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dty of New Orleans for the sum of nine hundred and twenty-three
thousand seven hundred and eighty-eight dollars.

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 largo
•mounts as having been paid and disbursed, and certain others as

Digitized by


326 Succession of Gaines. [Louisiant,

of doubtful validity^ the payment whereof ought to be refoaedt
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
live different alleged legatees of the deceased under the will that
was probated by the New York court — the aggregate of whose
claims are about fifty-five thousand dollars — and also by the New
York administrator.

■*• These various parties appeared, by way of oppositions to the
account of 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 approved,
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 ef-
fect that there are large legacies that were created by said will, and
debts due, and others contested, which must necessarily be ad-
justed, paid, or rejected by the New York administrator, after
same have been passed upoi#by said probate court, and for that
purpose he prayed "that the said residue of the estate here remain-
ing, 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 an administrator
with a will annexed, or dative testamentary executor under the
law of Jjouisiana, 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 at-
torney'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
domicile of said deceased.

It is further alleged therein that the administration of the de-
ceased's estate in Louisiana has been purely auxiliary, and for the
purpose of paying debts due creditors of the deceased residing in

Digitized by


Feb. 1894.] Succession of Gatnes. 827

this state^ or those who had obtained judgments in the courts sit-
ting in Louisiana.

After these recitals comes the opponent's prayer for the ia>
render and delivery to him of the surplus of funds remaining in
the administrator'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 f act^ are conceded^ leaving for discussion
and decision only the two questions of law heretofore pro-

On the trial all of said oppositions were dismissed, and the ad-
ministrator'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
tlie registry and execution of the decedent's will.

In a different proceeding in the same succession in Louisiana,
reported in 45 La. Ann. 1237, the lower court rejected and disal-
lowed 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 re-

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 admin-
istration thereof in Kings county, New York, is the primary ad-
ministration of her estate, same having been inaugurated at the
place of the decedent's domicile, and predicated upon her wUL 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
cannot 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 con-
templates 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 contem-
plating the removal of the residue of assets afterward.

Hence, the question arises whether opponents have made out.

Digitized by


828 SuccBBBiON OF Oainei. [Louisiana^

under the law, a proper ease for a transfer of the residaiim of the
ancillary succession in Louisiana to the prohate court in Kinga
■*• county. New York, for administration there, according fa^
law and the provisions of the will.

This question arose and was decided in the case of Gravillon
T. Bichards, 13 La. 293, 33 Am. Dec. 563, in which Judge
Eustis, as the organ of the court, expressed the following opin-

"The power of courts to order the remission of the funds belong-
ing to a foreign succession to the representatives of the succession
authorized to receive them by the courts of the domicile of the
deceased, we consider undoubted. Its exercise is necessarily a
matter of discretion, depending on the circumstances of each case,
and is a consequence of that comity which prevails beween nationa
in amity with each other. The interests of commerce and civiliza-
tion 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 our-
selves 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 court 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 domicile of the deceased for distribution/'

The same principle was recognized and reannounced in Mour-
ain V. Poydras, 6 La. Ann. 151, and again in Succession of Tay-
lor, 28 La. Ann. 367, 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 v. Eost, 15 La. Ann.
405, and Succession of Butler, 30 La. Ann. 890), are dissimilar to
this case, in that the demands of foreign administrators were re-
jected, on the ground that they exhibited no legal title to inter-
fere 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 article 1220 of the Civil Code 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

Digitized by


Feb. 1894] Succession of Gaines. 829

requires a *^ foreign executor to fumisli bond and security be-
fore he can undertake the administration of an estate in Louisiana.
On this queition the New York jurisprudence conforms to our
own: See Despard v. Churchill, 63 N. Y. 192; Parsons ▼. Lyman^
20 N. Y. 103. The supreme court has likewise held in Wilkins ▼.
Ellett, 9 Wall. 740.

In the brief of opponent's counsel the following pertinent ques-
tions are propounded, viz: *T[f 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 ofi&cer of this court, how is he to get the fund in this court to
the court under which the parent succession is being adminis-
tered? Must he, as an ofi&cer of this court, settle with himself as
an ofScer of the other court? And if yes, does he then do any-
thing 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 domicile.''

In our opinion these questions find a correct answer and solu-
tion in the decisions above quoted; and, on the authority of the
sound principles of jurisprudence therein formulated, we hold that
the New York administettor 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 *®^ 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 incor-
rectly overruled and dismissed, and that same should be reinstated
and sustained, to the extent of authorizing the transfer of the

Digitized by


330 Succession of Oaimes. [Louisiana,

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 ijoherit-
ance was improperly sustained and must be rejected and disal-

It is therefore ordered and decreed that the judgment appealed
from be annulled and reversed in the following particulars, viz:
1. By rejecting and disallowing the demands of the legal heirs
of Mrs. Gaines to be placed in possci^sion of the residuum of the
assets of her ancillary successor after debts and charges have been
paid; 2. So as to reinstate the oppo.<ilions of the legatees and of
the New York administrator, and to recognize and specially re-
serve the rights of said legatees to present their demands in the
Xew York court, conformably to law, and to have same therein
judicially determined contradictorily with said New York admin-
istrator; 3. So as to sustain the demands of the opponents, requir-
ing the residuum of assets in the hands of the administrator of the
ancillary succession in Louisiana to be transferred to the surro-
gate's court of Kings county, state of Xew 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 suc-
cession be rejected and disallowed; that the rights of the oppos-
ing legatees be reserved to present and have their claims deter-
^ mined 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 suc-
cession have been paid and discharged.

It is further and finally ordered and decreed that in the fore-
going particulars the account of the administrator be amended^
and in all other respects approved, and that, as amended, the judg-
ment appealed *^* from be affirmed, costs of oppositions and ap-
peal to be taxed against administrator and appellees.

Mr. Justice Parlange takes no part


BREATJX, J. The appellees applied for a rehearing and for
a modification of the decree, so as to allow pajrment here to the
legatees under the will. In their application the legatees repre-
sent that all the legatees are before the court. They allege that

Digitized by


Feb. 1894.] Succession of Gaines. 331

the records do not disclose that Mrs. Gaines was indebted in New
York, and that there is no legal necessity to send the legatees to
that city to get their money, that no creditor from New York has
asked a transfer of the funds to that state, and that the transfer
of the funds is a matter of discretion, depending upon the circum-
stances of each case.

This court having decreed that the domicile of Mrs. Gaines was
IB New York, attention is directed to the fact that though the de-
cedent was domiciled in New York and the administration was
axudliary only in this state, the legatees, distributees, and crediton
may recover amounts due them out of the assets here.

In support of the application the following cases are cited: In
re Hughes, 96 N. Y. 65; Harvey v. Eichards, 1 Mason, 381. In
speaking for the court Judge Story, regarding the lex rei sitae in
the last case, says: *^Whj should not legatees and distributees be
entitled to recover out of the assets here as well as creditors? It
18 true that legatees claim by the bounty of the testator, but it is a
legal right, as fixed and vested as the right of a creditor. And as
to distributees the case is still stronger, for that rests not on the
bounty of the intestate, but on the law of the land, which at the
same time enables the creditor to receive his debt out of the assets
and the next of kin to claim the residue/* Upon the authority of
the decision from which we have just quoted appellees principally
relied in their application for a rehearing.

The appellants also filed a brief on the application for a rehear-
ing, from which we quote: *The validity of the will of Mrs. Gaines
being fully established: 1. By the decision of the surrogate's court
of Kings county. New *®* York, declaring it to be the last will of
the testatrix and a valid will of real and personal estate; 2. By the
recognition thereof as such last will by decree of this court in No.
11193; and 3. By the admission of all parties in interest, now be-
fore the court, in their application for the modification of the de-
cree herein, the titles of the legatees to the respective amounts
therein named is beyond dispute, for they are settled by both the
judgment of the coiirt and the admission of all parties in interest.
This being the case, it can make no difference where the legacies
provided for in the will are paid, whether in the home or the
ancillary succession.''

The court ordered that the parties in interest be heard regard-
ing the modification of our decree, so as to avoid as much as
possible the incurring of further costs and expenses at the home
succession, where there are no assets.

At this hearing all the parties in interest were present and

Digitized by


832 Succession of Oainks. [Louisiana,

consented to a modification of our former decree^ in order that the
respective claims represented be paid here^ except the counsel for
the administrator of the home succession in New York, who,
though not a party to the agreement, interposed no special objec-
tion, but asked, if modification of the decree as applied for be
granted, that the rights of his client, the temporary administrator,
and of all creditors who might recover through liis administration
of the home succession in New York, be roserved ; that the validity
of these claims and charges may be established before the court
contradictorily with the other parties in interest in the settle-
ment, in so far as relates to tbe succession funds here.

Under the circumstances payment can be ordered by the court
of all funds in this state. A final settlement may be made of the
succession, so far as relates to these funds. The consent of the
legatees and of the creditors of the succession support the appli-
cation to pay the funds on hand to the legatees, distributees, and
creditors. It would serve no useful purpose to compel the inter-
ested parties and all claimants to abandon their pleas here in a
court of competent jurisdiction to renew them in another tribunaL
The funds being within the court's jurisdiction may be paid here,
*^ and included in the settlement of the ancillary succession in
this state. The question of the judicial agency through which
the settlement shall now be made arises. Shall the present
administrator continue in the discharge of his trust, or shall an
executor qualify under the will? It devolves upon us to deter-
mine. The last will and testament of Myra Clark Gaines appoints
two executors. One of the two survives and is a resident of the
city of New Orleans.

This will has been probated, and recognition has been given by
this court to the authority of a judgment pronounced in a sistcar
state probating the will and ordering the execution of its terms.
The judgment having been rendered by the court having jurisdic-
tion of the domicile of the testatrix, a validity now exists not
previously recognized. It follows that the payments should be
made by the executor named by the testatrix, and that these funds
should be under his administration. The present administrator
will have to account to the executor appointed under the wilL

It was stated in argument for a rehearing that certain payments
had been made by the administrator here in certain legacies, and
it was said, on behalf of the appellants, that these payments should
be ignored, and that the assets should be accounted for by the
administrator to the executor without reference to these payments.
That issue not being before the court, it is not decided, hut left

Digitized by


Feb. 1894.] Succession of Gaines. 833

to b6 first passed upon by the court of the first instance. All
rights are reserved to the administrator, contradictorily with the
executor who may be appointed, to prove the legality and correct-
ness of these payments on legacies and advances to the heirs, if
Any have been made.

It is therefore ordered, adjudged, and decreed that this case
be remanded to the court a qua, to be proceeded with in accord-
ance with law and the views herein expressed; that the legacies,
debts, and charges be paid here and complete settlement made
with legatees, distributees, and creditors to the extent of the
funds on hand; that a final accounting be given and final **•
iiccount filed bv the executor of his administration of these funds
and of the ancillary succession in this state.

After all legal claims and charges on the part of legatees,
distributees, and creditors shall have been paid, and all entitled
to any part of tliese funds settled with, if there be a residuum as
per final account of the executor, that the residuum be transferred
to the legal representative of the estdte authorized to receive it
in the surrogate's court of Kings county. New York; that upon
proper application, an executor be appointed to execute the will
of Myra Clark Gaines, of January 5, 1885, probated in the surro-
gate's court of Kings county. New York, on the 24th of June,
1891; that he execute the will after having qualified, and that he
account as herein ordered; that the administrator of the succes-
sion in this state shall account to the executor thus appointed for
all amounts received by him and for all disbursements, and render
full accoTint of his gestion; that all questions of the validity and
the effect of payments made by the administrator are left to be,
in the first instance, passed upon by the court of original jurisdic-
tion, with all needful rights to protect their respective interests
reserved; that all the rights of the temporary administrator, ap-
pointed by the surrogate's court of King's county. New York, be
rcsor>*ed, in order that he may recover nil amounts due him, and
that all creditors with valid claims be paid in the rank due and
to the extent the funds will pay them; (his includes all valid
claims and charges, whether presented through the temporary
administrator or independently of his trust, all to be proved up
and recovered contradictorily with all parties in interest.

Our former decree is set aside, in so far as it may be necessary to
make it conform to our decree at this time. That portion which
reads: "1. 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 succession after debts and charges have

Digitized by


334 Stats v. Dupaquibb. [LomsiaiUy

been paid; 2. So as to reinstate the opposition of the legatees and
of the New York administrator, and to recognize and spedallj
reserve the rights of said legatees to present their demands in the
New York court, conformably to the law, and to have the same
judicially determined contradictorily with said New York ad-
ministrator.** That this copied portion and all of the original
decree is only *•* changed, amended, and annulled to the extent
and in those respects necessary to make it conform with the decree
now rendered. This amending and annulling as made has become
necessary in order to carry out the agreement of the interested
parties. In all other respects than that before provided our
original decision remains. •

The case having been argued and the agreement made by counsel
considered, our decree is changed as above without further hear-
ing. Without the necessity of a rehearing, the modification is
made and rehearing is, therefore, refused.

8I0N— REMISSION OF PROPERTY.— Property remitted here by a
foreign administrator cannot be claimed by an administrator appointed
here, either as against the person in whose hands it might happen to
be, or against the foreign administrator: Williamson v. Branch Bank,
7 Ala. 900 ; 42 Am. Dec. 617. According to the law of Vermont, no one
but an administrator appointed in the state in which the intestate's
debtors resided at the time of his death can collect 9iich debts, or release
them, or properly administer them : Abbott v* Cobum, 28 Vt. 663; 67
Am. Deo. 7S6.

State v. Dupaquibb.

[48 LOXnnAKA ANNUAL, 677.]

TION OF FOOD.— The legislature, or a city under delegated power,
has authority to forbid the sale of impure or adulterated food or milk,
and to fix a standard by which It shall be judged.


Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 38 of 121)