51 Ind. App. 187 | Ind. Ct. App. | 1912
— On March. 9, 1911, George E. Hoopes, a resident of the state of Pennsylvania, departed this life testate in Cass county, Indiana. On March 20, 1911, the First National B'ank of Logansport, Indiana, was a creditor of the decedent, and ’William W. Eoss, its cashier, made application to the Cass Circuit Court, showing that decedent died in Cass county, leaving assets in that county, consisting of personal property of the value of about $7,000, that said estate was insolvent, and asked that letters of administration be issued to him as a representative of the largest creditor. On March 23, 1911, the last will of decedent, naming Florence W. Hoopes, his wife, and Harry G. Eeed, of Logansport, Indiana, as executors, was probated in Chester county, Pennsylvania, and the persons so named in said will as executors were duly appointed, qualified and authorized to administer said estate under the laws of Pennsylvania. On March 23, 1911, appellee applied to the Cass Circuit Court to be appointed administrator of the estate of said decedent in Cass county, and on the same day a large number of creditors joined in a petition to the Cass Circuit Court, stating that said estate was insolvent, and asking that letters of administration be issued to said Bishop. On March 27, 1911, appellant Harry G. Eeed tendered to the Cass Circuit Court a certified copy of said will and the proceedings relative to the probate thereof, among other things showing the appointment of himself and Florence W. Hoopes, as executor and executrix, respectively, and their qualification under the laws of Pennsylvania, and moved the court to order all of said proceedings recorded in the proper records of said court. At the same time said Eeed and Hoopes applied to the court for letters testamentary, and in support of their applications the proceedings had in the state of Pennsylvania are fully shown; also that decedent left personal
The controlling question for decision is not one where a nonresident executor is offering to file a copy of his letters as evidence of his appointment, in order that he may commence and prosecute a suit in any court of this State in his trust capacity, as contemplated by §§2814, 2816 Burns 1908, §§2296, 2298 R. S. 1881, nor is there any issue tendered as to the validity of said will, bringing the question within §3158 Burns 1908, §2600 R. S. 1881. But it involves only the right of preference between foreign executors and a resident creditor to administer on personal property within the jurisdiction of the Cass Circuit Court.
In this case the decedent died testate, and while he left assets in Cass county, he was a resident of Pennsylvania, where his will was duly probated, and executors appointed, who sought letters testamentary from the Cass Circuit Court in preference to the granting of letters of administration to a resident creditor. The will was not probated nor offered for probate, consequently §2737 Burns 1908, §2222 R. S. 1881, which has reference to the issuing of letters when the will has been duly admitted to probate, can have no application to the facts before us.
In the case of Emmons v. Gordon (1897), 140 Mo. 490, 499, 41 S. W. 998, 62 Am. St. 734, it is said: “But the weight of authority unquestionably is in accord with the rule announced by this court, through Sherwood, J., in Cabanne v. Skinker [1874], 56 Mo. [357], 367, in which it is said: So far as concerns the realty, a will beyond the jurisdiction where it is probated is inoperative, and has no extraterritorial force or validity; and the executor of such will cannot, because of his appointment in accordance with the laws of one State, thereby acquire authority to sue for, or in any manner intermeddle with, the property or effects of Ms testator, whether real or personal, in another State, unless the will be there proven, or the laws of such State dispensing with the probate anew confer the requisite permission.’ ”
In the ease of Fidelity Ins., etc., Co. v. Niven (1878), 5 Houst. (Del.) 416, 432, 1 Am. St. 150, 159, it is said: “The law of ancillary administration is founded on the duty of every government to protect its own citizens in the enjoyment of their own property and the recovery of their debts, at the same time having due respect to the rights of foreign creditors. When the estate of a deceased person is solvent, there is no difficulty in applying its assets, and it is only in cases of insolvency that any question can arise as to the
Judgment affirmed.
Noté. — Reported in 97 N. E. 1023. See, also, under (1) 40 Cyc. 1374; (4) 40 Cyc. 1237; (5) 40 Oyc. 1358; (0) 40 Cyc. 1359; (8) 18 Gyc. S9. As to the effect within the state of the decedent’s domicile of the probate of his will outside, see 113 Am, St. 211.