Cothran
J., dissenting.
Appeal
from Common Pleas Circuit Court of Anderson County; G. B
Greene, Special Judge.
Controversy
without action pursuant to Code Civ. Proc. 1912, §§ 413, 414
(Code Civ. Proc. 1922, §§ 651, 652), by S. M. Wolfe, as
administrator with the will annexed of the estate of Lexius
P. Henson, deceased, against the Bank of Anderson. Judgment
for plaintiff, and defendant appeals. Affirmed.
The
decree of the judge of the circuit court was as follows:
This is a controversy without action pursuant to provisions
of section 413 and 414, Code of Civil Procedure S.C. 1912
which have been re-enacted as sections 651 and 652 of the
Code of Civil Procedure of 1922, and from the agreed
statement of facts upon which the controversy is submitted
it appears: That one Lexius P. Henson, a painter by trade
has had his residence and domicile in the city of Anderson,
county of Anderson, and state of South Carolina, for some 10
or more years up to and inclusive of the date of his death;
that the said Lexius P. Henson was a widower, and died in the
city of Augusta, county of Richmond, and state of Georgia, on
the 21st day of November, 1920, while he was there on a
temporary visit, and that soon after his death, to wit, on
the 5th day of January, 1921, one Parris R. Pryor (colored),
of the city of Augusta, was granted letters of administration
on his estate by the ordinary of Richmond county, Ga., said
administrator qualifying as such; that the assets of the
estate of Lexius P. Henson at the time of his death were as
follows: A deposit balance, subject to check, in the National
Bank of Waynesboro, Burke county, Ga., of $209; a savings
deposit in the Bank of Anderson, county of Anderson, state of
South Carolina, which, with interest to February 2, 1921,
amounted to $1,768; two small insurance policies aggregating
$150, which were in the custody of S. M. Wolfe, attorney, in
the city of Anderson, S. C.; also some clothing, household
goods, a watch, and some tools of trade, the household goods
and tools of trade being situate in the city of Anderson and
county of Anderson, S. C.
It appears further that on February 2, 1921, the said Parris
R. Pryor, administrator as aforesaid, made draft upon the
Bank of Anderson for the sum of $1,768, the amount of the
savings deposit, with accrued interest, at said bank,
attaching to said draft certified copies of letters of
administration granted to the said Pryor by the ordinary of
Richmond county, Ga., and that the Bank of Anderson paid said
draft. It appears also that on the 30th day of April, 1918,
the said Lexius P. Henson made his last will and testament
whereby he bequeathed and devised to his former lawyer and
friend, S. M. Wolfe, of Anderson, S. C., his entire estate;
that on the 18th day of April, 1922, the said last will and
testament was admitted to probate in the probate court for
Anderson county, S. C., and on the 3d day of May thereafter
the said S. M. Wolfe duly qualified as administrator with the
will annexed of the estate of the said Lexius P. Henson; that
on May 5, 1922, the said S. M. Wolfe, as administrator as
aforesaid, made draft upon the Bank of Anderson for the sum
of $1,768, the amount of the said savings deposit, including
interest, but payment of the
draft was refused by the said bank for the reason that the
amount of the said savings deposit, including interest, had
already been paid by the said bank to Parris R. Pryor,
administrator of the estate of the said Lexius P. Henson, in
Augusta, Richmond county, Ga.
The agreed statement of facts also shows that no
administration, ancillary or otherwise, was had on this
estate in Anderson county, S. C., prior to the probate of the
will of said Lexius P. Henson, as above stated.
The question of law to be determined by me upon the foregoing
agreed statement of facts herein is the liability, if any, on
the part of the defendant, Bank of Anderson, to the
plaintiff, as administrator with will annexed and beneficiary
under the will of Lexius P. Henson, deceased, in Anderson
county, state aforesaid, by virtue of its payment and
surrender of the deposit to the credit of the account of the
said Lexius P. Henson at the time of his death, and upon the
date upon which it was drawn in the sum of $1,768 to the said
Parris R. Pryor, as administrator, in Richmond county, Ga.
As
stated in Ruling Case Law, vol. 11, at page 432: "It is
an elementary principle that letters testamentary or of
administration have no legal force or effect beyond the
territorial limits of the state in which they are granted.
Whatever operation is allowed to it beyond the original
territory of the grant is a mere matter of comity, which
every nation is at liberty to yield or to withhold, according
to its own policy and pleasure, with reference to its own
institutions and the interests of its own citizens. Yet a
title acquired through foreign administration is universally
respected by comity of nations. This comity, however, does
not extend so far as to permit a foreign
representative to take possession of and remove assets beyond
the jurisdiction of the state, when such removal may be
prejudicial to creditors who are citizens of the state."
This principle has been adhered to by the courts of this
state, as will be seen by reference to the cases of Dial
v. Gary, 14 S.C. 573, 37 Am. Rep. 737, Stoddard v.
Aiken, 57 S.C. 134, 35 S.E. 501, and others. However, it
has been generally held that a domiciliary representative may
accept voluntary payment of debts from debtors residing
outside of the jurisdiction in which the grant of letters was
made, provided there are no debts due from the estate in the
jurisdiction where a foreign debtor of the estate resides;
and in many jurisdictions the absence of debts due by the
estate does not seem to be a prerequisite to the validity of
a voluntary payment to the domiciliary executor or
administrator by a nonresident debtor, a voluntary payment
being made in this manner being held final and conclusive as
against an ancillary administrator subsequently appointed,
and a bar to a suit brought by such subsequently appointed
ancillary administrator. The reason for this rule is that the
duties of a domiciliary administrator are general and
unlimited. He is invested with a title to all the property of
the deceased for the purpose of collecting the effects of the
estate, paying the debts, and making distribution of the
residue according to the law of the place.
On the
other hand ancillary administration is special and limited,
and the duties of an ancillary administrator do not extend
beyond the jurisdiction in which he was appointed, and cannot
make collections outside of the jurisdiction
of his appointment and give full and final acquittance to
debtors as can be done by the domiciliary administrator.
In the
case of Wilkins v. Ellett, 108 U.S. 256, 2 S.Ct.
641, 27 L.Ed. 718, it was held that a foreign administrator
could make collection and give a valid acquittance to a
debtor residing in the state of the domicile of the decedent
provided there were neither creditors nor next of kin in the
state of the domicile of the decedent. The foregoing case was
quoted with approval by our Supreme Court in the case of
Jones v. Jones, 39 S.C. 256, 17 S.E. 591, the court
quoting in italics the following words: "There having
been no creditors of the intestate in this last place, nor
any persons there entitled as distributees"--and adding
thereafter these words: "This is the law in South
Carolina. Dial v. Gary, 14 S.C. 582. In the case before the
court it does appear that there was a creditor of intestate
in North Carolina, and that appellant knew it; for as soon as
he collected the money in North Carolina he paid it to a
creditor of intestate in that state. There is no evidence
that there are no other creditors of intestate in North
Carolina, while there is evidence that there are other
creditors there; indeed, the 'case' says that a suit
is about to be begun against the estate of intestate in North
Carolina. Again, it does not appear that there are no persons
in that state entitled to the property as distributees."
From these cases I conclude that it is the law of this state
that a foreign administrator cannot collect assets and give a
valid release to debtors residing in this state, the domicile
of the decedent, except when there are no creditors of the
decedent in this state, and no persons here entitled as
distributees or legatees of decedent's estate.
In the
case under consideration the grant of letters of
administration to Parris R. Pryor in a state foreign to that
of the domicile of decedent constituted ancillary
administration merely. It does not appear that
there are no debts against the estate in this county and
state. Administration was granted to plaintiff in Anderson
county, S. C., on the 3d day of May, 1922, and, as an
administrator has one year from the date of his appointment
to ascertain the debts against the estate, it is possible
that creditors of said estate, unknown to him now, may appear
and prove their claims. Furthermore, the sole beneficiary
under the last will and testament of the said Lexius P
Henson resides in Anderson county, S.C. It would be
unreasonable and unfair to the creditors of this estate, and
the record does not show that there are none, and also to the
sole beneficiary under that last will and testament of the
deceased, to go away from the county and state of the
domicile of the decedent and into a foreign jurisdiction to
prosecute their claims. As was stated in the case of Dial v.
Gary, supra: "It is the duty of every government to
protect its own citizens, and especially the rights of
creditors, as...
