court of his appointment he may exercise authority regarding the estate only when given such power by statute of the jurisdiction wherein he attempts to assert the right. The basis of the rule is that each state or country is a sovereignty in itself regarding all matters of administration, and tribunals of one jurisdiction can not vest their appointees with authority over property in another state. Any power regarding the assets of the estate of a decedent situated in a jurisdiction other than that of his appointment can not be exercised by an executor or administrator except with the consent of the state wherein the property is found. The reason of the rule is to prevent the assets of the estate of a decedent, situated in one state and which are needed to satisfy claims due citizens of such state, from being withdrawn beyond its jurisdiction. The fact that the decedent has no creditors in the state in question is a matter which can not be known with certainty unless administration be granted and the opportunity be given for the presentation of claims.20 v. Elliot, 10 Cush. (Mass.) 172; Naylor's Admr. v. Moffatt, 29 Mo. 126; Hyman v. Gaskins, 27 N. C. 267; In re Crawford's Estate, 68 Ohio St. 58, 96 Am. St. Rep. 648, 67 N. E. 156; Stoddard v. Aiken, 57 S. C. 134, 35 S. E. 501. 26 Brown, Jr., v. Smith, 101 Me. 545, 115 Am. St. Rep. 339, 64 Atl. 915; Mansfield v. McFarland, 202 Pa. St. 173, 51 Atl. 763; Terrell v. Crane, 55 Tex. 81. In California it is not necessary to show the existence of creditors in order to obtain ancillary administration. Murphy v. Crouse, 135 Cal. 14, 87 Am. St. Rep. 90, 66 Pac. 971. In Putnam v. Pitney, 45 Minn. 242, 11 L. R. A. 41, 47 N. W. 790, it is said that where there are no creditors, legatees or distributees within the state, the petition of a non-resident creditor for letters of ancillary administration should be denied as unnecessary where no reason is shown why he can not collect his claim in the state where the principal administration is had. It has been said that ancillary administration is unnecessary if § 1375. Situs of Personalty for Purpose of Ancillary Administration. For the purpose of securing ancillary administration and as affecting the right of a domiciliary administrator to sue, a debt due a decedent has its situs in the jurisdiction wherein the debtor resides, and tangible personal property likewise has its situs wherever it may be situated. Although title to such assets may be vested in the domiciliary representative, yet the courts of another jurisdiction will not enforce his right thereto, and ancillary letters of administration are necessary unless the debt or property is voluntarily paid or surrendered to the domiciliary representative. To this extent the rule that personal property follows the owner has no controlling effect, although it does control as to matters of distribution.27 For the purpose of ancillary administration, shares of stock in a corporation have been held to have their situs in the county where the corporation is located.28 A judgment involving real property or con there are no local creditors.-Taylor v. Syme, 162 N. Y. 513, 57 N. E. 83. 27 Wyman v. United States, 109 U. S. 654, 27 L. Ed. 1068, 3 Sup. Ct. 417; Winter v. London, 99 Ala. 263, 12 So. 438; Grayson v. Robertson, 122 Ala, 330, 82 Am. St. Rep. 80, 25 So. 229; McCully v. Cooper, 114 Cal. 258, 55 Am. St. Rep. 66, 35 L. R. A. 492, 46 Pac. 82; Luce v. Manchester etc. R. Co., 63 N. H. 588, 3 Atl. 618. As to voluntary payment of debts or surrender of chattels to the domiciliary representative, see §1384. 28 Winter v. London, 99 Ala. 263, 12 So. 438; Grayson v. Robertson, 122 Ala. 330, 82 Am. St. Rep. 80, 25 So. 229; Murphy v. Crouse, 135 Cal. 14, 87 Am. St. Rep. 90, 66 Pac. 971; Matter of Fitch's Estate, 160 N. Y. 87, 54 N. E. 701. Contra: Miller's Estate v. Executrix of Miller's Estate, 90 Kan. 819, Ann. Cas. 1915B, 699, L. R. A. 1915D, 856, 136 Pac. 257; Richardson v. Nusch, 198 Mo. 174, 118 Am. St. Rep. 472, 95 S. W. 894. Compare: Russell v. Hooker, 67 Conn. 24, 35 L. R. A. 495, 34 Atl. 711; Michigan Trust Co. v. Pro stituting a lien upon property locally situated has its situs where the judgment is recorded;29 but if the judgment is merely personal against the debtor and there is no property of the debtor within the jurisdiction wherein it is recorded upon which it is a lien or regarding which execution can be levied, the situs of such judgment is the residence of the debtor.30 A judgment due the decedent recovered in the state of his domicile, if sought to be enforced against property in another state, becomes property in the latter state for the purpose of ancillary administration.31 § 1376. The Same Subject: Apparent Exceptions to the General Rule. A debtor has the right to demand that any action against him be instituted in the jurisdiction of his residence. For the purpose of ancillary administration it makes no difference whether the debtor of a decedent move into the local jurisdiction before or after the decedent's death or before or after domiciliary letters have been granted. And assets of an estate which have been brought into one jurisdiction before they have basco, 29 Ind. App. 109, 63 N. E. 255. The act respecting the appraisement of notes, bonds and evidences of debt owned by a decedent at the time of his death does not apply to evidences of debt not taxable in West Virginia owned by a non-resident at the time of his death and sent to an attorney in that state by the personal representative of the decedent for suit thereon against a debtor residing therein.-Austin v. Callo way, 73 W. Va. 231, Ann. Cas. As to situs of stocks and bonds 29 Adams v. Savage, 6 Mod. 136; Strong v. White, 19 Conn. 238; Beers v. Shannon, 73 N. Y. 292. 30 Swancy v. Scott, 9 Humph. (Tenn.) 327; Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449. 31 Morefield v. Harris, 126 N. C. 626, 36 S. E. 125. 33 passed into the possession of the domiciliary representative in another jurisdiction or have been administered by him, are subject to local administration.82 The rule is, in the absence of a statute to the contrary, that letters testamentary or of administration issued in one jurisdiction will not authorize the executor or administrator to institute any proceedings in another state which could be maintained by an ancillary administrator therein appointed. But where an ancillary administrator, if appointed, could not recover the assets of the estate, the rule does not apply. Where the matter involved is a fund which is the product of assets never subject to local jurisdiction and which could not be recovered by a local administrator, a foreign representative is entitled to institute proceedings for its recovery. Property once lawfully taken into possession by the domiciliary representative should not be the basis for ancillary administration if removed to another state.35 Property of the estate may be taken into another jurisdiction for some temporary purpose without being the foundation for a grant therein of ancillary administration,36 and the rule is the same where the removal of the property is fraudulent.37 32 Saunders v. Weston, 74 Me. 85; Pinney v. McGregory, 102 Mass. 186; Morefield v. Harris, 126 N. C. 626, 36 S. E. 125. Contra: Embry v. Millar, 1 A. K. Marsh. (Ky.) 300, 302, 10 Am. Dec. 732. 33 Mansfield v. McFarland, 202 Pa. St. 173, 51 Atl. 763. 84 Moore v. Fields, 42 Pa. St. 467, 468. 35 Martin v. Gage, 147 Mass. 204, 17 N. E. 310. See, also, § 1382. 36 Christy v. Vest, 36 Iowa 285; Kohler v. Knapp, 1 Bradf. (N. Y.) 241. 87 McCabe v. Lewis, 76 Mo. 296. § 1377. As to Necessity of Local Administration in Jurisdiction Where Real Property Is Situated. Where title to real property is involved, whether the interest of a non-resident decedent therein be direct or by reason of having a lien thereon under a recorded mortgage, ancillary administration should be had. The title to such real property is shown by the records. A mortgagor should not be required to search the records of a foreign jurisdiction to ascertain who might be entitled to collect the debt and discharge the mortgage. The same principle applies in case the domiciliary administrator assigns the mortgage to another who brings suit in another jurisdiction wherein the real property is situated. Neither a foreign executor or administrator, nor any third person claiming under an assignment from him, should be allowed to enforce the payment of a mortgage debt by foreclosure proceedings in the local jurisdiction unless such ancillary proceedings are had as show of record that the plaintiff is entitled to sue; it being always desirable that the chain of title to real property appear of record in the jurisdiction of its situs.38 If a power of sale is desired to be exercised regarding real property situated in one state, under the provisions of a will admitted to probate in another state, such will 38 Cutter v. Davenport, 1 Pick. (Mass.) 81, 11 Am. Dec. 149; Reynolds v. McMullen, 55 Mich. 568, 54 Am. Rep. 386, 22 N. W. 41; McIntire v. Conrad, 93 Mich. 526, 53 N. W. 829; Stone v. Scripture, 4 Lans. (N. Y.) 186; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737. Compare: Gove v. Gove, 64 N. H. 503, 15 Atl. 121; Smith v. An ancillary administrator has no authority to go into another state, to foreclose a mortgage belonging to the estate, even though he has possession of the bond and mortgage.-Moore v. Jordan, 36 Kan. 271, 59 Am. Rep. 550, 13 Pac. 337. |