Lawrence v. Kitteridge

Church, Ch. J. The first decree of the court of probate appealed from, was predicated upon facts essentially as follows, viz., Cephas Pettibone, the intestate, at the time of his death, was an inhabitant of, and had his domicil in, the state of Vermont, and was possessed of an estate there; and there was due to him here, from a citizen of this state, a debt of about one thousand dollars. Original administration upon his estate was granted in the state of Vermont, and was in progress, when an ancillary administration was granted in this state. When the decree appealed from was made, there were no unsatisfied debts due from the estate, here or in Vermont, and nothing but a distribution of the estate remained to be done. The intestate died, leaving brothers and sisters of the whole and half blood; all, excepting the late Augustus Pettibone, Esq., of Norfolk, who was a brother of the whole blood, residing in Vermont, or elsewhere, out of this state; and he had no other heirs at law. By the laws of Vermont, the brothers and sisters of an intestate of the whole and half blood are entitled equally to the estate, under the statute of distribution. — 582 — Upon the foregoing state of facts, the court of probate for the district of Norfolk was of opinion, that the personal estate of Cephas Pettibone—the chose in action of one thousand dollars—should be distributed according to the laws of the state of Vermont; and that this could better be done, and without injury to any citizen of this state, by transmitting the money to the administrator there, and to the jurisdiction of the court of principal administration, than to order a distribution of it here. And therefore, the decree appealed from, was made. The appellant, who is the representative of Augustus Pettibone, the brother of the whole blood residing in the district of Norfolk, objects to this decree, and appeals from it. He claims, that the assets or money in the hands of the administrator here, should have been distributed here, and according to the laws of this state, which prefer a brother or sister of the whole blood to one of the half blood. 1. We had supposed, that the law of the country of the domicil of an intestate governed and regulated the distribution of his personal estate; and that this was a principle of international law, long ago recognized by jurists in all enlightened governments, and especially recognized by this court, in the recent case of Holcomb v. Phelps, 16 Conn. R. 127. 133. in which we say, that, “It certainly is now a settled principle of international law, that personal property shall be subject to that law which governs the person of the owner, and that the distribution of and succession to personal property, wherever situated, is to be governed by the laws of that country where the owner or intestate had his domicil, at the time of his death.” Sto. Conf. Laws, 403. in notis. § 480. 465. 2 Kent's Com. Lect. 37. 2 Kaime's Prin. Eq. 312. 826. Potter v. Brown, 5 East, 124. Balfour v. Scott, 6 Bro. Parl. Cas. 550. (Toml. ed.) Bempde v. Johnstone, 3 Ves. 198. Pepon v. Pepon, Amb. 25. 415. Guier v. O'Daniel, 1 Binn. 349. in notis. Harvey v. Richards, 1 Mason, 381. It is not necessary that we should now examine the reasons, whether of public policy or legal propriety, which have led the tribunals of civilized nations to relax from antiquated notions on this subject; some of these are well considered, by Judge Story, in the case of Harvey v. Richards, 1 Mason, — 583 — 381. and by Chancellor Kent, in his Commentaries, vol. 2. Lect. 37. It is true, that it is in the power of every sovereignty, and within the constitutional powers of the states of this Union, to repudiate this salutary doctrine, in its application to themselves, or to modify it, for what they may suppose to be the protection of their own citizens; but without some peculiar necessity, it cannot be supposed, that any well regulated government will do it. It was claimed in argument, in this case, that this had been done in this state, and by the provision of the 49th section of our statute for the settlement of estates, (Stat. 357.) by declaring, that when there are no children, &c. of an intestate, his “real and personal estate shall be set off equally to the brothers and sisters of the whole blood.” But it was not the purpose of this provision to disregard the universal and salutary doctrine of the law to which we have referred, but only to regulate the descent and distribution of the estates of our own citizens. This provision of our statute is not peculiar to ourselves; a similar one, we presume, may be found in the codes of other states; at least, imperative enactments exist in every state, directing the distribution of estates; but none of them are intended to repeal the law of the domicil, in its effect upon the personal estate of the owner. The controversy, in the case of Holcomb v. Phelps, arose under the same section of our law as does the one now under consideration, and the result of that case must settle this question, if it be one. There are cases, in which the law of the domicil has been modified or restrained, in its full operation, for what courts have supposed to be the proper protection of the rights of the citizens of their own states; but these are generally confined to cases in which creditors are, in some way, interested, under insolvent proceedings, assignments, or bankrupt laws, and never, we believe, are extended to mere cases of distribution, as here claimed. Sto. Conf. L. 277. § 337. The views of the court of probate in regard to the operating law of distribution, in this case, were correct; and the remaining question, in this part of the case, is, whether the decree which followed, directing the money in the hands of the administrator here, to be transmitted to the proper jurisdiction in Vermont, for distribution, should be reversed; or — 584 — whether the court here, should, by its own decree, have made distribution according to the laws of Vermont? There was but one estate to be settled; and this was, in legal view, attached to the person of the owner, at the time of his death, so far as it was personal. There were two administrations; one original and principal in Vermont; the other ancillary and subordinate, in this state. Perkins v. Stone, 18 Conn. R. 270. Sto. Conf. L. 423. The creditors of this estate, and all persons having claims upon it, in this state and in Vermont, were satisfied, and nothing remained to be done, but the distribution of it among those, who, by the laws of the state of Vermont, were entitled to it. Why were two distributions of this one estate necessary? Without special reasons requiring a different course, there would seem to be a propriety, that the consummating act in the settlement, should have been done, by the tribunal exercising the principal jurisdiction, and that the money accidentally and temporarily in this state, should be transmitted thither, for that purpose. Otherwise, there might have been conflicting decrees, and the courts of the different jurisdictions, upon varying proofs, might have found different persons entitled to take as distributees. The law of Vermont was the governing law, and known to the courts of that state, as a matter of certainty; but here, to be ascertained only by proofs, as a matter of fact. There are cases in which the courts of the ancillary administration have retained the assets, and distributed them according to the law of the domicil; and others, in which they have been transmitted to the principal and original jurisdiction for final action. Harvey v. Richards, 1 Mason, 381. Richards v. Dutch, 8 Mass. R. 506. Dawes v. Boylston, 9 Mass. R. 355. We do not think it to be a legal consequence, because distribution should be made according to the law of the domicil, that the assets should be transmitted for distribution; the courts of the ancillary jurisdiction may distribute them. Stevens v. Gaylord, 11 Mass. R. 256. Dawes v. Heath & al. 3 Pick. 128. Bruce v. Bruce, 2 Bos. & Pull. 229. Balfour v. Scott, 6 Bro. Parl. Cas. 550. Hog v. Lashley, Id. 577. Drummond v. Drummond, Id. 601. Somerville v. Somerville, 15 Ves. 791. — 585 — But it seems now to be settled, that the power, of the court granting the ancillary administration is a discretionary one, and should depend for its exercise upon the circumstances and equity of each case. This is a salutary principle, and can work no harm; but in its application, the citizens of the state of the ancillary administration and their rights, are not alone to be regarded, but also the rights of all interested. Harvey v. Richards, 1 Mason, 381. Dawes v. Head, 3 Pick. 128. Topham v. Chapman, 1 Rep. Const. Court, S. C. 292. 2 Kent’s Com. Lect. 37. Sto. Conf. L. 424. We see no good reason to be dissatisfied with the application of this principle and the exercise of this discretion, by the court of probate, in the decree appealed from. The original administration was granted, by a court in a sister state near by; and within one or two days’ reach of the appellant, who represents the only person interested in the estate here! All the other interested parties—and there were several of them—resided in the state of Vermont, or elsewhere, where they could, with equal convenience, protect their interests, and receive their portions of the distributed estate, as if the distribution had been made by the court of probate for the district of Norfolk. A greater inconvenience and expense has been avoided, by the transmission of the money to Vermont for final distribution, than if it had been retained here. And still we do not say, that we would, even under the circumstances of this case, have reversed an order of distribution, if made by the court of probate here. 2. The objection to the allowance of forty-one dollars to the administrator, for payment of a debt due from the estate to Michael F. Mills, Esq., and the appeal from the order making that allowance, is frivolous. The estate owed the debt, and the administrator has satisfied it, by substituting his own private responsibility, which the creditor has received as payment in full. The superior court is advised, that the orders and decrees of the court of probate should be affirmed. — 586 — In this opinion the other judges concurred—Waite, J. with some qualifications. Decrees affirmed.