tations, and the profits thereof acquire the same character: In re Bauer, 79 Cal. 304. See Batte v. Beck, 70 Tex. 754, and Peet v. Railway, 70 Tex. 523, for instances of property, acquired and held by the wife during marriage, which was her separate property, not community.

No particular words are necessary to create a separate estate in a married woman; it being necessary only that an intention to vest the property in the wife to the exclusion of her husband shall be apparent: Bank of Louisville v. Gray, 84 Ky. 565; Noland v. Chambers, 84 Ky. 516.

IN THE MATTER OF THE ESTATE OF CELEDONIO ORTIZ, DECEASED.

[86 CALIFORNIA, 806.]

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CONFLICT OF LAWS-ESTATES OF DECEDENTS - LIABILITY OF EXECUTOR FOR ASSETS IN A FOREIGN COUNTRY. If an executor in this state is also ancillary administrator in a foreign country, and, as such, has within his control personal assets in such country, which he refuses or willfully neglects to bring into this, he may be charged therewith in the settlement of his accounts in this state.

CONFLICT OF LAWS. IT IS THE DUTY OF A DOMICILIARY EXECUTOR to gather in and account for foreign assets of his testator, to the extent of his ability to do so, and the court of the domicile may compel him to account for his willful neglect to perform such duty.

CONFLICT OF LAWS. — IF THE ESTATE OF A DECEDENT IS SITUATE IN TWO OR

MORE COUNTRIES, and his executor incurs expenses of administration, they should be paid out of that part of the estate in the administration of which they were incurred, and not out of the part of the estate situated in another country.

Thomas I. Bergin, and Sullivan and Sullivan, for the appellant.

Smith, Wright, and Pomeroy, and John A. Wright, for the respondents.

VANCLIEF, C. This is an appeal by the executor of said estate, Vicente Cagigal Pezuela, from an order of the superior court of the city and county of San Francisco settling his final accounts. The deceased, a native of Spain, died in Spain on the fifth day of April, 1887, leaving a will executed in Spain according to the laws of that kingdom, and also in compliance with the laws of this state. At the time of his death he was a resident of the city and county of San Francisco, in this state, where he left property of the value of about ninety-seven thousand eight hundred dollars. He also left personal property in Spain of the value of about fifteen thousand dollars, and one half of a house and lot, and also left

property in Mexico. The will disposed of all his property to his seven children and four grandchildren, and appointed the appellant (who was his son-in-law, and a native and resident of Spain) executor, without bond or other security for the performance of the trust. There was no evidence of the laws of Spain, except the testimony of the appellant, who said he was not a Spanish lawyer, but testified that no other letters testamentary than a duly authenticated copy of the will were required by the laws of Spain to authorize him to administer the Spanish assets of the estate, although he would be required to render a final account to a Spanish tribunal, in order to be discharged from his trust. The will authorizes the executor to take possession of all kinds of property, credits, claims, and shares; to liquidate all accounts, and to approve them or not, as he sees fit; to claim, receive, collect, or pay whatsoever shall be owing the estate, or due by the same, of any nature whatsoever, wheresoever situated, giving and signing therefor the proper vouchers; to compound or settle differences which may arise, or submit them to friendly arbitration; to sell or exchange what may be deemed absolutely necessary, receiving the consideration therefor, and when exchanging, to make up any difference. In all matters in which the executor cannot personally act, he may give power of attorney, general or special, "with power of revocation and appointment of new attorneys in fact, and to the formation of an inventory, appraisement, accounts, and partition, carrying out said changes by themselves, without submitting or reporting the same to any tribunal of justice, this being expressly prohibited "; basing said prohibition on his confidence that his executor will do nothing but what is just.

The appellant accepted the trust; and having received from the proper officers of Spain duly authenticated copies of the will, and a proper certificate of the death of the testator, he proceeded immediately to collect and take possession of all that part of the assets of the estate which were then in Spain, and converted all the personal property into money. He then, with his family, removed to this state, for the purpose of residing here while administering the California assets. arrived in California in June, 1887, and on the twenty-second day of that month filed in the office of the clerk of the superior court of the city and county of San Francisco an authenti. cated copy of the will, which was afterwards admitted to probate by that court, and the appellant was appointed executor,

and he qualified to act as such on the twenty-sixth day of September, 1887.

Thus he became the domiciliary executor of the will, and at the same time was invested with the character of ancillary executor of the assets in Spain. On October 17, 1887, in obedience to section 1443 of the Code of Civil Procedure, he filed an inventory of all the property of the estate, including that situate in Spain. On February 13, 1889, the appellant filed his final account, in which he failed to charge himself with the assets in Spain, and prayed that the account be settled and allowed, and that the residue of the estate be distributed. In due time, two of the devisees and legatees named in the will filed objections to the account, on several grounds, but principally on the ground that the executor had failed to charge himself with the assets of which he, in his character of ancillary administrator, took possession in Spain. It appears that all the devisees resided in California and Mexico, and that all were represented in the proceedings in the superior court. After hearing the contest, the court charged the executor with $9,847.29, which it found to be the residuum of the Spanish assets after deducting all proper demands and charges against the estate in Spain. The court also disallowed three small charges of the executor for traveling expenses from San Francisco to the city of Hermosillo, in Mexico, amounting to $315.

1. Counsel for appellant contended that the court erred in charging the executor with the residuum of the Spanish assets, for the alleged reason that the administration of those assets had not been closed in Spain. This presents the principal question, and the only question of any difficulty to be decided. The evidence of the facts upon which the court acted consists of the will, petitions and inventories filed by the executor, and his testimony at the trial and on a former occasion. The executor was examined and cross-examined at great length, and it is impracticable to epitomize his testimony by stating the mere substance of it so as to show its full effect and bearing upon his motives and intention.

I think, however, that his testimony, in connection with the documentary evidence, substantially tends to prove and is sufficient to justify findings of the following facts: 1. That the residuum of the assets in Spain had been under his active control, and at his disposal, as the domiciliary executor, during the term of at least six months before he filed his

final account, though not actually separated from that part of such assets which may have been necessary to discharge the demands against the estate in Spain and the expenses of administration there, which, however. could not have exceeded the value of the assets left in his hands, in his character of ancillary executor, for the purpose of paying such demands and expenses; 2. That he could have had the residuum with which he was charged transferred to him in this state at any time within six months before the filing of his final account, by simply drawing for it upon his brother, whom he had authorized to act for him in all matters pertaining to the estate in Spain, and who had on deposit in a bank there, subject to appellant's order, proceeds of the estate in Spain, amounting to fifteen thousand dollars; 3. That with ordinary diligence in the discharge of the duties of his trust, the appellant might have had the administration of the estate in Spain closed, and the residuum thereof transferred to him in this state, before he filed his final account, but that he willfully refused to have this done, intending not to account for or to distribute that residuum in this state, but to account for and distribute it, if at all, in Spain.

It is strenuously contended that the lower court assumed jurisdiction over the appellant and dealt with him in his character of ancillary executor on the estate in Spain, and not merely as domiciliary executor; but I think this is a mistake. The court dealt with him only as the principal domiciliary executor, and only held him responsible for what he should have charged himself with in his final account here. Upon the facts which the court was justified in finding, the case against him appears to be quite as strong as it would have been if his brother had been the ancillary executor of the estate in Spain, and he had willfully refused or neglected to procure a transfer of the residuum from his brother, as such foreign executor, to himself, knowing that, with ordinary diligence, or by mere demand, he could do so. There is no complaint that he was charged with more than what would necessarily be the residuum after satisfying all lawful demands in Spain; nor is any reason suggested why, upon the settlement of his final account in Spain, the Spanish tribunal will credit him with all that he has been required to account for and distribute in this state. There is no question here as to the estate in Mexico. For aught that appears, that portion of the estate has been administered and distributed to the satisfaction of all concerned.

I think the law applicable to the facts is correctly stated by Professor Schouler in his late treatise on executors and administrators (2d ed., 1889, sec. 175), as follows:

"The earlier rule, frequently asserted in England, in one loose form or another, is, that assets in any part of the world shall be assets for which the domestic executor or administrator is chargeable; the practical effect being to enjoin upon the principal personal representative the duty of procuring, so far as foreign law and the peculiar circumstances will permit, personal assets wherever situated, realizing the bulk of the estate of his decedent as best he may, gathering in the property as one who represents the whole fortune, and having gathered it, account to those interested accordingly.

"Some of the judicial expressions on this point, to be sure, import too onerous a responsibility on the representative's part; and Mr. Justice Story has pointed out the fallacy of holding a domestic executor or administrator answerable for foreign property, which it is admitted that he can neither collect nor sue upon, nor compel its payment or delivery to himself, by virtue of his domestic appointment, foreign property, we may add, of whose existence, or of the grant of foreign administration for realizing it as assets, he may be quite unaware. And yet, to let external assets knowingly escape his control, and be lost to the estate, when with reasonable diligence they might have been procured, seems a plain dereliction of duty in the principal or domiciliary representative, whose function, as rightly understood, is to grasp the whole fortune, as the decedent did during his life, save so far as the obstructive law of foreign situs, or the limitations of his own appointment, may restrain him.

"If, therefore, assets cannot be collected and realized for the benefit of the estate without a foreign ancillary appointment, the executor or administrator of the decedent's last domicile ought, so far as may be consistent with his information, the means of the estate at his disposal, and the exercise of a sound discretion, to see that foreign letters are taken out, and that those assets are collected and realized, and the surplus transmitted to him. If, as frequently happens, the domestic representative may collect and realize such property in the domestic jurisdiction, as by selling negotiable bonds, bills, notes, or other securities, payable abroad, or by delivering bills of lading or other documents of title (indorsing or assigning by acts of his own, which would be recognized in conferring