Metcalf v. Lowther's, 56 Ala. 312

56 Ala. 312 | Ala. | 1876

STONE, J.

In Wharton Conflict of Laws, § 259, it is said: “The state wherein a ward is domiciled is that which, both in interest and in conscience, is charged with his protection ; and it is that, therefore, which, on general principles, should nominate and direct the guardian of such ward. Hence, by the uniform practice of European continental states, the guardian appointed by such home authority has control of his ward’s estate abroad, as well as at home. * * This, however, does not prevent the appointment of special, subordinate guardians, to take charge of the ward’s estate in remote territories.”

The same author, in section 260, quotes approvingly from Sir R. Phillimore, as follows : “Whatever may be the differences in the positive laws of different states, with respect to the mode of constituting a guardian, the rule of international comity imperatively demands, that a guardian, duly constituted according to the laws of the domicile of the ward, should be recognized as such by all other countries.” — See an able discussion of this question, Nugent v. Vetzen, 2 Eq. Cases, Law Rep. 704.

The domicile of the father, as a general rule, is the domicile of an infant child. “Prima facie, the infant’s residence or domicile is that of his parent; and such it will remain during minority, in spite of his temporary absence at school, or elsewhere. Nor can he, of his own motion, acquire a new domicile, since he is not a person sui juris. But his domicile may be changed by his father, if he has one.” — Schouler’s Horn. Rel. 412, 312.

Ch. J. Gibson, in School Directors v. James, 2 Watts & Serg. 570, says: “The domicile of an infant is the domicile of his father, during the father’s life-time.” The same doctrine is asserted by this court, in the case of Johnson v. Copeland, 35 Ala. 521.

For general purposes, personal property is not localized— has no independent situs. It follows the residence of the owner; and, in case of his death, it is distributed according to the law of his domicile. — See Parsons v. Lyman, 20 N. Y. 112; Johnson v. Copeland, 35 Ala. 521; Story Confl. of Laws, § 362; Wilkins v. Ellet, 9 Wall. 740.

Iii the- kindred trust of executor or administrator, certain canons are settled and admitted in all courts. Among these are, that the situs, or residence of chattels or moveables, is that of the owner; that the power and authority of the personal representative of the decedent have no extra-territorial operation, but are limited to the State or country from which such representative receives his appointment; that the representative appointed in the jurisdiction within which decedent had his last residence, is the primary, or chief administration; that other jurisdictions, in which decedent has goods or effects, may appoint administration of the same, but such administration, so appointed, save for certain purposes of local policy claimed and exercised by all nations, is subordinate and ancillary to the administration of the last residence. — See Wilkins v. Ellet, supra; Dawes v. Boyleston, 9 Mass. 337; Jemison v. Haygood, 10 Pick. 77; Parsons v. Lyman, supra.

There is an eminent propriety in having the personal effects of a ward in the same jurisdiction in which such ward has his or her residence. It will, as a general rule, be better cared for and administered at that place. The near relatives of the ward, with whom such ward is most likely to reside, will be more watchful than strangers would be, of the financial condition of the sureties on the guardian’s bond. Many other reasons, without being here enumerated, will suggest themselves, why the personal property pf the ward should be under the control of the guardian, who has the custody of the ward.

The case of Dorman v. Ogbourne, 16 Ala. 759, is persuasive to show, that the same rule and policy which obtain in primary and ancillary administrations, prevail between guardianship of the domicile and foreign guardianship.

The complainant, Anna P. Metcalf, nee Howard, so far as the record informs us, was always a resident of Alabama. At the time when complainant’s right to the fund in controversy accrued, and ever afterwards, she resided with her father, in Alabama. "When he took out letters of guardianship in this State, he became domiciliary guardian of both her person and estate; of the latter, within the territorial jurisdiction of Alabama. Mrs. Lowther’s guardianship in the State of Georgia was, in its nature, ancillary. Its purpose and office were to receive the pecuniary legacy of ten thousand dollars, to which complainant was entitled under the will of Mrs. Parish. Under the laws of Georgia, it was thought necessary to have such local guardian, to receive the legacy from Mrs. Parish’s executor, and give him a proper receipt and acquittance. This, however, did not have the effeet of making Mrs. Lowther’s the primary, or controlling guardianship, although first in time. It still possessed only the properties of an ancillary guardianship; auxiliary to the guardianship of the domicile. When she paid over the assets to Mr. Howard, the father of complainant, having the right to her care and custody, and domiciliary guardian by rightful appointment, she only placed the fund where it rightfully belonged. — See Skinner v. Frierson, 8 Ala. 915; Willis v Willis, 16 Ala. 659; Bogle v. Bogle, 23 Ala. 544. The courts of Alabama, in view of its own policy, cannot hold such payment wrongful.

In Wilkins v. Ellet, 9 Wall. 740, the domiciliary administration was in Alabama, where the intestate had his residence at the time of his death. A debtor of the estate, residing in Tennessee, had there made payment of the debt to the administrator in chief, taking his receipt against the claim. Subsequently, an administrator of the estate was appointed in Tennessee, who brought suit against the debtor, to recover the said debt. The payment to the Alabama administrator was relied on in defense. The court held the payment good, remarking, “It has long been settled, and is a principle of universal jurisprudence, in all civilized nations, that the personal estate of the deceased is to be regarded, for the purposes of succession and distribution, wherever situated, as having no other locality than that of his domicile; and if he dies intestate, the succession is governed by the law of the place where he was domiciled at the time of his decease.” * * * The original administration, therefore, with letters taken out at the place of the domicile, is invested with the title to all the personal property of the deceased, for the purpose of collecting the effects of the estate, paying the debts, and making distribution of the residue, according to the law of the place, or directions of the will, as the case may be.”

It does not follow from this, that the courts of Georgia, in the condition in which the record shows the guardianship of Mrs. Lowther to have been, would have made any order, compelling her to pay over the fund to the home guardian. They probably would not. In a case like this, Lary v. Craig, 30 Ala. 631, this court refused to make an order, requiring a resident guardian to pay over personal assets to a guardian of foreign appointment. It becomes a very different question, however, when the attempt is made, in the courts of Alabama, to hold an ancillary guardian of foreign appointment to account a second time for the money assets of the ward, which such guardian had previously paid to the domiciliary guardian, who, all the while, has resided with his ward in the State of Alabama. The money having reached its destination, we hold it is there.

The decree of the Chancery Court is affirmed.