Kellogg, P. J.:
Count Amedee De Gasquet James was bom at New Orleans. His mother was a French woman. They removed from New Orleans to France about 1863, where he lived with his mother until his marriage with the appellant in 1881. He inherited from his mother, or acquired through her, the title of count in France, and lived and died there as a French nobleman. His mother was buried in the family vault at Loudres, France, where at his request he was buried. In 1881 he came from France to this State for the purpose of marrying the appellant, and immediately after the marriage they returned to France and made it their home. At and before the time of the marriage it was the intention of both to go to France to live. From the time he left New Orleans until the date of his death he had no other domicile or residence than France, and from the time of her marriage the appellant has had no other domicile or residence. It seems clear that France was the matrimonial domicile, and that the marriage rights of the spouses depend upon the laws of France. His will, written by himself in French, was made and probated in France, and the law of France should determine its effect and control the settlement of his estate. The controversy here" arises between the mother, their two daughters, son, and two grandchildren [803]*803representing a deceased daughter. Two of the daughters married French husbands and áre citizens and residents of France; the other daughter married a major in the German army, lived and died in Germany, and her minor children, after their mother’s death, resided with the appellant until about the time these proceedings were brought, when they returned to their father in Germany. The son has always lived in France. The appellant has not resided in America since her marriage, and none of the other parties ever resided here. All acts or neglects of the appellant with reference to this estate occurred in France.
It is claimed, however, that by probating her husband’s will and taking the property given to her thereunder, she has renounced her marital rights and is limited strictly to the provisions of the will, or, as it is otherwise stated, “ By the judgment of the French court the question is res adjudicóla here.” The French judgment is what we would call the decree admitting the will to probate. The will had been filed before that time in the probate office, but the heirs and next of kin had not been cited, and this judgment upon the appellant’s petition was made to establish its validity. It recites that the action was brought by the widow to require the delivery to her of the legacies; that the will is regular in form, and it is proper to grant her prayer, and it directs that the will be carried out according to its form and tenor, and that “ the specific legacy ” given to her by the will be delivered. There is nothing before us to show what proof was submitted to the French court, or that any other questions were considered or determined. We must assume that the court made proper inquiry and had knowledge of the facts necessary to enable it to pass upon the validity of the will. We cannot assume that any material fact was suppressed. It appeared before the court that while the testator was an American subject, he was a resident and a property owner of France, with several residences and establishments there; that he was a French count, and that he left a wife and four children surviving him; that his property was situated in America, France and elsewhere, and that the will was written by him in French, indicating an intent that it should be probated in France, and that he and his family were [804]*804permanent residents of France. The court knew that the system of community prevailed generally in France between husband and wife unless by contract between them it was otherwise provided, and there is no suggestion that any such contract ever existed. The appellant, her children and the republic were represented by counsel. Upon the death of a husband the application of the community system is the ordinary rule in France; any other property rights between the spouses would be an exception to the general rule. The natural inference, therefore, arises that it was assumed that the community system applied to these spouses, or that so far as the matters before the court were concerned it was immaterial whether it applied or not. If it had been necessary to determine whether the community system applied in this case, further information would have been required. A conclusion that the community system did not apply would have been against the facts and the law of the case, and necessarily would have resulted from false information or carelessness upon the part of thé court and counsel, none of which can be assumed. The inference follows that the court assumed that community existed, or determined that it was immaterial whether or not it existed; that in any and all events the will was valid and effectual. It is a pure effort of the imagination to assume that the decree established, directly or indirectly, that the community system did not apply. If any inference is to be drawn upon that subject it is to the contrary. The decree establishes that the benefits given to the wife by the will are not to the prejudice of the rights of the children when the true marital rights of the wife and all the rights of the children are considered. The decree must have been made in consideration of her marital rights and not in disregard of them. The proper inference is that the court concluded that the will did not in any way violate the marital rights of the appellant or any rights of the children, and that it was valid, whatever those rights might be. The question whether the system of community obtained between these spouses was not before the court and was not passed upon by the court, and, therefore, the decree cannot be res adjudicata upon that question.
“ A judgment is not a bar or estoppel in a subsequent litiga[805]*805tion between the same parties of a cause of action which might have been pleaded and determined by it, but was not, although it may be a conclusive adjudication as to questions or facts which were actually litigated and determined.” (Cook v. Conners, 215 N. Y. 175, 178.) We may, therefore, say that the decree is not res adjudicate/, against the appellant.
The appellant, by proving the will and taking possession of the European property, did not elect to forego her rights under the French law. The will is not in any manner inconsistent with those rights. The value of the estate in Europe and of the appellant’s property is not clearly shown. We infer from the record that the American property was of the value of about $600,000; the European property of about $300,000. The surrogate stated upon the trial that he would consider the American estate as two-thirds and the French estate as one-third of the whole property, and none of the parties objected. The property the appellant contributed was apparently about $200,000, making the community property about $1,100,000, of which the appellant’s interest would be about $550,000. But the testator was at liberty to will to her a part at least of his share of the community property. It is said that the French law prohibits a person who leaves him surviving three or more children from willing away more than one-quarter of his property. We do not, however, assume under that rule that three-quarters of the property must go to the children. If he gave to a friend or charity one-quarter of his property, it does not follow that the children would receive the remaining three-quarters and the widow nothing.
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Kellogg, P. J.:
Count Amedee De Gasquet James was bom at New Orleans. His mother was a French woman. They removed from New Orleans to France about 1863, where he lived with his mother until his marriage with the appellant in 1881. He inherited from his mother, or acquired through her, the title of count in France, and lived and died there as a French nobleman. His mother was buried in the family vault at Loudres, France, where at his request he was buried. In 1881 he came from France to this State for the purpose of marrying the appellant, and immediately after the marriage they returned to France and made it their home. At and before the time of the marriage it was the intention of both to go to France to live. From the time he left New Orleans until the date of his death he had no other domicile or residence than France, and from the time of her marriage the appellant has had no other domicile or residence. It seems clear that France was the matrimonial domicile, and that the marriage rights of the spouses depend upon the laws of France. His will, written by himself in French, was made and probated in France, and the law of France should determine its effect and control the settlement of his estate. The controversy here" arises between the mother, their two daughters, son, and two grandchildren [803]*803representing a deceased daughter. Two of the daughters married French husbands and áre citizens and residents of France; the other daughter married a major in the German army, lived and died in Germany, and her minor children, after their mother’s death, resided with the appellant until about the time these proceedings were brought, when they returned to their father in Germany. The son has always lived in France. The appellant has not resided in America since her marriage, and none of the other parties ever resided here. All acts or neglects of the appellant with reference to this estate occurred in France.
It is claimed, however, that by probating her husband’s will and taking the property given to her thereunder, she has renounced her marital rights and is limited strictly to the provisions of the will, or, as it is otherwise stated, “ By the judgment of the French court the question is res adjudicóla here.” The French judgment is what we would call the decree admitting the will to probate. The will had been filed before that time in the probate office, but the heirs and next of kin had not been cited, and this judgment upon the appellant’s petition was made to establish its validity. It recites that the action was brought by the widow to require the delivery to her of the legacies; that the will is regular in form, and it is proper to grant her prayer, and it directs that the will be carried out according to its form and tenor, and that “ the specific legacy ” given to her by the will be delivered. There is nothing before us to show what proof was submitted to the French court, or that any other questions were considered or determined. We must assume that the court made proper inquiry and had knowledge of the facts necessary to enable it to pass upon the validity of the will. We cannot assume that any material fact was suppressed. It appeared before the court that while the testator was an American subject, he was a resident and a property owner of France, with several residences and establishments there; that he was a French count, and that he left a wife and four children surviving him; that his property was situated in America, France and elsewhere, and that the will was written by him in French, indicating an intent that it should be probated in France, and that he and his family were [804]*804permanent residents of France. The court knew that the system of community prevailed generally in France between husband and wife unless by contract between them it was otherwise provided, and there is no suggestion that any such contract ever existed. The appellant, her children and the republic were represented by counsel. Upon the death of a husband the application of the community system is the ordinary rule in France; any other property rights between the spouses would be an exception to the general rule. The natural inference, therefore, arises that it was assumed that the community system applied to these spouses, or that so far as the matters before the court were concerned it was immaterial whether it applied or not. If it had been necessary to determine whether the community system applied in this case, further information would have been required. A conclusion that the community system did not apply would have been against the facts and the law of the case, and necessarily would have resulted from false information or carelessness upon the part of thé court and counsel, none of which can be assumed. The inference follows that the court assumed that community existed, or determined that it was immaterial whether or not it existed; that in any and all events the will was valid and effectual. It is a pure effort of the imagination to assume that the decree established, directly or indirectly, that the community system did not apply. If any inference is to be drawn upon that subject it is to the contrary. The decree establishes that the benefits given to the wife by the will are not to the prejudice of the rights of the children when the true marital rights of the wife and all the rights of the children are considered. The decree must have been made in consideration of her marital rights and not in disregard of them. The proper inference is that the court concluded that the will did not in any way violate the marital rights of the appellant or any rights of the children, and that it was valid, whatever those rights might be. The question whether the system of community obtained between these spouses was not before the court and was not passed upon by the court, and, therefore, the decree cannot be res adjudicata upon that question.
“ A judgment is not a bar or estoppel in a subsequent litiga[805]*805tion between the same parties of a cause of action which might have been pleaded and determined by it, but was not, although it may be a conclusive adjudication as to questions or facts which were actually litigated and determined.” (Cook v. Conners, 215 N. Y. 175, 178.) We may, therefore, say that the decree is not res adjudicate/, against the appellant.
The appellant, by proving the will and taking possession of the European property, did not elect to forego her rights under the French law. The will is not in any manner inconsistent with those rights. The value of the estate in Europe and of the appellant’s property is not clearly shown. We infer from the record that the American property was of the value of about $600,000; the European property of about $300,000. The surrogate stated upon the trial that he would consider the American estate as two-thirds and the French estate as one-third of the whole property, and none of the parties objected. The property the appellant contributed was apparently about $200,000, making the community property about $1,100,000, of which the appellant’s interest would be about $550,000. But the testator was at liberty to will to her a part at least of his share of the community property. It is said that the French law prohibits a person who leaves him surviving three or more children from willing away more than one-quarter of his property. We do not, however, assume under that rule that three-quarters of the property must go to the children. If he gave to a friend or charity one-quarter of his property, it does not follow that the children would receive the remaining three-quarters and the widow nothing. The law probably means that as to three-fourths of his property in such a case, he shall die intestate. It does not appear how such three-fourths of his property would be divided between the widow and children. No rights of the children are invaded so long as the widow receives one-half only of the common property and one-quarter of the testator’s share in the remainder. Probably she could be given more, but' in the absence of proof of the French law upon that subject it cannot now be determined. If, however, the bequests to her, with her interests in the community property, exceed the proper limit, compensation may be made in the settlement of the [806]*806estate. The French decree recites that the tribunal had heard the arguments and the explanation of the attorneys in the action, and the arguments of the attorneys for the republic, and after deliberation thereon, in conformity with law, made the decree. This indicates that the general situation of the estate and of the spouses was laid before the court, so that it understandingly could determine that the widow was getting no more than her just rights under the will, and that the interests of the children under the statutes of France were not ■violated by its terms. We cannot say that it determined contrary to the facts or in ignorance of them; it is better to assume that it had before it all the facts, and the record before us indicates that if it had known the facts the decree could not have been otherwise. By taking the property in Europe the widow received on account of her share, the houses, furniture ,and other property in use by the testator, while the children’s share is to be paid from securities of real money value. A case is cited from the French courts holding that “Parties who have voluntarily carried a will into execution of the alleged defects of which they were aware, are presumed to have ratified the provisions therein contained.” It was, however, the duty of the appellant as executrix to prove this will, and there is nothing to indicate that she was aware of any defect or had any information which at any time put her to an election whether she would take under the will or otherwise. The facts as to the property and the parties show clearly that there was no defect in the will, and that the appellant, by the so-called legacies, has received less than she was entitled to under the will and the rules of law applicable to it. Apparently the appellant is not a business woman, and we may assume that she had no knowledge of her community rights, but that fact cannot prejudice her. The function of a court is to do justice for the wise and the unwise, and if a party comes into court not fully understanding his rights, the court will not sacrifice those rights, but will administer the law as it is unless by his mistaken conduct he has misled others to their detriment. The appellant has taken no rights to which she was not strictly entitled, and by proving the will and taking the bequests given her she has not in any way wronged or prejudiced her chil[807]*807dren. There is no reason why she should be compelled to surrender to them her marital rights when there is nothing in the will or in her acts requiring her to so do. She has received less than she is entitled to receive, and her children are not injured by the fact that she has not yet received all she is entitled to, and they cannot urge that she is estopped thereby from claiming her legal rights or that she has waived them. Estoppels and waivers arise to protect persons from injury by the irregular acts of another; here no injury can follow. There is no injury to the children from the fact that the mother took land and furniture instead of money, or from the fact that she has failed until now to demand her full legal rights. When the children raise technical legal objections to her detriment, she may properly invoke her legal rights.
We may add a few words to the will without changing its effect. If testator had given to his wife his interest in the property in Europe and had given to his children his interest in the property in America, there could be no reasonable objection to the will. But he could give her no greater interest in the property in Europe than he had, and he could give to the children no greater interest in the property in America than he had; therefore, the will is not inconsistent with the community system. There was no defect in it calling for an election upon her part. When the testator gives his fortune in America to his children, a reasonable construction of the provision limits it to the fortune in America which he owned and was capable of giving to them. It does not mean the wife’s fortune, or the wife’s interest in the common property in America; it only means that the children are given all the property in America which he owns and is capable of disposing of by will. We, therefore, conclude that the findings that the appellant has waived her legal rights of community are against the evidence and the law of the case.
It is urged that under the law of France the acceptance of a residuary legacy waives the community rights and that the bequest to the appellant is a residuary legacy. The French court, in its decree, calls the provisions in behalf of the appellant “ the specific legacy.” The different residences in France, with the furniture, and the other items of property given to [808]*808her, are named. These are not residuary bequests; apparently the testator made no residuary bequests. If it had turned out that he was the owner of the property in Bussia or Spain, it is clear, under this will, that he would have died intestate as to that property.
After the death of her daughter it seemed that her minor children would be better cared for by appellant than by the father, a major in the German army, and it was arranged that the children were to be taken and cared for by her and she was to pay the father from their income 1,000 marks a month, and she continued such payments for five years. She swears “ the German law states that he is entitled to the use of that income.” It seemed to her, and I think wisely, in the interest of the grandchildren, that it was better to pay the father 1,000 marks a month and retain the balance of the income for the children, and that they should be brought up by her instead of being intrusted by the father, who was in the army, to strangers. Under the peculiar circumstances of this case I think it was error to surcharge her accounts with 60,000 marks on account of such payments. She should be allowed a reasonable compensation from the income of the infants for their maintenance when with her.
Some of the securities left by the testator depreciated in value and some became worthless. Some of them paid a substantial income for a long time and then became valueless. The executrix’s account has been surcharged with about $40,000 on account of this depreciation in value. I think this was error. She was not required to sell and convert the securities into money. The will contemplates that she, as the head .of the family, was to administer the property and take care of the children, and she would have violated her duty if she had converted the great mass of securities into money, thus making them of but little productive value. If she had sold the securities and bought others, there was the same liability of loss or depreciation. The will did not contemplate an immediate division of the estate, and it was not in the interest of the children that such division should be made. The mother properly left the securities undivided while her children were growing up and obtaining settlements in life. The provision of the [809]*809will authorizing her to put the securities in charge of a trust company indicates that they were not to be divided up but were to be kept together and that the income was intended for the support and use of the children. Until the appellant married there was no substantial reason why the estate should be divided, and it was evidently better for all concerned that it should remain with the safe custodians in America. Until that time no criticism can be made upon her for not making a division. No negligence has been shown which should properly charge her with the depreciation or loss on account of the securities left by the testator. The decree is erroneous in that respect.
The decree holds her liable for the performance of every duty as an executrix, and has surcharged her account in a very large sum because of certain mistakes which she has apparently made in administering the trust. Evidently she is perfectly able to make good any loss which has come to the estate from her fault. Her good faith is unquestioned; she kept no books of account. The income was remitted to her from the agents in America, deposited in a bank and paid out by checks or by the bank to the children calling for money. Naturally mistakes would occur when an attorney, without any substantial assistance from her, prepares her account for settlement. But there is nothing to indicate any bad faith or wrongful act upon her part, and if she is required to make good the losses which the estate has suffered through her, if any, there is no good reason why, under the circumstances of this case, she should be denied commissions. She is charged with every responsibility of an executrix and should have the benefit coming to the office. She is entitled to full commissions and her expenses and disbursements in the settlement and the administration of the estate.
I agree that in the discretion of the court this accounting might proceed to the end in the Surrogate’s Court of Ulster county or be remitted to the French courts. The estate is a large one; the husband selected his wife as his executrix when he must have known that she had no business capacity qualifying her for that position. His securities in America were placed with brokers or banks who had authority to buy [810]*810or sell at their discretion; in other words, to transact his business for him. His business in life seemed to be to live up to his title and spend his income, and the position in which he left his family required the mother, with this family of daughters and a son, to maintain their position in life and make the necessary expenditures which their rank, fortune and position required, and which would tend to give them reasonable settlements in life. The provision in the will authorizing her to put the securities in America in charge of one of the great trust companies evidently meant that the trust company should exercise with reference to them substantially the authority which his brokers had exercised in his case, to collect and remit the income, investing and reinvesting the corpus from time to time as might be necessary. It is not seriously claimed that the appellant, as mother, has neglected any reasonable duty to her children, or that she did anything or failed to do anything with reference to their bringing up which is fairly subject to criticism. It is not urged that the money was improperly expended for them or by them. The criticism made is (1) That she did not make an earlier division of the estate, and upon that basis substantially she is denied commissions. (2) Many expenditures which she claims to have been made have been surcharged to the account for the reason that she produced no vouchers. She was precluded from showing loans made by her to her husband and money paid by her to her deceased daughter. It is conceded that none of the children ever gave her vouchers for the money paid them, and we have the result, perhaps to a certain extent compelled by our law, that this mother, who at all times has exercised her best ability and judgment for the interest of her family and in the management of the estate, who has had able bankers and counsel assisting her, and who has not attempted to make any profit from or take any advantage of the estate, finds her account surcharged about $230,000 in a considerable part on account of depreciation of securities, absence of vouchers or exclusion of the appellant’s testimony as to payments made by her. It was error to disallow the 10,000 francs on account of the automobile.
The fact that the appellant is now a German subject; that [811]*811the grandchildren and their father are residents of Germany and that France and Germany are at war, are circumstances which may well be considered in retaining the settlement of the estate in Surrogate’s Court. Although there is difficulty in applying the French law to the various circumstances in this case, if the case is to be concluded here instead of at the natural tribunal in France, it should not be at the prejudice of the appellant. The payments made by her to her husband and to and for her daughters were made in France; her acts and neglects took place in France, and it would be unfair to her to have the evidence of such payments controlled by the law of this State if a different rule exists in France. Here an executrix should produce vouchers for payments; concededly she took none. It may be that the law of France does not require her to take them and permits other proof of the payments. The requirement in our law that an executor must produce vouchers is a statutory provision; we cannot assume that it exists in France. The practice is so reasonable, and the contrary position would be so unjust, that it is fair to assume, in the absence of proof that the fact of the interest of the witness goes to the credibility rather than to the competency of the witness, that we are led to infer that if this settlement were held in France the appellant, by her own oath or otherwise, might establish the alleged payments to her husband, her daughters, and to her deceased daughter and others. If the trial is kept here the appellant should have the benefit of the rules of evidence which would apply in a French court upon the settlement of an estate. It, therefore, seems that unless the respondents stipulate that the appellant may prove such expenditures in any manner which would be competent proof in the settlement of her accounts in a French court, the matter should be remitted to the French courts for trial and determination. In case such stipulation is filed the accounting may proceed to a final determination before the surrogate. If the case continues before the surrogate an open commission should issue, directed to a competent person and returnable at a reasonable time at a reasonable place in France, where the appellant may submit any evidence she may desire, with the right to the respondents to offer evidence in answer thereto. The securities of the estate in America being on deposit [812]*812with the Farmers’ Loan and Trust Company, to be held subject to the order of the court, no material injury can come to the parties interested by such delays as are necessary for the proper disposition of the case, and the surrogate should have granted the commission asked for by the appellant. The decree should be reversed upon the law and the facts, and if the stipulation is filed within twenty days after the entry of the order of this court, the matter is remitted to the surrogate for his further proceedings, saving, however, the evidence, admissions and proceedings already had, so far as consistent herewith. If such stipulation is not filed the evidence and proceedings already had may be remitted to the French court for its action. Costs and disbursements should be awarded to the appellant to be paid from the interests of the respondents in the American ■ estate.
All concurred, Lyon, J., in result, except Cochrane, J., who dissented in opinion in which Howard, J., concurred.