lature that the trustees, without any independent proceeding or without being called upon by the beneficiaries, might file their accounts in the court in which the estate was administered and have it settled as a matter of convenience. It could not have been intended that the court should retain jurisdiction as to the property of the trust, or that its jurisdiction should be exclusive. The administration was closed, the accounts of the executors allowed, and the property distributed to them in a different capacity. By their discharge as executors they were as completely separated from the business of the estate as if they had been dead. (Willis v. Farley, 24 Cal. 502.) The rule that the executors were succeeded by trustees whose duties were entirely different is well stated in Wheatley v. Badger, 7 Pa. St. 462, where it is said: "It would be as absurd for a trustee to attempt the duties of an executor as for an executor to attempt the duties of a trustee, and it is therefore the business of the court to separate the two offices, in a question like the present, reddendo singula singulis. As executor he was to pay the legacies; as trustee he was the devisee and depositary of the legal title for the accomplishment of confidential purposes, with which the office of an executor has no necessary connection. Had not the creation of the two offices in the same person been coupled also in the same clause, there would not have been a doubt of their severance in the contemplation of the testator; the will would have presented the union of distinct rights in the same person which are always treated as if they existed in different persons."

Suppose that in this case the plaintiff Dey immediately after the decree of distribution had removed to and continued to live in New York; how could the trustees have been held by the courts of San Francisco within their exclusive jurisdiction? If the beneficiaries and the trustees, after the decree of distribution, had all become residents of New York, the property also being there, how could section 1699 prevent the courts of New York from exercising jurisdiction or give the San Francisco courts jurisdiction? Counsel for defendants rely upon Lewis v. County of Chester, 60 Pa. St. 328, and a sentence used by Judge Cooley, in his work on Taxation, page 376, in which he says: "If the fund is in charge of a court it is taxable in the juris

diction having control of it." The sentence from the text-book refers as authority to the single case of Lewis v. County of Chester, supra. In the latter case the estate had not been distributed, and the same rule was followed as in Mackay v. San Francisco, supra. It is true the court had settled the accounts of the executrix as such, and the decree provided: "That said executrix keep said balance invested, and that she retain the same on trust to apply the income thereof pursuant to the trusts and limitations of the said last will and testament until the further order of this court, and it is ordered that the said executrix be hereafter entitled to expend the sum of fifteen hundred dollars annually out of the income of said estate for the support and maintenance of each of said infants." And the court in its opinion said: "And distribution yet remains to be decreed upon the further order of the surrogate."

Therefore, the case is not authority in support of the proposition that the superior court of San Francisco has control of the bonds distributed to plaintiffs. It is claimed by defendants that plaintiffs cannot recover any less than the whole tax, for the reason that the protest, instead of specifying that onehalf the tax upon the bonds is void, is directed to the whole tax. We think the protest was sufficient. It specified that Mackay is not a resident of the state, that the bonds are in New York and are bonds of foreign corporations. The protest, while it specified and pointed out that the whole assessment was void, did not for that reason fail to point out and show that the assessment of all the property owned by Mackay was void. The greater includes the less, and, although the whole assessment was claimed to be void, the protest showed that the whole assessment as to Mackay was void. The notice was a substantial compliance with the statute. (Mackay v. San Fran cisco, supra; People v. Assessors of Albany, 40 N. Y. 163.)

It is claimed by plaintiffs that the bonds were in the exclusive control and possession of plaintiff Mackay and were in New York for the purposes of sale and reinvestment, and had thus acquired what is termed in some of the cases a "business situs" in New York.

The authorities generally agree that where the owner is not a resident of the state in which the credits are situated, and

the credits are in the possession and control of a local agent, who holds them for the purpose of transacting a permanent business, and of investing and reinvesting the proceeds from the principal or interest in such manner that the property or credits comes in competition with the capital of the citizens of the state in which the agent resides, that the credits have a situs for the purposes of taxation in the place of residence of the local agent. (New Orleans v. Stempel, 175 U. S. 318, and cases cited.)

We do not think the facts of this case bring the bonds as to the interest of plaintiff Dey within the rule. As trustee he is the legal owner of an undivided one-half of them. They are the same identical bonds owned by Mrs. Fair at her death. They have not lost their identity simply by being on deposit in a bank in New York City. They have not been sold and the proceeds reinvested in New York or elsewhere. We advise that the judgment be reversed and the court below directed to enter judgment on the findings in favor of plaintiffs for the sum of fourteen thousand two hundred and twenty-two dollars and fifty cents, and interest thereon at the legal rate since the nineteenth day of November, 1895.

Chipman, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed, and the court below directed to enter judgment on the findings in favor of plaintiffs for the sum of fourteen thousand two hundred and twenty-two dollars and fifty cents, and interest thereon at the legal rate since the nineteenth day of November, 1895.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied.