IN RE ESTATE OF PETER PITCHLYNN, DECEASED

IN RE ESTATE OF PETER PITCHLYNN, DECEASED. Administration ; Who Entitled to Letters of. The creditor of an alleged distributee has no right as such to apply for letters of administration upon the personal estate of the ancestor, or to intervene in such a proceeding. No. 3,301. Orphans' Court Cal. No. 30. Decided June 1, 1891. Justices Hagner and James sitting. Appeal from a decree of the Orphans’ Court dismissing a petition. Decree affirmed. Statement of the case by Mr. Justice Hagner: This appeal is taken from an order of the Orphans’ Court dismissing what was called the amended petition of Thomas ‘Q. Hildebrant and Robert Morrison, as partners of the firm of Hildebrant & Morrison, which prayed that the widow and executrix of Peter Pitchlynn should be required to produce for probate the last will and testament of the deceased, and account in that court of and concerning his personal estate. The petitioners alleged that Peter Pitchlynn had died seven years previously in Washington city, leaving surviving him a widow and a large number of children, all of whom had continuously resided there since their birth ; that the deceased Rad been a resident of Washington city for many years before his marriage and until-his death; that he died possessed of a valuable real and personal estate located there, having executed a last will and testament, by which he appointed his widow sole executrix and made division of his estate between the widow and his children, and a copy of the alleged will was filed with the petition as an exhibit, with a letter from the widow to her son Thomas admitting the correctness of the .allegations as to its contents. They further charged that the widow had possessed Rerself of the personalty, but had neglected and refused to present the will for record and probate in this jurisdiction, or to distribute the property as directed by the will and required by law; that Thomas Pitchlynn, therefore, was entitled to participate in said estate, but the widow had refused to comply with his demand for his share thereof; that in 1886 the said Thomas executed a full power of attorney, authorizing the petitioners to act in all matters arising out of the will of his father, and that the widow had. also refused to respect the demands of the petitioners, as such attorneys, to pay over to them the share of the said Thomas.. The prayer of the petitioners was for a citation requiring the widow to answer, and that she should be compelled to comply with their demand. In her sworn answer the widow denies every one of the statements in the petition as to the residence and domicile of Peter Pitchlynn, and states that although he died here, he was-at the time a citizen of the Choctaw Nation; that he was a Choctaw Indian, and his home and birthplace were in the Indian country; that he was frequently in Washington, employed as the agent of the Choctaws, but had never had any residence or domicile here; that his children were born in the Choctaw country, and that she herself claims to be a resident of that territory; that the deceased left no estate whatsoever here, and that she has never received any estate belonging to him at all; that the money referred to in the petition as having been received by her consisted of about thirty-four thousand dollars, which was paid to her by the Choctaws out of compensation received by them from Congress, and was given by the Choctaw Nation to her as the wife of Peter Pitchlynn, as a gratuity, in recognition of his long-continued services as agent of the tribe, and that at the same time the Nation gave, as a similar gratuity, to each of her children (including the said Thomas Pitchlynn), eight thousand dollars, which gratuities have been paid to the said Thomas and to the other children respectively; that these sums of money never belonged to the estate of Peter Pitchlynn ; that they were received in the territory of the Choctaw Nation and never were within the jurisdiction of the Orphans’ Court of this District, and for this-further reason cannot be administered here as part of the estate of the deceased. Upon the petition and exhibits, and the answer, and after argument of counsel, the Justice holding the Orphans’ Court quashed the citation and dismissed the petition. Mr. Jno. N. Oliver for petitioning creditors. Mr. J. J. Weed for appellee. [MAJORITY — Mr. Justice Hagner] Mr. Justice Hagner delivered the opinion of the Court: The right of the petitioners to institute this proceeding is asserted in their quality of creditors of Thomas Pitchlynn, as-evidenced by the recitals in the power of attorney. But the estate they are endeavoring to reach is that of Peter' Pitchlynn; and of that person or his estate they were never creditors. The creditor of an alleged distributee has no right as such to apply for letters of administration upon the personal estate of the ancestor, or to intervene in such a proceeding. The assets of deceased persons are not held as subjects of speculation, to be intrusted to those who may be most vigilant in making application. His personal representatives first, and afterwards his creditors, are entitled to that trust; and it is only in their absence that others can be allowed to interfere. The petitioners also claim as attorneys in fact of Thomas Pitchlynn under the power of attorney. But that instrument constitutes Morrison and Hildebrant, under that firm’s name, his attorneys, “for me and in my name, place and stead, to^ prosecute all actions” respecting the estate of Peter Pitchlynn. If this application can be considered as an “action” within the meaning of the power, it should have been instituted in the name of Thomas Pitchlynn, and not in the name of the attorneys, as was done in this case. But apart from these difficulties., we are satisfied, upon the whole case, that the petitioners have not sustained their contention that the widow has received property which can properly be considered assets of Peter Pitchlynn in this jurisdiction; and that the judgment of the court below was correct, and it is accordingly affirmed.