must be duly proved and probated in the jurisdiction wherein the realty is situated unless the laws of that jurisdiction dispense with such requirement. A transfer of real property must be in accord with the laws of the jurisdiction wherein it is located.39

§ 1378. Equitable Conversion of Realty into Personalty: Construction of Will by Court of Domicile Not Binding on Court of Situs of Realty.

The laws of the state wherein real property is situated control the manner of its disposition and the right to succeed to it. Title to land can be conveyed under a testamentary power only when such conveyance is sufficient under the laws of the sovereignty wherein the land is situated. The executor of a decedent's will may properly apply to the court of his appointment for a construction as to his powers under the will, such as authority to sell real property under provisions contained in the testament. Such subject matter is proper for the consideration of the court of the domicile and its decree is binding upon all persons parties to the proceeding. But the court of the domicile has jurisdiction only of property that is or might be brought under its control,40 and can not affect lands situated in another state or country.11 41

Real property directed by the testator in his will to be sold and the proceeds distributed in a certain manner, effects an equitable conversion of such realty into per

39 Emmons v. Gordon, 140 Mo. 490, 62 Am. St. Rep. 734, 41 S. W. 998; In re Devine, 62 N. J. Eq. 703, 49 Atl. 138; McIntosh v. Marathon Land Co., 110 Wis. 296, 85 N. W. 976.

See, also, Apperson v. Bolton,

29 Ark. 418, under Arkansas statute, but all local debts must be first paid.

40 McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210.

41 Aspden v. Nixon, 4 How. (U. S.) 467, 497, 11 L. Ed. 1059.

sonalty.42 When the question of equitable conversion arises, the court of the jurisdiction wherein the land is situated may construe the will and determine whether or not there has been an equitable conversion. The fact that the court of the domicile in construing the will declared that there had been an equitable conversion, is not conclusive and binding upon the court of another jurisdiction regarding lands situated within its boundaries. The court of the last named jurisdiction may construe the will and may determine that no equitable conversion was affected, and the disposition of real property within its jurisdiction must pass according to its decree.48

This rule applies for the reason that there can be no equitable conversion of realty into personalty unless there is vested in the executor both the power and the duty of sale, which involves directly the mode of passing title to land regarding which the law of the situs controls. It differs from an ordinary matter regarding which the general rules of comity would require one court to accept the interpretation of a will established by the court of the domicile. There can be no conversion without a power of sale vested in the executor, which requires that he have the authority to execute a sufficient deed to transfer the title to the real estate under the law of its situs, and this question is one to be determined by the jurisdiction wherein the land is situated."

42 As to constructive or equitable conversion, see §§ 288, 807811.

As to reconversion, see § 812. 43 Appeal of Clark, 70 Conn. 195, 39 Atl. 155.

In re Campbell's Estate, 149 Cal. 712, 87 Pac. 573, it was held that the judgment of the court in Utah

construing a power of sale under the will was of no binding force as a general judicial construction of the will to be applied or enforced in California.

44 White v. Howard, 46 N. Y. 144, 159; Page's Estate, 75 Pa St. 87.

Compare: Guerard v. Guerard,

§ 1379. Bonds of Ancillary Administrators.

46

Bonds are required of ancillary administrators as in the case of original administration.45 If a foreign executor apply for ancillary letters and the will directs that the executor may act without the giving of security, a bond need not be required. But under local statutes the court may demand that a foreign executor give bonds.47 If an ancillary administrator fail to give the bond required in the order of his appointment, the effect is the same as the failure of any original administrator to give a bond when so ordered.18 The penal amount of the bond and liability thereunder is limited to local assets which the ancillary representative is authorized to administer.49

§1380. Powers and Duties of Ancillary Administrators.

The usual procedure with reference to ancillary administration, there being no statute to the contrary, is that the ancillary administrator collect the assets situated within the jurisdiction of his appointment and reduce the same to money. Generally he must pay the debts against the estate due to residents within the jurisdiction, and transmit the residue to the principal representative. If, however, the estate is insolvent, reason and justice re

73 Ga. 506; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057.

45 State v. Osborn, 71 Mo. 86; Lewis v. Grognard, 17 N. J. Eq. 425.

As to the requirement of bonds from administrators and executors generally, see §§ 1348-1352.

46 Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718.

47 Keith v. Proctor, 114 Ala. 676,

21 So. 502; Succession of Withers, 45 La. Ann. 556, 12 So. 875; Matter of Prout, 128 N. Y. 70, 13 L. R. A. 104, 27 N. E. 948.

48 Keith v. Proctor, 114 Ala. 676, 21 So. 502; Bradstreet v. Butterfield, 129 Mass. 339, 342.

As to effect of failure to give bond when so ordered, see § 1354. 49 Lewis v. Grognard, 17 N. J. Eq. 425; Probate Court v. Matthews, 6 Vt. 269.

quire that the ancillary administrator do not pay resident claimants or those who have filed claims against the estate, more than their pro rata share of the whole estate.50

An executor or administrator appointed in the domicile of the decedent is vested with title to the assets, wheresoever situated, of the estate, and has the right to reduce them to possession except as restricted by the laws of other jurisdictions wherein such property may be located. Each state is a sovereignty unto itself with complete jurisdiction over property within its borders. An ancillary administrator is vested with title only as to property within the jurisdiction of his appointment." As to such property an ancillary administrator has the same general powers and duties as a domestic administrator, unless otherwise prescribed or limited by statute.52

It is the duty of an ancillary administrator to take possession of the movable property of the estate within the jurisdiction, and to collect all debts due the decedent that can be collected within the state. 53 Regarding payment of the debts of the decedent, the decisions are conflicting, but the weight of authority is that the ancillary administrator may pay all claims duly presented and allowed, whether they be those of resident or of nonresident creditors.54 This does not give a creditor the

50 Miner v. Austin, 45 Iowa 221, 24 Am. Rep. 763; Davis v. Estey, 8 Pick. (Mass.) 475.

51 Ramsay v. Ramsay, 97 Ill. App. 270; Matter of McCabe, 84 App. Div. (N. Y.) 145, 82 N. Y. Supp. 180; Cureton v. Mills, 13 S. C. 409, 36 Am. Rep. 700.

52 Smith v. Second Natl. Bank, 169 N. Y. 467, 62 N. E. 577.

53 Grimball v. Patton, 70 Ala. 626; Wolff v. Perkins, 51 Ark. 43, 9 S. W. 432; Young v. Wittenmyre, 123 Ill. 303, 14 N. E. 869; State v. Gregory, 88 Ind. 110; Ellis v. Northwestern Mutual L. Ins. Co., 100 Tenn. 177, 43 S. W. 766.

54 In re Kloebe, 28 Ch. Div. 175; Reynolds v. Lewis, 29 L. J. Ch. 296; Fellows v. Lewis, 65 Ala. 343,

right to seek full payment in both jurisdictions, nor to obtain more than his pro rata share should the estate of the decedent be insolvent.55 If creditors in one state have had their claims satisfied in part, they can not present their claims in another state and demand that they participate in the assets in the hands of the administrator without accounting for the sums already received, in order that distribution may be made pro rata.56

§ 1381. General Rule Is That an Administrator Can Prosecute Actions Only in Jurisdiction Where Appointed.

Unless authority be given by statute, the well settled rule is that an executor or administrator can not sue in his representative capacity in any jurisdiction other than the one wherein he is appointed, without first taking out ancillary letters.57 The rule is the same whether the

39 Am. Rep. 1; Ramsay v. Ramsay, 97 Ill. App. 270; Miner v. Austin, 45 Iowa 221, 24 Am. Rep. 763; Davis v. Estey, 8 Pick. (Mass.) 475; Cummings v. Banks, 2 Barb. (N. Y.) 602, 607.

Contra: Green v. Byrne, 46 Ark. 453; Appeal of Barry, 88 Pa. St.

131.

55 In re Kloebe, 28 Ch. Div. 175; Ramsay v. Ramsay, 97 Ill. App. 270.

56 Ramsay v. Ramsay, 196 Ill. 179, 63 N. E. 618.

57 Whyte v. Rose, 3 Q. B. 493; Tourton v. Flower, 3 P. Wms. 369; White v. Hunter, 1 U. C. Q. B. 452; Graham v. Lybrand, 142 Fed. 109, 73 C. C. A. 333; Brooks v. Southern Pacific Co., 148 Fed. 986; Doe v. McFarland, 9 Cranch

(U. S.) 151, 3 L. Ed. 687; Johnson v. Powers, 139 U. S. 156, 35 L. Ed. 112, 11 Sup. Ct. 525; Grayson v. Robertson, 122 Ala. 330, 336, 82 Am. St. Rep. 80, 25 So. 229; Fairchild v. Hagel, 54 Ark. 61, 14 S. W. 1102; Southwestern R. Co. V. Paulk, 24 Ga. 356; Moore v. Jordan, 36 Kan. 271, 59 Am. Rep. 550, 13 Pac. 337; Marrett v. Babb's Exr., 91 Ky. 88, 15 S. W. 4; Brown, Jr., v. Smith, 101 Me. 545, 115 Am. St. Rep. 339, 64 Atl. 915; Wright v. Gilbert, 51 Md. 146; Merrill v. New England M. L. Ins. Co., 103 Mass. 245, 4 Am. Rep. 548; Sims v. Hodges, 65 Miss. 211, 3 So. 457; Gregory v. McCormick, 120 Mo. 657, 25 S. W. 565; Taylor y. Syme, 162 N. Y. 513, 57 N. E. 83; Maas v. German Sav. Bank,