
    Susannah B. Young, adm’x, &c., vs. James H. Brush and others, ex'rs, &c.
    Where the domicil of a testator is in this state, and his will is proved and letters testamentary issued here, where all the personal estate is situated, it is unnecessary for the executor to prove the will in another state, where the real estate of the testator is situated; and he will not he allowed the expenses incurred in doing so, on the settlement of his accounts.
    The distribution of the personal estate, in such a case, is to be according to the laws of New York; and a decree of a court in the state where the real estate is situated, directing the expenses of proving the will there to be paid out of the estate, has no force or validity here; and cannot make those expenses chargeable to the legatees under the will, in this state.
    Under ordinary circumstances, where a party refuses to pay over moneys held by him in a fiduciary character, he should he charged with interest; and the fact of its being deposited for safe keeping, in a bank or trust company, does not relieve the trustee from such liability; even though he receives a smaller rate of interest.
    But where money was deposited by executors, in a trust company, under the direction of a referee, and with the consent of the counsel of the opposite party, as to the place of deposit, to be applied to the payment of any recovery in the action; it was held that, in the absence of any demand of the payment of the money, the executors were not chargeable with a higher rate of interest than was received for the fund while it was deposited in the trust company.
    THIS action was brought by the plaintiff, as administratrix with the will annexed of Catharine C. Young, deceased, against the defendants as executors &c. of David Brush, deceased, for an account by the defendants touching the property and assets of Catharine C. Young, which came to the hands of the said David Brush in his lifetime, or with which he was justly chargeable as executor of the said Catharine C. Young. And the plaintiff, in her complaint, prayed that the defendants might be adjudged to pay to her the sum which, on such accounting, should be found due. and owing to her as such administratrix. The action was referred to a referee, who reported that the sum of $5179.29 was due to the plaintiff as administratrix, from the defendants as executors ; and from the judgment entered upon that report the defendants appealed.
    
      Charles H. Smith, for the appellants.
    
      Geo. T. Strong, for the respondent.
   By the Court, Ingraham, P. J.

The defendants, in the settlement of the account of their testator as the executor of Catharine Young, claimed to' be allowed the expenses of proving the will in Hew Jersey. All the personal estate was in Hew York. The will* was proved in Hew York, and letters testamentary issued here. Afterwards, Mr. Brush, the executor, submitted the will for probate in Hew Jersey, where the deceased owned some real estate. The probate was contested there, and a large amount of expense was incurred. These expenses were claimed by the defendants as a credit, and disallowed by the referee. The referee has found that the domicil of the testatrix was in Hew York, and that the

*

will was properly admitted to probate here; and that the decision on the will in Hew Jersey was only as to the real estate.

We see no reason for submitting the will to probate in H ew Jersey, excepting so far as the devisees of the real estate there might consider it necessary for establishing their title to the same. For this purpose the executor was not called upon to prove the will. Any party relying on it as the source of his title could prove it on a trial, by witnesses, with the same effect as if admitted to probate, if not greater. There is no ground upon which such an expense should fall upon the legatees of the personal estate in blew York. The distribution of the personal estate was properly found to be according to the laws of blew York, and the decree of .the court in blew Jersey directing those expenses to be paid out of the estate had no force or validity here,: and could not make those expenses chargeable to the legatees under the will, in this state.

The question of domicil was a question of fact for the referee. With his finding we would not interfere, even if we doubted the correctness of that decision. But we concur with him in that finding, because we consider the weight of evidence upon this point very much against the defendants.

The only point upon which we entertain doubt is as to the charge of legal interest against the executor, on the moneys deposited with the trust company. Under ordinary circumstances, where the defendant refuses to pay over moneys held by him in a fiduciary character, he should be charged with interest, and the fact of its being deposited for safe keeping, in a bank or trust company, does not relieve the trustee from such liability; even though he receives a less rate of interest. (DePeyster v. Clarkson, 2 Wend. 77.) But where the money has been kept ready to be paid over, then interest is not to be charged. (11 Paige, 142.)

In the present case the money was deposited in the trust company under the direction of the referee, and with the consent of the defendants’ counsel as to the propriety of the place of deposit, to be applied to the payment of any recovery in the action. As the defendants were executors, and the money was deposited under the direction of the referee, it is clear that the defendants could receive no benefit from the fund. bTor does it appear that any demand was made for the payment of this sum, other than is to be" inferred from the commencement of the suit, which called for an accounting first. Under all the circumstances, we think the defendants should not have been charged with a higher rate of interest than was received for the fund while it was deposited in the trust company.

[New York General Term,

September 15, 1862.

The judgment should be corrected, by the plaintiff remitting the amount of interest charged on $3700 over three per cent, and affirmed for the residue.

If the plaintiff refuses to remit the amount, the judgment must be set aside, and the case referred back to the referee for correction in this respect.

Ingraham, Barnard and Clerke, Justices.]  