James H. Cassilly and wife, Francis J. Meyer and Thomas Patton, and wife, vs. Andrew and Jos. Meyer, Exc'rs of Andrew Meyer, 4 Md. 1

Eccleston, J., delivered the opinion of this court. On the 27th of June 1848, Andrew Meyer, then a resident in the State of Ohio, died leaving a will, in which he appointed two of his sons, Andrew and Joseph, his executors. The will was proved and recorded in that State, and letters testamentary were there granted to the executors. A transcript of the record of the will, under seal, having been sent to this State and recorded, letters testamentary were granted to the executors therein named, by the orphans court of Baltimore county, in July 1848.

The following eighth, ninth and tenth items of this will contain the provisions which relate to the matter in controversy : “Eighth.

I do constitute Andrew and Joseph Meyer, executors of this my last will and testament; and it is my will, that after my death, as soon as may be conveniently done, they sell the property owned by me on Frederick street, Baltimore, and invest the avails here, by loaning the same on real estate security, and out of the interest, or interest of other moneys, pay Margaret Hossafross the sum of one hundred and twenty dollars per annum, during her natural life, provided she remains single.” “ Ninth.

It is my will, that the rest of my real estate in Baltimore shall remain as at present, as long as the law will allow, drawing rent, and the rent to be divided equally among my children and their legal representatives; my bank stock also to remain unsold, and the dividends divided in the same manner, and any money I may have at interest, the interest to be divided in the same manner, and the principal, as fast as the same may be paid, to be reinvested, and the interest divided as aforesaid.” “Tenth.

In case of the death of Andrew, Francis J. or Joseph, leaving a widow, she is to be paid by my executors, from my personal estate, five hundred dollars, provided, however, that should they, or either of them, have received from item No. 9, before his or their death, the sum of five hundred dollars, then his or their widow to receive nothing on his or their death.” The children of the testator are his two executors, Elizabeth, wife of James H. Cassilly, Alena, wife of Thomas Patton, and Francis J. Meyer. In October 1852, the two daughters, with their husbands, and Francis J.

Meyer, filed their petition in the orphans court of Baltimore city, stating that the debts of the deceased had all been paid; that the executors have in their hands money and property in Ohio, more than sufficient to secure and pay the annuity given to Margaret Hossafross by the will. The petition concludes with a prayer, that the executors may be compelled to account for all the estate which has come to their hands in this State, principal and interest, and make distribution thereof among the legatees.

The executors answered the petition, and filed as exhibits certain accounts and proceedings, in the courts of Ohio, in regard to the estate, and also two administration accounts passed in this State.

These exhibits show a considerable amount of assets in their hands in Ohio, that a sum has been transferred there from Maryland, more than sufficient to pay to each of the three sons, Andrew, Francis J. and Joseph, $500, and that they had each received more than that sum. ■ In their answer the executors resist the application of the petitioners, and insist, that by the true construction of the will of the deceased, they are trustees of the estate mentioned in the ninth clause, and not subject to the jurisdiction of the orphans court of Baltimore, further than by their settlements as executors, to ascertain the amount of the principal, and to pay any debts due to citizens of Maryland.

That with regard to the distribution of the estate, the jurisdiction belongs exclusively to the courts of Ohio, the petitioners being citizens of, and residing in, that State. They also contend, that the income from the estate in Maryland of right should be, and In fact has been, accounted for in Ohio, as their accounts will show. Only two judges were present in the court below, and being divided in opinion, an order was passed dismissing the petition. This order we are called upon to revise. In argument the prayer of the petitioners was resisted on two grounds :---lst.

Because, if the provisions of the will authorised, at present, a distribution of the whole of the personal estate, now in Maryland, among the legatees, the same should be transferred to Ohio for distribution, the courts of this State having no jurisdiction in such a case. 2nd.

Admitting that our courts would have the authority to distribute the assets, if they were now in a proper condition for that purpose, still the petition was rightfully dismissed, inasmuch as, according to the provisions of the will, the petitioners are not entitled to demand a distribution of the bank stock, or of the principal of the debts due to the deceased, because they are subject to a trust not yet terminated. The first ground presents a question which has occasioned much controversy, and elicited a great deal of learning in its discussion.

The decisions in the different States have been treated of, with their usual ability, by the two very distinguished writers, Chancellor Kent and Mr. Justice Story, as may be seen in the 2nd vol. of the Commentaries of the former,, commencing at marginal page 431, (new Ed.,) and in note a, page 434; and in the Commentaries of the latter, on the Conflict of Laws, sec. 513, and note 2.

From a careful examination of these authorities and the cases referred to, we think it may be considered as a well settled principle, that in a case like the present the courts of this Stale are not bound to transfer the assets to Ohio, for distribution there; but that it is matter of judicial discretion-to do so, or to distribute them here, that discretion to be exercised according to the circumstances of the case. At pages 432 and 433, Chancellor Kent, speaking of Harvey vs.

Richards, says: "It was held, upon a masterly consideration of the case, that whether a court of equity would proceed to decree an account and distribution according to the lex loái rei sitce, or direct the assets to be distributed by the foreign tribunal of the domicil of the party, would depend upon circumstances.” Again it is said: “Though the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad.

Whether the court here ought to decre'e distribution, or remit the property abroad, was a matter of judicial discretion, and there was no universal or uniform rule on the subject.” And in the note referred to the chancellor informs us, that in Vermont this judicial discretion is recognised; that it rests on courtesy and expediency alone, and though it is the usual course to remit the assets, still this will not be done when the rights of those entitled to the estate would be endangered by it. In the 513

section of Story, he advances the doctrine, that the new administration is ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them. But that “the new administration is made subservient to the rights of creditors, legatees and distributees, resident within the country” In note 2, he refers with decided approbation to the learned opinion of Chief Justice Parker, in Dawes vs. Head, 3 Pick., 128, from which large extracts are made.

In that case the court thought it could not be, that in every case a final settlement of the estate should take place under the jurisdiction which granted the ancillary administration; for, if so, then, if there were no debts there, “ and none to claim as legatees- or next of kin,” all would be required to prove their right and receive their distributive shares there, notwithstanding the lex domicilii must regulate the settlement.

They considered it clear, that in such a case the assets should be remitted to the foreign executor or administrator, because the distribution should be made according to the laws of the country, where the deceased was domiciled. It is then said: “And if any

part is to be retained for distribution here, it will be only by virtue of some exception to this general rule, or because the parlies interested seek their remedy here; in which case it might be within the legal discretion of the court here to cause distribution, or to remit, according to the circumstances and condition of the estate.” These authorities seem very clearly to establish, that there is a judicial discretion on this subject, which is to be regulated by the circumstances of each particular case.

And especially that under such discretion, the assets may be distributed by the court granting the ancillary administration, where the legatees or distributees reside there, or, in the language of Chief Justice Parke, where they “seek their remedy there.” If the residence of claimants will entitle them to expect this discretion to be exercised for their benefit, we see no just reason why non-resident parties may not, voluntarily, come in and ask the same privilege; particularly, when, as in the present case, all the parties having any interest in the assets are before the court.

The executors being here as parties, they, together with the petitioners, are all the legatees, having an interest in the assets now in this State. No circumstances showing any particular propriety or necessity for transferring the property to Ohio have been presented. It is not alleged that there are outstanding debts to be paid; but the only objections urged against the application of the petitioners, are those which have been stated, as based upon a want of jurisdiction over the subject in the Maryland courts, and an alleged subsisting trust created by the will.

On the subject of jurisdiction, believing our courts have a discretion, we think the prayer of the petition should have been granted. We see no good reason why it should not, whilst there are reasons to the contrary.

The proceedings in the record exhibit clear proof of a failure, in several particulars, on the pait of the executors to perform their duty in Ohio; the administration in Maryland had been standing in an unsettled condition for more than four years when this petition was filed, and directing the estate to be transferred,. would only be productive of still more delay and further expense, without, as far as' we can see, benefitting any one. In our opinion, there is no trust which can take from the orphans court its jurisdiction over the personal estate of the deceased, now remaining in this State.

The property on Frederick street in Baltimore has been sold, and the proceeds taken to Ohio, in obedience to the directions of the will. The bequest of the dividends of the bank stock and interest of the debts to his children, is a gift to them of the stock itself, and also the principal of the debts. The direction that the one should remain unsold, and the other reinvested, as it might be received, cannot prevent the children from now claiming the principal. It is true, as has been contended, that a life estate in a chattel may be given to one person, and the same, with its increase, be limited over to another.

But this can only be done by express words or necessary implication. Evans vs. Iglehart, 6 G. & J., 185. In this case there are no such express words, and it will be exceedingly difficult to discover any such necessary implication. The dividends and interest are given to the children in general terms, without limitation as to- time.

Neither is there any limitation as to the duration of the direction not to sell the stock and to reinvest the principal of the debts, unless the expression, “as long as the law will allowr-,” used in connection w'ith the real estate, mentioned in the same clause, is to be considered as applicable to the stock.

But this discloses no intention on the part of the testator, that the principal of those portions of his estate should be preserved for the ultimate benefit of any other persons than his children-;; neither can we discover a design that the same should be paid or delivered over to them as they arrive at age, or at any specified period, so as to prohibit them from, demanding a distribution thereof until then. But the bequest is a simple unqualified gift of the dividends and interest, which carries with it the principal of the debts and the stock also.

On this point the case before us is very analogous to that of Manning vs. Craig, et al., 3 Green’s N. J. Rep., 436. There the will contained the following bequest: “Two hundred and fifty shares of stock that I hold in the great western turnpike company, in the State of New York, to remain unsold, and the dividends arising thereon I direct to be equally divided between” certain of his children and grandchildren, naming them. The application was to have the stock divided among the legatees, which the court ordered to be done.

It was there held, that the gift of the produce of a fund, without limit as to time, is a gift of the fund, and that the interest of each legatee was vested. A devise of the rents and profits of land, is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein. 2 Jarman on Wills, marg. p. 534.

If at any time there was a necessity for retaining a portion of the Maryland estate, to meet the contingency depending upon the decease of Andrew, Francis J. and Joseph, leaving widows, that necessity no longer exists, because each of those sons has received the $500, which puts an end to all claim on the part of his widow. We think the order of the court below ought to be reversed and the cause remanded, that the orphans court may direct a sale of the bank stock, the collection of any outstanding debts due the estate, and requiring the executors to account, so that a distribution may be made among the legatees.

Order reversed and cause remanded.