Irwin's Appeal from Probate

| Conn. | Oct 15, 1865

Butler, J.

We can not assent to the proposition that, irrespective of the statutes of 1856 and 1863, a will of personal estate, executed in another state according to the laws of that state but not of this, by a testator then domiciled there, who afterwards removed into this state and became domiciled and died here, is valid.

The disposition of property by will is peculiarly and necessarily a matter for local statutory regulation wherever the English common law prevails. The rules of that law which provided for and controlled such disposition were early found inadequate to protect a testator or his heirs against fraud, undue influence and imposition. To remedy some of its defects the act of 29 Charles II, chap. 3, was enacted, and from that time in England and in the states of this country such disposition of property has been regulated by statutory provision, more or less stringent in different states according to the views entertained of that necessity. As a rule those provisions are not only directory but prohibitory and exhaustive ; and such was the character of our statute of wills prior to 1856. That of 1848, the last adopted and which is still in force, provides that “ all wills shall be in writing, subscribed by the testator and attested by three witnesses, all of them subscribing in his presence ; and no will or codicil shall be valid to pass any estate real or personal, unless it shall be so executed,” and it contains no exception of any will which should be thereafter made. Here then we have a statutory provision, too explicit to require construction or admit of exception, which it was competent for the legislature to pass, and in respect to a subject matter which it was their imperative duty to regulate, and which they obviously undertook to regulate fully and exhaustively, -which declares not only how all wills of property subject to our own laws shall be made, but also declares that none shall be valid unless so executed ; and the will of Mr. Irwin was not executed in conformity to it. Upon what principle or by what authority could we hold that will valid in the face of that statute if there were no other applicable to it ? We know of none and there is none ; and it is perfectly immaterial what force there may be in the argument ab inconveniently or what continental or other courts have held, or civilian jurists or writers on international law have said in respect to what equity and comity require. We must administer our local law as made, and if the property of Mr. Irwin was so within our jurisdiction as to be subject to our law, and the statute of 1848 is applicable to it, we must hold the will void ; for it is very clear'that if there be any rule of international law which would sustain it, which was recognized here before the act of 1848 was passed, that act abrogated it, and forbade any further recognition of it. Was then the personal estate of Mr. Irwin subject to our laws ?

It is conceded that the real estate of the testator situate in this state is so fixed and immovable and a part of our own territory as to be necessarily subject exclusively to our laws, and that the will would be ineffectual to pass any title to that under the general statute. But that is also true, so far as it can by possibility be true, of his personal estate. It is a rule of international law originated by the necessities of commercial intercourse, founded on the fiction that movable property wherever situate is in the actual possession of the owner at his domicil, and universally accepted by comity with all the force of domestic law, that the personal property of every man is subject to the law of his domicil. All tranfers of that property conferring a title, whether inter vivos or testamentary, or by the law regulating intestacy, if valid by the law of the domicil are valid every where. Exceptions have been attempted in respect to titles by testacy and the law regulating intestacy under the mistaken idea that to recognize such title would be to give an extra-territorial operation to a foreign law. But that is not the ground or effect of such a recognition of the title of a foreign executor or administrator, any more than it is of a title derived directly from the foreign citizen when in life. The recognition in either case is of a title • merely, the validity of which is determined by the domestic law, but which is recognized in obedience to a rule of international law of universal application and acceptance. True, the foreign creditor citizen has a right to have the property situate in the foreign jurisdiction appropriated there to the payment of his debt and to take administration for that purpose ; and for his protection the courts of such foreign state will refuse to aid the executor or administrator in collecting or removing such property unless he take ancillary administration and thereby secure the rights of the creditor citizen. But that right of the creditor citizen and that refusal of the courts are not based on a denial of the title of the executor or administrator. They do not prevent it from being voluntarily and safely recognized by others in the foreign jurisdiction who were the debtors or held the property of the deceased. And if ancillary administration is taken by the creditor in the foreign state he is. but the deputy or agent of the domestic administrator. And if there is a deficiency of assets in either jurisdiction all the property is divided among the creditors in both jurisdictions equally, and if there is a surplus in the foreign jurisdiction it is remitted to the domestic administrator, or distributed there in recognition of and in subordination to the title and rights conferred by the will or the law of the domicil. Marcy v. Marcy, 32 Conn., 308" court="Conn." date_filed="1864-11-15" href="https://app.midpage.ai/document/marcy-v-marcy-6578274?utm_source=webapp" opinion_id="6578274">32 Conn., 308.

Such being the rule respecting the situs of personal estate and the test whether it is subject to our law or not, it is clear that the personal estate intended by the statute is that which belongs to a domiciled inhabitant, and as it is found that Mr. Irwin was domiciled here at his death, his will is within the purview of the statute of 1848.

Nor could we assent to the proposition if the statute was not prohibitory, for there is no rule of international law nor any equitable principle which would require or justify it.

Such a rule undoubtedly prevails as a domestic one in some of the countries of Europe whose jurisprudence is modeled upon the civil law, and many civilian jurists and writers on international law have expressed the opinion that such ought to be the rule every where ; but it has not been. adopted in any state or country where the English common law constitutes the unwritten law. On the contrary it has been repudiated in every case in England and in this country where the question has been passed upon authoritatively by a court of last resort. It was repudiated by Judge Story in his Conflict of Laws, notwithstanding his leaning to the civil law, and is repudiated by Judge Redfield, now one "of the ablest jurists of the country, in his standard work upon wills. It has never had a foothold in either the English or American courts, and it never can have ; for, as we have said, the laws regulating testacy and intestacy must necessarily be statutory wherever the common law prevails, and will be of varied stringency, and the rule, if otherwise general and worthy of recognition, could not be introduced by the courts. Nor is there any good reason for the adoption of such a rule.

An effort was made in the recent case of Moultrie v. Hunt, cited from the 23d New York to -show, and it has also been insisted in this case, that such,a will was within the rule that transfers of personal estate “ inter vivos” or testamentary, good by the laws of the domicil, were good every where, on the ground that a will as soon as executed according to the law of the domicil was “ a perfected transaction.” But a majority of the court met the claim with the answer that, although perfected as an instrument (like a bond or other instrument perfected but not delivered) so that it could take effect ultimately if the legislature did not alter the requirements of the law and so avoid it, or if the testator did not alter his mind and revoke it, and upon the event of death, it was not an operative instrument, and therefore not within the scope of the rule, for that the rule regarded and embraced the effect upon the title to property or rights of an instrument which had become operative and produced an effect, and did not regard' such a mere unexecuted intention, evidenced by an executed but still inoperative paper. To this it may be added that the ultimate operation of such a paper is contingent in still another and most important particular, viz.: that the maker shall not divorce himself and his property from the law which directed the formalities by which it was executed, and subject that property and himself to other and different laws, requiring different formalities, by a change of domicil. For if he does so divorce himself and his property from the law of the domicil where his will is made, and subjects both to a different law, by a change of his domicil, he voluntarily prevents it from becoming operative at his death by force of the very rule of international law which it is claimed should sustain it.

There are equitable considerations in favor of the wills of domiciled inhabitants of this state who are suddenly called upon, when out of the state on business or pleasure, to make a will, and, ignorant of the requirements of our law, or misinformed respecting it, or too ill to comprehend fully and trust, ing to others, make a will which is prepared for them in conformity with the law of the place of their temporary sojourn. ■But such considerations should be and have been successfully addressed to the legislature and not to the courts. There is no other or peculiar equity in favor of the will of a man who voluntarily and deliberately changes his domicil and subjects his property to another law and thereby prevents the operation of the will he has made. It is said it is tantamount to a revocation and that is true ; but it is the legal consequence of his voluntary act. It is further said it was not his intention that it should be revoked. That may be true in fact, but he intended the a,ct of which it is a consequence, and there is no sufficient reason why the maxim that ignorance of the law doth not excuse should not apply as in other cases. It is said by some continental jurists that he ought not to be subjected to the inconvenience of making another will, hut that reason does not deserve a moment’s consideration when addressed to the court. If he takes a new domicil, he should learn its laws and conform to them in respect to his will as in other things, and not expect that these laws will be suspended in respect to him, to suit his convenience, or because of his ignorance of them or his inattention to them. The law as administered by us must regard the will of such a man as it regards those of every other domiciled inhabitant, and can take no note of the time when or manner in which he became such inhabitant.

But we are satisfied that the will in question is within the purview of the statute of 1856 and valid.

That statute is peculiar, ambiguous and open to criticism, and it has been severely criticized. It is impossible to get a clear view of the intention of the legislature from the mere language used. But when we look also, as we should look, at the object and purpose, the mischief and the remedy, and especially when we give due consideration to the act of 1863 as, by implication, declaratory of the intention.of the legislar ture of 1856 in passing the act, we are satisfied that it was the intention of that legislature to give all wills executed out of the state, according to the formalities required by the law of the place where executed, and whether of real or personal estate, the force and effect of domestic wills to pass all the property situate in this state.

A new trial should be denied.

In this opinion the other judges concurred.