CHAPTER XXIII. THE POLICE POWER. I. THE POLICE POWER IS IN THE STATES. II. ITS EXTENT. III. THIS POWER REMAINED IN THE ORIGINAL STATES. I. THE POLICE POWER IS IN THE STATES. The police power is in the States so far as regards their domestic police; but cannot be so regulated or exercised as to interfere with or fetter commerce, or to infringe upon the exclusive power of Congress to regulate commerce with foreign nations, and between the several States and with the Indian tribes.1 II. ITS Extent. It extends to the protection of the lives, limbs, comfort and quiet of all persons, and may exclude from introduction into the State contagious and infectious diseases; may make inspection laws; and may exclude or prevent the introduction of criminals, convicts, paupers, idiots, lunatics, and others likely to become a burden or public charge, so far as it may be exercised without interfering with the power of Congress over the subject of commerce, herein before referred to. The precise extent of this power, it is "difficult to define with sharp precision," but whatever invades the domain of legislating vested exclusively in 1 Railroad Company v. Husen, 5 Otto, 465; Thorpe v. Rutland & Burlington R. R. Co., 27 Vt, 140; Northwestern Fertilizing Co. v. Hyde Park, Chicago Legal News, Vol. XI. p. 81 (U. S. Supreme Court, October Term, 1878); Patterson v. Kentucky (U. S. Supreme Court, October Term, 1878), Chicago Legal News, Vol. XI. p. 183; Gibbons v. Ogden, 9 Wheat. 1; License Cases, 5 How. 504; Beer Company v. Railroad Company . Husen, 5 Otto, 465; Commonwealth . Alger, 7 Cush. 84; Munn v. Illinois, 4 Otto, 113; Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 149; Cooley on Const. Lim., 4th Ed. 713 et seq. Congress is void, no matter how closely allied to powers belonging to the States. It is well said, that as the range of this power sometimes comes very near to the field committed by the constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion. The police regulations of a State requiring railroad corporations to fence their roads, or in default thereof to pay for injuries to live stock thereon, applies as well to foreign railroad corporations running lines of railroad in the State, as to local or domestic corporations. The fact that such statute can only be enforced within the State where enacted does not alter the case. A foreign corporation there operating a railroad is subject to the statute to the same extent as local corporations, and so the danger to the public is equally great from one and the other. The object is not only to protect the owners of live stock from loss, but also to protect the public, as passengers, from injuries resulting from accidents caused by running against and over live stock coming onto the roads. Such foreign corporations are not only within the act, but are suable in the State by service on their agents.3 III. THIS POWER WAS IN THE ORIGINAL STATES. The police power belonged to the several original States of the Union, before and at the time of the adoption of the national constitution, and except in so far as its exercise by them may impair the right of Congress to regulate commerce as conferred by the constitution, it was not surrendered or taken away from the States by the adoption of the same.1 IV. AND BY PARITY OF RIGHT IS IN THE NEW STATES. It follows that it exists in the new States to the same extent as in the old ones, from their admission into the Union on an equal footing with the old, or original ones.5 Railroad Company v. Husen, 5 Otto, 465, 470, 472. Ibid. Purdy v. New York & New Haven R. R. Co., 61 N. Y. 353. Northwestern Fertilizing Co. v. Hyde Park, Chicago Legal News, Vol. XI. p. 81 (U. S. Supreme Court, October Term, 1878); Railroad Co. v. Husen, 5 Otto, 465; U. S. v. Reese, 2 Otto, 214; U. S. v. Cruikshank, 2 Otto, 542; Patterson v. The Commonwealth (U. S. Sup. Ct., Oct. Term, 1878), XI. Chicago Legal News (Feb. 22d, 1879), p. 183; Cooley on Const. Lim., 4th Ed. 715. 5 Supra. CHAPTER XXIV. INTER-STATE RIGHTS, POWERS AND DUTIES OF EXECUTORS, ADMINIS TRATORS AND GUARDIANS. I. WHERE LETTERS TESTAMENTARY AND OF ADMINISTRATION SHOULD BE GRANTED. II. THE POWERS, LIABILITIES AND DUTIES OF EXECUTORS AND ADMINISTRATORS ARE LOCAL. III. INTER-STATE ACTIONS BY AND AGAINST EXECUTORS AND ADMINIS TRATORS ON FOREIGN JUDGMENTS. IV. EXECUTORS AND ADMINISTRATORS SUING IN THEIR OWN RIGHT. V. NON-RESIDENCE AND REMOVAL FROM THE STATE. VI. STATUTORY POWER TO ACT IN OTHER STATES. VII. WILLS; PROBATE; VALIDITY OF. HOW FAR BINDING IN OTHER X. JURISDICTION OF NATIONAL COURTS IN INTER-STATE PROBATES. XI. PLEADINGS IN INTER-STATE SUITS IN PROBATE MATTERS. I. WHERE LETTERS TESTAMENTARY AND OF ADMINISTRATION SHOULD BE GRANTED. The Place of Domicile. The proper jurisdiction in which to obtain letters testamentary or of administration is in the State and place of the decedent's domicile, at the time of his death.1 Ancillary Letters. If there be assets in another State or States, and administration be obtained there, such administration is ancillary to that of the administrator or executor acting as such at the place of the decedent's domicile, at and immediately preceding his death.2 Excess of Assets. But although it is a general principle that administration on a decedent's estate granted elsewhere than in 1 Crosby v. Leavitt, 4 Allen, 410; Christy v. Vest, 36 Iowa, 285; Chamberlin . Wilson, 45 Iowa, 149; 1 Williams on Executors, 495, et seq. 6th Am. Ed. top paging. Ibid. And see, also, Probate Court v. Kimball, 42 Vt. 320; Chamberlin v. Wilson, 45 Iowa, 149. the State of decedent's domicile is regarded as ancillary to the administration of the domicile, yet it is nevertheless the law that it is so only as to the excess of assets over what satisfies domestic creditors; and inasmuch as every State has the right of directing by law the disposition of property therein, therefore property in a State belonging to a non-resident is, on his decease, subject to be disposed of under the laws of the State, and to be sold, in case of insolvency of the estate therein, notwithstanding the estate be solvent in the State where the decedent died, for the creditors are not bound to look for payment in a foreign jurisdiction.1 Void Letters. If administration or letters testamentary be granted of a deceased person's estate in a different State than that of his last and true domicile, and there are no assets of the deceased in the said State or jurisdiction in which the letters are thus obtained, then such letters and authority are totally void,2 for there is no property or interest of the deceased therein to confer jurisdiction on the court, or to grant administration or testamentary letters upon. It is well settled that an administrator of a deceased person cannot be appointed by a court of a State other than that of his domicile at his death, if in such other State he left no estate.3 And the fact that at his death he was defendant in an attachment suit in another State, wherein property of his was attached and in the custody of the law, will not alter the case when such property has been receipted for to account to the officer and removed to the place of domicile in another State. The appointment of an administrator where the suit is pending, and rendition of judgment in such suit against him under such circumstances, are equally void.4 Surplus of Assets to be Turned Over to Principal Administrator or Executor by Ancillary Administrator. If there be ancillary administration also, that is administration in some Gilchrist v. Cannon, 1 Cold. 581; Goodall v. Marshall, 11 N. H. 88; Churchill. Boyden, 17 Vt. 319; Stevens . Gaylord, 11 Mass. 256. And see, also, Perkins' note to Williams on Executors, vol. III., p. 1763, 6th Am. Ed. See, further, Miner v. Austin, 45 Iowa, 221. 2 Christy v. Vest, 36 Iowa, 285. Crosby v. Leavitt, 4 Allen, 410; Miller v. Jones, 26 Ala. 247; Grimes v. Talbert, 14 Md. 169; Thumb v. Gresham, 2 Met. (Ky.) 306; Broughton v. Bradley, 34 Ala. 694; Jeffersonville R. R. Co. v. Swayne, 26 Ind. 447. 4 Crosby v. Leavitt, 4 Allen, 410. other State than that of the decedent's domicile, in which other State there are assets, then this ancillary administration is servient to the other, which other is the principal administration, and, therefore, when local claims, liens and legacies of a local character are satisfied out of the assets, as also costs and charges of administration, the residue of the estate in the hands of the ancillary administrator will be required, by the court, as a usual course, to be handed over to the administrator of the domicile for distribution under the law thereof.1 Payment of a debtor to a foreign administrator will not discharge him from the debt." II. THE POWERS, LIABILITIES AND DUTIES OF EXECUTORS, ADMINISTRATORS AND GUARDIANS Are Local. Are Local to the State wherein Granted. The rights, powers and duties of administrators of deceased persons are co-extensive only in a territorial point of view with the territorial boundaries of the State in which their letters testamentary, or letters of administration, are obtained; they do not, in law, extend beyond such jurisdiction, or into that of any other State or States, by virtue of their own force, or in virtue of the force or power of the government or laws, from which such letters emanate. They do not confer without more a right or title to property, although it be of a personal or movable nature; nor right of property or control of any interests, or debts, or choses in action, so situated within other States, or power to release, transfer, or discharge the same; nor right to institute and maintain in their official or fiduciary capacity any action or suit in the courts of another State or States, than the one where such letters are granted; and, therefore, no such powers or authority can be exercised by such administrators outside of the local jurisdiction of the State from which their powers are obtained, or over property or rights situated outside of such local jurisdiction, by mere force of their respective original letters or grant, but can only be exercised and enforced by them in such other State, by virtue of authority of law existing in such other State or States, if such law there be, permitting the exercise of such powers and conferring such rights upon administrators of other States; and if there be no Probate Court v. Kimball, 42 Vt. 320; Low v. Bartlett, 8 Allen, 259; Ela e. Edwards, 13 Allen, 48. Young . O'Neal, 3 Sneed, 55. 3 McClure . Bates, 12 Iowa, 77; Karrick v. Pratt, 4 G. Greene, 144; |