Succession of Gaines

The opinion of the court was delivered by Watkins, J. The object of this suit is the recovery, by the New York administrator of the primary succession of the deceased in that State, of the residuum of assets of the ancillary succession in the State of Louisiana, from the administrator appointed under the laws thereof; and for their removal to the probate court of Kings county, New York, for the purposes of administration and distribution under and in pursuance of the laws of that State, and of the provisions of the will of the deceased therein admitted to probate. The demand of the New York administrator, as well as that of certain legatees under the probated will, is resisted mainly on two grounds, viz.: 1. That the allowance of such an application is within the discretion of the courts of this State, and this is not a proper case for its exercise. 2. That our Civil Code requires a complete administration, within this State, of the successions of non-residents, and that the courts of this State should deal with them as if they were domestic estates. The facts necessary to be stated as pertinent to the issues involved, and in order to a clear understanding of same, are as follows, viz.: — 255 — On the 5th of January, 1885, Mrs. Gaines made her will in the city of New Orleans, and died in this city on the ninth of that month; though she was at that time a citizen and resident of the State of New York, and temporarily absent therefrom. Soon afterward the persons named in said will as joint testamentary executors thereof presented same to the Civil District Court for the parish of Orleans (in Louisiana) for probate, but its probate was refused on the ground that it was informal and not entitled to probate tinder the laws of Louisiana, though reserving proponents’ right to present said will in Washington, D. C., the supposed residence of the deceased at the time of her demise. On appeal to this court of another branch of the case, the judgment of the lower court was affirmed (38 An. 123), the proponents of this particular will having acquiesced in the judgment rendered in the court below. There subsequently arose a controversy in the courts of this State in 1889 between one of the Christmas grandchildren and one of the Whitney grandchildren, over the administration of the Louisiana succession of deceased, and it was decided in favor of the latter, who was duly qualified (42 An. 699) — the sole asset thereof being a judgment against the city of New Orleans for the sum of $923,788. Contemporaneously with these proceedings in Louisiana, others were inaugurated in the Surrogate’s Court of Kings county, New York, for the purpose of obtaining therein the probate of the aforesaid will of Mrs. Gaines, and which resulted in a judgment of the latter court, on the 24th of June, 1891, probating it; and thereunder William B. Davenport, of New York, was appointed temporary administrator of decedent’s estate in pursuance of the laws of that State. Subsequently the administrator of the Louisiana succession of deceased filed an account, wherein are exhibited sundry large amounts as having been paid and disbursed, and certain others as of doubtful validity, the payment whereof ought to be refused, showing a large cash surplus to his credit unexpended. The recognized legal heirs of the deceased appeared therein and preferred claim to this surplus, and their demands are resisted by five different alleged legatees of the deceased under the will that was probated by the New York court — the aggregate of whose claims are about $55,000 — and also by the New York administrator. — 256 — These various parties appeared, by way of oppositions to the account, and the demands of the heirs to be placed in possession, and substantially claimed “that the balance of the funds or assets here remaining, after the payment of all debts here proved, should be paid over to said Davenport, temporary administrator, for distribution by the surrogate’s court aforesaid,” coupling with their demand the prayer that, in the alternative said relief should be refused, the court should order the Louisiana administrator to pay same out of the funds in his hands. The special averments of Davenport’s opposition are to the effect that there are large legacies that were created by said will, and debts due, and others contested, which must necessarily be adjusted, paid or rejected by the New York administrator, after same have been passed upon by said probate court, and for that purpose he prayed “ that the said residue of the estate here remaining, after the payment of all the debts here established, be paid over to him for administration in Kings county, New York.” Its further averment is that, under the laws of New York, he, as temporary administrator, has all the powers of am administrator with a will annexed, or dative testamentary executor under the law of Louisiana, and that there are large legacies created by said will, and debts due by persons domiciled in the State of New York; and, also, amounts claimed to be due to persons there domiciled, which claims and debts must necessarily be adjusted and paid, or rejected by the administrator under the will of the deceased, in said county of Kings, in the State of New York. Its further averment is that large amounts are also due for attorney’s fees, costs and disbursements in the matter of the probate of said will, and in the matter of the defeat of another so-called will, commonly known as the Evans will; and that all of said claims should be passed upon by the said court of probates of the domicil of said deceased. . . It is further alleged therein, that the administration of the deceased’s estate in Louisiana has been purely auxiliary, and for the purpose of paying debts due creditors of the deceased residing in this State, or those who had obtained judgments in the courts sitting in Louisiana. After these recitals, comes the opponents’ prayer for the surrender and delivery to him of the surplus of funds remaining in the admin — 257 — istrator’s hands, after all demands against the Louisiana estate have been paid and fully satisfied. The foregoing summary of established facts, and the truth of opponents’ averments of fact, are conceded, leaving for discussion and decision only the two questions of law heretofore propounded. On the trial all of said oppositions were dismissed, and the administrator’s demand was rejected; the judgment reserving the rights 'of the legatees to make claim for their legacies from the Louisiana administrator, or heirs, in case the court should order the registry and execution of the decedent’s will. In a different proceeding in the same succession in Louisiana, reported in 45 An. 1237, the lower court rejected and disallowed the will which had been probated in New York, and from that judgment an appeal was prosecuted to this court, and same has this day been decided, and the .judgment appealed from reversed. In so deciding,- the purport of our opinion is, that the probate of said will in New York is recognized “ to the extent necessary to make it the basis of claims predicated upon it as such” — the will of deceased. It is further to the effect that the administrator of the estate of Mrs. Gaines in Louisiana is ancillary, merely, and that the administration thereof in Kings county, New York, is the primary administration of her estate; same having been inaugurated at the place of the decedent’s domicil, and predicated upon her will. It further held that these recognized and established facts must be given effect in the courts of Louisiana, as established facts. It necessarily follows from that judgment, that the opponents can not make claim for their legacies, either from the Louisiana administrator or heirs, inasmuch as the will of deceased has not been ordered to be registered and executed here. And, just here, it must be observed and borne in mind, that this controversy contemplates no further act of administration in Louisiana, but on the contrary, it proceeds upon the opposite hypothesis that the ancillary succession here has been closed, and terminated by the payment of all the claims proved, or provable here, only contemplating the removal of the residue of assets afterward. Hence, the question arises whether opponents have made out, under the law, a proper case for a transfer of the residuum of the ancillary succession in Louisiana to the Probate Court in Kings — 258 — county, New York, for administration there, according to law and the provisions of the will. This question arose and was decided in the case of Gravillon vs. Richards, Executor, 18 La„ 298, in which Judge Eustis, as the organ of thé court, expressed the following opinion: “ The power of courts to order the remission of the funds belonging to a foreign succession, to the representatives of the succession authorized to receive them by the courts of the domicil of the deceased, we consider undoubted. Its exercise is necessarily a matter of discretion, depending on the circumstances of each ease, and is a consequence of that comity which prevails between nations in amity with each other. The interests of commerce and civilization require that this comity should be carried into effect by our tribunals. It is done in England and in other States of the Union, in analogous and similar cases; and whenever the rights of our citizens are not affected by the act to be done, we shall feel ourselves bound to act on a principle which is impressed upon us equally by an enlightened policy, and a certainty that it will tend to the great purposes of justice. * * * “We therefore determine as the interests of no one will be injured thereby, that the Oourt of Probates ought to have placed the funds of the estate at the disposal of the syndics and curator of the vacant estate, for the purpose of their being transmitted to the place of domicil of the deceased for distribution.” The same principle was recognized and reannounced in Mourain vs. Poydras, 6 An. 151, and again in Succession of Taylor, 28 An. 867 —and we are aware of no decision of this court to the contrary. The cases cited by counsel for the Louisiana administrator and heirs — Heirs of Henderson vs. Rost, 15 An. 465, and Succession of Butler, SO An. 890, are dissimilar to this case, in that the demands of foreign administrators were rejected, on the ground that they exhibited no legal title to interfere with existing administrations under the local law, before same had been concluded by the payment of debts and charges against the ancillary successions. Nor are the provisions of Art. 1220 of the Oivil Oode opposed to the principle we have quoted from the cases cited — the evident intention of that article being to require the administration of the successions of persons domiciled out of the State, only to the extent of paying debts by them. The legislative act of 1842 simply requires a — 259 — foreign executor to furnish bond and security before he can undertake the administration of an estate in Louisiana. On this question the New York jurisprudence conforms to our •own. See Despard vs. Churchill, 53 N. Y. 192, and Parsons vs. Lyman, 20 N. Y. 103. The Supreme Court has likewise held in Wilkins vs. Elliott, Administrator, 9 Wall., 740. In the brief of opponent’s counsel the following pertinent questions are propounded, viz.: “ If the power of the foreign executor to receive the assets belonging to an estate, and which are beyond the territory of the State in which he is appointed, is denied, and he has no right to ask the administrator of the ancillary estate to turn the residuum over to him, how, we ask, is the residuum ever to get to the parent or primary administration for distribution? If the foreign executor must apply and qualify here, and become an officer of this court, how is he to get the fund in this court, to the court under which the parent succession is being administered? Must he, as an officer of this court, settle with himself as an officer of the other court? And if yes, does he then do anything more than he is asking to have done now, to-wit: to have an officer of this court turn over the remaining residuum to the officer of that other court? If his right to receive is only (in a case like the present, where under the law of New York he is vested with title) coextensive with the territorial limits of the State of his appointment, how is he, when made an officer of this court, with a grant of power which can only be — on the same theory, coextensive with the limits of this State — to get the personal property here beyond the limits of this State? “If such was the law, the personal property here could never be gotten beyond the limits of the State where the same may be found, to pay the debts and legacies that might be due at the testator’s domicil.” In our opinion these questions find a correct answer and solution in the decisions above quoted; and, on the authority of the sound principles of jurisprudence therein formulated, we hold that the New York administrator is legally and rightfully entitled to have the residuum of the assets of the succession of the deceased remaining in the hands of the Louisiana administrator after all debts and charges therein have been fully paid and discharged, removed into — 260 — Surrogate’s Court of Kings county, State of New York, there to be administered and distributed according to law, and in conformity to. the will of the deceased. We further hold and decide that the oppositions were incorrectly overruled and dismissed, and that same should be reinstated and sustained to the extent of authorizing the transfer of the residuum of assets to the surrogate’s court in Kings county, New York — the rights of the opposing legatees to there assert their claims being fully reserved. We further hold and decide that the demand of the legal heirs to be put into possession of said residuum of assets as an inheritance-was improperly sustained and must be rejected and disallowed. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed in the following particulars, viz.: First — By rejecting and disallowing the demands of the legal heirs of Mrs. Gaines to be placed in possession of the residuum of the assets of her ancillary successor after debts and charges have been paid. Second — So as to reinstate the oppositions of the legatees and of the New York administrator; and to recognize and specially reserve the rights of said legatees to present their demands in the New York court conformably to law, and to have same therein judicially determined contradictorily with said New York administrator. Third — So as to sustain the demands of the opponents, requiring the residuum of assets in the hands of the administrator of the ancillary succession in Louisiana to be transferred to the Surrogate’s Court of Kings county, State of New York. And it is further ordered and decreed that the demands of the legal heirs to be placed in possession of the residuum of the succession be rejected and disallowed; that the rights of the opposing legatees be reserved to present and have their claims determined in the New York court without prejudice; and that the administrator of the ancillary succession in Louisiana be ordered and required to transmit, in proper form of law, to the Surrogate’s Court, Kings county, New York, the residuum of assets remaining in his hands after all debts and charges against said ancillary succession have been paid and discharged. It is further and finally ordered and decreed that in the foregoing particulars the account of the administrator be amended, and in all other respects approved; and that as amended the judgment appealed — 261 — from be affirmed, costs of oppositions and appeal to be taxed against administrator and appellees. Mr. Justice Parlange takes no part.