Cochran v. Martin

B. F. SAFFOLD, J. The appeal is taken by a devisee from the final settlement of the administration of an estate which was ancillary to one in Georgia. The appellee was the administrator, in this State, of Alfred Welborn, a citizen of Georgia, who died there, leaving a last will and testament, whicjp. was duly probated in the county of his residence. As such administrator, he sold lands for division among the devisees of the will, some of whom were citizens of Alabama. On his final settlement, he accounted for the proceeds of the sale with the receipts of the administrator in Georgia, to whom he had transmitted the money. The allowance of these credits is assigned as error. The appellant is an heir and devisee of the testator,- and seems to claim in the latter capacity, as he makes no objection to the will. Sections 2163 and 2164 of the Bevised Code direct what shall be done with the personal estate of the testator in such a case as this. After the payment of his debts and the charges on the estate, the residue may be either distributed according to the will, if probated in this State, as has been done here, or paid over to the executor or administrator of the State where the deceased had his domicil. In Harvey v. Richards, (1 Mason, 381,) the court said that whether distribution ought to be decreed; or the property remitted abroad, is a matter, not of jurisdiction, but of judicial discretion, depending upon the particular circumstances of each case. In Porter v. Heydock, 6 Vt. 374, it was decided, that after the accounts for the effects received were settled, it was discretionary with the courts either to order distribution, or remit the effects to the principal administration; the latter being the usual course, but not to be adopted to the prejudice of parties interested. To the same effect is Heydock’s Appeal, 7 N. H. 496. From the nature of the ease, it is impossible that there should be a fixed rule concerning the final disposition to be made of all the property over which the administrator may exercise authority. Some discretion must remain to the court, in behalf of justice, and the proper protection of those interested living within its jurisdiction. Neither administra [531] tion can always be entirely concluded, without reference to the other. — See Dawes v. Boylston, 9 Mass. 337; Jennison v. Haygood, 10 Pick. 77. The lex loci rei sitae governs the disposition of immovable property, and also the capacity or incapacity of a testator, to the extent of his power to dispose of the property, and the forms and solemnities to give the will its due attestation and effect.- — Story on Conflict of Laws, § 474. The price of land does not become personalty, when the sale is for division. It may be very necessary that a court, in which an ancillary administration is conducted, to proceed to a distribution. But, when it acts contrarily, such necessity should be shown to induce a reversal of its decree. If this land had been susceptible of partition, the proportion to be allotted to each distributee would have been set out in the application, and the division effected in this State, from necessity and the express law. But, as it had to be sold for division, and was distributable under a will, there may have been eminent propriety in referring the distribution to the court of Georgia. In the absence of proof of injury, we can not say that the court committed error in allowing the credits. 2. The bill of exceptions states, that the appellant, moved the court to charge the administrator with a note for $5,400, made by himself and others, payable to the testator — 1st, because he had negligently allowed the statute of limitation to bar the same ; and, 2d, because he was liable as administrator; and that the motion was overruled. It does not say that the com't refused to charge the administrator with the amount of the note, in opposition to the reasons assigned why he should be so charged, or that there was not some other reason which justified its action. The note was not barred by any limitation when the administrator was appointed, and, as he was a principal obligor so far as the estate was concerned, he became chargeable with the amount of it, as assets collected, Childress v. Childress, 3 Ala. 754; Kennedy v. Kennedy's Adm'r, 8 Ala. 395. But, as the transcript does not pur [532] port to set out all of the facts connected with the' action of the court, we can not assume that some valid defense was not adduced. Note'by Reporter. — The following opinion was after-wards delivered, in response to an application for a rehearing by the appellant’s counsel, which has never come to the hands of the Reporter : The decree is affirmed. Per Curiam:.' — -We are asked to rehear this cause, on the proposition to charge the administrator with the note for $5,400, made by himself and others to his testator. It is claimed that the certificate of the probate judge, that the transcript contains “ a full, true and correct transcript of all the proceedings” had in said cause, is equivalent to a statement that all the evidence in reference to the note was set out. The certificate applies only to such proceedings as were properly matters of record, or were made so by the bill of exceptions. The bill of exceptions does recite that the contestant exhibited a note belonging to the estate of the testator, for $5,400, with several payments indorsed thereon, besides one of $950 not indorsed, made after the appointment of the administrator, and moved the court to charge him with it, which the court refused to do. But it states nothing more that is material on the subject, especially the reason of the court’s refusal. It is not stated by whom the last payment was made, or whether the entire balance had not been paid. Everything pertaining to the note would be without the record, but for the bill of exceptions, and it does not tell us enough to show error. The rehearing is denied.