On Motion for Rehearing.
The right of the appellee to recover in this case depends upon the existence of some form of privity between the Oklahoma executor and the estate being administered by the appellant in Texas. The legal services which constitute the basis of this claim were rendered in the state of Oklahoma at the instance of the executor, and in assisting him in the performance of his administrative duties in that state. Assuming that those services were such hs might be made a charge against the estate of the decedent in the state where rendered, the debt was primarily due to the executor, who controlled the estate, for he became personally responsible to his attorney for the payment of the fee; and upon that liability is founded the right of the executor to reimburse himself out of the funds in his hands. The legal right of the appellee to personally present and collect his fee out of the estate results from a situation which entitles him to be subrogated to the executor’s right to reimbursement. The validity of ap-pellee’s claim against the estate, therefore, depends upon the existence of a valid and enforceable claim for the same debt in favor of the executor. Hence the attitude of the appellee in this proceeding* is no better, and his debt is entitled to no more consideration, than the executor might claim had the latter paid the debt out of his own private funds and were now seeking reimbursement. The question, then, is, what form of privity exists between the executor in Oklahoma and the estate in the hands of the appellant in Texas? There are only two grounds upon which privity may be claimed: (1) That the property in Texas comes within the range of the trusteeship of the Oklahoma executor, and the debt is a part of the expenses incurred by him in performing his administrative duties, or (2) that the appellee, or the executor whom he served, occupies the position of a general creditor of the estate. As the basis of his argument in the motion for a rehearing .the appellee asserts the following proposition:
“Under the law as applied to the facts of this case, the estate of Samuel Bailey in Oklahoma and in Texas constitute a single estate, and the Oklahoma executor, upon the probate of the will, became invested with the title to the estate in Oklahoma, and the right to the possession of the personal estate in Texas, subject only to satisfaction of Texas creditors.”
This is not our view of the law. Under the provisions of our statute (article 3235), when a person possessed of an estate dies leaving a will, the title to his property vests in his legatees; and if he dies intestate the title vests in his heirs at law, subject to the claims of creditors, and to the right of possession by a duly appointed executor or administrator. Presumably the laws of Oklahoma are the same as ours upon that subject. The right of possession of the legal representative, however, entitles him to the custody and control of only that portion of the estate which is situated within the state of his appointment. The appellee quotes at length from Schouler on Wills, vol. 2, pp. 1142-47. After stating the general duties of an executor in disposing of notes and securities payable abroad and the diligence required of him to prevent loss, the author referred to says:
“And so, too, if he (the executor) may enforce the demand against the debtor without resort to the foreign jurisdiction. If, however, foreign letters and an ancillary appointment at the situs be needful or prudent in order to make title and to realize and collect such assets, the principal representative should perform the *953ancillary trust or have another perform it, observing due diligence and fidelity according as the laws of the foreign jurisdiction may permit of such a course; and if in accordance with those foreign laws a surplus be transmitted to the principal and domiciliary representative, or otherwise transferred so as to be held by him in such capacity for payment and distribution, he will become liable for it accordingly. Whether, then, the principal or domiciliary representative be required pro forma or not to include in his inventory assets which come to his knowledge, either situated in the state or country of principal and domiciliary jurisdiction or out of it, his "liability as to assets of the latter sort depend somewhat upon his means of procuring them and the fact of an ancillary administration in the situs of such assets. In any case he is bound to take reasonable means under the circumstances for collecting and realizing the assets out of his jurisdiction; 'nor is his liability a fixed and absolute one, but dependent upon his conduct; it is getting the foreign assets into his active control that makes a domestic representative chargeable as for the property or its proceeds rather than the duty of pursuing and recovering such assets.”
The above appears to be the author’s view of the common-law rule regarding the moral and legal duties of an executor towards foreign assets of his decedent. The closing sentence quoted indicates the conclusion that no legal liability on the part of the executor arises till he gets actual possession of the foreign assets. The test of privity in this case is, did the executor acquire any power over the assets in Texas by virtue of his appointment in the state of Oklahoma? not the power he might have acquired by seeking and securing an appointment in the state of Texas. His trusteeship is to be measured by the property which that appointment put under his dominion. In the case of Jones v. Jones, 15 Tex. 464, 65 Am. Dec. 174, our Supreme Court quotes approvingly the following language :
“Did an administrator represent the person of the intestate without qualification or restriction, the plaintiff’s argument would be uncontro-vertible. But it is clear that his commission extends only to assets of which the ordinary had jurisdiction; and it constitutes him a representative of the intestate no further than as regards the administration of those particular assets. His power is but coextensive with that of him from whom it is derived; and it is consequently incompetent, directly or indirectly, to affect assets which belong to another jurisdiction.”
In Alexander on Wills (a recent work), vol. 3, p. 2105, the following is stated by the author as the substance of the judicial holdings on this subject;
“The principle is well settled that the power and authority of an executor or administrator over the estate of a decedent is confined to the sovereignty by virtue of whose laws he is appointed.” .
Judge .Storey in his work on the Conflict of Laws says:
“It is exceedingly clear that a probate grant of letters testamentary or of letters of. administration in one country give authority to collect the assets of the testator or intestate only in that country, and do not extend to the collection of assets in foreign countries; for that would be to assume an extraterritorial jurisdiction or authority, and to usurp the functions of the foreign local tribunal in that matter. It is no answer to say that the effects of the testator or intestate are assets wherever they are situated, whether at home or abroad. * * * This question is, not whether they are assets or not, but who is clothed with authority to administer them; and this must be decided by the local jurisdiction where they are situated, for the original administration has no extraterritorial operation.”
That doctrine is fully supported by the following cases: Davis v. Phillips, 32 Tex. 564; Simpson v. Poster, 46 Tex. 618; Terrell v. Crane, 55 Tex. 81; Webster v. Clark, 100 Tex. 333, 99 S. W. 1019; Clarke v. Webster, 94 S. W. 1088; In re Estate of Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648; 11 R. C. L. pp. 439 and 531, and cases, referred to in notes. It is true that in some instances it has been held that the executor or the administrator of the domicile may receive money from a foreign debtor in payment of the debt, and that his receipt will operate as a legal discharge of the obligation. He may also receive for administration in his own state personal property situated in a foreign state which is voluntarily delivered to him. But these rights are recognized only so long as there is no ancillary administration at the situs of the personal property, or in the state where the debtor resides. 11 R. C. L. p. 434, and cases referred to in the notes.
Whatever powers an executor or administrator appointed in one state may exercise over property situated in another state is governed by the laws of the latter state on that subject. Each state has the absolute power to control the administration of the property of decedents situated within its own borders. Our laws do not confer upon one holding a foreign appointment as executor or administrator authority to perform any official act in this state, either in controlling property belonging to the áecedent, or in forcibly collecting debts due the estate.
The only recognition accorded to such rei resentatives by our statute is a preference in receiving an appointment in this state when application is made therefor in order to get possession of property situated within our borders. Articles 3289, 3290, Rev. Civ. Stat. But that preference is not administrative power; it is a mere privilege to be invoked when the power is applied for. The power must come from the appointment by *954tlie proper tribunal in this state and a Qualification of the appointee according, to our local law. As held in the case of Webster v. Clark, above referred to, even the recording of a foreign will in Texas confers upon the party named therein as executor no authority to act as such with reference to. property of the decedent in this state.
Prom the rules stated and the authorities cited it logically follows that the property of Samuel Bailey situated in Texas has never been brought within the range of the trusteeship of the Oklahoma executor. The common-law rule which allows the ancillary administrator, after satisfying all local demands of creditors, to pay the residue over to the domiciliary representative of the estate, is not an absolute requirement, but is founded upon a- comity which the court of the situs has the discretion to ignore. Gaines’ Succession, 46 La. Ann. 252, 14 South. 602, 49 Am. St. Rep. 324; Lawrence v. Kitteridge, 21 Conn. 577, 56 Am. Dec. 385; Andrews v. Avory, 14 Grat. (Va.) 229, 73 Am. Dec. 355; 11 R. C. L. pp. 441-2. The term “ancillary,” when applied to administrations, is not to be taken as signifying a supplemental administration in the sense that it is a part of, and connected with, the principal administration in the state of the domicile. While the term is used to designate an administration in a state other than the domicile of the decedent, it implies no privity or official connection between the two. An ancillary administration may be commenced and conducted to close, and final distribution of the estate made, whether an administration exists in the state of the domicile or not, and without reference to those proceedings. Green v. Rugely, 23 Tex. 539.
The next question is, does the appellee in this ease, or would the Oklahoma executor had the latter paid the debt, occupy the attitude of a creditor towards the estate in Texas? The contention that the estate of Samuel Bailey should be regarded as an entirety and indivisible, although situated in two different jurisdictions, is correct only in a qualified sense. As to the creditors of the decedent and the distributees entitled to the net residue, the estate should be treated as an entirety. But, as we have seen, for the purposes of administration it is divisible into as many distinct parts as there are states or countries over which the assets may be distributed. The appellee is not a creditor of the decedent, but of the legal representative who controlled the property of the decedent in the state of Oklahoma. His debt does not grow out of any service rendered to the decedent, or the estate generally, but results from legal assistance rendered to the Oklahoma executor in securing the probate of the will in that state. The claim, if allowed in that jurisdiction, would doubtless be classed as a necessary part of the expenses of that administration. Under the common-law rule it would be treated as an essential part of the expenses of executing the trust in that particular jurisdiction, and an equitable lien would exist in favor of the trustee for reimbursement against the trust funds that passed through, his hands. But this lien extends only to the funds that have been, or are at the time reimbursement is sought, under the supervision and control of the trustee.
After a diligent search we have failed to find any authority for the proposition that one trustee may claim reimbursement for the expenses of executing his trust from the funds in the hands of another trustee controlling property derived from the same grantor. The debt and the right of satisfaction, in the manner stated above, grow out of the peculiar relations existing between the trustee and the trust property, and it would be illogical to say that the debt may be satisfied out of property not subject to that relationship. Under both the common law and our statute the expenses of executing such trusts as this constitute a preference claim against the estate, inferior only to claims for funeral expenses and the expenses of the last sickness of the decedent. A situation in which the entire trust property, when properly managed, is absorbed in paying only a part of these preferred claims, is' so unusual and improbable that the law seems not to have contemplated that such a contingency would arise, and has made no provision therefor, unless it be in imposing a personal liability for the deficit upon the beneficiary of the trust. Our statutory provisions for the payment of the expenses of administrations clearly apply to those conducted in this state and under the direction of our courts.
But it is contended that in this instance the appellee performed a special service in securing the probate of the will in Oklahoma, which affected beneficially all of the property of the testator wherever situated, and for that reason the liability of the estate for the payment of his claim, whether presented by him or by the executor, should be equally as extensive. The argument is plausible, but is it sound? It was the duty of Hamilton, the party named in the will as executor, to propound that instrument for probate and to resist whatever contest was interposed by the heirs at law. He was also justified in employing the legal services of an attorney to assist him in the performance of that duty, and was authorized to bind the estate in Oklahoma for the payment of a reasonable attorney’s fee; but did he have the power to also bind the estate in Texas? The only practical effect upon the property in Texas of probating the will in Oklahoma was in designating who should be the distributee of the surplus after the payment of all legitimate claims. To that ex*955tent the Oklahoma executor and his attorney performed services which operated upon the Texas property. That result, however, came as a mere incident to the execution of the trust in Oklahoma, and not as one of the purposes of that undertaking. The existence of an estate in Texas added nothing to the labors of the Oklahoma executor or of his attorney, or to the expenses of that proceeding. These would have been the same, and the same legal duty would have rested upon the executor to probate the will, had there been no property outside of the state of Oklahoma.
.Attorney’s fees incurred in probating the will, if allowed by statute, are in the same class with debts for other expenses and attorney’s fees occurring in the course of the administration, which are provided for in article 3623. The fact that this claim is founded upon services rendered in probating the will entitles it to no more consideration, and gives it no broader scope for satisfaction, than would belong to a claim growing out of legal services for the exclusive benefit of the Oklahoma property rendered in the course of that administration. If the Texas property, therefore, can legally be burdened with this debt, it may with equal propriety be made to pay all of the expenses of the Oklahoma administration, whether they consisted of attorney’s fees for the exclusive benefit of thfe Oklahoma property, or the cost of supplies furnished the executor in carrying on an Oklahoma plantation, or for his commissions for administering upon the property in Oklahoma. All such claims stand upon the same legal plane, and are entitled to equal consideration, in determining the range of liability for their payment. We know of no principal of law, either statutory or common, which would burden the estate being administered in one jurisdiction with the expenses of an administration conducted by a different legal representative in another jurisdiction.
It is also contended that, since the Oklahoma executor is authorized by our statute to apply for and receive the appointment as administrator in this state, it was his duty to take the legal steps required, and thus secure the possession of all the property belonging to the estate. It is alleged that his failure to do so was a part of a scheme adopted to defeat the payment of the appellee’s claim out of the funds of the estate. Conceding that the charge of fraud on the part of the executor is true, does the existence of his evil motive change the attitude of the appel-lee toward the Texas property? If the fact of failure by the executor to receive the Texas appointment prevents the privity necessary to enable the latter to resort to the Texas property for the payment of the expenses of his administration, his notice is immaterial. There is no law which requires a foreign executor to seek an appointment in this state. If he fails to secure one, and as a result the assets in this state are lost, he is not responsible therefor on his bond. Purdy et al. v. Purdy’s Adm’r, 42 S. W. 89; 18 Cyc. p. 190. The duty, if any, rests upon a moral obligation to prevent a waste of the assets; this does not require ,the executor to secure personal control of the foreign property solely in order that he may legally bind it for the payment of some particular claim. The record before us contains no complaint that the Texas assets were not being properly cared for and administered by the appellant, and there was no occasion for the Oklahoma executor to interfere.
Turning to another phase of the.controversy, is the fact that the estate in Texas was beneficially affected by the probate proceedings in Oklahoma sufficient to create a liability against that estate? Strictly speaking, the property in Texas was not benefited by those proceedings. It was neither increased in value nor relieved of any of its burdens. The real beneficiary was the legatee named in the will; for, had the will not been probated, the property would have gone to the heirs. The principle of law which implies a promise of payment for a benefit bestowed creates only a personal obligation on the part of the beneficiary, and does not result in a lien on the property which happens to be the object of the beneficial services. It may be that in this instance Spencer, the legatee named in the will, should be held personally responsible to the appellee for the unpaid attorney’s fees. If that be correct, why not sustain the judgment in appellee’s favor? may be asked. It appears from the record that there will be a large surplus left in the hands of the appellant after the claims of all creditors are satisfied. Why not permit the claim of the appellee to be paid out of that surplus before making final distribution? The answer is that the appellant is the administrator of the estate of Samuel Bailey, and as such can pay only the debts of the decedent and the expenses of his administration. He has no authority to pay the debts of the heirs or the legatee entitled to the surplus. The liability of the legatee in this instance, if there be any, is purely personal, and is unattended with any charge on the property. It is in no respect different from a debt he may owe some other creditor, based upon an entirely different consideration. Administrations are not granted for the purpose of settling such debts. The fact that the legatee' is insolvent, as is alleged in this ease, adds nothing to the legality of the claim.
It is proper to say that in disposing of this case on the original hearing some observations were made by the writer relative to the legal effect of the probate of a will in another state upon property of the testator situated in this state, which, upon further consideration, we conclude were erroneous and *956misleading. That portion of the original opinion has been revised. The error was in the statement that a foreign will conld not be used in the courts of this state as evidence! of the.ownership of property till the will had been recorded in the county court or probated here according to our laws. That is correct only as to real property situated in this state. Ochoa v. Miller, 59 Tex. 460; Lagow v. Glover, 77 Tex. 448, 14 S. W. 141; Hurst v. Mellinger, 73 Tex. 189, 11 S. W. 184. But the failure to make that distinction does not affect the conclusion then reached — that the services rendered by the appellee in securing the probate of the will of Samuel Bailey in the state of Oklahoma were not performed for the benefit of the administration in Texas, and cannot legally be classified as a part of the expenses of the latter proceeding. The fact that the property of the decedent situated in Texas is personalty does not enlarge the scope of the appellee’s claim. His right to be paid out of that property depends upon principles of law which make no distinction between realty and personalty.
The motion for a rehearing will be overruled.