Page:Federal Reporter, 1st Series, Volume 10.djvu/54

 42 FEDERAL REFOBTEB. �Bonalty. Craig v. Leslie, 3 Wheat. 563; Cropley v. Cooper, 19 Wall. 174; Peter v. Beverly, 10 Pet. 532. But, treating it aa real property, where a will devises either a power or an estate in lands, the devisee, whether he take as executor or otherwise, takes title under the will and not by virtue of letters testamentary. These are only the evi- dence that he is executor, and do not add to his title or estate. There- fore, the principle of Wilkins v. Ellett, supra, will apply to lands in a foreign jurisdiction, when the will devises them, just as well as to personalty, provided, always, that the will is in conformity to the law of the place where the land lies. And this doctrine, that because executors cannot sue for or recover assets in a foreign jurisdiction the law imposes no duty on them, and they cannot be called to account for such assets, bas always been limited to suits about mat- ters pertaining to their officiai character, and is generally invoked only to protect other persons and their rights, such as suits on their bonds, creditors, purchasers, and the like, and never to protect them against a breach of trust; and they may and often do occupy two relations : that of executors, in the sense that they are the representa- tives of the deceased, and that of trustees for the parties entitled to the funds coming into their hands, or to the property with which they have been vested for the purposes of the trust. And in their capacity of trustees they are often held liable in a court of equity both for assets received and breaches of trust, in relation to assets in a foreign jurisdiction and to matters not coming within the scope of their liability as executors. For example, they are liable as executors only for legal assets, nor can their sureties be liable beyond that ; but a court of equity will, nevertheless, hold them to account for equita- ble assets and all breaches of trust whatever. Their liability as executors is frequently limited or enlarged by statutes regulating the administration of estates; but such statutes do not necessarily affect the equity powers of the federal courts. Hence, in determining a question like this, we do not consider state statutes, nor state de- cisions, further than they furnish rules ol property to be enforced, or rules of evidence to guide in the ascertainment of facts. The probate of a will and the appointment of an executor being exclusively within the jurisdiction of the state courts, we are concluded by his letters as evidence of his officiai character, and the judgment of the probate court, whether the instrument be a will or not; but the will being proven, and the executor appointed, the proper construction of the rights, duties, and powers of the executor, under the will, are not authoritatively controlled by either state statutes or state decisions. ��� �