Gibbs' Estate, In re

• Citation: 280 P.2d 556,73 Wyo. 425
• Decision Date: 01 March 1955
• Docket Number: No. 2662,2662
• Parties: ESTATE of Olin G. GIBBS, Deceased. Bert ORR, Administrator in the State of Wyoming of the Estate of Olin G. Gibbs, Deceased, Respondent, v. R. H. HUBBARD, Administrator in the State of Colorado of the Estate of Olin G. Gibbs, Deceased, Appellant.
• Court: United States State Supreme Court of Wyoming

Page 556

280 P.2d 556

73 Wyo. 425

ESTATE of Olin G. GIBBS, Deceased.

Bert ORR, Administrator in the State of Wyoming of the Estate of Olin G. Gibbs, Deceased, Respondent, v. R. H. HUBBARD, Administrator in the State of Colorado of the Estate of Olin G. Gibbs, Deceased, Appellant.

No. 2662.

Supreme Court of Wyoming.

March 1, 1955.

John F. Sullivan, Laramie, Robert H. Gleason, Steamboat Springs, Colo., for appellant.

F. K. Dukes, Laramie, for respondent.

RINER, Chief Justice.

This is an appeal from a decree of the District Court of Albany County in probate rendered and entered on February 13, 1954. The parties appear to have agreed that the facts in the case are without controversy and to the following effect:

'* * * that the domiciliary Estate, being administered in the Probate Court of Routt County, Colorado, is insolvent and the ancillary Estate being administered in the Probate Court of the Second Judicial District in Wyoming is solvent. The domiciliary and ancillary Estates are both insolvent if the assets and liabilities of the deceased in both jurisdictions are considered.'

The question submitted for the disposition of the Court is whether an ancillary administrator who knows that the entire estate of a deceased person (taking into consideration the assets and liabilities of both domiciliary and ancillary estates) is insolvent may properly pay the creditors of the ancillary estate the total amount of their claims when they have filed them with such ancillary administrator pursuant to due notice to creditors given as required by the laws of Wyoming (said administrator also knowing the status of the ancillary estate to be solvent) and disregard the claims of creditors filing same in the domiciliary estate which is being probated in Colorado but who have not filed them in the ancillary proceedings here.

The District Court ruled that the ancillary administrator may properly and legally do so.

It will be noted that the domiciliary administrator in Colorado is undertaking to question the action of the trial court in approving the final accounting of the ancillary administrator by instituting this appeal attacking a part of the District Court's decree of February 13, 1954, aforesaid.

From our research we are obliged to conclude that the decree of the District Court was right in thus approving the final account of the ancillary administrator as against the objections interposed by the domiciliary administrator to such approval.

We call attention to the statements found in the texts and cases as set out below which would appear to set these matters at rest. These texts and cases for the most part were not submitted to us by the brief of counsel for either side in the case.

We find that 34 C.J.S., Executors and Administrators, § 1000, p. 1244 on the authority of many cited decisions states that:

'It is the duty of an ancillary representative to collect all the assets of the estate within the jurisdiction of his appointment, and his right to do so is superior to that of a foreign domiciliary representative, even though the foreign representative is authorized by statute to sue in the jurisdiction, for, even where such statutes exist, it remains the universal policy to preserve local assets for the satisfaction in the first instance of local claims.'

The same text § 1008, at p. 1256 likewise says:

'It is well settled that, unless such right is given to him by statute, an executor or administrator cannot sue in his representative capacity in any state or country other than that in which his letters testamentary or administration were granted.'

Our case of Security-First National Bank of Los Angeles v. King, 46 Wyo. 59, 68, 23 P.2d 851, 852, 90 A.L.R. 125, points out that:

'But we have no statute authorizing him (a foreign executor) to sue in this state.'

Logically, the same rule would seem to be applicable to a foreign administrator here.

4 Bancroft's Probate Practice (2d Ed.), Section 1225, page 573, states upon the authority of numerous decisions that:

'It is accordingly the general rule is this country that, in the absence of statute, a domiciliary executor or administrator has no power to sue in his official capacity in another state.'

The same text (Section 1232, page 584) also accords with 34 C.J.S., supra, in saying that:

'The property of the decedent in the state where ancillary administration is had is primarily a fund for the payment of debts due to resident of that state. But citizens of other states are not denied the right to present their claims against the estate, whether the administration is domiciliary or ancillary.'

We find also that this same text (Section 1235, page 587) indicates that:

'Ancillary administration is solely within the control of the court granting the ancillary letters, and all of the assets of the estate within the jurisdiction of such court must be accounted for to it.'

And dealing with the subject of presentment of claims, this recent text remarks (Section 1233, page 586) that:

'But claims must, of course, be duly presented in order to have any right to payment in the particular jurisdiction. * * * If a claim is not presented within the period fixed by the local statute of nonclaim, it is barred as a claim in that jurisdiction.'

In the American Law Institute's Restatement of the Law on the subject Conflict of Laws, Section 498, page 604, it is said:

'The time within which a claim can be proved in a state is fixed by the law of that state.'

And under comment 'a' says, in part:

'* * * although a claim is within the domiciliary limitation, it cannot be proved in ancillary administration if the time for filing there has elapsed.'

And comment 'b' continues to say:

'A claim, to be proved in administration proceedings, must be within the local statute of limitations (see § 603) as well as within the local period for proving claims in administration proceedings.'

The case of Duehay v. Acacia Mutual Life Insurance Company, 70 App.D.C. 245, 105 F.2d 768, 124 A.L.R. 1268, resolved the question as to what law should govern the administration of the deceased's estate and the assets to be paid over to creditors. The deceased's widow was appointed by the Virginia court in Fairfax County of that State where Duehay resided at the time of his death. She was also appointed the ancillary administratrix of the estate in the District of Columbia. Debts held by Virginia creditors amounted to over $14,000. In the District of Columbia claims based upon judgments obtained against the deceased amounting to $129,000 were presented to the administratrix. The administratrix's contention was that the law of Virginia should control the payment of claims. The trial court of the District of Columbia found that payment should be governed by the law of the District which provided, 70 App.D.C. 245, 105 F.2d 768, 771, 124 A.L.R. 1268, 1272:

"In paying the debts of a decedent, after the payment of funeral expenses according to the condition and circumstances of the deceased, not exceeding six hundred dollars, an executor or administrator shall observe the following rules: Claims for rent in arrear against deceased persons, for which an attachment might be levied by law, shall have preference. Judgment and decrees of courts in the District of Columbia shall next be wholly discharged. * * *"

Affirming the decision of the trial court, the appellate tribunal said in part, 70 App.D.C. 245, 105 F.2d 768, 771, 124 A.L.R. 1268, 1273:

'The decision of the lower court was correct. One of the principal objects of an ancillary administration is the collection and preservation of local assets for the benefit of local creditors. No state need allow property of a decedent to be taken from within its borders until debts due such creditors have been satisfied. Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 61 L.Ed. 386. The long established rule is that 'in regard to creditors the administration of assets of deceased persons is to be governed altogether by the law of the country where the executor or administrator acts, and from which he derives his authority to collect them, and not by that of the domicil of the deceased.' Hence, the method of proving claims, the priority and payment of debts, the marshalling of assets, are all matters regulated by the law of the place of appointment. This was early settled in this jurisdiction by the case of Smith v. Union Bank, 5 Pet. 518, at page 524, 8 L.Ed. 212, where the Court adopted, for purposes of decision, the following language from Harrison v. Sterry: 'In the familiar case of the administration of the estate of a deceased person, the assets are always distributed according to the dignity of the debt, as regulated by the law of the country where the representative of the deceased acts, and...