* Headnotes 1. Executors Administrators, 24 C.J., sections 2676, 2695; 2. Courts, 15 C.J., section 655; Executors Administrators, 24 C.J., section 2696; 3. Judgments, 34 C.J., section 1602 (1926 Anno). Judge William C. Marshall, a resident citizen of the state of Missouri, died testate, leaving a last will and testament in which his two daughters were named executrices and sole beneficiaries without bond. It appears that his personal estate was situated in St. Louis, Mo., his real estate in Warren county, Miss., and that his will was *Page 451 admitted to probate in St. Louis, Mo., and his personal estate administered there.
Buckingham Hotel Company is a corporation domiciled in the state of Missouri, and alleges that the decedent, W.C. Marshall, at the time of his death was in debt to it in the sum of one thousand two hundred ninety-three dollars and twenty-five cents. After the will was probated letters of executorship were issued to the two daughters by the probate court of the city of St. Louis, state of Missouri, on the 21st day of May, 1922, and on the 1st day of June, 1922, the notice to creditors in accordance with the laws of Missouri was published for the first time; the last publication of said notice being on June 29, 1922.
On the 1st day of June, 1923, the Buckingham Hotel Company presented its claim for one thousand two hundred ninety-three dollars and twenty-five cents in the probate court of St. Louis, Mo., and thereupon the executrices filed a written motion in the court to strike from the docket of the court this claim, because the claim was not exhibited to the executrices within one year after the granting of letters, nor was the same presented within that time to the court.
The court heard and considered the petition of the executrices and the motion to strike the claim from the docket, and disallowed it because presented too late, entering two orders to the same effect dismissing and disallowing the claim, and adjudging that the Buckingham Hotel Company was entitled to take nothing by their suit. These orders were entered by default; it appearing that the Buckingham Hotel Company did nothing more than present its claim for probate to the court in which the administration was being had in Missouri.
At the time of his death W.C. Marshall, the decedent, was seized and possessed of a tract of land evidently worth twenty-five thousand dollars in Warren county, Mississippi, and his two daughters after his death undertook to convey these lands by warranty deed to the appellee, *Page 452 A. Kimberly, without an administration up to that time of the estate of the decedent in Mississippi. On March 22, 1924, the Buckingham Hotel Company presented an authenticated copy of the will of W.C. Marshall, deceased, as probated in St. Louis, Mo., to the chancery court of Warren county, Miss., alleging that his personal estate had been administered in Missouri, and alleging that the personal estate only amounted to about one thousand five hundred dollars; that the estate in Missouri had not been closed, and prayed that the American Bank Trust Company be appointed administrator de bonis non cum testamento annexo, and on that date the authenticated copy of the will was admitted to probate by the clerk of the chancery court of Warren county, Miss., and the letters as prayed for issued to the American Bank Trust Company; decree being entered on March 24, 1924.
Subsequently Henry, Canizaro Henry, lawyers, filed a motion as amicus curiae, setting up the administration in Missouri, and, in short, alleging that the claim of the Buckingham Hotel Company, having been disallowed in Missouri, was not a claim which could be probated in Mississippi, and that the action of the clerk in granting letters of administration and appointing an administrator should be revoked and annulled because the Buckingham Hotel Company was not a creditor of Marshall's estate; its claim being barred in the state of Missouri.
A. Kimberly, who had purchased the land from the devises under the will, also filed a similar motion, alleging that the Buckingham Hotel Company had undertaken to probate its claim in the state of Missouri, and failed to probate it within one year, and that it was therefore barred, and joined in the motion to revoke the letters.
The Revised Statutes of Missouri relative to the probation of claims against estates of decedents is in the following language:
Section 182, Revised Statutes of Missouri 1919, provides: *Page 453
"All demands not thus exhibited in one year shall be forever barred, saving to infants, persons of unsound mind or imprisoned, and married women one year after the removal of their disability, and said one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published, the first insertion within ten days after letters are granted; and in all other cases said one year shall begin to run from the date of the first insertion of the publication of the said notice. R.S. 1909, section 191, amended Laws 1917, p. 91."
"Sec. 186. Demand to be Presented to the Probate Court, When. — No claimant shall avail himself of the benefit of the preceding section unless he shall exhibit his demand to the administrator in the manner provided by law, for allowance, within one year after the date of granting of the first letters on the estate, or the first insertion of the publication of notice of the grant of such letters as provided for in section 182 of this article, nor unless he shall within the said time also present his said demand to the probate court. R.S. 1909, section 195, amended Laws 1917, p. 98."
The court held that the Buckingham Hotel Company, Inc., was not a creditor of the estate, and ordered that the letters of administration, the order appointing the administrator, and the notice be revoked, annulled, and set aside, and enjoined the bank from doing aught in and concerning the estate of the said W.C. Marshall, deceased. And from that order appeal by the Buckingham Hotel Company is prosecuted here.
The decree of the court below dismissing the proceedings was evidently based upon the idea that the claim of Buckingham Hotel Company, not being provable in and having been rejected by the probate court of Missouri, was barred there, and for that reason barred here, and that our laws of administration would be governed by the laws of the domicile of a nonresident debtor. And it is argued here that the judgment of the court there is *Page 454 conclusive against the Buckingham Hotel Company, and that by comity our courts must recognize and respect the decree of the St. Louis county court as to this claim.
There can be no question in Mississippi that, if there be property situated in the state, the chancery court of the county has the undoubted right to consider and take jurisdiction of the matter of an administrator or of the probation of a will in the county where is situated the real or personal property of the decedent, and this may be done upon the application of a creditor of the estate or of the devisee of the will upon presentation of an authenticated copy of the probation of the will under our statutes.
We do not think it necessary to rehearse and re-examine the authorities, because really that proposition is not challenged by appellee in this cause. The real question presented for decision here is: If a claim against the estate of a deceased testator be barred in the state of Missouri, the domicile, because it was not presented for allowance within the statutory time fixed by the probate laws of that state, and judgment is entered there accordingly, will the bar of the state of decedent's domicile preclude that creditor from having an administration of the estate here in this state and presenting his claim for probate?
Under the laws of Mississippi the real estate therein of a decedent descends and is distributed and is administered under Mississippi laws, regardless of other administrations in other states, and regardless of whether or not the domicile of the deceased was in this state. It appears from this record that all of the real estate of W.C. Marshall, deceased, was in Mississippi.
We have no hesitancy in saying that this question has been set at rest by our court for a long time. We quote with approval, as controlling, the case of Carroll v. McPike, 53 Miss. at page 569:
"Abram McPike, a citizen of Missouri, died, leaving real and personal property in this state. Letters of administration *Page 455 on his estate were granted in this state and in Missouri. Jacob Carroll, a citizen of Texas, and claim to be a creditor of the decedent, instituted his action in the circuit court of Hinds county, to enforce this claim against H.C. McPike, the Mississippi administrator of the estate of said decedent. The circuit court denied the right of the plaintiff to maintain his action because he was a citizen of Texas; . . . and the decedent was domiciled in Missouri, where administration of his estate had been granted, and therefore the plaintiff must sue in the courts of the domicile of the decedent. . . .
"The general doctrine, as declared by Story, in Conflict of Laws, section 518, is that an administration in any other country than that of the domicile of the deceased is treated as in its nature ancillary merely to that in the country of the domicile, because `the final distribution of his effects among his heirs or distributees is to be decided by the law of his domicile.' This reason wholly fails in its application to this state, and the doctrine built on it is entirely subverted, by our statute, declaring that personal property situated in this state shall descend and be distributed according to the laws of this state, notwithstanding the domicile of deceased may have been in another state. Code, section 1950. In this state administration of the effects here of a deceased person, no matter where his domicile was, is independent of all other administrations, and to be conducted in all respects as if the decedent had been a citizen of this state when he died. Debts are to be paid according to the assets, and any surplus is to be distributed here. All creditors, no matter where residing, nor where the debts were contracted, are entitled to prove their claims here, and proceed in our courts to enforce them, and to share in the assets here. There may be inconveniences, and sometimes hardships, resulting from this doctrine; but it plainly results from our system, as established by statutes, and we cannot shrink from declaring it, whatever may be the consequence. Whether, in case of payment of *Page 456 all debts proved against the estate here, an application to the proper chancery court by the administrator of the decedent in the state of his domicile, representing the necessity for the surplus of assets here to be used in the state of the domicile of the decedent for the payment of debts proved there, it would be proper to grant such application, and order the transmission of such surplus to the administration of the domicile, is a question not now presented or decided."
Judge CAMPBELL spoke in no uncertain terms when he declared that all creditors, no matter where residing, were entitled to prove their claims here no matter where the debts were contracted. This case was approved in Bolton v. Barnett,131 Miss. 802, 95 So. 721, where it is held: "In this state the administration of the estate of a decedent person, no matter where his domicile was, is independent of all other administrations, and is to be conducted in all respects as if the decedent had been a citizen of this state when he died."
If we are to give effect to the very positive language of the distinguished judges who wrote the two opinions quoted supra, we are compelled to hold that under the Mississippi statutes an administration in this state is not ancillary to an administration in any other state where real estate or personal property is located here, and the law of the domicile does not control our statute in the administration of an estate of which the courts of our state have jurisdiction, but they are administered in all respects as though there were no other administration.
Counsel for appellee insists that we must preserve the comity of courts, which we do not think is involved here for the reason that as to real estate especially it has always been the law that immovable property is exclusively subject to the laws of the country in which it is located, and this has been zealously and jealously guarded. Other states are excluded when it comes to the disposition of the title to real property, and lex loci reisitae is invoked to prescribe the mode for establishing the muniment of title to said lands. *Page 457
Judge CAMPBELL points out that our statute is in conflict with Story as to movable property, and cites Story's quotation, which quotation is the very basis of appellee's contention here. We are constrained to believe that a mere dismissal by the court, of the domicile of the decedent, of a claim presented for probate is not a bar to its presentation here, and the administration proceeds in this state independent of and without regard to the administration of an estate in another state, even though it be the domicile of the decedent.
The case of Wilson v. Hartford Fire Insurance Co., 164 F. 817, 90 C.C.A. 593, 19 L.R.A. (N.S.) 553, passes directly upon this point, if it were necessary to look to other jurisdictions for authority.
The statute of limitation as to the probation of claims in Missouri cannot effectually bar the probation of a claim and the administration of an estate upon property of the decedent, movable or immovable, in the state of Mississippi. The statute of limitations of Missouri may and does extinguish the right within its borders, but we fail to see how such judgment of the probate court of the state of Missouri could be invoked extraterritorially in aid of a title to real estate in Mississippi, and only the statutes of limitation of our own state can be invoked as against a creditor undertaking to proceed against real or personal property situated in this state.
We cannot agree with counsel for appellee that there is any merit in the contention that there is any violation of the spirit or of the letter of the Constitution relative to comity of courts in the several states, but plant ourselves upon the well-known principle that each sovereign controls the transfer and manner of establishing muniments of title within its borders, and our statutes have declared that estates of decedents shall be administered independently, and our courts have but enforced our statutes; the statutes and decisions being based upon sound reasoning and calculated to carefully guard the estates of all persons, we do not feel warranted in disturbing *Page 458 the rule as it has existed in Mississippi for many years.
Counsel for appellee insist that the dismissal of the claim of the Hotel Company in Missouri operates as a bar here because of article 4, section 1, of the Constitution of the United States — the full faith and credit clause thereof. The property sought to be administered was not and could not have been administered under the laws of Missouri, being immovably fixed within the borders of this state.
Counsel cites the case, the only one, he says, with a similar state of facts which he has been able to find, of Tilt v.Kelsey, 207 U.S. 43, 28 S.Ct. 1, 52 L.Ed. 95, the last syllabus of which is as follows:
"Where the decree of the probate court is final and bars all persons having claims against the estate, the courts of another state must, under the full faith and credit clause of the Federal Constitution, give similar force and effect to such a decree, when rendered by a court having jurisdiction to probate the will and administer the estate, and held that such a final decree in New Jersey was a bar in the courts of another state against the taxing authorities of the latter state attempting to enforce a claim for inheritance tax on the ground that the testator was at the time of his death domiciled therein."
The syllabus immediately preceding that is also interesting, and we set it out here without comment: "In respect to the settlement of successions to property on death, the states are sovereign and may give to their courts the authority to determine finally as against all the world all questions which arise therein, subject to applicable constitutional limitations."
Mr. Justice MOODY, in the case supra, very conclusively shows that the syllabus first quoted does not accurately present the question decided by the court. The last two paragraphs of that opinion are as follows:
"It is quite obvious that what was done here was the assessment by one state of taxes upon transfers of personal *Page 459 property, taking effect under the laws of another state, entirely regardless of the situs of the property transferred. This suggests grave constitutional questions, which we cannot consider because they were not properly and seasonably raised in the court below.
"For the foregoing reasons we think that the judgment below denied to the New Jersey proceedings the full faith and credit to which they were entitled by the Constitution and laws of the United States, and accordingly it is reversed."
It will be noted that the state of New York was undertaking to administer the same property under the guise of want of jurisdiction on the part of the courts of New Jersey, and the courts of New Jersey having determined the matters involved in the controversy as to the res and as to the persons, and the jurisdictional attack being a mere pretense, of course the court held that the court first acquiring jurisdiction could not be ousted. Having fully determined all the matters involved in the controversy, even though the New York courts undertook to administer for purposes of taxation, the court very conclusively shows that there was no serious attack upon the jurisdiction of the New Jersey court — not at all on all fours with the instant case.
We think that the effect of the court order dismissing the Buckingham Hotel Company's claim would be no more binding upon this court than the statute of Missouri. See 24 C.J. p. 319:
"Effect of Foreign Statute. — Where decedent left property within the state, the claim of a resident of the state, so far as such property is concerned, is not affected by a statute of another state, where administration is had barring claims for nonpresentation."
The note to this statement of the text cites the case ofLipperd v. Lipperd, which note is embraced in the fourth instruction. See 181 Mo. App. 106, 163 S.W. 940.
The rejection of the Hotel Company's claim in Missouri because it was not presented in time under the *Page 460 probate laws of that state was not a judgment affecting property in this state which is subject to administration under the laws of this state.
In the brief filed in the case of Carroll v. McPike, supra, in discussing our statutes as to descent and distribution of personal property, Messrs. Harris and George urged upon the court at that time that this statute could not apply to creditors, and used this language:
"It [speaking of the court] makes an innovation of the common-law rule, which directed the descent and distribution of personalty according to the laws of the testator's domicile. The legislature repealed the rule of comity to this extent, that as to property here the state would determine for itself who were to be the successors of all property, real and personal, within its limits. The statute puts the succession to personalty exactly on the same footing as realty. The statute effects a great change on this subject. Manifestly, the legislature intended, as to the property situated here, to determine and fix who are to succeed to it, so far as heirs and distributees are concerned; but they went no farther. They made no provision as to creditors."
But Mr. Justice CAMPBELL thought otherwise, as herein quoted above. So that we do not think the question here presented involves the full faith and credit due clause of the Constitution, but rather think the Tilt v. Kelsey case as a whole strengthens the decision announced here as the law of Mississippi.
The decree of the court below will be reversed and the cause will be remanded, for the purpose of proceeding with the orderly administration of this estate.
Reversed and remanded. *Page 461