IV. Indebtedness; distribution; accounting and settlement. e. Accounting; settlement; etc. the income to legatees, are entitled to dou- | Modification of decree on motion to strike ble commissions. Re Crawford, 5 L.R.A. 71, 113 N. Y. 560, 21 N. E. 692. 3. Discharge. 8125. Generally. (Annotated) Effect of, on right to exercise power of sale, see ante, § 41 g. Effect of discharge in one state upon liability for inheritance tax imposed in another state, see JUDGMENT, § 376 b. Demurrer to bill to enjoin discharge, see PLEADING, § 581 a. See also post, § 126 d, e. a. Authority from the probate court is necessary—at least in jurisdictions where executors have the right of possession of real estate to release from his executorial trust one who has assumed the duties of executor under a will which also gives the entire estate to him in trust for certain purposes. Re Higgins, 28 L.R.A. 116, 15 Mont. 474, 39 Pac. 506. b. The formal discharge contained in a decree on final accounting operates only as to the accounts of the parties up to that period, and, where the trust is an enduring one in which other assets may be realized. and new liabilities incurred, involving a continuance of duty and responsibility, the decree does not destroy the relation of executor, but only discharges him from liability for the past. Starr v. Willoughby, 2 L.R.A. (N.S.) 623, 218 Ill. 485, 75 N. E. 1029. c. Execution upon a judgment against one as administrator cannot be issued against such person in his fiduciary capacity, so as to reach property belonging to the estate, after he has made his final settlement and been discharged by the probate court. Meredith v. Scallion, 3 L.R.A. 812. 51 Ark. 361, 11 S. W. 516. d. The representative of the estate of a deceased coadministrator cannot maintain a caveat to the application for discharge of the surviving coadministrator, who has made final returns in which full commissions have been charged and allowed for services of both the surviving administra tor and his deceased coadministrator, which final returns have been approved by the ordinary, on the ground that the surviving administrator has not paid to the estate of the deceased coadministrator the proper amount of such commissions for services rendered by the latter. Groover v. Ash, 22 L.R.A. (N.S.) 1119, 132 Ga. 371, 64 S. E. (Annotated) 323. 4. Impeachment; opening; review. § 126. Generally. Right of sureties of administrator to notice of proceeding to vacate decree discharging bond, see ante, § 65 g. Binding effect on persons not parties of decree settling executor's accounts, see JUDGMENT, § 204 a. out item, see JUDGMENT, § 274 g. Collateral attack on probate decree on executor's account, see JUDGMENT, § 339 b, c. a. A brother of an intestate, who is not made a party to an accounting of the administrator, may treat the proceedings in which the accounting was had as void, and institute new proceedings to compel an accounting, without the necessity of coming in under the prior one by motion to open that decree. Re Killan, 63 L.R.A. 95, 172 N. Y. 547, 65 N. E. 561. (Annotated) b. One proceeding to compel a second accounting by an administrator on the ground that the first was void as to him because he was not made a party to it should give notice to the parties who ap peared in, and were affected by, the original proceedings. Re Killan, 63 L.R.A. 95, 172 N. Y. 547, 65 N. E. 561. (Annotated) c. The next of kin of an intestate, who was not made a party to the administrator's accounting, may proceed in equity against all persons interested, to procure a Re Killan, 63 redistribution of the estate. L.R.A. 95, 172 N. Y. 547, 65 N. E. 561. (Annotated) d. An order of a probate court approv ing the final account of an executor and discharging him before he has paid the inheritance tax required by statute to be paid before he can be discharged is invalid, and will be set aside on motion of the state, where there were ample funds in the estate with which to pay such tax. State v. Nagle, L.R.A.1917E, 1160, 100 Kan. (Annotated) 495, 164 Pac. 1073. e. An order discharging an executor may be impeached for fraud or mistake, but the matter complained of must be something ex trinsic or collateral to the matter tried upon the original hearing and not a fraud or mistake in the very matter on which the entered or judgment was order made. 138 lowa, 673, 115 N. E. 880. Bradbury v Wells, 16 L.R.A. (N.S.) 240, f. A setttlement of an executor's account cannot be impeached in a separate suit by parties having notice of the proceeding, because of fraud in an item which was a matter of consideration by the probate court. Bradbury v. Wells, 16 L.R.A. (N.S.) 240, 138 Iowa, 673, 115 N. W. 880. g. Failure of executors to list in their account shares of corporate stock will not sustain a suit to open the judgment approving their account, where they claimed that the failure was due to the fact that the shares were of no value, and there is nothing to show that any substantial right of the objectors has been sacrified by the omission. Bradbury v. Wells, 16 L.R.A. (N.S.) 240, 138 Iowa. 673, 115 N. W. 880. h. Omission from an executor's account of any reference to testator's real estate will not sustain a bill on behalf of legatees to open the settlement of their accounts, if no power was given them over the real es IV. Indebtedness; distribution; accounting and settlement. e. Accounting; settlement; etc. tate except so far as necessary to pay debts. Bradbury v. Wells, 16 L.R.A. (N.S.) 240, 138 Iowa, 673, 115 N. W. 880. i. Where an administrator has recovered and collected money in an action for causing the death of his decedent, and, before an order has been made making allowance to the attorney employed in such action for fees, and appropriating and charging thereon a sufficient portion of such fund to pay same, such administrator has settled his accounts, and been allowed and credited therein with a sufficient sum retained for attorneys' fees to cover the fees of such attorney, but not paid to him, a court of equity, in a suit by such attorney against the administrator and the surety on his fiduciary bond, brought for that purpose, will not surcharge and falsify such settlement, respecting the item credited therein for attorneys' fees, so as to create a devastavit, and render the surety in such fiduciary bond liable for, and give decree against him for, the amount of such fees. Thompson v. Mann, 22 L.R.A. (N.S.) 1094, 65 W. Va. 648, 64 S. E. 920. V. Creditor's rights against land; § 127. Generally. As against heirs and their transferees, see see Delay of executor in petitioning for sale of order authorizing sale of reversionary 361 b. See also ante, §§ 87 d, 92 a, b, d. a. The personalty of an estate is the primary fund for the satisfaction of all the personal obligations of the deceased. Case v. Hall, 25 L.R.A. 766, 52 Ohio St. 24, 38 N. E. 618. b. Administration has relation to personal property only, except where the personalty is insufficient to pay the debts of the decedent. Smith v. Becker, 53 L.R.A. 141, 62 Kan. 541, 64 Pac. 70. c. In a suit to sell real estate of a decedent in satisfaction of a deed of trust thereon, the executrix and sole devisee who refused to present her accounts as executor or reveal the personalty cannot complain that it was not ascertained whether the personal estate would pay the indebtedness. Gooch v. Allen, 37 L.R.A. (N.S.) 930, 70 W. Va. 38. 73 S. E. 56. d. Section 8134, Revised Codes of North Dakota 1905, which provides that any local creditor may make an application for the sale of real estate of a decedent, if the administrator neglects to do so, does not cover local creditors merely, to the exclusion of creditors in a foreign jurisdiction. Dow v. Lillie, L.R.A.1915D, 754, 26 N. D. 512, 144 N. W. 1082. e. Under the Code of North Dakota the sale of real estate of a nonresident decedent located in that state is authorized to pay debts of the estate duly proved in the domiciliary jurisdiction, to the exclusion of the heirs of the decedent in North Dakota. Dow v. Lillie, L.R.A.1915D, 754, 26 N. D. 512, 144 N. W. 1082. (Annotated) f. Under statutory provisions authorizing the sale of real estate of a nonresident decedent to pay debts approved in the administration of the decedent's estate in a foreign jurisdiction, and the transmission of the proceeds there for distribution, a sale will be ordered where the claim to pay which the sale is asked has been duly proved in the foreign court, which was the domiciliary court of the decedent, and there are not assets in such jurisdiction sufficient to pay the same, and the petition asking for the sale of real estate is filed in an ancillary administration had in the state where the real estate is thus situated, in which there is no money or personal property and no debts, and the contestants of the sale are the heirs, who had knowl edge of the foreign administration and opportunity to defend against the claims. Dow v. Lillie, L.R.A.1915D, 754, 26 N. D. 512, 144 N. W. 1082. VI. Foreign and ancillary administra- § 128. Generally. Situs in state of ancillary administrator of stock for purpose of transfer on books of company, see CORPORATIONS, § 212 c. Jurisdiction in case of, over assets in other state, see COURTS, § 21 b. Collateral attack on award to ancillary ad ministrator, see JUDGMENT, § 343 c. Allowance by courts of testator's domicil of inheritance tax after decree of other state discharging administration, see JUDGMENT, § 376 b. Delay by foreign executor in petitioning for sale of real estate to pay debts, see LIMITATION OF ACTIONS, § 29 g. VI. Foreign and ancillary administration. Effect of resort to ancillary administration | but ancillary to it. a. The authority of an executor or ad- 849. c. An administrator given by statute the right of possession of the lands of the intestate is not entitled to the possession of lands in another state. Price v. Ward, 46 L.R.A. 459, 25 Nev. 203, 58 Pac. 849. d. An executor or administrator duly appointed under the authority and jurisdiction of another state or country acquires a good title to the personal property and assets of his intestate, which are there found, and which come to his hands by virtue of such appointment, and he is to be held accountable therefor only in the legal tribunals of the state or country under which he holds office. Wirgman v. Provident Life & T. Co. L.R.A.1918E, 715, 79 W. Va. 562, 92 S. E. 415. e. An administrator may receive, in a foreign state, a voluntary payment from a debtor, which will be a good quittance to him, even if an ancillary administrator should be subsequently appointed, where no debts are owing by the estate in the state of the debtor's residence and no ancillary administration has been there granted., McCully v. Cooper, 35 L.R.A. 492, 114 Cal. 258, 46 Pac. 82. f. A foreign executor may be paid by a § 129. Ancillary appointment. Bond as condition of granting, see ante, S Smith v. Smith, 43 L.R.A. 403, 174 Ill. 52, 50 N. E. 1083. d. The title of a domiciliary represen tative, unlike that of an ancillary representative, extends to all of the decedent's personal estate wherever situated, but the title of the ancillary representative is limited to the assets within the jurisdiction of his appointment. Vanover v. Borderland Coal Co. L.R.A.1918D, 666, 179 Ky. 695, 201 S. W. 20. e. The grant of ancillary administration in a county in which there is a note belonging to the estate, although the debtor resides in another county, is authorized by Pa. act March 15, 1832, providing that, where the decedent was not domiciled in the commonwealth, such letters shall be grantable in the county where the principal part of his goods and estate shall be. Re Engelskirger, 51 L.R.A. 876, 197 Pa. 280, 47 Åtl. 233. state f. Ancillary administration in a where a testator left personal property only, and in which no creditors, legatees, or distributees reside, will not be granted on the petition of a nonresident creditor, who, so far as it appears, can prove and collect his claim in the state of testator's domicil, where his will has been probated, letters testamentary have been issued, and his estate is being administered. Re Washburn, 11 L.R.A. 41, 45 Minn. 242, 47 N. W. 790. g. No privity exists between the executors of the will of a deceased appointed in one state and an administrator with the same will annexed appointed in another state, nor between the administrators of the estate of an intestate appointed in different states. Wilson v. Hartford F. Ins. Co. 19 L.R.A. (N.S.) 553, 164 Fed. 817, 90 C. C. A. 593. h. Estoppels in favor of or against the administrators of a will appointed in one state, by judgments or by the statutes of limitation of that state, do not bind or affect the administrator with the will annexed, or an administrator of an intestate, appointed in another state, or a claimant Wilson V. against such representatives. Hartford F. Ins. Co. 19 L.R.A. (N.S.) 553, 164 Fed. 817, 90 C. C. A. 593. obtained in a. Administration other states than that of the decedent's domicil, for the purpose of securing possession of assets of the decedent therein, is ancillary to the administration of the domicil. Mc-§ Cully v. Cooper, 35 L.R.A. 492, 114 Cal. 258, 46 Pac. 82. b. The administration granted in the state of a decedent's domicil at the time of his death is the principal administration and that granted in another state is L.R.A. Comb. Dig.-283. 130. Collection and disposal of as sets. Right of ancillary administrator to reimbursement from distributees for debt which he has been compelled to pay after turning over assets to principal administrator, see ante, § 106 b. VI. Foreign and ancillary administration. Payment over to domiciliary representative, | barred because it was not presented to see CONFLICT OF LAWS, § 133 f. See also ante, § 98 c. a. Administration in the state of the domicil of the decedent does not govern the administration of the property of a decedent in any other state. Wilson v. Hartford F. Ins. Co. 19 L.R.A. (N.S.) 553, 164 Fed. 817, 90 C. C. A. 593. b. Where a debtor or the securities of an intestate are in a foreign jurisdiction and are not voluntarily paid or surrendered to the administrator of the place of the domicil of the intestate, the courts of the foreign jurisdiction will not enforce the recovery of the debts or securities upon his application until he has procured ancillary letters or a new administrator has been authorized under the laws of the place where assets may be. Re Prout, 13 L.R.A. 104, 128 N. Y. 70, 27 N. E. 948. c. The collection and distribution of assets in the ancillary jurisdiction by the domiciliary administrator, with the consent of the ancillary administrator, is equivalent to collection and distribution by the ancillary administrator. McClung v. Seig, 66 L.R.A. 884, 54 W. Va. 467, 46 S. E. 210. d. An ancillary administratrix appointed in California may recover from the domiciliary administrator appointed in Indiana, who is temporarily within the former state, a certificate of deposit issued by a California bank and belonging to the estate, which the receiver of the bank has refused to allow as a valid claim, and for the recovery of which the domiciliary administrator cannot maintain an action in California. McCully v. Cooper, 35 L.R.A. 492, 114 Cal. 258, 46 Pac. 82. e. Where by statute an ancillary administrator has the same power as domestic administrator, except in disposing of real property for payment of debts and funeral expenses, he may transfer stock of decedent in his possession upon the books of the corporation. Lockwood v. United States Steel Corp. L.R.A.1915C, 471, 209 N. Y. 375, 103 N. E. 697. a. A claim against a decedent's estate should be entertained in favor of a citizen of another state on the ground of comity, although the administration is only ancillary, if there is no statute forbidding it. McKee v. Dodd, 14 L.R.A. (N.S.) 780, 152 Cal. 637, 93 Pac. 854. b. One holding a claim against a decedent's estate, which arises in the state where ancillary administration is granted is not bound to seek the forum of the principal administration, but may have his claim settled in the ancillary proceedings. More v. Luther, 18 L.R.A. (N.S.) 149, 153 Mich. 206, 116 N. W. 986, 117 N. W. 932. c. A claim against the estate of a decedent in the hands of an administrator with the will annexed in one state is not the domiciliary executors of the same will in another state, and has become barred in that state. Wilson v. Hartford F. Ins. Co. 19 L.R.A. (N.S.) 553, 164 Fed. 817, 90 C. C. A. 593. (Annotated) § 132. Distribution of estate. See also ante, § 130 c. a. The duty of the ancillary adminis trator is to account to domestic creditors, and, after they are satisfied, to pay over the balance to the primary or domiciliary administrator. Re Middleby, L.R.A.1915F, 1041, 249 Pa. 203, 94 Atl. 820. b. While the general rule is, that where an ancillary administration has been raised the fund in the hands of the administrator will be applied to the payment of domestic creditors, and the balance remitted to the domiciliary jurisdiction, the court, may, in its discretion, if the facts warrant, make distribution of the entire fund. Re Middleby, L.R.A.1915F, 1041, 249 Pa. 203, 94 Atl. 820. c. It is discretionary with a probate court, in which ancillary administration has been granted, to dispose of the decedent's personal property, after the payment of debts in the state, according to the will as proved in another state, or to transmit such prop erty to the forum of the latter state. Welch v. Adams, 9 L.R.A. 244, 152 Mass. 74, 25 N. E. 34. d. The surplus proceeds of a sale of lands, made in auxiliary administration after paying the debts in that jurisdiction, instead of being distributed to the heirs and devisees in that jurisdiction, will be transmitted to the principal administrator in another state in which the assets are insuf ficient to pay debts. Gara v. Austin, 9 L.R.A. 218, 79 Iowa, 178, 44 N. W. 352. (Annotated) e. A court which has appointed an ancillary administrator for property of one who died domiciled in a country in which a foreign language prevails may require a legatee to establish his claim in the courts of the domicil, where he resided when the will was made and probated, although the local statute provides that a personal representative shall not be required to deliver to any foreign executor or administrator any fund, but such fund shall be distributed under the direction of the local court. Re Bertin, L.R.A.1915A, 431, 245 Pa. 256, 91 Atl. 669. (Annotated) f. A foreign creditor of a nonresident who died solvent leaving property in the state, which by his will was converted into personalty, does not gain the advantage of a resident with respect to the distribution of such property in the hands of an ancillary administrator, by securing judgment against the estate in the courts of the state; at least, he will not be permitted to do so if by sharing in the domiciliary estate domestic creditors could not be paid in full. Re Middleby, L.R.A.1915F, 1041, 249 Pa. 203, 94 Atl. 820. (Annotated) VI. Foreign and ancillary administration. # 133. Actions by foreign represen- | cause of action which accrued in such state, tatives. to his intestate by reason of the negligent act of a common carrier causing personal injury to him. O'Reilly v. New York & N. E. R. Co. 6 L.R.A. 719, 16 R. I. 395, 19 Atl. 244. Right of foreign administratrix appointed Effect of settlement of domiciliary adminis- a. At common law a foreign executor or administrator had no authority as such to bring an action outside the jurisdiction of his appointment. Hare v. O'Brien, 39 L.R.A. (N.S.) 430, 233 Pa. 330, 82 Atl. 475. b. A foreign administrator or executor has no power or authority in another state, and therefore he can neither sue nor be sued as such, that is, strictly in his official capacity there. Wirgman v. Provident Life & T. Co. L.R.A.1918E, 715, 79 W. Va. 562, 92 S. E. 415. c. An administrator appointed in one state cannot, by virtue of such appointment, maintain an action in another state, in the absence of a statute of the latter state, giving effect to that appointment, to enforce an obligation due his intestate. Black v. Henry G. Allen Co. 9 L.R.A. 433, 42 Fed. 618. d. The principal executor or administrator of a decedent cannot, as such, bring a suit in another state to recover possession of personal property or to collect a debt due the estate, but he may take possession of such property peaceably, without suit or receive the voluntary payment of a debt. Re Washburn, 11 L.R.A. 41, 45 Minn. 242, 47 N. W. 790. e. While the principal executor or administrator of a decedent cannot sue in another state on a promissory note or other chose in action belonging to the estate, he may sell or assign it, and his assignee may maintain a suit on it in his own name, the difficulty being the disability of the executor or administrator to sue in another state, and not any defect of his title. Re Washburn, 11 L.R.A. 41, 45 Minn. 242, 47 N. W. 790. f. An administrator or executor cannot generally be recognized as such by the courts of a state other than that in which he received his appointment but a foreign representative may maintain a suit in his own name without recourse to local administration where he sues as trustee holding the legal title to property not assets of the estate. Connor v. New York, N. H. & H. R. Co. 18 L.R.A. (N.S.) 1252, 28 R. I. 560, 68 Atl. 481. g. A state statute providing that when administration is taken in that state upon the estate of a nonresident decedent, the estate found there is to be applied there primarily to the payment of domestic creditors, will not prevent the administrator from bringing suit wherever he can, upon a h. An administrator who takes land as assets by express provision of law has no such right, title, or interest in and to the lands of his intestate in another state as will authorize him to sue to redeem from a mortgage thereon by setting off against the mortgage debt waste committed by the mortgagee in possession after the death of the intestate, or to recover damages for waste or trespass on such lands. Price v, Ward, 46 L.R.A. 459, 25 Nev. 203, 58 Pac. 849. i. That a foreign executor has not secured an appointment from the local courts at the time he files a bill to foreclose a mortgage belonging to the estate is not fatal to the action, if he secures such appointment before trial. Leahy v. Haworth, 4 L.R.A. (N.S.) 657, 141 Fed. 850, 73 C. C. A. 84. (Annotated) j. An administrator appointed in one state cannot maintain a suit in a United States circuit court for another state, to restrain an infringement of a copyright which belonged to his intestate, without taking out ancillary letters in such other state; but he may take out such letters after demurrer to his bill, and aver the fact by amendment before answer filed. Black v. Henry G. Allen Co, 9 L.R.A. 433, 42 Fed. 618. 134. -on judgment recovered in state of appointment. a. Suit in a foreign state on a judg ment recovered by an administrator in the state of his appointment may be maintained by him in his own name. Tittman v. Thornton, 16 L.R.A. 410, 107 Mo. 500, 17 S. W. 979. b. An administrator, having reduced personal property of his estate to possession or recovered judgment against a debtor of a foreign state within the jurisdiction of his appointment, may maintain an action individually in a foreign state upon such judgment or to recover such personal property it it is wrongfully taken from his possession and carried therein. McCully v Cooper, 35 L.R.A. 492, 114 Cal. 258, 46 Pae. 82. c. A judgment obtained by a domiciliary executor, at the place of his residence, is an asset located within that state; and he, in his individual capacity, and not an ancillary administrator appointed at the debtor's residence, in another state, has the right to sue in the courts of the latter state, to enforce the judgment. Hare v. O'Brien, 39 L.R.A. (N.S.) 430, 233 Pa. 330, 82 Atl. 475. d. A statute declaring that foreign letters of administration shall not confer any of the powers or authority conferred by domestic letters does not prevent a domiciliary administrator who has obtained a judgment in the state of his residence from |