45 Iowa 221 | Iowa | 1876
In Redfield on Wills, 3d Vol., page 29, it is said: “As no creditor out of the ancillary administration can present his
So far as the assumption is concerned that no claims can be allowed under the ancillary administration except those of local creditors, there is not only no warrant for it in the cases cited, but it is directly in conflict with a later decision in Massachusetts, as we will show hereafter.
In Hunt v. Fay, Adm’r., 7 Vt., 170 (183), the court said: “Considering the administration where-the intestate had his domicile as the principal administration, and that the creditors must resort there for the purpose of substantiating their claims,'and that all personal assets must ultimately be transmitted for that purpose to the principal administrator, if the funds collected by the auxiliary administrator are necessary for the purpose of paying debts against the estate, and if not wanted are to be distributed among those entitled thereto by the principal or .auxiliary administrator as the courts where the funds are collected shall deem expedient, subject to the claims which the citizens of the government have upon the funds within their jurisdiction, we think that the citizens of no other State can come in to claim a share in the funds of a subordinate administrator, and that the object of a commission in the State whére the second administration is granted is only to ascertain the claims of creditors within that State who are to be paid before the funds collected are suffered to be transmitted; that to permit any creditor not living within the jurisdiction where the auxiliary administration is granted to coiné in for a share of the effects found there would be unjust and inequitable, — would give them an undue advantage, and present great embarrassment in the settlement of estates.” The foregoing might be considered as an authority for the doctriné for which the appellee contends, were it -not for the .fact that the right of the plaintiff to prove his claim was denied upon the ground that he was a resident of the State of
On the other hand we have to say that we have seen hut one case where the precise- question has been drawn in issue, that can be regarded as authority for the appellant, and that case lacks one or more elements which exist in the case at bar. It is in point so far .as the question of the preference of resident creditors is concerned. In Davis v. Esty et al., Adm’rs., 8 Pick., 475, the defendants’ intestate resided in Yermont at the time of his death and administration was granted to them there.
The intestate owned property in Massachusetts and ancillary administration was granted to the defendants in that state. The estate was insolvent. The plaintiff was a creditor residing in Massachusetts, and presented his claim in that state. The court said: “The property in Yermont by the administrators is to be accounted for there; but the property in this commonwealth is liable to a certain extent to the debt here. As the estate is insolvent, a creditor here is not to be paid his whole debt to the prejudice of creditors in Yermont, but only a pro rata dividend. There is no difficulty in this case as to the modus operandi. Judgment is to be taken for the whole
On this point it is proper to say that there is nothing in the Code to indicate that there should bfe. On the other hand, the Constitution of the United States provides that “ the citizens of each state shall be .entitled to all privileges and immunities of citizens in the several states.” It is time that it has been sometimes thought that this provision does not apply to the respective rights of resident and non-resident creditors to the estate of a deceased debtor held under an ancillary administration. In Hunt v. Fay, administrator, above cited, the court said: “There are some privileges and immunities which are necessarily connected with the residence of the citizen, which cannot be enjoyed by those residing elsewhere, and the right of resorting to the funds of a deceased debtor within the territorial limits of a state may be one of them.” But this assertion is not sustained by any very satisfactory reasoning, and it is doubtful whether it can be. In Goodall v. Marshall, 11 N. H., 95, the court thought that the constitutional provision had application to such a case.
Without dwelling upon this question, upon which we might not arrive at a satisfactory determination, we may observe that it has been thought that the rights of non-resident creditors
In Kent’s Com., 2d vol., 434, it is said: “The intimation has been strong that such an auxiliary administrator, in case of a solvent estate, was bound to apply the assets found here to pay debts due here, and that it would be a useless and unreasonable courtesy to send -the assets abroad and the resident claimant after them. But if the estate was insolvent, the question became more difficult. The assets ought not to be sequestered for the exclusive benefit of our own citizens.”
Upon principle and authority we have come to the conclusion that non-resident creditors haye the right to pi’ove their claims under an ancillary administration. IIow distribution should be madé 'is a different and more difficult question. If the assets in the hands of the principal administrator are suffi
t-, JaEVERSED.