dissenting.
The first question naturally presented is the right of the railway company to maintain the proceeding. We have just decided (Bradley v. Missouri P. R. Co., 51 Neb., 653), following prior decisions of this court, that where want of jurisdiction does not affirmatively appear from the record of the county court, the appointment of an administrator may not be collaterally attacked. From this it logically follows, and to the writer’s mind it necessarily follows, that a person sued by one claiming to be an administrator may be heard in a direct proceeding in the probate court to move to revoke the letters for want of jurisdiction to grant them. It certainly seems that a defenclant in any action must at some time and in some manner be permitted to question the capacity of the plaintiff to maintain the action against him. To hold that he may not do so collaterally in the suit against him and to also hold that he may not be heard in a direct proceeding for such a purpose, is to deny him all remedy and to the extent of that issue all protection of the law. Our *608statute does not provide in terms who may be heard to resist the appointment of an administrator or to move to revoke the same; but it does provide that “in all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment or decree of the county court to the district court by any person against whom any such order, judgment or decree may be made, or who may be affected thereby.” (Compiled Statutes, ch. 20, sec. 42.) Surely one who may appeal not only may, but must, as a foundation for the exercise of that right, be heard in the court of original jurisdiction to contest the order appealed from. Our statute is in this respect broad, and is to be distinguished from those which confine opposition in such matters to “persons interested in the estate,” or “persons aggrieved by the order.” A person interested in the estate is one entitled to or claiming some portion thereof. A person aggrieved by an order is in effect a person against whom such order has been made. Our statute uses the latter language and then extends the right to appeal to all persons who may be affected by the order. One who has been sued by a person whose sole right to maintain the action is based upon the order is certainly in any just sense of the term “affected thereby.” The following cases directly sustain the view we have indicated: person aggrieved,” and Penniman v. French, 2 Mass., 140, and Swan v. Picquet, 3 Pick. [Mass.], 443, are based entirely on a construction of that statute. Moreover, in Massachusetts the authority of the administrator may be collaterally attacked in a suit brought by him, on the ground of want of jurisdiction to grant the letters. (Emery v. Hildreth, 2 Gray [Mass.], 228; Holyoke v. Haskins, 9 Pick. [Mass.], 259.) Labor v. Nichols, 23 Mich., 310, was *609founded and decided upon the same statute as existed in Massachusetts, and related to an appeal from the allowance of the account of an administrator. There was no question of the validity of his appointment. The appellant was interested only to the extent of a legacy of $10, which the order complained of ordered paid. He certainly could not appeal because the order gave him all that he claimed. White v. Spaulding, 50 Mich., 22, was a case where the decedent was domiciled in Massachusetts, and administration had been there granted. The widow resided in Massachusetts, but asked to have an ancillary administration in Michigan revoked. The application was not based on any claim of want of authority to grant the letters, and it was not shown that the widow had any interest whatever in any of the Michigan property. In Augusta & S. R. Co. v. Peacock, 56 Ga., 146, a case somewhat like the present, no suit had been begun by the administrator, and it was merely held that a person who simply apprehended that the administrator would sue him had no standing to ask his removal. Moreover, in Georgia also, the defendant in such an action may attack the authority of the administrator collaterally. (Griffith v. Wright, 18 Ga., 173.) In Drexel v. Berney, 1 Dem. [N. Y.], 163, the decision was based entirely on a construction of a statute confining the right to be heard to creditors “or persons interested in the estate,” and another statute defined “persons interested” as those entitled either absolutely or contingently to a share in the estate. The court held that the statute was exclusive and did not permit a debtor to contest. Chicago, B. & Q. R. Co., v. Gould, 64 Ia., 343, was based upon a similar statute.
A sufficient reason for sustaining the right of the railway company to maintain this proceeding is derived from the fact that if, as is claimed, the county court of Otoe county was without jurisdiction in the premises and'the grant of administration was void, then a judgment for or against the.railway company in the damage suit would *610be no bar to an action by the lawful administrator. (Jeffersonville R. Co. v. Swayne, supra; McChord v. Fisher's Heirs, 13 B. Mon. [Ky.], 193.) In opposition to this view Judge Norval cites Roderigas v. East River Savings Institution, 63 N. Y., 460, and Chicago, B. & Q. R. Co. v. Gould, 64 Ia., 343. The New York case was one where a man had been long absent aud his mother made proof of Ms death and took out letters of administration on the faith of which the bank paid her a deposit of the supposed decedent. In fact, however, the man was alive. He died several years later, and administration was granted to his widow, who sued the bank,for the deposit. It was held by a bare majority of the court that the bank was protected in its payment to the false administratrix. It is unnecessary here to comment at large on tMs class of cases. To the winter it seems that they are founded upon a confusion of ideas between jurisdiction depending upon the fact of death, or supposed proof of death. The idea that a man’s property may be confiscated and distributed in his lifetime, and he forbidden to reclaim it by virtue of the fiction that the record of his death imports verity, and that he cannot as against it assert his own existence, is absurd to the reason and abhorrent to the conscience. The Iowa case we have already noticed begs the whole question by assuming that the grant of administration was voidable only and not void, because the railroad company attacked it directly instead of collaterally. Assuming that the appointment was voidable, it rightly holds that the administrator was one de facto, whose acts bound the estate until Ms authority should be revoked. How carélessly this case was considered is shown by the authorities it cites in support of its position. Mutual Life Ins. Co. v. Tisdale, 91 U. S., 238, held that in an action against a life insurance company on a policy the letters of administration upon the estate of the insured were not competent evidence of his death. It decided nothing else. Cocke v. Halsey, 16 Pet. [U. S.], 71, held that the decision of a court acting within its juris*611diction is binding until reversed. Belden v. Meeker, 47 N. Y., 307, held merely that letters of administration are sufficient prima facie to establish the capacity of the plaintiff to maintain an action as administrator as against a general denial in the answer. The other cases cited held that the acts of an administrator bind the estate when his appointment was erroneous or voidable merely, and distinguish between that ease and a void administration. Herein, indeed, lies the distinction. If the county court of Otoe county was without jurisdiction the grant of administration was absolutely void, and not merely voidable.
This brings us to the question decided by the county court — the validity of the appointment. The statute provides (Compiled Statutes, ch. 23, sec. 177): “When any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant or resident at the time of his death. If such deceased person, at the time of death, resided in any other territory, state, or county, leaving estate to be administered in this state, administration thereof shall be granted by the probate court óf any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the probate court of every other county.” It will be observed that there is a double foundation for the jurisdiction of a county court in such matters. A general jurisdiction is conferred to grant letters of administration where the deceased was an inhabitant or resident of the county at the time of his death. There is a further grant of power in cases where the decedent was not such an inhabitant or resident, but where he left estate in the county to be administered. Under the conceded facts Myers was not an inhabitant or resident of Otoe county or of the state of Nebraska. Therefore the administration must be founded upon his leaving *612estate in Otoe county to be administered. There is in the transcript what purports to be a bill of exceptions, containing the evidence on which the county court acted, and it is claimed that this evidence discloses that he left a pocket-knife and a suit of clothes in addition to the articles described in the finding of the county court. At the time of the proceeding there was no authority to allow a bill of exceptions in such a case. (Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb., 520.) But even if we might look into this evidence it does not disclose that the judgment of the county court was wrong in failing to find that he left any such property. Lewis was killed in a railroad wreck at Nebraska City. The suit of clothes was that which he wore at the time of the accident. The coroner testified that they were so injured as to be wholly without value. As to the knife, the evidence relates simply to a knife which he customarily carried. It was not found, and we hardly think that a county court would be justified in granting administration for the purpose of authorizing some one to search for a pocket-knife in the wreck of a railroad train; and administration so granted would have a very slender foundation if the knife should not be found. We therefore accept the finding of the county court that he left as his estate a pocket-book, $4 in money, and the right of action against the railway company. Were these, or any of them, “estate to be administered” within the meaning of the statute? As to the articles of personal property, the finding is that the $4 and pocket-book were at once sent to the widow at Kansas City, and that they did not come into the possession of the administrator until the day the order complained of was made. Administration partakes largely of the nature of proceedings in rem, and personal property may have in some cases a definite situs, but ordinarily it follows the person, and its situs is his domicile. If the property had remained in Otoe county, it may be that it would be sufficient whereon to found, administration in that county, because we quite agree with counsel for the administrator *613in their contention that in the absence of a statutory limitation the courts cannot grant or refuse administration merely because of the value of the estate to be administered, and whether the property is subject to the payment of debts, or, on the other hand, certain to be entirely consumed by the widow’s allowance, does not affect the jurisdiction. In either event it must be administered. But before application was made for the appointment of the administrator the property had been delivered to the widow in Kansas City, Missouri. At the time administration was granted it was not in Otoe county. The widow was not there. There was neither property within reach of the administrator in that county nor a right of action other than the personal injury case which could there be prosecuted. What the estate had, if anything, was a transitory cause of action for the conversion of the property, or to replevy it, and this action must-be brought not in Otoe county, but where the property could be reached, or where the widow could be served with summons, to-wit, in Missouri. Where a decedent left personal property in New York which was reduced to possession by the domiciliary executor and removed from the state, it was held that the fact that the property was in New York at the time of the decedent’s death did not confer jurisdiction upon the courts of that state. (Townsend v. Pell, 3 Dem. [N. Y.], 367.) It must be conceded that the right of property in an administrator vests by relation from the death of the decedent. It is because of this rule that the widow, had she refused to deliver the property to the administrator, would be liable in an action of trover; but it does not follow that the law establishes any fiction whereby property in a county at the time of the decedent’s death is held to remain there, notwithstanding the fact of its removal. It is true that it is not for all purposes that personal property has its situs at the place of domicile; but when this is not true it is because the fiction yields to the fact when necessary to enable the court to obtain effective jurisdic*614tion. As said by the supreme court of Mississippi, speaking to this point: “Personal property, whether of a tangible or an intangible character, is considered as located, for the purposes of administration, in the territory of that state whose laws must furnish the remedies for its reduction to possession. * * * F0r the purposes of administration, therefore, personal property is situated in that state in which it is found.” (Speed v. Kelly, 59 Miss., 47.) The object, therefore, of departing from the fiction that personal property follows the domicile is to secure possession of the property, and the general rule should not be departed from for the purpose of founding a jurisdiction where the property cannot be obtained. Again, there can be no reason for departing from the general rule with regard to such articles of apparel of strictly personal use as the decedent habitually carries upon his person. The personal property which has its situs at a place other than the domicile is property of a substantive nature having no fixed connection with the person of the owner. We have never heard until this case arose that the clothing on a man’s back, the small coin in his pocket, and the trifling articles which he habitually carries upon his person, can give jurisdiction to administer his estate to the courts of a foreign state in which he happens to be traveling at the time of his death.
The most serious question is whether the cause .of action under Lord Campbell’s Act was sufficient to sustain the jurisdiction of the county court. On this the authorities are conflicting. It is contended that the question has been settled in this state in favor of the jurisdiction, and on this point we are cited to Burlington & M. R. R. Co. v. Crockett, 17 Neb., 570, and Missouri P. R. Co. v. Lewis, 24 Neb., 848. Neither of these cases determines the question. In the first what was decided was that a petition in order, to show a cause of action under Lord Campbell’s Act must disclose that there was a widow or next of kin entitled to the beneficial interest in the judgment. In the second case an administrator had been *615appointed in Washington connty in this state. The decedent met his death in Kansas, and this court held, folloAving Dennick v. Central R. Co., 103 U. S., 11, that where the statute of one state gives a right of action for injuries causing death, an administrator appointed in another state may thhre maintain the action, the proceeds to be distributed according to the law of the state where the wrongful act was committed. It was incidentally held that inasmuch as the statute gives a right of action to the administrator, it follows that administration may be granted for the purpose of maintaining the action. But nothing was said as to the forum. It appears by clear inference that the administratrix in that case had been appointed in the county of the decedent’s domicile, so that jurisdiction existed by virtue of the first clause of section 177, ch. 23, already quoted. The authority of this case is rather in favor of an action brought in Missouri by an administrator there appointed, than in favor of an action brought in the connty where the accident occurred. The question is therefore an open one in this state, and the authorities elsewhere are so conflicting that we feel at liberty to adopt that view which seems best supported by principle. (See, for instance, in favor of the contention of the railway company, Jeffersonville R. Co. v. Swayne, 26 Ind., 477, and Perry v. St. Joseph & W. R. Co., 29 Kan., 420; and as entirely supporting the contention of the administrator, Hutchins v. St. Paul, M. & M. R. Co., 44 Minn., 5.) All the authorities agree that a cause of action under Lord Campbell’s Act is transitory in its nature; although, until the decision of Dennick v. Central R. Co., supra, there was a conflict as to whether the statute could be enforced outside of the state enacting it. We feel bound by the decision in Missouri P. R. Co. v. Lewis, supra, to hold that such a cause of action is sufficient to warrant the granting of letters of administration, although the proceeds of the action are not to be distributed according • to the usual course. But it does not follow from this conclusion that such a cause *616of action has its situs in the place where the injuries were inflicted or where death occurred, so as alone to justify administration in that county, where it is not the county of which the decedent was an inhabitant or resident. Conceding the full force of the Lewis case, it merely places such a cause of action on the same foundation as any other transitory cause of action. If such a cause has its situs in any place it would be the domicile of the plaintiff or that of the defendant, and not the county where the facts occurred creating the cause of action. In some states it has been held that a transitory cause of action against a resident of a county constitutes assets or estate in that county for the purposes of administration. But in those states the law does not permit a foreign administrator to sue. (Pinney v. McGregory, 102 Mass., 186; Maysville Street R. & T. Co. v. Marvin, 59 Fed. Rep., 91; Brown v. Louisville & N. R. Co., 30 S. W. Rep. [Ky.J, 639.) We think that such a state of affairs might fix the situs of a debt in such a manner that administration must be granted where it can be reached. But our statute provides that "An executor or administrator duly appointed in any other state or county may commence and prosecute any action or suit in any court in this state in his capacity of executor or administrator, in like manner, and under like restrictions, as a non-resident may be permitted to sue.” (Compiled Statutes, ch. 23, sec. 337.) This language is very broad, and confers complete power upon a foreign administrator to maintain any action, subject only to the same requirements as exist in cases of other non-residents. In answer to this argument, the administrator contends that the law of Missouri would not permit a Missouri administrator to maintain such an action. But to this there are two answers. The law of Missouri does not appear in this record, and it will therefore be presumed to be the same as our own. (Chapman v. Brewer, 43 Neb., 890.) Again, it does not follow that the limitations upon an administrator’s authority in Missouri would apply in an action *617brought by him in this state under Lord Campbell’s Act, and if such limitations would apply, it would seem that the defect is one arising from the laws of Missouri and which this state would be without power to remedy. We cannot see that the fact that the injuries were inflicted or that death resulted in Otoe county tend in any way to localize the cause of action. Indeed, all the authorities are to the contrary.
Post, C. J., Ryan and Ragan, CC., concur in the foregoing dissenting opinion.