Lewis v. Rutherford

72 S.W. 373, 71 Ark. 218, 1903 Ark. LEXIS 22

• Court: Supreme Court of Arkansas
• Decided: February 7, 1903
• Status: Published

Opinion

Wood, J.,

(after stating the facts). The probate court had no jurisdiction. It is well to remember that these tribunals have only such special and limited jurisdiction as~ is conferred upon them by the constitution and statutes, and can only exercise the powers expressly granted, and such as are necessarily incident thereto. Apel v. Kelsey, 52 Ark. 344; Smith v. Howard, 86 Me. 203. They have no general equity jurisdiction.

There are authorities which hold that it is the duty of an ancillary administrator to retain the funds in his hands for a pro rata distribution, according to the laws of the state of his administration, among the citizens thereof, having regard to all the assets, both in the hands of the principal administrator and the -ancillary administrator; and having regard also to the whole of the debts which by the laws of either state are payable out of those assets. Dawes v. Head, 3 Pick. (Mass.) 127; Davis v. Estey, 8 Pick. (Mass.) 476; Miner v. Austin, 45 Iowa, 221.

Other authorities hold that it is the duty of the ancillary adiministrator to satisfy in full the creditors of his jurisdiction, even though the principal administration be insolvent. In other words, that it is the duty of the ancillary administrator to protect only home creditors. Wharton, Confl. Laws, § 640; Minor, Confl. Laws, p. 250; Smith v. Union Bank, 5 Pet. 518.

Our own court, in Shegogg v. Perkins, 34 Ark. 117, 131, said: “The only duty devolving upon the [ancillary] administrator was to collect the assets here and to appropriate so much of the avails of the same to the payment of debts due to our citizens as would be authorized by the general solvency or insolvency of the estate of the deceased, and [to] remit the balance to the place of primary administration.”

This seems to recognize the former of the above views as correct. But this language of our court was dictum, the question in Shegogg v. Perkins feeing whether the ancillary administrator in Arkansas conld allow the claim of a Tennessee creditor as in the case of a local or Arkansas creditor. The question of insolvency was not involvéd. We are not called upon in this proceeding to decide between these conflicting views. Because, even if it be conceded that the view as expressed in Shegogg v. Perkins as to the duty of the ancillary administrator be correct, still we are clearly of the opinion that the probate court, with its limited jurisdiction, is not the forum to determine the question of the general solvency or insolvency of the estate of the deceased, and the questions of the priorities and preferences unde| the .varying laws of the different jurisdictions that might arise be^ tween the creditors. The rules of procedure and the machinery of the probate court are not sufficient for this purpose.

The petition asks that an amount be “set aside and turned over to G. A. Lewis, the primary administratrix.” This court said, in Duval v. Marshall, 30 Ark. 230, at page, 242: “The question is not to be determined by the extent of the local indebtedness of the intestate, but whether, in any case, the administrator at the domicil can dispose of or withdraw the assets in the hands of the ancillary administrator until the debts are paid and the administration settled, and we are clearly of the opinion that he can not.” It follows as the logical sequence of,this, and the holding in Shegogg v. Perkins, and what we have said in other cases, that the prayer of the appellants could not be granted. See Clark v. Holt, 16 Ark. 257; Williamson v. Furbush, 31 Ark. 539; Gibson v. Dowell, 42 Ark. 167; Green v. Byrne, 46 Ark. 465,—where the duty of an ancillary administrator is defined. These cases are not decisive of the question here, but they shed light upon it.

We are not called upon to decide whether appellants would have rights in a court of equity, and we do not decide that question.

Affirmed.