principle of law that the prisoner shall have | entitled to the greatest protection, and best the benefit of such doubt. conserve the public security.

[5] And so we say, that if you believe from The state also cited a decision in this state the testimony that officer Zebley at the time in which the court said:

(93 Vt. 424))

(108 A.)

ceived by him under his appointment, and it is WHALLEY et al. v. LAWRENCE'S ES- discretionary with the court to order distribu

tion there or to remit the effects of a testator, after payment of debts and expenses to the Oct. place of principal administration.

1. CONVERSION 15(2)-OF REALTY ORDERED

SOLD BY WILL.

9. WILLS 436-RIGHTS OF HEIRS GOVERNED BY LAWS OF DOMICILE.

The court of the state where ancillary administration is had having decreed that a portion of the estate was not legally disposed of

In the construction of wills in which real estate is ordered to be sold and turned into money, courts of equity in dealing with the sub-by will and thereupon decreed to certain of the ject will consider it as personal.

2. CONVERSION

PERSONALTY.

15(1) - OF REALTY INTO

To work a conversion while the testator's property remains unchanged in form, there must be a clear direction to convert it. 3. CONVERSION

heirs a certain sum contrary to intentions of the testator, and the heirs having accepted the sum decreed to each, whether they are entitled to receive their bequest in full regardless of what they have received under said decree is to be determined by the laws of the testator's domicile.

15(2)-DIRECTIONS IN WILL 10. DESCENT AND DISTRIBUTION 5-EXECUTORS AND ADMINISTRATORS 2-PERSONAL

FOR SALE OF REALTY.

Where there are figures and statements in the case from which the facts claimed to have been omitted can be readily ascertained, failure to find, if erroneous, is harmless.

7. EXECUTORS AND ADMINISTRATORS

2

LAWS OF DOMICILE GOVERN SETTLEMENT OF
ESTATE.

The court of the state where ancillary administration is had, though acting within its jurisdiction, cannot oust the court of the state where testator had his domicile of its jurisdiction to construe testator's will and finally settle his estate according to the laws of the domicile.

TY GOVERNED BY LAWS OF OWNER'S DOMI-
CILE.

The distribution of personalty is governed by the laws of the owner's domicile, and the final settlement and distribution of his estate is to be according to the laws of that domicile. 11. WILLS 792(2)-ELECTION BY TAKING UNDER ANCILLARY ADMINISTRATION DECREE.

Although by a decree of distribution in ancillary administration heirs became legally entitled to portion of the estate, yet, where they took in opposition to the specific provisions of the will, they held by way of election under the laws of testator's domicile.

12. WILLS 792(1)-ELECTION DEPENDS UPON ACCEPTANCE.

Election depends upon acceptance either of the provision of the will or of some right opposed to those provisions.

13. WILLS 792(2)-ELECTION BY ACCEPTANCE UNDER ANCILLARY DECREE.

A legatee, having accepted sum decreed to him by the court where ancillary administration was had, thereby elected to take against the will and stands as do the other heirs who have accepted the decree though he had no part in securing such decree.

Exceptions from Addison County Court; Frank L. Fish, Judge.

Proceedings for the settlement of the estate of William A. Lawrence, deceased. On tate of William A. Lawrence, deceased. On appeal to the county court, decrees of the probate court were reversed and Alma Whalley and others excepted. Judgment below reversed, and judgment rendered affirming

8. EXECUTORS AND ADMINISTRATORS 523, judgment of the probate court.

526-DISTRIBUTION AND SETTLEMENT ON AN

CILLARY ADMINISTRATION.

The court where ancillary administration is had has authority to settle the accounts of the ancillary administrator for property re

†When this case was originally argued it was assigned to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Miles.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. A. L. Sherman, of Burlington, for appellants Whalley and others. March M. Wilson, of Randolph, for appellant O'Brien.

Charles I. Button, of Middlebury, and Wm. B. C. Stickney, of Rutland, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

rata deduction from such devises or bequests

MILES, J. This case, with In re Will of ( testator; and and if so made, at least thirty William A. Lawrence, Arthur O'Brien, ap- days prior to such death such devise or legacy pellant, came to the county court on appeal and each of them shall be valid; provided, that from an order of distribution of the probate no such devises or bequests shall collectively court for the district of New Haven, in the exceed one-third of the estate of the testator. settlement of the estate of William A. Law-leaving legal heirs, and in such case a pro rence, who at the time of his death and for shall be made so as to reduce the aggregate a long time previous thereto had his domi- thereof to one-third of such estate; and all cile in Bristol in said district. The cases dispositions of property made contrary hereto were tried together by the county court, shall be void, and go to the residuary legatee facts were found and judgment rendered or devisee, next of kin, or heirs, according to thereon in both cases, sustaining the appeal | law." and reversing the decree of the probate court with costs to the appellants. To this judg ment the appellees took exceptions, and also took several exceptions to the finding of facts, and the case came here on those exceptions and on an exception taken to the admission of the inventory of property of the testator, filed in the California court.

The appellants received the amounts decreed by the California court and now ask to receive the specific legacies given in the will. The probate court for the district of New Haven refused to order payment in full to those heirs on the final settlement of the testator's estate, but ordered and decreed that the bequests to those heirs should be reduced by the amount received by each from the estate in California, and on this basis made a decree of distribution, and it is from this decree that the appellants took their appeal to the county court.

The court below found that the estate of the testator in California included both real and personal property. To this finding the appellees excepted and to the reception of the inventory of the testator's property in California as evidence to prove that the property there administered was partly real, and this is the first exception to be considered.

The facts found, which were not excepted to, are substantially as follows: The appellants in both suits are legatees in the will of the testator. A part of the testator's es: tate was in Vermont and a part in California. The total estate in California, after the payment of debts and expense of administration in that state, was $17,640, as reported by the California court, and the total estate of the testator in Vermont was $45,500, as reported by the California court, making the total value of the testator's estate in Vermont and California $63,140. As stated by the California court, the specific bequests to individuals and benevolent and charitable institutions amounted to $56,193.50. The [1] As a matter of fact, the estate in Caliamount given to persons was $31,693.50, and fornia was partly real at the time the invento charitable and benevolent societies $24,500. tory was taken, and so continued until its The residue of the estate given to charitable sale under the provisions of the will, after ard benevolent institutions amount to which it became personal and was so treat$6,946.90 which, added to the special be- ed by the California court in its decree to quests to those institutions, made the be- the heirs and in its remittance to the Verquests to such institutions amount to mont executor. It is a well-settled rule of $31,446.90. The bequests to those institu- law as administered in equity that, in the tions, therefore, amounted to a sum exceed- constructions of wills in which real estate is ing one-third of $63,140, the total estimated ordered to be sold and turned into money, estate of the testator, in the sum courts of equity, in dealing with the subject, $10,400.10. This sum the California court consider it as personal. Ritch v. Talbot, 74 distributed among the heirs of the testator. Conn. 137, 50 Atl. 42; 9 Cyc. 830, IV; There were eleven heirs in all. To each of Greenwood v. Greenwood, 178 Ill. 387, 53 seven the court decreed $945.46 and to each N. E. 101; Nevitt v. Woodburn, 175 Ill., 376, of four $945.47. To eight of those heirs the 51 N. E. 593; Hammond v. Putnam, 110 testator bequeathed $200 each, to one $3,000, Mass. 232; Askew v. Douglass (N. J.) 3 Atl. to another $2,000, and to appellant, Arthur 263; In re McGraw, 111 N. Y. 66, 19 N. E. O'Brien, $1,500. To the Vermont executor 233, 2 L. R. A. 387; Kane v. Gott, 24 Wend. the court remitted the balance of the (N. Y.) 641, 35 Am. Dec. 641; Proctor v. $17,640 to be distributed under the will. In Ferebee, 36 N. C. 143, 36 Am. Dec. 34; Pemaking this decree the California court act- ter v. Beverly, 10 Pet. 532, 9 L. Ed. 522; ed under section 1313 of the California Civ. Craig v. Leslie, 3 Wheat. 563, 4 L. Ed. 460; Code, which is as follows: Wharton's Conflict of Law, § 591b.

of

"No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed

[2-5] To work a conversion while the property remains unchanged in form, there must, however, be a clear direction to convert it. 9 Cyc. 831. In the will of the testator the intention is clearly expressed that his real

(108 A.)

The California court having decreed to eleven of the testator's heirs $10,400, contrary to the intentions of the testator as clearly expressed in the provisions of his will, and those heirs having accepted the sum decreed to each, the question arises whether they are entitled to receive their bequests in full regardless of what they have received under the decree of the California court.

into money. None of the real estate in Cali-fornia court, though acting within its jurisfornia was specifically devised. It was clear- diction, could not oust the Vermont court of ly the intention of the testator to have the its jurisdiction to construe the testator's will real estate in California California converted into and finally settle his estate according to the money and distributed among the legatees laws of Vermont. named in his will. The bequests to the several legatees named in his will were of the avails of that real estate, and not of the real estate itself, and those bequests took effect after the sale, and hence, under the wellsettled rule above stated, that real estate is to be considered personal. The will, therefore, which is made a part of the findings, under the decision of the cases above cited, settles the character of the property in California for the purpose of distribution and renders the finding, that the estate in California was partly real, colorless and the admission of the inventory harmless error, though its reception may have been error. This holding renders this exception of no avail to the appellants.

[10] The appellants claim, and it cannot be disputed, that the ancillary administrator has certain powers over personal property found in the state where ancillary administration is taken out, and that the rule is well settled that, where principal administration is taken out in one state and ancillary administration is granted in another, the court where ancillary administration is taken out has authority to settle and adjust the accounts of the administrator appointed by that court, for property or effects received by him under his appointment; and that it is discretionary with that court to order distribution there, or to remit the effects of the

The second and third exceptions are taken as to findings of fact, but those findings were evidently intended as an opinion of the law governing the facts found upon which the judgment was based and will be taken care of in our treatment of the exception to the judgment. The fourth exception to the findings is of testator, after the payment of debts in that no importance, one way or the other.

[6] The exception to the court's failure to find, expressed in the fifth exception, if well taken, which we do not decide, is harmless error, if any, for the figures and statements in the case from which the facts claimed to have been omitted can be readily ascertained. The sixth exception is taken care of in the briefs of the appellees before the trial court, which are made a part of the case and show what their claims were.

The exception to the admission of evidence is disposed of in the treatment of the first exception.

The question raised on the exception to the judgment may as well be treated generally as to follow the order in which it is presented in the appellees' brief.

'state and the expense of administration, to the place of the principal administration for that purpose. Heirs of Porter v. Heydock, 6 Vt. 374; In re Joslin's Estate, 76 Vt. 88, 56 Atl. 281; Churchill v. Boyden, Adm'r, 17 Vt. 319; 18 Cyc. 1236 F.; Eq. Assur. Soc. v. Vogel's Ex'x, 76 Ala. 441, 52 Am. Rep. 344; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472; Graveley v. Graveley, 25 'S. C. 1, 60 Am. Rep. 478. But, since the distribution of and succession to personal property, wherever situated, are governed by the laws of the country or state where the owner had his domicile at the time of his death, the final settlement and distribution of the estate is to be according to the laws of that domicile. 18 Cyc. 1236, supra; Eq. Assur. Soc. v. Vogel's Ex'x, supra; Goodall v. Mar[7-9] Having already held that the testa- shall, supra; Graveley v. Graveley, supra; tor's property in California is to be consid- Lawrence v. Kittredge, 21 Conn. 577, 56 Am. ered as personal, the discussion here in- Dec. 385; Story, Confl. of L. 403, 480–484; volved relates to that class of property Harvey v. Richards, 1 Mason, 381, Fed. alone, and the authorities relating to real Cas. No. 6,184; Bempde v. Johnson, 3 Ves. property, cited by the appellants, become un- Jr. 198 and note; Wharton's Confl. of L. 560, important. The appellants contend that, 561; 2 Kent's Com. 428, 429; 2 Williams on even if the property in California was Eq. 1515; De Sobry v. De Laistre, 2 Har. wholly personal, the California court, under & J. (Md.) 191, 3 Am. Dec. 535; Desesbats v. section 1313 of the California Code, had Berquier, 1 Bin. (Pa.) 336, 2 Am. Dec. 448, power to distribute it as it did, notwithstand- and note; note to Bryan v. Moore's Heirs, ing that the laws of that state were in con- 13 Am. Dec. 347, where the authorities are flict with the laws of the testator's domicile. collected. Many other authorities to the Admitting, but not deciding, that such is the same effect might be cited, but it is unnecfact, it does not follow that the appellants essary to do so, as the rule seems to be are entitled to receive in full under the will firmly established in this country as well as and also hold under the decree of the Cali- in England. Besides, as we have already fornia court to its full extent; for the Cali- seen, the California court recognized this

rule of law when it remitted to the Vermont executor the remainder of the testator's estate, after decreeing that portion which, by the laws of California as interpreted by that court, was not legally disposed of by the will. Whether the appellants are entitled to receive their bequests in full, regardless of what they have received under the decree of the California court, depends upon the laws of Vermont.

The law upon this subject is well settled in this state as declared in the following cases: Church v. Church's Estate, 80 Vt. 228, 67 Atl. 549; Meech v. Meech's Est., 37 Vt. 414; Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625; Drake v. Wild, 70 Vt. 52, 39 Atl. 248; Hoyt v. Hoyt, 77 Vt. 244, 59 Atl. 845. In Church v. Church's Estate it is said:

"One who accepts of a devise or bequest does so on condition of conforming to the will, and is bound to give full effect to that instrument so far as he can, whether the testamentary provision accepted be in lieu of some right, or as a mere bounty."

In Drake v. Wild it is said:

"As the oratrix could not take both by the will and as heir, she acquired no title to the homestead except by the will."

fectuating the testator's whole intentions. That object, as I take it, is, in the eye of this court, But in so attaining it the court violates no always the paramount object of attainment. foreign law; it leaves that law, as it must, untouched. If the heir can obtain under the protection of the foreign law property which the testator destined for others, he will, so far as this court is concerned, be at perfect liberty to take it and keep it; it is the legacy subject to its own jurisdiction that the court alone will touch and administer and, if necessary, impound for the purpose of effectuating the testator's intention, and so doing justice will always take this course upon the conditions as it sees it. And, in my opinion, the court presupposed, unless the heir's legacy would, if applied in compensating the disappointed devisees of the foreign land, be applied in a way or for purposes for which the testator himself have directed that legacy to be so applied. It could not, by English law, validly by his will is with the English law only that the court at this stage is concerned. If, in the result, no principle of that law is violated, the hand of the court will not be stayed. The foreign heir will be put to his election; and compensation, partial or complete, will, if necessary, be provided for the disappointed devisee."

In Douglas-Menzies v. Uphelby, 3 B. R. C. 509, the testator, residing in Scotland, deTo the same effect are the other Vermont Vised and bequeathed property which he cases above cited, and we know of no Ver-owned in Scotland and Australia to his widow. The widow took of the testator's propmont case holding otherwise.

by law, instead of by the provisions of the will, and then claimed the property in Australia under the will. This was denied her, on the ground that she had elected to take by law, and therefore could not take under the will.

The rule is so well stated, and the princi-erty in Scotland what she was entitled to ple upon which it rests so clearly pointed out, in Re Ogilvie, [1918] L. R. 1 Ch. Div. 492, and is so near like the case at bar in its essential facts, that we cite quite extensively from that case. The testator was domiciled and owned property in England and also owned property in Paraguay. In his will the testator bequeathed his Paraguayan property to charitable uses. By the law of that country the bequest was void, and the property so bequeathed was decreed to the heirs at law who were named as legatees in the will of the testator. Held that the heirs must elect whether they would take under the law in Paraguay or under the will, the court saying:

"This court does not, in these cases of elec tion, against a foreign heir, presume to sit in judgment upon the wisdom or the reverse according to its own notions of the municipal law of any foreign country. If it finds that an English testator has by his will manifested an intention to dispose of foreign heritage away from the foreign heir, and has, in fact, so far as words are concerned, effectually so disposed of it, this court merely says that it is against conscience that that foreign heir, given a legacy by the same will, and to that extent an object of mere bounty on the part of the testator, shall take and keep, under the protection of the foreign law, the land by the will destined for another, without making to that other out of his English legacy, so far as it will go,

[11] Counsel have discussed the constitutional question of full faith and credit to be given to the judgment of sister states, but that question does not arise in this case. The New Haven court's decree of distribution was in no way in conflict with the decree of the California court. The New Hadecree of the California court as vesting a ven court recognized the validity of the portion of the testator's estate in the ap

pellants; but, although by the decree they became legally entitled to the same, yet, as they took in opposition to the specific provisions of the will, they held it by way of election under the Vermont law.

The authorities are not all agreed upon the effect of an election as to whether a devisee or legatee electing against the will thereby forfeits the whole of the bequest under the will, or so much only as is necessary to compensate by an equivalent those claimants whom he has disappointed, so he may entitle himself to the surplus. Story, in his work on Equity Jus. (1085), says:

"But the fair result of the modern leading decisions is that in such a case there is not an