Opinion. Mr. company" were nominated joint executors thereof. Barbour and the Virginia Safe Deposit and Trust Company of Alexandria qualified as such executors. They acted until March 11, 1911, when the authority of the Virginia Safe Deposit and Trust Company was revoked, and the Virginia Trust Company of Richmond, Va., was appointed in its place. The said Barbour and the Virginia Trust Company have since continued to act. The will devises to the testator's wife, Ellie B. Rixey, during her life and widowhood and until his youngest child shall become twenty-one years of age, his home farm, "Beauregarde," and part of his "Richlands" farm, together with all the personal property on the said farms, and directs that none of the personal property covered by that clause shall be appraised or inventoried, or go into the hands of his personal representatives, as he was of opinion that it was necessary for the proper conduct of the farms and the support of his family. It also directed that the residue of his estate, real, personal and mixed, wheresoever situated, including all funds arising from life insurance, should go into the hands of his executors, to be managed, controlled and administered in the manner and for the purposes indicated in his will; that they should invest all moneys and the proceeds of all personal property coming into their hands in good, interest-bearing securities, and should farm, rent, or otherwise conduct his real estate until sold, in the best manner, and pay over the annual income arising from his estate to his wife until her death or remarriage, or until his youngest child should become twenty-one years of age. The executors were given full power, acting jointly, to sell and convey the real estate or personal property mentioned in the third clause of the will, either in whole or in parcels, with the provision that the proceeds should be invested and the income therefrom paid to the testator's widow for the period mentioned. He further directed that Opinion. when his youngest child should become twenty-one years of age, his widow being alive and unmarried, one-third of the entire income from the estate should be paid over to his widow as long as she lived and remained his widow, and the remaining two-thirds divided equally between his surviving children, and the descendants per stirpes of such as might be dead leaving descendants; and that upon the death of his wife, or her remarriage, his youngest child having become twenty-one years of age, his entire estate should go to and be divided equally between his children then living and the descendants per stirpes of such as might be then dead with issue surviving. The will also provided that the farm known as "Richlands" should not be sold by his executors, but that his son, John Rixey, should have the privilege of "taking it" upon attaining his majority at $25 per acre. At the time of his death, the testator was domiciled in Stevensburg district, Culpeper county, Virginia. The widow, in writing, after the youngest child became of age, renounced her life estate in the property of the testator, and this document, together with the fourth and fifth clauses of the will, have been construed by this court in Compton v. Rixey's Executors, 124 Va. 548, 98 S. E. 651, and it is there determined that the children living at the death or remarriage of his wife, and the descendants per stirpes of such as may be then dead with issue surviving, take contingent remainders in the property, and that the renunciation of the will by the widow does not accelerate the vesting of these remainders. The executors returned the property for taxation and it was assessed as located in Stevensburg district. Culpeper county, for the years 1908, 1909 and 1910. Thereafter no property was returned by them for taxation and no assessment was made thereon until 1914, when the examiner of records for that district, pursuant to the provisions of sec Opinion. tion 508 of the Code, as amended by the act approved March 25, 1914 (Acts 1914, p. 486), reported the value of the intangible property held by the executors for the years 1911 to 1914, inclusive, consisting of funds arising from life insurance policies and from the real estate transferred to his son, and from the sales of real and personal property to others. The commissioner of the revenue assessed it as located in Stevensburg district, for State, county and district taxes for those years. These assets consisted of bonds secured by liens upon real estate, and bank deposits, all of which were assessed at their face value. Similar assessments were thereafter made for the years 1915, 1916 and 1917. The executors, on September 15, 1915, moved the Circuit Court of Culpeper county for exoneration from the assessments made for the years 1911 to 1914, inclusive, and in October, 1917, made a similar motion for like relief from the assessments for the years 1915 to 1917, inclusive. These motions were heard together, partial relief was granted, and the order complained of entered. None of this intangible property was returned for taxation by the executors or reported elsewhere for taxation during these years— 1911 to 1917. 1. It is claimed for the petitioners that Stevensburg district, Culpeper county, was not the proper situs for the taxation of this property under the Virginia statutes, and if it was, that the assessments should not have been made against the executors. To support this claim, various sections of the statutes of Virginia are quoted, referring chiefly to the assessment of the property of living persons. [1] The situs for taxation of the property of decedents, held by their personal representatives during the administration of the estate has been definitely settled in Virginia by the case of City of Staunton v. Stout's Executors, 86 Va. 321, 10 S. E. 5. There the property of the decedent was Opinion. assessed in Middle River district, Augusta county, in which the deceased was domiciled at the time of his death. It was claimed that because the executors lived in the city of Staunton the property should be assessed there. The court says: "The fact that the executors resided in Staunton when the assessment was made does not affect the case. There being no statute in Virginia to the contrary, the situs of the property is at the last domicile of the testator, and there it is taxable, and not elsewhere. Burroughs on Taxation, 224; Cooley on Taxation, 270; 1 Desty on Taxation, sec. 68, p. 383.” This rule which is fixed in Virginia accords with that which obtains in many States. 37 Cyc. 807, 958, and cases there cited. The reason therefor is thus stated in Cornwall, Ex'or, v. Todd, 38 Conn. 443: "So far as property is concerned, and for the purposes of collecting and paying debts, and doing justice by others, the acts and doings of a deceased person while in life still continue to affect the living in a certain legal sense, therefore, and for certain purposes, he still lives, and will continue to live until those purposes are fully accomplished. As he is incapable of acting for himself, the executor or administrator represents him. The law requires this property, while in a transition state from the dead to the living, to bear its proportion of the public burdens. For the purposes of taxation, therefore, it must have a situs. None can be more appropriate than the place where the deceased lived and died. I apprehend, therefore, the true rule to be this: "The personal property of a deceased person is taxable, during the settlement of the estate, in the place of domicile of the deceased."" Hardy, et The same rule is followed in Massachusetts. al., v. Inhabitants of Yarmouth, et al., 6 Allen (Mass.) 277. That the property should be listed for taxation by these executors is perfectly clear by the mandate of section 492 Opinion. of the Code (recently construed as to property in the hands of a non-resident guardian in Taylor, Guardian, v. Commonwealth, 124 Va. 445, 98 S. E. 5), which provides, among other things, that "if the property be the estate of a deceased person, it shall be listed by the personal representative, or person in possession, and taxed to the estate of the deceased person." [2] The petitioners, nevertheless, contend that while it may be true that the property belonging to the estates of deceased persons should be thus listed and is taxable at the last residence of the deceased, the property here involved, which is in their hands, is held in trust for the benefit of others, the executors being trustees, and that therefore it should be listed and taxed to the trustees where they reside; or, having regard to the rule laid down in the case of Wise v. Commonwealth, 122 Va. 693, 95 S. E. 632, it should be listed by and taxed to the trustees at the place of residence of the person for whose benefit the property is held. They fail, however, to show that they are trustees within the meaning of section 492 of the Code, as construed in that case. These petitioners held the property at the time these assessments were made, and still hold it, as executors of the will of John F. Rixey, and the property is in their hands as the undistributed property of his estate. While it is true, as it is true of every fiduciary, that an executor occupies a position of trust, it is also true that an essential part of his duty is to distribute the estate of his testator; that until distributed, he holds it as executor, and that the sureties on his bond as executor are responsible for any failure to make proper distribution thereof. Eight times in the will these executors are described as his "personal representatives" by the testator, and the seventh clause of his will provides that all securities and investments shall be taken and made in their names jointly "as my personal represen |