Churchill v. Prescott , 3 Bradf. 233 ( 1855 )

The Surrogate.

The administrator, a brother of the intestate, was cited by the husband of his sister on the application for administration, and on his preferring to take the letters rather than have them issued to the applicant, his right to administration was contested on the ground that he was indebted to the intestate. (2 Bradford’s Rep., 304.) He denied the indebtedness, and I refused to hear a litigation on that point, the debt being positively sworn to by the applicant. Eighteen months having elapsed, the administrator has been called to account, and his sister and mother now endeavor to charge him as a debtor to the intestate. They show that the decedent made him advances, and produce a letter of the administrator indicating that the advances were treated by him as a loan.

The administrator alleges in defence that similar advances were made by the intestate to the other next of kin, tfiat he administered on the estate of his deceased brother, at Portsmouth, in the County of ¡Rockingham and State of Hew Hampshire, and that his accounts were there finally adjusted, allowed and settled, before this proceeding was instituted in Hew York. The petition of the next of kin, praying for administration in Hew Hampshire, represents “ that said James S. Prescott, late of said Portsmouth, has lately deceased intestate, and at the time of his death having property in said county, and leaving no widow or children, and no heirs at law of said deceased, except your petitioners, and they pray that Henry W. Prescott may be appointed administrator of said estate.” The order for administration and the letters of administration describe the intestate as “James S. Prescott, late of Portsmouth.” The settlement of the accounts of the administrator was had before the Court of Probate at Portsmouth, on the 14th day of September, 1852, and over $17,000 were distributed among the next of kin. The decree of the court recites that notice was “ given to all parties interested therein, by a citation issued for that purpose and served according to order of court,” and concludes by stating that “ all parties interested therein agreeing thereto, it is decreed that said account be allowed.” The record certified to me also contains the following acknowledgment, signed by the parties : “ We, the undersigned, heirs at law of James S. Prescott, late of Portsmouth, deceased, do hereby acknowledge that we have seen and examined the foreging account, and that we are satisfied that the same is correct, and we do hereby acknowledge that we have received the sums charged as having been paid to us, and we do hereby request the Jndge of Probate to pass and allow and settle said account.” The petition for administration in the county of Hew York, which was signed by Gustavus Y. Churchill, the husband of a sister of the decedent, states that the intestate was not an inhabitant of this county, but of Portsmouth, Hew Hampshire. It was on this application the administrator took out letters here, though denying at the same time that there were any assets in this county.

The proceedings before me and before the Probate Court in New Hampshire, show the intestate was domiciled in that state. The principal administration was in the place of his domicil, and the administration in New York was merely ancillary. (Heydock's Appeal, 7 N. Hamp. R., 496; Childress vs. Bennett, 10 Alaba., 751; Ordronaux vs. Helie, 3 Sandf. C. R., 512.) The law of the place of ancillary administration governs as to the payment of debts there, but the distribution among the next of kin or legatees, is made according to the lex domicilii. (11 N. Hamp. R., 88.) A decree against the primary administrator at an intestate’s domicil in a foreign country is conclusive upon the subsidiary administrator. (Suarez vs. Mayor of N. Y., 2 Sandf. C. R., 173.) By the law of New Hampshire the decision of the Court of Probate as to matters within its jurisdiction, unless appealed from, is conclusive. In Bryant vs. Allen, 6 New Hampshire R., 116, a case in accounting, the court, in relation to a decree of the Probate Judge, say, “if this decree be permitted to stand, the appellant will be forever concluded by it.” The proper time for determining a claim against the administrator for an alleged individual debt due by him to his intestate, is on the final accounting. (Judge of Probate vs. Briggs, 5 N. Hamp. R., 66.) It is true that debts due the deceased are assets where the debtors reside. But if the debtor go into another jurisdiction where an administrator has been appointed, he may be sued there. (Shultz vs. Pulver, 3 Paige, 182.) And if the debtor be himself the administrator, whatever be the jurisdiction, he may be made liable there on the accounting, for the debt he owed the intestate. If he should set up that in the place of his residence there were creditors to satisfy, the court would look after their rights, but if there were no creditors, his own debt would be the subject of accounting in the place of administration. I think it was entirely competent for the Probate Court in New Hampshire to decree the payment of any debt due by Prescott, the administrator, to his deceased brother, if he owed anything— and as that was the place of principal administration, I am of opinion the next of kin should have set up the claim on that accounting. The administrator alleges that the intestate made similar advances to his mother and sisters, and if so, they might have been investigated at the time of distribution. Whether a charge could have been sustained against them or not, it is useless now to inquire; but it is obvious that in the belief that the settlement in New Hampshire was final and conclusive, the parties may have been satisfied mutually to waive their rights growing out of all advances made by the decedent. The decree in New Hampshire has not only the force of a judgment of a court of competent jurisdiction in the place of domicil, but also the actual ratification of the parties in interest, and was entered at their request. If they had any further claim against the administrator, there was the place and that was the time to urge it, and having failed to do so, they are forever barred. Had the claim then been presented, it might have changed the course and conduct of the administrator; at any rate it cannot be permitted for parties acquiescing in a settlement under certain circumstances, to lie by with a demand they do not intend to assert until after settlement and distribution. There is no excuse for such a course, and if there were, it should be laid before the court in New Hampshire, on an application to open that decree. It is quite sufficient to plead the decree in the place of the decedent’s domicil as a full and conclusive settlement of the administrator’s liability for any cause whatever then existing. The sentence, therefore, must be that the administrator has not been in assets in this jurisdiction, and has fully accounted in the place of domicil.