The Surrogate.
The will of the deceased was proved before me, and letters testamentary were granted to his *342widow, the executrix. It now appears that the testator was domiciled, at the time of his death, at Greenwich, in the State of Connecticut; and by the law of that State, when, after the death of the testator, he shall have a child born for whom no provision has been made in the will, the will is revoked. There is no doubt that, in regard to personalty, the law of the domicil of the deceased governs as to the question of testacy or intestacy, and the distribution of the estate. (Story’s Conflict of Laws, § 473). Mr. Bloomer’s will has been declared void by the proper probate judge in Connecticut, in consequence of the birth of a posthumous child, and letters of administration were granted to his widow. The great bulk of the property of the deceased, was, at the time of his death, in the State of New York; and now, on the accounting of the executrix before me, several interesting points require to be settled.
1. The invalidity of the instrument as a will of personal estate by the law of the testator’s domicil, does not of necessity render it invalid as a' will of real estate. Beal estate is governed by the lex loci. But whenever, for any reason, a portion of a will fails, it may become a question whether the general scheme and plan of the instrument viewed as a whole, have been so deranged—whether the purpose and intention of the testator have been so materially defeated—as to render the entire disposition invalid. This is a question of construction respecting the realty which does not fall within my jurisdiction, unless under the clause of the will which directs the real estate to be sold and the proceeds invested for the benefit of legatees. The will being valid as to that power, and the power having been exercised, and the real estate having been converted into personalty, it only remains for the Surrogate to direct the distribution of the estate. The personal estate will, of course, be divided as in case of intestacy, according to the laws of Connecticut; one-third to the widow, and the remainder equally among all the *343children. As to the disposition of the proceeds of the real estate situate in Hew York, that must be regulated by our law, which gives to a post-testamentary child the same portion as would have descended if the father had died intestate. (2 R. S., p. 65, § 49 ; Mitchell vs. Blain, 5 Paige, 588.) So far, there seems no difficulty. But the will throws the whole real and personal estate into one fund, applicable to the discharge of the various bequests; and as there are two legatees, who, in consequence of the revocation of the will as to personalty by the laws of Connecticut, are left to the proceeds of the real estate alone for payment, I think the other legatees who are next of kin, should be put to their election. (Hawley vs. James, 16 Wendell, 142 ; and cases cited, 1 Jarman, 385.) If they claim under the will, it will stand entire, except as to the interest of the posthumous child; if they claim against the will, the two legatees who are not related to the deceased will take under the will, and the proceeds of the real estate will be sufficient to discharge their legacies.
2. The widow of the deceased claims that her husband, in view of his approaching death, gave her the sum of two thousand three hundred dollars. She produces no evidence of this, except her own deposition, voluntarily made, and not called for by the other parties. It appears, that by the laws of Connecticut, such evidence is competent.— (Revised Statutes of Conn., 1849, p. 86, § 141). But as a general rule, the competency of evidence depends upon the lex fori, and not upon the lex domicilii; and although great effort has been made to give a larger latitude to the law of the domicil, I am not aware that courts have gone so far as to allow the law of the domicil to regulate the question whether or not a witness is competent to testify. (Story’s Conflict of Laws, § 630, b). Independently of this difficulty, I think the validity of the gift as an effectual donation, supposing it well established by the proofs, depends upon another point. The birth of the testator’s *344posthumous child, by the law of Connecticut, revoked his will. This rule was adopted from the civil law. The power of disposing of property by will, as originally established by Solon, at Athens, was limited to the case where the testator had no children; and as this law was transferred by the Decemviri to Home, the authority of the parent to give his estate and disinherit his issue, was also greatly restrained. It is somewhat curious to trace the influence of these early principles, through the current of the civil law as adopted and recognized in the various countries of Europe. It was the peculiar office of the Ho-man testament, to institute an heir; and the person so instituted, took the heritage as heir and not as purchaser. Children might be exheredated by testament, if a just cause, such as ingratitude, were assigned in the instrument ; and the querela inoffioiosi testammti, was an action allowed in favor of children for rescinding testaments made to their prejudice, in which no cause or an unjust cause of exheredation was assigned. The birth of a child which the testator did not foresee, revoked the whole testament (Dig., Lib., 28 Tit., 3, § 3), as well the legacies, as the institution of an heir; for, as justly observed by Domat, “ if the testator had foreseen the birth of this child, he would have burdened the succession with fewer legacies, or perhaps would have left none at all.” (Domat, § 3132). For the same reason, the birth of a child revoked a codicil, where there was both a testament and a codicil; and yet it seems that when there was only a codicil and not a testament, the birth of a child did not annul it, because dying without a testament, the deceased intended to leave his succession to bis heir-at-law, whoever he might be, burdened with the codicil. Domat questions the equity of this rule, instancing, as illustrative of its injustice, the case of an unmarried man making a codicil disposing of the greatest part of his estate, and willing to leave the small remáinder to a collateral heir, and afterwards marrying, *345having children, and dying without revoking the codicil, either through forgetfulness or because surprised by death.
On examining how far these doctrines of implied revocation were recognized in England, we find that the ecclesiastical courts very early adopted the rule that marriage and the birth of a child revoked a will of personalty; and the same principle was ultimately, but not without a struggle, applied to devises of real estate. Finally, it was held that it was not necessary that a subsequent marriage and birth of a child, should both concur, but that the birth of a child alone, in connection with other circumstances, might be sufficient to raise an implied revocation. (Johnston vs. Johnston, 1 Phill., 447 ; Marston vs. Fox, 8 Ad. & E., 14.) There is so much sound wisdom and natural equity in this conclusion, that it has been received very generally, and with various modifications been adopted in the statutes of nearly all the States, either to the extent of revoking the will entirely, or pro ta/nto, so as to let in the children born after the will was made.
Lord Mansfield (Kenebel vs. Scrafton, 2 East., 541; Brady vs. Cubitt, Doug., 31); and Lord Ellenborough considered the revocation as operating only when there was a total disposition of the estate; the nomination of an executor being taken, in analogy to the Eoman law, as constituting such a total disposition so far as relates to personalty. But a will disposing only of personalty, and leaving the real estate to descend to the heir-at-law, would be revoked by marriage and the birth of children; and a will giving a few legacies, appointing an executor, and leaving the bulk of the personalty undisposed of, would also be revoked by the same events; and yet in each case there would be property descending to the heir or next of kin, as in case of intestacy. The rule originally prevailed in the ecclesiastical courts, by adopting the doctrine of the civil law, that the institution of an heir or executor was a total disposition ; but as the executor is now bound to distribute *346the residue remaining after the payment of debts and legacies, among the widow and next of kin, a will appointing an executor does not in reality dispose of the whole estate; and yet such a will would be revoked by marriage and the birth of children, according to the common-law rule. A will containing partial dispositions, therefore, may be revoked by such circumstances, provided an executor be nominated. Hay it not be justly asked, then, whether the question of revocation must depend upon a rule now entirely artificial—upon a mere form which has been stripped of its original quality, the total disposition of the estate, and now has no other force than to constitute a trustee for the benefit of those entitled to the succession ?
There might be cases where so small a portion of the estate was disposed of by legacy or devise, that it would be unreasonable to imply an intention to revoke in case of the subsequent birth of children ; and again, there may be cases where the whole estate is so nearly, but not entirely, given away, that the implication of intention to revoke in case of the birth of children, would be very strong. This question might become important under the laws of this State, which have let in a posthumous child to a share of the parent’s estate, whether the disposition by will was partial or total; but not having subjected a donatio causa mortis to the operation of the same provision, a man might marry, have no children, and make large dispositions by gifts causa mortis, perhaps exhausting his property, and yet a posthumous child be without remedy, unless on the doctrine of an implied revocation.
Gifts causá mortis are of a mixed nature: they partake of the character of gifts inter vivos, from delivery, which is essential to their validity; and yet this single feature, assimilating them to ordinary donations, merely characterizes the mode of the thing, and not its type and quality.— Though in form they are gifts,'—so in fact are legacies ; the difference being that in the former case there *347must be delivery, and though the gift may be resumed by the donor taking possession, it cannot be revoked by a will, bnt is claimed against, and not through, the executor or administrator. The truth is, a will under our laws, is substantially a donatio mortis eausá, that is, a gift to take effect on death, the donation being completed by the act of the executor or administrator. A real donatio ecmsá mortis is made, by the donor being his own executor. There is no difference in the nature of these things, but only in the incidents flowing from the method of giving title. A donatio mortis eausá has the substantial qualities of a legacy in being ambulatory or revocable. Its completion is conditioned or contingent upon death. It may be reclaimed or revoked during the donor’s life. It is subject to the debts of the deceased, and, in England, has been declared by statute to be liable to legacy duties. (Bunn vs. Markham, 7 Taunt., 231; Drury vs. Smith, 1 P. Wms., 406 ; 2 Vesey, Sen., 434; Tate vs. Hilbert, 2 Vesey, Jun., 120.) In one of the earliest cases, Lord Cowper, in defining this gift, says, if the donor “ dies, it shall operate as a legacy.” (Hedges vs. Hedges, Prec. Ch., 269.) By the civil law, if the donee died before the donor, the gift lapsed (Inst., Lib. 2, Tit. 7, § 1). Before the time of Justinian, there was some doubt as to the true character of these donations, some classing them with last wills and legacies, others with donations inter vivos ; and to resolve this, it was determined they should be treated as legacies. Hce mortis eausá donationes ad exernplum legatorum redr actee sunt per omnia. (Inst., Lib. 2, Tit. 7, § 1; Cod., Lib. 8, Tit. 57, § 4). It also appears that by the civil law, donations inter vivos were revoked if the donor had no children, and happened to have' children born to him afterwards. (Cod., Lib. 8, Tit. 56, § 8; Domat, § 8 ; 2 Burge, Com., 147.) By the French code, ordinary donations are absolutely revoked by the birth of children. (2 Burge, 205.) ' In the State of Connecticut, by the law of which State this ques*348tion must be determined, the statute has adopted the broad rule, that “ a will ” is revoked by the birth of a child if no provision is made in the will for that contingency. It is not necessary that the will shall dispose of the whole estate. All wills are revoked by the birth of a child —all legacies—all testamentary dispositions, total or partial. (Revised Statutes of Connecticut, 1849, Title xiv, Ch. 1, § 6.) Having recognized this rule in relation to written bequests, the same principle may justly be applied to donations causó mortis, a form of gift in view of death, by no means of so solemn and deliberate a character as a will.— In the nature and reason of things, there seems no substantial ground for not applying the same principle to unwritten as to written legacies, so far as relates to an implied revocation by the birth of a child. Having attained the point that by the law of the testator’s domicil, a total disposition is not essential for the application of the doctrine of implied revocation, there is nothing in the way of applying that rule alike to gifts in view of death, by parole and delivery, or by written instrument. I am of opinion, therefore, that the claim made on the ground of this alleged donatio mortis causó, should be rejected.
It appears that, before the will was denied probate in the State of Connecticut, the executrix, acting under the directions contained in the will, paid out of the personal estate, a mortgage on some lands at Greenwich. This payment having been made in good faith (2 R. S., p. 63, § 38, p. 78, § 46, p. 79 §47), must be allowed, and the legatees and next of kin will have their claim against the land, for the sum so paid.