§ 1402. Including Property in Inventory Does Not Estop Representative from Subsequently Claiming Title Thereto. When an executor or administrator includes in his inventory his own promissory note to the decedent, it is held that this is not sufficient knowledge of the debt to take it out of the statute of limitations;67 but the contrary is held in New York.68 Where the executor or administrator claims property which he includes in the inventory because ordered to do so by the court, he may note in the inventory the fact of the court's order" and is not debarred from a hearing on the merits later. An order that the executor or administrator include certain property in the inventory is interlocutory, and not an adjudication of the title to the property." Proceedings to compel the representative to inventory certain property are summary and in the nature of a preliminary investigation to determine probabilities, and not ultimate rights. The effect and purpose of the order is to bring the matter of the disputed property within the jurisdiction of the court so that the interests of the estate may be protected."1 67 Bell's Estate, 25 Pa. 92; Black v. White, 13 S. C. 37. As to the effect and operation of an inventory and appraisement, see §§ 1410, 1411. In Lynch v. Divan, 66 Wis. 490, 29 N. W. 213, it was held that the executor should include in his inventory all notes or claims against him held by the estate, irrespective of whether or not he recognizes them as valid. 68 Clark v. Van Amburgh, 14 Hun (N. Y.) 557; In re Daggett, 1 Misc. Rep. 248, 22 N. Y. Supp. 911; affirmed in 75 Hun 612, 28 N. Y. Supp. 1127. 69 Simms v. Guess, 52 Ill. App. 543; Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642; Hilton v. Briggs, 54 Mich. 265, 20 N. W. 47; Lynch v. Divan, 66 Wis. 490, 29 N. W. 213. 70 Simms v. Guess, 52 Ill. App. 543. See § 1401. 71 Simms v. Guess, 52 Ill. App. 543; Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642. It is quite possible that the executor or administrator may include in the inventory, by reason of mistake or because of ignorance of legal rights, property to which he is personally entitled. Such a condition should not change the fact of real ownership nor incidentally affect the right of possession attached to such ownership. Where an executor or administrator erroneously includes in the inventory property in fact belonging to himself and of which he had possession prior to his appointment, he is not estopped from thereafter claiming title thereto.72 If the executor or administrator comes into possession of property and refuses to include it in his inventory under the claim that it belongs to himself or to some third person, the fact that the property came into his hands in his representative capacity does not estop him from thereafter showing that the property does not belong to the estate.73 §1403. As to Assets Situated in a Foreign Jurisdiction Being Included in Inventory. The power and authority of an executor or administrator as well as of the court which appoints him is limited to the confines of the state and to the property within its borders. The personal representative can not take possession of any property of the estate situated in a foreign 72 Anthony v. Chapman, 65 Cal. 73, 76, 2 Pac. 889; Koppelmann ▼. Koppelmann, 94 Tex. 40, 57 S. W. 570; In re Murphy's Estate, 30 Wash, 9, 70 Pac. 109. Where an administratrix inventoried lands as belonging to the estate of her deceased husband, because of her ignorance of the law and of her legal rights, she was not estopped from thereafter claiming the property as her own. -Baker v. Brickell, 87 Cal. 329, 342, 25 Pac. 489, 1067. 73 In re Belt's Estate, 29 Wash. 535, 92 Am. St. Rep. 916, 70 Pac. 74. jurisdiction except by the consent of such jurisdiction." Where letters of administration regarding the same estate are granted in different states, each representative should include in his inventory only the property within the jurisdiction wherein his letters are issued.75 And an executor or administrator, having no authority beyond the jurisdiction of his appointment, is not as a general rule required to include in his inventory any property of the estate situated in a foreign jurisdiction, since his responsibility is limited to assets of the estate which may come into his hands.76 In North Carolina a distinction has been drawn between the duty of an executor and of an administrator as to including in his inventory property situated in a foreign jurisdiction, it being held that an administrator, since he derives his authority only from the order of appointment by the court, can exercise no authority beyond the jurisdiction of the court; but that an executor, who derives his authority from the will and not simply from the act of the law, stands upon a different footing, and that the will when proved passes to him, according to the legal effect of the will, the title to the property of the testator wherever it may be situated." But title to personal property passes in the event of intestacy according to the law of the last domicile of the decedent, and a will disposing of personal property must be exe 74 As to foreign and ancillary administration, see §§ 1368-1391. 75 As to the situs of personalty for the purpose of ancillary administration, see §§ 1375, 1376. As to necessity of local administration in jurisdiction where real property is situated, see § 1377. 76 Strong v. White, 19 Conn. 238; Black v. Whitall, 9 N. J. Eq. 572, 59 Am. Dec. 423; Normand's Admr. v. Grognard, 17 N. J. Eq. 425. Contra: Estate of Butler, 38 N. Y. 397. 77 Grant v. Reese, 94 N. C. 720. cuted with all the formalities prescribed by the law of the decedent's last domicile. Title to real property can pass only in the manner sanctioned by the law of its situs, irrespective of the last domicile of the decedent owner. It therefore appears that title to the property of a decedent, whether passing under his will or according to the laws of succession, depends upon the law of the decedent's last domicile as to personalty and upon the law of the situs as to realty.78 The title to personalty vests in the one to whom administration is granted in the last domicile of the decedent, and he has the right to collect and take possession of choses in action and chattels when the same are voluntarily paid or delivered to him." But he has no right to sue except in the jurisdiction of his appointment.80 He has, however, the right to transfer or assign the title to personal property situated in foreign jurisdictions without taking out ancillary letters therein.81 An executor or administrator is liable for foreign assets which come into his possession, or for the proceeds thereof in the event of sale. To such an extent a liability attaches regarding personal property even though situated in another state; and a personal representative must account for all property which comes into his possession whether from the local or from a foreign jurisdiction.82 78 The will of a testator can not override the statute requiring letters testamentary to be issued. See § 1366. Rights in real property are governed by the law of its situs. See $269. Succession to personal property is governed by the law of the domicile of the decedent. See $270. Devises of real property are governed by the law of its situs. See §§ 271, 272. Bequests of personalty are governed by the law of the testator's domicile. See §§ 273-275. 1384. 79 See It is also the duty of the domiciliary representative to see that all of the assets of the estate, wheresoever situated, are properly administered. The better rule seems to be that the probate court may in its discretion order an executor or administrator to include in his inventory all the personal property of the decedent wheresoever situated.83 § 1404. As to Including Real Property in the Inventory. The decisions are not in harmony regarding the necessity of including real estate in the inventory. At common law the executor or administrator had no authority regarding real property since it passed directly to the heir or devisee, and such is the general rule today except that in most jurisdictions real property is subject to the payment of the debts of the decedent when the personalty is insufficient for that purpose.84 Further, a testator in his will may charge all of his realty or some specific portion thereof with the payment of debts and legacies, and the general rule today is that real property passes into the hands of the personal representative of the deceased for the purpose of administration. But although an executor or administrator may collect the income from real property, he can not dispose of the realty except by an order of the court unless so authorized to do by the will of the decedent. When a sale of real property is made under order of court, an additional bond as security for the proceeds of the sale is generally required. If an executor or administrator may collect the rents, issues 83 See Hopkins' Appeal, 77 Conn. 644, 60 Atl. 657; Bridgeport Trust Co.'s Appeal, 77 Conn. 657, 60 Atl. 662. 84 See §§ 782-785. See, also, §§ 1182, 1183. 85 See §§ 786-812. |