After a very minute examination of the facts and principles involved in this case, I entirely concur with the surrogate in the conclusions at which he has arrived on the two questions presented to him.
I. The executor having submitted himself to the jurisdiction of the surrogate of this county, must account to him in relation to all matters connected with his duties, and his accountability, as executor. The power of the offic.er is not partial or fragmentary; but, in order to be effectual, must embrace every thing necessary to the perfect administration of the estate. Whatever might have been the motive of the executor in applying for letters testamentary here, or whatever necessity might have impelled him. to apply, the surrogate cannot inquire, as *574far as the accounting is concerned, whether he has accounted before any other jurisdiction, or not. I repeat, having come here, he is bound to account here, and that not in part, but in whole. He must account, and that necessarily means that he must render an entire statement of his receipts, payments and charges. Of course, he cannot be compelled to pay what he is bound to pay, more than once. But with regard to that matter, on this occasion, the surrogate and the court have nothing to do. The inquiry now concerns merely the accounting.
II. The surrogate, then, having the power to compel a complete accounting, he can determine the manner of the accounting, and the principles by which it is to be governed, only by the laws of our own state. If they are in conflict with the laws of any other jurisdiction, within which the property involved is placed, or before whom the executor might have previously accounted, it is not for the surrogate to apply the remedy.
In the beginning of the bequest, the whole estate is given absolutely for the sole use and benefit of his son and daughters, their heirs and assigns for ever. There is nothing inconsistent with this absolute gift in the subsequent clauses of the will. It is indeed, as to each legatee, liable to be divested, in case he should die before the payment of the share. But we know that the prior devise or bequest “ must not be disturbed further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition.” It was very different in'the case of Chrystie v. Phyfe, in which I maintained that the prior words of absolute inheritance were nullified by the posterior qualifying words. The subsequent limitations in that case provided that if Miss Mackaness should die unmarried without leaving lawful issue, the estate should go to her sisters, their heirs and assigns for ever. If she should die leaving lawful issue, then to such child or children, his, her or their heirs and assigns for ever; and in case she should die without lawful issue, and if at her death, her sisters should not be living, the will provided that the estate should go to *575the children of her said sisters, their heirs and assigns for ever. By no possibility, I therefore contended, by virtue of that devise, if the limitations were not to be totally rejected, could a fee vest in Miss Mackaness. These principles, which were indicated in a dissenting opinion, have been since fully recognized by the court of appeals, in Norris v. Beyea, (3 Neman, 273.) In that case, there was a bequest in language denoting an absolute gift of the whole estate; but, in a subsequent part of the same will there was a limitation over, in the event of the first legatee dying under age and without issue. The. gifts, it was held, were not repugnant to each other ; but the latter was a valid executory gift. In these cases the intent of the testator, notwithstanding the apparent repugnancy, could be deduced from the whole scope of the will.
In the case before us, notwithstanding a similar apparent repugnancy, the intent of the testator can also be deduced from the whole scope and purport of the will; but the intent is dissimilar from that deducible in the other cases. The portions treated of are invariably called the shares of the legatees, vested in and belonging to them, and to be paid to them, and to be given over only in case of death before payment. The payments are to be made, in some respect, according to the discretion of the executors; but it was evidently intended by the testator, that the time of payment should not be arbitrarily protracted. They are cautioned not “ to use unnecessary delay in making ultimate payment” of the share of each daughter. Now, although, as we have seen, the mere employment of the ordinary technical words of inheritance, does not peremptorily and positively import a fee, or absolute ownership, in defiance of subsequent words of qualification and limitation ; yet, if in addition to the words of inheritance, there is enough in the whole tenor and language of the will, to show that the testator intended that the whole property in the bequest should vest in the legatee, and not a mere life or usufructuary interest, then it is a safe rule, that the effect of the subsequent words shall be countervailed and the prior words *576effectuated. This I have endeavored to illustrate in the case to which I have above referred. And I think the present case affords an additional illustration of it. The testator directs full payment and discharge of the corpus, the principal, of the estate, not a payment or application merely of the proceeds or profits of it. This right to the corpus or principal, according to the respective shares, he plainly designed should at once vest in each child; liable, indeed, and barely liable, to be divested. But it would be a strange construction to liken such a bequest to a contingent or usufructuary interest. I, therefore, agree with the surrogate, that the children are entitled to all the produce of their shares from the time of the testator’s decease, deducting what has been expended for their maintenance respectively; and that the biennial payments are applicable alone to the principal.
[New York General Term, November 23, 1858.Devies, Clerke and Suthland, Justices.]
The surrogate’s decree should be affirmed, with costs.
Decree reversed.