Newcomb v. Newcomb. tates is governed by the law of the State or country where the property is situated, and from whence the fiduciary derives his authority to take possession and control of the property; and the personal assets of a decedent have a situs for the purpose of administration entirely distinet from the domicile of the decedent, except when necessary to pay debts. See Story, Confl. Laws, section 422, and numerous authorities there cited. It will be conceded that the law of the domicile of a decedent must govern in the distribution of personal estate among his heirs, and that this distribution is to be made under the authority of the court within whose jurisdiction the decedent had his domicile, in cases of intestacy. The sitac rei as well as the presence of the parties confer jurisdiction to decree distribution according to the law of the domcile, and such a jursdiction is not inconsistent with international policy; but it seems to us that this doctrine can have no application under the facts of this case, where there are no creditors complaining, and where a will disposing of the personalty within the foreign jurisdiction has been duly admitted to probate. This seems to be the view generally taken by the Kentucky decisions to which our attention has been called, and the Federal authorities seem to be of the same tenor. In the case of Kerr v. Moon, 9 Wheat. 565, 6 L. Ed., 161, the court said: "But, could it even be conceded that this was personal property, it would still be property within the State of Ohio; and we hold it to be perfectly clear that a person claiming under a will proved in one State can not intermeddle with or sue for the effects of a testator in another State, unless the will be proved in that other State, or unless he be permitted to do so by some law of that State." In Stacy v. Thrasher, 6 How. 44, 12 L. Ed., 337, the court said: "It follows as Newcomb v. Newcomb. a necessary inference from these well-established principles 'that, where administrations are granted to different persons in different States, they are so far deemed independent of each other that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration; for, in contemplation of law, there is no privity between him and the other administrator, "-citing Story, Confl. Laws, section 522. In Reed v. Reed, 91 Ky., 267, (15 S. W., 525,) (11 L. R. A., 513,) this court said: "The probate of a will is an ex parte proceeding, and essentially one in rem. It determines the status of the property. The order of probate, while it remains in force and not superseded, is binding not only upon the interested parties, but it is valid to all the world." In Mitchell v. Holder, 8 Bush, 362, it was said: "It has been repeatedly held that probate or rejection of a will by a proper court, having the case regularly before it, was like a sentence in rem,-conclusive while it remained in force in the same and all other courts, and between all persons, whether formal parties to the record or not." In 21 Wall., 503, 22 L. Ed., 599, in the Broderick Will Case, which came up from California, the supreme court of that State, in an elaborate opinion delivered by Judge Norton, said: "Upon examining the decisions of the supreme court of the United States and of the courts of the several States, it will be found that they have uniformly held that the principles established in England apply and govern cases arising under the probate laws of this country, and that in the United States, wherever the power to probate a will is given to a probate court, the decree of such court is final and conclusive, and not subject, except on appeal to a higher court, to be questioned in any other court." We have been cited Newcomb v. Newcomb. to a large number of other cases which, in effect, hold the same doctrine; and as the English court had jurisdiction, under Act 24 & 25 Vict., to grant probate of the will of E. B. Newcomb, all the personalty belonging to his estate then situate in England vested in the executrix for administration under the English law, and her liability as execu trix can only be tested by that law. But it is insisted for appellee that, even if it be conceded that the English court had jurisdiction to probate the will, such foreign probate is only ancillary, and, after the payment of all debts and other claims provable against the estate in England, the personal representative of the deceased, under the law of Victoria, must hand over the distributable residue to the personal representative of the deceased, under the law of his domicile, and leave to such representative the distribution thereof among the beneficiaries, and that all persons who claim a share in the decedent's estate may enforce their claims before the tribunals of his domicile; citing Dicey, Confl. Laws, in support of this contention. The effect of such a construction as this would be to ignore the disposition made by testator of his property. While it is conceded that the will of testator is entitled to probate in the English court for the purpos. of disposing of personal estate located in England, it necessarily follows that such property must go and be disposed of in accordance with the terms of the will itself, and can not again be the subject of litigation or adjudica tion in the courts of the domicile. In Re Rippon, 3 Swab. & T., 177, cited in Jac. Fish. Dig. col 13,698, it was held that where a British subject died abroad, leaving a will executed in England, it was immaterial to consider whether he had or had not acquired a foreign domicile. In Jarm. Wills (5th Ed.) the author says that the act to amend the Newcomb v. Newcomb. law with respect to wills of personal estate made by British subjects was passed to obviate the question arising between an original and an ancillary probate; that it af fects British subjects only, and can only be enforced where the property in question is locally situate within British jurisdiction; that foreign courts are not bound to recognize the act in determining whether a given instrument is a valid will of personal property within their own jurisdiction, and thus the personal property, British and foreign, of the British subject may be distributable according to two distinct laws. When it has been determined that the English court has, by virtue of the English law, jurisdiction to probate the will of a British subject as to personal estate located in England, without regard to the place of his domicile, it is a necessary sequence that neither the validity of such will, nor the disposition of personal estate located in England, covered by it, can be assailed in the courts of this country. For the reasons indicated herein, the judgment appealed from is reversed, with instructions to the lower court to dismiss the amended petition of W. S. Newcomb, and for other proceedings consistent herewith. Campbell et als. v. Trosper. CASE 84-ACTION TO SET ASIDE A DEED FOR FRAUD TO AVOID PAYMENT HUSBAND Campbell & Others v. Trosper. APPEAL FROM KNOX CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED. Held: 1. Where a judgment for alimony does not provide for a lien on the estate of the divorced husband, only a personal liability is created. 2. Kentucky Statutes, section 2126, providing that sales and conveyances made to a purchaser without notice, in fraud or hindrance of the right of the wife or child to maintenance, shall be void as against them, does not apply to a conveyance made by a divorced husband to defeat the wife's claim for alimony; but, as she is a creditor, she may, like any other creditor, maintain an action under Id., section 1907a, to subject the land fraudulently conveyed, without first obtaining judgment and return of "no property." 3. While the finding of the chancellor will not, on appeal, be given the effect of the verdict of a jury, yet, where the evidence is conflicting, some weight will be given to his finding, and it will not be disturbed if on the whole case the mind is left in doubt as to the truth. 4. Where a divorced husband, for the purpose of defeating the wife's judgment for alimony, fraudulently conveyed his property to persons who, being on terms of intimacy with him, knew of the separation and of the wife's judgment, and who permitted the grantor and his paramour to continue to occupy the property as had been done prior to the conveyance, when they must have known that the effect of the conveyance would be to defeat the wife's claim, the chancellor's finding that they had notice of the grantor's fraudulent intent will not be disturbed. 5. The grantees in a fraudulent conveyance which is set aside in an action by a creditor of the grantor can not be substituted to the rights of mortgagees whose liens they discharged, in the absence of a pleading alleging the facts entitling them to such relief. |