1167. Estoppel-Accounting-At common law an executor de son tort is estopped by his own acts from denying that he was executor in fact.20 Persons who have presumed, without authority, to administer an estate, and who claim to have fully administered it, are estopped, in a proceeding for an accounting, from denying their representative capacity or their liability to account accordingly.21 SUMMARY ADMINISTRATION 1168. Summary administration of certain small estates-Probate of will-Distribution of residue-Statute-Whenever any person dies leaving real or personal property within this state and all of the property and assets of said deceased are exempt from the payment of debts, and do not exceed in value six hundred and fifty dollars, any person entitled to apply for letters of administration or for the allowance of a will to probate may petition the probate court of the proper county that the will, if the deceased died testate, be admitted to probate, or if intestate for letters of administration, and in any event that the whole estate be closed forthwith and distribution thereof made.22 1169. Same-Petition Statute-Such petition shall in addition to the jurisdictional facts contain a description of all the property of said deceased, both real and personal, itemizing the same together with the facts by reason of which the same is claimed to be exempt, and the names and addresses so far as known, of the creditors, and shall pray the judgment of the probate court for a distribution of said property forthwith.23 1170. Same-Citation for hearing on petition-Statute-The court shall thereupon issue its citation for a hearing thereon and cause the same to be published in the manner prescribed by law. Said citation shall contain a general description of all the property of said deceased and a true copy of said citation shall be mailed to each of the heirs and to each of the creditors of said deceased so far as the same can be ascertained, at least fourteen days prior to the date of hearing.24 1171. Same-Admission of will to probate-Final decree of distribution-Expenses of administration—Statute—If upon the date set for the hearing it shall appear to the probate court that all of the property left by said deceased is exempt, the probate court may in case there be a will admit the same to probate, and may order an order and decree distributing said property to the heirs or legatees and devisees of said deceased, and such further order providing for the payment of the expenses of administration as may be necessary in the premises.25 20 Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197. 21 Damouth v. Klock, 29 Mich. 289. 22 Laws 1917, c. 289, § 1. 23 Laws 1917, c. 289, § 2. 25 Laws 1917, c. 289, § 4. FOREIGN EXECUTORS AND ADMINISTRATORS 1172. Right to letters in this state-When a foreign will has been probated in this state as provided by statute the executor therein named is entitled to letters testamentary unless there are special reasons to the contrary.26 A resident executor named in the will is entitled to letters, if duly qualified, though letters were not issued to him by the court where the will was originally probated.27 1173. Appointment at domicil-Presumption of regularity-Where the appointment of a foreign representative by a court with jurisdiction at the domicil of the decedent is shown it will be presumed that it was regularly made.2 28 1174. Not judicially noticed-The courts of this state do not take judicial notice of a foreign administration.29 1175. Control of local courts-Service of summons-Where, upon the petition of non-residents, they have been appointed executors or administrators by a probate court of this state, such court has the power to order that they submit to the service of summons in a civil action brought in this state for the purpose of determining the liability of the estate they represent on a claim or demand not provable in the probate court in the due course of administration.30 Courts of the ancillary jurisdiction cannot control the administration of personal assets of the estate collected by the representative in the domiciliary jurisdiction.81 1176. Powers-In general-Letters testamentary and of administration have no force at common law out of the jurisdiction in which they are granted. It is the general rule that an executor or administrator can do no official act in a foreign jurisdiction involving an appeal to the authority thereof, in the absence of special authority granted therein. If there are assets belonging to the estate in a foreign state or country letters must be taken out there before legal process can be resorted to there for their recovery or protection. The several states of this country are foreign to each other within this rule.32 A foreign rep 26 Hardin v. Jamison, 60 Minn. 112, 61 N. W. 1018; Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020. See 48 L. R. A. (N. S.) 858. 27 Bloor v. Myerscaugh, 45 Minn. 29, 47 N. W. 311. 28 Drake v. Sigafoos, 39 Minn. 367, 40 N. W. 257 (appointment by clerk of court in vacation under Iowa statute presumed regular). 29 Holcombe v. Richards, 38 Minn. 38, 42, 35 N. W. 714. 30 State v. Probate Court, 66 Minn. 246, 68 N. W. 1063. 31 Norton v. Palmer, 7 Cush. (Mass.) 523; Wirgman v. Provident Life & Trust Co., 79 W. Va. 526, 92 S. E. 415. 82 Pott v. Pennington, 16 Minn. 509 (460); Fogle v. Schaeffer, 23 Minn. 304; Holcombe v. Richards, 38 Minn. 34, 42, 35 N. W. 714; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790; In re Rawitzer's Estate, 175 Cal. 585, 166 Pac. 581; Reynolds v. McMullen, 55 Mich. 568, 22 resentative cannot collect or receive assets in a foreign state after the appointment of an ancillary administrator there.33 Where a foreign executor is also a trustee under the will and invested with title to property devised, he may protect his property right as trustee in a foreign jurisdiction without taking out letters as executor there.31 1177. Sale of realty-In general-A foreign representative cannot convey land in this state by virtue of letters or an order of sale obtained in another state.35 In some states there are statutes authorizing a foreign representative to convey realty upon filing a copy of the will and its probate in the proper county.30 36 1178. Sale of realty under a power in a will-A foreign representative is not authorized to convey realty situated in this state under a power in a will until the will is probated here, but a subsequent probate of the will here will relate back and cure the defective execution of the power.3 37 1179. Sale or mortgage of realty under license from probate courtStatute-In all cases where no executor, administrator, or guardian has been appointed in this state, a foreign executor, administrator, or guardian may file an authenticated copy of his letters in the probate court of any county in this state in which there is real estate of such decedent or ward, after which he may be licensed by such court to sell or mortgage real estate, as in the case of resident representatives; and such foreign representatives may act by resident attorney in fact, duly appointed for that purpose.38 The sale may be conducted by a resident attorney in fact and he may make the oath required before fixing the time and place of sale. A delay of six years by a foreign representative in petitioning for a sale of land to pay debts is not unreasonable where it is occasioned by the pendency of litigation conducted in good faith to determine the validity and amount of such indebtedness. The statute may not authorize a license to a representative appointed in an 39 N. W. 41; Brown v. Smith, 101 Me. 545, 64 Atl. 915; Equitable Trust Co. v. Plume, 92 Conn, 649, 103 Atl. 940; Baker v. Baker, Eccles & Co., 242 U. S. 394; 13 A. & E. Ency. of Law (2 ed.) 916; 18 Cyc. 1221; 24 C. J. 1109; 11 R. C. L. 432; Woerner, Am. Law of Adm. (2 ed.) §§ 157, 158, 160. 33 See §§ 1181, 1188. 34 In re Rawitzer's Estate, 175 Cal. 585, 166 Pac. 581. 35 Sheldon v. Rice's Estate, 30 Mich. 296; 13 A. & E. Ency. of Law (2 ed.) 944; 18 Cyc. 1231; 24 C. J. 1122. See § 1178. 36 See Illinois Steel Co. v. Konkel, 146 40 Wis. 556, 131 N. W. 842; Gailey v. 37 Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020. See 13 A. & E. Ency. of Law (2 ed.) 944; 18 Cyc. 1232; 24 C. J. 1123. 38 G. S. 1913, § 7364; Townsend v. Kendall, 4 Minn. 412 (315, 324); Jordan v. Secombe, 33 Minn. 220, 22 N. W. 383; Menage v. Jones, 40 Minn. 254, 41 N. W. 972; 18 Cyc. 1232; 24 C. J. 1123; L. R. A. 1915D, 754. See § 1347. 39 Jordan v. Secombe, 33 Minn. 220, 22 N. W. 383. 40 In re Jones' Estate, 80 Kan. 632, 103 Pac. 772. other state when the decedent had a domicil here at the time of his death.41 1180. Powers as to mortgages, judgments or other liens-StatuteAn executor, administrator, or guardian appointed in another state or country, upon filing for record with the register of deeds of the proper county an authenticated copy of his letters or other record of his appointment, may assign, release, satisfy, or foreclose any mortgage, judgment, or lien, belonging to the estate represented by him, on real or personal property, in the same manner as such representative appointed in this state could do. Such foreign representative may act by his attorney in fact, appointed by power executed in the manner required by law for a conveyance, and filed for record with the register of the county where such act is performed. This statute, so far as it concerns the foreclosure of mortgages under a power therein, is a regulation rather than a grant of authority. It makes the filing of letters of appointment a condition precedent to the exercise of the authority created by the contract of the parties.43 An assignee of a foreign executor may foreclose a mortgage containing a power of sale which runs to the assigns of the executor without first filing the letters of the executor. The statute is limited to the exercise of the power by the executor himself.** Independent of statute a foreign representative possibly cannot assign a mortgage of land in this state, so as to enable the assignee to enforce payment thereof by action, without taking out ancillary letters.45 A foreign representative has authority to receive a voluntary payment of the amount due on a mortgage on land in this state without first complying with this statute. Where a mortgage on realty in this state belongs to a person who dies in another state and whose estate is in course of administration here, no foreign representative can sell the mortgage to strangers. The title to the mortgage is in the local representative for purposes of administration and only he can sue on it or assign or discharge it of record.47 46 1181. Possession and sale of personalty-A domiciliary representative succeeds to the legal title of the personalty of the decedent wherever situated and by virtue of this title he may, if it is possible to do so peaceably and without resorting to local legal process, take possession and remove or sell such property in a foreign jurisdiction, provided no ancillary administration has been granted there. The rule that a dom 41 See McAnulty v. McClay, 16 Neb. 418, 20 N. W. 266. 42 G. S. 1913, § 7302. See $$ 740-742. 43 Holcombe v. Richards, 38 Minn. 38, 35 N. W. 714; Cone v. Nimocks, 78 Minn. 249, 80 N. W. 1056. 44 Cone v. Nimocks, 78 Minn. 249, 80 N. W. 1056. 45 See § 1183. 46 Dexter v. Berge, 76 Minn. 216, 78 N. W. 1111. 47 Reynolds v. McMullen, 55 Mich. 568, 22 N. W. 41. 48 Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790; Babcock v. Collins, 60 Minn. 73, 76, 61 N. W. 1020; Martin v. Gage, iciliary representative succeeds to the legal title of the personalty of the decedent in other jurisdictions rests upon the law of comity but it is none the less the law. This rule is subject to the qualification that the foreign state where such property is situated has the right to assert its jurisdiction over it by ancillary administration to protect its own citizens who are creditors of the estate. A foreign representative cannot transfer or assign personal property in this state without procuring a certificate from the Attorney General consenting to the transfer or assignment.50 49 1182. Sale of corporate stock-A domiciliary representative, in the absence of ancillary administration may sell and assign stock in a foreign corporation, and the foreign corporation may voluntarily consent to its transfer by accepting the outstanding certificate and issuing a new one to the purchaser.5 A corporation of this state cannot transfer on its books stock of a non-resident decedent without the consent of the Attorney General.52 51 1183. Assignment of choses in action-A representative may, by indorsement or assignment, transfer a foreign bill, note or other chose in action, owned by the decedent, and his assignee may sue thereon in his own name in the foreign jurisdiction, though the representative could not do so without taking out local letters.53 Before a representative of a non-resident decedent can assign personal property of the decedent in this state he must secure the consent of the Attorney General. Independent of statute or contract a foreign representative possibly cannot assign a mortgage of land in this state so as to enable the assignee to enforce payment thereof by foreclosure.55 1184. Receiving payment of debts-A foreign representative may receive a voluntary payment of a debt due the decedent, there being no local administration, and such payment is a good defence to an action by 147 Mass. 204, 17 N. E. 310; Crosby v. Charlestown, 78 N. H. 39, 95 Atl. 1043; Union Trust Co. v. Pacific T. & T. Co., 31 Cal. App. 64, 159 Pac. 820; Morrison v. Hass, 229 Mass. 514; 118 N. E. 893; Morrison v. Berkshire L. & T. Co., 229 Mass. 519, 118 N. W. 895; Compton's Administrator v. Borderland Coal Co., 179 Ky. 695, 201 S. W. 20; 13 A. & E. Ency. of Law (2 ed.) 934; 18 Cyc. 1229; 24 C. J. 1121; 45 Am. St. Rep. 664. 49 Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790. 50 G. S. 1913, § 2281. 51 Luce v. Manchester, etc. R. Co., 63 N. H. 588, 3 Atl. 618; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790; 13 A. & E. Ency. of Law (2 ed.) 942; 18 Cyc. 1231; 24 C. J. 1122. 52 G. S. 1913, § 2281; State v. Probate Court, 142 Minn. 415, 172 N. W. 318. 53 See § 1187. 54 G. S. 1913, § 2281. 53 Cutter v. Davenport, 1 Pick. (Mass.) 81; Brown v. Smith, 101 Me. 545, 64 Atl. 915; Reynolds v. McMullen, 55 Mich. 568, 22 N. W. 41; Dial v. Gary, 14 S. C. 573; Heyward v. Williams, 57 S. C. 235, 35 S. E. 503; Gove v. Gove, 64 N. H. 503, 15 Atl. 121 (holding that he may); 13 A. & E. Ency. of Law (2 ed.) 943; 18 Cyc. 1231; 24 C. J. 1122. See §§ 740-742, 1180. |