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v. Fox, 1 Redf. 297; Guier v. O'Daniel, 1 Binn. 349 ; Churchill v. Prescott, 3 Bradf. 233; Warren v. Hofer, 13 Ind. 167 ; Lawrence v. Kittredge, 21 Conn., 577; Wilkins v. Elliott, 9 Wall. 740; Stevens v. Gaylord, 11 Mass. 256 ; Holcomb v. Phelps, 16 Conn. 126 ; Eells v. Holder, 2 McCrary 622 ; Dawes V. Boylston, 9 Mass. 337; Cade v. Davis, 96 N. C. 139 ; Irving v. McLean, 4 Blackf. 52; Garland v. Rowan, 10 Miss. 617 ; Stout v. McLeod, 2 McCord Ch. 354; Atchison v. Lindsay, 6 B. Mon. 86; or wherever the intestate may die, Estate of Miller, 3 Rawle 312; Johnson v. Copeland, 35 Ala. 521 ; or his distributees reside, Succession of Circé, 41 La. An. 506 ; Leach v. Pillsbury, 15 N. H. 137; although held otherwise in Thiebaud v. Sebastian, 10 Ind. 454. But the law of the place where property is found will determine its character, Townes V. Durbin, 3 Met. (Ky.) 352 ; Grote v. Pace, 72 Ga. 302 ; and the order in which it is liable to local creditors. Smith v. Union Bank, 5 Pet. 518; Churchill v. Prescott, 3 Bradf. 233; Tucker v. Condy, 10 Rich. Eq. 12. As to the law determining preference of creditors, see p. 208, ubi supra. As to the domicil of an infant intestate being that of its deceased father and not of its mother, who had remarried and removed to another state, see Mears v. Sinclair, 1 W. Va. 185. After the share has vested in the distributee, its liability to the creditors of the distributee will be determined by the law of his domicil. Moye v. May, 8 Ired. Eq. 131.

Ancillary administration. When there is administration in several places, each administrator is primarily entitled to, and must account for, the assets of his own jurisdiction. Grimball v. Patton, 70 Ala. 626. But the payment of a debt due the intestate to a foreign administrator even in the place of his domicil is a good defense against

the administrator of the domicil, if there are no local creditors to be protected. Wilkins v. Ellett, 9 Wall. 740. If an administrator holds a note against the citizen of another state, he is liable for due diligence in its collection. Shultz v. Pulver, 3 Paige 182. In general, the court of the intestate's domicil will require the administrator to account there for the surplus of assets received by him as ancillary administrator in another jurisdiction. Jenni. son v. Hapgood, 10 Pick. 77, 98. On the other hand, an executor cannot be held liable, as ancillary administrator in another jurisdiction (as for assets in his hands there), for a specific legacy sent by him from the testator's domicil to a legatee within the ancillary jurisdiction. Fay v. Haven, 3 Met. 109.

Creditors of the intestate may prove their claim against every ancillary administration. Goodall v. Marshall, 11 N. H. 88. But if the ancillary estate consists entirely of land, the creditors must first resort to the personal property in the hands of the administrator of the domicil. Fay v. Haven, 3 Met. 109. Where the estate in the hands of the ancillary administrator is insufficient to pay all debts proved, it will be settled up as an insolvent estate and all claims paid pro rata irrespective of their locality, leaving creditors to look elsewhere for further payment. Davis v. Estey, 8 Pick. 475. Where the entire estate is insolvent, foreign creditors who have already received more than their proportionate share in another jurisdiction will be postponed to local creditors who have received less. Hays o. Cecil, 16 Lea 160. But the ancillary assets should not be transmitted to the domicil of the intestate, until local claimants are provided for. Parker's Appeal, 61 Pa. St. 478.

After debts are paid the distribution among next of kin may be made by the ancillary administrator, where the dis

rence

tributees reside, Normand v. Grognard, 2 C. E. Gr. 425 ; Dent's Appeal, 22 Pa. St. 514; in which case a decree for distribution in one jurisdiction will be no bar to a similar decree as to the as. sets in another jurisdiction, Jones v. Gerock, 6 Jones Eq. 190. Or the balance may be transmitted for distribution to the domicil of the intestate. Stevens v. Gaylord, 11 Mass. 256 ; Tucker 0. Condy, 10 Rich. Eq. 12; Porter v. Heydock, 6 Vt. 374. But the administrator of the intestate's domicil cannot compel such remittance of assets by the foreign administrator, Dorsey v. Dorsey, 5 J. J. Marsh. 280; although this may be done by an executor under a will, Ordronaux v. Helie, 3 Sandf. Ch. 512 ; especially where it is necessary for the purpose of carrying out the directions of the testator. Hayes v. Pratt, 147 U. S. 557. And a fortiori the foreign administrator cannot compel remittance by the administrator of

the domicil even for the education of an infant child of the intestate in the foreign jurisdiction. Warren v. Hofer, 13 Ind. 167. The court of the ancillary jurisdiction may, however, direct such transmission, Parsons v. Lyman, 20 N. Y. 103, revg. 4 Bradf. 268; Law

v. Kitteridge, 21 Conn. 577 ; in its discretion. Porter v. Heydock, 6 Vt. 374. So, the court of the intestate's domicil may for convenience of settlement direct the transmission of assets to the foreign administrator. Harvey v. Richards, 1 Mason 381. But a distributee cannot, without proof of such transmission of the assets, sue the . foreign administrator for his distributive share in the domicil of the deceased, although such administrator may reside within that jurisdiction. Fischer 0. Fischer, 18 Jones & S. 74. See, however, Atchison v. Lindsey, 6 B. Mon. 86. As to ancillary administration, see also Vol. I. pp. 443, 445, ubi supra.

SECTION VI.

Of the payment of the residue.

The subject of the duties of an administrator, with respect to the payment of the residue of an intestate's estate, has been in a great measure anticipated by the discussion of the duties of an executor with regard to the payment of the residue under a testamentary disposition of it.

For example, there has already been occasion to consider the subject with respect to the right of retainer by the administrator, in part or full satisfaction of a debt due to the intestate from the party entitled in distribution (y): Again the law with respect to the pay. ment of a residue, where a party entitled to a distributive share is an infant (z); or a married woman (a), has been considered in a previous part of this treatise, incidentally to the subject of the payment of legacies. Although the 8th section of the statute enacts, that no dis*tribu

tion of an intestate's effects shall be made until one year If a person entitled to distribu: be expired after his death, yet if a person entitled to a year, bis executor, distributive share shall die within the year, such inter&c., may claim.

est shall be considered as vested in him, and shall go to his personal representative : for this proviso makes no suspension or condition precedent to the interest of the parties, but was inserted merely with a view to creditors (6): The statute also is in the nature of a will framed by the legislature for all such persons as die without having made one for themselves; and, by consequence, the parties entitled in distribution resemble a residuary legatee ; and it has been always held, that if such legatee dies before the amount of the surplus is ascertained, still his representative shall have the whole residue, and not the representative of the first testator (c). (y) Ante, p. *1171, et seq.

(6) Brown o. Farndell, Carth. 51, 52. (2) Ante, p. *1261, et seq.

Bac. Abr. Exors. I. 4. (a) Ante, p. *1265, et seq.

(©) Bac. Abr. Exors. I. 4. [*1402]

*CHAPTER THE SECOND.

&c. OF DISTRIBUTION UNDER THE CUSTOMS OF LONDON AND YORK,

19 & 20 Vict. c.
94.
Customs of Lon.

and York

The fourth section of the Statute of Distributions provides, that the act shall not in any way prejudice the customs of the city of London, or the province of York, or other places, but that they should be observed as formerly.

So, that, although by subsequent statutes, mentioned in an earlier part of this work (a), the restraint on testamentary dispositions in those places has been removed, and the customs may be thereby controlled at the pleasure of a testator : yet if a man died intestate, before December 31, 1856, the customs remained in the same force, with respect to the distribution of his personal estate, as if no statutes had ever passed.

But by stat. 19 & 20 Vict. c. 94, the 4th section of the Statute of Distributions is repealed, save only with respect to the distribution of the personal estate of persons who may 24 have died on or before December 31, 1856, “and the don

abolished, as to special customs respecting the distribution of the personal the estates of perestates of intestates observed in the city of London, or died on or after

Jan. 1, 1857. in relation to the citizens and freemen of such city, and in the province of York, and certain other places, shall, with reference to all persons dying on or after January 1st, 1857, wholly cease and determine, and the distribution of the personal estates of all persons so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estates of intestates generally prevalent in the province of Canterbury had prevailed throughout England *and Wales, any law or statute to the contrary notwithstanding.” It has been deemed advisable to omit in the present edition of this work any discussion in detail of distribution as it existed under the customs of London and York, &c., which were abolished by the above act. As, however, these customs remain in force and affect the distribution of the estates of persons who have

who

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died before January 1st, 1857, the reader is referred to the former editions of this work [Pt. III. Bk. IV. Ch. 2] where the nature and incidents of the customs which have been abolished are investigated at length.

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