1. A testamentary trust in personalty is to be construed according to the law of the testator's domicile.

2. A testator domiciled in one state gave a fund to a trustee domiciled in another state, for the use of a married woman, free from the control of her husband.-Held, that as the bequest created an active trust, under the law of the former state, the trustee is thereby empowered to hold the corpus of the fund during the existing coverture of the cestui que trust.

Heard on bill and answers.

The bill is filed by a cestui que trust to compel her trustee to transfer to her the trust property. The bill also asks for an injunction restraining the trustee from taking any proceedings in any other court, in this or any other state, to surrender his trust, or from doing any other act in relation to the trust fund, except such acts as shall be necessary to protect the same.

The bill sets out that William Coffin, of Philadelphia, Pennsylvania, died in 1872, leaving a will, which was probated in Philadelphia, and afterwards in Camden county, New Jersey, in which will are the following bequests:

"To my sister, Mary E. Reybold, $600 per annum during her life, and, after her death, five thousand dollars to Joseph E. Garrett in trust for her daughters, of which sum one thousand dollars is for the use of Matilda Garrett, his wife, and four thousand dollars for the use of Anna E. Rosenbaum, free from the control of her husband."

The bill then sets out that the said Mary Reybold is deceased; that in June, 1894, shortly after her death, the Guarantee Land, Insurance and Trust Company of Philadelphia, trustee under the will of Coffin, paid over to said James E. Garrett, as trustee

Rosenbaum v. Garrett.

for Anna P. Rosenbaum, the sum of $4,000, less a collateral inheritance tax; that Garrett, although requested by Anna P. Rosenbaum to pay over to her the said sum, or to assign to her the securities purchased therewith, refused to do so; that Garrett was, at the time he was appointed trustee under the will, as well as when he was paid the said sum, and still is a resident of New Jersey; that William Coffin, previous to 1872, had been for many years a resident of New Jersey, and died seized of real estate in New Jersey; that Anna P. Rosenbaum is married to one William S. Rosenbaum.

The answer resists the prayer for injunction by setting up a proceeding in Pennsylvania, already commenced at the time of the filing of this bill, and resists the prayer for relief by setting up that the rights of the parties under the trust are to be measured by the law of Pennsylvania, which law the answer sets out.

There are both an answer and an amended answer. The facts set up in these answers, in respect to the first point, are these: That before the filing of this bill, the trustee filed his account, showing the condition of the trust estate from the date when the trustee received the same, with the orphans court of the county of Philadelphia, as he was required to do by the laws of Pennsylvania, to which he was amenable; that he filed his account as trustee aforesaid, as well for the purpose of having his account passed, as also for the purpose of having determined, in the jurisdiction in which he was advised had control of the matter, the status of the trust and the character of the trustee in relation thereto as trustee, as well as the extent of the control, if any, which the cestui que trust may have over the trust fund; that the account was duly advertised for presentation to the said orphans court, on January 3d, 1898, and a copy thereof was sent to the cestui que trust, and that immediately thereafter the complainant filed this bill.

The amended answer sets up the filing of the trust account; that the trustee gave to the complainant the notice of such application which is required to be given by the laws of Pennsylvania and the practice of the orphans court; that the application and the proceedings taken by defendant in the said orphans

Rosenbaum v. Garrett.

court, in its regular course, raised and required a determination of the question whether or not the principal of the trust estate should remain in the custody of the defendant as trustee, to be used by him for the purposes indicated by the testator's will, or whether the said prinicipal should be paid over to the complainant as cestui que trust, and this defendant be discharged as trustee; that said application has been heard and determined by the said court which has rendered an opinion upon the questions raised before it, which opinion is annexed to the answer.

In respect to the prayer of the bill that this court shall order the trustee to transfer the trust property to the complainant, the answers aver that the law of the testator's domicile must control all questions as to the status of the trust fund and its disposition; that the trust is known under the law of said state as "a married woman's separate use trust," the principal of which is not subject to the control of the cestui que trust during the lifetime of her husband.

Mr. Thomas B. Hall, for the complainant.

Mr. Norman Grey and Mr. A. H. Wintersteen, for the defendant.

REED, V. C.

The complainant filed her bill upon the theory that Garrett, her trustee, holds the fund bequeathed to him, in trust for her, as a passive trustee, and that he is bound, upon her request, to transfer the property to her, or to such person as she may name. The bill, as already stated, prays that the trustee may be decreed to surrender the trust property to the complainant, and also that he may be restrained from taking any proceeding in any other court to have the rights of himself and his cestui que trust settled.

The right of this court to entertain suits of this character, when the parties are within the jurisdiction of the court, even when the trust was created in a foreign state, is entirely settled. Mead v. Merritt, 2 Paige 404; White v. White, 7 Gill & J. 208;

Rosenbaum v Garrett.

Chalmer v. Hack, 19 Me. 124; Woodward v. Schatzell, 3 Johns. Ch. 412.

It is also settled that one court having obtained jurisdiction over the parties to a controversy may enjoin the parties from proceeding in the courts of a foreign state. Story Eq. Jur. §§ 899, 900; 1 Perry Trusts § 72.

In respect to the prayer for an injunction it is obvious that the trustee does not contemplate instituting any new proceeding in the courts of Pennsylvania. All that he claims is that the proceeding already taken there to settle his account as trustee involves a settlement of the rights of the parties to the possession of the corpus of the estate.

It is also apparent that if the proceedings already taken in Pennsylvania involve the determination of this question, that there exists no special equity which would justify this court in exercising the rarely-exerted power of restraining parties from pursuing an already commenced proceeding in another jurisdiction.

It is clear to my mind that no injunction as prayed should be awarded.

On the other hand the query arises whether the present suit should not be suspended or abated by reason of the pendency of the proceedings in the Pennsylvania tribunal. This is a matter of discretion. It is clear that the matters set up in the answer, intending to exhibit the pendency of a proceeding in Pennsylvania between the same parties and involving the same subject-matter, cannot operate as a plea in abatement. The court will, however, sometimes stay the domestic suit until the suit in a foreign state is disposed of. 1 Dan. Ch. Pl. & Pr. (marg.) 815; Kerr v. Willetts, 19 Vr. 78.

It is observable that in the cases where this course has been taken both suits were commenced by the same party.

I do not think that the matters set up in the answer show so clearly that the question involved in the present suit could be determined in the proceedings for accounting in Philadelphia that the present suit should be suspended. There is, however, not only an answer but an amended answer. The amended

Rosenbaum v. Garrett.

answer sets up that the question whether the corpus of the trust fund should be paid over to the cestui que trust has been heard and determined by the foreign tribunal, which court rendered an opinion, a copy of which is annexed to the amended answer. The opinion is that, under the law of Pennsylvania, the cestui que trust is not entitled to receive the trust fund. The opinion was obviously rendered after the bill in the present case was filed. Nevertheless, if it convincingly appeared that a decree had been already made by a court having jurisdiction over the parties and the subject-matter, this suit would be dismissed. Such a decree can be set up in an answer as well as by a plea. 1 Dan. Ch. Pl. & Pr. § 661; Davoue v. Fanning, 4 Johns. Ch. 199. But the answer does not aver that any decree or order has been made in the foreign suit. The opinion of the court possesses no efficacy as a bar unless it is evidenced in a court of record by a record, which the written opinion is not. Whether, apart from the fact just stated, a decree made in accordance with the opinion would be binding upon the cestui que trust, is a question not easily, answered.

state.

The probate court of Philadelphia had the power, I think, to construe the will which it had probated and to settle the power of the testamentary trustee, although he resided in a foreign Chase et al. v. Chase et al., 2 Allen 101. But whether such construction rendered, not upon a bill filed for that purpose but as an incident of an accounting by the trustee under the conditions set out in the amended answer, would be a finality, is doubtful. Assuming, however, that the question is an open one and that we are free to try the rights of the parties without any restrictions, I do not think that the complainant is entitled to the relief she seeks.

The counsel for complainant admits that the trust created by the will of William Coffin, by the terms of which $4,000 is given to Garrett in trust for the use of Anna E. Rosenbaum, free from the control of her husband, is, by the law of Pennsylvania, regarded as an active trust, and the cestui que trust has no right to the possession of the property so long as her condition of coverture exists. That this is the law of Pennsylvania is set