The opinion of the court was delivered by
Depue, J.
The testator, by his will, gave his wife, as tenant for life and as executrix, the sole custody and charge of his estate during her lifetime. He contemplated that his executors should have no charge over his property until after his wife’s death. She administered upon his whole estate, and converted all of it into money and securities, with the exception of some of the lands at Rahway, which are still unsold. These securities were either in the name of Mrs. Cory or were public securities which she had purchased with the proceeds or increase of the estate which came into her hands. They have no earmarks to identify them as the husband’s property. The bill cannot be considered as in the nature of an action of trover by the surviving executor of the [532]*532deceased to obtain possession of property remaining in speoie, of •which the testator died possessed, with a view to administration upon it by the surviving executor. It must be treated as a bill, by the surviving executor for an account of the administration-by the executrix of the testator’s estate for the purpose of enabling him to execute the trusts arising from the bequests in the will, to take effect after the death of Mrs. Cory, the duty of executing which, after her death, devolved upon the executors named in the will. The securities in which the executrix invested her husband’s estate being in this state, administration on her estate having been granted here, and probate of the testator’s will having been made here, the court óf chancery has the jurisdiction to require an account, although, the. testator’s domicile was abroad. Primarily, the courts of a foreign country in which personal property of such a testator may be found, have jurisdiction only to grant probate of the will, and of actions for the recovery of the property ancillary to its administration in the courts of the testator’s domicile; and the foreign courts cannot entertain an administration suit founded on questions relating to the construction of the will or the administration of the estate. But the parties who might insist upon the jurisdiction of the courts of the domicile over the subject, may, by their conduct, give to the foreign court jurisdiction to construe the will, and even to make administration upon property of the testator. Enohin v. Wylie, 10 H of L. Cas. 1. The bill filed by the foreign executor in this case is like the pleadings in Enohin v. Wylie, which were held to give the English court of chancery jurisdiction to become a court for the construction of the will.
To accomplish the purpose of the litigation which these parties have set on foot in the court of chancery, an accounting of the administration by Mrs. Cory of so much of the testator’s estate as came to her possession, will be required, both with respect to her rights therein and to her disbursements connected therewith; and the court has jurisdiction to obtain such an account as to the whole estate, although a considerable part of the testator’s property was located in the state of California. Ewing v. Ewing, L. R. (9 App. Cas.) 34; S. C., L. R. (22 Ch. Div.) 456; Stirling [533]*533v. Cartwright, L. R. (11 Ch. Div.) 522. In exercising this jurisdiction, the court will be governed by the laws of California, so far as concerns the testator’s personal estate and the proceeds of his lands in California sold and converted into money by the executrix. 1 Jarm. on Wills 6. The rights of the parties in lands in New Jersey will be decided by the laws of this state, for the incidents of real estate, its disposition and alienation, and the right of succession, and all questions as to burdens and liabilities imposed upon it depend solely upon the lex sitae. The laws of the country where the testator may be domiciled at his death, cannot impose burdens or liabilities upon, or provide for, the disposition of lands in a manner not recognized by the law of the country where the estate is situated. Nelson v. Bridport, 8 Beav. 547; Harrison v. Harrison, L. R. (8 Ch. App.) 342; Whart. Confl. L. § 291.
The testator, by his will, gave his widow an estate for life in all his property, real and personal. To the gift to her for life he superadded a power to sell and dispose of his property, or any part thereof. Counsel of the administrator contended that the superadded power either gave her an absolute estate in all the testator’s personalty, or authorized her to make sale and conversion of the corpus of his personal estate at her own will and pleasure, and to take the proceeds thereof for her own benefit. His argument was rested upon the fact that the power to sell was given to her “ in case she should find it necessary or see fit to dispose of the same,” and the use of the words “ remaining at the decease of my wife,” in the power conferred upon his executors to sell after the death of his widow. In Downey v. Borden, 7 Vr. 460, it was held by this court, on a devise of lands expressly for life, that superadded words granting a power to sell in fee would not enlarge the life estate to a fee. The same rule of •construction is applicable to bequests of personal estate. Dutch Church v. Smock, Sax. 148; Annin v. Vandoren, 1 McCart. 135. These cases were enunciations of common law principles, which, in the absence of evidence to the contrary, must be assumed to be the law of California. The meaning of the testator in his will is apparent. Eor so much of his estate as he gives [534]*534“ for the sole use and benefit of bis wife, to be under her control and used by her as she may see fit to use the same,” he expressly limits the time of her use and enjoyment, " during the period of her natural life;” and he provides for the residue not only by the specific bequests, but also by a residuary disposition of the balance of his estate. There are no words in the will which authorize her to sell and dispose of the testator’s property for her own use. On the contrary, the power of sale over his estate, real and personal, expressed in the will, is given to her as executrix, which implies a fiduciary disposition of the proceeds realized from the sales, inherent in the office, in virtue of which she was to exercise the power. I agree with the conclusion of the vice-chancellor that under the testator’s will Mrs. Cory took only the use of his property for her life. In virtue of the gift to her, she became entitled to the whole income and profits which accrued from her husband’s estate during her life; but her administrator must account for the principal realized by her from the sale and conversion of his property.
The important question is the effect of the community property law of California on the testator’s dispositions contained in his will.
The testator, before his removal to California, was owner of certain real estate situate in or near Rahway, in this state, and also of four shares of the capital stock of the Rahway Bank, and forty-six shares of the stock of the New Jersey Railroad and Transportation Company. All this property was in his individual name. The railroad stock consisted of forty shares transferred to him by George Brown in 1846; the rest of it arose from slock dividends subsequently added to it. When he removed to California he carried with him the frame of a house ready to be set up, and also a stock of goods suitable for a variety store. The house he set up in California, and with his merchandise established a store. This business he followed until 1854, when he sold it out. Thereafter his business was loaning and investing money, and at his death he had accumulated considerable property in California, invested in lands and securities in. his own name.
[535]*535The law of California recognizes two kinds of property as between husband and wife — separate property and community property. The separate property of either husband or wife is entirely under the management, control and disposition, testamentary or otherwise, of the spouse to whom it belongs, free from all interest or claim on the part of the other. During the marriage the husband .alone has the custody, control, management and power of disposition of the community property, and it is liable for his debts. Upon the death of the husband the community property is first subject to the payment of debts and expenses of administration, and of the residue the widow is entitled absolutely to one undivided half, which is partitioned and set apart and vested in her in the proceeding for administering upon the estate; the other half is subject to the testamentary disposition of the husband, or, if he dies intestate, devolves upon certain specified heirs. Separate property is defined to be such property of the husband or wife as he or she owned at the time of the marriage, or acquired during marriage by inheritance, devise, bequest or gift, and the rents and profits thereof. All other property, whether real or personal, is community property; and it is a settled doctrine of the courts of that state that all property acquired by the husband during the continuance of the marriage is presumed to be community property. 1 Pom. Eq. Jur. § 503. The statute of 1850, as amended by the act of 1861, which was in force until the 4th of April, 1864 (the testator died January 2d, 1863), gave the widow surviving one-half of the common property, and empowered the husband to make testamentary disposition of the other half where he died, as the testator in this case did, leaving no descendants. Jewell v. Jewell, 28 Cal. 232.
On the part of the executor it was contended that Mrs. Cory lost her right to share in the community property by election— by the probate of the will, and selling and conveying lands of the testator under powers granted 'to her as executrix, and by treating her husband’s property as an “entire mass, one and indivisible.”
In California, the common law dower has been wholly abol[536]*536ished, and the wife’s interest in the community property has been substituted in its place; and in cases arising upon wills made by husbands purporting to dispose of the community property, the courts of California, in determining the force and effect of the widow’s election to take under the husband’s will, have adopted the general doctrine established in England and in most of the American states concerning election between a testamentary provision for the widow and her legal right of dower. 1 Pom. Eq. Jur. § 504.
The general doctrine of the law is, that, where the testator has only a partial interest in property he disposes of by his will, courts will incline as far as possible in favor of a construction which will apply the language of the will only to the interest or estate which the testator is able to dispose of in his own right, and it requires an unequivocal expression or indication of an intent to dispose of the entire property, in order to raise a necessity for an election. 1 Pom. Eq. Jur. §§ 488 — 493. In Adsit v. Adsit, 2 Johns. Ch. 448, Chancellor Kent, after a historical review of the prior cases, deduces from them a rule which has met with uniform approval — that to enable the court to deduce an intention that a testamentary gift to the widow should be in lieu of dower, “ the claim of dower must be inconsistent with the will and repugnant to its dispositions or some of them; it must, in fact, disturb or disappoint the will,” This principle has been adopted by the California courts in dealing with the question of election, where the widow’s right in community property is in the issue. In Morrison v. Bowman, 29 Cal. 337, the court held that if the husband, by his will, undertakes to dispose of his wife’s half of the common property, as well as his own, to her and others, and she elects to accept the bequests made to her, she will thereby become divested of her interest in the common property, provided the assertion of the community right would necessarily defeat the objects of the will. Prof. Pomeroy, speaking on this subject on a citation of the California cases, says that in order to put the wife to an election between the provisions of the husband’s will and her right to community property, “the testamentary provision in her behalf must either be declared in [537]*537express terms to be given to her in lieu of her proprietary right and interest in the community property, or else an intention on his part that it shall be in. lieu of such proprietary right must be deduced by clear and manifest implication from the will, founded upon the fact that the claim to her share of the community property would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat them. An intent of the husband to dispose of his wife’s share of the community property, * * * * and thus put her to an election, * * * * will never be inferred when the words of the gift may have their fair and natural import by applying them only to the one-half of the community property which he has the power to dispose of by will.” 1 Pom. Eq. Jur. § 550. Among the cases cited are Payne v. Payne, 18 Gal. 291, and Estate of Silvey, 42 Id. 210. In Payne v. Payne, a husband leaving a wife and children gave all his property, being community property, to his wife absolutely, and it was held that she took one-half of the estate under her community right and the other half under the will. In Estate of Silvey, a husband left all his property, which was wholly community property, to his wife for life, and after her death to be divided equally among his children. It was insisted in behalf of the children that the widow was put to her election; but the court held that the general language of the will must be confined to the half the testator was able to dispose of, and that the widow took one-half absolutely as her own and the other half for her life,-and that no necessity for an election arose.
Where a testator has only a limited interest in property he affects to dispose of by his will, as, for instance, an undivided share, there is a distinction between a gift in general words of description, such as “ all my lands,” or “ all my estate,” and the like, and a gift of specific property. In cases of the first class, an obligation to elect does not arise, for the testator’s language can have full effect when applied only to his share or interest, and he is presumed to have intended to give only the property he had power to dispose of. In cases of the second class, it cannot be said that, upon every specific devise or bequest, a duty to elect arises. A case for an election by the co-owner of the [538]*538property so given, who is a beneficiary under the testator’s will, will be presented only where the testator’s gift of it to another is so expressed by words of description as to import an intent to give to the latter the whole of the common property in its entirety. 1 Pom. Eq. Jur. § 139; 1 Jarm. on Wills 456 (Rand, ed., 2 Id. 20); 2 Spenc. Eq. Jur. 593; Dummer v. Pitcher, 2 Myl. & K, 262; 1 Lead. Cas. in Eq. 514 [346]. The testator, in the description of the estate given to his wife, uses words of general description, “ all my real and personal estate,” and there is no gift over of property that was in California, by any specific description. I think it is clear, from an examination of the decisions of the California courts, that, so far as concerned so much of the testator’s property, real and personal, as was in, or invested in, that state, there is nothing in his will that put the widow to an election, and that, therefore, the consequences of an election, to be implied from her conduct, were not imposed upon her. She could take her life estate, under.the testator’s will, and her share in the community property, without disturbing, in the least, 'the testator’s other dispositions of his property in California. It is true that she made probate of the testator’s will, and accepted the office of executrix, and made sale and conveyance of lands which were community property, under powers granted to her as executrix. As between the widow and the purchasers, the title of the latter to lands conveyed may be absolute, by reason of an equitable estoppel; but, as between the widow and the other beneficiaries under the will, that circumstance neither created an estoppel nor carried with it a surrender of her right in common property, which the testator, on established rules of construction, did not undertake to dispose of by his will. A person accepting a benefit under a will, is required, on the doctrine of election, to relinquish only such of his rights as are inconsistent with the provisions of the will under which he takes, that no disposition of the testator therein may be defeated.
Nor did the widow lose her right in the community property, by the fact that she dealt with it and disposed of it as a whole. The evidence shows that her conduct, in that respect, was induced [539]*539by ignorance of 'her rights — acting on the advice of counsel, that, under her husband’s will, she was - entitled to take to herself, absolutely, the entire property, if she exercised her powers of sale, and, instead of intending thereby to relinquish her half of the community property, her purpose was to take the whole of it to her individual use, rightfully, as she supposed. Where a party is bound to elect between two inconsistent rights, and the contention is that an election has been made by conduct, it must be shown that the party acted with a knowledge of his rights — that, knowing that he could not hold the property which he was otherwise entitled to, and that given to him by the will, he acted with an intention to relinquish the former and accept the latter. Wilson v. Thornbury, L. R. (10 Ch. App.) 239; Dillon v. Parker, 1 Swanst. 359, 379, 380; Padbury v. Clark, 2 Macn. & G. 298; Spread v. Morgan, 11 H. of L. Cas. 588; 1 Jarm. on Wills 471 (Rand, ed., 2 Id. 40). An election made in ignorance, ar under a mistake of the real nature and extent of the party’s own rights, is not binding, and may be revoked, unless the rights of third persons have intervened, which would be interfered with by the revocation. 1 Pom. Eq. Jur. § 572; Macknet v. Macknet, 2 Stew. Eq. 54. Especially should conduct, otherwise indicative of an election, be explainable, and acts done under it be revocable, where the party is under no obligation to make an election. King v. Lagrange, 50 Cal. 328, is quite apposite to this branch of the case. There, a testator owning land which was community property, devised, it all to his wife, and gave to his executor a power of sale over it. .The executor, in ignorance of the community law, sold all the land, under the power. The purchaser supposed he was buying the entire estate, and the widow, in ignorance of her right, received the money for the whole. In an action by the widow to recover the one-half as community property, the court held (1) that the will did not present a case for an election, and (2) that if an election had been necessary, the acts of the widow, being done in ignorance of her rights, would not amount to an election.
The sale of the testator’s property by the widow in mass, and the fact that she kept no accounts, may place her administrator [540]*540at a disadvantage in taking an account of her administration, but will not involve her in a total loss of her rights. Even in the case of a confusion of goods the law will not impose a forfeiture as the penalty unless in cases of fraud. Wooley v. Campbell, 8 Vr. 163; Jewett v. Dringer, 3 Stew. Eq. 291; Ryder v. Hathaway, 21 Pick. 298—305; Livingstone v. Rawyards Coal Co., L. R. (5 App. Cas.) 25, 34, 39; Bigelow on Fraud 97. Except on the hypothesis of good faith on the part of Mrs. Cory, Douglas cannot be acquitted of blame. He united .with her in the probate of the will, and accepted a power of attorney from her, individually and as executrix, under which he collected and remitted assets of the estate to her. As an executor, having accepted the trust, he certainly could have required of her an inventory of the estate which might eventually come into his hands for administration. For his neglect to do so he can only be excused on the ground of the common error with respect to the nature arid extent of Mrs. Cory’s interest in her husband’s estate.
The lands in New Jersey and the stock of the Rahway Bank and of the New Jersey Railroad and Transportation Company, stand upon a different footing. These lands and the stock, with the exception of the increase of the railroad stock by stock dividends, the testator owned before he removed to California. With respect to the lands, I have said that they are governed by the laws of this state. The community property law of California has no application to them. The oniy estate Mrs. Cory had in them was the life estate-given to her by the will, or her common law right of dower. She must be charged with the proceeds she realized from the sale of them. With respect to the bank and railroad stock, it will not be necessary to consider whether, by the California law, they would be distributed as community property or as the husband’s separate property, for I think it is clear that the testator made such disposition of these stocks as put the widow to an election. The four shares of Rahway Bank stock the testator owned when his will was made. His railroad stock had at that time been increased by stock dividends to sixty-three shares, and at his death had become, by the same means, seventy-nine shares. In the last paragraph of his will he designated this [541]*541property as “ four shares of .the stock of Rahway Bank and about sixty shares of New Jersey Railroad and Transportation Company, all of which,” he says, “I wish my executors to take charge of and faithfully carry out my last will and testament; ” and the testator, in his will, distinguished between his executrix,, who was to have sole charge of his estate during her life, and his executors, who were to enter upon the duties of their office after her death. This stock the testator disposed of, not only specifically, but in language importing an intention to dispose of all of it as an entirety; and his widow could not assert her right in it as community property without disturbing and disappointing the testator’s disposition of it. In Swan v. Holmes, 19 Beav. 471, a sum of £10,000 stood settled in trust for two sisters for life, and after their death two-thirds of the capital in trust .for their brother and one-third in trust for their sisters. The brother bequeathed the whole of his property to trustees as part of certain trusts for his sisters, and he afterwards bequeathed the' property, “including the £10,000 trust money,” to other persons, and the court held that the sisters must elect between the benefits given them by the will and their interest in the £10,000 consols. Reynolds v. Torin, 1 Russ. 129; Shuttleworth v. Greaves, 4 Myl. & C. 35, and Grissell v. Swinhoe, L. R. (7 Eq.) 291—295, are cases of the same import, and the supreme court of California held that the widow’s duty to elect between her right in community property and benefits given to her by her- husband’s will, arose upon a devise of real estate by a description similarly specific. Morrison v. Bowman, 29 Cal. 337. The widow was entitled to the dividends upon this stock, whether made in cash or in stock (Van Doren v. Olden, 4 C. E. Gr. 176; Ashhurst v. Field, 11 Id. 1), as the produce of her life estate; but she must account for so much of it as the testator owned at his death.
The widow expended $15,000 in erecting a mausoleum to the testator’s memory, and $15,000 in building a house on one of the testator’s lots in Rahway. She paid annual taxes to the amount of $6,104.97, and assessments laid upon the property by the municipal authorities for permanent improvements amounting to $9,921.80.
[542]*542The expenditure for a monument was excessive and unreasonable, and not justified by the husband’s pecuniary circumstances. She should be allowed a reasonable sum only therefor, say $500. As tenant for life, she was obliged to pay the ordinary annual taxes out of her own pocket. The assessments for city improvements should be equitably apportioned between the life tenant and the interests in remainder. 4 Kent 75; Plympton v. Boston Dispensary, 106 Mass. 544; Stilwell v. Doughty, 2 Bradf. 311; Peck v. Sherwood, 56 N. Y. 615; Fleet v. Dorland, 11 How. Pr. 489; Miller’s Estate, 1 Tuck. 346. With respect to the expenditure for erecting the house, the general rule is that the tenant for life cannot lay out money in buildings or improvements upon the estate and charge the outlay to the inheritance: Caldecott v. Brown, 2 Hare 144; Nairn v. Majoribanks, 3 Russ. 582; Bostock v. Blakeney, 2 Bro. C. C. 653-657; In re Leigh’s Estate, L. R. (6 Ch. App.) 887-892. There does not appear in this case anything to take this expenditure out of the general rule.
The decree should be reversed. There should be a reference to ascertain the amount of the testator’s estate, real and personal, that came to the hands of Mrs. Cory, and the amount of the community property, and an account of her administration should be stated according to the views here expressed.
Neither party should have costs on this appeal as against the other.
Decree unanimously reversed.