it is quite possible that the courts of different states may disagree respecting the meaning of certain provisions of a will, the same as they may disagree respecting the different stipulations of contracts and the different provisions of a statute. In such cases, however, those are the only courts upon whom is conferred the power and jurisdiction to adjudicate the title which may be in question. That is quite a different matter, however, from construing the provisions of a will for the purpose of determining the rights of legatees under it. In the latter class of cases the power and jurisdiction to order final distribution among the legatees devolves upon the court of domiciliary probate. Courts of ancillary probate should, therefore, wait until the rights of the legatees are determined and fixed. No injury can possibly result from following such a course, since the court of ancillary probate may easily protect the rights of any legatee by ordering the property retained in the state of ancillary probate until the rights of the claimants under the will are fully determined. If, however, the court of ancillary probate undertakes to construe the will for the purpose of
While I concur in the views expressed by Mr. Justice GIDEON, yet I felt it my duty to more particularly state the precise reasons for, and the extent of, my dissent.