Walton v. Estate of Hall

ROWELL, J. John Walton died on June 1, 1877, domiciled in this State, leaving a will made when he was domiciled in Illinois. He owned real estate in Illinois at the time of his death, and notes against persons residing there. The will was never probated in this State; but the referee finds that it was “duly executed, proved, and admitted to probate under the laws of Illinois,” and an executor was appointed there. This is equivalent to finding that the court that probated it had jurisdiction in the premises. The will purports to dispose of all the testator’s property and it makes Mrs. Foster, one of his daughters, resident in Illinois, residuary legatee, and expressly gives nothing to the plaintiff, his other daughter, resident here. Inasmuch as there was property in Illinois on which the will was to be operative, the proper probate court of that State obviously had jurisdiction to probate it, notwithstanding the testator was domiciled here at the time of his death. This necessarily results from the independent character of our state governments. Resort must be had to the laws of the state to-protect and to secure property within it. Therefore, states take jurisdiction of the estates of deceased persons situate- and found therein, for the benefit of those entitled thereto; and by comity they will sometimes execute the law of the domicile of the decedent instead of their own law, as far as the descent and distribution of personal property are concerned. But this is a mere matter of comity, and is done or not according to the will of the sovereign. I Am. Law of [461] Admr. s. 157; Wells v. Wells, 35 Miss. 638; Still v. Woodville, 38 Miss. 646; Beers v. Shannon, 73 N. Y. 292; Story, Confl. Laws, 543 (8th Ed.), note (a); Rorer, Interstate Law, 4. The will having been legally probated in Illinois, the record of that judicial proceeding, duly authenticated, is made by the Federal Constitution and statutes, admissible in evidence in apy other court within the United States, and given the same faith and credit in every such court as it has by law and usage in the courts of Illinois. Constitution, Art. 4, s. I; Revised Statutes, s. 905; Ives v. Heirs of Salisbury, 56 Vt. 565. What was offered as a certified copy of the record of the will and the foreign probate thereof was properly admitted by the referee, for the only objection thereto was that the will had never been probated in Vermont, which was not a valid objection, as we have just seen. But the administration in Illinois was ancilary, and cannot be allowed to draw to its jurisdiction assets situate here. Full faith and credit is given to the probate in that State when it is permitted to make the will effective to pass property having its situs there. I Am. Law of Adm. s. 226; I Redf. Wills, 21; Note to Brown v. Johnson, 73 Am. Dec. 54; Olney v. Angell, 5 R. I. 198; 73 Am. Dec. 62. We have no statute allowing that probate to make the will effective to pass property having its situs here ; but on the contrary our statute provides that no will shall pass either real or personal estate unless it is proved and allowed in the probate court or on appeal in the County or Supreme Court. R. L. 2049. This, of course, refers to property located here. It follows, therefore, the will not having been proved and allowed here, that it cannot pass property located here. As to all such property, the case must be decided the same as though there was no will; but as to property within the jurisdiction of Illinois, the will must be given effect to pass it. [462] Administration on John Walton’s estate was first granted in this State on November 4, 1885, when the plaintiff was appointed administratrix, no notice being taken of the will. On December 12, 1877, Mrs. Foster, the residuary legatee, and Electa Walton, the widow of John Walton, with the approval of the executor, who resided in Illinois, made a settlement, whereby the widow received of said executor at the hand of Mrs. Foster, certain property belonging to the estate, in full of all allowances out'of and claims against the same. Among this property were two not^s against persons residing in Illinois, on which the widow subsequently received the money through the executor and Mrs. Foster. There was also a certain sum of money that the widow had theretofore, and after the death of her husband, received on a note that the executor owed the estate. All this money is now sought to be recovered against the widow’s estate ; but it is obvious that it cannot be. The situs of the debts evidenced by those notes was in Illinois, where the debtors resided. The notes, therefore, were assets in that jurisdiction and passed by the will, and so it was competent for those parties to deal with them as they did, and thereby the widow got good title thereto and to the avails thereof as against the plaintiff. The widow never had the manual possession of the note against William J. Walton, who lived in California, and never received anything thereon, but it is in the hands of Mrs. Foster as residuary legatee. It would seem, therefore, that no recovery could be had therefor in any form of action, but certainly none can be had in general assumpsit, which is the only declaration filed in the case. Said settlement also covered assets that had their situs in this state; but as to those it can have no effect, for the reasons already stated. Among those assets was a note against Richardson, who resided here, which was paid to the widow, and for which her estate must account. The cow was sold [463] the day Walton died, and Mrs. Walton received the money therefor. It does not appear that he authorized the sale* nor whether it was made before or after his death. This transaction, as reported, did not create a debt from her to him, as claimed, but the money in her hands belonged to his estate, and must be accounted for. The money received for the stove that she sold must also be accounted for. No recovery can be had in general assumpsit for the sink, sugar utensils, and tools, mentioned in the report, for the widow never sold any of them. Beyond the items we have considered, no recovery is now sought. The defendant claims to be allowed what the widow paid out for her husband’s funeral expenses and grave stones* but Shaw v. Hallihan and Wife, 46 Vt. 389, is against it. The defendant also claims that as the widow was entitled to a reasonable allowance out of the estate for her maintenance during its settlement, and to not less than one-third of the personal property not lawfully disposed of by the will, after payment of the debts, funeral charges, and expenses of administration, no recovery can be had, for that her maintenance and thirds amount to much more than the money received by her as aforesaid. Concerning the maintenance, there is no finding and no adequate data for us to act upon* even if the claim is well founded. But it is considered that by intermeddling with the estate as she did, the widow became executrix in her own wrong and liable as such, and that her representative cannot defend on the ground of her rights in the estate. Hawkins v. Johnson, 4 Blackf. (Ind.) 21; Schouler’s Exrs. and Admrs. s. 186. It was formerly held with great strictness that no one could intermeddle in the least with the estate of a deceased person, not even to the milking of a cow, without making themselves liable as executor de son tort. But while this strictness has been much relaxed in modern $mes, the rules against such intermeddling are still regarded as important, as the time that elapses [464] before the grant of administration affords opportunities of which evil' disposed or intrusive and officious persons should not be allowed to take advantage by interfering with the administration of the person who may thereafter be appointed. The widow should have taken her rights in due course of ■administration, and cannot be allowed to take them by her undue course. Nor can the amount of her thirds be ascertained until the estate is settled, ready for distribution, if there is anything to distribute, as there may not be when the debts that are allowed and the expenses of administration are paid. In respect to interest, if the widow had been the legal executrix or administratrix, and used this money as her own, she would have been charged with the highest legal rate of interest. Spaulding v. Wakefield's Est., 53 Vt. 660; McCloskey v. Gleason, 56 Vt. 264. Her estate should stand no better in this case than it would have stood in that; therefore the defendant is charged with annual interest on the several sums for which recovery is had from the time the widow received the same respectively. Under the statute, had she been sued thereon, she would have been liable for double damages. R. L., 2159. Judgment reversed and judgment for the plaintiff for five hundred thirty dollars and thirty-two cents damages as ■of May 8, 1894, to be certified to the probate court.