112 N.Y.S. 941 | N.Y. App. Div. | 1908
Lead Opinion
This is an appeal from & decree of the Surrogate’s Court admitting to probate two instruments, executed in the city of Paris, France, in accordance with the forms required by the laws of the State of Hew York for the execution of testamentary instruments,
The learned surrogate declined to- receive evidence offered on the question of domicile, stating: “ I will assume he was domiciled in France. I will assume it for the purpose of my decision, and if I am reversed, the appellate court will of course send it either to this tribunal or to another for a re-trial of that issue.”
It is conceded that the decedent left personal property within the county and State of Hew York. It is conceded that the papers offered for probate were not executed in accordance with the laws of the republic of France so as to permit 'their probate in that country. There was nothing to show, other than the declaration in the will contained, that the decedent was a.citizen of the United States. The sharply-defined question presented by this record is this: Is an instrument formally executed with the forms and in the manner required by the Hew York law disposing of personal property, there being personal property of the decedent within the State, admissible to probate as a will of personal property, regardless of the testator’s domicile ?
Section 2611 of the Code of Civil Procedure, entitled “ What wills may be proved,” provides that “ A will of real or personal' propérty, executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, executed by a person not a resident of the State, according to the laws
This section authorized the probate of the will in question under the first classification therein contained : “A will of * * * personal property, executed as prescribed by the laws of the State,” unless this section is governed and controlled by the ¡irovisions. of section 2694 of the Code of Civil Procedure, which provides as follows : “ The validity and effect of a testamentary disposition of real . property,, situated within the State, or of an interest in real property so situated, which would descend to the heir of an intestate and the manner in which such property or such ah interest descends, where it is not disposed of by will,’ are regulated by the laws of the State, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and.effect of a testamentary disposition of any other prop- ■ ert-y situated within the State,, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of 'the State or country, of which the decedent was a resident, at the time of his death.”
The appellants claim that the words “ the validity and effect of a testamentary disposition * * * are regulated by the laws of the State or country of which the decedent was a resident at tlie time of his death” control those formalities required to prove the factum of the will, as well as the interpretation of its terms. If this be so, the elaborate scheme governing the probate of wills executed without the State of Kew York, collected and crystallized in section 2611, is abrogated and destroyed, and the only test to be applied to the question of whether a will should be admitted to probate is, was it executed in accordance with the laws of the State or donntry of which the decedent was a resident at the time of his death ?
This construction would make but one rule applicable to all cases, and would repeal that provision of section 2611, which was first enacted by chapter 118 of the Laws of 1876, providing that a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed may be proved. But the lan
■ So that it is quite apparent, as it seems to me, that if section 2694 is to be regarded as governing in any way questions as to the form of the execution of a testamentary document, the words ‘‘ except where special provision is otherwise made by-law” expressly limit its effect and leaves section 2611 in full force and effect as the only provision of the statute determining what wills may be proved.
That section, was construed shortly after its passage by the General Term of the fourth department in Matter of Seabra (18 Wkly. Dig. 428) in 1884. The probate of a will was opposed on the ground that, at the time of the execution of the will and death of the testatrix, she was a citizen and resident of and domiciled in Portugal, and that the will was not executed in accordance with the laws of that country. The court said : “ The law has not always been the same, but now the will of a non-resident, without regard to the place of its execution, or the place of thé testator’s death, may be admitted to probate if.the same be executed in pursuance of the laws of this State, or as prescribed by the laws of the testator’s residence.”
Surrogate Rollins had the same question before him, in 1886, in ■ Matter of McMulkin (5 Dem. 295). In that matter the decedent died in Scotland. The paper was executed in Scotland, and the decedent was there a resident at the time of its execution'. Its execution was fatally defective under the laws of that country.
The court said: “ I am asked by all parties interested to determine whether, upon this state of facts, it must necessarily be denied probate, even though it was executed in manner and form as prescribed by our Statute of Wills. * * * It is argued with much ingenuity that the first clause of the section above quoted [Code Civ. Proc. § 2611] was not intended to cover wills of non-residents without this State, and that in passing upon the sufficiency of the
I have found no case, since the passage of the provision under consideration, where a will duly executed according to the laws of this State has been denied probate upon the ground that It has not been executed according to the laws of decedent’s domicile.
Section 2611 clearly provides for three classes of cases, and the clause providing for each of the classes is divided from the following clause by the disjunctive word “ or.” First, a will is to be admitted to probate it executed as prescribed by the laws of the State ;• second, or a will of personal property executed without the State and within the United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland, as -prescribed by the laws of the State or country where it is or was executed; third, or a will of personal property executed by a person not a resident of the State, according to the laws of the testator’s residence.
We are dealing in this section with the question of proof, the question of authenticity of the expression of the last will and testament of- the decedent. Upon what proof will our courts say that an instrument is the true expression of the dead man’s wishes? First, and in any event, we will accept it if executed according to our laws which we have determined sufficiently safeguard the authenticity of the instrument; second, if the will was made in certain specified countries, if executed according to their lawsand, thirds if of a non-resident, according to the laws of his residence. Any other view, it seems to me, would do violence to tne plain language of the statute and to" its historic growth.
Laughlin and Scott, JJ., concurred; Patterson, P. J., and Ingraham, J., dissented. '
See 2 R. S. 63, § 40.— [Rep.
Dissenting Opinion
For the purpose of this appeal the testator whose will has been admitted to probate must be considered to be a non-resident of this State jmd domiciled in the city of Paris in the Republic of France. He' died in France where he had resided for upwards of forty years, leaving an instrument executed there with the formalities required by the laws of this State as a last will and testament, but which was nvalid under the laws of France, the place of his domicile. Fie left personal property within this State and his will was offered for probate here. The question arises as to the proof required of the execution of a will of a non-resident under sections . 2611 and 2694 of the Code of Civil Procedure to admit such a will to probate.
It seems to me that it must be conceded that the admission of a will to probate and the. grant of letters thereunder is an adjudication that the decedent djed testate and not intestate. By the judicial act of admitting a will to probate and the grant of letters testamentary . the personal property of the testator passes to his executors to be held by them and distributed- according to the terms of the will if valid by the laws of this State. Section 2611 of the Code of Civil Procedure relates directly to the probate of such instruments and the difficulty in its construction has resulted from combining in one section various independent statutes having relation to the probate of wills by the passage of the Code of Civil Procedure. It is there provided that a will of real or personal property “ executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country whére it is or was exe
In the re-enactment of this statute in the Code of Civil Procedure the revisers stated that the only amendment that was proposed Wás to allow a will of personal property to be proven which is executed according to the laws of the testator’s residence wherever it may have been executed.- As the act of 1876 was confined to wills exe
To ascertain just what was intended by this provision there should be read in connection with it section 2694 of the Code of Civil Procedure. According to the reviser’s notes to this section (Throop’s Anno. Code Civ. Proc. [1892 ed.] § 2694, note) it was passed as declaratory of the rule of law and inserted in accordance with the preliminary note to article 1 of title 3 of chapter 18 of the Code, which is the article in which section 2611 is contained! It is there provided that the validity and effect of a testamentary disposition of personal " property situated within the State, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the State or country of which the decedent was a resident at the time of his death. Reading these two sections together I think the intent of the Legislature was to provide that a will of real or personal property executed by a resident of this State or executed within this State should be admitted to probate when executed as prescribed by the laws of this State; that a will of personal property executed without the State and within the United States of America, the Dominion of Canada, or the Kingdom of Great Britain and Ireland as prescribed by the laws of the State or country where it is or was executed may be admitted to probate, and a will of personal property executed by a person not a resident of the State according to the law of the testator’s domicile may be admitted to probate. The 1st clause of section 2611 provides for admitting a will to probate made by a person domiciled in this State, or where the will was executed in this State. The 2d provision applies to wills executed' in other States of the Union, tiie Dominion of Canada, or the Kingdom of Great Britain and Ireland, as provided in the 1st section of the act of 1876, and the 3d provision was inserted to allow a will of personal prop-x erty to be proved which was executed according to the law of the testator’s domicile.- In view of the provisions of section 2694 it could not have been intended to admit to probate the will of a per
In an application to admit an instrument purporting to he a last will and testament to probate, necessarily the first question presented is whether the deceased died testate'or intestate, and that necessarily depended upon the question as to whether the instrument propounded for probate was executed according to the law of the testator’s domicile. It is a universal principle that personal property has no situs except the domicile of its owner, and as was said by Sir Lancelot Shadwell in Price v. Dewhurst (8 Simons, 279): “ I apprehend it is now clearly established by a great variety of cases which it is not necessary to go through in detail, * * * that the rule of law is this, that where a person. dies intestate, his. personal estate is to be administered according tq the law of the country in which he was domiciled at the time of his death, whether he was a British subject or not; and the question whether lie died intestate or not must be determined' by the law of the same country.” In Desesbats v.’ Berquier (1 Binn. [Pa.] 336), in an opinion by Yeates, J., in which all of the English cases and the authorities upon the law of nations were examined, it was declared to be the settled law that “the succession to the personal estate of an intestate is to be regulated by the law of the country in which-he was a domiciled inhabitant at the time of his death,” and that the same rule prevailed with respect to last wills. In Stanley y. Bernes (3 Hag. 373) it was decided that if a testator, “ though a British subject, be domiciled abroad, he must conform jn his testamentary acts to the formalities required by the lex domicilii.
The question presented to the surrogate on the probate of the will was whether the will was executed with the formalities required by the laws of this State to make it a valid disposition of real or jrersonal property, and by section 2626 of the Code of Civil Procedure a decree admitting to probate a will of personal property made as prescribed in this article is conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article until it is reversed upon appeal or revoked by the surrogate. . If the will is admitted to probate, I do not see how the court can say that the will was not' executed so as to be a valid testamentary distribution of personal property within this State. ' It seems to me that the whole system prescribed by the Code of Civil Procedure for the probate of wills is opposed to this construction of the statute given by the prevailing opinion, and the will, not having been executed according to the law of the testator’s domicile, and not having been executed within this State, should not have been admitted to probate.
Patterson, P. J., concurred.
Decree modified as provided in opinion, and as modified affirmed with costs to respondents. Settle order on notice.
