
147 U.S. 557 (1893)
HAYES
v.
PRATT.
No. 19.
Supreme Court of United States.
Argued March 25, 1892.
Decided March 6, 1893.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
*563 Mr. A.Q. Keasbey for appellant.
Mr. John R. Emery for appellees.
*566 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
George Hayes, by his will, devised and bequeathed the residue of his estate, real and personal, to his executors, in trust to sell and invest at their discretion, "and to appropriate and use the principal or income thereof, for the purpose of *567 founding and supporting, or uniting in the support of any institution that may be then founded, to furnish a retreat and home for disabled or aged and infirm and deserving American mechanics."
The primary, if not the only, intention of the testator evidently was that his bounty should go to a single institution, "a retreat and home for disabled or aged and infirm and deserving American mechanics," either by founding, as well as supporting, a new institution, or by aiding in the support of one founded by others. The validity of the charitable trust is undoubted, notwithstanding that the trustees might appropriate the fund to an institution established after the testator's death. Jones v. Habersham, 107 U.S. 174, 191; Curran's Appeal, 4 Pennypacker, 331; Taylor v. Bryn Mawr College, 7 Stewart, (34 N.J. Eq.) 101.
The execution of this trust was committed by the testator to the executors named in the will, first, to Jabez W. Hayes and Lewis E. Wells, and next, in the event of the death of either or both of these, to Dundas Pratt and Horace H. Nichols, successively. So long as any one of the four is living, and has not declined the office of executor, or been shown to be unsuitable, no other person can execute the trust. And it is doubtful, to say the least, whether the trust is not such a personal confidence reposed by the testator in the persons named, that it would in no event pass to an administrator with the will annexed, but must, if all those named in the will should die before full performance of the trust, be executed by a trustee specially appointed for the purpose. Ingle v. Jones, 9 Wall. 486, 497, 498.
Of the two executors first named, Jabez W. Hayes being a citizen of New Jersey, and Lewis E. Wells a citizen of Pennsylvania, each proved the will and took out letters testamentary in his own State, and assumed the care and management of the property in that State, and Wells also took control of the property in Michigan. But such an arrangement, however convenient, cannot affect the duty of either or both of the executors, or of the court, to see that the trust is carried out according to the testator's intention.
*568 The testator was born and for many years lived in New Jersey, but his domicil at the time of his death and for ten years before was in Pennsylvania. A small part only of his property was in New Jersey, and the greater part was in Pennsylvania and Michigan. The Hayes Mechanics' Home was incorporated within thirteen months after his death by his partner, by Wells, his Pennsylvania executor, by Pratt, now his executor, and by other citizens of Pennsylvania, under the laws of that State, for the purpose of founding and supporting "a retreat and home for disabled, aged or infirm and deserving American mechanics," as contemplated in his will. Wells settled his account as executor in the proper court of Pennsylvania, and paid over the balance of personal property in his hands to the Hayes Mechanics' Home, and also, by order of that court, conveyed to that corporation the lands in Pennsylvania and in Michigan; and the validity of the payment and conveyance has not been impugned. In short, the whole of the residue of the testator's property, real and personal, except the comparatively small amount now in controversy, has been appropriated, with the approval of the legislature and of the courts of his domicil, in a manner to carry out his charitable intent in accordance with the letter and spirit of his will.
Jabez W. Hayes, the executor appointed in New Jersey, died in January, 1882, having done nothing towards carrying out the charitable intent of the testator, beyond obtaining the advice of counsel that the executors (not that he alone) might lawfully appropriate the property in New Jersey to the support of the Hospital of St. Barnabas in Newark.
After his death, Henry Hayes was appointed by the orphans' court in New Jersey to be administrator of the unadministered "goods, chattels and credits" of George Hayes in New Jersey. As already indicated, it is difficult to see how this appointment could give him any title in or power over the real estate devised to the executors in trust. But if it can be treated as vesting in him the title to the real estate in New Jersey, it certainly did not authorize him to undertake the performance of the charitable trust created by the will, so *569 long as Pratt, one of the alternative executors and trustees therein named, was still alive, had never declined the trust, and had not even known, until recently, of the existence of any estate of the testator not already disposed of according to his will.
Moreover, to apply the fund, received by the defendant from the sale of the real estate in New Jersey, to the maintenance of a free bed in the Hospital of St. Barnabas under the charter and rules of that institution, would be much less in accord with the intention of the testator, as expressed in his will, than to add this fund to his other property already devoted to the foundation and support of the Hayes Mechanics' Home.
Both the original executors being dead, and Pratt, the successor next named in the will, having been appointed sole executor in their stead, he is the only person authorized to execute the charitable trust of the testator, so far as anything remains to be done with regard to it.
It was objected that Pratt, as executor appointed in Pennsylvania, could not sue in New Jersey without taking out letters testamentary in that State. But this objection is answered by the statute of New Jersey of 1879, c. 16, which enacts that "any executor or administrator, by virtue of letters obtained in another State, may prosecute any action in any court of this State, without first taking out letters in this State: provided such executor or administrator shall, upon commencing suit, file in the office of the clerk of the court in which such suit shall be brought an exemplified copy of the record of his or their appointment," which has been done in this case. New Jersey Acts of 1879, p. 28; Lawrence v. Nelson, 143 U.S. 215.
It was further objected that since the orphans' court had been vested by the statute of New Jersey of 1872, c. 340, with the power, upon allowing the accounts of executors, or of administrators with the will annexed, to order distribution of the residue in accordance with the will, application should have been made to that court. New Jersey Acts of 1872, p. 47. But the statutes of the State conferring jurisdiction upon *570 the orphans' court do not even affect the jurisdiction of the Court of Chancery of New Jersey over the settlement of estates. Frey v. Demarest, 1 C.E. Green, (16 N.J. Eq.) 236; Coddington v. Bispham, 9 Stewart, (36 N.J. Eq.) 224, 574; Houston v. Levy, 17 Stew. (44 N.J. Eq.) 6. Certainly, no such statutes can defeat or impair the general equity jurisdiction of the Circuit Court of the United States to administer, as between citizens of different States, the assets of a deceased person within its jurisdiction. Green v. Creighton, 23 How. 90; Payne v. Hook, 7 Wall. 425; Lawrence v. Nelson, 143 U.S. 215.
The defendant, as administrator with the will annexed of George Hayes, having received money from the income and sale of his real estate, and settled his account therefor in the court which appointed him, and having, without any order of court, and without right, and with notice of Pratt's claim, paid the money to the Hospital of St. Barnabas, taking from that corporation a bond of indemnity, was rightly held liable to account for it, with interest from the date when he so settled his account after having determined so to pay it.
There being no one in New Jersey having any right to or claim upon this fund, and no special reason being shown for administering it in New Jersey, it should, upon familiar principles, be transmitted to the executor appointed at the testator's domicil for distribution. Wilkins v. Ellett, 9 Wall. 740, 742; Harvey v. Richards, 1 Mason, 381, 412, 413; Normand v. Grognard, 2 C.E. Green (17 N.J. Eq.) 425, 428.
Pratt, being the executor appointed in the State of the testator's domicil, and the trustee charged with the administration of the charitable trust, is the only person entitled to maintain this suit. The joinder of the Hayes Mechanics' Home as a plaintiff was unnecessary, and perhaps improper; but not having been objected to, by demurrer or otherwise, in the court below, it affords no ground for refusing relief. The decree of the Circuit Court is irregular in that it directs payment to be made to Pratt as treasurer of the Hayes *571 Mechanics' Home, instead of to him as executor, and is therefore to be amended in that particular, and,
So amended, affirmed.
MR. JUSTICE SHIRAS, not having been a member of the court when this case was argued, took no part in its decision.
