mon décès et composeront ma succession, en quoi qu'ils puissent consister et en quelsques endroits qu'ils soient dûs et situés, sans aucune exception, ni réserve, je l'institute en conséquence ma légataire universelle à charge de supporter et d'exécuter les legs d'usufruit et rente viagères constituées au cours de présent testament."

Mr. Coudert, the sole executor, having now administered the estate in New York and having instituted this proceeding, presents to us a decree providing for the remittance of the balance, now held by executor for distribution, to Madame Carassale, the universal legatee of M. Baillard, without bonds; the same to be held by her in conformity with the law of the testator's last domicile, viz, France. If the will is to be construed according to the law of this state, Madame Carassale might be held to be a trustee for the life beneficiaries mentioned in the will. This construction is not desired and not pressed.

What, then, is the proper construction of this will? It must be remembered that it is a will of a Frenchman last domiciled in France. The administration has taken place here thus far simply because the property of the deceased happened at his death to be in this jurisdiction. Such property is altogether movable or personal property. Ordinarily "mobilia sequunter personam." The fact that the will in question was proved in this jurisdiction does not necessarily make this the principal place of administration. The testator was domiciled in France when he died and his movable property necessarily occupies the situs of the testator's last domicile. France, therefore, should be regarded in this case as the principal and not the ancillary place of administration.

It should not be forgotten that there is under this will a universal succession. Now, if we have regard to the law of France a "universitas juris" or a universal succession is always governed by the lex loci domicilii (Thèse, par le Docteur en droit, Marion, p. 13, et seq.). But independently of the principle just

stated, a will of movables is generally, in the absence of other intention, to be governed by the laws of a testator's last domicile. (Westlake, Private International Law [5th ed.] 170; Bentwich, Domicile & Succession, 101; Dicey, Conflict of Laws [2d ed.] 679; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 id. 192.) Thus it is that where children are entitled to legitim by the law of testator's last domicile any provision in the will in derogation of legitim must give way to the law of testator's last domicile. (Thornton v. Curling, 8 Sim. 310; Hog v. Lastaley, 6 Bro. P. C. 377; Kilpatrick v. Kilpatrick, Id. 58; Munro v. Douglas, 5 Mad. 394.) To give effect to the principle indicated, administration in a foreign jurisdiction will sometimes be stayed in order to await and abide by the construction of the courts of the last domicile.

But we are not without domestic authority on these and similar points. That the decree in this case should provide that the surplus be remitted to the universal legatee to be disposed of by her in accordance with the will and the law of the testator's last domicile I have no doubt. (Despard v. Churchill, 53 N. Y. 192; Hardenberg v. Manning, 4 Dem. 437.) While it may be that there is a substitution under French law (corresponding to the trusts known to our law), of which substitution the usufructuary legatees are beneficiaries, that is for the French law to determine. I am also of the opinion that the universal legatee should not be required to give security.

Decreed accordingly.

Matter of the Judicial Settlement of the Account of THOMAS B. KENT, as a Testamentary Trustee of the Trusts Created by the Will of Thomas Rutter, Deceased, and of the Account of SAMUEL J. RIKER, JR., as a Trustee of the Trusts Created by Said Will.

(Surrogate's Court, New York County, October, 1915.)

TESTAMENTARY TRUSTEES-ACCOUNTING BY-JURISDICTION OF SURROGATE— CONSTITUTIONAL LAW.

A surrogate upon the judicial settlement of the accounts of a testamentary trustee has not the general equitable jurisdiction and power of a chancellor; he cannot refer a part of the objections interposed to the account but must refer all or none.

Whether the late legislation attempting to confer general equity jurisdiction on the surrogate is constitutional, quare.

The practice on motion to file affidavits affecting the subject-matter of the accounts indicated.

The intermediate application of a legatee for payment of her share granted.

PROCEEDING upon the judicial settlement of the account of a testamentary trustee.

Leon W. Gibson (Lewis L. Delafield, of counsel), for testamentary trustees.

Davies, Auerbach & Cornell (Joseph S. Auerbach and Charles H. Tuttle, of counsel), for Beatrice R. Moore.

FOWLER, S. Here are three motions: On July 22, 1915, Beatrice R. Moore filed a petition praying for the delivery to her of part of her one-fourth share of the residuary personal estate. She now moves accordingly. This motion (No. 1) is opposed by the trustees.

On September 28, 1915 (the return day of the accounting proceeding), a motion was made on behalf of the trustees for an order directing that a certain affidavit of Samuel Riker, Jr., be filed as part of the record in the accounting proceeding" to the end that the matters therein referred to may be investigated by the court and that such direction with respect to such matters may be given as shall be legal and proper." This motion (No. 2) is opposed by the objectant, Beatrice R. Moore.

On September 28, 1915, the trustees applied for the appointment of a referee to hear and determine the issues raised by the objections filed to the trustees' account. This motion (No. 3) is opposed by Beatrice R. Moore, who requests the surrogate to hear the entire matter or else to dispose in the first instance of all questions of law.

It would appear that Thomas Rutter died a resident of New York county May 3, 1895. His last will and testament was admitted to probate by this court May 24, 1895. Letters testamentary thereon were issued to John R. Rutter, Thomas B. Kent and Edward Ritzema DeGrove, May 25, 1895. The sixth clause of Mr. Thomas Rutter's will bequeathed and devised his residuary estate in trust to pay the net income therefrom to testator's wife, Georgianna, and at her death to divide the same into as many parts as there should then be children of the testator and deceased children leaving issue, with a separate and distinct trust for the benefit of each child during the life of such child. In the event of the death before testator's widow of any such child, leaving issue, such deceased child's share was directed to be paid to such issue on the death of the widow.

Testator's widow, Georgianna Rutter, died January 23, 1914. Three of testator's children survive her, namely, J. Edgar T. Rutter, Mrs. Maud R. Garr and Mrs. Cora R. Kent. Mrs. Beatrice R. Moore, a daughter of John R. Rutter, a deceased son of the testator, was the only issue of a deceased child of testator living at the death of the widow. On November 12,

1897, a decree was made by this court judicially settling the accounts of John R. Rutter, Thomas B. Kent and Edward Ritzema DeGrove as executors of the last will and testament of the testator. All parties interested in the estate were cited to attend this accounting. The decree of November 12, 1897, discharged the executors and directed that the balance of the estate be paid to the trustees to be administered according to the trust provisions of the will.

Of the executors and trustees who originally qualified John R. Rutter (testator's son) died April 26, 1899, and Edward Ritzema DeGrove died July 17, 1911. On August 27, 1911, Samuel Riker, Jr., was appointed substituted trustee. The trustees now acting are Thomas B. Kent and said Samuel Riker, Jr. Upon the death of the widow, January 23, 1914, Beatrice R. Moore, the issue of the deceased son of the testator, claims to have become entitled, under the terms of the will, to one-fourth of the residuary estate. If so, upon the happening of the same contingency, the three children of the testator became entitled to a division of the residuary estate and the erection of separate trusts for each of them. On August 13, 1914, Beatrice R. Moore filed in this court a petition to compel the said Samuel Riker, Jr., and Thomas B. Kent, as trustees, to render and judicially settle their account. A citation was duly issued, and on or before the return day the trustees voluntarily filed their account with a petition for its judicial settlement. Mrs. Moore and all other parties interested were cited. Objections to the said account were filed by Beatrice R. Moore and J. Edgar T. Rutter, a son of the testator. On August 2, 1915, Beatrice R. Moore obtained an order for an examination of the trustees for the purpose of framing further objections to the account. No order has yet been made consolidating the voluntary accounting proceeding and the compulsory accounting proceeding.

I will dispose of the motions enumerated above in their inverse order. The motion to refer the issues raised by the objec