SHERWOOD VS. SHERWOOD.

time to time collect and receive the rents, profits, proceeds and interest thereof, for and during the terms of the natural lives of my brothers, David Sherwood and Richard W. Sherwood; and as he shall receive said rents, profits, proceeds and interest, to divide and pay over the same, first deducting all contingent and other legal expenses arising from the execution of said trust, to my said brothers for their sole use and benefit, share and share alike. From and after the decease of my said brother Richard W. Sherwood, I give, devise, and bequeath to his son Joseph, the one equal third part of my said estate real and personal, to him and his heirs forever. From and after the decease of my brother David Sherwood, I give, devise, and bequeath to all the lawful children of my said brother David, and their heirs forever, all the remaining two-thirds of my said estate, real and personal, to be divided between them, share and share alike." Richard, after enjoying his share of the trust estate some time, died, leaving his son Joseph surviving; and Joseph therefore takes one-third, or two-sixths of the estate in fee. David has been in receipt of three-sixths of the income since the inception of the trust: and the question now arises as to the disposition of the remaining one-sixth of the income. Joseph claims that it is not disposed of by the will, and that he takes half of it as heir-atlaw, till the decease of David.

As

The testator has expressed very clearly, that on the decease of his brothers respectively, the son of one of them should take one-third, and the children of the other, two-thirds. to the corpus, the design was to cut down one share to a third, and enlarge the other share to two-thirds-was there a different disposition intended as to the rents? It is a reasonable presumption when the testator on Richard's death gave over one-third of the capital to Joseph, that the intention was to limit him to that share. The devise in trust being of all the testator's estate, there is also a strong presumption against any construction leading to intestacy. Moreover, the devise in trust is in the first instance during the joint lives of both. brothers-on the death of either, a certain portion is devised

SHERWOOD VS. SHERWOOD.

in fee, and so withdrawn from the trust, but the remainder is still left under the operation of the trust. The trust is to "divide and pay over" the income "to my said brothers, for their sole use and benefit, share and share alike." If this provision taken in connexion with the whole will, created a tenancy in common, then one-sixth of the income has lapsed. If it created a joint tenancy, then David takes the entire income of the estate remaining under the trust. Ordinarily such words as are used in this clause, would make a tenancy in common, but the doctrine is well established, that the usual acceptation of language may be restrained by provisions. indicating a contrary intention. In Armstrong v. Eldridge, 3 B. C. C. 215, there was a devise in trust, to apply the income to the use of four grand-children "equally between them, share and share alike, for and during their several and respective natural lives," and "after the decease of the survivor of them,' in trust to divide the principal among the children of the lifetenants. Lord Thurlow held there was no tenancy in common, but a joint tenancy among the life-tenants; and the capital of the estate did not go over until all the life-tenants were dead. The ground of this decision was, that by the terms of the gift over, an intention was shown in favor of a joint tenancy instead of a tenancy in common among the lifetenants. (Tuckerman v. Jefferies, 3 Bacon's Ab. 681; Pearce v. Edmeades, 3 You & Coll., 246.) There is enough I think, in the case now before me to call for the application of this principle. The trust is for the joint lives of the two brothers. The direction to "divide and pay over" to them "share and share alike," is necessarily so far as a division is concerned, limited to the period while both are living; and in connection with the other provisions of the will, would seem only to indicate the proportion each was to take while both were living, and not the nature of the estate. On the decease of Richard his heir takes one-third, there is no one to divide the income of the remaining two-thirds with, and David retains it, and on his decease the principal passes to his heirs. This makes a congruous will. There can be no doubt, the testator meant

CHURCHILL VS. PRESCOTT.

to die intestate of no part of his property, and it is equally plain, that all he intended Joseph to have on his father's death was one-third in fee. This is a mere question of intention, and the force of technical words is always controlled by provisions, which show that a technical interpretation would militate against the design of the testator. I have therefore come to the conclusion, that on the decease of Richard, Joseph's share was limited to one-third, and that David takes the income of the remaining two-thirds during life, with remainder in fee to his children.

CHURCHILL VS. PRESCOTT

In the matter of the Estate of JAMES S. PRESCOTT, deceased. THE administrator having taken out letters on the citation of the next of kin, and at their instance having been called to account, Held, that a decree of the proper tribunal in the place of the intestate's domicil and of the principal administration, was conclusive upon all parties thereto, in respect to assets then realized or claims against the administrator which might then have been adjudicated.

The place of domicil is the place of the principal administration, and other administrations are merely ancillary. The law of the place of ancillary administration governs as to the payment of debts there, but the distribution among the next of kin or legatees is made according to the lex domicilii. A decree against the primary administrator at an intestate's domicil is conclusive upon the subsidiary administrator.

The proper time for presenting and determining a claim against the administrator for an alleged individual debt due by him to his intestate, is on the final accounting, and he may be charged for such debt wherever he has administered, notwithstanding he resides in another jurisdiction, unless the rights of creditors in the place of his residence require protection.

G. C. & E. GENET, for Petitioners.

I. The intestate, in his lifetime, advanced his brother Henry, the administrator, by way of loan, the sum of one thousand dollars. It appears that Henry resided in the city of New

CHURCHILL VS. PRESCOTT.

York up to and at the time of the death of the intestate-and therefore the debt was and is assets within the jurisdiction of this court, and of no other court. The creditors resident here have an interest in it, and it cannot be sent abroad. (Mothland vs. Wireman, 3 Penn. R., 185.) The creditors and distributees resident within the country, have rights to which the administration is subservient. (2 Kent's Com., p. 434, note; Story's Conflict of Laws, § 423; Goodall vs. Marshall, 11 N. H. Rep., 88; Ordronaux vs. Helie, 3 Sand. Ch. R., 512; Slatter vs. Carroll, 2 Sand. Ch. R., 573.)

II. The administrator sets up that administration was taken out in Rockingham County, State of New Hampshire, and that was the place of the domicil of the intestate at the time of his death, and that he had been appointed administrator there, and had rendered an account of his administration there. It was denied that the domicil of the intestate was in Rockingham County, N. H., and no proof was offered to show that it was; and it was not pretended that this sum was accounted for there. Since the assets were here, and creditors and distributees here had a right in them, would it have discharged the administrator if he had taken these assets to New Hampshire and accounted for them? It might have been cut off by a short statute of limitation there, and to make such a defence good here, he must show that he distributed this amount there, with the other assets. (Cases cited above.) Neither does it appear by what authority the Probate Court of New Hampshire took jurisdiction of the matter, and therefore it does not appear how the administrator can take advantage of an account having been settled there. Moreover, it is stipu lated between counsel, and the stipulation filed, that it is admitted that the administrator did not account for or distribute this $1000 in that accounting.

III. This, therefore, is as much of a primary administration as the administration taken out in Rockingham County, and the Surrogate has full power to compel payment and distri

bution.

CHURCHILL VS. PRESCOTT.

If it should be considered only as ancillary, then why has not this court the same right to award justice as the Supreme court in equity, since its jurisdiction in these cases is concurrent where they both have jurisdiction,—and the late court of Chancery has laid the rule down so clearly in the case of McNamara vs. Dwyer, 7 Paige's Ch. Rep., 239, in such a case as this, that it can no longer be questioned. That was a case where a foreign executor or administrator had brought assets into the state, and the court decided that it had jurisdiction to compel him to account for the trust fund which he had received abroad, and brought with him into this state, without taking out letters of administration here, since he might have the full benefit of the administration of the estate abroad.

The taking out of letters of administration is, therefore, only material as giving this Court jurisdiction over the collection and distribution. But this is a stronger case, even, than that. Here the assets were in the jurisdiction of this Court originally, and if they were ever taken out were brought back and are now here, and therefore must be considered as having always been here.

IV. Two years ago the petitioners applied to this Court for administration, with a view to collecting this very claim. Then the administrator, Henry W. Prescott, came in and took it from them-otherwise they could have had his liability settled in a more direct manner, perhaps, by a suit at law. His object was to annoy and deter them, and to say nothing of the impropriety of his taking the administration into his own hands when the claim against him was its principal object; his evident wish to postpone the matter is a very strong proof of his own consciousness of liability to the estate.

GEORGE BARSTOW, for the Administrator.

I. The sum advanced by the intestate to the administrator was a gift and not a loan. But this whole matter was settled in Portsmouth, New Hamphire, where the deceased resided