Churchill v. Boyden

The opinion of the court was delivered by Redfield, J. The only question here is, whether the creditors of an estate, when the principal administration is out of this State, and an administration of estate within this State has been granted here, are all alike entitled to have their demands allowed by the commissioners appointed here; or whether the commission extends only to resident creditors. We think it may be considered well settled, in this State, that it is only the latter class of creditors, who are entitled to have their claims allowed here. This subject has been fully considered by this court, and their views were expressed and reported many years since. Vaughn v. Barrett, 5 Vt. 333. Hunt t. Fay, Adm’r, 7 Vt. 170. Porter’s Heirs v. Heydock, 6 Vt. 374. I am aware, that, upon general principles of moral equity, there may be much said against this rule of allowance. But the law seems to be so settled in most of those countries where the common law of England prevails, and in many others. It has never been questioned that the court of probate, where the adminis [322] tration is, will take no notice of foreign creditors, and not usually of foreign legatees, or distributees. Dawes v. Head, 3 Pick. 128. Davis v. Estey, 8 Pick. 475. Mothland v. Wiseman, 3 Penn. R. 185. Miller’s Estate, 3 Rawle 312. Story’s Conf. of Laws 334, 336-7. 2 Kent 434 and note. Some question has been made, whether resident creditors shall be fully paid, if the funds here are sufficient, although not sufficient in all to pay all the creditors. It has also been questioned, how far the courts ofthe subsidiary administration will proceed to distribute the funds found there among the heirs, or legatees. The prevailing practice upon this latter point is, I apprehend, as above stated, not to decree any such distribution, but to remit the funds to the principal administration. But it is admitted that, even here, there is a discretion in the courts where the funds are found; and, if they do remit them, it is merely from courtesy. Porter’s Heirs v. Heydock, 6 Vt. 374. Richards v. Dutch, 8 Mass. 506. Dawes v. Boyleston, 9 Ib. 337. Stevens v. Gaylord, 11 Ib. 257. In regard to the payment of resident creditors, the general practice seems to be to pay them fully, when the estate is upon the whole clearly solvent, — but if insolvent, to pay them pro rata, taking all the creditors and all the estate, so far as can be ascertained, into the account; — although this latter qualification of the rule first stated, of paying all resident creditors, is by no means uniform. Each separate administration is foreign to all the others, and absolutely independent of all of them, and may do as it will. But in the principal administration the entire mass of the creditors are entitled to have their claims allowed, and to share ratably in the assets, until fully paid. And the more equitable course, because the more equal, would be to have the funds found in other States there collected, and remitted to the principal administration. And this would be done, were it not for the possibility that all the creditors might not then be treated alike; — so, to “ trammel up consequences,” we choose to pay our creditors first, — generally to the extent of their ratable proportion at least. This is the settled law; and it is only for this purpose that any commission is here issued in the case of a subsidiary administration. It does not seem much like courtesy, or confidence in others, and [323] savors not a little of the times, when a foreigner and a barbarian were the same, and a. foreigner and an enemy were expressed by the same word, — Jiostis. But the law is so settled, — “ ita lex scripta est,” — and, under the modifications above stated, which it is not to be presumed the probate court will disregard, there seems little danger of injustice in the final result. And should the probate court finally make an improper decree, those injured have their remedy by appeal. The other defects are considered merely formal, and not reached by general demurrer. Judgment affirmed.