8 Paige Ch. 519 | New York Court of Chancery | 1840
The petition presented to this court, in February last, by the surviving brothers and sisters of Catherine Roberts, shows that all the next of kin who would be entiled to share in her estate, in case of an intestacy, except the children of her deceased brother W. Calf, are willing and anxious that this will and codicil should be established. It further appears, by the affidavit of the proponent, that he and the other surviving brothers and sisters have executed an assignment for the benefit of those children ; putting them upon the same footing in reference to the estate, as if their father had survived Mrs. Roberts, so as to take his share of the estate under the will. Under such circumstances, the statute having authorized the court, in its discretion, to dispense with a notice to the next of kin where a notice should be deemed unnecessary, I shall discharge the order for an issue, and proceed to decide the question as to the validity of the will and codicil; without any further notice to the next of kin of the decedent who are out of this country. But as the personal representatives of the deceased administrator have had no notice of this application, the order for the issue must be discharged without prejudice to their right, upon the settlement of his account as the administrator of the estate of Mrs. Roberts, to claim such compensation as he may have been equitably entitled to, if any, for expenses incurred by him in resisting the probate of this will and codicil ; in case it shall appear that such expenditures were made in good faith, and upon reasonable grounds of belief
The facts of the case, as established by the testimony taken under the commissions and letters rogatory, which have been duly executed in the island of Cuba, are substantially as follows : Cornelius Roberts and his wife, who were natives of Great Britain, went to Cuba more than thirty years since, where they became domiciled, and were the owners of two or three coffee and sugar plantations, in succession. In 1832 or 1833, they left Cuba for the purpose of visiting their native country. But it does not appear that they at that time contemplated a permanent removal from the island, either for the purpose of resuming their domicil of origin or of settling elsewhere ; though they disposed of most of their property before they left; leaving, however, their house fitted up and in a situation to be occupied by them on their return. As there is no evidence of intention to abandon their acquired domicil, at that time, the legal presumption is that such domicil continued, as well after as before they left it upon their last visit to their native country. Indeed, the evidence show that at that time they contemplated a return there to reside; or at least, that they had not then made up their minds to change their domicil. They subsequently came to New Brighton, on Staten Island, where both remained some time; and the husband finally died there, about the close of the year 1837, after his wife had returned to Cuba to see to their property which remained at that island. The testimony leaves it uncertain whether the husband and wife, previous to his death, had abandoned the intention of returning to Cuba to reside, and had concluded to fix their residence in this state ; though it appears that the existence of the Asiatic cholera at the Havana was probably the reason why they did not, upon their return from England, go directly there. It is probably unnecessary to decide the question whether the domicil of the husband was in fact changed from Matanzas, to New Brighton; where he was either temporarily or permanently located at the time of his
These were not mere declarations of a future intention to change an actual residence, from Staten Island to the island of Cuba, for the purpose of changing her domicil. Such declarations, I admit, would not, without an actual removal from the former place of residence, be sufficient to constitute a change of domicil. But in this case, it must be recollected, that at the time the declarations were made
There appears to be some difference of opinion, among foreign jurists, whether a will of personal estate, or moveable property as it is called by the civilians, in which the testator has complied with the forms and solemnities required by the lex loci actus, is a valid testamentary disposition of such property ; although, in the form of its execution, such will does not conform to the requirements of the law of the testator’s domicil. The better opinion.
Our revised statutes seem to contemplate the validity of a will of personal property, by a citizen of this state, if made in conformity to the requirements of our law ; although executed out of this state, and in a place where the local laws require the adoption of a different form. This appears to be a distinct recognization of the principle that the will may be valid, if made and executed in conformity with the law of the testator’s domicil. (2 R. S. 2d ed. p. 12, § 69.) The statute also, in express terms, authorizes a will personally executed out of the state, by a person not domiciled here, to be admitted to probate, provided it is duly executed according to the laws of the state or country where the same was made ; and prohibits all other foreign wills from being admitted to probate, under the special provisions incorporated into the statutes by the amendments of April, 1830. As those provisions refer to the mode of establishing foreign wills under a commission to be issued by this court, or upon the production of the foreign probate, alone to the surrogate without further proof, they do not necessarily exclude the idea that a will of personal property made by a testator domiciled abroad may be valid, if executed according to the law of his domicil;
The conclusion at which I have arrived, in relation to the actual domicil of Mrs. Roberts at the time of executing her will and codicil, steers clear of any of these questions ; which must have arisen if it had appeared, from the evidence, that she had abandoned her domicil in Cuba for the purpose of resuming her domicil of origin in England, or that she had fixed her permanent residence in this state. Here the lex loci actus and the lex domicilii are the same; and they concur with the lex fori in declaring that the instruments propounded, as the will and codicil of the decedent, were valid testamentary dispositions of her personal estate. And they are entitled to probate here, under the commissions and letters rogatory, issued in this case, which have been executed under the authority of this court.
The usual decree must therefore be entered, establishing the authenticated copies of those instruments, which were returned with the first commission, as the last will and testament of the testatrix in relation to her personal estate ; and directing that such decree be transmitted to the surrogate of the county of Richmond, that he may record the same ; and directing him to issue letters testamentary or of administration thereon, in the same manner as if the said will and codicil had been duly proved before him.