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tor.a The same doctrine was declared in North Carolina, as early as 1797.b In South Carolina, the question arose in the case of the Assignees of Topham v. Chapman, in 1817 ;c and the court in that case followed some prior decisions of their own, and the case of Taylor v. Geary, decided in Connecticut as early as 1787 ;d and they held, that law, justice, and public policy all combined to give a preference to their own attaching creditors. So, in Virginia, and Kentucky, under their statute laws, all real and personal property within the state, even debts and choses in action, are held to be bound by the attachment laws of the state, though the owner should execute an instrument in control of it at his domicil abroad. The rule of curtesy is held to be overruled by positive law. The law of the locus rei site overrules the law of the domicil in this case, and debts due to absentees have so far locality, and are subject to attachment by the creditors of such absentees. But the rule is not carried so far as to apply to absolute sales, bona fide for a valuable consideration, of choses in action, accompanied with assignment and delivery of the evidences of the debt.e The point arose in the supreme court of Massachusetts, in Ingraham v. Geyer, in 1816 ;f and they would not allow even a voluntary assignment by an insolvent debtor in another state, to control an attachment in that
a Merrick's Estate, 2 Ashmead, 485. S. C. 5 Watts. J. Serg. 20. This is the scope of the American cases, and the New-York case of Abraham v. Plestoro, 3 Wendell, 538, went further when it ruled the foreign assignment in bankruptcy void, even as against a British creditor, not domiciled here. They do not go so far in Pennsylvania. Lowry v. Hall, supra. Mulliken v. sughinbaugh, 1 Penn. Rep. 117.
• M.Neil v. Colquhoon, 2 Haywood's Rep. 24.
• Const. Rep. S. C. 283. See, also, Robinson v. Crowder, 4 M-Cord's Rep. 519, to the same point.
Kirby's Rep. 313. • Huth v. Bank of United States in Chan., Louisville, Kentucky, Au. gust, 1843.
i 13 Ma88. Rep. 146.
state, of the property of the insolvent, made subsequently to the assignment, and before payment to the assignees; and the court denied that any such indulgence was required by the practice or comity of nations.a The opin
ion in the case of Holmes v. Remsen was also *408 questioned by one of the judges of the *supreme
court of New-York, in a suit at law between the same parties. And still more recently, in the supreme court of the United States, the English doctrine (for it is there admitted to be the established English doctrine) was peremptorily disclaimed, in the opinion delivered on behalf of the majority of the court.d
· See, also, to the same point, Borden v. Sumner, 4 Pick. 265. Blake v. Williams, 6 Id. 286. Fall River Iron Works v. Croade, 15 Id. 1). Fox v. Adams, 5 Greenleaf's Rep. 245. Olivier v. Townes, 14 Martin's Louis. Rep. 93. Norris v. Mumford, 4 Id. 20. The Brig Watchman, in the district court of Maine. Ware's Rep 232. Saunders v. Williams, 5 N. H. Rep. 213. Mitchel v. McMillan, 3 Martin's Louis. Rep. 676, to the same point. But in Goodwin v. Jones, 3 Mass. Rep. 517, Ch. J. Parsons, held to the English doctrine : and in Bohlen v. Cleveland, 5 Mason's Rep. 174, an assignment was held to prevail over a trustee or attachment process, as against creditors living in the same state with the debtor. It is likewise held, in Rogers v. Allen, 3 Ohio Rep. 488, that an assignment by an insolvent debtor in one state will not affect the title to lands in another state in derogation of the lex rei site. In South Carolina, a bona fide foreign assignment in trust for creditors, takes precedence of a subsequent attachment levied within the state, but not if executed under the operation of a statute of bankruptcy. Green v. Mowry, 2 Bailey's Rep. 163. b Platt, J., in 20 Johns. Rep. 254.
Ogden v. Saunders, 12 Wheaton, 213. In Harrison v. Sterry, 5 Cranch's Rep. 289, the supreme court of the United States had long previously held, that the bankrupt law of a foreign country could not operate a legal transfer of property in this country. The doctrine rests on the same footing between one state and another. An assignment in invitum under the law of one state or nation, has no operation in another, even with respect to its own citizens. Abraham v. Plestoro, 3 Wendell, 538. Johnson v. Hunt, 23 Ib. 90, 91.
d It was the received doctrine in England, according to the opinion of counsel as early as 1715, that the English creditors of an insolvent debtor residing in Holland, could attach and recover by execution levied on his effects in England, without being responsible to the curator in Holland, who had entered upon his trust prior to the attachment in England. See
IV. By intestacy.
The last instance which was mentioned of acquiring title to goods and chattels by act of law, was the case of intestacy. This is when a person dies, leaving personal property undisposed of by will; and in such case, the personal estate, after the debts are paid, is distributed to the widow, and among the next of kin. To avoid repetition and confusion, I shall be obliged to confine myself essentially to the discussion of the leading *409 principles of the English law, and assume them to be the law of the several states, in all those cases in which some material departure from them in essential points cannot be clearly ascertained.
This title will be best explained by examining, 1. To
opinions of R. Raymond, J. Jekyll, and others in the Appendix, 254–256 of Mr. Henry's Treatise on Foreign Law. In Blake v. Williams, 6 Pick. Rep. 286, Lord v. The Brig Watchman, in the district court of Maine, W are's Rep. p. 232, Abraham v. Plestoro, 3 Wendell, 538, and Johnson v. Hunt, 23 Ibid. 87, the question was again discussed, and the decisions made in entire conformity with the general doctrine now prevalent in the United States. The authorities for the contrary and more liberal doctrine in the English, Scottish and Irish courts, are collected in Bell's Commentaries, vol. ii. p. 681–687, as well as in the case of Holmes v. Remsen, supra, 405. Mr. Bell says, that the rule giving effect to conveyances, made for the purpose of collecting and distributing among creditors the funds and estate of the debtor, according to the law of his residence and seat of trade, does not rest in any legislative enactment, but upon those principles of international law which guide the connection between states, and prescribe the authority which is to be allowed by each to the institutions and laws of another. The whole doctrine of the international effect of bankruptcy, is a consequence of the general principle of universal jurisprudence, that personal property, wherever situated, is regulated by the law of the bankrupt's domicil; while, on the other hand, real property is governed by the law of the territory in which it is situated. The law on this vexed subject of the effect to be given to foreign assignments, is examined, and all the authorities and arguments pro and con collected and reviewed in Story's Commentarie on the Conflict af Laws, p. 336–357.
In Canada, an English commission of bankruptcy operates as a voluntary assignment by the bankrupt, but rights and privileges acquired by the provincial creditors are not affected by the commission or assignment. Bruce v. Anderson, Stuarts Lower Canada Rep. 127.
whom the administration of such property belongs, and to whom granted ; 2. The power and duty of the administrators; and, 3. The persons who succeed to the personal estate by right of succession.
(1.) Of granting administration.
When a person died intestate, in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy; and, we are told, it was so flagrantly abused, that parliament was obliged to interfere, and take the power of administration entirely from the church, and confer it upon those who were more disposed to a faithful execution of the trust. This produced the statutes of 31 Edw. III. ch. 11, and 21 Hen. VIII. ch. 5, from which we have copied the law of granting administrations in this country. The power of granting administration, and of superintending the conduct of the administration, was still left in the hands of the bishop, or ordinary, in each dio
In our American law, we have assigned this, as well as other secular matters, to the courts and magistrates of civil jurisdiction.b Before the revolution, the
· Hensloe's case, 9 Co. 38. b. 2 Blacks. Com. 494—496.
• In some of the states, the jurisdiction concerning the probate of wills and the administration of testators' and intestates' estates, is vested in the county courts. In others, it is confided to courts of special jurisdiction, under the various names of the court of probates, the registers' court, the orphan's court, the court of the ordinary, and the surrogate's court. The county courts of Alabama, when sitting as courts of probates, are denominated Orphan's Courts, and they have a very extensive jurisdiction over the estates of deceased persons. In Indiana, by act of February 17th, 1838, the court of probates in each county consists of one judge elected by the people septennially, and the court has exclusive jurisdiction in matters of probate of wills, and administration, and guardianship, and the settlement of decedent's estates, and concurrent jurisdiction in all suits at law and in equity in favour of and against heirs, executors, administrators and guardians, where the amount in controversy exceeds $50, and in partition and dower, and it may authorize guardians to sell real estate to pay debts, and support infants, lunatics, &c. It may command jury trials in
power of granting letters testamentary, and letters of administration, resided, in New-York, in the colonial governor, as judge of the prerogative court, or court of probates of the colony. It was afterwards vested in the court of probates, consisting of a single judge, and so continued until 1787, when surrogates were authorized to grant letters testamentary, and letters of administration, of the estates of persons dying within their respective counties. If the person died out of the state, or within the state, not being an inhabitant thereof, *410 the granting of administration was still reserved to the court of probates. This practice continued until the act of March 21st, 1823,b when the court of probates
proper cases. The probate jurisdiction is plenary and highly important, and the statute conferring the powers is very provisional, and seems to be well digested. Revised Statutes of Indiana, 1838, p. 172. 459. A court of probates in Mississippi is established in each county and has the like enlarged and discretionary jurisdiction in all matters of wills and of administration,and of sales and distribution of the estates of decedents, and as far as the jurisdiction extends it is exclusive and has powers as ample as a court of chancery. 2 Smedes & Marshall, 326. 330. 333. Farve v. Graves, 4 Id. 707. The act in Missouri, concerning executors and administrators is comprehensive, and their powers and duties are well defined. The jurisdiction resides in the county courts. Revised Statutes of Missouri, 1835, p. 40. So in Kentucky and North Carolina, the county courts have exclusive jurisdiction to establish wills of real and personal estates. Hunt v. Hamilton, 9 Dana's Rep. 91. 1 N. C. Revised Statutes, 1837, p. 620, 621. The Revised Statutes in each state, and especially where the revi. sions have been recent, contain a special detail of the jurisdiction and power of probate courts. We can only allude occasionally and by way of illustration, to the local statutes. The law of Maryland on Statutory Testamentary Law, is collected by Judge Dorsey, and the volume is enriched by a reference to the decisions of the courts on the subject. In New Jersey, the governor by the constitution until 1844 was ex officio, the ordinary as well as the chancellor of the state, and he consequently had jurisdiction to take proof of wills and to grant letters testamentary, and letters of administration. But by the constitution of 1844 the chancellor is declared to be the ordinary or surrogate general and judge of the prerogative court.
* L. N. Y. sess. 1. ch. 12. and sess. 10. ch. 38. Goodrich v. Pendleton, 4 Johns. Ch. Rep. 552.
b Sess. 46. ch. 70.