The Surrogate.
The testator was formerly a merchant in this city, and having retired from active business, he removed to the state of Connecticut, where he was domiciled at the time of his death. His will was proved in that jurisdiction, and its execution assumed by the executor and executrix, October 27, 1848. Probate of the will was granted by the Surrogate of New-York, November 6,1848, but letters testamentary were not taken out here until March 15, 1855, when Mr. Lyman, the executor, gave a bond, and became qualified to act. On the third day of December, 1856, the executor filed his petition for a final settlement of the accounts of the estate before the Surrogate of New-York, and cited in all the parties interested to attend the adjustment. On the return of the citation, January 15, 1857, the accounts were filed; the legatees who were of age appeared by counsel, and the case was adjourned to January 29, and again to February 10, on which latter day the legatees presented a petition for a compulsory accounting and for distribution. [293]*293The cause was set down for March 10, when the counsel for the executor moved for a postponement, on the ground that there was doubt as to the correct interpretation of the will, and his client had instituted a suit to establish its construction before the Superior Court, within and for the county of Middlesex, in the state of Connecticut, sitting as a Court of Chancery. The proceeding, for the determination of which I am asked to stay the settlement of the accounts, was commenced on the 16th day of February, 1857, and the process made returnable on the second Tuesday of April succeeding.
It is obvious, therefore, that after presenting his application, voluntarily, to this court, for the adjustment of his accounts, after all the parties had been cited, and the adult legatees had come in, assented to the proceeding, and deliberately by petition claimed a settlement, the executor has instituted a suit in another court, in another State, the results of which he now asks this tribunal to await. The question arises under this state of facts, as to the power and authority of the courts of New-York in regard to this controversy, and what is due from them on the ground of comity, to the courts of another State, where the testator had his domicil at the time of his decease.
Whatever doubts may have existed relative to the power of a foreign executor, when acting out of the jurisdiction whence he received his authority, the question is now definitely settled. There has been loose practice on this point, and vague opinions have even appeared in the books, looking towards some right in the executor independent of the grant of administration, but they have not been based upon principle or sound reasoning. The rule and the reason of it are nowhere more clearly enunciated than in the case of Holcomb vs. Phelps, (16 Conn. R., 135), decided by the Supreme Court of Errors of the State of Connecticut. That, tribunal there said, “It is now, therefore, well understood that an executor or administrator, by virtue of his appointment in one State or country, derives no authority to seize the goods of the deceased, or to bring actions for his debts in another [294]*294country or State, unless he obtain new powers and give new security in the State or country where such goods are or such debtors reside.”
The truth is, that an executor or administrator is treated as an officer, and he has, generally speaking, no power by law, until he is clothed with official authority. He represents the decedent by virtue of a grant made to him by the State, and without his commission he has no legal status. The theory of the common law is that, on the death of a person, his goods become bona vacantia, and their charge devolves upon the crown. Administration is a matter of prerogative, consequent upon the situs of the assets within the jurisdiction of the sovereign authority, and the title of the last owner being extinct by death, the State, as trustee, deputes its right for the benefit of parties whom the law recognizes as having an interest in the estate. Were there any other rule than this, it would be strange and anomalous; for the laws of a country have no extra-territorial operation, and do not, in the very nature of the case, possess any vigor within the limits of another sovereign power.
By the Revised Statutes of New-York, the general functions of an executor or administrator cannot be performed before the grant of letters. The law is express in all cases, that “no executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate, in any manner, further than is necessary for its preservation;” and “ every person named in a will as executor, and not named as such in the letters testamentary, or in letters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever, as such executor, until he shall appear and qualify(2 R. S.,p. 71, §§ 15, 16.) This statute is general, and, of course, applies as well to foreign as to domestic executors.
From the rule that the executor derives his authority over the assets from the sovereign power of the State where the [295]*295assets are situated, flows, as a necessary consequence, the proposition that he is responsible for his acts to the body politic from which he obtained his appointment. He cannot be permitted to accept the commission, and deny his accountability. If the grant, by means of which he became vested with rights over property situated here, were made here, he must account for the exercise of this trust, to our tribunals. He has invoked this jurisdiction to obtain his authority, and will not be permitted to repudiate it, when required to render an account of his stewardship. These principles are universally received, and I am not aware there exists any well regulated community where it is not admitted that the grant of administration and the adjustment of the accounts of the executor or administrator belong, of right, to the State where the assets are situated.
Our statutes contain full and ample provisions regulating proceedings for the settlement of the accounts of executors and administrators, and obligating the Surrogate to a specified course of procedure in all cases, without exhibiting any line of distinction, where the decedent was domiciled in this or in a foreign State. For example, where there is a legacy due to a minor, who has no general guardian, it becomes the duty of the Surrogate to take the legacy and invest it for the benefit of the minor; and in this respect there is no distinction made between minors residing here or abroad. (2 R. S., p. 91, § 53, [48,] p. 98, § 87, [80.] It is also provided that, “ whenever an account shall be rendered and finally settled, if it shall appear to the Surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so remain, to and among the creditors, legatees, widow and next of kin to the deceased, according to their respective rights ; and in such decree shall settle and determine all questions concerning any debt, claim, legacy, bequest, or distributive share, to whom the same shall be payable, and the sum to be paid to each person.” (2 R. S., p. 95, § 71.) These statutory directions are positive; they recognize no difference between [296]*296cases of domestic or foreign domicil; and imperatively require me, upon a final accounting, to make a decree which shall dispose of every question arising upon a will and its construction, when presented by parties interested, in as full and complete a manner as a Court, of Equity possessing jurisdiction over testamentary trusts. (Kidd vs. Chapman, 2 Barb. C. R., 423.) In order then to close the accounts of the executor, and settle them, up to this period, and decree what disposition he must make of this estate, which he has become possessed of under the authority-of the laws of the State of New-York, it is my duty to look into this will, interpret its language, if there be room for difficulty, and direct a distribution according to the tenor and effect of its provisions. This must be done, and the decree, if not, appealed from, will be obligatory and conclusive upon the executor, and upon all persons brought before the court and made parties, in conformity with the procedure established by the statute. Such is our law, and such is the law of Connecticut. In the case already cited, the Supreme Court of that State declared, that an administrator, appointed in New-York, and who had accounted here, “ could not be liable, if he fairly discharged his trust agreeable to the law of the State or country from which he received it; and this principle,” the court added, “ so reasonable in itself, and so conformable to the principles of justice, and so necessary for the security of individuals, we recognize as our law, and feel bound therefore to say that this defendant ought to be protected, when he has but pursued the orders and decrees of the court, from which his authority emanated.” Whether in making its decree on a final accounting, the court, after ascertaining the rights of creditors and legatees who have appeared, should direct the residue of the estate to be transmitted to the domicil of the decedent, is a question which I will shortly consider, but at this point it is necessary only to say that the decree, whatever it may be, is obligatory upon the parties, and affords an indemnity to the executor or administrator.
That this estate is to be distributed, and this will in[297]*297terpreted according to the law of the domicil of the testator, is a proposition I admit in its broadest extent. Such is the law in all civilized nations; the law of the domicil in relation to movables having been adopted as the criterion, except in a few special instances. I feel impelled, however, to observe, that the interpretation of this will does not seem to depend upon any particular rules existing in Connecticut, or upon the meaning of phrases or terms of art. The construction apparently involves only a determination of the testator’s intention, as deducible from ordinary language and phraseology. Under this state of facts why should there be any postponement ?
The executor has invoked my jurisdiction to settle his accounts, three of the legatees have intervened, and claimed a decision as to their rights, and there does not appear to be any special reason why there should be delay in the adjudication. All the legatees are now living in the State of New-York, their mother, the executrix, accedes to the action of this court, and no one opposes it save the executor, who derived his authority from the Surrogate of New-York, and after instituting these proceedings, has himself and alone commenced an action in the State of Connecticut. I see no reason under such circumstances for delaying my consideration of the substantial questions at issue between the parties. They have been argued, and it is my duty to pass upon them. The appearance and residence in this State of the legatees, makes it incumbent upon me to administer their rights in this forum, and not to send them abroad. In the language of Story, “ the new administration is made subservient to the rights of creditors, legatees, and distributees, who are resident within the country where it is granted, and the residuum is transmissible to the foreign country, only when a final account has been settled in the proper tribunal whore the new administration is granted upon the equitable principles adopted by its own law, in the application and distribution of the assets found there.” (Conflict of Laws, § 513, Dawes vs. Head, 3 Pick., 128.) In the case of Harvey vs. Richards, (1 [298]*298Mason, 381,) the same eminent jurist said, “I have no objection to the use of the terms principal and auxiliary, as indicating a distinction in fact as to the objects of the different administrations; but we should guard ourselves against the conclusion, that therefore there is a distinction in law as to the rights of parties. There is no magic in words. Each of these administrations may be properly considered as a principal one, with reference to the limits of its exclusive authority; and each might, under circumstances, justly be deemed an auxiliary administration. If the bulk of the property, and all the heirs, and legatees, and creditors were here, and the foreign administration were only to recover a few inconsiderable claims, that would most correctly be denominated a mere auxiliary administration for the beneficial use of the parties here, although the domicil of the testator were abroad. The converse case would, of course, produce an opposite result. But I am yet to learn what possible difference it can make in the rights of parties before the court, whether the administration be a principal, or an auxiliary administration. They must stand upon the authority of the law to administer or deny relief, under all the circumstances of their case, and not upon a mere technical distinction of very recent origin.” The simple question for my consideration is, whether I shall send parties who are now citizens of this State, to another tribunal to seek those rights to which they are entitled from this court. That is the point; for I must lay the suit brought in Connecticut, after this present proceeding was instituted, out of view, as an after thought and an attempt to withdraw the case from this jurisdiction. Had the suit there preceded the suit here, there might have been some ground upon which to urge an appeal to comity—but the converse being the case, the appeal to comity seems to me to be in the other direction.
Looking then at the substantial matters involved, and proceeding to decide upon the construction of tins will, I feel bound to apply such rules of interpretation as prevail in Connecticut, wherever they have been indicated by the decisions [299]*299of the courts. I do not find, however, any peculiar doctrine, exceptional to the general law relative to testamentary cases. In the first place, it is clearly established, that in the interpretation of the will, the intent of the testator, as gathered from the instrument in its application to surrounding circumstances, must govern (Holms vs. Williams, 1 Root R., 332); and that parol evidence of the intention of the testator is inadmissible to vary the express terms of the will. (Avery vs. Chappel, 6 Conn. R., 270 ; Matthews vs. Saunders, 11 Conn. R., 144 ; Canfield vs. Bostwick, 21 Conn. R., 550.) How let us see what the intent of this instrument is, as evinced in its progressive stages. After directing the payment of his debts, Mr. Parsons makes a devise and bequest to his wife, and requires his executors to pay to her annually from his estate, the sum of seven hundred dollars in quarterly payments, until her marriage or decease. There is nothing peculiar in this provision for an annuity. It is payable “ out of the estate,” but those words are mere surplusage—it would have been so payable without them. It implies, of course, that a fund shall be reserved for that purpose, but the reservation of a fund for that purpose, does not imply a reservation for another purpose. It never has been pretended that a general provision for an annuity affects the question as to the vesting of the estate upon which it is a charge. In the next place, we come to the prominent and leading disposition of the will. The testator gives all the residue and remainder of his estate, real and personal, by the broadest words of description, to his executors in trust. That a trust does not prevent the vesting of the estate de jwre, in the cestui que trust, is an undeniable proposition. The legal title may be in the trustees, but they are mere repositories, and the equitable right is always held by courts of equity as vested on the testator’s death in the beneficiaries. The rules in regard to the vesting of testamentary bequests are not varied by reason of the intervention of a trust, unless it be that there is a stronger implication in favor of vesting where there is a trust than where there is not. (Van Wyck vs. Bloodgood, 1 Brad. Sur. R., 154, and cases-cited.) [300]*300The main difference between a devise in trust and a direct devise, is, that in the former case there is a vested equitable estate (Doe vs. Ewart, 7 Adol. & E., 636 ; Phipps vs. Williams, 5 Simon R., 44); and in the latter a vested legal estate; and, in regard to personal property, direct legacies as well as bequests in trust, are effectuated only through the medium of the executors. (Davies vs. Fisher, 5 Bear., 201.)
By the fifth clause of the will, the testator gave the residue of his estate to the executors in trust, as follows: “ Two fifth parts thereof for the sole use and benefit of my son Joseph H. Parsons, and his heirs and assigns forever; and the remaining three fifth parts thereof for the sole use and benefit of my daughters Catharine H. Parsons, Elizabeth A. Parsons, and Caroline J. Parsons, in equal shares, to them respectively, and their respective heirs and assigns forever.” There can be no doubt that as these shares are given in severalty, the donees take under the will as tenants in common. (Griswold vs. Johnson, 5 Conn. R., 363.) If or is there room for hesitation in saying that the gift is absolute, and for the benefit of each of the children. It has all those qualities which in regard to lands would create an estate in fee. It is for the use of the children “ respectively, and their respective heirs and assigns forever.” Had the will ceased here, no one could have imagined a difficulty in its interpretation. Up to this point it is clear, and vests in the donees an equitable right and estate, transmissible to their legal representatives. This is all I find in the instrument relating to the gift; the subsequent provisions appear to point only to payment, or to limitations over, on the demise of any party interested before payment. Thus the very next direction is, that during the minority of the children, the executors shall provide for their support and education; but here again the gift is recognized, by charging the sums disbursed for each on “his or her-share.” This brings us to another familiar principle, that where there is uncertainty as to the vesting of the legacy, a provision for maintenance helps the vesting; but there is no instance to be found where such a provision has been taken [301]*301to operate against the vesting. (Fonereau vs. Fonereau, 3 Atk., 645; Hoath vs. Hoath, 2 Bro. C. C., 4 ; Walcott vs. Hall, 2 Bro. C. C., 305.)
The testator having divided his estate into four shares, giving to each child a share absolutely, and then directed maintenance during minority, we come to the provisions relating to payment. He says, “ the said trustees shall pay to my said son, on his attaining the age of twenty-one years, the sum of five thousand dollars, and if they judge best, a further sum not exceeding five thousand dollars more, if they think it will be for his interest; on his attaining to the age of twenty-three years, the said trustees shall pay to him such an amount as they shall deem it most for his interest to receive, not exceeding ten thousand dollars; on his attaining to the age of twenty-five years, the said trustees shall pay to him such sum as in their sound discretion they shall consider it most for his interest to receive, but not exceeding in any one year, the sum of ten thousand dollars; and they shall so continue to make such payments from one period of two years to another, until the share of my said son shall be fully paid off and discharged.” It is manifest that the corpus of the estate is the subject of this clause, and that it has in con templation that the “ share” of the son in the estate should be “ fully paid and discharged.” Had the will stopped at this point, then in case of the decease of the son, his legal representatives would have been entitled to that share. So with regard to the daughters, “ the said trustees shall pay to each of my said daughters, on their respectively attaining to the age of twenty-one years, the sum of two thousand dollars, and every two years thereafter the sum of two thousand dollars, until the share of each shall have been fully paid off and discharged; but if after making said first payment to each of my said daughters, my said trustees shall deem it expedient to make the subsequent payments less than two thousand dollars each, they are authorized in the exercise of a fair and sound discretion to diminish such subsequent payments accordingly, provided they use no unnecessary delay [302]*302in making ultimate payment of the share of each as aforesaid.” Had the will stopped at this point, then in case of the decease of any one of the daughters, her legal representatives would have been entitled to her share, the corpus of the estate being the subject of the clause, and the “ ultimate payment of the share of each” being contemplated. The case then would have been precisely equivalent to a gift in presentí to A, payable at twenty-one, or in instalments, annually or biennially, which being vested, would pass to the representatives of the legatee, if he died before the time of payment arrived. Thus far we have a division of the estate, in the first instance into shares, a gift in shares, a charge of maintenance upon each shewe respectively, and a subsequent direction as to payment until the “ shard" of each be “ fully paid off and discharged.” These are vested estates, and they can be divested only upon the happening of the precise contingency, and to the precise extent prescribed by the testator. “ The primary gift includes the testator’s whole estate or interest, and that interest remains in the objects in every event, upon which it is not divested.” (Powell on Devises, 2, p. 264, Jarman's Ed.) “A clear absolute gift will not be divested upon reasoning merely conjectural.” (Ibid., 625 ; Browne vs. Lord Kenyon, 3 Mad., 410 ; Belk vs. Slack, 1 Keen, 238, 1 Jarman on Wills, 750.) How let us look at the clause divesting these, estates. It reads as follows: “ If my said son shall die before receiving payment of his share as aforesaid, leaving no lawful issue, then his said share remaining in the hands of said trustees shall be paid and delivered over in equal shares to my daughters and their heirs and assigns for ever; and if any one or more of my said daughters shall die, before receiving payment of their respective shares as aforesaid, then in case such decedent or decedents shall leave no lawful issue, their respective shares aforesaid remaining in the hands of said trustees, shall be paid and delivered over in such manner and proportion, that my said son shall have two fifths of each share, and the surviving daughters the residue thereof in [303]*303equal shares to them respectively, and their respective heirs and assigns for ever. If any one or more of my said children shall die, leaving lawful issue, then such issue shall be entitled in equal portions to the share or shares of the respective parent or parents, remaining in the hands of said trustees; but in such case the said trustees are empowered and directed to hold and dispose of such share or shares in such manner that said issue only and their legal representatives, and no other person or persons, shall have the benefit or advantage thereof.” _ This clause divests the previous gifts, upon the event of death before receiving payment; but what is it that is given over ? Why, in respect to the son, it is “ his said share,” and, in respect to the daughters, “ their respective shares afore said that is, the shares previously mentioned; and so we are drawn back to the primary gift, where their shares are described as portions of the testator’s estate at the time of his death. I perceive nothing in the remainder of the will affecting the question now before the court. There are directions to sell certain properties, and to add the proceeds of the sale to “ the general fund a provision for an intermediate rental, without any direction to add the rent to the general fund; and a requisition for the collection of negotiable paper on hand at the time of his decease, and the investment of the proceeds, “as well as all other funds which may come into the hands of the trustees,” “ until such funds are wanted to fulfil the provisions of the will.” This last clause is nothing more than the law would require, and simply calls for an investment for the purposes of the will, without affording any indication what those purposes are. It would call for an investment of income when the will called for it, expressly or by implication, say during the minority of the legatees; and would not demand an investment of income when the will did not demand it, say after majority. It is in fact a general expression, which has scope for operation during the minority of the legatees, and can be literally satisfied by a construction which requires investment only during minority. I should say, therefore, upon the [304]*304whole will, that the testator had given vested interests to his children, as tenants in common, subject to be divested upon death before payment; that the payments intended refer to the capital of the estate and not to its income; that it is only the capital which can be retained until the times prescribed for payment, and that the income of the shares belongs to the respective owners of the respective shares of the capital, and is payable as it accrues. It is remarkable that the word “ income” is not once used throughout the entire instrument, nor its equivalent—not even when the testator directs his estate to be invested, nor when he provides for the rental of the houses in New-York. I do not presume an intestacy as to the income, from this silence. ( White vs. Fisk, 22 Conn. R., 31.) That would partially destroy the preference shown to the son. But a failure to speak specially on this point leaves the law to its operation, and the shares being vested, the income is due as a matter of right to the owners of the shares. Again, it is observable throughout the instrument, that the portions' treated of are constantly termed the “ shares” of the children, that they are uniformly considered as vested in and belonging to them, as to be paid to them, and as only given over in case of death before payment; and when we go back, step by step, to find out what those shares are, they are discovered to be the original shares as contained in the primary gift of the corpus of the testator’s estate. It certainly would be strange, if the testator had contemplated locking up these shares by accumulating and compounding the income, that in so accurate and symmetrical a will, he should never have intimated a thought or a wish on the subject. To effect such an unusual purpose, would naturally lead the mind' to devise careful ways and expedients, and precise provisions. The idea has certainly not been formally expressed, nor is it to be necessarily implied from any provisions of the will. Implication, in order to affect or vary clear vested rights, must be necessary, and not merely probable or conjectural. (1 Jarman, 465.) Nor must it be overlooked that, in the absence of any clear special provision [305]*305to the contrary, the terms of the original gift are such as to involve and include the disposition of the income. The gift of the shares is “for the sole use and benefit” of the children respectively.
Residuary dispositions are particularly favored, not only in regard to vesting, but also in respect to the title of the legatee to the profits or fruit of the fund, accruing before the time of payment. Thus, where there is a bequest of the residue, not payable until majority, with a gift over in case the legatee die under that age; if the gift over take effect after the happening of the contingency, still the representative of the legatee will be entitled to the intermediate interest. (Nicholls vs, Osborn, 2 P. W’ms., 419 ; Hawkins vs. Combe, 1 Bro. C. C., 335 ; Skey vs. Barnes, 3 Meriv. 335.) The interest is the “ natural produce,” and, in the language of Baron Eyre, “ must go to the person who has the thing liable to be divested.” (Chaworth vs. Hooper, 1 Bro. C. C, 81.) The whole estate is given absolutely on the testator’s death, for the sole use and benefit of his children; the income is theirs of right, as flowing from this absolute gift; the bequest over, when it shall take effect, if ever, can only carry the original shares, but not income springing out of the previously vested estate. I do not see that this interpretation is at all affected by the consideration whether or not the testator has directed a severance and separate investment of the shares of the children, or has allowed them to remain together in one fund. The bequest in trust is for them as tenants in common, and that effects a legal severance, which is all that is required. The provisions of the will effect a severance of the fund in fact, as often as they call for payments to the parties. It never was heard of that the vesting of an estate was prevented by giving aliquot shares out of a general fund, instead of making a partition in fact, or that the right to the increase depended in the slightest degree upon such a distinction.
Taking, then, the first and original disposition in the fifth clause, and bearing in mind that “it is a settled and invari[306]*306able rule not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition,” (1 Jarman on Wills, p. 414,) can the court discover in the subsequent directions as to payment, any repugnancy with the original bequest, or with the “ use” of the shares given by it ? Here payment, and the time and mode and extent, are not so repugnant, unless the payment expressly or impliedly refers to the “ use” or the profits, as well as to the principal. The language of the will limits the direction as to payment, and also the gift over to issue, to the “ shares.” These shares were ascertained on the testator’s decease, and were then severed in right. It is a general canon of interpretation, that the term “ share” is limited to the original portion, unless particular expressions extend this meaning. (Rickett vs. Guillemard, 5 Jurist, 818, and 12 Sim. 88.) There are no such particular expressions here, and the limited meaning cannot therefore be extended. As a matter of legal interpretation therefore, I must hold that the will, in the first instance, gives by its express terms the right to the capital and the right to its use and beneficial enjoyment, to the testator’s children, and the subsequent directions in relation to payment of the respective portions in' the residue refer to the capital of the estate only.
It is insisted however, by the counsel for the legatees, that the provisions regulating the payments to the children are inconsistent with the general intent of the will, and should therefore be rejected by the court for incongruity. They claim that as each of the daughters’ shares, at the time of the testator’s death, was about $26,000, the interest upon which amounts biennially to over $3,600, a biennial payment of $2,000 would not only never be able to accomplish the testator’s express wish that there should be “ ultimate payment” of the shares to the daughters, but would in fact never allow a dollar of the principal to reach them, and would result in an accumulation of a large portion of the income itself. The will was made shortly before the testator died, and the presumption is that he knew the value of his estate. It is [307]*307unreasonable to suppose that, in the same breath, he should direct full payment and discharge of the shares, and still provide such small payments as never could accomplish that end. I see the force of this argument, but it bears only against a construction which locks up and accumulates the income, and not against the view that the limited payments apply only to the primary shares. Taking these payments as they appear prima facie, as applicable only to the principal and riot to the income, the shares would be discharged in twenty-six years after the testator’s decease, supposiug the parties were of full age. That period cannot be considered as an improbable or unreasonable limitation by a parent over the shares of his daughters, whose immediate possession of their entire property he has thought it wise and proper to curtail. Such an interpretation of the will as comports with well-established legal principles, with the language of the instrument in its ordinary intent and purport, and with the expressed design of giving the legatees the use of the estate, and ultimate enjoyment of the principal, by no means conflicts with the actual value and condition of the estate, or with such dispositions as a father might naturally be supposed to desire to make. I confess that I can see no possible ground for holding any portion "‘of this will void. It seems to me to be plain, clear and explicit, lucid and harmonious, conformable to law, and constructed on a plan or scheme entirely congruous. My decision is, that the children are entitled to all the produce of their shares, from the time of the testator’s decease, deducting what has been expended for their maintenance, respectively, and that the biennial payments are applicable alone to the principal.
There remains still, a question as to the liability of the executor to account for the assets he collected in this State before becoming qualified. The law on that point is definitely settled. I have already shown that the situs rei regulates the grant of administration, and establishes the forum as to the accounting. The residence of the debtor constitutes the situs. Even negotiable notes are assets at the place of residence of the [308]*308maker at the time of the creditor’s death. (Slocum vs. Sanford, 2 Conn. R., 533.) If the property, collected by the executor from debtors residing in this State, before he took out letters, were assets, of which there can be no doubt, then the executor is bound to account for those assets here. For such purposes the letters relate back to the time of the decease. That is the common law, and in respect to legatees and distributees, the statute has not altered the rule. Where the executor or administrator has received or collected moneys belonging to the estate voluntarily paid to him, or where he has wrongfully taken possession of and converted to his own use property belonging to the estate of the testator or intestate before administration granted, “ as to all such acts he stands the same after receiving letters, as if he had been executor or administrator at the time.” (Bellinger vs. Ford, 21, Barb. S. C. R., 311.) The executor must therefore be held to account for the assets realized by him in this jurisdiction, before as well as after letters testamentary were issued. After the details of the account are settled, there must be a decree in conformity with the principles I have indicated.