delivered the opinion of the Court:
1. It is not seriously contended that the equity court did not have jurisdiction of the trust during the lifetime of Stilson Hutchins, who, as alleged, had become physically incompetent to advise with the trustee, and to direct the disposition of the net income of the estate. The trust was express, and no one contested-its validity. The trust estate was large; interest and taxes had to be paid, and loans secured by mortgage renewed. Under all the circumstances, the trustee was justified in invoking the jurisdiction of the equity court for his own *270protection, as well as that of the disabled cestui que trust. The children of Stilson Iiutchins were not necessary parties; but seem to have been made parties in order that they might have an opportunity, in the disabled condition of their parent, to express their satisfaction or dissatisfaction with the proposed relief. Each availed himself of the opportunity to express his approval.
2. After the death of Stilson Iiutchins, and in a plea to the petition of Rose Keeling Iiutchins, Walter S. Iiutchins raised the question of jurisdiction of the court to enter the decree assuming jurisdiction of the trust, because there had been no personal service of the subpoena upon Stilson Iiutchins. The substance of the plea and a copy of the marshal’s return of the writ are given in the foregoing statement. . The return recites that, as personal service could not be made, served copy of within on said Stilson Iiutchins by leaving said copy at 1603 Massachusetts Avenue, N. W., Washington, District of Columbia, being the usual place of abode of said Stilson Iiutchins, with Florence Murphy, an adult resident in said Hutchins’s family, May 19, 1911. This return was in literal conformity with the provisions of equity rule 15 of the supreme court of the District, prescribing the manner in which sendee shall be made where direct personal service cannot be had. The rule was promulgated by statutory authority. It has been long in force, and we are not advised that its validity has ever before been questioned. We are of the opinion that the service was regular, and had the effect to bring the defendant Stilson Hutchins before the court. Harryman v. Roberts, 52 Md. 64-75; Continental Nat. Bank v. Thurber, 74 Hun, 632, 26 N. Y. Supp. 956, S. C. 143 N. Y. 648, 37 N. E. 828. See also Santiago v. Nogueras, 214 U. S. 260-267, 53 L. ed. 989-992, 29 Sup. Ct. Rep. 608.
The argument that the service should have been in accordance with the provisions of the Code relating to persons non compos mentis is with merit. The allegations of the bill was that Stilson Hutchins was physically disabled, not mentally. Walter S. Hutchins, who filed this plea, had, in answer to the *271bill, alleged that his father was both physically and mentally capable. Rose Keeling Hutchins’s answer suggested mental disability. Because of this suggestion, apparently, the court had declined to enter a decree pro confesso; but on the ground of physical disability, he appointed a guardian ad litem to represent him. The guardian ad litem answered that, from information, he believed the absent defendant to be both physically and mentally unfit to give attention to the case; and, neither admitting nor denying the allegations of the bill, he submitted his interests to the court. There was no adjudication of insanity; no committee was asked for or appointed; the decree assumed jurisdiction of the trust upon the ground of the physical disability of the cestui qui trust. All parties were content therewith until the filing of the petition of Rose Keeling Hut-chins, after the death of Stilson Hutchins, praying an order of partial distribution.
3. Undoubtedly, the active duties of the trustee terminated with the death of Stilson Hutchins; but the estate remains in his hands until the probate of a will and the issuance of letters to the executors named therein, to whom the estate was required to be delivered. If no will shall be probated, but intestacy established, then delivery of the real estate is to be made to the heirs at law, and of the personal estate to the personal representatives, of the decedent. Delivery of the personal estate has been made to the collector appointed by the probate court pending the proceedings to probate the will, to which a caveat has been filed. The real estate remains in the possession of the trustee under the supervision of the equity court. The encumbrances upon the real estate, which require renewal from time to time, the payment of interest thereon, the collection of rents, the repair of houses, and the payment of taxes, render it necessary to the conservation of the estate that the equity court shall retain its supervision of the same. Its jurisdiction, we think, is ample for the purpose.
4. The probate court has authority, in case of the contest of a will, to appoint a collector of the personal estate. Code sec. 304 (31 Stat. at L. 1237, chap. 854). His powers, when so *272appointed, are those in general of a temporary administrator. Sec. 306. This power was exercised by the appointment of Dante, who gave bond and assumed the new duties. In order to provide for the needs of next of kin and legatees who may be in need of subsistence, or in greatly straitened circumstances, the probate court has authority, before the time for final distribution arrives, to order payments to be made to them on their shares or legacies, in certain proportions and under certain conditions. Sec. 391. This section of the Code is inapplicable to the petition in this case, because the payment is asked to be ordered by the equity court out of the net income of the real estate administered by the trustee under its supervision. The petition alleges that there is a large monthly surplus arising from the rents of the estate after the payment of all charges. That there had accumulated such a surplus before the death of Stilson Hutchins, amounting to $26,000, appears from a report of the trustee. This, however, would pass into his hands as collector of the estate. But he shows that a surplus of $5,000 had accumulated during the month after the death of Hutchins; and his answer admits that there will be a net monthly income not to exceed $5,500 per month. It seems reasonable to suppose that there are no other obligations of decedent other than those reported by the trustee, and that there will be accumulated a large sum of money each month to which the heirs at law would be entitled, and which could safely be paid to them if the equity court has jurisdiction for that purpose. That this accumulation may go on indefinitely during the contest of the will, and that some of the parties ultimately entitled thereto, particularly the plaintiff, may be in great need of it, presents a case of great hardship. If the will or wills be defeated, plaintiff will be entitled to her statutory interest in both real and personal estate. Plaintiff represents that what she asks may be distributed to her pending the proceedings contesting the will is no more than she will be entitled to in event either shall be probated, or in event of established intestacy. Her petition was dismissed because the court was of the opinion that it had no jurisdiction to order the payment of any.part *273of the income to her, unless she had relinquished any claim under the will, and claimed her dower interest in the real estate ; which she had not done. She is not called upon to elect whether she will claim under the will until after a will shall have been finally probated. But there is nothing to prevent her exercising this election at any time before the probate of the will, should she find it to her interest to do so. She is free at any .time to claim her statutory rights of dower and distribution. Without the exercise of this right, we are constrained to hold that she has no interest in the trust estate that can be set apart to her under this petition.
The jurisdiction of the equity court is limited to the conservation of the trust estate. It has not the power of distribution conferred by statute on the probate court.
The order is therefore affirmed with costs. Affirmed.