
    Harry F. R. Dolan vs. Mary B. Anthony et al. Same vs. Jane L. Anthony et al. Joseph S. O’Neill, Ex. vs. Mary B. Anthony et al. Same vs. Jane L. Anthony et al.
    
    JANUARY 16, 1931.
    Present: Stearns, C. J., Rathbun, Sweeney, and Murdock, JJ.
   Murdock, J.

These are four appeals from two decrees of the Probate Court of the City of Providence. After a hearing in the Superior Court the appeals were denied and dismissed and the decrees of the Probate Court affirmed. The appeals are before us on appellants’ exceptions.

The appellant O’Neill is executor of the will of Lorania C. Beckwith, who had her domicile in Norfolk County in the Commonwéalth of Massachusetts where her will was admitted to probate. A copy of the same was recorded in the Probate Court of the City of Providence and ancillary letters of administration were granted to said O’Neill as executor of the estate of said Lorania C. Beckwith in Rhode Island. The appellant Dolan has acted as counsel for the executor in the administration of the estate. The appellees are the residuary legatees and devisees under said will.

At a hearing in the Probate Court of the City of Providence the final account of the executor of the estate in Rhode Island was allowed and the executor was charged with a final balance of $10,700.86. After this decree, from which no appeal was taken, had been entered O’Neill filed a petition for a decree that said balance in his hands as executor in Rhode Island be transmitted to him as executor in Massachusetts to be applied there in payment of expenses of administration and the appellees filed a petition for a decree that said balance be distributed to them. A decree was entered denying the petition of O’Neill and another decree entered granting the petition of the appellees for distribution among them of the balance in the hands of the executor. From these two decrees the appeals were taken which are now before this court upon said exceptions.

The Probate Cburt acted by virtue of authority of Sections 40 and 41, Chapter 363, General Laws, 1923, which are as follows: Estates of Non-Residents. “Sec. 40. When a will is filed and recorded or administration is granted in this state on the estate of a person who was an inhabitant of any other state, territory, or district of the United States, or of a foreign country, his estate, real and personal, found here shall, after payment of his debts, be disposed of according to his will, if he left any executed according to law; otherwise the real estate shall descend according to the laws of this state, and his personal estate shall be distributed and disposed of according to the laws of the state, territory, district, or country of which he was an inhabitant.

“Sec. 41. Upon the settlement of such estate, and after the payment of all debts for which the same is liable in this state, the residue of the personal estate may be distributed and disposed of in manner aforesaid by the probate court; or, in the discretion of the court, it may be transmitted to the executor or administrator, if any, in the state, territory, district, or country where the deceased had his domicile.”

The principal questions raised by the appeals are, first, as to whether the Probate Court of the City of Providence abused the discretion vested in it by statute in denying- the petition of O’Neill and granting the petition of the appellees for distribution, and second, did said court by its decree fail to give full faith and credit to a decree entered by the Probate Court of Norfolk County, Massachusetts, directing said O’Neill as executor of the will of Lorania C. Beckwith to pay Harry F. R. Dolan $13,000 on account of services rendered to her estate.

Since the leading case of Harvey v. Richards, 1 Mason, 381, decided in 1818 by Justice Story, the law is well settled that an ancillary administration is not servient to that of the domicile, that one has no priority over the other and that it lies in the discretion of the court having jurisdiction over the property to distribute the same in accordance with the domiciliary law or to transmit the assets to the jurisdiction of the domiciliary court. The only limitations upon this discretion are those imposed by the principles of comity and equity. Cassilly v. Meyer, 4 Md. 1; Moses v. Hart, 25 Gratt. 795; Graveley v. Graveley, 25 S. C. 1; Welsh v. Adams, 152 Mass. 74; In re Welles’ Estate, 161 Pa. 218; In re Lane’s Estate, 199 Iowa, 520; In re Eaton’s Estate, 178 N. Y. Sup. 825; In re Fult’s Estate, (Minn.) 225 N. W. 152; Bishop v. Ross, (Ind.) 103 N. E. 505; 24 C. J. 1126. The determination of the question as to whether there has been an abuse of discretion depends upon the circumstances of each particular case. In the instant case it appears that the testatrix in her lifetime was the beneficiary of three trust estates of which the Rhode Island Hospital Trust Co. is trustee. The principal of these estates aggregated about $700,000. In over.half of this amount the testatrix had only a life estate and in the balance represented by the other two trust estates she had in addition to a life estate a power of appointment which she exercised in her will directing that the trust property be divided in certain proportions among the persons who are the appellees in the case now before us.

The testatrix died in California shortly after giving birth to a child born out of wedlock. Her estate at her domicile inventoried at about $7,500 and her estate in Rhode Island at about $18,000. There was no contest over the will and no unusual difficulties in the administration of the estate in Massachusetts. A guardian ad litem, was appointed to look after the interests of the child and the sale of a farm which the testatrix owned there was authorized and completed. As to the inheritance and estate taxes, the only question which arose related to the trust estates over which the testatrix had the power of appointment and the only duty of the executor with respect thereto was to list them in his return to the proper authorities. The decedent’s debts in Massachusetts, amounting to about $1,500, were not paid by the executor but as these have been satisfied- by the appellees no question as to them is before us. In this State the executor before filing his final account had a balance in his hands of about $10,000 and without an order from the Probate Court of the City of Providence he paid this balance, together with the balance in his hands as executor in Massachusetts, to himself and his attorney, the appellant Dolan. Under an order from the Probate Court of the City of Providence the money taken from this jurisdiction was subsequently returned. Having thus exhausted all the assets of the estate a demand was made on the Rhode Island Hospital Trust Co. that the principal of the two trust estates over which the testatrix had the power of appointment be turned over to the executor to be administered by him. Upon refusal by the said trustee to comply with this demand the executor filed two suits in equity in the United States District Court for the District of Rhode Island to compel compliance. This action appears to have been taken by the executor on his own initiative and without the consent of the appellees. Before said suits were filed the Rhode Island Hospital Trust Co., after the demand for the funds had been made, brought a bill of equity in this court a .«king for instructions as to the disposition of the funds in these two trusts. In Rhode Island Hospital Trust Co. v. Anthony, 49 R. I. 339, this court rejected the claim of the executor to said funds and directed the trustee to continue to administer the trusts and to pay therefrom all inheritance or other taxes properly chargeable against these funds. Prior to the entry of the decrees now before us the appellant Dolan filed a petition in the Probate Court for Norfolk County, Massachusetts, reciting that he had acted as attorney for the executor in Massachusetts and praying said court to order the executor to pay him $13,000. Such order was entered and execution against O’Neill was issued which remains unsatisfied. The probate courts in Massachusetts are by statute made courts o'f superior and general jurisdiction with reference to all cases and matters in which they have jurisdiction. General Laws, Mass., Chapter 215. This judgment or order against O’Neill has the same force and effect as a judgment in our Superior Court against an executor would have. The appellants’ contention that there has been an abuse of discretion by the disallowance of the petition for transmission of the funds is based on the erroneous argument that expenses of administration stand on the same ground as debts of the decedent. Assuming that the assets at the domicile were not depleted by extravagant allowances for expenses of administration we would have no hesitancy in declaring it an abuse of discretion not to provide for the payment of the acknowledged debts of the decedent in Massachusetts before ordering distribution to the legatees. Charges of administration are not debts of the decedent and the court of ancillary jurisdiction may properly inquire into the justness of such • charges when asked to transmit funds for their payment. The judgment against O’Neill is for services rendered to him as executor in Massachusetts. As already noted the total estate in Massachusetts was about $7,500. The appellant Dolan has been paid $2,000. As there was no contest to the will and no services of counsel beyond those usual in a small estate were required, this amount would appear to be ample compensation for all services which could have been legitimately rendered. It is highly improbable that counsel fees amounting to $15,000 in an estate totaling $7,500, would have been allowed by any court if the allowance of such fees had been contested by the executor. The executor and his counsel are members of the same law firm and the testimony of the former in the Superior Court shows that he approved the amount of the fee allowed by the Probate Court of Norfolk County. An examination of the record discloses that the items which would tend to support Mr. Dolan’s claim for a large fee were rendered to the executor of the estate in Rhode Island and consequently should have been presented for allowance in the Probate Court of the City of Providence. From the record before us it is obvious that both the executor and his counsel base their expectation of a large fee on what they assert was a large estate when in fact they were called upon to administer only a comparatively small estate. As to the trust fund left by William Beckwith, even the most cursory examination of his will shows that the testatrix had only a life estate therein and that the ultimate disposition of this trust fund was no concern of the executor. The efforts of the appellants to obtain possession of the remaining trust funds were not in the interest of the appellees but were detrimental to them. It was not the duty of the executor to attempt to get possession of these funds for the purpose of paying estate and inheritance taxes. These taxes, as pointed out in R. I. H. Trust Co. v. Anthony, supra, should be paid by the trustee. As the estate was large enough to pay all indebtedness of the decedent plus all reasonable charges of administration on an estate of this size, the only reasonable inference that can be drawn from the attempts of the executor to get possession of these funds is that it was done to swell the fees of himself and counsel. Under these circumstances it was not an abuse of discretion to refuse to transmit the funds to the court of the domicile.

The appellants rely upon Pendleton v. Hare, (Texas) 231 S. W. 334 and In re Green’s Estate, 226 N. Y. Sup. 436. In both these cases the court found as a fact that services beneficial to the distributees had been rendered to the domiciliary administrator but in neither case were the funds ordered transmitted. The claimants were given the right to present their claims to the court of ancillary administration.

Huddy & Moulton, James H. Morson, of Massachusetts Bar, for appellants.

Gardner, Moss & Haslam, Charles R. Haslam, Thomas F. Black, Jr., for appellees.

The point most strongly pressed by the appellants is that the appellees are estopped to contest the validity of the claim for counsel fees because they were represented by counsel at the hearing in the Probate Court of Norfolk County on the petition of the appellant Dolan for an order directing the executor to pay him $13,000. It is not clear in what capacity counsel for appellees appeared. The matter before the court was a suit between Dolan and the executor. The estate was not involved until the order or judgment was presented for allowance in the account of the executor and, in the matter of the allowance of the account, counsel for the appellees did not participate. The appearance of counsel in a matter in which the estate was not directly involved furnishes no ground for the application of the doctrine of estoppel. The order or judgment of the Probate Court of Norfolk County was not presented for allowance in the Probate Court of the City of Providence but was offered only, as stated by counsel, as evidence of the fact that such an order or judgment had been entered in Massachusetts. No question as to the full faith and credit clause of the Constitution of the United States therefore arises.

As the reasons of appeal from the decrees of the Probate Court are the same for each appellant, it is unnecessary to consider the exception of the appellant Dolan to the decision of the Superior Court dismissing his appeal on the ground that he was not a party aggrieved by the decree of the Probate Court of the City of Providence within the meaning of the statute.

The exceptions in each case are overruled and each case is remitted to the Superior Court for further proceedings following the decision.

William A. Needham, for petitioners.

Curran, Hart, Gainer & Carr, Patrick P. Curran, Félix A. Toupin, for respondents.  