Amos A. Williams vs. Nathaniel Williams, 5 Md. 467

Eccleston, J., delivered the opinion of this court. The parties in this case are the surviving executors of Martha Weld, who died leaving personal estate in Maryland and in Massachusetts, her domicil at that time being in the latter State, and letters testamentary having since been granted in both States. The residuum of the estate is given to twenty-four legatees, twenty of whom reside in Maryland and the other four in Massachusetts.

The appellee, as one of the executors, being about to pass a final account in the orphans court of the city of Baltimore, the appellant filed a petition, suggesting that in relation to the Massachusetts’ administration he had incurred expenses amounting to about $50, for which he can obtain allowance in the Massachusetts’ court, but which, according to the law and practice here, are not proper to be allowed in the account about to be passed.

That it will be necessary to pass a final account before the Massachusetts’ court, which will be attended with costs and charges proper to be defrayed out of the assets about to be accounted for. And he prays that, out of these assets, the executors may be directed to retain the sum of $250, to pay the costs of administration incurred, and to be incurred, in Massachusetts, and of passing a final account there; and also to retain, out of the residue, a sum sufficient to satisfy the claims of the four residuary legatees residing in Massachusetts, and to be accounted for before the probate court of that State.

The appellee having filed an answer objecting to this application, the orphans court passed an order dismissing the petition. From this order the appeal is taken.

When there are two administrations upon one estate, that which is foreign to the state of the domicil is usually called ancillary or auxiliary, and as a general rule the assets within such jurisdiction will be transferred to the place of the domicil: but this rule is not absolute or inflexible; on the contrary, the transfer will or will not be made as the court may deem proper, in the exercise of a sound judicial discretion, according to the circumstances of the case.

The general rule however should prevail, unless to obey it would work injustice or injury to parties having such an interest in the estate as will entitle them to object to its observance. The present application is not to transfer the whole residuum of the assets, but such portion as will be sufficient to pay the shares belonging to the Massachusetts’ legatees, and what are alleged to be necessary costs and expenses in relation to the Massachusetts’ administration.

There is nothing in the record — to which alone we can look — showing whether the legatees, or any of them, either object or assent to the prayer of the petition. Nor does it appear whether both or either of the executors are legatees. The executor who makes the objection can no more be said to represent the legatees than the other, who filed the petition. In such a case we do not perceive any special circumstances which should prevent the application of the general rule, for remitting or transferring assets from the auxiliary administration to that of the domicil.

And consequently we think the prayer of the petition should have'been granted. The copy of an administration account, passed in Massachusetts, which is filed as an exhibit with the answer of the appellee, shows that he, in conjunction with the executor, now deceased, on a former occasion, even in opposition to the objection of the appellant at that time, accounted for Maryland assets before the Massachusetts’ court.

We do not wish to be considered as expressing an opinion in regard to the correctness of the petitioner’s claim for expenses, deeming that a proper subject for adjudication by the court in Massachusetts. And as due respect for a court of our sister State requires us to believe the rights of all parties will be properly guarded by that tribunal, there can be ao just reason for refusing to remit to their jurisdiction such a portion of the assets as will be sufficient to meet any contingency which may result from the decision of that court.

The record is defective in several particulars, and partly on this account we decline expressing an opinion in regard io the el aim for expenses, leaving it to be settled in Massachusetts, where it would seem to be proper to have it adjudicated, as the expenses relate to that administration. Order reversed and cause remanded.