Page:Harvard Law Review Volume 32.djvu/365

329 PROBLEMS IN PROBATE AND ADMINISTRATION 329 general the probate court of the county where the deceased last dwelt has jurisdiction. If the deceased dwelt in another state, the court of the county in which he left effects. And, if there are more than one of these, the county where jurisdiction is first taken. ^* In England since Stat. 20 & 21 Vict., c. 77, § 23 (1857), but one court has jurisdiction.^^ Grant of probate or administration in the wrong locality is voidable, not void.^° Refunding An executor or administrator is never protected in paying legacies or shares when a present existing liability of the estate known to him is outstanding; nor will a court order such a distribution. With respect to debts or liabilities known to the representative which are not yet due or may never become due, the situation of the ex- ecutor or administrator is a difficult one. The English practice has not been uniform. It was held in Simmons v. Bolland^^ that the executors could not be compelled without security to deliver over to a residuary legatee the whole of the estate when there was a possible future Hability on covenants made by the deceased. The practice of giving security has disappeared, but the executor or administrator, if he distribute the assets under order of court in of an absentee, and a distribution of those efifects after absence for a certain time. There is a division of opinion on the constitutionality of legislation of this sort. Cunnius v. Reading School District, 198 U. S. 458 (1905); Nelson v. Blinn, 197 Mass. 279, 83 N. E. 889 (1908); Clapp V. Houg, 12 N. D. 600, 98 N. W. 710 (1904); Carr v. Brown, 20 R. I. 215, 38 Atl. 9 (1897); Selden v. Kennedy, 104 Va. 826, 52 S. E. 635 (1906). 8* I WoERNER, Amer. Law Adm., 2 ed., § 204. 88 For a description of jurisdiction of English probate courts prior to 1857, see 4 Gray Cas. on Property, 2 ed., 411-13. ^ Holmes v. Oregon & California Ry. Co., 5 Fed. 523 (1881); Kling v. Connell, 105 Ala. 590, 17 So. 38 (1894); Irwin v. Scriber, 18 Cal. 499 (1861); Estate of Griffith, 84 Cal. 107, 23 Pac. 528 (1890); Tant v. Wigfall, 65 Ga. 412 (1880); Donahue v. Daniel, 58 Md. 595 (1882); McFeely v. Scott, 128 Mass. 16 (under statute) (1879); Johnson v. Beazley, 65 Mo. 250 (1877); Bolton v. Schriever, 135 N. Y. 65 (1892); Eller v. Rich- ardson, 89 Tenn. 575, 15 S. W. 650 (1891); Burdett v. Silsbee, 15 Tex. 604 (1855); Fisher v. Bassett, 9 Leigh (Va.) 119 (1869) (semble). Miller v. Swan, 91 Ky. 36, 14 S. W. 964 (1890); Miltenberger v. Favrot, 21 La. Ann. 399 (1837); People's Savings Bank v. Wilcox, 15 R. I. 258, 3 Atl. 211 (1886), conira. And see Slate's Estate, 40 Ore. 349, 68 Pac. 399 (1902). « 3 Mer. 547 (1817).