Wilde J.
Several questions have been raised by the auditor’s second report, the decision of which we will no longer delay, although, for reasons to be stated hereafter, we cannot at present proceed to pronounce a final decree.
The first and most important question relates to the domicil [98]*98of the testator. And this is to be decided on the facts and evidence reported by the auditor.
It appears that the testator’s original domicil was in this Commonwealth. He was an inhabitant of Petersham in the county of Worcester, and owned a valuable farm there, on which he resided with his family for the greater portion of his life. He was a member of the first congress after the adoption of the constitution, and of the senate of this Commonwealth. In 1803, being then much embarrassed, he left the Commonwealth, and never afterwards returned. So that the question to be decided is, whether after he left the Commonwealth he acquired a new domicil in the State of Vermont or elsewhere.
To prove a change of domicil it must be made to appear, not only that the old domicil had been abandoned, but also that a new one has been acquired ; so that a domicil, being once fixed, will continue, notwithstanding the absence of the party, until there is a substitution of a new one. The intention to abandon an actual residence at another place, if not accompanied with the intention of remaining there permanently, or at least for an indefinite time, will not produce a change of domicil. Somerville v. Somerville, 5 Ves. 756.* 1
With a view to this general rule, which we consider as well established, we have examined the evidence, and are of opinion that it fails to prove, either that the testator intended to abandon his domicil at Petersham, or that he acquired a new one in any other place. There is certainly no direct evidence of the testator’s intention to abandon his domicil in this State, and we think the contrary may be reasonably presumed. The principal ground of this presumption is the important fact, that he did not remove his family. The presumption is, that he did not intend to abandon them ; and this presumption is so strong, that it requires the most cogent proof to remove it. [99]*99The evidence reported is far short of this, and is not inconsistent with the supposition that he intended to return. Probably he was induced to absent himself by a wish to avoid the effects of his pecuniary embarrassments, and to entitle hims»'f to the privilege of suing in the courts of the United States.1 If this was his object, and if he intended to return to his family, after having accomplished it, we cannot consider him as having renounced his domicil. It furthermore appears, that on several occasions, and as late as the year 1806, he styled himself of Petersham ; and he is so styled in his will. These are circumstances, which, if not conclusive, are nevertheless not easily to be reconciled with the belief that he intended to abandon his home and family.
But whatever might have been the testator’s intentions, there is no satisfactory evidence to show that a new domicil was acquired. He had no establishment in Vermont. When he was there, he generally was a boarder with Gates ; but he led a wandering life, and there is nothing in the case to show that he intended to fix himself at any particular place. That the appellee never supposed his domicil was in Vermont, appears conclusively by the proceedings in the probate courts of both States. This we consider as a strong circumstance indicating the appellee’s own opinion on the question, before any motive had intervened to bias his judgment. That he was well acquainted with the intentions and motives of the testator in relation to his residence in Vermont, cannot be doubted. He was nearly connected with him by marriage, and was for a long time his confidential agent and correspondent. With such ample means of information, it is impossible to believe that the appellee was ignorant of the testator’s actual domicil.
Upon the whole, therefore, we feel no hesitation in deciding that the evidence reported is altogether insufficient to prove a change of domicil; and consequently, that the testator’s domicil, at the time of his decease, still remained in Petersham, notwithstanding his absence and his temporary residence in the State of Vermont.
[100]*100The question of domicil being thus determined, we find little difficulty in settling the question of jurisdiction. It has oeen settled in this Court, that the lex domicilii, and not the lex loci rei sites, must govern in the distribution of the personal estate of a deceased person among his heirs or legatees, whether he dies testate or intestate. And this distribution is to be made under the authority of the court within whose jurisdiction the deceased had his domicil; it not being competent for a court granting an auxiliary administration, to order a distribution of the estate among the heirs and legatees. Dawes v. Boylston, 9 Mass. R. 358. Whether in such case a distribution may not be made among creditors, when the estate is insolvent, we are not now called upon to decide. Dawes v. Head et al. 3 Pick. 128, [2d ed. 147, note 1 ; Revised Stat. c. 70, § 23.] In the present case, it is clear that the final settlement of the estate must be made within this jurisdiction. And it follows as a necessary consequence, that the appellee must be held to account here for the whole of the personal property and effects which have come to his hands, wherever found, or by whatever means collected. If then the appellee has a surplus in his hands arising out of the administration of the testator’s goods and estate in Vermont, after paying the expenses of administration and discharging his own liabilities there, he is accountable for it here in the same manner as he would be if another had been appointed administrator and had paid over a balance. The proceeds of the sales of real estate are to be accounted for as personal property.1 The appellee is estopped to deny the validity of these sales. We must therefore consider them as legally made for the purpose of en- ■ larging the fund for the payment of debts and legacies. If more was sold than was necessary, this can be no reason for allowing the appellee to avoid the sales. Nor do we know whether, according to the laws of Vermont, the heirs, if they should object to these sales, would be permitted to avoid them. But if they could, certainly they are not compelled to pursue a [101]*101course which would involve them in expense and litigation, and operate most unjustly on the purchasers. The appellee cannot complain, since he is held'to account only for what he has actually received ; and from this he will be entitled to deduct his expenses, and a reasonable compensation for his services, togethet with the amount of his legal liabilities, if not incurred by his own misconduct or neglect. What will be the amount of these expenses and liabilities, we cannot now determine. Of his liabilities, if any exist, we have no means of judging ; and if we had, a judgment here would not protect him in Vermont. On the contrary, a judgment there, on this point, must be conclusive on the court here. For although the appellee be liable to account here for the whole trust fund, yet if in managing it he has incurred liabilities within a foreign jurisdiction, the judgment of the foreign court, if it has the power and means to execute it, must be conclusive, or manifest injustice might be done. The appellee is certainly amenable to the courts in Vermont, and if he is compellable to account there, he may account voluntarily, in order to avoid expense and to terminate his liabilities. It has been however argued, that the heirs, after calling upon him to account here for the effects in Vermont, cannot compel him afterwards to account in Vermont ; and this is doubtless true ; but still he may be liable to the claims of the Vermont creditors, and if he should be held thus liable by the courts there, we certainly cannot interfere. We have no power to revise a judgment rendered by a court of another State, or to prevent the execution of it. It would, therefore, be manifestly unjust to compel the appellee to account for the funds from Vermont, while these outstanding claims remain unsettled ; and since they cannot be settled here, or ascertained, it seems necessary to await the decision’of the case pending in Vermont. We think likewise, that the expenses of the foreign administration, as they may depend on local law and usages, are regularly to be settled by the court under whose authority they were incurred. The question, whether the sales of the real estate were necessary, cannot be raised ; because the heirs would not be allowed to say that these sales were unnecessary, they at the same time claiming [102]*102the benefit of them by charging the administrator with the pro ceeds.1
Much has been said concerning the former proceedings in the probate court here ; and it has been contended that the appellee, having once elected to settle his whole account in this Court, must be bound by his election. But,we think it clear that these proceedings cannot bind him, since they have been vacated on the application of the heirs, and are no longer binding for any purpose. To determine otherwise would be pushing the common law doctrine of estoppel to a most unreasonable extent. The appellee, being compelled to account de novo, can by no just principle be precluded from pursuing a safe and legal course, although he incautiously omitted it when he rendered his former account. It is not necessary now to decide as to the legal effect of a decree of the probate court of Vermont, and how far it will be conclusive ; for, whether conclusive or not, it must have an important bearing on the final settlement of the account here.
Having thus determined these general questions, we proceed to examine the account as stated by' the auditor, omitting those items which relate to the administration in Vermont.
The Homestead. The appellee claims interest on the sums advanced by him to redeem the mortgage, and we think the1 claim is well founded and must be allowed. As to the expenses and trouble of raising the money, that is a subject to be taken into consideration in connexion with the other expenses of administration, and will be postponed for the reasons to be stated hereafter.
Appellee’s private account. The appellee’s computation of interest up to the time of the commissioner’s report, is clearly incorrect, for their proceedings are of no avail, the estate being solvent. As to compound interest, there would be no pretence for claiming it, even had the testator promised to pay it. There is however no such promise ; he only engaged to allow reasonable interest; which we think cannot exceed simple interest, which is allowed by the auditor.
Dana and Petersham lands. We cannot determine with perfect certainty as to the correctness of this charge, but as [103]*103the principles upon which it is made have been already sanctioned by the Court, and nothing appears to show it to be erroneous, we presume that the auditor’s judgment upon the evidence is right. At all events the error, if any, must be very inconsiderable. By the calculation made by one of the appellee’s counsel, the charge should be reduced to $S5-94. But in this estimate $ 100-09 is deducted for commissions, $ 39 for survey, and $65'90 for a supposed loss by receiving payment in lumber. These deductions are not supported by evidence, and most clearly are not allowable, if proved, to the extent claimed. Perhaps, also, if the rule, that a trustee shall not derive profit from the sale of the trust estate, were applied strictly, the appellee might be held liable to account for the whole profit of sale, instead of one third, for which he stands charged.
Considering then the rule adopted as favorable to the appellee, the commissions charged seem altogether extravagant. The taxes also are computed on the whole lands for six years, whereas some were resold immediately, and nearly all in three years. There is also $9 less credited in the sale of 1821, than the true amount, according to Mr. Bigelow’s statement. Considering all these circumstances of uncertainty and doubt in the appellee’s statement of his claim, we do not feel authorized, in justice, to make any deduction from the sum allowed by the auditor. The onus, as to the deductions to be made from the profits on the resales, is upon the appellee, and if he leaves it doubtful, the report of the auditor must stand.
Further assets. The money "received from Nightingale is rightly charged. The appellee cannot exonerate himself from his liability by suggesting a defect of title, without proving that he is under a legal obligation to refund the purchase money. He, however, acknowledges that he does not know whether he gave a warranty or a quit-claim deed. Nor is it a defence that this money was received for land sold in Vermont, after having submitted to the examination of this claim before the auditor as appertaining to the account of administration in this State. If the appellee had intended to claim a trial before the tribunals in Vermont, he ought certainly to have claimed it before the decision was made by the auditor. But the report shows that [104]*104he waived all objections to the jurisdiction of the Court, and asked only for leave to explain the facts by the introduction of new evidence. If any additional evidence shall be offered, it will be received, but it is now too late to appeal to a foreign court to take the chance of another trial.
Commons in Petersham. Considering the appellee as trustee for the heirs, we must hold him to account for whatever he has received in that capacity, whether rightfully or otherwise. He cannot free himself from this responsibility, except he show his liability to refund, or to pay over the money to some other person or persons having a right to demand it, and that payment had been demanded, or at least that it probably would be demanded. ' There is no such evidence reported by the auditor. The proprietors, whose shares have not been claimed, may have died without issue and without heirs in this country ; or if otherwise, there may be no probability that any claim for this trifling property will ever be made. In such case the trustee cannot be allowed to retain the fund. If the absent proprietors should appear and claim their shares, the heirs will be liable to pay. At present it is enough to know that the appellee acted as trustee ; and the evidence seems to us sufficient to establish this fact. The appellee not only has not attempted to prove that he had any claim to these commons in his own right, but he does not now pretend it.
Interest. The rule recommended by the auditor, as to the allowance of compound interest, or making annual rests, qualified as it was in Robbins v. Hayward, 1 Pick. 528, and in Fay v. How, 1 Pick. 527, is, we° think, a just and equitable rule, and has been sanctioned by courts of equity in this and other countries. It is not to be applied, however, except when the trustee refuses or is unable to render an account of the use or profit actually made of the trust fund. To make a trustee liable at all events for compound interest, would doubtless, in many cases, be a hard rule ; for it is well known to every one at all acquainted with the difficulty of lending money safely, or investing it profitably, that it would be frequently impossible for the trustee to indemnify himself under the operation of such a rule. But he may at all times exonerate himself by accounting for the interest actually received, provided be acts faithfully [105]*105and with ordinary care ; or he may apply to a court of equity for direction as to the appropriation of the trust fund.
In the present case the appellee renders no account of the use made of the money in his hands. He claims it as his own, and denies his indebtedness to the estate. It appears also, that he has been in the habit of demanding and receiving compound interest; and that at the time when the principal sales were made, money was in quick demand, and might have been lent on the most favorable terms. When these facts are considered, and when we consider also the unsatisfactory manner in which the appellee has attempted to repel the imputation of fraud or gross negligence, we cannot think that the rule adopted can be considered as a hard one.
We concur also with the auditor as to the time when the computation of interest is to commence, but we cannot agree to the inference contended for by the appellants’ counsel, that no charge is to be allowed in favor of the appellee after that time. For although the estate might have been settled as early as January 1810, yet as it was not in fact then settled, and the appellants are claiming the benefit of sales made since that time, and of other transactions relating to the trust fund, it would be manifestly unjust not to allow all necessary charges and expenses incurred in the management of the property. For although some of these sales might have been unnecessary, yet if the heirs elect to confirm them, and hold the appellee to account for the proceeds, the expenses must be deducted. Interest will be computed on the funds from Vermont, as well as those in this State. The question of interest is exclusively cognizable by the Court here, in which the final settlement of the whole estate is to be made, and by whose authority alone distribution can be made among the heirs and legatees to whom the interest is due.
Charges for taxes paid on lands not sold. The auditor reports that these taxes were paid in good faith, and the only reason suggested for the disallowance of the appellee’s charge therefor, is, that he refused to execute a deed of release, which we understand he has since executed, and filed in the probate office; so that this objection is removed, and the charge is accordingly allowed.
[106]*106Charges for taxes paid on lands in New Hampshire. However equitable these charges may seem to be, they cannot be allowed. The payment of the taxes was voluntary and without authority, and, like the payment of a debt by a stranger, cannot be the foundation of a legal claim.
Expenses of administration. We postpone this subject for further examination, not having sufficient means of information, as to the particular services rendered and expenses incurred, to form a satisfactory opinion as to the allowance which ought to be made. There are also some other small items not noticed, which may perhaps require hereafter a more minute and close examination than we have hitherto been able to make ; all which however we think may be settled without the trouble and expense of another hearing before the auditor.
In October 1830, the decree of the Supreme Court of Vermont
The auditor states, that in May 1814, the appellee made a representation in the probate court in this county, by which there appeared to be a balance due to him of $2551-23, beyond the assets in his hands, and that upon the register’s certificate of this fact, leave was obtained from the court of probate in Vermont, to sell enough of the testator’s lands in that State to satisfy this balance. And soon afterward a sale was made of nearly all the real estate there belonging to the testator, for the nominal sum of $ 6114-86. This sale was entirely unnecessary, and could not have been made, if the true state of the accounts of the appellee had then been known ; but by a mistake in the settlement of his account in 1813, a large sum was erroneously carried to the credit of the appellee. The lands were nearly all bought by persons employed by the appellee to bid for him, and he contended that the purchase was made by him for the benefit and on account of those interested in the estate, and that he now holds the same as trustee for them, and that all the expenses incurred and services performed by him in relation to these lands, ought to be credited to him and made [107]*107a charge upon the trust fund. The appellants contended, that the appellee had no right to purchase the lands on their account, and though they might, if they chose, elect to consider it thus, they were not bound to do so. And in a paper filed in the case, they elected to consider the sale valid, and to charge the appellee with the above sum of $6114-86. The appellee contended that he ought not to he charged with the amount for which these lands were sold, if he is to be charged with them at all ; that the titles to many of the parcels were defective, and that the real value of them is much less than the sums for which they were sold, and that the greater part of them yet remained on hand. The appellants, on the contrary, contended that he ought to be charged a much larger sum than the one above stated, because they said that in an exchange of some of the parcels for land of Joseph Hendrick, he made a profit beyond the amount for which the lands of the testator, given in exchange, were credited to the estate. Six lots of land comprised in the sale of 1814, and which were sold for about $ 130, were, together with property belonging to the appellee estimated by the auditor at $870, conveyed to Hendrick in 1821, in exchange for a farm in Dana, in this State, and in 1825 the appellee sold the farm for $2950.
In relation to the gains made by the appellee in the resales of lands bought by him in 1814, the Supreme Court of Vermont say they entertain no doubt of the right of the heirs to make their election, whether the executor shall be considered as a purchaser and pay them the amount of his sales, or as their trustee, and account for the avails as they are at the time when the election is made ; that the matter of greatest importance is, to ascertain how the subject ought to be considered in point of fact, — whether the sales and purchases and resales of each lot shall be considered as independent transactions, and the executor liable to have the election of the heirs apply to each lot, in a separate view, as the appellants contend, or whether the whole must be considered as an entire trust, and the accounting of the executor be for the entire trust property, as the whole is when the account is taken, as contended by the appellee ; that after the decease of the testator, all his wild lands in Lunenburg were appraised at what was considered to [108]*108be their average value ; that the executor employed his agents to bid, not with a view to become owner of particular lots, the value of which he had previously ascertained, but to be sure to make a profitable sale for the heirs, at the risk of becoming owner of many lots', and without any view to their comparative value ; that for the purposes now under consideration, the whole must be considered as an entire purchase by the executor, and the accounting must be of the whole in a consolidated view ; and that the executor must not be compelled to pay to the heirs his gains in the lots sold, without being made good, if any of the lots that remain unsold are of less value than the sum they cost him.
In the Supreme Court of Vermont, the appellee was charged with a balance of § 7S44'43, with interest at six per cent from the 1st of June, 1815, to July 1829, the time of the decree, amounting to $ 6675 "56 ; for which that court gave the following reasons. “ Various facts reported have induced the court to cast the interest as above. The great improbability that the avails of the sales of June 1st, 1814, were received to any considerable amount, under a year, and perhaps not in money then ;■ and the further probability, that some will never be paid, have induced the court to commence the cast of interest one year after that sale.”
“ The consideration that many of the lands remain unsold by the executor to this time, reported as wild lands from which no profit has accrued ; the frequent taxes he has been obliged to pay since his purchase ; the remaining uncertainty of some, at least,, of the titles ; the improbability of any future sale for cash, for many years ; and many other circumstances connected with the ownership and care of lands situated like these, have induced the court to allow six per cent interest only. Had it been a moneyed estate instead of wild lands, and the money had gone into speculations, we should not have hesitated to cast compound interest, so far as to make annual rests during the whole period.”
In regard to the compensation of the appellee, the auditor reported, that the expenses of administration in Massachusetts had been separated from those in Vermont,.and with respect to [109]*109the former he was of opinion that the sum of $ 356-40 was a reasonable compensation.
Oct. 4th.
J. H. Jlshmun and Bigelow, for the appellants. In regard to the legal liabilities of the executor in Vermont, and the compensation for his services as administrator there, we admit the decree of the court of that State to be conclusive ; but so far as this Court is competent to settle any point, they will not hold themselves bound by the decision in that State.
On the question of interest, the court in Vermont has clearly exceeded its jurisdiction. The appellee having sold the lands there and brought the proceeds into this State, the question of interest is to be determined here ; and so this Court decided in 1827, {ante, page 104,) when it was held that the appellee was chargeable with compound interest. So soon as the money was received in Vermont by the appellee, it was in his hands as executor here. It was not wanted there, and he gave credit for it in his account settled here in 1815. The appellee is to be charged with interest on the ground of neglect, delay and fraud. If the appellants had been aware of the fraud on the part of the appellee, they would have gone to Vermont in 1815, and the money would have then been brought here. They are entitled to as much benefit from the money as if that had been done, since they have been delayed solely by the fault of the executor.
The appellants could rightfully elect to consider the appellee as a trustee in the exchange of lands with Hendrick. The Vermont lots were sold separately, and it is not for the executor to say there was but one sale. The land taken of Hendrick, and which was sold at a large profit, became likewise trust property, and being within this' State, the profits on it were made here, and the court of Vermont had no jurisdiction as to this part of the case. Lane v. Dighton, Ambl. 409, 413 ; Lench v. Lench, 10 Ves. 517 ; Boyd v. M'Lean, 1 Johns. Ch. R. 582; Murray v. Lylburn, 2 Johns. Ch. R. 441 ; Randall v. Errington, 10 Ves. 423 ; Davoue v. Fanning, 2 Johns. Ch. R. 252 ; Lewin v. Guest, 1 Russell, 325 , Adye v. Feuilleteau, 1 Cox’s Ch. R. 24.
The appellee is not entitled to any compensation for his administration in this Stale. The jury have found that he con[110]*110ducted himself fraudulently, and the heirs have been great losers by his maladministration.
UcL nth.
Hoar and Newton, for the appellee, said in regard to interest, that the Court would consider the administrator in Vermont as a stranger to the executor here, and that the jurisdiction of this Court over the proceeds of the sales in Vermont, did not commence until there had been a final settlement of the administration in Vermont. Austin v. Gage, 9 Mass. R. 395.
Wilde J. delivered the opinion of the Court. After the many causes of delay which have intervened to suspend a final decree in this case, it must be highly satisfactory to the parties, as it is to the Court, to find that all subjects of controversy having been examined by the competent tribunals, and the proceedings of the probate court in the State of Vermont being now brought to a close, ho further cause of delay remains to prevent the ultimate decision of this long litigated case.
The question discussed at a former term, and now again argued, as to the limits of the jurisdiction of the court of probate in Vermont, might require a more full and careful consideration than we have bestowed upon it, if we had any reason to be dissatisfied with the decision of that court. But having considered the objections made by the appellants’ counsel to that decision, and the reasons given by the court in support of it, we are entirely satisfied that the case, so far as it has been adjudicated upon in Vermont, has been decided upon correct principles, and that there is nothing in the proceedings there which requires revision and correction, except perhaps some small mistakes in detail, which are alleged to exist, and which it is agreed may be amended, the mistakes appearing, as it is' said, on the face of the account stated.
One objection, and the one principally relied on by the counsel for the appellants, relates to the charge of interest against the administrator. The rule adopted by this Court, making annual rests in the administrator’s account, was not adopted in form by the court of probate in Vermont. The justice of the rule, however, is admitted by the court there, and substantially it was adopted ; for it is stated in the decree, that the charge was reduced to simple interest, in consideration of sundry equitable allowances, to which thev thought the ap[111]*111pellee was entitled, arising out of the unproductive state of the assets in his hands, and other circumstances affecting the question. A considerable portion of the lands sold, and for which the appellee has been held to account, remained in his hands for a long time without yielding any profit, or increasing in value ; and some are still unsold by him, and are wholly un productive. These and other considerations induced the court to charge the appellee with simple interest only, and we think the heirs have no cause to complain.
The appellants also object to the proceedings and judgment of the court in Vermont, because the appellee was not charged with the profits made by the exchange and sale of some of the lands, of which he became a purchaser. These lands were exchanged by him for lands in this Commonwealth, which have been sold and a considerable profit has been realized. The appellants claimed, and still claim, to charge the appellee with this profit. This claim was disallowed in Vermont, and, as it appears to us, for sufficient and satisfactory reasons. The heirs were permitted to affirm or disaffirm the original sales at their election ; but they were not permitted to treat these sales as distinct and separate sales, affirming part and disaffirming the residue.' A case can hardly be imagined in which such a right of selection would be allowed. It cannot be necessary in order to protect the rights of the heirs ; these are sufficiently secured by the right of election which, was allowed; and it would be most unreasonable and unjust to subject the appellee to a loss, when he acted fairly and for the manifest benefit of the heirs, — and it cannot be denied that the appellee’s services in regard to the management and disposition of these lands, were highly meritorious. The heirs therefore can have no right to the profits claimed, unless they elect to consider all the lands purchased in by the appellee as held in trust for them. He cannot in justice be compelled to hold part in trust, and part as purchaser on his own account, to his manifest loss, without any fault on his part. And besides, the appellants have elected to consider the appellee as a purchaser, and the court in Vermont proceeded on the election thus made. It would be unreasonable to allow the heirs to make a new election and [112]*112to open the accounts to a new examination on another and different basis.
In regard to the allowance made by the auditor as a com pensadon for the appellee’s services and expenses, we have had doubts whether it ought not to be somewhat enlarged ; but considering that some of these services and expenses have become necessary in consequence of the appellee’s own neglect and mistakes, we think that the sum allowed by the auditor may be considered as a fair compensation. The appellants contend that no compensation ought to be allowed, because the appellee has been found guilty of unfaithful administration. This consideration, however, ought not to be blended with the claim for compensation, so far as the services of the appellee have been beneficial to the heirs.
On these principles, and those heretofore laid down, the account may be stated, without any further reference to an auditor ; and the case will be continued nisi for the purpose of entering a final decree as soon as may be.
See Hapgood v. Jennison, 2 Vermont R. 294.