In re Campbell's Estate

173 P. 688, 53 Utah 487, 1918 Utah LEXIS 27

Opinions

McCARTY, J..

This appeal is taken from a judgment rendered in the district court of Salt Lake County in favor of Mrs. Marietta T. Stanley, respondent, for a partial distribution of the assets of the estate of Allen G. Campbell, who died testate June 16, 1902, at Riverside, Riverside County, Cal. Mr. Campbell’s will, so far as material here, is as follows:

“I, Allen G. Campbell, whose residence is in Salt Lake City, Utah, though' now temporarily living in California, hereby make this, my last will and testament. * * *

"Item 7. I hereby appoint my said wife, Eleanor, guardian of the persons and estates of my and her said three children; * * * such guardian to act without bond in any capacity whatsoever, and my said wife’s receipt shall be a sufficient discharge to any person or court whatsoever, for anything that may be coming to any of my said children born to me by my said wife, Eleanor.

“Item 8. I hereby direct that ail my coal and iron mines situate in Iron County, Utah, shall be held for the price of $300,000.00; that all my lead, silver, and gold mines situate in Beaver County, Utah, shall be held for the price of $150,-000.00; that all my now patented lead, silver, gold, and copper mines situate in Yellow Pine Mining District, Lincoln County, Nevada, be held for the price of $200,000.00; and my Brick Consolidated gold mines situate in Vanderbilt mining district, San Bernardino County, California, be held for the price of $500,000.00, until my said daughter Caroline Neil Campbell shall arrive .at the' age of twenty-one years, or, in case of her death before that time, until she would have arrived at the age of twenty-one years if she had survived, unless said properties are sold before that time at the prices herein stipulated; and said properties, as groups, shall be sold separately or together, when the price herein mentioned, or more, can be obtained. * * *

(It is admitted that Caroline Neil Campbell will be twenty-one years of age in October, 1919.)

‘ ‘ Item 12. * * * The money received after my death from each of said groups shall be divided and paid over as follows, to wit: Four-sixths of the net proceeds from each group shall be invested in United States government bonds for the benefit of and to be owned by my said three children by my wife, Eleanor; one-sixth shall be paid to my said son Charles Rufus, and one-sixth shall be paid to my nephew William B. Stanley, until $600,000.00 have been divided and paid over from the first sales of said properties. * * *

“Item 14. All of my other property not herein'specially devised and bequeathed, and all property which I may hereafter own or may be entitled to, I hereby designate as ‘residue,’ and I- hereby devise and bequeath the same to my said wife, in trust, nevertheless, for my said three children, # # * and my said wife is hereby authorised to manage the said property as guardian. * * *

“Item 21. I hereby appoint and nominate, as executrix of this will, my wife, Eleanor Campbell, and she is hereby authorized to act as executrix of this will without any bond whatever. * * *

“Item 22. I hereby authorize my said executrix * * * to lease any part of my estate without any order of court, on such terms as * * * she may think best, such lease, however, not to extend beyond the respective periods herein mentioned. * * *

“Witness my hand * * * at the place of my residence in Salt Lake Gity, Utah, this October 31, 1900.

“(Signed) Allen G-. Campbell.”

The will was duly admitted to probate in the state of California on July 7, 1902. Eleanor Campbell, now Eleanor Campbell O’Kelly, was appointed executrix thereunder.

The deceased left property of large value in the states of California, Nevada, and Utah. On August 11, 1902, the will was admitted to probate in this state, and about the same time it was admitted to probate in the state of Nevada.

It is admitted that the administration in California is the domiciliary, and those in this state and in Nevada are ancillary, and that appellant, Eleanor Campbell O’Kelly, is the duly qualified and acting executrix in each of the states mentioned. Respondent, Marietta T. Stanley, is the widow of William B. Stanley, one of the devisees mentioned in the will, and succeeded to all the right, title, and interest of said William B. Stanley, in the estate of Allen G. Campbell, deceased, and her residence, since June 10, 1902, has been, and now is. in Salt Lake City, Utah. The trial court found and the correctness of the finding is not challenged or in any way questioned, that—

“the original inventory value of the estate of said decedent in Utah was about $365,000, and the value of the property of said decedent now in Utah is $180,000, and consists of real and personal property. On September 5, 1902, the proper court in Utah authorized a transfer of $70,000 in cash from the decedent’s estate in Utab to tbe estate of said deceased in California, and in addition there have been 'other transfers of property from Utah to California, aggregating a large sum in value, but, notwithstanding such transfers, the estate now in Utah is of a value of $180,000. The property so transferred from Utah to California and all property now in Utah belonging to said estate was situated in Utah at the time of the death of said decedent. * * * The said executrix at no time was directed by the said court to remove all personal property from Utah to California. * * # On or about July 31, 1910, said executrix was ordered and directed by this court not to transfer any money or other property of said estate from Utah without application therefor and the giving of at least fifteen days’ notice to all persons interested in said estate. * * * In addition to the other cash on hand in Utah, there is over $2,400 on hand in Utah, as shown by the last account of said executrix, dated May 8, 1917. # # # The said executrix, instead of holding said groups of mines respectively as directed in said item 8 of said will, Teased, without authority and without order of any court, and wrongfully, from about December, 1912, to December 31, 1915, for certain royalties, said Brick Consolidated gold mines (situate in California), * * * and the lessees under said lease took tailings, belonging to said group and paid said executrix” royalties in the sum of $2,725. That said executrix, without authority, and without any order of court, leased the group of mines situated in Nevada, and “received net royalties therefrom amounting to $7,244.88. The lessees under said leases took ore in place from said mines and paid said executrix the said royalties on the same. * * * Said executrix made all of said leases without informing said petitioner, or without said petitioner knowing of the same, until she accidentally discovered it in the fall of 1914, and up to this time said petitioner has endeavored to adjust the matter amicably with said executrix. * * * Said petitioner has requested said executrix to pay her the said one-sixth of said $9,969.88, but said executrix has refused to do so. * * * Said executrix claims that she is holding said groups of mines as directed in item 8 of said will when she leases the same on royalties and gives the lessees the right to extract ore in place therefrom. Said executrix further claims that no part of such royalties belongs to this petitioner or any other of said legatees as specified in said will, but that all of suen royalties should go and is put by her into the residue of said estate, which residue by sa'd will she claims belongs to her said three children. * * * The said estate has regularly employed attorneys in Utah who are familiar with said estate in Utah, and the point involved in the petition may as economically be litigated by said executrix in Utah as in California. Said petitioner has attorneys in Utah who are familiar with said estate in Utah, but sire has no such attorneys in California, and it will cause said petitioner much greater expense to litigate said petition in California than in Utah, and will result in every way in greater inconvenience and expense to this petitioner. * * * Said estate in each of said three states is not at all indebted; there are no creditors in either of said states, and the partial distribution prayed for herein may be made without any loss or disadvantage to any person. At the most, a bond of .not over one dollar should be required from said petitioner for partial distribution herein, and therefore it is unnecessary to require any bond for partial distribution.”

The case, as presented by this appeal, stripped of all verbiage and redundant matter, presents, as stated by counsel for Mrs. Stanley (respondent) in their brief, the question: “Have the courts of this state jurisdiction over the property ■of a decedent inside of this state?” Counsel for appellant, answering this question, say in their brief: “There is no question but that the courts of Utah have jurisdiction over property within the state of Utah.” Thus being conceded, it ought to end the controversy respecting the jurisdiction of the district court to enter the judgment from which this appeal is taken. Counsel, however, with much earnestness, vigorously assail the judgment on the ground that the court was without jurisdiction to render it. In their brief they say:

“Letter’s of administration have no extraterritorial operation, and do not, as a matter of right, confer authority over personal assets found without the jurisdiction from which the grant is derived. ’ ’

This is conceded. Counsel, nevertheless, have devoted much space in their brief to the discussion of the question. And practically all of the cases cited by them declare this rule of elementary law, but the cases have no material bearing on any controverted question in this case. It would therefore avail nothing to' cite, review or discuss them here. In their discussion of the question they seem to take the position that if the domiciliary administration were in this state the court would have jurisdiction to render the judgment, but that, since the administration in this state is ancillary, the Court acted without jurisdiction. While it is conceded that in an ancillary administration the court may subject assets within the state to satisfy the claims of creditors, it, nevertheless, may not distribute assets within its jurisdiction payable to legatees and distributees. This, in view of the undisputed facts in the ease at bar, is the logic of their argument when reduced to its last analysis. 'We shall consider the two propositions together.

1 The authorities hold, in fact it is settled law, that courts have jurisdiction to hold assets in ancillary administration subjects to the claims of creditors who have proved their claims in the ancillary administration, and to distribute the surplus to legatees and distributees within such administration according to their respéctive interests in the surplus assets of the estate. In Baker v. Baker, Eccles & Co., 242 U. S. 401, 37 Sup. Ct. 154, 61 L. Ed. 386, the court' said:

“No state need allow property of a decedent to be taken without its borders until debts due to its own citizens have been satisfied; and there is nothing in the Constitution of the United States, aside from the full faith and credit clause, to prevent a state from giving a like protection to its own citizens or residents who are interested m the surplus after payments of debts.” (Italics ours.)

In Re Lathrop Estate, 165 Cal. 243, 131 Pac. 752, California was the jurisdiction of ancillary' administration, New York that of the domiciliary administration. In that case the deceased left more than one-third of his estate to charity. The executor in California petitioned for an order remitting assets for distribution to the New York executors. An heir in California objected because the California statute prohibits a bequest to charity of more than one-third of an estate. The court overruled the objection and distributed the whole estate to the domiciliary executors. Section 1667, Code Civ. Proc. of that state, provides that where “it is necessary, in order that the estate, or any part thereof, may be distfibuted according to the will, * * * that the estate in this state should be delivered to the executor or administrator in the state” of his “residence, the court may order such delivery to be made.” The Supreme Court of California, in the course of an able and well-considered opinion, observed: “This will admittedly made a valid disposition of the property belonging to his (decedent’s) estate under the laws of the state of New York, and was executed in accordance with those laws, as well as with the laws of this state.” The court, neverthe: less, reversed the judgment, holding that the section of the California Code referred to, providing for the delivery of property to the domiciliary administration, “is not a mandate upon the court, but vests in it merely a discretion so to do,” and based the reversal on the ground that property in such cases should not be delivered to other jurisdictions to be distributed contrary to the laws of California. It will be observed that the California court in that ease held (1) that courts of ancillary jurisdiction have power to distribute property within their boundaries; (2) that the rule of distribution, as fixed by the domiciliary administration, is not binding on the courts of ancillary administration.

In the case of Harvey v. Richards, Fed. Cas. No. 6184, Mr. Justice Story, in the course of a well-considered opinion, said:

“Why should not legatees and distributees be entitled to recover out of the assets here as well as creditors? It is true that legatees claim by the bounty of the testator; but it is a legal right, as fixed and vested as the right of the creditors. And as to distributees the case is still stronger; for that rests not on the bounty of the intestate, but on the law of the land, which, at the same time, enables the creditor to receive his debt out of the assets, and the next of kin to claim the residue. If it be said that it belongs to the public policy of a country to sustain the claims for debts due to its citizens, it seems to me no less to belong to that policy to sustain any other claims of its citizens, which, are founded in justice and law.”

And again:

‘ ‘ I confess myself unable to admit the distinction in favor of creditors without admitting, at the same time, the like rights in favor of legatees and heirs. Nor have I been able to find that distinction sustained or adverted to in any other authorities. ’ ’

And again:

‘ ‘ The property is here, the parties are here, and the rule of distribution is fixed. "What reason, then, exists why the court should not proceed to decree according to the rights of the parties? Why should it send our own citizens to a foreign tribunal to seek that justice, which it is in its own power to administer without injustice to any other person? I say without injustice, because it may be admitted that a court of equity ought not to be the instrument of injustice, and that, if in the given case such would be the effect, of its interposition, it ought to withhold its arm. This, however, would be an objection, not to the general authority, but to the exercise of it under particular circumstances.”

And again:

“I have no objection to the use of the terms principal and auxiliary, as indicating a distinction in fact as to the objects of the different administrations; but we should guard ourselves against the conclusion that therefore there is a distinction in law as to the rights of parties. There is no magic in words. Each of these administrations may be properly considered as a principal one, with reference to the limits of its exclusive authority; and each might, under circumstances, justly be deemed an auxiliary administration. * ® * Whether distribution ought or ought not to be decreed should depend upon the circumstances of each case. * * * No universal rule ought to be laid down on the subject, or at least, that the rule should be flexible, and depend for its application upon the equity of the particular case presented to the court.”

The learned author and jurist in the course of the foregoing opinion cites with approval one of the early English decisions (Bowaman v. Reeve, Finch, Prec. 577). Referring to that case, he said:

"It was a suit brought by specific legatees of a person domiciled in Holland against the executor and residuary legatee, who had taken out letters of administration, to recover satisfaction out of such residuum for the value of their specific legaciesj which had been, taken possession of by the creditors in Holland in payment of their debts; and the chancellor decreed satisfaction accordingly, and did not remit the legatees for relief to the domestic forum.”

Tlie case of Bowaman v. Reeve and tbe case at bar are identical in principle. We have quoted somewhat copiously from Harvey v. Richards, because it seems to us that it is a complete answer to, and meets every objection urged against the jurisdiction of the trial court to render the judgment under consideration.

In Moses v. Hart, 25 Grat. (Va.) 795, the court said:

‘ ‘ If the court of the ancillary administrator consents to a transmission of the assets abroad, it is a mere matter of courtesy, and not because there1 is any obligation to do so. That courtesy ought never to be exercised to the injury or inconvenience of domestic claimants, whether they be creditors, legatees, or distributees. The one has as much right to the protection of the government as the other. It is not a just principle to subject our own citizens to the expense, trouble, and hazard of redress in foreign tribunals when our own courts are entirely competent to afford it.”

In Porter v. Estate of Heydock, 6 Vt. 374, the court said:

“ Although the general practice may be to remit the fund for distribution abroad [referring to the domiciliary distribution], still this will never be done under circumstances where, instead of facilitating a final adjustment, and securing the rights of all, it would tend to embarrass or prevent that adjustment, and jeopardize the rights of the parties.”

The following authorities also support the doctrine contended for by respondent on this point: Story’s Conflict of Laws, p. 425; 18 Cyc. 1228-1236, and cases cited; Wœrner, Am. Law of Admin. sec. 167; State v. District Court, 41 Mont. 357, 109 Pac. 438; In re Welles Estate, 161 Pa. 218, 28 Atl. 1116, 1117; In Matter of Hughes, 95 N. Y. 55; Carr v. Lowe’s Executors, 7 Heisk. (Tenn.) 84; Parsons v. Lyman, 20 N. Y. 103; Parker’s Appeal, 61 Pa. 478; Rader v. Stubbelfield, 43 Wash. 334, 86 Pac. 560, 10 Ann. Cas. 20; In re Kelley’s Estate, 122 Cal. 379, 55 Pac. 136.

2 The cases cited by respondent are overwhelmingly to the effect that the ancillary courts are not only justified in hold ing, but they should hold, assets within, their jurisdiction until the claims of creditors and legatees therein are satisfied. The contention that a general creditor would be entitled to recover from the estate, but that Mrs. Stanley, a legatee, is not entitled, is wholly without merit. The law is settled, as stated in the above quotations, that a legatee is as much entitled to recover, and to be protected as to assets, inside the state where administration is had, as a general creditor. In the case at bar it is manifest that, if Mrs. Stanley is denied relief in the courts of this state, her rights will not only be jeopardized; but will, in effect, be confiscated. She would be compelled to maintain two suits, one in Nevada for distribution of her portion of the money received as royalties from the mines in that state, and one in California for money received as royalties from the mines there. The great expense, considering the amount involved, she would be compelled to incur in going into these states, employing attorneys in each, and litigating in two suits the questions here presented, would probably equal, if it did not exceed, the amount involved. This case illustrates the wisdom of, and the necessity for, ancillary administration. It is manifest from the record that it is the settled and avowed purpose of the executrix to resort to and employ every means at her command to prevent Mrs. Stanley from sharing in any part of the assets of this large estate, valued át hundreds of thousands of dollars. The executrix, without an order of court, clandestinely as to Mrs. Stanley, and in utter disregard of the wishes of her deceased husband, as expressed by the plain provisions of the will, authorized and permitted, and is now permitting, parties to exploit the mining claims in question, and to extract and remove therefrom the tailings and the ore in place which represent, as shown by the record, the only element of value in the property. One of the reasons given by the executrix in her brief for desiring that the questions here involved be determined by the courts of California and Nevada is that the courts of those states may (and probably will, so she claims) give certain provisions of the will a construction which we think would be unreasonable, if not absolutely vicious, that would render nugatory and of no effect other provisions of the document, and thereby overturn and defeat a bequest therein made and provided for, under which Mrs. Stanley is clearly entitled to share in the money received as royalties from the mines in question. The mere suggestion of such an astounding proposition is, in the opinion of the writer, a reflection on the intelligence, learning, and ability of the courts of sister states that borders on. a slander against their integrity. While the courts of those states would not, if called upon to construe the will, be bound by the construction given it by the courts of this state, they nevertheless would be governed by well-settled elementary rules, and give it a fair and reasonable construction — a construction, if possible, that would give force and effect to all of its provisions, so that .they would form one consistent whole and operate together. 1 Schouler on Wills (5th Ed.) section 468; 30 A. & E. Ency. Law (2d Ed.) p. 663; In re Heywood’s Estate, 148 Cal. 184, 82 Pac. 755.

3, 4 As we have stated, the principal ground upon which appellant relies for a reversal of the judgment is that the royalties paid to and received by the executrix from the mining claims mentioned in item eight of the will “should go and are put by her into the residue belonging to her said three children.” The fund, therefore, if there were one, created by the royalties, has lost its identity as such by being thus wrongfully merged with that part of the assets “designated residue” in the will. And these particular assets have been increased in the sum equal to the amount of the royalties received, namely, $9,969.88. Mrs. Stanley, therefore, has an interest in the residue equal to the sum of money that was due her from the funds received as royalties. It is admitted that a considerable portion of the assets designated residue in the will are situated in Utah and within the jurisdiction of the district court in which the judgment for partial distribution was rendered. And the only inference permissible from the record is that these residue assets within the state exceed the amount of the judgment many thousands of dollars. The royalties having gone into the coffers of the estate, and, by the act of the executrix, as shown by the pleadings and as found by the court, become merged with and a part of the residue, the situs of the money received as royalties is as clearly within the state of Utah as it is in California or Nevada. It therefore necessarily follows that Mrs. Stanley is entitled to have distributed to her from the assets of the estate a sum equal to her portion of the money received as royalties, which' sum the district court found and adjudged to be, with interest, $2,082.52.

We do not wish to be understood, from what is here, said, as holding, or intimating that if the executrix had not merged the money received as royalties with the assets designated as residue, there would even then be any question as to the validity of the judgment under consideration.

Assuming, for the sake of argument, that the money re; ceived as royalties and' merged with the residue is, in contemplation of law, in California, it nevertheless does not P low that the district court was without jurisdiction. TN record shows that all of the property in this state belongin'? to the estate except that mentioned in item eight of the will was bequeathed and devised to the executrix and the three children, and it also clearly shows that the executrix has purchased the interest of Charles Rufus Campbell; therefore the executrix, her three children, and Mrs. Stanley are the only persons interested in the assets of the estate situated in this state, and are the only persons interested in the money received as royalties. The record further shows that much, if not practically all, of the assets in Utah producing revenue is residue and is held in trust by the executrix for her three children. Now, $1,661.65 of the trust funds belong to Mrs. Stanley. The estate, therefore, has that amount of her money which, with interest, amounts to $2,082.52, as found by the court. The district court in the exercise of a sound discretion and its equity powers, directed that the money belonging to Mrs. Stanley and held in trust by appellant, as executrix, be paid to her. Now what possible difference can it make to the estate, or to any person interested therein, whether Mrs. Stanley is paid out of the portion of the trust fund in California or out of the portion in Utah ? This question will admit of but one answer, and that is that it cannot make any difference to any-person except Mrs. Stanley. In other words, lo pay Mrs. Stanley out of the assets in Utah would not, and could not, prejudicially affect the estate or any one interested therein. To further illustrate: To pay Mrs. Stanley $2,082.52 out of the assets in Utah means that the amount transferred to California will be $2,082.52 less than it otherwise would be. To transfer all of the Utah assets to California and to pay Mrs. Stanley there means that the net remaining assets in California will be just the same amount as though she had been paid in Utah. The record shows that when the estate in Utah is closed hundreds of thousands of dollars will either be transferred to the executrix in California or will be distributed in this state. It would be a parody on the law to transfer from this state, or to distribute in this state, hundreds of thousands of dollars, and at the same time force Mrs. Stanley to go to two states to recover at great expense a sum of money due her which the executrix merged with the residue, a large amount of which is in Utah.

5 It is the spirit and intent of the law, and should be the object and policy of courts of this state, to take care of the just demands and credits of our own citizens before transferring money to other states in proceedings of this kind. One of the primary reasons for ancillary administration is to enable courts to do this.

Counsel for the executrix in their printed brief say:

“In Utah there is a half section of land particularly devised to minor children. * * * Respondent proposes to levy upon this property and take it away from these children without their consent for the purpose of satisfying her alleged claim.”

And they further assert that—

“property which is vested in other devisees and legatees (the three children herein mentioned) would be seized to satisfy the payment of the $2,000, and sold perhaps at a great sacrifice.”

This visionary and speculative conclusion of . counsel respecting the probable, or even possible, effect of the enforcement of the judgment in question on the $180,000 of the assets within the jurisdiction of the trial court' is groundless. The court found, and the finding is not assailed, that, “in addi tion to other cash on hand, there is $2,400 on hand in Utah. ’ ’ And the record shows that this $2,400 is a part of the residue fund. The record also shows that the court made an order that no part of “any money or property of said estate” can be transferred from Utah without an order of court. It is therefore established by the record, beyond any question of a doubt, that the enforcement of the judgment would not, and could not, result in any loss or sacrifice to the estate, and would not, and could not, prejudice the rights of any one interested therein. On the contrary, to deny Mrs. Stanley the relief in this action to which we think the record clearly shows she is legally and equitably entitled, and compel her to engage in expensive, vexatious, and interminable litigation in the states of California and Nevada in order to protect, and enforce her rights in the estate, would not only result in a useless waste of the funds and assets of the estate, but would, in effect, as herein stated, result in a confiscation of her interest in the estate. The printed brief of the executrix shows that she, evidently prompted by greed and selfishness rather than a desire to faithfully discharge her trust, intends to employ every means at her command to defraud Mrs. Stanley of her small interest in this large estate valued at hundreds of thousands of dollars. It is therefore idle for counsel to contend that the interests of the parties to this proceeding would be better subserved by compelling Mrs. Stanley to go to California and Nevada and there litigate in two suits the questions settled and determined, and correctly so, by the judgment under consideration.

It is suggested that thé district court was without jurisdiction to render the judgment because the royalties were. received from mines situated in California and Nevada. In other words, it is suggested that money received as royalties from mines belonging to decedent can be distributed by the courts only of the respective states in which the mines are situated, regardless of where the royalties may be or the disposition the executrix may have made of them. If such were the rule, the courts of one state could not legally make any order in probate proceedings respecting money — assets—within the state received as royalties from mines or as- rents from other real property belonging to decedent and situated in another state, except to transfer such money to the state from which it was obtained to be there distributed. To further illustrate the fallacy of this contention: Suppose the executrix should, as she has done in the case at bar, clandestinely and without any order of court lease or otherwise dispose of the ores in place of the mines mentioned in item eight of the will, situate in this state, and receive large sums of money therefor in California, Mrs. Stanley would be without any remedy whatever. She could not obtain, an order of distribution from the Utah courts because the funds were received and are being held in California, and she could not obtain distribution in California because the money was received from mines situated in Utah. A mere statement of the proposition clearly shows that it is unsound, impractical, and contrary to every known rule of law and principle of equity applicable to probate procedure.

It is conceded that, if this obligation grew out of contractual relations existing between the estate and Mrs. Stanley, thei’e would be no question respecting the validity of the judgment.

The executrix having refused and failed to comply with the request of her deceased husband in the distribution of the money received as royalties, as clearly expressed in the will, and having diverted it to a purpose not contemplated by the will, by merging it with the residue, the obligation now possesses all of the essentials of a debt. The fact that Mrs. Stanley’s rights are determined, protected, and enforced by the application of equitable principles and rules of equitable procedure, rather than by strict technical legal rules, does not change the character of the obligation in that regard.

6 Furthermore, obligations arising from purely contractual relations are no more sacred in the eyes of the law than are those growing out of fiduciary relations between a trustee and the castui que trust.

7 In fact, the law is much more exacting and drastic in dealing with a trustee who is false to or has violated his trust by diverting trust funds from their true purpose, and making a disposition not authorized by the terms of the trust, as was done by the executrix in this case, than it is in i’egard to the delinquencies of an ordinary debtor in failing to meet his contractual obligations.

In 1 Beach, Trusts and Trustees, section 188, the author says:

“All persons acting as trustees or agents in the settlement of estates are held by courts of equity to a very rigid accountability in the discharge of their fiduciary obligations.” -

Suppose, for example, the executrix should receive in California sums of money — proceeds—from the mines mentioned in item eight of the will that are situated in Utah, and merge the same with the residue or other assets specifically bequeathed to the three minor children, we know of no rule of law or principle of equity that would prevent the courts of this state from making an order, on proper application therefor, that Mrs. Stanley be paid out of the residue or other assets in this state specifically bequeathed to the three minor children.

Counsel for appellant in their printed brief say that Mrs. Stanley’s right to receive anything must grow out of the fact that appellant has received royalties in California and Nevada from certain mining properties mentioned in item eight of the will, and that “the jurisdiction of the California and Nevada courts attached to the mining properties from which the royalties were received, and it necessarily follows that the same jurisdiction attached to the money and royalties received as assets of the estate.” Again they say: “Respondent’s right to receive these royalties is challenged, and the matter can, at most, only be determined in the jurisdictions in which the properties from'which the royalties were received are situated.” And that “this question involves a construction of the will, not by the courts of the state of Utah, but by the courts of the states where the mining property from which the royalties were received are situated. ’ ’

8 If Mrs. Stanley based her claim on some interest claimed by her in the mining properties from which the royalties w^n - ceived, as the argument of counsel seems to imply, and was before the court seeking to have her right to, or interest in, the property adjudicated and quieted in order to establish her claim to a portion of the money received as royalties, the contention of counsel that the courts of this state are powerless to grant her relief would be unanswerable and would prevail. But that is not the ease. The title to the mining properties is not involved, nor is it in any sense an issue in this case. 'Furthermore, we have a statute (.section 2788, Comp. Laws Utah 1907) which provides: "When a will directs the conversion of real property into money, such propertjq and all its proceeds, must be deemed personal property from the time of the testator’s death.”

9 There being no evidence to the contrary, the presumption is that the laws of California and Nevada on this point are the same as the law of this state. American Oak Leather Co. v. Union Bank, 9 Utah, 87, 33 Pac. 246; Dignan v. Nelson, 26 Utah, 186, 72 Pac. 936; Stanford v. Gray, 42 Utah, 228, 129 Pac. 423, Ann. Cas. 1916A, 989; Sutherland, Stat. Const. section 184.

Under the plain provisions of the will, Mrs. Stanley, as we have pointed out, had a one-sixth interest in the money received as royalties from the mining properties until the executrix, as stated, in utter disregard of the desire and intention of her deceased husband, and in violation of her trust, diverted it from the purpose designated in the will, and merged it with assets of the estate specifically bequeathed and devised to. the three children mentioned, which assets are held in trust by the executrix for the children. Mrs. Stanley, therefore, has an interest in these assets, of which a large portion is in this state, equal to the sum of money that she was entitled to receive from the money paid as royalties.

10 The contention that the courts of this state are precluded from construing the will because the courts of California, where the domiciliary administration' is had, may place a construction thereon different from that given it by the courts of this state, is wholly without merit. No authorities are cited, nor do we think any can be found, that support counsel’s contention in that regard.

11, 12 The general rule, as declared by practically all of the authorities on the subject, is that the law of the testa tor’s domicile'governs in tbe construction of his will disposing of personalty, and that courts exercising ancillary powers should be governed by this rule in construing wills, unless a construction by the law of the testator’s domicile contravenes the law of the state where the will is offered for probate. 40 Cyc. 1382; Thompson on Wills, section 49; Alexander, Comm, on Wills, vol. 1, section 273; Brown, Jurisdiction, section 136. Furthermore, we have a statute declaratory of this general rule (section 2822, Comp. Laws 1907), which is as follows:

“Except as otherwise provided, the validity and interpretation of wills are governed, when relating to real property within this state, by the law of this state; when relating to personal property, by the law of the testator’s domicile. ’ ’

It will be noticed that this section in plain and unmistakable terms provides that the “interpretation” of wills shall be governed, when relating to personal property, by the law of the testator’s domicile, and not, as counsel’s argument seems to imply, by the interpretation given wills by the courts of a sister state where the domiciliary administration is had.

13 "While the interpretation of a will under these circumstances by the courts of some other state should, and would, be given much weight by the courts of this state, such interpretation nevertheless would not be binding. This however, is beside the question. There is nothing in the record that tends to show, or that even suggests, that the statutes of California, or the laws as declared by the courts of that state on this subject, are different from the laws of this state. And as we have said, in the absence of any showing to the contrary, the legal presumption is that the rule in California is the same as it is in this state.

In 40 Cyc. 1384, it is said:

“In order that a law of one jurisdiction may govern in the construction of a will in another jurisdiction it must be proved, and in the absence of such proof the law of the forum will govern. ’ ’

14 The claim made by appellant that item twenty-two of the will permits and authorizes her to lease the mines, and that the proceeds — royalties—derived therefrom are rents and profits, as those terms are usually understood and applied to transactions between landlord and tenant involving the leasing of real property for occupation and use, and that the royalties were properly merged with the residue and are being held in conformity with the provisions of the will for her three children, is untenable.

The trial court found, and the finding is not assailed, that “Allen Gr. Campbell, for many years prior to his death, was an experienced mining man, and well acquainted with all of his mining properties, and the property mentioned in item eight of his said will had and has no substantial value except' for mining purposes.” It is therefore determined that the value of the mines consists of the ore and tailings only contained therein. Item eight of the will declares in part that the mines in question “shall be held” at certain prices until Caroline Neil Campbell shall arrive at the age of twenty-one years. Item twelve declares, in part, that “the money received after my death from each of said groups of mines shall be divided and paid over as follows, to wit. * * * one-sixth shall be paid to my nephew William B. Stanley.” As stated by counsel for Mrs. Stanley in their brief, “when tail-ings- and ore are taken from the mining property it is not being held; it is being consumed. ’ ’

In .3 Lindley on Mines (3d Ed.) section 861, p. 2135, the author says :

“We have already seen that mineral in place is land; that when it is taken therefrom and changed into personal property real estate has to that extent been destroyed. It is obvious that the normal relation of landlord and tenant does not contemplate destruction of the estate by the tenant, and that such destruction cannot properly be called ’use.’ It is equally plain that the so-called ‘rent’ in a mining lease is something more than a return for the possession and use of real property. While the contract is in name a lease, it 'amounts in fact to a sale, and if it grant the right to take all the mineral, it is a sale of real estate — the lessee’s interest is a fee in the mineral and the lessor’s so-called rent is purchase money for real estate.’’

Assuming, but not conceding, that the extracting of ore in place and removing it and the tailings from the mines under the lease was in no sense a sale of any part of the property, appellant still could not successfully maintain that the royalties received is residue. Item twelve of the will, as herein stated, declares that “the money received.* * * from each of said groups shall be divided. * * * One-sixth shall be paid to * * * William B. Stanley until six hundred thousand dollars shall have been divided,” etc. No provision is made in the will that any part of the $600,000 mentioned in item twelve shall or may be deemed residue under any circumstances.

Moreover, this court, in the case of In re Campbell, 27 Utah, 362, 75 Pac. 851, construed item twelve as well as other'provisions of the will. The construction there placed on item twelve is clearly against the contention here made by counsel for the executrix. And it is not made to appear that the courts of California have given the provision, or, for that matter, any provision, of the will a construction different from that given it by this court. Therefore the legal presumption, as stated, is that the rule of construction respecting the points here involved is the same in California as it is in this state.

This case may be summarized as follows: Certain bequests are made in item eight of the will to the executor in trust for her three children, to Charles Rufus Campbell, and to Mrs. Stanley. These bequests are to be paid out of the proceeds of the property, mining claims, therein mentioned. The property is situated in California, Nevada, and Utah. The executrix has purchased the interests of Charles Rufus Campbell. Therefore the only parties interested in the proceeds are the executrix, her three children, and Mrs. Stanley, who is, and for twelve years has been, a resident of this state. The executrix has received money as royalties from the mines in California and Nevada which she has merged with the assets designated in the will as residue. The executrix by thus breaching her trust has placed in and merged with the residue, $9,969.88, that does not belong there. Under what process of reasoning, may we ask, can it be held that this money, which was wrongfully diverted from the purpose designated in the will and merged with the residue, belongs to decedent’s three children? Under the will, as construed in Re Campbell, supra, $1,661.65 of this money belonged to Mrs. Stanley. By an examination of the will it will be seen that the bulk of the assets of tbe estate designated as residue is situated in Utah. Therefore, in contemplation of law, the $9,969.88 received as royalties and merged — mingled—with the residue is as much in Utah as it is in California of Nevada. The order of the trial court distributing to Mrs. Stanley her portion of the royalties that have gone into the residue does not take any property whatever from the “other legatees and devisees” as suggested by counsel. It takes from that fund money only that does not, and never did, belong there. We again in-' voke the rule announced in Harvey v. Richards, supra, wherein it is said:

"The property is here, the parties are here, and the rule of distribution is flxed. [In re Campbell, supra.] .What reason, therefore, exists why the court should not proceed to decree according to the rights of the parties? Why should it send our citizens to a foreign tribunal to seek there justice which it is in its power to administer without injustice to any other person?”

It is suggested by counsel that that case is distinguishable from the case at bar. The distinction, if there be a discernible one where there is no difference in principle, consists in the case at bar being a much stronger case for the application of the doctrine contended for by respondent than is the case of Harvey v. Richards. In that case the domiciliary administration was in Calcutta. The executor appointed by the will of the testator resided in Calcutta. Richards was appointed administrator to collect assets in Massachusetts, none of which were necessary to satisfy either debts or legacies in Calcutta. The plaintiff in that case, a Rhode Island citizen, entitled to share in the estate, sought a distribution of assets in Massachusetts. The question thus presented to the court was “whether the defendant should be ordered to distribute the effects in his hands among the next of kin in this country or should send them to Calcutta to be distributed by the executor there.” It will be noticed in that case that the plaintiff was not a citizen or resident of Massachusetts, where the ancillary administration was had. In the case at bar Mrs. Stanley is a resident of this state, the bulk of the residue in which, because of the act of the executrix in violation of her trust, Mrs. Stanley lias an interest to the extent of her claim, is here, and the rule of distribution is fixed. In re Campbell, supra. And the executrix in California and in Utah is one and the same person.

The Supreme Court of California,. in the case of In re Campbell’s Estate, 149 Cal. 712, 87 Pac. 573, a case in which the validity of certain provisions of this will was involved, summarized what there purports to be the questions presented to, and the conclusions arrived at by, this court in the case of In re Campbell’s Estate, 27 Utah, 361, 75 Pac. 851, as follows:

‘ ‘ The will was admitted to prohate in the State of Utah, and ancillary administration was had there through an administrator with the will annexed, appointed by the courts of that state, in which a large part of the land involved in the controversy is situated. The administrator with the will annexed reported to the courts of that state a sale of .some of the property there situated, made by him without any order of the court, and at a price much less than that fixed by the will, and, of course, within the prohibited^ period. By regular proceedings for that purpose in the courts of that state, the sale was confirmed.”

The important and controlling question decided by this court in that case is stated in the opinion as follows:

' ‘ The testator sold one of the aforesaid groups [referring to the mines mentioned in item eight of the will] for $126,000, and there was paid to him $83,494.28. Since his death the balance of the purchase price of said group, $42,505.72, has been paid to the said William B. Stanley, as administrator, and which ho now has in his possession. Charles Kufus Campbell, the son of the testator, * * * filed a petition in the district court of Salt Lake county, * * * and prayed for an order directing the $42,595.72 so paid to the administrator, less the inheritance tax due thereon, to be distributed to the beneficiaries thereof in the proportions directed by the will. The executrix, Eleanor Campbell, in her own behalf, and as guardian of her minor children, answered, denying that under the provisions of the will the said sum of $42,505.72 was subject to distribution until tho said Caroline Neil Campbell became of the age of twenty-one years, or, in case of her death, until she would have reached that age. William B. Stanlay, the administrator, answered, and admitted tho allegations of the petition, and joined with the petitioner in praying for the distribution of said sum. A distribution in accordance with the prayer of -the petition -was granted.”

The foregoing quotation from the decision of this court clearly shows that the money distributed was the balance of the purchase price of mines sold by the testator, and not by William B. Stanley, as administrator, as stated in the California decision. The California court in the course of its opinion clearly indicates that it does not agree with the decision of this court in the In re Campbell Case mentioned. This is not at all strange or surprising, viewing the Utah decision as that court does. It would tax to the utmost the ingenuity and mental capacity of the most astute, clever, and versatile lawyer to designedly make a more incorrect and misleading statement respecting the questions involved and decided in an opinion than the California court inadvertently made concerning the questions decided by this court in the In re Camp-belPs Estate Case. The California court does not give the title of the Utah case nor the volume of the report in which it is published. It, however, is the only ease except the case at bar that has been before this court in which the Campbell estate was in any way involved. The California case referred to does not show that precision, care, and deliberation on the part of the court that characterizes the decisions of that court generally from the earliest period of its history down to the present in its review and discuss’on of the decisions of other states.

We think it probable that if the California court had had a correct understanding of the questions presented to and decided by -this court in the In re Campbell’s Estate Case it would have approved of the rules of law therein enunciated.

Mr. Justice GIDEON has filed an opinion in which he dissents from the reasons expressed and the conclusions reached in this opinion.

It is axiomatic that a judicial opinion cannot be more correct and sound than is the premise on which it is based. Mr. Justice GIDEON’S opinion is grounded on a wrong and unsound premise, which premise, to wit, the alleged lack of power or jurisdiction of the trial court to render the judgment under consideration, rests on propositions some of which wholly fail to, and others but partially, reflect the questions presented by this appeal, and on propositions that are antagonistic to and inconsistent with each other. The learned justice says:

“The controlling questions in this case, * * * as disclosed by the record and contained in the opinion of Mr. Justice McCarty, are: # # * (1) Can the Utah court deprive the California and Nevada courts of the right to construe the provisions of a will in their jurisdictions, and as to real estate or the proceeds of real estate within their jurisdictions? (2) Can respondent, under an order of the Utah court, seize property in Utah which belongs to other legatees for the purpose of paying an alleged claim and legacy growing out of the receipt of mining royalties in other states ? ’ ’

It will be seen by a casual examination of the record and this opinion that,the questions propounded by Mr! Justice GIDEON in his first proposition are not involved in the case. No claim is made that the courts of this state “can deprive the California and Nevada courts of the right to construe the will,” etc. Nor is there an expression in this opinion that suggests that the Utah courts have any such power.- There are, however, numerous statements in the opinion which clearly show that we hold to the contrary. In fact, later on in the dissenting opinion it is said :

“It is conceded by counsel for respondent that the courts of our state will not attempt to administer or distribute the assets of an estate located in another state. ’ ’

In other words, we are here told that it is conceded that one of the “controlling questions” that is propounded in the first proposition contained in the dissenting opinion is not in the case at all, which is correct.

Mr. Justice GIDEON further says:

“It seems to me that this court must, in order to determine the rights of the respondent to the moneys in question, determine hér rights in the lands from which the royalties are obtained. ’ ’

As we have stated, the title to the lands is not in issue. Neither is Mrs. Stanley’s right to receive one-sixth of the money received from the mines in question a controverted question. In paragraph four of the petition it is alleged that:

“The said decedent, in item twelve of said will, directed that if any money should be received after his death from any of said groups of mines, there should be divided and paid over out of the same four-sixths of the net proceeds of each group to the said three children of the said decedent and Eleanor Campbell 0’Kelly, above mentioned; that one-sixth should be paid to the said decedent’s son, Charles Rufus Campbell, and that one-sixth should be paid to the said William B. Stanley, until $600,000 should have been divided and paid over from the first sales of said groups.”

Paragraph 3 of the answer of the executrix is as follows:

“Admits the allegations contained in paragraph 4 of said petition. ’ ’

Mrs. Stanley’s'right to one-sixth of the moneys received from the mines mentioned in item eight of the will being admitted by the answer, how it can be seriously contended that before the court can enforce this admitted and conceded right of hers it must first determine her right in the land from which the money was obtained, which is not directly, indirectly or remotely an issue in the case, is to the writer incomprehensible.

Mr. Justice GIDEON also says:

“It is * * * conceded that the courts of this state in the distribution of personal property are controlled by the construction or interpretation of the will made by the courts of the domiciliary administration. At the oral argument of this case counsel conceded these two propositions to be elementary. ’ ’

The learned justice is in error. This, we think, clearly appears from the following excerpts from the brief of counsel for respondent, viz.:

“Appellant urges that the Utah courts cannot control the courts of California and Nevada, which we admit; and vice versa, those courts cannot control the Utah courts in the distribution of property within this state. ’ ’

And again:

“Appellant states that, if a decedent dies intestate, his personal property in the ancillary jurisdiction is to be distributed according to the law of the state of his domicile. This is elementary law and is constantly being followed by the courts. * * * Suppose A. is domiciled in California and dies intestate, leaving personal property in Utah. Then, when the courts in Utah distribute such personal property, they follow the law of succession of California and not the law of succession in Utah. * * * The courts in California have no right to interfere with the property in Utah or its administration in such illustration. ’ ’

The foregoing clearly reflects counsels’ position, which is in harmony with the provisions of section 2822, Comp. Laws Utah 1907, heretofore briefly considered and discussed.

The judgment of the district court is affirmed, with costs.

CORFMAN and THURMAN, JJ„ concur.