Page:Federal Reporter, 1st Series, Volume 8.djvu/237

 EABKE8 V. ALDSIOGE. 323 �dui^ng her life. (3) To sell a sufficient portion of the remaining real estate to pay all debts and funeral expenscs, and the sum of $1,000 for f eijcing, etc., the testator's burying lot; and also to create a fund from -which can be real- ized the monthly sum of $15, and to pay said sum to Sarah Jane monthly, durlng her life, and after her death to divlde the principal equally amorig the testator's children. (4) To sell, in his discretion, the residue of the real estate, not including the brick and shop property, andj after deducting the legal costs and charges of the sale, to apportion the proceeds araong the chil- dren of the testator, share and share alike. (5) After. the death of the said Sarah Jane, to sell the " shop " property aforesaid, and ,to divid© the moneyp arising therefrom, less costs and expenses, among the said children, share and share alike. �The moneys heretofore paid by him out of tfae estate for taxes ana insurance of either the brick house or shop pruperty are illegal, and cannot be allowed in the settlement of his accounts. Suoh expeudi- tures, if made, are chargeable to Sarah Jane McClelland, and may be offset against her claim for her monthly allowances. �AU the real estate is subject, of course, to the dower of the widow of Richard Parkes, if such widow is still living, and must be sold encumbered with this charge, unless the executor can make a satis- factory arrangement with her for the release of her right. �As to the prayer of the bill for an account, etc., it is sufficient to say that proceedings involving the subject-matter of this part of the case had already been instituted in the orphans' court of the county of Essex, by the defendant, Sarah Jane McClelland, against the executor, and were pending when the bill was filed in this court by the complainants; that the orphans' court had complete jurisdiction oyer the controversy, and, having first acquired it, is entitled to retain it ovex all tribunals having a concurrent jurisdietion, and that there is no disposition, if there was the power, to interfere with the pro- ceedings there. �The suggestion was made on the argument that, pending this suit, the executor had been removed by the surrogate, and an administra- tor cwm testamento annexa had been appointed. The learned counsel for the complainants admitted the fact to be so, but insisted that the removal of Mr. Aldridge as executor did not disturb his relations to the real estate of the testator as trustee, and that he was not divested by that act of his discretionary power to sell the land and make such disposition of the proceeds of sale as the will ordered and directed. �It is admitted, upon general principles of the law, that the pffices of executor and trustee may he united in the same person, and that ��� �