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PPEAL by the executrix of the estate of sessor, 30 N. J. L. 13; State, Fish, Prose

Alfred I. Miller, deceased, from an or- cutor, v. Branin, 23 N. J. L. 484; Griffith v. der of the District Court for Labette County, Watson, 19 Kan. 23; Hutchins v. State directing the probate court to appoint an Bank, 12 Met. 421; Middlebrook v. Meradministrator of such estate. Reversed. chants' Bank, 41 Barb. 481; Brown v. San

The facts are stated in the opinion. Francisco Gaslight Co. 58 Cal. 426; Luce v.

Messrs. A. A. Osgood, Paul H. Kim- Manchester & L. R. Co. 63 N. H. 588, 3 Atl. ball, John E. Bishop, and Thomas H. 618; Simpson v. Jersey City Contracting Co. Cobbs, for appellant:

165 N. Y. 193, 55 L.R.A. 796, 58 N. E. 896. The situs of the stock is St. Louis, the The court erred in overruling the motion domicil of the deceased, and not Parsons, to dismiss the appeal. the domicil of the corporation.

Graves v. Bond, 70 Kan. 464, 78 Pac. 851; Cook, Corp: § 361; Farrington v. Tennes- Grimes v. Barratt, 60 Kan. 259, 56 Pac. 472. see, 95 U. S. 679, 24 L. ed. 558; Tappan v. Messrs. Glasse & Burton for appellee. Merchants' Nat. Bank, 19 Wall 490, 22 L. ed. 189; Covington v. First Nat. Bank, 198 Johnston, Ch. J., delivered the opinion U. S. 100, 49 L. ed. 963, 25 Sup. Ct. Rep. of the court: 562; Newark City Bank v. Fourth Ward As- Involved in this appeal is the question Connors v. Cunard S. S. Co. 204 Mass. 310, the state, had neither tangible property 26 L.R.A. (N.S.) 171, 134 Am. St. Rep. 662, nor a bona fide cause of action against any 90 N. E. 601, 17 Ann. Cas. 1051; Watson person residing in the county where appliv. Collins, 37 Ala. 587.

cation for administration was made, the No particular amount of assets is neces- ordinary did not have jurisdiction to grant sary to give the surrogate court jurisdic- administration. Berryv. Van Hise, 134 tion to appoint an administrator of one who Ga. 615, 68 S. E. 423; Power v. Green, 139

an inhabitant of the state and was Ga. 64, 76 S. E. 567. killed within the jurisdiction.

Welch v.

And where an intestate was domiciled New York C. R. Co. 53 N. Y. 610.

and died outside of the state, there can be So, the fact that there were no assets no valid grant of administration in the above exemptions or subject to administra- state unless he left assets in the state, or tion is no ground for withholding adminis- such assets have come into the state since tration on the estate of a resident decedent his death. McCord v. Thompson, 92 Ind. on petition of one holding a note against 565. intestate with waiver of exemptions. Wheat v. Fuller, 82 Ala. 572, 2 So. 628.

What value necessary. But under a Code provision that if from any cause an estate is unrepresented, and See also note in 24 L.R.A. 684. not likely to be represented, the ordinary The mere existence of local assets, irremay vest the administration in the clerk of spective of amount or value, will support the superior court of the county, but that a local grant of administration upon the if the estate does not exceed in value the estate of a resident decedent. Barlass v. sum allowed by law to the widow and chil. Barlass, 143 Wis. 497, 139 Am. St. Rep. dren, no administration shall be necessary, 1111, 128 N. W. 58. it is error for the ordinary to make the In the absence of a statutory provision clerk administrator of an intestate, who on the subject there is no positive rule of died in the county without any estate, so as law that an estate must be of a given to enable a pending suit to be carried on value as a condition precedent to the grant against his representative. Lowery v. of letters testamentary, so, where intes. Powell, 109 Ga. 192, 34 S. E. 296.

tate died while on a visit to the state, leavAnd there should be no grant of adminis. ing two trunks and a valise, with their tration where the only property left by the contents, and a small sum of money, the deceased, who apparently was a resident, appointment of an administrator was auwas his personal clothing, which the widow thorized, and he could collect for the benefit had taken, and the apparent motive of the of local creditors the balance of the purapplication was to enable the petitioner to chase price of property sold in the state of bring a suit against the administrator to intestate's residence, which was held by a quiet title, the court saying that the object trustee in the state where he died. Turner of administration is to pay the debts and v. Campbell, 124 Mo. App. 133, 101 S. W. distribute the surplus to the heirs, and in 119. order to have administration there must be The status of intestate's property at the property to be administered. Murray's Es- time of his death governs; so, where a resitate, Myrich, Prob. Ct. Rep. (Cal.) 208. dent intestate left $36, the fact that it was

And the probate court has no authority afterwards used to pay funeral expenses is to issue letters of administration on the immaterial, and a grant of administration estate of one who was a nonresident of the was proper. Barlass v. Barlass, supra. state, and who left no property in the state, Likewise where deceased had property Mallory v. Burlington & M. River R. Co. on his person at the time he was killed, con53 Kan. 557, 36 Pac. 1059.

sisting of a purse, $5 in money, and a So, where the decedent, a nonresident of' claim for $25, the fact that it was sent out

whether an administrator can be appointed state, and no administration had been comin Kansas in a case where the deceased menced in any other county of the state, apowned no property in Kansas, but did own plied to the probate court of Labette county certain shares of stock in a corporation or for the appointment of an administrator, ganized under the laws of Kansas, and hav- representing that Miller owned stock in the ing its general offices in the state, and is Kansas corporation named, that an executor there an appeal from a decision by the pro- of the estate had since been appointed in bate court refusing to appoint an adminis. Missouri, and that the claim of Foley had trator on the application of one of the been filed in the court appointing the execucreditors of the estate? Alfred I. Miller, ator. The probate court refused to appoint resident of St. Louis, Missouri, died in 1911, an administrator, and dismissed the applicaowning stock in a Kansas corporation called tion, holding that it had no jurisdiction or the Tishomingo Electric Light & Power Com- power to make such an appointment. An pany, which had its principal place of busi- appeal from that decision was taken to the ness in Parsons, Kansas. P. T. Foley, who district court, where it was held first, that alleged that Miller was indebted to him in the decision was appealable, and, second, the sum of $43,858.40, and that no will had that the probate court had erred in holding been filed in any other probate court of the 'that it had no power to appoint an adminisof the state to his widow would not defeat, tered by its laws. Thomas's Succession, jurisdiction of the local courts to appoint | 35 La. Ann. 19. an administrator. Missouri P. R. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283, 3 Am. Debts due decedent, generally. Neg. Rep. 244. Under a statute providing for the ap- debt due the estate of a deceased person

For the purposes of administration, a pointment of an administrator in any coun

from a debtor who resides in a different ty where there may be any debts or de state from that in which the creditor was mands owing to an intestate, jurisdiction domiciled at the time of his death, is an to appoint an administrator of a nonresi: asset at the place where the debtor redent intestate is not defeated by the fact that the debtors had claims against the sides, whether such debt be evidenced by estate of decedent which might be set off covered prior to the death of the creditor.

simple contract, specialty, or judgment reagainst the amounts they owed. Hyatt v.

So, the debt of a judgment follows the judgJames, 8 Bush, 9.

In Wheeler v. St. Joseph & W. R. Co. ment debtor when he removes to another 31 Kan. 640, 3 Pac. 297; Union P. R. Co. will give the probate court jurisdiction to

state, and is bona notabilia there, which v. Dunden, 37 Kan. 1, 14 Pac. 501; and Horton v. Trompeter, 53 Kan. 150, 35 Pac. appoint an ancillary administrator. Miller

v. Hoover, 121 Mo. App. 568, 97 S. W. 210. 1106, which involved the jurisdiction of the courts to appoint administrators of resident administration shall be grantable in the

Under a statute providing that letters of minor decedents, the court, though acting

case of a nonresident decedent by the regisupon the theory that some assets were necessary to give jurisdiction, sustained the ap: of the goods and estate of such decedent

ter of the county where the principal part pointments upon showings that insignificant shall be, the situs of a debt evidenced by a amounts of personal property were owned

promissory note which was brought into by decedents. And in Cox v. Kansas City, 86 Kan. 298, cedent was in the county where the note

the state by the executor of a foreign de. 120 Pac. 553, the suit of clothes which a nonresident decedent was wearing at the dence of the debtor. Viosca's Estate (En

was brought, not the county of the resitime of his death, valued at about $1.50, gelskirger's Appeal) 197 Pa. 280, 51 L.R.A. was held sufficient to give the court juris- 876, 47 Atl. 233. diction to appoint an administrator of his

The courts of Louisiana have no authorestate.

ity to appoint an administrator to collect

a debt due by a New York creditor to one Personal property generally.

who was a resident of and died in the state Money found upon the body of an

of Kentucky Moise v. Mutual Reserve known person upon the high seas, which has Fund Life Asso. 45 La. Ann. 736, 13 So.

170. come into the registry of the United States district court, will give jurisdiction for administration by the public administrator of

Deposit in bank. the county in which it is located. United A deposit in a bank in a state, which is States v. Tyndale, 54 C. C. A. 324, 116 Fed. subject to withdrawal by check or sur820.

render of the bank book, held and owned by The courts of Louisiana have no juris- a nonresident at the time of his death, diction to administer the estate of a de constitutes property situated in the state, cedent domiciled in another state where the so as to give the probate court jurisdiction only property of decedent was of a per- to entertain a petition for administration, sonal or movable nature, as this species of Gregory v. Lansing, 115 Minn. 73, 131 N. property follows the domicil and is adminis-' w. 1010.

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trator of the estate, and that it was the duty the Miller estate is probate jurisdiction, and of that court to exercise the power and make the decision holding that administration the appointment. From that ruling, an ap- could not be had, and that no administrator peal was taken to this court.

of the estate could be appointed in Kansas, We have, first, the question, Is there an was a final decision of the whole merits of appeal from a decision of the probate court the application. The case of Grimes v. Barrefusing to appoint an administrator ? That ratt, 60 Kan. 259, 56 Pac. 472, is cited as an court is vested with the power and charged authority against the right of an appeal with the duty of caring for the estates of from such decision. That case did not dedeceased persons and of granting letters of termine that there could be no review of a administration. In the executors and ad- final decision of the probate court refusing ministrators act it is provided that an ap- administration of an estate; but it did depeal may be taken from certain decisions, termine that the legislature had vested large and also from “a final decision of any mat- discretion in the probate court in the selecter arising under the jurisdiction of the pro- tion of administrators, and that the exercise bate court, except in cases of habeas corpus of that discretion was not the subject of reand injunction.” Gen. Stat. 1909, $ 3624. view or appeal. The statute designates a Whether there shall be administration of ' number of persons who are entitled to adContingent claim.

A certified copy of a judgment rendered

in another state is sufficient bona notabilia The contingency that an insurance policy

to authorize ancillary administration. on the life of the deceased might be canceled, in which event certain premiums E. 125.

Morefield v. Harris, 126 N. C. 626, 36 S. would be returned to his estate, the policy not being payable to the decedent or his estate, is not such an asset as would au

Corporate stock. thorize the court to appoint a clerk ad

See also note in 24 L.R.A. 687. ministrator, over the objection of the wife

In Richardson v. Busch, 198 Mo. 174, and children of the deceased. Guerry v. Pullen, 112 Ga. 314, 37 S. E. 391.

115 Am. St. Rep. 472, 95 S. W. 894, which

is cited in RE MILLER, the stock in quesEquitable claim.

tion was issued by a New York corporation,

and belonged to the estate of a decedent Although the sole property of the estate who was domiciled in New York; and the is an equitable claim or demand, the pro- certificates at the time of the appointment bate court should treat such a claim as of an administrator in Missouri were in property justifying the issuance of letters the possession of a pledgee. The actual dein advance of its establishment, and should cision was therefore merely to the effect not await the action of a court of equity that the presence of the certificates in Misin establishing the validity of the same, souri did not entitle the administrator apnor should it, sitting as court of equity, pointed in that state to the stock. And in itself try the controversy, and, as it de the companion case of De La Vergne v. termines it in favor of or against the as. Richardson, 198 Mo. 189, 95 S. W. 898, it serted equity, grant or withhold letters of

was held that the appointment of the adadministration. Re Daughaday, Cal.

ministrator was without jurisdiction, there 141 Pac. 929.

being no other assets of the estate within And where personal property which had the state. It is obvious, therefore, that belonged to the estate was held by an heir while the court declared generally that the under a title which might be void or void certificate is not the stock, but the mere able, the appointment of an administrator evidence of the ownership of the stock, there to collect and distribute the assets of de- was no actual decision as between the state ceased was proper. Re Acken, 144 Iowa, of the owner's domicil and the state where 519, 123 N. W. 187, Ann. Cas. 1912A, 1166. the corporation is organized. But a mere claim advanced by an appli

But it was held in Re Arnold, 114 App. cant for administration that property owned | Div. 244, 99 N. Y. Supp. 740, that where a by the son of deceased was purehased with nonresident dies owning stock of a domoney belonging to deceased does not con

mestic corporation, such stock is property stitute property within the state which will within that county where the corporate warrant the granting of administration. property is or where the corporation has Beach's Appeal, 76 Conn. 118, 55 Atl. 596. its principal place of business, within the Judgments.

meaning of a provision of the statute au

thorizing the surrogate court to grant letSee also note in 24 L.R.A. 687.

ters testamentary when decedent, “not beFor the purpose of conferring jurisdic. ing a resident of the state, died without tion to grant administration, the situs of a the state, leaving personal property within judgment due an intestate who has no fixed that county, and no other." This case preplace of residence is in the county in which sents the opposite view from that taken in he died, and not in the county in which the RE MILLER, which holds that the situs of judgment was rendered. Angier v. Jones, 28 corporate stock is the domicil of the owner Tex. Civ. App. 402, 67 S. W. 449.

for the purposes of administration.

ministration of an estate in a certain order, , 114 Pac. 1071; Kroenert v. Sawyer, 87 Kan. and from whom the probate court may make 374, 124 Pac. 418. a selection. The competency and suitability The decision in the present case did not of the widow, next of kin, or creditors to dis- involve a matter of discretion; but it was charge the trust is left to the discretion of a final determination of the case, and leit the probate court, and it was held that such nothing further for the consideration of the discretion was not reviewable unless it was probate court. As it effectually terminated oppressively and arbitrarily exercised. It the litigation of the question in that court, was suggested that outside of this discretion it was a final order or decision, from which a review might be had, and that under the an appeal lies. then-existing statutes a final order of that Was it the duty of the probate court to kind was open to review in a proceeding in appoint an administrator on the application error. Under the new Code proceedings in of a creditor of the decedent? Miller was a error had been abolished, and a review of nonresident of Kansas, and the question is, judgments and of final orders of probate Did he leave anything here on which to courts may now be had by appeal. Civil | found administration ? It has been held Code, $$ 564, 567, 571 (Gen. Stat. 1909, $$ that “where a person dies intestate, who was 6159, 6162, 6166); Re Petitt, 84 Kan. 637,' not a resident or inhabitant of the state at

In this connection see also Grayson v. out letters of administration. Treadwell Robertson, 122 Ala. 330, 82 Am. St. Rep. v. Rainey, 9 Ala. 590. 80, 25 So. 229, Warrior Coal & Coke Co. v. National Bank, Ala. 53 So. 997, and

Community property. Murphy v. Crouse, 135 Cal. 14, 87 Am. St.

The interest of a deceased wife in the Rep. 90, 66 Pac. 971, which, while not involving the question of jurisdiction to ap- tangible to become the subject of probate

community property is not sufficiently point an administrator, hold that, for the purpose of administration, the situs of cor

proceedings. Packard v. Arellanes, 17 Cal.

525. porate stock is that of the corporation rather than that of the owner of the stock.

Interest in partnership.

Where intestate was a nonresident of the Claim against estate of another. state at the time of his death, but was pos.

sessed of a valuable interest in a partnerAn apparent claim upon an estate fur- ship in the state, and left personal propnishes a sufficient basis for the appoint-erty in the county at the time of his death, ment of an administrator of the estate of and at the time of setting apart the year's an alien claimant to pursue it. Emery v. support for the widow and two of the minor Cooley, 83 Conn. 235, 76 Atl. 529.

children they resided in the county, the The interest of a nonresident beneficiary granting of letters of administration and under a trust created by a will which had setting apart the year's support to the been admitted to probate in the state, which widow and minor children was proper. trust estate was in process of settlement in Wright v. Roberts, 116 Ga. 194, 42 S. E. a court clothed with jurisdiction of the 369. subject matter and of the trustee, was suffi- Where an assignment of all the property cient to authorize the appointment of an of a bankrupt partnership was made with administrator of the deceased beneficiary. the consent of the bankruptcy court to parVinton v. Sargent, 195 Mass. 133, 80 N. E. ties who furnished money to effect a com826.

position with creditors, so that there was The right to a distributive share in an no reversion of interest upon the discharge intestate's estate is to be accounted bona of the bankrupt, to the individual members notabilia which will authorize the appoint of the prior firm, there was nothing upon ment, in the county where intestate resided which an administration might attach as and left her estate, of an administrator of to any of the prior assets of the firm so as the estate of a deceased nonresident claim to give the public administrator, acting as ant. Smith v. Munroe, 23 N. C. (1 Ired. administrator for a deceased partner, any L.) 345.

interest in the partnership estate. HawBut the court had no jurisdiction to grant kins v. Quinette, 156 Mo. App. 153, 136 S. administration over an estate consisting of W. 246. slaves which were in another state at the time of the death of the owner, and were Action for death or personal injury. brought into the state by the executrix of the will, who qualified in the other state See also note in 24 L.R.A. 686. where the testator died, and where the will As to the right to grant administration was admitted to probate, independently of for the sole purpose of bringing an action the fact that the executrix had a life estate under the Federal employers' liability act, in the slaves, as by virtue of her qualifica- see note to Lamphere v. Oregon R. & Nav. tion under the will, she took the legal title Co. 47 L.R.A. (N.S.) 78. to them, and might maintain an action in Assuming that the existence of assets is this state in her own name without taking' necessary to give jurisdiction to appoint

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the time of his death, and who left no es., in the domiciliary executor or administrator. tate within the state to be administered, a This rule may be modified by statute, and it probate court of the state has no jurisdic- frequently is for taxation and some other tion to issue letters of administration on the purposes. If the general rule applies that estate of such intestate, and, where letters the situs of personal property follows the are issued, the acts of the court in doing so domicil of the owner, and there is nothing are utterly null and void.” Mallory v. Bur. | in the character of the property to except it lington & M. River R. Co. 53 Kan. 557, syl. from the operation of this rule, then it | 1, 36 Pac. 1059; Perry v. St. Joseph & W. would seem that the probate court was withR. Co. 29 Kan. 420; Ewing v. Mallison, 65 out jurisdiction to make the appointment. Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. The statute, in terms, provides that “the

There was no property in Kansas on stock of any corporation created under this which to found administration, unless Mil- act shall be deemed personal estate.” Gen. ler's ownership of shares of stock in a Kan. Stat. 1909, $ 1743. sas corporation furnished a basis. Under It is contended, however, that shares of the common law and as a general rule the stock are unlike ordinary personalty, and situs of personal property is the residence that the right under which an owner holds of the owner, and the title to personalty is 'stock is incident to the ownership of the an administrator, either because decedent death by wrongful act is an asset of the eswas a nonresident or because the law of tate of the deceased, but held that it was the jurisdiction requires the existence of unnecessary to determine that question in assets even in the case of resident decedents, view of a statute which, after providing for the general rule is that a cause of action the appointment of administrators under for wrongful death is a sufficient asset to certain circumstances, further provided for justify the appointment of an adminis- administration in all other cases in the trator. Reiter-Connolly Mfg. Co. v. Ham- county where application for letters is first lin, 144 Ala. 192, 40 So. 280; Mesker v. made, the court regarding that provision as Bishop, Ind. App. —, 103 N. E. 492; | being intended to apply to cases in which Durden v. Wright, Ga. 84 S. E. 125 the deceased was not a resident, and left (dictum); Findlay v. Chicago & G. T. R. no property in the state. Co. 106 Nich. 700, 64 N. W. 732; Fann v. Although the damages recoverable in a North Carolina R. Co. 155 N. C. 136, 71 s. statutory action for wrongful death may E. 81; Jordan v. Chicago & N. W. R. Co. not be assets of the estate of the de125 Wis. 580, 1 L.R.A.(N.S.) 88.7, 110 Am. ceased in any proper sense of the term, St. Rep. 865, 104 N. W. 803, 4 Ann. Cas. | letters of administration may be granted 1113; Richards v. Riverside Iron Works, to enforce the right conferred by the 56 W. Va. 510, 49 S. E. 437; Fickeisen v. statute, although the decedent left no Wheeling Electrical Co. 67 W. Va. 335, 27 property in the jurisdiction, the provision L.R.A. (N.S.) 893, 67 S. E. 788; American of the statute giving the administrator the Car & Foundry Co. v. Anderson, 127 C. C. right to sue for the death necessarily imA. 587, 211 Fed. 301.

plying the right of the probate court to The right to letters of administration appoint an administrator for that purpose does not depend upon the existence of tan-alone. Washington Asphalt Block & Tile gible assets to administer, but the appoint. Co. v. Mackey, 15 App. D. C. 410. ment of an administrator may be proper So, in Hutchins v. St. Paul, M. & M. R. and necessary in order to prosecute some Co. 44 Minn. 5, 46 N. W. 79, 16 Am. Neg. claim of indeterminate value. So, adminis. Cas. 294, although the court said that, tration should have been granted to a

whether decedent was a resident or nonwidow to enable her to prosecute a suit resident, the existence of assets is essential against a sheriff for permitting her hus- to administration, it was held that a cause band to be taken from the jail and killed of action for wrongful death was a sutfiby a mob. Ex parte Jenkins, 25 Ind. App. cient foundation for administration of the 532, 81 Am. St. Rep. 114, 58 N. E. 560. estate of a nonresident in the cou of

And the appointment of an administrator the state in which he was killed, under a
of an intestate, who was killed under cir- statute which gives the right to bring the
cumstances that give a statutory cause of action to the personal representative alone,
action for his death, was not invalid on the although, strictly speaking, such cause of
ground that no right of action arose in be-action never belonged to decedent during
half of anyone until after the adminis- his lifetime, but accrued only upon his
trator had been appointed, and hence the death, and the amount recovered, if any,
administrator's appointment was not sus- forms no part of his general estate, but
tained by any assets in existence before it goes to the next of kin.
was made, as it is enough that assets and And this is the general rule, though de-
appointment come into being at the same ceased was a nonresident of the jurisdic-
moment. Southern P. Co. v. De Valle Da tion. Western U. Teleg. Co. v. Lipscomb,
Corta, 111 C. C. A. 417, 190 Fed. 689. 22 App. D. C. 104; J. B. & J. M. Cornell

In Re Tasanen, 25 Utah, 396, 71 Pac. Co. v. Ward, 93 C. C. A. 474, 168 Fed. 51; 984, the court expresses its opinion that the Dodge v. North Hudson, 177 Fed. 986 ; weight of authority is that a claim for' Cornell S. B. Co. v. Fallon, 102 C. C. A.

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