Smith v. Howard

• Decision Date: 02 February 1894
• Citation: 86 Me. 203,29 A. 1008
• Parties: SMITH et al. v. HOWARD.
• Court: Maine Supreme Court

29 A. 1008

86 Me. 203

SMITH et al.

v. HOWARD.

Supreme Judicial Court of Maine.

Feb. 2, 1894.

Appeal from probate court, Waldo county.

From a decree at probate allowing the account of Lucy A. Howard, administratrix, Emma Smith and another appeal. Appeal sustained.

Jos. Williamson, for appellant. Emma Smith. R. F. Dunton, for appellee.

WHITEHOUSE, J. This is an appeal from the decree of a judge of probate, allowing the account filed by the defendant as administratrix on the estate of her husband, whose domicile was in Massachusetts at the time of his death. The appellants are the children and heirs of the decedent, and the only item in the account to which they object is a credit of $700, being the amount granted to the widow, as her allowance, by the judge of probate in this state. The defendant took out the ancillary administration in this state, in May, 1892, on personal property amounting to $850. In June of the same year, she took out the principal administration in the place of the domicile of the decedent; but the entire estate in that jurisdiction, small in amount, was exhausted in effecting a settlement by compromise with the creditors in that state. No allowance was made to the widow, or applied for by her, in Massachusetts. The allowance in question was made by the judge of probate, in this state, in July, 1892.

The only question presented by the agreed statement accompanying the appealis whether the judge of probate in this state had jurisdiction and authority to decree this allowance to the widow of a nonresident decedent from assets in this jurisdiction on which there is ancillary administration.

In determining this question,—a new one in this state,—it is proper to be reminded that courts of probate are tribunals of special and limited jurisdiction only. They are wholly creatures of the legislature. They exercise only such powers as are directly conferred upon them by legislative enactment, and such as may be incidentally necessary to the execution of these powers. Unless authority for the exercise of jurisdiction in a given case can be found in the statutes, given either expressly or by implication, the proceeding is void. Woerner, Adm'n, § 142; Fowle v. Coe, 63 Me. 248.

It is furthermore important to observe that, in order to discover the true scope and purpose of statutes denning the powers of these courts, they are to be examined in the light of the common law, which it may be supposed they were intended to modify, affirm, or supersede, or by which their practical operation might be affected. In this case it is proper to consider that the statutes of every state are enacted primarily with reference to the citizens within its own jurisdiction; that it is the right of a state to pass laws for the appropriation of any property of a decedent within its limits to the payment of the just claims of creditors residing there, even if not in entire harmony with the spirit of comity between states; and that letters of administration have no legal force or effect beyond the territorial limits of the state in which they are granted. Saunders v. Weston, 74 Me. 92; Smith v. Guild, 34 Me. 443; Story, Conn. Laws, § 512. These statutes are also to be construed with due regard to the universal rule which Chancellor Kent declares to be as "settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to, and distribution of personal property, wherever situated, is governed by the law of the country of the owner's or intestate's domicile at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. 2 Kent, Comm. 571; Gilman v. Gilman, 53 Me. 184; Whart. Conn. Laws, §§ 604, 627. The principle last stated, as will presently be seen, is expressly recognized and affirmed in our statutes. Rev. St. c. 65, § 36.

In the subdivision of chapter 65, Rev. St., entitled "Allowances to Widows and Others," is the following, in section 21: "In the settlement of any intestate estate, or of any testate estate, which is insolvent, or in which no provision is made for the widow in the will of her husband, or when she duly waives the provisions made, the judge may allow the widow so much of the personal estate, besides her ornaments and wearing apparel, as he deems necessary, according to the degree and estate of her husband, and the state of the family under her care." The last subdivision of this chapter is entitled "Distribution of the Estates of Deceased Non-Residents." In the first section of it (section 36) is the following: "When administration is taken in this state on the estate of any person, who at the time of his death, was not an inhabitant thereof, his estate found here, after payment of his debts, shall be disposed of according to his last will * * * if he left any; but if not * * * his personal estate shall be distributed according to the laws of the state or county of which he was an inhabitant; and the judge of probate, as he thinks best, may distribute the residue of said personal estate as aforesaid, or transmit it to the foreign executor or administrator, if any, to be distributed according to the law of the place where the deceased had his domicile." These are modified forms of the original enactments of 1821 (sections 8, 39, c. 51), which were adopted from Massachusetts. In that state the corresponding statutes were enacted at different periods; that relating to ancillary administration, in the form as adopted, having been enacted in Massachusetts in 1818. None of the enactments providing for administration on the estates of deceased nonresidents in Maine or Massachusetts at any time contained any express reference to a widow's allowance.

It is manifest from the history of these two sections in our Revised Statutes above quoted, and their present collocation in chapter 65, as well as from a comparison of their respective terms and provisions, that section 21 has reference solely to the estates of deceased residents. It was not designed to embrace the estates of deceased nonresidents. With respect to the latter, the jurisdiction of the court of probate is clearly defined and limited in section 36. In case of an intestate it is simply the duty of the judge to order the residue of the estate, after the payment of debts, to be distributed here, or transmitted to the foreign administrator, to be distributed, in either event, according to the law of the place where the deceased had his domicile. So long as there are creditors within the jurisdiction of the ancillary administration, they have a legal right to insist upon having all the assets found there appropriated to the payment of their debts. The court has no authority to order the assets to be transmitted under this statute until the creditors here are all paid, and it has no jurisdiction to determine that there are no unpaid creditors here until the expiration of the time fixed by law for presenting their claims. Newell v. Peaslee, 151 Mass. 601, 25 N. E. 26; 1 Woerner, Adm'n, § 167. For aught that appears, all the assets inventoried in this jurisdiction may yet be required to pay the claims of creditors residing here.

No authority to make an allowance to the widow of such nonresident decedent is expressly conferred by this section; nor is it granted by implication, as necessary to the discharge of the duties that are expressly imposed. A widow's claim for an allowance is not deemed a matter of legal right, either in this state or Massachusetts. It rests merely in the discretion of the judge of probate. Kersey v. Bailey, 52 Me. 198; Dale v. Bank, 155 Mass. 141, 29 N. E. 371. It is not a fixed and absolute interest in the estate. Additon v. Smith, 83 Me. 554, 22 Atl. 470; Adams v. Adams, 10 Mete. (Mass.) 170. It is not a debt due from the estate, nor a distributive share of it. It is not included in the "expenses of administration." Washburn v. Hale, 10 Pick. 429.

The widow's allowance was originally designed to afford a temporary supply for the widow and her family pending the settlement of the estate. It had its origin in a humane and beneficent public policy that seeks to encourage the continuance of the family relations by providing against the exigencies arising from the death of the head of the family. Kersey v. Bailey, supra. When, therefore, a claim for such an allowance from the personal property of her husband is presented by the widow, it is held with substantial uniformity that the question must be determined and the amount regulated by the law of the place where the family resided and had their home at the time of the husband's death. Gilman v. Gilman, s...