http://www.piedmont-historical-society.org/records/minister-mccollo...

Upper South Carolina Genealogy and History The quarterly publication of the Piedmont Historical Society This installment, 4 of 6, originally appeared in Vol. VII, December 1990 CLERICAL ACTS OF REV. JOHN D. McCOLLOUGH Continued from Vol. VII, No.1

1857 Marriages

No. 11 May 14th At Residence of Maj. Govan Mills S.C.H.

T.K. Cureton to Mary S. Mills

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1870 census Mecklenburg County, NC: Charlotte City, Ward 4

Thomas Cureton 39 Physician $6000/$500 SC Mary M. 35 Keeping house SC Nannie 10 Attending school SC Thos. K. 5 SC Govan M. 3 NC Sue M. 3/12 NC plus a black family of 6 as servants and laborers, as well as one additional black servant

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In 1850 at age 19 he was living with his parents and many others (boarders?) in a large household in Lancaster, SC.

In July 1853 he either matriculated or graduated from the Philadelphia College of Medicine

U.S., School Catalogs, 1765-1935 for Thomas K Cureton Pennsylvania Philadelphia College of Medicine (Ancestry.com)

1860 --in Slave Schedule and Agricultural census in Lancaster County, SC--owned many slaves--but not listed in regular census

http://library.uncg.edu/slavery/petitions/results.aspx?s=3&sid=342&... Race and Slavery Petitions Project

PAR Number 21384811 State: South Carolina Year: 1848 Location: York Location Type: District

Abstract: Thomas K. Cureton, trustee for Sarah Kimbrell, asks to sell as many of the trust estate slaves as may be necessary "to pay the balance of the purchase money of the land" on which the petitioners reside. He states that Jeremiah Cureton conveyed 12 slaves to him in 1844 to be held in trust "for the use & benefit of your Petitioner Sarah Kimbrell ... during the term of her natural life & at her death that the said negroes should be divided amongst such lawful issue of her body;" in 1846, the said Jeremiah conveyed another 12 slaves to the said Thomas, under the same conditions. He reports that Nathan Kimbrell, the late husband of said Sarah, mortgaged a tract of land "to secure the payment of a large sum of money" and that said mortgage was foreclosed and the "tract of land was exposed to public sale ... and purchased by your orator Thomas K Cureton." Noting that "there are no lands belonging to the Trust estate," he believes "it would be greatly to the advantage & benefit of said Sarah Kimbrell & her children if the said tract of land were vested in T K Cureton," in trust, with the same limitations as contained in the previous two deeds of trust. Averring that "it will be necessary to sell some of the negroes belonging to the Trust estate, in order to pay" what is owed for the land, he prays that such a sale may be authorized.

The American Reports: Containing All Decisions of General Interest Decided in the Courts of Last Resort of the Several States, Volume 36 with Notes by Irving Browne. San Francisco 1881 By Isaac Grant Thompson (on Google Books)

South Carolina : A.J. Willard, Chief Justice; Henry McIver, Samuel McGowan

pp. 700-716

Cureton v. Mills.

      (is 8. c, m.) 

Executor and administrator —jurisdiction — administration of foreign

The courts of one State may compel a domestic administrator of an intestate domiciled at his death in that State to account for personal assets situated in a foreign State at the death of the intestate, but acquired by the same administrator by virtue of letters of administration issued to him in the foreign State, and brought into the former State: and the distribution made according to the laws of the foreign State, so far as regards debts, and according to the laws of the domicile of the decedent so far as regards the residuum.

BILL in equity to settle an estate. The opinion states the points.

J. S. R. Thomson, for appellant

J. B. Cleveland, contra.

Willard, C. J. This case involves the accounting of the administrators of G. Mills. The leading question arises out of the following facts: G. Mills was domiciled, at his death, in this State, and died intestate, leaving property and debts in both this State and North Carolina. T. K. Cureton and N. Mills took out letters of administration in both States. Personal property of the intestate, situated in North Carolina at his death, was reduced to possession there by the administrators and brought into this State and sold by order of the ordinary of Spartanburg. There appear to be debts of the intestate due to citizens of both States unsatisfied, and it is claimed that as it regards North Carolina debts the North Carolina assets should be applied by the administrators in accordance with the laws of that State, and not according to the priorities existing under the laws of this State. The only appellant here is the administrator, T. K. Cureton. His principal objection to this Circuit decree is that it decreed that the proceeds of sales of slaves brought from North Carolina and sold here are chargeable to the administrator's account here, and that it directed the application of the North Carolina assets, instead of holding, "that the whole of the North Carolina property should be accounted for there, and this plaintiff chargeable here as to North Carolina assets only with any surplus that might be found in his hands, after a full accounting had and decree made in North Carolina."

The proposition embodied in the appellant's objection just stated is that the administrator ought not to be held to account for so much of the assets as came from the sale of the property of the intestate situated in North Carolina, at his death, and brought within this State by the administrators, but if accountable therefor, under any circumstances it would only be after the North Carolina debts had been paid, and then only as it regarded the surplus of the North Carolina estate remaining undisposed of after the payment of the debts there due.

It will be observed that no North Carolina creditor is before this court as an appellant, and we are at liberty to infer from the record before us that no such creditor appeared in the action or was represented otherwise than by the administrators, one of whom is appellant here. The objection comes wholly from the administrator himself. The objection that would exclude the authority of the courts of this State from control over assets subjected to the authority of the ordinary of Spartanburg, by the voluntary act of the administrators themselves, would seem, in itself, anomalous; but the question will be considered and disposed of on more general grounds. The questions then to be considered, are: First Have the courts of this State jurisdiction to compel a domestic administrator, representing an intestate, domiciled at his death in this State, to account for assets of such intestate held in this State, and received by such administrator under letters of administration issued to him by a foreign State, when such assets were situated in such foreign State at the death of the intestate, and were of a personal character? And second if such assets may be distributed by such domestic jurisdiction, must they be so distributed according to the laws of the State where they were so situated at the death of the intestate, or according to the laws of the domicile of the intestate?

In considering the first in order of these questions, it is material to notice the circumstance that the same persons were administrators in both States. This fact renders it necessary to consider the question of jurisdiction under two aspects. Suppose that the plaintiffs had been administrators in this State alone, and other persons had administered in North Carolina, and had collected the assets there situated, and had turned over such assets into the hands of the plaintiffs as the administrators of the domicile of the intestate for administration here? Could the courts of this State have assumed control over such assets in a proceeding in this State to compel the domestic administrator to account? This constitute! one of the two aspects above noticed. The other may be illustrated by supposing that the present plaintiffs were North Carolina administrators alone, and not entitled to represent the intestate's estate in this State, would they, being citizens of this State, found here, and having had North Carolina assets, brought here by them, be held accountable here for the administration of such North Carolina assets?

Looking at the question under immediate consideration in the first of these aspects, it assumes the following form: Can the administrator of the domicile of the intestate be compelled to account for assets of his intestate found in his hands in such State, notwithstanding such assets may have been situated at the death of decedent in a foreign State, and there reduced to possession under administration granted by such State? The principles from which the solution of this question would naturally flow are well established by abundant authority, and free from dispute. All the authorities concur in the conclusion that according to the principles of international law, universally adopted, the administration had at the domicile of the decedent, whether dying testate or intestate, is to be regarded as the principal administration, to which all foreign administrations, granted by reason of personal assets being found at the death of the decedent in a State foreign to that of the domicile, are, in some sense, a degree subordinate. The exact relations subsisting between this original and the ancillary administrations are differently estimated by different States, but all recognize some degree of subservience on the part of the ancillary administration to the administration of the domicile. For instance, all agree that where the purposes of the ancillary administration are accomplished, according to the law of such ancillary administration, and a residuum remains, that such residuum is subject to the purposes of the original administration, to be distributed according to the law of the domicile of the decedent There is a difference of opinion as to whether that residuum should be transmitted to the domicile of the decedent for distribution, notwithstanding there may be legatees or distributees residents of the State of such ancillary administration; some authorities holding that opinion, and others sustaining the view that when the legatees or distributees reside within the place of the ancillary administration distribution may be made by the court of such State of assets under their control, though following the law of the domicile as it regards the order of that distribution. Harvey v. Richards, 1 Mas. 381.

It will not be necessary for our immediate purpose to attempt to state the doctrine that appears to be supported by the best reasons and authority, as it regards the authority of the courts of the place of the ancillary administration over assets found at the death of the decedent in such place, for as has been already said, the validity of this principle, to which the solution of the present question is to be referred, is not involved in such discussion, but stands conceded by all.

It is one of the necessary deductions from the general character ascribed to this administration at the domicile of the decedent, by the authorities, that such administration is, in its nature, general . and unlimited, while the ancillary administration is both special and limited. The nature of the administration had at the domicile of the decedent depends on the universally received doctrine that personal property follows the person of its owner. This principle, doubtless, had its origin in the enlarged spirit that flows from commercial intercourse among nations. It may well be conceived that there was an older notion, more agreeable to the conceptions of States living in isolation, and therefore jealous of their authority, by which property, either personal or real, within such State, claimed by a citizen of a foreign State, could only be controlled and disposed of in such manner as would be admissible if the foreign owner were present and subject to the laws prevailing where such authority was to be exercised. With the development of international commerce would arise a necessity that movable property, the special subject of that commerce, should, wherever located, be immediately under the control of its owner, to the end that its transmission may be facilitated, as it would be where the owner, in its disposition, was compelled only to consult the law to which he was personally amenable, and not bound to act as a subject, sub modo, of every State where his property chanced to be located for the time being. Immovable property, such as lands and houses, not being within the sphere of the general operations of commerce, would remain under the more primitive rule, and that is its condition at the present day. The fact that the rule that personal property follows the person of the owner in the sense that the law that binds the person is the law that governs the transmission of his personal effects has been universally ascribed to the international law and not to municipal regulations, seems to justify the conclusions just drawn as to its origin and the nature of the rule antecedent to it It will not be necessary to add that the force of this rule of international law depends upon local acceptance, and that many exceptions to its universality are recognized by all States; indeed, it is competent for any State to deny the rule altogether, and transfer the interchange of personal property by applying the rules commonly confined to immovable property alone.

This rule of the international law looks to the power of control over movables as the essential feature of the idea of property, and to the subject of property as the adjunct, and localizes such property for the purpose of disposition where the dispensing will may be found. It would follow that according to this idea the authority of the owner of movable property must be regarded as in its nature general and unlimited; general, because it covers all his movables, under whatever local sovereignty they may chance to be placed, and unlimited, because he is not constrained as it regards the objects in regard to which he may exercise that power of control or disposition. In saying that the power of the owner over his good* is general and unlimited in its nature, it is not affirmed that that power is necessarily absolute, or in its exercise free from limitations imposed by the various sovereignties where his property of that class is situated, for that is not true of his domicile and cannot be absolutely true of any other jurisdiction within which hi» movables may be situated. Such limitations, in the exercise of the rights of ownership, do not result from the operation of any such principle as that the owner of property can only exercise such authority as is permitted by the laws, but from a conflict between the rights of the individual and the community, in which care the former must give way. Such being the character ascribed by our laws to the authority of the owner of chattels, whatever may be their situs, it would seem to follow that when that authority comes to bo represented in the hands of a personal representative of a deceased owner it would possess the same nature, although that authority cannot exist to the same extent as it did in the owner while living, for the reason that the personal representative is bound either by the testamentary disposition of his testator or by the law of distribution, which did not bind the decedent. The terms general and unlimited, as applied then to the representative of the decedent, must be taken in a sense more restricted than when applicable to the living owner. It may be said to be general in the sense that it extends to all the personal effects of the decedent wherever situated, and unlimited in the sense that all the objects contemplated by the law of testamentary disposition, or of distribution of the domicile, are competent and proper objects to be had in view in the administration of the estate. The distinction that has been pointed out between the characters of the original and of the ancillary administration will be better understood when the restricted character of the latter is fully presented.

The ancillary administration, we have said, is special and limited. The sense in which these terms are used is tne same as that just applied to the original administration. That administration is special because it extends merely to such personal effects of the decedent as may be found at his death in the place of ancillary administration, while, as we have seen, the scope of the original administration is commensurate with the whole personal estate of the decedent wherever situated. The ancillary administration is limited in the sense that the objects to which that administration looks do not comprehend all that are appropriate to the original administration. The ancillary administrator is primarily concerned only with the debts of the decedent at the place of ancillary administration, and with the administration of the assets only to the extent requisite to pay such debts. In some instances the courts of the ancillary administration have undertaken to distribute the estate of a foreign decedent; but this is an exceptional jurisdiction depending upon special circumstances, such as the fact that all the distributees, legatees or creditors are residents of the State where the assets of a foreign decedent were found, and the ancillary administration personally amenable to that jurisdiction. No authority appears to sanction the idea that the ancillary administration could make distribution in favor of foreign creditors except by the aid of the decree of a court of competent jurisdiction. Vol. XXXVI— 89

Before looking into the authorities to see how far the views already expressed have their sanction, it is proper to observe that it is only in a potential sense that the original administration embraces all the effects of the decedent where part of these effects are situated in a foreign State. The laws of that State may prevent that claim from being actually asserted until the debts of the decedent then due are paid. But this is merely a limitation of a recognized general authority in the original administration, for the moment the objects of the ancillary administration are accomplished the general right of the administrator of the domicile is respected by all foreign States, and the residuum subjected to that control, thus evincing a general recognition of the fact that the ancillary administration is special and limited, and the original administration general and unlimited.

The most conclusive proof that the original administrator has that general character which has been stated, is the fact that all the creditors, whether domestic or foreign, are embraced within the rule of disposition that binds the original administrator. Cameron v. Wurtz, 4 McC. 278; Dawes v. Head, 3 Pick. 128. Some States and countries give preferences as among different classes of creditors, and in some instances preferences to their own citizens over foreign creditors, but none exclude foreign creditors from distribution, even though by the law of the countries where they reside the effects of the decedent, found in such countries at his death, may be subject to a preference in belialf of his own citizens who may be creditors. It is obvious that if all creditors, wherever residing, are within the scope of the original administration, that all assets, wherever situated, must equally be within that scope. It is hardly to be supposed that the one would be included and the other excluded. Indeed, where a creditor who had availed himself of the laws of New Jersey to obtain part payment through an ancillary administration in that State, applied to come in with other creditors in New York, the place of original administration, all that the court did in view of the advantage gained in New Jersey was to equalize the other creditors with the one who had obtained part payment in New Jersey, allowing him to come in on equal terms with all others as it regarded the totality of assets, foreign and domestic, deducting the amount he had received. Lawrence v. Elmendorf, 5 Barb. 73.

We come now to the authorities bearing on the question.

Conover v. Chapman, 2 Bail. 436. The intestate was domiciled iu South Carolina. The South Carolina administrator was also administrator in Maryland, where assets of the intestate estate were situated at the death of the intestate. The administrator was sued in this State on a debt of his intestate, and pleaded "plene admimstravit of assets which had come to defendant's bands in this State." The plea was adjudged bad on demurrer, on the ground that it was to be assumed that by the laws of Maryland, the administrator was bound, after paying debts there 'due, to apply the residuum to the purposes of the original administration in South Carolina, and therefore there was at least a conditional obligation on the part of the administrator to account for the Maryland assets. Judge Butler holds that the administrator was not indeed chargeable with the Maryland assets to such extent as to render him amenable to account in this State for the disposition made of the Maryland administration, but that he was under a more limited obligation to account therefor, and that his plea of plene admmistravit should have been general and not limited to the assets found in this State. He recognizes the principle that the South Carolina administrator and the Maryland administrator must be legally considered distinct persons as it regards the separate offices held by the same person. This case fully recognizes that the primary authority of the administrator, at the domicile of the intestate, extends to all his effects, wherever situated, although as it regards foreign assets, he may ordinarily account for them by showing that they are subject to another jurisdiction, to which as a general rule he is alone responsible for their disposition. It is consistent therefore with the proposition that the authority of the original administrator is general and unlimited in its nature, and his liability commensurate therewith.

Carmichael v. Ray, 1 Rich. 116. The administrator of an intestate, domiciled in South Carolina, sought to recover, upon his title as administrator, personal property of his intestate that was situated in North Carolina at his death. It was held that the South Carolina administrator acquired no title under his letters of administration to property of the intestate beyond the territorial jurisdiction of this State. This case may seem to militate against the conclusions, to the support of which it is cited, but that is apparent merely, and not real. It is one thing to say that the scope of administration is general and extends to nil assets of the intestate wherever situated, and another to say, that under the circumstances of its location, his title cannot bo asserted over a particular chattel that appertained to his intestate's estate. It is obvious that the conclusion of the court was correct. The defendant claimed the property under the operation of the laws of North Carolina, during the time that the property was subjected to that jurisdiction. It was clearly competent for the laws of that State, operating upon a subject of property subjected to them, to create a right of ownership that would bo respected everywhere. To assert title in the administrator, under such circumstances, would be equivalent 10 denying to the laws of North Carolina that force which is everywhere accredited to the laws of a sovereign State over all persons and property subjected to them. Suppose however that the administrator in that case had obtained rightful possession of the North Carolina property, and had brought it within this State, there is nothing in the case that would preclude the idea of His being accountable therefor as proper to be applied in a due course of administration here. Indeed, Judge Butler instances, in the opinion in that case, the payment of a foreign debt to a domestic administrator, recognizing the principle that where such payment is made, the sum paid would be assets rightfully in the hands of the administrator for administration, but he correctly holds that that principle is not applicable to the case he had in hand. Unless foreign assets are within the general scope of the administration, how could the administrator be chargeable with such assets coming into hi» hands under such circumstances?

Wilkins v. Ellett, 9 Wall. 740. It was held that a payment of a debt due by a citizen of one State to the administrator under the laws of another State, where the intestate was domiciled at his death, there being at the time of such payment no administration in the State of the debtor, was a valid payment and discharged the debt. It has been questioned whether this is not allowing the debtor to subvert the laws of his State by voluntarily contributing to remove therefrom assets, that by those laws are devoted to debts due within the State. However this may be, the recognition of the general nature of the authority of the administrator of the domicile involved in this case does not appear to have been at any time brought into question, and it does not appear to be questionable.

It will not be necessary to go further in the examination if tin authorities, domestic and foreign, on this point, as none are found that militate against the proposition advanced, while throughout the whole the fundamental principles on which that proposition rests are abundantly illustrated.

If the original administrator has a general right as to all effects wherever situated, his obligation is commensurate with that right, and extends to accountability for all assets reduced and reducible at home, and all actually reduced abroad. It would follow that when this administrator of the domicile of the intestate holds possession of personal effects of his intestate, within the jurisdiction from which he derives his authority as administrator, he is bound to account therefor, even though such effects at the death of the intestate were situated within a foreign jurisdiction. It would also follow that the domestic administrator is bound to account for all assets reduced to possession, wherever situated at the death of the intestate, but that such assets are properly accounted for, as a general rule, when it appears that they were, at the death of the intestate, in a foreign jurisdiction, and still so remain, and that his possession thereof was obtained as administrator under the authority of such foreign State, and that the purposes of such ancillary administration have not been fulfilled. For any devastavit of the foreign assets in the course of the ancillary administration, he would be subject to the jurisdiction of the domicile, at least to as great an extent as an ancillary administrator would be who was not accredited as the administrator of the domicile, which liability will be hereafter considered.

We come now to the second aspect of the general question, that proceeds on the supposition that the administrator had been sued in this State solely in his character of a North Carolina administrator. Could such a suit be maintained? If a citizen of this State is appointed under the laws of another State administrator of one domiciled in this State at his death, having assets in such foreign State, and such administrator brings such assets within this State, can the parties interested as creditors or distributees compel such foreign administrator to account for such assets here? As a general rule, rights of property matured and perfected under the laws of a State having jurisdiction of the person and property involved are respected and protected everywhere. The obligations incurred as a consequence of the perfecting of such a right and the credit thereto, according to its nature, must stand on the same footing as the right itself, and be enforced everywhere where jurisdiction for that purpose can be obtained.

It is true that when public powers and authority are executory, such powers belonging to the sovereign under whom they are exercise.* cannot be put in execution Dy any other jurisdiction thin that of such sovereign. Hence it is that the powers of an administrator, being in their nature public powers, cannot, while executing, be enforced in any other jurisdiction than his own. But when rights are matured or perfected in pursuance of such power, they should be respected everywhere. Judge Butler, in Carmichael v. Ray, 1 Rich. 116, fully states tho principle in the following language: "If a foreign administrator has, iu virtue of his administration, reduced tho personal property of the deceased there situated into his possession, so that he has acquired the legal title thereto according to the laws of that country, if that property should afterward be found in another country or be carried away and converted against his will, he may maintain a suit for it there in his own name, for he is, to all intents and purposes, the owner thereof." If then the title acquired through his administration when perfected by reducing to possession be respected, and can be protected everywhere, surely the obligations imposed upon him as the consequence of obtaining such title must accompany the right wherever it goes, and if the one can be vindicated the other can be enforced.

There are indeed many instances, where, on grounds of public policy, one State will not enforce rights of a particular class matured under the laws of another State, but no means appear for drawing the case of the duty of an administrator to apply the asset! received by him in the due course of administration within this class of exceptions. What ground there exists for saying that an administrator may come into the courts of the State to vindicate his title matured under the laws of another State, and yet cannot be brought before the courts of the State to answer for the proper disposition of said property under the laws by means of which it was acquired? It may and should be conceded on the principles already stated, that a foreign administrator cannot be held to account for foreign assets that he has never reduced to possession, on the ground that his conduct was in violation of the laws of the State under which he derived his administration, for that would be to put in exercise those laws which can only be accomplished by the jurisdiction to which they appertain; but where lie has reduced assets to possession, and his duty springs out of and is commensurate with his title, no good reason appears why he may not be compelled to account for such assets in any State that may chance to have jurisdiction of the proper parties and the assets the subject of controversy. On the other hand, to deny under such circumstances a remedy in the courts of a foreign State might amount to the loss of all remedy whatever. When the intestate was domiciled in the State where such remedy is sought, and the assets and the person of the foreign administrator are there present, and the distributees are residents thereof, unless the remedy can be there obtained it may bo impossible to obtain it anywhere.

McNamara v. Dwyer, 7 Pai. 239, a case decided by Chancellor Walworth, fully sustains these principles, although in that case the remedy was sought at the place of an ancillary administrator, and not, as in the present case, at the domicile of the intestate. The reasoning of that case is irresistible. Unfortunately the conclusion of that case is misstated in the head-note of its report.

Conover v. Chapman, 2 Bail. 436. In looking into this case for another purpose, we found that it was said that the ancillary administrator could not be held accountable, except in the courts of that jurisdiction. It does not appear that any person interested in the ancillary administration as a creditor entitled to be paid thereunder was a party to that case. It is only one entitled to a remedy in the courts of the ancillary State against the administrator there localized who could claim such a remedy in any foreign State, by reason of the presence in such State of the parties and the subject of controversy. It follows that as no one of the parties had a right to complain of the manner in which the ancillary administration in Maryland had been conducted, the court merely intended to say that the proper jurisdiction of that question was in Maryland, and not to exclude the idea that a demand primarily cognizable in the courts of Maryland could become under possible circumstances cognizable in the courts of South Carolina.

Collins v. Bankhead, 1 Strobh. 25. It is said in this case that there is a general liability on the part of the ancillary administration to account to the original administrator for the ancillary administration. This statement should doubtless be qualified in the manner already indicated, but it certainly covers the general idea that such an accountability is possible, and such being the case, where the ancillary administrator and the domestic administrator are one person, clearly that liability could be inferred under the limitations already stated at the demand of domestic creditors or distributees in the domestic forum.

Carmichel v. Ray, 1 Rich. 116, while recognizing the responsibility of an ancillary administrator in respect of foreign assets reduced to possession there, properly holds that the courts of the domicile cannot aid such ancillary administrator to reduce such foreign assets to possession, even though such assets may be found at the place of domicile. This conclusion is in accordance with the principle that public powers, such as the case holds the powers of an administrator to be, cannot while executory be enforced by a foreign jurisdiction.

Campbell v. Tousey, 7 Cow. 64 A Pennsylvania executor was in this case held responsible to account in New York for Pennsylvania assets received in that character. The court held that he could not be charged as executor as he had no such authority in New York, but that he was liable to account therefor as executor de son tort for such Pennsylvania assets. The difficulty in the explanation of this ground of accountability was noticed by Chancellor Walworth in McNamara v. Dwyer, already commented upon, but he did not undertake to develop his objection. It is obvious that to charge one as executor de son tort it must appear that he obtained assets by an act of wrong; but this cannot be affirmed of one who by the laws of a country to which he was at the time amenable, and having jurisdiction of such assets, is clothed with authority over the same. The conclusion that such action should be maintained against the defendant as executor de son tort appears to have been forced out of respect to the principle that a foreign executor has, as such, no standing in the domestic forum to enforce his powers as such. That is indeed true, but does not interfere with his accountability, based on his duty by reason of assets reduced to possession, to properly apply them in the course of administration, for the remedy in that case is upon his individual duty. When he is before the court for such a purpose, it is his powers and obligations, consummate through his authority as an executor, that is the subject of controversy.

Boston T. Boylston, 2 Mass. 384, was decided upon a Massachusetts statute, and is not recognized as a general authority. Dawes v. Boylston, 9 Mass. 337; 6 Am. Dec. 72, denies, in general terms, the right of the legatees in that case to pursue distribution in that ancillary jurisdiction, but places the conclusion on the ground that only a partial distribution could be effected in Massachusetts, and full administration only could be had at the domicile, which was England. This principle is not confined to the case of a foreign administration, but equally affects the right of seeking distribution in a case of purely domestic administration. This case cannot be regarded as going beyond the statement of an exception to the right of legatees to call the original executors to account within an ancillary jurisdiction, and is clearly no authority for the proposition that an ancillary administrator cannot be made to account for foreign assets in the jurisdiction of the domicile.

Richards v. Dutch, S Mass. 506. A Massachusetts administrator of a testator, domiciled in India, sued on a debt due to his testator in Massachusetts. The defendant attempted to show that the subject of the debt, namely, property of the testator in his possession, had been left as a legacy to him by the testator. The court treated the defense as if it had been an action by a legatee for a legacy, and as such, denied that it could be maintained against an ancillary administrator. Nothing is said in the case about any assent of the foreign executor, and such assent does not appear to have been a matter at all considered. It may well be doubted whether the assent of the ancillary administrator could entitle the legatee to sue in a court of law. The real difficulties of the case appear not to have been developed, and it cannot properly be regarded as an authority upon the matters under present consideration, as they were not involved in it.

Dawes v. Head, 3 Pick. 128. The only point actually decided was that it was not a breach of the condition of the ancillary administrator's bond, that he had failed to pay a debt due to a foreign creditor, a resident of the country of the domicile of the foreign testator. It therefore can be regarded as no more than an exposition of the law of Massachusetts as it regards the extent of the objects to which ancillary administration, had in that State, primarily extends. The general discussion in that case does not profess to be material to the question then before the court; but even if carrying authoritative weight, the conclusion arrived at, that it is the duty of the ancillary administrator, after satisfying local debts, to transmit the residuum, does not even exclude the idea that the courts of that State obtaining jurisdiction over the foreign executor. Vol. XXXVI—90

and having the assets in their jurisdiction, might proceed to make distribution according to the law of the domicile of the testator or intestate. Much less would it exclude the idea that the courts of the domicile, having jurisdiction of the person of an ancillary administrator and control of the assets, might proceed to adjust the accountability of each ancillary administrator at least to the extent of the assets within its control.

Fay v. Haven, 3 Mete. 109. The defendant was both administrator of the domicile and ancillary administrator in Massachusetts; and it was held that he was not bound to account in the latter place for assets received in Louisiana, the place of domicile. This case is consistent with the proposition already stated, that when an ancillary administrator is sued in his own jurisdiction, he sufficiently accounts for foreign assets received in the character of a foreign administrator by showing that these assets are in the course of administration in the proper jurisdiction to which they appertain. It was not a case where the court was proceeding with reference to assets within its control.

Harvey v. Richards, 1 Mason, 381, decided by Judge Stoet in United States Circuit Court, must be regarded as an exposition of the laws of Massachusetts; and that case holds that where there was ancillary administration in Massachusetts of the estate of one domiciled, at his death, in Calcutta, and leaving a will there, under which executors had qualified, such ancillary administrator could be compelled to distribute the Massachusetts assets there, when the necessary parties were all before it, and the circumstances of the case were such that complete distribution could be made. If the ancillary jurisdiction could be extended thus far, clearly a similar exercise of authority would be competent on the part of the jurisdiction of this domicile having the legatees or distributees and the foreign ancillary administrator and the assets before it

Goodall v. Marshall, 11 N. H. 85. This case did not involve the present question, but gave deliberate consideration to the general question. Chief Justice Parker recognizes that special circumstances may warrant the assumption of jurisdiction by the courts of the ancillary administration in decreeing distribution, citing for that purpose, Harvey v. Richards, and various other cases.

Pipon v. Pipon, Amb. 25, holds that distributees have nt right to file a bill for a partial settlement of the estate merely, and this conclusion is placed upon the language of an English statute.

Tourton v. Flower, 3 P. Wms. 369, was decided upon a ground that appears to imply that a bill might properly be hied in England against an ancillary administrator there for the distribution of the estate of one domiciled in France, at his death, who left a will under which executors qualified.

It must be concluded that the proposition that an ancillary administrator, resident within the jurisdiction of the domicile of the decedent, and having there assets of the decedent, may be compelled to account there for his administration of all assets under the control of that jurisdiction, is sustained by the authorities. It follows that the administrators in the present case were bound to account for the North Carolina assets in their possession, and it remains to consider under what law the distribution of such North Carolina assets must take place.

It is well settled that the assets of a decedent, found in any State or country, whether the domicile of such decedent, or otherwise, are to be applied in a course of administration, under the laws of such State, to the extent of the payment of all debts provided for by the laws of such State, and that all preferences allowed by such laws are to be respected. It is also well settled that where a residuum remains, after satisfying the purposes of ancillary administration, it must be distributed according to the law of the domicile of the decedent. It is only necessary to make a general reference to a few of the cases. Tucker v. Condy, 10 Rich. Eq. 12; Smith v. Bank, 5 Pet. 518; Lawrence v. Elmendorf, 5 Barb. 73; Goodall v. Marshall, 11 N. H. 85.

The assets brought into this State by the administrators must be accounted for and distributed in this action as it regards North Carolina debts, according to the laws of the State of North Carolina.

The exceptions to the decree, so far as they relate to the rule of administration, must be overruled.

The appellant excepted to the decree on the ground that a credit to the amount of $325 was not allowed. No evidence appears showing that the objects for which that amount was paid were proper for such payment. Without such proof the item could not be allowed. The exception as to the item of 11,217.25 does not appeal in the exceptions to the report of the referee, and cannot therefore be noticed; and in addition to this there is no evidence that the amount thus paid was applied to proper objects.

The decree must be affirmed and the appeal dismissed.

Decree affirmed.

McIver, J., concurred.

DOD taken from obituary* Reference: Find A Grave Memorial - SmartCopy: Aug 24 2022, 7:32:36 UTC