Page:Federal Reporter, 1st Series, Volume 10.djvu/56

 44 FEDERAL REPORTER. �abdicating his powers over the Arkansas land the resuit would be to defeat the intention of the testator to have it applied first to the pay- ment of his debts in exoneration of this legacy. The solicitude of the testator that this should be done by his executors, named in the will, is 80 apparent that no one who intended to execute the will rather than control the assets should have failed to see that to ac- complish that intention would be the first duty of an executor, and that a failure to accept the whole trust would almost necessarily defeat that purpose of the testator. A trustee cannot separate the trusts — accept part and decline part : the aceeptance of any part is the aceeptance of the whole. Perry, Trusts, § 264 et seq. Where an executor is also trustee of the real estate, he cannot desert the situa- tion of trustee and accept that of executor. By acting as executor he is liable in both charaoters; the taking of probate is an aceept- ance of the whole trust. Ward v. Butler, 2 Molloy, 533; Mucklow v. Fuller, 1 Jacob, 198, 201; Worth v. McAdam, 1 Dev. & Bat. L. 199, 309. The Tennessee cases cited in argument (Snodgrass v. Snod- tjrass, 1 Bax. 163; Gilchrist v. Cannon, 1 Cold. 587; Keaton v. Camp- bell, 2 Humph. 224; Martin v. Peck, 2 Yerg. 297; Peck v. Henderson, 7 Yerg. 18; Peck v. Peck, 9 Yerg. 300; Allsup v. AUsup, 10 Yerg. 284; and Hughlett v. Hughlett, 5 Humph. 452,) do not support the position that one named in the will as executor can choose to qualify in Tennessee, and decline to qualify elsewhere, and thereby separate the trusts. They go to the extent of holding that, if this executor had given bonds, his surety would not be liable for any of his breachf.s of trust as to the Arkansas assets, and that the probate court would have no jurisdiction to charge him in the settlement of his accounts as executor with them, nor the law courts to charge him as for a devastavit concerning them ; but not that a court of equity may not compel a full and complete execution of all the trusts of the will ; and that a court of equity will enforce such an execution of the trusts finds abundant support in these cases, when taken in connection with other adjudications: Andrews v. Andrews, 7 Heisk. 234; Williams v. Bradlcij, Id. 55; Milly v. Harrison, 7 Cold. 191; Hubbard v. Epps, 1 Tenn. Leg. Eep. 320; Draue v. Bayliss, 1 Humph. 187; Deaderick v. Cantrell, 10 Yerg. 263; Lafferty v. Turley, 3 Sneed, 157. See, also, Schidtze v. Pulver, 3 Wend. 363, and Re Butler, 38 N. Y. 397, which hold that the executor must go into another state and qualify, when necessary to execute the trusts of the will. By sections 2221 and 4069 of the Tennessee Code the executor takes an oath that he will perform the will of the testator. ��� �