his deed would, beyond controversy, convey all the estate he had in the land at the time of its execution. If the legal effect of the deed is changed, it is solely because it was executed by him, in the capacity of a tenant in common, in order to effect a partition of the land. We are not inclined to rule that the position he occupied completely changed the effect which the law so emphatically affixes to his deed; but, if we were inclined to so rule, it would give the appellee no comfort. The appellee is in this dilemma: If his deed is to have its usual effect, it conveys his interest in the land, and releases his lien; if it is not to have its usual effect, it is because it was executed by him as one of several owners in common; but, if it was executed by him as one of several owners, he cannot assert his lien, since that was buried or merged in his character of an owner. We are not unmindful of the doctrine that equity will not suffer a merger to take place where injustice would result, but that doctrine the appellee, after having voluntarily assumed the position of tenant in common, is in no plight to invoke. Equity almost imperiously demands that his lien shall be merged, for no other course will promote justice. At law, where the estate of a lienor meets that of the owner in one person, the lien is merged. That rule must govern here, for there is no equity to break its force. The appellee having by unequivocal acts asserted that he was one of several tenants in common, claiming under the same ancestor, and having for so many years deported himself as an owner, is in no situation to cast aside that character, and enforce a lien by taking upon himself the character of a lienholder. Upon the facts contained in the special finding, the law is with the appellants. Judgment reversed, with instructions to restate the conclusions of law, and enter judgment in favor of the appellants.

WELCH ET AL. v. ADAMS ET AL.

152 Mass. 74. 1890.

Reserved case from supreme judicial court, Suffolk county. DEVENS, J. The plaintiffs, who bring this bill for instructions, are the executors of the will of Isaac Adams, which is dated the 13th of May, A. D. 1879. Mr. Adams had his legal domicile, in the state of New Hampshire, and died on July 19, 1883. His will having been admitted to probate in New Hampshire, the present plaintiffs have there received letters testamentary, under which they have duly qualified; the decree of the appropriate probate court having been finally affirmed by the supreme court of that state on August 6, 1885. All of the testator's personal estate except household effects, farming implements, etc., was in Massachusetts, and on November 26, 1883, by reason of the necessary delay in granting letters testamentary in respect to the testator's personal estate in this commonwealth, which was large, the plaintiffs had been duly appointed special administrators thereof, with authority to take charge of his real estate, and had given bond for the faithful performance of their duties as such. On March 7, 1887, upon the petition of the plaintiffs, after due notice it was ordered by a decree of the probate court for the county of Suffolk that a copy of the said will and the probate thereof in New Hampshire, duly authenticated and presented to that court, should be filed and recorded, and letters testamentary be granted to the plaintiffs. Pub. St. c. 127, §§ 15-17. From this decree an appeal having been taken, it was affirmed on the 5th of October, 1887, by this court; and the plaintiffs, having here received letters testamentary, have qualified and proceeded to act thereunder. this bill the plaintiffs seek instructions as to the payment of two legacies given by the will, or rather of the interest claimed to be due thereon, one being a legacy of $64,000 to Mrs. Anna R. Adams, wife of the testator, and the other of $5,000 to Julius Adams, his son. Mrs. Adams having deceased since the death of the testator, Julius Adams has been appointed her administrator with the will annexed. It is found that the personal estate in the hands of the executors is more than sufficient, after

By

paying all debts and other legacies, to pay all sums which are claimed on account of these legacies.

Under Pub. St. c. 127, § 34, and chapter 156, §§ 5, 6, the supreme judicial court and the probate court have concurrent jurisdiction of a petition by the executor for instructions as to the construction of a will, and from the decree of the probate court any party aggrieved may appeal to this court. Assuming for the moment that the subjects on which the bill requests instructions present inquiries such as in ordinary cases where the testator has been domiciled here and original administration has been here granted could properly be addressed to this court, it is to be considered whether the matter is in any way affected by the fact that the testator was domiciled in New Hampshire, and that the original probate of his will was in that state. In dealing with personal property here found the executors are accountable to the probate court in this commonwealth, and there is no duty imposed upon them to transfer it or its proceeds to New Hampshire, to be there administered, even after the payment of the debts in this state. On the contrary, it would be irregular so to do unless an order to that effect was made by the probate court. The Public Statutes (chapter 138, § 1) provide, in the case of administration taken in this state on the estate of an inhabitant of any other state or country, that "his estate found here shall, after payment of his debts, be disposed of according to his last will, if he left any duly executed according to law"; otherwise his real estate is to descend according to the laws of this commonwealth, and his personal estate to be distributed and disposed of according to the law of the state or country of which he was an inhabitant. Section 2 provides that after payment of the debts in this commonwealth "the residue of the personal estate may be distributed and disposed of in the manner aforesaid by the probate court, or, in the discretion of the court, it may be transmitted to the executor or administrator, if any, in the state or country where the deceased had his domicile, to be there disposed of according to the laws thereof." Sections 3, 4, and 5 provide for the settlement of the estate in this commonwealth if it is insolvent, and are intended to enable creditors here to obtain an equal share, in proportion to their respective claims, of the whole property, whether within or without the

commonwealth. This statute certainly gives the right to the probate court here to dispose of the estate according to the will as originally proved in another state. In leaving it in its discretion to determine whether, after the payment of debts here, the residue of the personal property shall be transmitted to another jurisdiction, the statute is only declaratory of a general principle often acted on. Stevens v. Gaylord, 11 Mass. 256, 264; Harvey v. Richards, 1 Mason 381; Ewing v. Ewing, L. R. 9 App. Cas. 34, 39, L. R. 10 App. Cas. 453, 502. It is said by Mr. Justice STORY, in discussing the question whether a court in which ancillary administration had been granted ought to entertain a decree for final distribution of the assets among the various claimants having equities or rights in the fund, that such court is not incompetent to act upon the matter, and that whether it will do so, or whether it will transmit the property to the forum of the domicile of the deceased, is a matter of judicial discretion, dependent upon the circumstances of the case. "There can be," he adds, "and ought to be, no universal rule on the subject. But every nation is bound to lend the aid of its judicial tribunals for the purpose of enforcing the rights of all persons having a title to the fund, when such interference will not be productive of injustice, or inconvenience, or conflicting equities, which may call upon such tribunals for abstinence in the exercise of the jurisdiction." Story, Eq. Jur. § 589. If the property had been transmitted to another jurisdiction, this court would not undertake to construe the will or determine how the estate should be distributed, or how interest should be computed on the legacies. Emery v. Batchelder, 132 Mass. 452. But the personal property is here, and was so when the testator deceased. It is ample for the payment of the legacies immediately in question, as well as all other legacies or debts, whatever may be the interest thereon. The legatees are also here, as well as the residuary legatees, who are the only persons who can be affected by any determination as to these legacies, and no such case is presented as might be if the marshaling and distribution of the whole estate were now to be considered. Under such circumstances it does not constitute a valid objection to the giving of instructions that the testator was domiciled in another state, or that his will was originally proved there.

If it be urged that the probate court may yet, in the exercise of its discretion, order the personal property transmitted to New Hampshire, and thus that any instructions we might give would become inoperative, it is sufficient to say that it is not to be presumed that it would do so when all the circumstances exist which render the disposition of the property, so far as the legatees are concerned, more appropriate here than elsewhere, and when important rights of opposing parties have here been settled upon full notice; especially so when any order for this transfer of the funds would be subject to review by this court, sitting as the supreme court of probate.

The first question presented by the executors, according to the report, is whether the legacy by Mr. Isaac Adams to his wife carries interest from the date of the testator's death, or from the end of one year thereafter. This bequest was of "the sum of sixty-four thousand dollars in money, to be paid her as soon as convenient after my decease," and was accompanied by a devise to her of five pieces of productive real estate in Massachusetts, of which she was dowable. These provisions by the devise and bequest in behalf of his wife are declared to be in full satisfaction "of her dower and homestead rights in my estate, and of all distributive share or rights whatsoever therein." In Pollard v. Pollard, 1 Allen, 490, it was held that a widow to whom a legacy was given in lieu of dower was entitled to be paid in full, in case of a deficiency of assets, in preference to legatees who were mere volunteers, and also to receive interest thereon from the death of the testator, if he had provided no other means for her support during the first year after his death; and this upon the ground that she is to be regarded as a purchaser for value, by reason of her relinquishment of her important rights in her husband's estate. The question here presented is, however, to be decided according to the law of New Hampshire. It is not merely a question of how property shall be here administered, but what is the construction and effect of the will, and what was the intent of the testator by its provisions. The construction of the will, and the distribution thereby made of the testator's personal estate, are to be governed by the law of his domicile. Sewall v. Wilmer, 132 Mass. 136; Pub. St. c. 138, § 1. By the law of New Hampshire, as of Massachusetts, the wife is treated, in accepting a