I concur in the result announced in the opinion formulated by Tustice AVallin. I do not believe, and for the reasons stated by my associate, that these defendants can be heard to say that their principal held the property for which he was charged by the County Court of Grand Forks county in the capacity of testamentary trustee, and not as executor. Nor do I believe that these defendants can assail 1he final order made by said court on any grounds other than fraud, collusion, or want of jurisdiction. They do assail it in this case for want of jurisdiction of the subject-matter. We have nothing before us except the documentary record upon which such final order was based. We must indulge in support of that order every presumption that would be indulged in support of the final judgment of a court of general jurisdiction. Rev. Codes, § 6186. It follows that jurisdiction must be presumed unless the record conclusively shows the want of jurisdiction. I wish to examine that record briefly, because the principal opinion does not clearly disclose the reasons that control my decision.
Catherine L. Wording died testate about March T, 1890, at Racine county, in the state of Wisconsin; she being- domiciled in said county at the time of her death. Bv the terms of her will, one McLaughlin, a resident of Grand Forks county, in this state, was named as sole executor. Such will was duly proved and admitted to probate by the proper court in Racine county, Wis., on May 6. 1890, and bond required. The record does not show whether any bond was given or not, but, as will appear, it does show that the executor proceeded with his duties as such in such court. In due time a copy of the will, with proof of probate thereof, was filed in Grand Forks county, in this state, with the petition of the executor asking that the will be admitted to probate in said county. The petitioner alleged that there was real and personal property belonging to the estate, and situate in this state, of the value of $30,000. Such *448proceedings were had that on May 21, 1890, said will was admitted to probate in said county, the order reciting that there was property of said estate in this state; and on Tuly x, i8go, the bond of said executor in the sum of $60,000, with these defendants as sureties, was duly filed and approved. As these defendants, if liable at all, can only be held for some default in connection with the ancillary executorship, it becomes pertinent to inquire what court, in legal contemplation, and in the absence of special circumstances, had jurisdiction over the personal property of said estate. We get no aid from any inventory, because, so far as this record shows, no inventory was filed in either court. It is conceded that for the purpose of ultimate distribution the domicilary court has exclusive jurisdiction, but denied that such court has exclusive jurisdiction for ordinary administration purposes. I think, however, that the ordinary rule as to personal property should be applied in all such cases, and that the situs of the personalty must follow the domicile of the owner, and I do not think this is changed in the least by the fact that such personal property consists of evidences of debts owing by parties resident in other states. Doolittle v. Lewis, 7 Johns. Ch. 45; Vroom v. Van Horne, 10 Paige, 549; Middlebrook v. Bank, 41 Barb. 481; Parsons v. Lyman, 20 N. Y. 103. And when the domiciliary executor receives a voluntary payment from a debtor in a foreign jurisdiction, no ancillary executor having been appointed in such jurisdiction, the payment so received must go into the account of the domiciliary executor. See cases last cited, and also Baldwin’s Appeal, 81 Pa. St. 441; McCord v. Thompson, 92 Ind. 565; In re Ortiz's Estate, 86 Cal. 306, 24 Pac. Rep. 1054. It does not follow from this that such executor could satisfy a mortgage in a foreign jurisdiction, or assign such mortgage. Another rule that is well settled, and I think universal, is that, when it becomes necessary to go into the courts of a state in order to enforce claims of an estate of one who died domiciled in another state, a domiciliary executor will not be recognized. For this reason the existence of debts in another jurisdiction has always been held sufficient ground for ancillary proceeding. See Schouler, Ex’rs, § 24, and cases cited. And, no doubt, after ancillary proceedings had been had all property coming to the hands of "the ancillary executor as such, whether by voluntary or enforced payment, must be accounted for in the ancillary court. Now, in the case at bar the general jurisdiction of the County Court of Grand Forks county cannot be questioned, nor can it be questioned that there was property belonging to the estate within that jurisdiction. The difficulty lies in excluding the domiciliary court from jurisdiction over airy of the property involved in the final accounting made by the ancillary court. After the approval of the bond and granting of ancillary letters, as hereinbefore stated, the next document that appears in the record is known as “Exhibit 9.” It is an authenticated copy of account filed by the. executor, entitled in the County Court of Racine county, Wisconsin, “In tire *449Matter of the Last Will and Testament of Catherine L. Wording, Deceased.” It bears date October i, 1892. This was more than two years after the issuing of both the domiciliary and ancillary-letters. The account shows notes and accounts on hand, as per itemized list, $16,820.43; cash collected, $13,186.28. It also recites cash, as on hand (at some past statement or accounting, presumably) in the sum of $1,361.82. It also shows disbursements for funeral expenses and sundry investments. As stated, this report was made to the Wisconsin court, and purported, of course, to deal with property received by the executor by virtue of his appointment by such court. Yet there is nothing whatever in the report to show from what source any of this cash was received. It is physically possible that it might have been received in the ancillary jurisdiction after the issuance of the ancillary letters. It is possible, too, that all the notes and accounts mentioned may have been owing by residents within the ancillary jurisdiction. In other words, it is possible that the Wisconsin court had no jurisdiction of anv of the assets set forth in the report. On April 17, 1894, an exemplified copy of this report was filed in the case in the County Court of Grand Forks county. On the same date an exemplified copy of the next report made to the Wisconsin court (Exhibit to) was filed in the County Court of Grand Forks county. This report was filed in the Wisconsin court January 19, 1894, and is of the same general nature as the preceding report, and shows notes and accounts on hand, over $9,000 collected since last report, a number of investments, and claims to the amount of $1,432.91 against the estate paid. Why these reports were filed in both courts is matter of conjecture. It was not possible that both courts should have jurisdiction over the same specific property. The filing in one court or the other was a useless act. True, after the assets in the ancillary jurisdiction had all been reduced to cash, or to a condition proper for distribution, and a final settlement of the estate had in the ancillary jurisdiction, the balance then on hand must be passed to. the domiciliary court for final distribution. Then for the first time does the jurisdiction of that court attach. As I have stated, it is possible that all of this cash and these notes and accounts properly belonged in the ancillary jurisdiction. True, it seems from this last report that the executor had been using cash in his hands to pay claims in the Wisconsin court. But I will presume, in support of this judgment, that in so doing he exceeded his authority. Exhibits ix and T2 are reports of the executor made in the Wisconsin court, and an exemplified copy subsequently filed in the Grand Forks County Court. They do not differ in.their general tenor from the prior reports already mentioned. The next report is Exhibit 14, made in response to the order of the ancillary court, and filed first in that court, and subsequently in the Wisconsin court. It was upon the coming in of this •report that the final order was made. This final order (Exhibit 7), *450after scaling down or disallowing certain investments reported, continues : “ Upon a full hearing of said account, and by the consent of all parties represented, it is ordered, adjudged, and decreed that said account be stated as follows: Said executor shall be chai-ged with assets on hand at last report the sum of,” etc. This clearly shows that this final order was based upon and related to the specific property covered by Exhibit 12, — a report made to and filed originally in the Wisconsin court, and which, in its turn, was based upon preceding reports all made to and originally filed in that court. But all presumptions must be indulged in favor of the validity of this final order. We cannot hold that it was made without jurisdiction unless it conclusively so appears from the record. .In my judgment, it does not so appear, and I do not base this upon the assumption that there may have been evidence dehors the record showing jurisdiction. I think 'the record rebuts anything of that kind. Nor do I base it upon the assent of counsel to the order. That assent could not confer jurisdiction over the res. I base it simply upon the record as herein discussed. The judgment is properly reversed.
(83 N. W. Rep. 875.)