Welles's Estate , 161 Pa. 218 ( 1894 )

SECURITY COMPANY’S APPEAL.

Opinion by

Mr. Chief Justice Sterrett,

All the material facts of this case sufficiently appear in the record of the court below, and hence special reference to them is unnecessary.

The question whether the fund for distribution is to be regarded as real or personal estate is answered by application of the principle of Wentz’s Appeal, 126 Pa. 541, and cases there cited. It was in fact and in law personalty when the owner died, and is distributable as such.

While the general rúle requires that the surplusage of personal estate shall be remitted from the ancillary to the domiciliary jurisdiction for distribution, Barry’s Appeal, 88 Pa. 131, there is a well recognized exception, which grew out of the duty of every government to protect its own citizens, where there are parties entitled to share in such property claiming distribution in the ancillary jurisdiction, and no domiciliary creditors. In such case, the court will not send the parties, to seek their rights at great and unnecessary expense and delay, to a foreign tribunal; but will make distribution in accordance with the law of the domicil; and the situs rei, the presence of the parties and the principles of justice, public law, and international policy, sustain its assumption of jurisdiction: Dent’s Appeal, 22 Pa. 514; 2 Kent’s Com. 433. There are admittedly no domiciliary creditors of this decedent.

But is there a resident claimant entitled to share in the fund for distribution ? The proviso to the Connecticut intestate law declares that in cases like the present, “ the estate shall be distributed equally to the next of kin to the intestate of the blood of the person or ancestor from whom such estate came or descended,” and that “ in ascertaining the next of kin in all cases the rule of the civil law shall be adopted.” Half of the present “ estate,” having been derived through decedent’s mother, was properly awarded to appellee, and the other half, having been derived through decedent’s brother, to appellant under that rule.

The appellant insisted that the proviso to said intestate law ■was only applicable to real estate, and consequently not to this fund; but it was authoritatively settled in Clark’s Appeal, 58 Conn. 207, that it embraced both real and personal estate. “ The purpose of the proviso,” said the court, “ manifestly is to take the ancestral estate of a certain class of intestates out of the operation of the statute and to give to that estate, whether it be real, or real and personal estate which is referred to, a different direction from that it would take but for the proviso.”

So it was urged that the sale of the real estate which Hubert G. Welles had inherited destroyed the ancestral character of the estate, and that it must take from that fact a new direction. But the obvious answer to this is that the statute by its terms operates on the “ estate,” and form is therefore immaterial. No matter through how many transmutations it may pass, so long as it can be identified it is still an “ ancestral estate.” The substance remains although the form is changed and is within both the letter and spirit of the statute.

The cases of Terry’s Appeal, 28 Conn. 339, and Bristol v. Austin, 40 Conn. 438, cited for appellant, have no application to the facts of this case.

It follows from what has been said that there is no error in the decree.

Decree affirmed and appeal dismissed with costs to be paid by the appellant.

CAROLINE H. STEINMAN’S APPEAL.

Opinion by

Mr. Chief Justice Sterrett,

April 23, 1894:

The questions involved in this appeal grew out of substantially the same state of facts as was presented in Security Company’s Appeal, same estate, No. 301, January T., 1894, and have been sufficiently considered in opinion just filed in that case. For reasons there given the decree should be affirmed.

Decree affirmed and appeal dismissed with costs to be paid by appellant.