Gibson v. Dowell

Smith, J. Mrs. Lowell applied to the probate court of Lawrence County for her allowance or thirds in the personalty of her late husband, J. H. Lowell. In her petition she alleged that choses in action to the amount of $118,-209.03 had come to the hands of John K. Gibson, to whom administration had been granted by said probate court, and that she was by law entitled to one-third of the same. The administrator contested her claim upon the grounds that her husband was, at the time of his death, domiciled in the State of Missouri, where the principal administration of his estate was proceeding, and that his own administration was merely auxiliary to the administration in Missouri; that he had already paid out what he had thus far collected of tbe assets of said estate upon tbe debts of said decedent and tbe expenses of administering bis estate, and it would probably consume tbe remainder of said assets that could be collected to satisfy the creditors who bad proved their demand's here; and that tbe petitioner’s remedy was against the domiciliary administration. 1, Dower: In personalty. Mrs. Dowell recovered a decree, both in the probate court and on appeal in the Circuit Court, for one-third of tbe available assets which had come into the administrator’s possession. On tbe trial in tbe last named court it was admitted that tbe petitioner bad been legally married to tbe deceased, who was a merchant in St. Louis, and bad died there; that she also resided in Missouri; that Newton Crane was administrator of the estate in Missouri, and that tbe laws of tbe two States with regard to widows’ rights in the premises were not the same. By our law the widow is entitled, in her own right and independently of debts, to one-third part of tbe personal estate whereof the husband died possessed. This includes cash on hand, bonds, bills, notes, book accounts and evidences of debt. Gantt’s Digest, sec. 2230. But the succession to the personal property of an intestate is regulated by tbe law of his domicile, without regard to tbe actual situs of tbe property at tbe time of bis death. It is considered that movables have no situs, but accompany the person of tbe owner; so that by a legal fiction they are always deemed to be in the place of bis domicile. And tbe lights of the widow, of heirs and distributees, are determined by tbe intestate laws of the country where the deceased was domiciled. Story Conflict of Laws, sec. 481, et seq.; Wharton on same, secs. 189, 193; Clark v. Holt, 16 Ark., 257; Shegogg v. Perkins, 34. Ib., 131; Wilkins v. Ellett, 9 Wall., 740; Same v. Same, U. S. S. C., April 16, 1883, 2 Sup. Court Rep., 641; Slaughter v. Garland, 40 Miss., 172. 2. Ancillary Administrator: His duties. What the rights of Mrs. Dowell in the personalty may be under the laws of Missouri this record does not disclose, ■except that they are different from ours. Those laws are not proved, and we can not take judicial cognizance of them. The duties of the ancillary administrator are to pay the •debts of the deceased which are proved here; to settle his ■accounts under the supervision of the court to which owes his authority, and to transmit the residuum to the administrator in chief for distribution amongst the persons beneficially entitled. Sometimes, to avoid circuity, the court having jurisdiction over the ancillary administrator, may order him to pay the residuum directly to heirs or legatees. Wharton Conflict of Laws, secs. 619 ancl 639; Mackey v. Cox, 1 How., 100. Reversed.