tors and trustees after carrying out the various provisions of said will prior to item 14. For said purpose said special master is ordered to make such account of the transactions of the said trustees and executors from the year 1882, the date of their appointment, as may be necessary, also to make and allow such credits and charges as may be proper, and as to the accounts filed and approved in the probate court of Hamilton county prior to the bill herein, if they be expected to, they shall have the same force and effect that they would have upon a final accounting in said probate court, and, as to all items to which no exceptions shall be taken, the same be allowed as filed and approved in said court."

Upon the hearing before the master it appeared that the defendants, sometimes designating themselves as executors, and sometimes as trustees, had at several times, extending to May 24, 1890, presented their accounts to the probate court for Hamilton county, some of which had been confirmed and others had not. And it further appeared that the defendants, as executors, on August 1, 1892, while this cause was pending in the court below, and six months after the filing of their answer therein, filed their petition in the probate court for Hamilton county praying for an extra allowance of $2,500 for services rendered by them in the case which were described in the petition. It should be here observed that the services mentioned were wholly bestowed by them, as appears from the petition, in the care and management of the real estate which was in their possession as trustees. It was stated in the petition that they had received no extra allowance for such services. This was an inadvertence, no doubt. In the settlement of their accounts in October, 1885, which was subsequent to anything done by them in their character as executors, they asked for and were allowed for extra compensation $1,000. We refer to this only for the purpose of making it clearer that the extra compensation of $2,500 was allowed to them for their services as trustees. The order of the probate court allowed this $2,500 to the defendants as "trustees." In the account there filed July 30, 1892, the defendants credited themselves with $1,242.93 for certain enumerated services relating to the trust, which seems also to have been allowed by that court, though we have been unable to find from the record that this certainly was so. The master held that this was excessive, and reduced the amount by $663.63, to which the defendants excepted. It does not appear that any notice was given of the filing of the account of July 30, 1892, or the petition of August 1, 1892, or that the complainant had any knowledge of the proceedings. The item of $2,500 was presented to the master as a charge against the estate, and was disallowed by him as one fixed by the probate court, but he considered the claim on its merits and disallowed it. The defendants excepted to this action of the master. The court, on the coming in of the report, seems to have considered the whole subject of the defendants' charges for commissions and allowances on broader lines than the master had done, but, following it in its main features, proceeded to make an adjustment of them upon its own view of their merits, and allowed 5 per cent. on the whole sum which had passed through their hands, and, adding the $1,000 which was allowed by the probate court in 1885, awarded a decree on that basis. The result was practically about the same as

that reached by the master, the difference being only $163.57, and that in favor of the defendants. The complainant has not appealed. The appeal of the defendants brings up only the disallowances by the master of the sums of $2,500 and $663.63, respectively, allowed by the probate court in July or August, 1892, assuming the last named sum to have been allowed. Some embarrassment arises from the fact that there is room for thinking that the court below by its decree allowed extra compensation for the services covered by the order of the probate court, for, if he accepted as a basis for estimating commissions the analogous provisions of the statute of Ohio in regard to executors and administrators, the amounts credited to the trustees were excessive. But the case has been argued here as if these particular exceptions were unaffected by that consideration, and we shall proceed to examine them upon that footing.

The appellants rely upon the proposition that the probate court of Hamilton county had jurisdiction to order the allowances in question in August, 1892, and that the orders were final, and not subject to the control of the Circuit Court of the United States in the suit there pending. And in support of this contention it is strenuously argued that the probate court had possession of the res, and was the proper forum in which to conduct the accounting and all other matters relating to the administration of the estate. We copy the syllabus of the brief of counsel for the appellants as follows:

"The Circuit Courts of the United States have no power, even in a case involving diverse citizenship, to take an estate out of the hands of the probate court having jurisdiction thereof, and order an accounting of the receipts and disbursements thereof."

As applied to this case, this amounts to a denial of the authority of this court to direct the decree which we ordered when the case was here in 1893. This court expressly decided that the accounting should be had in the United States Circuit Court. The decree entered in the court below upon receiving the mandate, and which is copied in the preceding statement, was in accordance therewith. This court had jurisdiction of the cause and of the parties, and power to decree the relief which should be granted, and assuming, for the sake of argument, that it erred in ordering an accounting in the pending cause, the decree, being final, was none the less valid and binding upon the parties. It is pressed upon us that our decision was contrary to the ruling of the Supreme Court of the United States in Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867, and, though it is not expressly urged that we should recall our judgment, yet the effect of what is now insisted upon would be to ignore it. But there is no foundation for the contention that the former judgment of this court was in conflict with Byers v. McAuley. In that case there was no trust for administration, and the estate concerned was personal property in the possession of the probate court for the purposes of ordinary administration. It was that possession which formed the obstacle to the assumption of control over it by the federal court. The Supreme Court recognized fully the right of a citizen of another state to invoke the jurisdiction of a federal court for the purpose of obtaining the share to which

he is by law entitled of the estate of a deceased person situated in the state where the suit is brought. But it was held, and that was the gist of the decision, that in exercising its jurisdiction it should not invade the possession of a state court taken for the purpose of administration under the local law. But short of intermeddling with the possession of the state court or controlling the administration, it was not doubted that the federal court could properly proceed to granting full relief. And in that case the Supreme Court directed "a decree in favor of those citizens of other states than Pennsylvania who have petitioned the Circuit Court for relief * ** for their shares of the estate, * * * and an order that they recover from the administrator such sums thus found to be due," and this although the complainants were distributees only of the personal estate. In this case there was no obstacle, such as existed in the case of Byers v. McAuley, arising from possession of the property by the probate court, and we therefore had no occasion to refer to exceptional cases where the presence of such a fact would require a modification of the relief which the court might otherwise give. There was a will by which, after certain specified legacies should be paid, the whole estate was devised to trustees upon a trust in favor of certain designated beneficiaries. The bulk of the estate consisted of real property. It is also to be observed that the fee simple was devised to the trustees, and that the trust was not imposed upon them in their character of executors; their duties and obligations as trustees were quite distinct from those devolved upon them as executors. The fixing of the time when they should hold the property in one character should end, and in the other begin, was not subject to the uncertainty which sometimes exists when the duties of a trustee are knit to those of the executor. Phillip v. Manning, 2 M. & C. 309; Byrchall v. Bradford, 6 Mad. 13; Ex parte Wilkinson, 3 Mont. & Ayre, 145; Willmott v. Jenkins, 1 Beav. 401; 1 Lewin on Trusts (Flint's Ed.) *204. Their relations to the estate were no different from what they would have been if the trustees had been different persons from those who were appointed as executors. They might have accepted the one office and renounced the other. Having accepted both, they would take and hold the personal property as executors until the debts and legacies not included in the trust were satisfied. Then, if anything remained, it would go over to them as trustees, and it would be the duty of the probate court to refrain from exercising an authority which belonged only to a court of general jurisdiction. Wheatly v. Badger, 7 Pa. 459; Williams v. Cushing, 34 Me. 370. But with respect to the real estate, neither the title nor the possession ever passed to the executors. Real estate is not assets which go to the personal representatives of the owner. Neither are the rents and income from it accruing after the death of the owner. 11 Am. & Eng. Encl of Law, 841; Överturf v. Dugan, 29 Ohio St. 230.

Upon the probate of the will the fee simple passed to the trustees, and the trust became effective. So, also, the rights and interests of the cestui que trust in the estate became securely and definitely fixed. The probate court had no control over it so far as the

realty was concerned, except that, if the personal property proved insufficient to satisfy the creditors, it had statutory authority to order it sold to the extent necessary! Campau v. Čampau, 25 Mich. 127. And perhaps it might order a sale of real estate to pay ordinary legacies if the personal assets should prove insufficient, but we should suppose this doubtful in the absence of any statutory power. But in the present case it is sufficient to say that no contingency ever arose in which the probate court had power to take the real estate into its possession or assume any control over it. The debts and legacies were paid without recourse to any statutory proceeding in the probate court. As early as 1885 the debts and legacies had all been paid. The duties of executors were ended. The personal estate was administered, and the trust was freed from all the burdens to which it was subject from the administration of the probate court. Nothing remained but the management and disposition of the real estate remaining unsold for the complete execution of the trust. And when, in 1890, the complainant filed this bill, all the conditions for enforcing the trust, without let or hindrance consequent upon the possession of the property by another court, existed. There is, however, a statute (section 6328, Rev. St. Ohio 1892) which provides that:

"Any trustee of any non-resident idiot, imbecile or lunatic, appointed as aforesaid, and any trustee heretofore or hereafter created by any last will or deed, or appointed by any competent authority, to execute any trust created by any such last will or deed shall, as often as once each two years, render an account of the execution of his said trust, to the probate court of the county in which he was appointed, or in which such last will or deed may be recorded, in the manner provided by law for the settlement of the accounts of executors and administrators; provided, this section shall not apply in any case in which the will or deed creating such trust designates any other tribunal for the settlement of the trust, or in which any other tribunal shall have acquired jurisdiction."

But assuming that this statute is applicable to a trust estate in real property, it gives to the probate court no control over the property itself, but only the authority to biennially settle the trustees' accounts. This authority is, however, denied in any case in which any other tribunal shall have acquired jurisdiction. And this was the condition of things here. Upon the filing of this bill the subjectmatter of the trust was drawn into the possession and control of the court. It would have been an anomalous proceeding for the Circuit Court in these circumstances to remit the parties to the probate court for an accounting by the trustees of matters relating solely to the execution of their trust, there being no purpose of undoing anything done by the defendants as executors, or by the probate court in the exercise of its jurisdiction as such. And equally anomalous would it be to permit the trustees, after the Circuit Court had taken jurisdiction of the bill, and they had appeared and submitted thereto and had answered and invoked the direction of the court, to go into the probate court and obtain orders which would intrude into and predetermine the matters and questions belonging to the subject of the suit. The court below did not err in concluding that it was not bound by the orders of the probate court ob

tained in the circumstances stated. If such a proceeding should be effective, the right of a citizen of another state to bring suit in the United States court would come to little or nothing. The subjectmatter of the suit could be subtracted piecemeal, and eventually, either wholly or in part, decided by the state court. Besides all this, the probate court had no jurisdiction whatever of the subjectmatter. We presume it is not necessary, but, to avoid any misunderstanding, we think it right to say that no improper motive in resorting to the probate court for the order in question is imputed to the defendants. The supposition that the probate court was the only court competent to deal with such matters had been very persistently maintained by the defendants, and, indeed, was sanctioned by the learned judge who directed the original decree. The petition for the allowance of extra compensation was made by the defendants as executors. The order speaks of it as a petition by trustees, and allows the extra compensation to them; but we attach no special importance to this. The same misnomer of their offices runs through the transactions relating to the estate from the beginning. If any consequence were to be attached to the titles of office assumed on the different occasions, it would lead to inextricable confusion. No doubt the safe and proper way is to impute to the actors the character denoted by their acts, treating them as executors when the thing done is proper for executors, and as trustees when the act is in execution of the trust. This was the distinction adopted in Wheatly v. Badger, supra, when Chief Justice Gibson made a very lucid statement of the law applicable to such a situation. In no other way is it possible to carry into their intended effect the several provisions of the will. Applying this test, it is manifest that their applications to the probate court in July and August, 1892, were made in their character of trustees, for, as already stated, they related solely to matters involved in the trust.

In regard to the merits of the claim for extra compensation, the master in his report said:

"Defendants claim that they are entitled to extra compensation for extraordinary services, even in excess of that already retained. But, as has been shown, the percentage of commissions is largely in excess of the statutory or customary allowances for such services.

"The total value of the money and other property passing through the hands of defendants from the Poor estate was $229,211.49 (page 48, master's report), the great bulk of which was never changed by sale and reinvestments. The statutory fees on that amount would be $4,707.22. The total amount retained for services, including $557.16 hereinafter allowed, was $17,619.19, an amount in excess of the statutory commissions of $12,908.97, or nearly three times the statutory commissions.

"In view of these facts, the extra compensation of $2,500 made after the filing of the bill of complaint herein is disallowed."

The court, in its opinion, said:

"The total amount of moneys passing through their hands, either as executors or trustees, is found by the master to be $229,211.49. The remainder of the property was distributed in kind."

Apparently this was an inadvertence. As the master stated, the great bulk of the $229,211.49 was never changed by sale and rein