The case at bar does not present a question of form, but of construction; and upon principle the instrument executed by Mrs. Wilmer, being expressed in terms sufficient to constitute an effectual appointment by the law of Massachusetts, must be held a good execution of the power.

It is true that, as to personal property at least, the construction and effect of a will, and the distribution thereby made of the testator's estate, are to be governed by the law of his domicil. Yates v. Thomson, 3 Cl. & Fin. 544, 570, 585; s. c., 1 Sh. & McL. 795, 835; Enohin v. Wylie, 10 H. L. Cas. 1; Harrison v. Nixon, 9 Pet. 483; Fellows v. Miner, 119 Mass. 541, 544. But the property of which Mrs. Wilmer has a power of appointment is not her property, but the property of her father; and the instrument executed by her takes effect, not as a disposition of her own property, but as an appointment of property of her father under the power conferred upon her by his will. The domicile of the testator whose property is in question is therefore the domicile of the father. The property is held by trustees residing and appointed in Massachusetts, and must be distributed here, and the trustees cannot be compelled to account for it in Maryland or in any other state, even if they should be personally found there. Campbell v. Wallace, 10 Gray, 162; Jenkins v. Lester, 131 Mass. 355; Leland v. Smith, 131 Mass. 358, note. As the father did not require the power to be executed by will, but allowed it to be executed by any instrument purporting to be a will, or by any deed or writing signed and sealed in the presence of three witnesses, it is clear that he did not intend that it should be executed only by will effectual according to the law of his daughter's domicile; and she cannot be presumed to have intended that the instrument executed by her in the form of a will should have less effect than if it had no testamentary character.

As the property which Mrs. Wilmer has the power to dispose of is the property of a person domiciled here, is here held by trustees who can only be compelled to account for and distribute it here, and is part of her share of her father's estate, the other part of which, clearly included in her will, she has derived from the same source, and as no testamentary form is requisite to her execution of the power, she must be presumed to have intended that her will should have the effect, by way of appointment, attributed to it by the law of the only place in which it could be made operative as such, and by the court upon which the duty of expounding it devolves.

The decision in Bingham's Appeal, 64 Pa. 345, goes farther than is necessary for the decision of this case. William Bingham died in 1856, having his domicile in Pennsylvania, and by his will bequeathed personal property in trust to pay the income to his son for life, and upon his death to pay the principal to such persons as he should by will bequeath it to, or in case of his dying intestate, to his issue, or, failing

such issue, to other children of the testator. The son afterwards died domiciled in England, leaving a large estate of his own, and a will devising and bequeathing "all the rest and residue of my property," in terms sufficient under the St. of 7 Will. IV & 1 Vict. to execute the power, but insufficient for that purpose by the law of Pennsylvania. The Supreme Court of Pennsylvania held that the power was not well executed, because the property in question was William Bingham's, and not his son's, and therefore, applying the rule that the same interpretation of a will should be given in a foreign country which the will has in the place of domicile, "the will, the property and the domicile of William Bingham being within Pennsylvania, the law of this state must govern the interpretation both of the power and the execution of it."

In the case at bar, the instrument executed by Mrs. Wilmer being sufficient under the law of Massachusetts, and therefore a good execution of the power, it is unnecessary to consider whether if it had been sufficient by the law of Maryland and insufficient by the law of Massachusetts, it would have been an equally good execution. And all the real estate concerning which the plaintiffs ask for the instructions of the court being in Massachusetts, it becomes also unnecessary to consider how far, had it been situated alsewhere, the lex domicilii should yield to the lex rei sitæ. See Bovey v. Smith, 1 Vern. 60, 84, 144; Trotter v. Trotter, 4 Bligh N. R. 502; s. c., 3 Wils. & Sh. 407; 1 Jarman on Wills, 1; Story, Confl. §§ 479a, 479h; Whart. Conf. § 597; Dicey on Domicile, 307; Westlake's Private International Law (Ed. 1880) 181.

The result is, that in the opinion of a majority of the court the power of appointment has been well executed, and there must be a decree for the husband.26

26 Accord: Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530, 16 L. R. A. 367 (1892); Bingham's Appeal, 64 Pa. 345 (1870); Prince de Bearn v. Winans, 111 Md. 434. 74 Atl. 626 (1909); In re New York Life Ins. & Trust Co., 209 N. Y. 585, 103 N. E. 315 (1913). Contra: Adger v. Kirk, 116 8. C. 298, 108 S. E. 97 (1921).

CHAPTER IX

FOREIGN ADMINISTRATIONS

SECTION 1.-EXECUTORS AND ADMINISTRATORS

VAUGHAN v. NORTHUP.

(Supreme Court of the United States, 1841. 15 Pet. 1, 10 L. Ed. 639.) STORY, J. This is an appeal from a decree of the circuit court of the District of Columbia, sitting for the county of Washington, dismissing a bill in equity, brought by the appellants against the appellees. The facts, so far as they are necessary to be stated upon the present occasion, are: That one James Moody, an inhabitant of Kentucky, died in that state, about the year 1802, intestate, without leaving any children; that in May or June, 1833, the defendant, Northup, obtained letters of administration upon his estate, from the proper court of Jefferson county, in Kentucky, and afterwards, under and in virtue of those letters of administration, he received from the treasury of the United States the sum of $5,215.56, for money due to the intestate, or his representatives, for military services rendered during the Revolutionary War. The present bill was brought by the appellants, claiming to be the next of kin and heirs of the intestate, for their distributive shares of the said money, against Northup, as administrator; and the other defendants, who are made parties, are asserted to be adverse claimants, as next of kin and distributees. At the hearing of the cause in the court below, the same having been set down for argument upon the answer of Northup, denying the jurisdiction of the court, the bill was ordered to be dismissed for want of jurisdiction; and from that decree, the present appeal has been taken.

Under these circumstances, the question is broadly presented, whether an administrator, appointed and deriving his authority from another state, is liable to be sued here, in his official character, for assets lawfully received by him, under and in virtue of his original letters of administration. We are of opinion, both upon principle and authority, that he is not. Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets

1 The statement of facts and part of the opinion are omitted.

of the deceased, in any other state; and whatever operation is allowed to it beyond the original territory of the grant, is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On the other hand, the administrator is exclusively bound to account for all the assets which he received, under and in virtue of his administration, to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of those assets according to the lex loci. Hence, it has become an established doctrine, that an administrator, appointed in one state, cannot, in his official capacity, sue for any debts due to his intestate, in the courts of another state; and that he is not liable to be sued in that capacity, in the courts of the latter, by any creditor, for any debts due there by his intestate. The authorities to this effect are exceedingly numerous, both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognized by this court, in Fenwick v. Sears, 1 Cranch, 259, 2 L. Ed. 101, Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319, 2 L. Ed. 453, and Kerr v. Moon, 9 Wheat. 565, 6 L. Ed. 161.

[In the remaining portion of the opinion the court held that debts due from the government of the United States have no locality at the seat of government, and that Act Cong. June 24, 1812, c. 106, 2 Stat. 755, did not authorize the maintenance of the suit.] *

2

2 In the absence of statute a foreign administrator cannot sue, even if there are no local creditors. Mansfield v. McFarland, 202 Pa. 173, 51 Atl. 763 (1902). In many jurisdictions a foreign executor or administrator may now sue in his representative capacity under such terms and conditions as the statutes of the state may prescribe. See Woerner, American Law of Administration (3d Ed., 1923) § 163.

JURISDICTION TO APPOINT ADMINISTRATOR-Jurisdiction to appoint an ancillary administrator is not dependent upon the existence of an adminis trator at the domicile of the deceased. Stevens v. Gaylord, 11 Mass. 256 (1814); Green v. Rugely, 23 Tex. 539 (1859).

An ancillary administrator may be appointed in any jurisdiction where there are assets belonging to the estate. See note, L. R. A. 1915D, 856. Jurisdiction has been taken, though the only assets found within the state consisted of choses in action. Jordan v. Chicago & Northwestern R. R. Co., 125 Wis. 581, 104 N. W. 803, 1 L. R. A. (N. S.) 885, 110 Am. St. Rep. 865 (1905). In such a case, however, the application for the appointment of an ancillary administrator has been denied on the ground that the administration of a decedent's estate should be one as far as possible. Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790, 11 L. R. A. 41 (1891).

The court of the state where the decedent was domiciled and where all the creditors of the estate reside may enjoin such creditors from petitioning for the appointment of an administrator in another state. In re Williams' Estate, 130 Iowa, 553, 107 N. W. 608 (1906).

SITUS OF ASSETS FOR PURPOSES OF ADMINISTRATION.-Choses in action, for the purpose of administration, are regarded as assets in the state where the debtor resides. Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737 (1880). The same is true of negotiable paper. Wyman v. Halstead, 109 U. S. 654, 3

JUDY v. KELLEY.

(Supreme Court of Illinois, 1849. 11 Ill. 211, 50 Am. Dec. 455.)

TREAT, C. J. This is an action of debt, on a judgment recovered in the state of Ohio, by Kelley, against the administrators of William Allington. It appears, from the record of the proceedings in Ohio, that the suit was there brought against Allington, in his lifetime, and service of process had on him. At a succeeding term, the plaintiff suggested the death of Allington, and obtained leave to revive the suit, against his personal representatives. At a subsequent term, the present plaintiffs in error entered their appearance, and pleaded to the action

Sup. Ct. 417, 27 L. Ed. 1068 (1884). See, also, Moore v. Jordan, 36 Kan. 271, 13 Pac. 337, 59 Am. Rep. 550 (1887). But a voluntary payment of a note will not be sustained, unless the administrator has possession of the instrument. Amsden v. Danielson, 19 R. I. 533, 35 Atl. 70 (1896). Bonds are assets in the state where they are located at the death of their owner. Beers v. Shannon, 73 N. Y. 292 (1878). Judgment debts are held to be assets in the jurisdiction where the judgments are recorded. Anonymous, 8 Mod. 244. Some of the American courts, however, regard them, like simple contract debts, as assets where the debtor resides. Swancy v. Scott, 9 Humph. (Tenn.) 327 (1848); Miller v. Hoover, 121 Mo. App. 568, 97 S. W. 210 (1906). Shares of stock are assets at the domicile of the corporation. Grayson v. Robertson, 122 Ala. 330, 25 South. 229, 82 Am. St. Rep. 80 (1898); Murphy v. Crouse, 135 Cal. 14,

66 Pac. 971, 87 Am. St. Rep. 90 (1901); Richardson v. Busch, 198 Mo. 174, 95 S. W. 894, 115 Am. St. Rep. 472 (1906); Contra: In re Miller's Estate, 90 Kan. 819, 136 Pac. 255, L. R. A. 1915D, 856, Ann. Cas. 1915B, 699 (1913). A policy of insurance constitutes an asset in the state where the debtor resides. A foreign insurance company, for the purpose of this rule, will be regarded as having a residence in every jurisdiction where it is subject to suit, at least where the decedent was domiciled in the latter state, or the policy was therein at the time of the decedent's death. New England Mut. Life Ins. Co. v. Woodworth, 111 U. S. 138, 4 Sup. Ct. 364, 28 L. Ed. 379 (1884); Sulz v. Mutual R. F. L. Ass'n, 145 N. Y. 563, 40 N. E. 242, 28 L. R. A. 379 (1895); New York Life Ins. Co. v. Smith, 67 Fed. 694, 14 C. C. A. 635 (1895); Ellis v. Insurance Co., 100 Tenn. 177, 43 S. W. 766 (1897). If jurisdiction has attached in one state with respect to an insurance policy, comity will cause it to be respected elsewhere. Sulz v. Mutual R. F. L. Ass'n, 145 N. Y. 563, 40 N. E. 242, 28 L. R. A. 379 (1895); Traflet v. Empire Life Ins. Co., 64 N. J. Law, 387, 46 Atl. 204 (1900).

ENGLISH LAW.-A personal representative, who has obtained a grant of administration abroad, cannot as a rule claim any recognition in England, nor property in England, but must apply for a fresh grant, which will generally be issued to him if the deceased was domiciled in the country making the original grant. In Goods of Earl, L. R. 1 Prob. & D. 450 (1867); In Goods of Hill, L. R. 2 Prob. & D. 89 (1870).

CONTINENTAL AND SOUTH AMERICAN LAW.-The settlement of estates differs greatly in the different countries, and is radically different from that followed in England and the United States. As to France and Germany, see D'Ausbourg, Les Successions en Droit International Privé (thesis, Paris, 1912) pp. 98 et seq., and, in general, Böhm, Internationale Nachlassbehandlung (2d Ed. 1895).

The rights of foreign executors and administrators will be recognized so long as they do not conflict with the policy underlying the local proceedings. In France no exequatur is required except for acts of execution. Cass. March

9, 1853 (S. 1853, 1, 269); Trib. Civ. Seine, Feb. 29, 1892 (19 Clunet, 684). 8 The statement of facts and part of the opinion are omitted.