Mr. Justice Morris
delivered the opinion of the Court:
As the questions of law involved in the case are suggested by the grounds assigned for the demurrer, it is proper that these should be stated. They are five in number, as-follows:
1. That the courts of Louisiana had acquired jurisdiction of the cause and of the issues therein, and of the sub: ject-matter'of controversy; and that the proceedings were-there pending undetermined, that being also the place of domicile of all the parties.'
2. That inasmuch as the bill of complaint admitted the invalidity of the will as a disposition of personal property* such personal estate should not be subjected to the payment, of the two legacies mentioned.
3. That inasmuch as.these legacies are neither expressly nor by necessary implication made a charge upon the realty of the decedent, the complainants therefore are not entitled to any relief whatever in respect thereof.
4. That in as far as the bill seeks to perpetuate the tes^ [71]*71timonyof the attesting witnesses and to establish the validity of the will and codicil, the Supreme Court of the District of Columbia, as a court of equity, was without jurisdiction.
5. That the complainants showed no ground in their bill for equitable relief.
We are not advised upon which of these grounds the learned justice, who rendered the decree appealed from, rested his decision, or whether he held all of them to be well founded. We are of the opinion that no one of them is tenable.
1. The first ground of demurrer is to the effect that the courts of the State of Louisiana had jurisdiction of the parties, had acquired jurisdiction of the subject-matter of controversy ; that proceedings were there pending undetermined with respect to the very same question sought to be litigated here; and that, therefore, in pursuance of the rules of comity, which, it may be admitted, now more than ever govern the relations to each other of courts of different jurisdictions, it would be proper to stay proceedings here to await the result of the litigation between the parties in the State of their domicil. But it is very clear to us that there, is here no question whatever of comity. The courts of Louisiana have no jurisdiction of the subject-matter of this suit, and can not by any possibility acquire such jurisdiction.
It is well settled law, so well settled that we must regard it as elementary, that the validity of a will of real estate is to be determined by the laws and by the courts of the jurisdiction in which such real estate is situated, and not by any other law or by any other tribunal. Kerr v. Moon, 9 Wheat. 566; McCormick v. Sullivant, 10 Wheat. 192; Okie v. Bennett, 11 How, 33; 3 Amer. & Eng. Encyc. L. (1st Ed.), Title, Conflict of Laws, 632, where the cases upon the point are collected. And this is the doctrine in the State of Louisiana, as well as elsewhere. Lewis's Case, 32 La. Ann. 387; Hughes v. Hughes, 14 La. Ann. 85; Dunbar’s Case, 5 La. Ann. 159. In fact in the very proceedings to which refer[72]*72ence is had as having been instituted by two of the appellees in this case in the courts of Louisiana, and to which by the demurrer it was sought to have the courts of the District of Columbia defer, the Supreme Court of that State has emphatically reaffirmed the doctrine. In its opinion rendered on April 4, 1898, it said:
“ No decree of the court here, could give or take away any right in respect of landed property in another State possessed by the deceased at the time of her death, the title to which depended upon any will she left. The validity of such will, and its effect as conferring title to land in another State, were questions for the courts of that State, and beyond the jurisdictional power of our courts.”
The rule that, when one court of competent jurisdiction has the parties before it, and has acquired control of the subject-matter of controversy, another court of equally competent jurisdiction will not interfere while proceedings are pending in the former tribunal, has no application in the present case, for the reason already stated, that the courts of Louisiana have not acquired, and could not acquire, jurisdiction of the subject-matter of this suit.
2. The second ground of demurrer, which is to the effect that, in view of the admitted invalidity of the will as one of personalty, the personal estate of the deceased should not be subjected to the payment of the legacies mentioned in the will, is plainly irrelevant, since the bill of complaint does not ask any such appropriation of the personal assets. The prayer of the bill of complaint is for the establishment of the will as a will of real estate, for the perpetuation of the testimony of the attesting witnesses, for instruction to the complainants as trustees in respect to the payment of the legacies, and for general relief. It does not follow that all these things might not properly be done, even though the personal estate of the decedent should not for any reason be available for the satisfaction of the legacies, especially when it is apparent that the personal estate in any event is wholly insufficient to discharge them.
[73]*733. Nor do we regard the third ground of demurrer as more tenable than the second. The proposition here is that the complainants are not entitled to any relief in equity, because the legacies are not, either expressly or by necessary implication, made a charge upon the real estate of the decedent. It is a sufficient answer to this to say, in accordance with well-settled principles of law, that the legacies are here by necessary implication made a charge upon the whole estate of the decedent. This precise question was long since determined by the Supreme Court of the United States, in the case of Lewis v. Darling, 16 How. 1, and the authorities are well-nigh unanimous upon the subject. In the case cited the Supreme Court said:
“The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust, to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies; for, in such a case, the ‘residue’ can only mean what remains after satisfying the previous gifts. Hill on Trustees, 508. Such is the settled law, both in England and in the United States, though cases do not often occur for its applicátion. Where one does occur, a legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of realty and personalty, because it is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them.” And numerous cases are cited.
In view of this decision further elaboration of this point would be unnecessary and useless.
4. The fourth ground of demurrer is that a court of equity is without jurisdiction either to establish a will of real estate [74]*74or to perpetuate the testimony of the witnesses who have attested the instrument. This proposition, likewise, we must regard as wholly unsustained either by reason or by authority.
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Mr. Justice Morris
delivered the opinion of the Court:
As the questions of law involved in the case are suggested by the grounds assigned for the demurrer, it is proper that these should be stated. They are five in number, as-follows:
1. That the courts of Louisiana had acquired jurisdiction of the cause and of the issues therein, and of the sub: ject-matter'of controversy; and that the proceedings were-there pending undetermined, that being also the place of domicile of all the parties.'
2. That inasmuch as the bill of complaint admitted the invalidity of the will as a disposition of personal property* such personal estate should not be subjected to the payment, of the two legacies mentioned.
3. That inasmuch as.these legacies are neither expressly nor by necessary implication made a charge upon the realty of the decedent, the complainants therefore are not entitled to any relief whatever in respect thereof.
4. That in as far as the bill seeks to perpetuate the tes^ [71]*71timonyof the attesting witnesses and to establish the validity of the will and codicil, the Supreme Court of the District of Columbia, as a court of equity, was without jurisdiction.
5. That the complainants showed no ground in their bill for equitable relief.
We are not advised upon which of these grounds the learned justice, who rendered the decree appealed from, rested his decision, or whether he held all of them to be well founded. We are of the opinion that no one of them is tenable.
1. The first ground of demurrer is to the effect that the courts of the State of Louisiana had jurisdiction of the parties, had acquired jurisdiction of the subject-matter of controversy ; that proceedings were there pending undetermined with respect to the very same question sought to be litigated here; and that, therefore, in pursuance of the rules of comity, which, it may be admitted, now more than ever govern the relations to each other of courts of different jurisdictions, it would be proper to stay proceedings here to await the result of the litigation between the parties in the State of their domicil. But it is very clear to us that there, is here no question whatever of comity. The courts of Louisiana have no jurisdiction of the subject-matter of this suit, and can not by any possibility acquire such jurisdiction.
It is well settled law, so well settled that we must regard it as elementary, that the validity of a will of real estate is to be determined by the laws and by the courts of the jurisdiction in which such real estate is situated, and not by any other law or by any other tribunal. Kerr v. Moon, 9 Wheat. 566; McCormick v. Sullivant, 10 Wheat. 192; Okie v. Bennett, 11 How, 33; 3 Amer. & Eng. Encyc. L. (1st Ed.), Title, Conflict of Laws, 632, where the cases upon the point are collected. And this is the doctrine in the State of Louisiana, as well as elsewhere. Lewis's Case, 32 La. Ann. 387; Hughes v. Hughes, 14 La. Ann. 85; Dunbar’s Case, 5 La. Ann. 159. In fact in the very proceedings to which refer[72]*72ence is had as having been instituted by two of the appellees in this case in the courts of Louisiana, and to which by the demurrer it was sought to have the courts of the District of Columbia defer, the Supreme Court of that State has emphatically reaffirmed the doctrine. In its opinion rendered on April 4, 1898, it said:
“ No decree of the court here, could give or take away any right in respect of landed property in another State possessed by the deceased at the time of her death, the title to which depended upon any will she left. The validity of such will, and its effect as conferring title to land in another State, were questions for the courts of that State, and beyond the jurisdictional power of our courts.”
The rule that, when one court of competent jurisdiction has the parties before it, and has acquired control of the subject-matter of controversy, another court of equally competent jurisdiction will not interfere while proceedings are pending in the former tribunal, has no application in the present case, for the reason already stated, that the courts of Louisiana have not acquired, and could not acquire, jurisdiction of the subject-matter of this suit.
2. The second ground of demurrer, which is to the effect that, in view of the admitted invalidity of the will as one of personalty, the personal estate of the deceased should not be subjected to the payment of the legacies mentioned in the will, is plainly irrelevant, since the bill of complaint does not ask any such appropriation of the personal assets. The prayer of the bill of complaint is for the establishment of the will as a will of real estate, for the perpetuation of the testimony of the attesting witnesses, for instruction to the complainants as trustees in respect to the payment of the legacies, and for general relief. It does not follow that all these things might not properly be done, even though the personal estate of the decedent should not for any reason be available for the satisfaction of the legacies, especially when it is apparent that the personal estate in any event is wholly insufficient to discharge them.
[73]*733. Nor do we regard the third ground of demurrer as more tenable than the second. The proposition here is that the complainants are not entitled to any relief in equity, because the legacies are not, either expressly or by necessary implication, made a charge upon the real estate of the decedent. It is a sufficient answer to this to say, in accordance with well-settled principles of law, that the legacies are here by necessary implication made a charge upon the whole estate of the decedent. This precise question was long since determined by the Supreme Court of the United States, in the case of Lewis v. Darling, 16 How. 1, and the authorities are well-nigh unanimous upon the subject. In the case cited the Supreme Court said:
“The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust, to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies; for, in such a case, the ‘residue’ can only mean what remains after satisfying the previous gifts. Hill on Trustees, 508. Such is the settled law, both in England and in the United States, though cases do not often occur for its applicátion. Where one does occur, a legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of realty and personalty, because it is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them.” And numerous cases are cited.
In view of this decision further elaboration of this point would be unnecessary and useless.
4. The fourth ground of demurrer is that a court of equity is without jurisdiction either to establish a will of real estate [74]*74or to perpetuate the testimony of the witnesses who have attested the instrument. This proposition, likewise, we must regard as wholly unsustained either by reason or by authority.
The argument-advanced in support of the proposition seems to be founded on the statement, frequently to be found both in the text-books and .in the reports of adjudicated cases, that the cognizance of wills of personal property is for the probate courts, and the cognizance of wills of real estate is for the courts of common law. But the argument is a palpable misapprehension of the statement, in so far as it is sought to be inferred that courts of chancery have no function whatever in the premises. Undoubtedly, the general rule is as stated; but this does not preclude the intervention of a court of equity, whether the' will be one of realty or one of personalty, when a case arises otherwise proper for the cognizance of that court. Especially has the matter of the establishment of wills of real estate and of the prepetuation of the testimony of the attesting witnesses thereto, become so well settled as a branch of equity jurisprudence as to have long since ceased to be open to question Story’s Equity Jurisprudence, Secs. 1445 to 1449.
Mr. Justice Story says: “It is often the primary, although not the sole, object of a suit in equity brought by devisees and others in interest, to establish the validity of a will of real estate; and thereupon to obtain a perpetual injunction against the heir-at-law and others to restrain them - from contesting its validity in future.” Sec. 1447. And again: “If, however, the devisees have no further present object than merely to establish the will by perpetuating the testimony of the witnessses thereto, this may be done by a proper bill for the purpose; and the latter is indeed what is usually meant by proving a will in chancery.” Sec. 1448.
It is quite obvious, of course, that the jurisdiction of equity will not be maintained, even in case of fraud or mistake, in favor of a person to whom a suit in ejectment or [75]*75other proper proceeding at common law is open ; for then the remedy at common law would be adequate and com7 píete. Case of Broderick’s Will, 21 Wall. 503; Ellis v. Davis, 109 U. S. 494; Perry v. Sweeny, 11 App. D. C. 404; Chase v. Winans, 59 Md. 475. But it is conceded by all the authorities that a bill in equity will lie, at the suit of a devisee in possession, to perpetuate the testimony of the witnesses to a will devising lands, against the heir-at-law who disputes the validity of the will; or a bill in the nature of a bill of peace to establish the will and the title of the devisee and perpetually to enjoin the heir-at-law ; or where there is a trust to be enforced; or where there is some legal impediment to the party’s right to maintin an action of ejectment. Ellis v. Davis, 109 U. S. 494; Chase v. Winans, 59 Md. 475. Here the devisees under the will appear to be in possession of the property; and it is alleged that two of the heirs-at-law dispute the validity of the will. It is not apparent, therefore, what legal remedy there is open to the devisees, in order to establish the will or to establish their title to the property, other than a bill in equity of the character of the one now before us.
This bill, it is true, is not filed by the appellants as devisees under the will to establish the will, or their title under it, against the heirs-at-law, although this would be the incidental effect of a decree in accordance with the prayer of the bill. The primary purpose of the proceeding is to enforce a trust created by the will, and to have the aid and direction of the court to the complainants in the performance of the trust; and this, of course, is so clearly proper for a court of equity that it is unnecessary to consume time or space in the citation of authorities in support of its right to entertain such a bill. That the complainants are designated as executrices, as well as trustees, is plainly of no consequence. They allege in the bill that they sue in both capacities; and their right to maintain the bill as trustees can not reasonably be doubted.
[76]*76It was unnecessary to cite the case of Fingal v. Blake, 1 Malloy’s Irish Chan. Rep. 113, or any other case, in support of the elementary proposition of law, that an executor, as such, has no right to resort to a court of equity for the purpose of establishing a will of real estate for the payment of debts or legacies, or for any other purpose. The executor, as such, it is well known, has nothing whatever to do with real estate, unless some duty in connection therewith has been devolved upon him by statute law. But when the executor is also constituted a trustee by the will, then, by the unanimous tenor of all the authorities, he is entitled to have recourse to a court of equity to aid him in the performance of his trust. The very case cited by the appellees> and upon which they seem most to rely for the contrary doctrine, that of Fingal v. Blake, supra, distinctly sustains this proposition. In that caso the Irish Court of Chancery said:
“Although a charge for debts created by will on real estate in aid of a personal estate does not entitle the executor to sustain a suit to establish the will against the heir, his ■duty being confined to administering the (personal) assets, and leave the parties who become interested in the realty to work out their interest as they can, yet if one of the executors is also a devisee in trust, such suit is proper.”
And although that is precisely the condition in the case now before us—namely, that the executrices are also devisees in trust—yet it is evident that it is because they have a trust to perform with reference to the real estate, and not because they happen to be devisees also, that they have a right to resort to a court of equity.
These executrices are charged by the testatrix in her will to raise from her estate the sum of ten thousand dollars, which sum, under the circumstances, as we have seen, necessarily is made a charge upon the whole estate, both real and personal; to invest this sum for the benefit of the legatee named as the beneficiary of it, an infant of tender [77]*77years; to apply the interest to the proper education of that infant, and to. pay the principal to her upon her coming of age. Here was undoubtedly a trust created of a most sacred character. That trust could be performed only by raising the money from the real estate, at least in part; for whether the will was invalid or not as to the personalty, it is very evident that the personalty, even if available for the purpose of its payment, is wholly insufficient. It became incumbent on the trustees to raise the fund. This it was impossible to do without establishing the title of the devisees under the will, and perpetuating the testimony of the witnesses for the purpose. A case more proper for the intervention of a court of equity can not well be imagined.
5. The fifth and last ground of demurrer is merely a general allegation of want of equity in the bill of complaint. But as neither in the brief filed on behalf of the appellees, nor otherwise, have we any suggestion of objection to the right of the complainants other than those already stated, and which we have found to be untenable, it does not appear that this general allegation requires any special consideration from us.
It is our opinion, therefore, that the demurrer interposed by the appellee, Virginia B. Ferguson, is unfounded in law, and should not have been sustained. And it follows that we must reverse the decree of dismissal of the bill from which the present appeal has been prosecuted, and remand the cause to the Supreme Court of the District of Columbia, with directions to overrule the said demurrer, and for such further and other proceedings therein according to law as may be just and proper, and are not inconsistent with this opinion. And it is so ordered.