23 N.Y. 394 | NY | 1861
Lead Opinion
One of the requisites to a valid will of real or personal property, according to the Revised Statutes, is, that the testator should, at the time of subscribing it, or at the time of acknowledging it, declare, in the presence of at least two attesting witnesses, that it is his last will and testament. (2 R.S., p. 63, § 40.) The will which the Surrogate of New York admitted to probate, by the order under review, was defectively executed in this particular — the only statement which the alleged testator made to the witnesses being that it was his signature and seal which was affixed to it. It was correctly assumed by the Surrogate in his opinion, and by the Supreme Court in pronouncing its judgment of affirmance, that the instrument could not be sustained as a will under the provisions of the Revised Statutes, but that, if it could be upheld at all, it must be as a will executed in another State, according to the law prevailing there; and, upon that view, it was established by both these tribunals as a valid testament. In point of fact the instrument was drawn, signed and attested at Charleston, in South Carolina, where such a declaration of the testator to the witnesses, as has been mentioned, is not required to constitute a valid execution of a will. Mr. Hunt, the alleged testator, resided at that time in Charleston; but, some time before his death, he removed to the city of New York, and he continued to reside in that city from that time until his death. The will was validly executed, according to the laws of South Carolina. *396
Although the language of our statute, to which reference has been made, includes, in its generality, all testamentary dispositions, it is, nevertheless, true, that wills, duly executed and taking effect in other States and countries according to the laws in force there, are recognized in our courts as valid acts, so far as concerns the disposition of personal property. (Parsons v. Lyman,
If the alleged testator in the present case had continued to be an inhabitant of South Carolina until his death, we should, according to this principle, have regarded the will as a valid instrument, and it would have been the duty of our probate courts to have granted letters testamentary to the executors named in it. The statute contemplates such a case when it provides for the proving of such wills upon a commission to be issued by the Chancellor, and for granting letters upon a will admitted to probate in another State. (2 R.S., p. 67, §§ 68, 69.) These provisions do not profess to define under what circumstances a will made in a foreign jurisdiction, not in conformity with our laws, shall be valid. It only assumes that such wills may exist, and provides for their proof.
The question in the present case is, whether, inasmuch as the testator changed his domicil after the instrument was signed and attested, and was, at the time of his death, a resident citizen *397 of this State, he can, within the sense of the law of comity, be said to have made his will in South Carolina. The paper which was signed at Charleston had no effect upon the testator's property while he remained in that State, or during his lifetime. It is of the essence of a will that, until the testator's death, it is ambulatory and revocable. No rights of property, or powers over property, were conferred upon any one by the execution of this instrument; nor were the estate, interest or rights of the testator in his property in any way abridged or qualified by that act. The transaction was, in its nature, inchoate and provisional. It prescribed the rules by which his succession should be governed, provided he did not change his determination in his lifetime. I think sufficient consideration was not given to this peculiarity of testamentary dispositions, in the view which the learned Surrogate took of the case. According to his opinion, a will, when signed and attested in conformity with the law of the testator's domicil, is a "consummate and perfect transaction." In one sense it is, no doubt, a finished affair; but I think it is no more consummate than a bond would be which the obligor had prepared for use by signing and sealing, but had kept in his own possession for future use. The cases, I concede, are not entirely parallel; for a will, if not revoked, takes effect by the death of the testator, which must inevitably happen at some time, without the performance of any other act on his part, or the will of any other party; while the uttering of a written obligation, intended to operate inter vivos, requires a further volition of the party to be bound, and the intervention of another party to accept a delivery, to give it vitality. But, until one or the other of these circumstances — namely, the death, in the case of a will, or the delivery, where the instrument is an obligation — occur, the instrument is of no legal significancy. In the case of a will it requires the death of the party, and in that of a bond a delivery of the instrument, to indue it with any legal operation or effect. The existence of a will, duly executed and attested, at one period during a testator's lifetime, is a circumstance of no legal importance. He must die leaving *398 such a will, or the case is one of intestacy. (Betts v.Jackson, 6 Wend., 173-181.) The provisions of a will made before the enactment of the Revised Statutes, and in entire conformity with the law as it then existed, but which took effect by the death of the testator afterwards, were held to be annulled by certain enactments of these Statutes respecting future estates, notwithstanding the saving contained in the repealing act, to the effect that the repeal of any statutory provision shall not affect any act done, c., previous to the time of the repeal. (De Peyster v. Clendining, 8 Paige, 295; 2 R.S., p. 779, § 5; Bishop v. Bishop, 4 Hill, 138.) The Chancellor declared that the trusts and provisions of the will must depend upon the law as it was when it took effect by the death of the testator; and the Supreme Court affirmed that doctrine. There is no distinction, in principle, between general acts bearing upon testamentary provisions, like the statute of uses and trusts, and particular directions regarding the formalities to be observed in authenticating the instrument; and I do not doubt that all the wills executed under the former law, and which failed to conform to the new one, where the testator survived the enactment of the Revised Statutes, would have been avoided, but for the saving in the 70th section, by which the new statute was not to impair the validity of the execution of a will made before it took effect. (2 R.S., p. 68.) If, as has been suggested, a will was a consummated and perfect transaction before the death of a testator, no change in the law subsequently made would affect it — the rule being, that what has been validly done and perfected respecting private rights under an existing statute is not affected by a repeal of the law. (Reg. v. The Inhabitants ofDenton, 14 Eng. L. Eq., 124, per Lord CAMPBELL, Ch. J.)
If then a will legally executed under a law of this State, would be avoided by a subsequent change made in the law, before the testator's death, which should require different or additional formalities, it would seem that we could not give effect to one duly made in a foreign state or country, but which failed to conform to the laws of this State, where, at the time *399 of its taking effect by the testator's death, he was no longer subject to the foreign law, but was fully under the influence of our own legal institutions. The question in each case is, whether there has been an act done and perfected under the law governing the transaction. If there has been, a subsequent change of residence would not impair the validity of the act. We should be bound to recognize it by the law of comity, just as we would recognize and give validity to a bond reserving eight per cent interest, executed in a State where that rate is allowed, or a transfer of property which was required to be under seal, but which had in fact been executed by adding a scroll to the signer's name in a State where that stood for a seal or the like. An act done in another State, in order to create rights which our courts ought to enforce on the ground of comity, must be of such a character that if done in this State, in conformity with our laws, it could not be constitutionally impaired by subsequent legislation. An executed transfer of property, real or personal, is a contract within the protection of the Constitution of the United States, and it creates rights of property which our own Constitution guarantees against legislative confiscation. Yet I presume no one would suppose that a law prescribing new qualifications to the right of devising or bequeathing real or personal property, or new regulations as to the manner of doing it, and making the law applicable in terms to all cases where wills had not already taken effect by the death of the testator, would be constitutionally objectionable.
I am of opinion that a will has never been considered, and that it is not by the law of this State, or the law of England, a perfected transaction, so as to create rights which the courts can recognize or enforce, until it has become operative by the death of the testator. As to all such acts which remain thus inchoate, they are in the nature of unexecuted intentions. The author of them may change his mind, or the State may determine that it is inexpedient to allow them to take effect, and require them to be done in another manner. If the law-making power may do this by an act operating upon wills *400 already executed, in this State, it would seem reasonable that a general act, like the statute of wills, contained in the Revised Statutes, would apply itself to all wills thereafter to take effect by the death of the testator in this State, wherever they might be made; and that the law of comity, which has been spoken of, would not operate to give validity to a will executed in another State, but which had no legal effect there until after the testator, by coming to reside here, had fully subjected himself to our laws; nor then, until his testamentary act had taken effect by his death.
It may be that this conclusion would not, in all cases, conform to the expectations of testators. It is quite possible that a person coming here from another State, who had executed his will before his removal, according to the law of his former residence, might rely upon the validity of that act; and would die intestate, contrary to his intention, in consequence of our laws exacting additional formalities with which he was unacquainted. But it may be also that a well-informed man, coming here under the same circumstances, would omit to republish, according to our laws, his will, made at his former domicil, because he had concluded not to give legal effect, in this jurisdiction, to the views as to the disposition of his property which he entertained when it was executed. The only practical rule is, that every one must be supposed to know the law under which he lives, and conform his acts to it. This is the rule of law upon all other subjects, and I do not see any reason why it should not be in respect to the execution of wills.
In looking for precedents and juridical opinions upon such a question, we ought, before searching elsewhere, to resort to those of the country from which we derive our legal system, and to those furnished by the courts and jurists of our own country. It is only after we have exhausted these sources of instruction, without success, that we can profitably seek for light in the works of the jurists of the continent of Europe.
The principle adopted by the Surrogate is that, as to the formal requirements in the execution of a will, the law of the country where it was in fact signed and attested is to govern, *401 provided the testator was then domiciled in such country, though he may have afterwards changed his domicil, and have been at his death a domiciled resident of a country whose laws required different formalities. Upon an attentive examination of the cases which have been adjudged in the English and American courts, I do not find anything to countenance this doctrine; but much authority, of quite a different tendency. The result of the cases, I think, is, that the jurisdiction in which the instrument was signed and attested, is of no consequence, but that its validity must be determined according to the domicil of the testator at the time of his death. Thus, in Grattan v.Appleton (3 Story's R., 755), the alleged testamentary papers were signed in Boston, where the assets were, and the testator died there, but he was domiciled in the British province of New Brunswick. The provincial statute required two attesting witnesses, but the alleged will was unattested. The court declared the papers invalid, Judge STORY stating the rule to be firmly established, that the law of the testator's domicil was to govern in relation to his personal property, though the will might have been executed in another state or country where a different rule prevailed. The Judge referred, approvingly, toDesesbats v. Berquier (1 Bin., 336), decided as long ago as 1808. That was the case of a will executed in St. Domingo by a person domiciled there, and sought to be enforced in Pennsylvania, where the effects of the deceased were. It appeared not to have been executed according to the laws of St. Domingo, though it was conceded that it would have been a good will if executed by a citizen of Pennsylvania. The alleged will was held to be invalid. In the opinion delivered by Chief Justice TILGHMAN, the cases in the English ecclesiastical courts, and the authorities of the writers on the law of nations, were carefully examined. It was declared to be settled, that the succession to the personal estate of an intestate was to be regulated according to the law of the country in which he was a domiciliated inhabitant at the time of his death, and that the same rule prevailed with respect to last wills. I have referred to these cases from *402 respectable courts in the United States, beeause their judgments are more familiar to the bar than the reports of the spiritual courts in England. But these decisions are fully sustained by a series of well considered judgments of these courts. (DeBonneval v. De Bonneval, 1 Curt., 856; Curling v.Thornton, 2 Addams, 6; Stanley v. Bernes, 3 Hag., 373;Countess Ferraris v. Hertford, 3 Curt., 468.) It was for a time attempted to qualify the doctrine, in cases where the testator was a British subject who had taken up his residence and actual domicil in a foreign country, by the principle that it was legally impossible for one to abjure the country of his birth, and that therefore such a person could not change his domicil; but the judgment of the High Court of Delegates, in Stanley v.Bernes, finally put the question at rest. In that case an Englishman, domiciled in Portugal and resident in the Portuguese Island of Madeira, made a will and four codicils, all of which were executed according to the Portuguese law, except the two last codicils, and they were all executed so as to be valid wills by the law of England, if it governed the case. Letters were granted upon the will and two first codicils, but the other codicils were finally pronounced against. The Reporter's note expresses the result in these words: "If a testator (though a British subject) be domiciled abroad, he must conform, in his testamentary acts, to the formalities required by the lexdomicilii." (See, also, Somerville v. Somerville, 5 Ves., 750; and Price v. Dewhurst, 8 Simons, 279, in the English Court of Chancery.)
It is true that none of these decisions present the case of a change of domicil, after the signing and attesting of a will. They are, notwithstanding, fully in point, if I have taken a correct view of the nature and effect of a will during the lifetime of the testator. But the remarks of judges in deciding the cases, and the understanding of the Reporters clearly show, that it is the domicil of the testator at the time of his death, which is to be considered in seeking for the law which is to determine the validity of the will. Thus, in De Bonneval v. DeBonneval, the question was upon the validity of the will *403 executed in England, of a French nobleman who emigrated in 1792, and died in England in 1836. Sir HERBERT JENNER states it to have been settled by the case of Stanley v. Bernes, that the law of the place of the domicil, and not the lex loci rei sitæ governed "the distribution of, and succession, to personal property in testacy or intestacy." The Reporters' note is, that the validity of a will "is to be determined by the law of the country where the deceased was domiciled at his death."
Nothing is more clear than that it is the law of the country where the deceased was domiciled at the time of his death, which is to regulate the succession of his personalty in the case of intestacy. Judge STORY says, that the universal doctrines were recognized by the common law, is, that the succession to personal property, ab intestato, is governed exclusively by the law of the actual domicil of the intestate at the time of his death. (Conf. Laws, § 481.) It would be plainly absurd to fix upon any prior domicil in another country. The one which attaches to him at the instant when the devolution of property takes place, is manifestly the only one which can have anything to do with the question. Sir RICHARD PEPPER ARDEN, Master of the Rolls, declared, in Somerville v. Somerville, that the rule was that the succession to the personal estate of an intestate was to be regulated by the law of the country in which he was domiciled at the time of his death, without any regard whatever to the place of nativity, or the place where his actual death happened, or the local situation of his effects.
Now, if the legal rules which prevail in the country where the deceased was domiciled at his death, are those which are to be resorted to in case of an intestacy, it would seem reasonable that the laws of the same country ought to determine whether in a given case there is an intestacy or not, and such we have seen was the view of Chief Justice TILGHMAN. Sir LANCELOT SHADWELL, Vice-Chancellor, in Price v. Dewhurst, also expressed the same view. He said, "I apprehend that 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 *404 when a person dies intestate, his personal estate is to be administered according to 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 he died intestate ornot must be determined by the law of the same country." The method of arriving at a determination in the present case, according to this rule, is, to compare the evidence of the execution of his will with the requirements of the Revised Statutes. Such a comparison would show that the deceased did not leave a valid will, and consequently that he died intestate.
Being perfectly convinced that according to the principles of the common law, touching the nature of last wills, and according to the result of the cases in England and in this country which have been referred to, the will under consideration cannot be sustained, I have not thought it profitable to spend time in collecting the sense of the foreign jurists, many of whose opinions have been referred to and copiously extracted in the able opinion of the learned Surrogate, if I had convenient access to the necessary books, which is not the case. I understand it to be conceded that there is a diversity of opinion upon the point under consideration among these writers; but it is said that the authors who assert the doctrine on which I have been insisting, are not those of the highest character, and that their opinions have been criticised with success by M. Felix, himself a systematic writer of reputation on the conflict of laws. Judge STORY, however, who has wrought in this mine of learning with a degree of intelligence and industry which has excited the admiration of English and American judges, has come to a different conclusion. His language is, "but it may be asked, what will be the effect of a change of domicil after a will or testament is made, of personal or movable property, if it is valid by the law of the place where the party was domiciled when it was made, and not valid by the law of his domicil at the time of his death? The terms in which the general rule is laid down would seem sufficiently to establish the principle that in such a case the will and testament is void; for it is the law of his actual domicil at the time *405 of his death, and not the law of his domicil at the time of his making his will and testament of personal property which is to govern." (§ 473.) He then quotes at length the language of John Voet to the same general effect. It must, however, be admitted that the examples put by that author, and quoted by Judge STORY, relate to testamentary capacity as determined by age, and to the legal ability of the legatees to take, and not to the form of executing the instrument. And the Surrogate has shown, by an extract from the same author, that a will executed in one country according to the solemnities there required, is not to be broken solely by a change of domicil to a place whose laws demand other solemnities. Of the other jurists quoted by the Surrogate, several of them lay down rules diametrically opposite to those which confessedly prevail in this country and in England. Thus, Tollier, a writer on the civil law of France, declares that the form of testaments does not depend upon the law of the domicil of the testator, but upon the place where the instrument is in fact executed; and Felix, Malin and Pothier are quoted as laying down the same principle. But nothing is more clear, upon the English and American cases, than that the place of executing the will, if it is different from the testator's domicil, has nothing to do with determining the proper form of executing and attesting. In the case referred to from Story's Reports, the will was executed in Boston, but was held to be invalid because it was not attested as required by a provincial statute of New Brunswick, which was the place of the testator's domicil. If the present appeal was to be determined according to the civil law, I should desire to examine the authorities more fully than I have been able to do; but considering it to depend upon the law as administered in the English and American courts, and that according to the judgment of these tribunals it is the law of the domicil of the testator at the time of his death that is to govern, and not that of the place where the paper happened to be signed and attested, where that is different from his domicil at the time of his decease, I cannot doubt that the Surrogate and Supreme Court fell into an error in establishing the will. *406
I have not overlooked an argument which has been addressed to us, based upon certain amendments of the Revised Statutes, contained in chapter 320 of the act of 1830. The revised code of the State, as originally enacted, had omitted to make provision for the proving of wills, where the attesting witnesses resided out of the State, and their attendance here could not be procured. The Surrogates' Courts, to which they committed the proof of wills of real and personal estates, being tribunals of special jurisdiction, and having no common law powers like the Supreme Court, could not issue a commission in such cases, and hence there might often be a failure of justice. It might happen, in various ways, that the witnesses to a will would reside out of the jurisdiction of this State. If the will were executed here by a resident citizen, in the usual manner, the witnesses might change their residence and live in some other state or country, when it came to be proved; or it might be executed out of the State according to the forms prescribed by our statute of wills, by a resident of this State who was temporarily abroad. In either case the will would be perfectly valid, though the Surrogate having jurisdiction would be unable to admit it to probate for want of power to cause the testimony to be taken and returned. To remedy this inconvenience, five new sections were introduced, in 1830, by way of amendment, to the title of the Revised Statutes, respecting the proof of wills, numbered from 63 to 67, inclusive. The provision which they make is limited to the case of "a will duly executed according to the laws of this State, where the witnesses to the same reside out of the jurisdiction of this State;" and in regard to such wills, it is enacted, that they may be proved by means of a commission issued by the Chancellor upon the application of any person interested; and detailed directions are given respecting the return of the proof, the allowance of the will and the record of it in the office of the Surrogate having jurisdiction.
But, thus far, the proof of a will made in a foreign jurisdiction, according to the laws of such jurisdiction, and taking effect there by the death of the testator, was left unprovided *407 for. Such wills are perfectly valid as to personal assets in this State, as was shown in Parsons v. Lyman. We recognize the foreign will, according to the comity of nations, just as we do the rules of distribution and of inheritance of another country when operating upon a domiciled citizen of such country who has died there, leaving assets in this State. Then, as to the proof of such wills, the section following those just mentioned provides for the case in these words: "Wills of personal estate, duly executed by persons residing out of this State, according to the laws of the state or country in which the same were made, may be proved under a commission to be issued by the Chancellor, and when so proved may be established and transmitted to the Surrogate having jurisdiction," c. (§ 68.) The remainder of the section provides for the case of such a foreign will which has been proved in the foreign jurisdiction. Letters testamentary are to be issued in such cases upon the production of an authenticated copy of the will. It is clearly enough implied, perhaps, by the language of this section, that the will, to be proved and established under its provisions, and which is allowed to be executed, as to assets in this State, must be a legal will according to the law of the testator's domicil in which it was executed; but, for abundant caution, a section is added to the effect that "no will of personal estate, made out of this State, by a person not being a citizen of this State, shall be admitted to probate under either of the preceding provisions unless such will shall have been executed according to the laws of the state or country in which the same was made." (§ 69.) Chancellor WALWORTH appears to have understood the words, "a citizen of this State," as used in this section, to refer to political allegiance; and, "in the matter of Roberts' will," he held that the will then in question, executed in the island of Cuba, and which had been proved under a commission, and had been shown to be executed according to the laws of Spain, was a legal will, though the testator was a resident of this State at the time of his death. But he put the decision on the ground that the testator was a foreigner, and not a citizen, though domiciled here, and upon a verbal construction *408 of the 69th section. But Mr. Hunt, the alleged testator in the will now in question, was not only domiciled here, but he was, at his death, a citizen of this State, and, consequently, the section, as interpreted by the Chancellor, has no application to the case. He, however, fully admitted the rule of law to be as I have stated it, in cases not within the influence of the 69th section. "The provision of the Revised Statutes requiring wills of personal property to be executed in the presence of two witnesses," he says, "does not apply to wills executed out of this State by persons domiciled in the state or country where the will is made, and who continue to be thus domiciled at the time the will takes effect by death." "As the testator resided in this State at the time of his death, in 1837, this will would be valid according to the law of the testator's domicil when the willtook effect by death, if he had been a citizen at that time. But, as he was a foreigner, and there is no evidence that he was ever naturalized here, the amendments of the Revised Statutes of 1830, under which the present proceedings are instituted, expressly prohibit the admitting of the will to probate by a decree of this court, unless it was also duly executed according to the laws of the country where it was actually made." But for this case, I should have been of the opinion that the words, "a citizen of this State," as used in the 69th section, did not refer to political allegiancc, but were used in the sense of a domiciled inhabitant of this State. The meaning of the section would then be, that, if a person, other than a domiciled inhabitant of this State, makes his will out of the State, it must be executed according to the laws of the state or country where made, or it cannot be admitted to probate here, according to the preceding provisions of the act. The Chancellor seems to me to have taken the same view of the statute when passing upon the execution of the will of Catharine Roberts. (8 Paige, 519.) He says: "The statute, in express terms, authorizes a will of personalty executed out of the State, by a person not domiciledhere, 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 *409 all other foreign wills from being admitted to probate, under the special provisions incorporated into the statutes of April, 1830." The words, "a person not domiciled here," are used in the paraphrase as the equivalent of "a person not being a citizen of this State;" and I think that rendering is perfectly correct. The provisions of the act do not, in my opinion, suggest any distinction between the place where a will is actually signed and attested and that in which it takes effect by the death of the testator. They are intended to provide simply for the case of the will of a person domiciled out of the State which it is desired to prove here; and the statutory mandate is, in effect, that it shall not be established here unless it was executed according to the requirements of the foreign law.
The will under immediate consideration was not, we think, legally executed; and the determination of the Surrogate and of the Supreme Court, which gave it effect, must be reversed.
COMSTOCK, Ch. J., LOTT, JAMES, and HOYT, Js., concurred.
Dissenting Opinion
Benjamin F. Hunt, Senior, a citizen of and domiciled in the State of South Carolina, made and executed in that State, on the 14th of August, 1849, his last will and testament, according to the forms and solemnities required by the laws of that State.
The testator changed his domicil, in the winter of the year 1854, to the State of New York, and died in the city of New York in the fall of that year. His will, thus executed in the State of South Carolina, was presented for probate to the Surrogate of the county of New York, who granted letters thereon, as a will of personal estate. From that judgment an appeal was taken to the Supreme Court, which affirmed the decision of the Surrogate; and from this latter judgment an appeal has been taken to this court. The question for our decision is one of novelty and of grave importance. It is somewhat surprising that it has never been presented, in the precise form in which it now arises, for adjudication in our courts. Similar cases must have arisen; and it cannot be doubted that, hereafter, *410 as the number of States shall increase, each having its own forms and solemnities for the execution of wills, and differing from each other, as most of them do, the attention of the courts will be invoked to an investigation of the principles which should govern in the probate of wills, executed according to the forms of one locality and sought to be established in another having different forms. The precise question presented for decision in this case is, whether a will of personal estate, duly executed in conformity to the laws of the State where it was made, and in which the testator was domiciled at the time of its execution, is revoked, or rendered invalid, by a change of domicil into another State, where different forms and solemnities are required for its valid execution. This subject has received from the learned Surrogate in this case a most elaborate and careful examination, and it is difficult to add anything to the able and conclusive reasoning employed by him. The review of the principles applicable to the question, and of the authorities bearing upon it, is exhaustive and unanswerable. What is already made plain and satisfactory, can hardly be strengthened.
The rule is well settled that, to make a valid disposition of immovable property, or real estate, by deed, or by a last will and testament, the lex loci rei sitæ must govern, and the instruments must be executed in conformity to that law. So the capacity of the testator to make a will must depend upon the law of his domicil at the time of his death, and his condition at the happening of that event. (Story on Conflict of Laws, § 473, and authorities there cited.) Upon the question now under consideration, the authorities referred to by the Surrogate, from the writers on the civil law, have been collated by him with great research and care; and such of them as it has been convenient to examine, fully sustain the positions for which they are cited. Some of the civilians hold that, even as to real estate, the will is to be held valid everywhere, if executed according to the forms and solemnities of the place of its execution. Voet says, in reference to a similar case: "Thus, if a Hollander in Holland disposes by will of his real estate in *411 Utrecht, it ought to have effect as his will, because he observed the requirements of the law of the place in which the act of making the will was performed. Nor will it be weakened if, after his last testament has thus been made, in Holland, he may remove to Utrecht; for when the testament found in Holland is there executed according to the Holland customs it remains valid, even after his return to his own country; for, if there be no other objection, it would be unjust that, solely by the migration to a place requiring different legal forms, an act, before valid according to law in the place of the former domicil, should be void or broken." (Lib. 28, tit. 1, § 27.) Van Leeuween, in his Commentaries on the Roman Dutch Law, and which were translated into English in 1820, expressly for the benefit of the English judiciary in the island of Ceylon (1 Kent's Com., 515), has this passage: "Hence this question has arisen, whether a will, made according to the practice required at the place where it is effected, as in Holland for instance, having been duly confirmed before a notary and two witnesses, ought likewise to take effect in other places where other and more numerous solemnities are required, as, in Friesland, where the number of witnesses required is seven. * * And, upon the general opinion of the Doctors, it was understood that a will, confirmed at a certain place according to the solemnities required there, takes effect everywhere, without distinction, because the solemnity required to the existence of anything belongs to the knowledge or jurisdiction of the government of that place where it ought to be observed; and if a person be obliged to follow the practice of different places, any person who lives, now at this and then at another place, would be obliged to make so many wills, or to observe different forms in one and the same will; and a will which is but a single act would be judged of according to different forms of law." (Com., 215.)
Du Moulin states the rule to be, "That it is the opinion of all lawyers, that whenever custom or local statute settles the form or solemnity of an act, even strangers performing that act are bound by it, and the thing done is valid and effectual *412 everywhere, even in relation to landed property beyond the territory of the custom or the statute." (Cited in Story's Confl. of Laws, § 441.) Grotius says: "That when there is any question concerning the form or solemnity of the testament, the place where the thing is done is to be regarded in establishing the will." (Epis., 467, in 4 Binge Com., p. 220.) The rule is very clearly stated by M. Toullier, who says: "In fine, it should be observed, that the forms of wills do not depend either upon the law of the domicil of the testator, nor upon that of the goods which are disposed of, nor of that of the place where the testator inhabits at the time of his death. It depends only upon the law of the place at the time of the making or execution of the will." (Le Droit Civil Francais, vol. 5, p. 290, § 382.) It is unnecessary, further, to quote from the writers on the civil law upon this subject. The references made by the Surrogate are so full, that any one having a desire to pursue this train of investigation, will find in his opinion in this case the materials at hand.
Judge STORY, in his Commentary on the Conflict of Laws, in section 473, has stated a different rule. His language is so broad and general that he is to be regarded an authority to sustain the contrary doctrine. He certainly asserts the broad principle, that it is the law of the testator's actual domicil at the time of his death, and not the law of his domicil at the time of making his will or testament of personal property, which is to govern. With high respect for the views of that distinguished jurist, I fail to see that the authorities cited by him to sustain his text, go to that extent. A careful examination of them has satisfied me that they refer to the status or capacity of the testator, and not to the formality of the execution; though the language used by him is sufficient to embrace both capacity and forms or solemnities. Story himself quotes, approvingly, from Vattel, who says: "As to the forms and solemnities appointed to settle the validity of a will, the testator ought to observe those which are established in the country where he makes it." (Story on Confl. of Laws, §§ 471, 472.) *413
A careful consideration of the provision of the statutes of this State will satisfy the mind that the legislature were aware of the conflicting views entertained relative to wills executed in one state and offered for probate in another. The Revised Statutes, as amended in 1830 (Session Laws, p. 386), authorize the taking of the proof of wills, which shall have been executed according to the laws of this State, when the witnesses to the same reside without the jurisdiction of this State, by a commission to be issued out of the Court of Chancery. This provision is alike applicable to wills of real as personal estate; and if the legislature had not intended to make a different rule as applicable to wills of the latter description, no further legislative action was required. If it did not mean to permit wills of personal estate not executed according to the laws of this State, to be established as valid dispositions of property here, legislation would have stopped at this point. The subsequent provisions show, I think conclusively, that the legislature did intend that wills of personal estate, executed by persons residing out of the State at the time such wills were executed, if made in conformity to the laws of the State where executed, should be proved and established in like manner as wills of both real and personal estate, executed out of this State, according to the laws of this State. Section 68 (Laws of 1830, p. 389) provides, that wills of personal estate duly executed according to the laws of the state or country in which the same were made, by persons residing out of this State, may be proven and established in like manner as wills thus made and executed according to the laws of this State. The next section (69) is in its nature restrictive, for it declares that no will of personal estate, made out of this State by a person not being a citizen of this State, shall be admitted to probate under either of the preceding provisions, unless the will shall have been executed according to the laws of the state or country in which the same was made. It is here to be observed, that all these provisions of the statute have reference to the status or condition of the person making the will, at the time of its execution, and not to the period of the *414 death of the testator; and secondly, that they refer solely to the law of the place, state or country where the will was executed, prevailing at the time of its execution. The latter principle is expressly declared by section 79 (2 R.S., p. 68), which provides that the provisions of this title shall not be construed to impair the validity of the execution of any will made before that chapter took effect.
To recapitulate: These provisions of the Statutes authorize wills executed out of this State, both of real and personal estate, if executed according to the laws of this State, to be established here, with the same effect as if executed within this State, except that, as to wills of personal estate, made by persons not being citizens of this State at the time of executing the same, they shall not be established unless such will shall have been executed according to the laws of the state or country in which the same was made. A citizen of this State may, therefore, have his will of personal estate, made and executed in another State, established here as a valid will, if the same be executed either according to the laws of this State or according to the laws of the State where the same is made; but a person, not being a citizen of this State, cannot have established here a will as a valid will, of personal estate, made and executed in another State, unless the same shall have been executed according to the laws of the State where made. An execution according to the laws of this State, in the latter case, will not meet the requirements of the Statute. It is thus seen that our own citizens, and those who are not, are placed upon the same footing as to the forms and solemnities touching the execution of wills of real estate, when the same are executed without this State. To establish them here, they must be executed according to the laws of this State. This legislation is in harmony with the principle already adverted to — that, to make a valid disposition of real estate, either by deed or testament, the lex loci rei sitæ must govern — and in opposition to that enunciated by the civil law writers already quoted. But, in reference to wills of personal estate, executed without this State by a citizen of this State, they are equally valid whether executed *415
according to the laws of this State or according to the laws of the state or country where the same are made; while wills of personal estate, made by persons not citizens of this State, and executed without this State, can only be established here where the same shall have been executed in conformity with the laws of the State where made. A greater privilege is thus accorded to citizens of our own State, making wills of personal estate in other States, than to persons not citizens of this State. The reason for this may be, that the legislature assumed that our own citizens would carry with them a knowledge of the forms and solemnities touching the execution of wills prevailing in this State, and that it might well be optional with them whether they would adopt these forms, or those which obtained in the State where, and at the time, the will was executed. But no such presumption could arise in reference to citizens of other States, who might well be assumed to have no knowledge of the peculiar forms in relation to the execution of wills required by the local law of this State, or any means of access to the law prescribing those forms. It would be assumed that they knew the law of the State or place where the act was done; and, therefore, the legislature have determined that, as to them, a compliance with the lex loci actus is all that is required to give validity to the will in this State. A different rule would be fraught with the most serious inconveniences and hazards. Especially would this be so, in this country, where we have thirty-four independent States, or sovereignties, each having its peculiar laws on this subject, and requiring forms prescribed by its own legislation to give validity to wills sought to be established in its jurisdiction. It is also to be borne in mind that our citizens are constantly changing their domicil from one State to another, and that it is not unfrequent for a person to have domicils in several States within the same year. Living, as we are, under one government, fraternally bound together as one people, and united by the most intimate social and business ties, these changes must be frequent and sudden. How grievous would be the hardship, therefore, to require a citizen who, upon *416
mature consideration, has made a valid and perfect will, in accordance with the laws of the State of his residence, and with which he may be assumed to be well acquainted, upon a change of domicil to another State, which may be of short duration, to make another will, or reëxecute the one previously made, in accordance with the laws of the new domicil, and so on as often as he may remove to another State. If this rule be adopted, that change of domicil works a revocation of the previous will and renders invalid what before was legal and perfect, no other means of safety is left to him if he would not die intestate. Van Leeuwen, already quoted, foreshadowed the inconveniences of such a rule when he said: "If a person be obliged to follow the practice of different places, any person, who lives now at this and then at another place, would be obliged to make so many wills, or to observe different forms in one and the same will; and a will, which is but a single act, would be judged of according to different forms of law." If such consequences were legitimately anticipated by that writer, in reference to the people with whom he was most familiar, how much more aggravated will they be if the principle is made applicable to a country like our own, and to the enterprising, active and restless people who inhabit it. Nothing but imperative necessity should induce us to recognize the existence of such a rule; and, if I am correct in the views heretofore expressed, it has been found to be condemned by the ablest writers on the civil law, and is in direct hostility to the legislation of our own State. The authorities cited to maintain the contrary doctrine have failed to satisfy my mind of the soundness of the conclusion. The text of Judge Story, mainly relied on, has already been adverted to. The only adjudged case in this country cited by the counsel for appellants is that of Nott v. Coon (
The case of Roberts' will, reported in 8 Paige, 446, and decided by the Chancellor in July, 1840, if the facts presented are carefully considered, will be found to be in harmony with the views already expressed. In that case the will was made by Roberts, in the Island of Cuba, in 1825. It was a will of personal estate, and executed according to the laws of that Island. Subsequently the decedent removed to this State and died here in 1837. He was a resident of this State at the time of his death. The will was not executed in conformity with the laws of this State, in force at the date of the will, or at the time of Roberts' death. The Chancellor having found that the will was duly executed according to the law of the testator's domicil at the time of its date and execution, made a decree establishing the instrument propounded, as a valid will of personal estate. I cannot but regard this case as an authority in point adverse to the views of the appellants, notwithstanding the remark made by the Chancellor, when he says that the provisions of our statutes relative to the execution of wills, do not apply to wills executed out of this State, by persons domiciled in the state or country where the will is made, *418 and adds, "and who continue to be thus domiciled at the time thewill takes effect by death." I fail to see that the case of DcBonneval v. De Bonneval (1 Curt. Eccl. R., 856), cited as authority for this proposition, maintains it. It appears to me that the precise point decided in that case was, that the deceased was originally domiciled in France, and that no change of domicil had taken place: and that although he died in England, yet the validity or invalidity of his will must be determined by the French tribunals, and not by the courts in England; and that it was for them to determine its validity and the succession to his personal estate. Nothing is said of the effect of a change of domicil, upon the validity of a will executed according to the form of a previous domicil. That the Chancellor regarded the rule to be as I have stated it, is I think to be drawn from the subsequent case of the will of Roberts' wife. (8 Paige, 519.) The issue directed by the Chancellor to be formed and tried was, "whether the decedent was domiciled in Cuba or in this State, atthe time such will and codicil purported to have beenexecuted," they not having been executed in the form prescribed by the Revised Statutes of this State. In this case the Chancellor says, that there is a difference of opinion among foreign jurists, whether a will of personal estate, or movable property as it is called by the civilians, in which the testator has complied with the forms and solemnities required by the lexloci 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 domicil here referred to, must mean that of the testator's death.) He proceeds to say, that the better opinion however appears to be, that so far as regards the mere formal execution of the testament, it is sufficient if it conforms to the law of the country where the will is made, in accordance with the maxim, locus regit actum. These views of the Chancellor coincide with those of the Surrogate in the present case; and finding no authority in hostility to them, I think they should receive the sanction of this court, for the reasons already urged. It seems to be an authoritative decision, *419 holding that a will of personal estate duly executed according to the law of the testator's domicil, at the time of its date, and valid there, is not revoked by a change of domicil to another state or country where different forms are required. In this connection the provisions of our statute, on the subject of the revocation of wills, are not without significance. They are, that no will — that is a legal and valid will, as it is deemed it has been conclusively shown this was, at the time of the change of domicil — shall be revoked, otherwise than by some other will in writing, or other writing of the testator, executed with the same formalities with which the will itself was required by law to be executed. We have seen what those formalities were, when the will was executed in this State, and when made out of it, by a citizen of this State, and by persons not citizens. The Statutes also provide for a revocation in other modes therein enumerated. (2 R.S., § 42, p. 64.) Now it is not declared by the legislature that a change of domicil shall work a revocation of a valid will; and the principle of expressio unius est exclusio alterius may be applied here with great force and propriety. If the legislature had intended such should be the law — it is reasonable to infer — while legislating on the subject of revocation of wills, it would have so declared. This will, at the time it was made, was required by law to be executed in the precise form in which it was in fact executed, and it was then a complete and valid will; and the inquiry presents itself, how has it been revoked, and by what process has it lost its completeness and legal force? — Certainly by no act of the testator himself, directly tending to that result, or indicating any such intention; nor by any of the processes pointed out by our Revised Statutes, to effectuate such a purpose. Such revocation is sought to be maintained from the sole circumstance of a change of domicil to a State where different forms are required for the valid execution of a will, but upon whose statute books it is declared that wills of personal estate, if executed out of this State according to the laws of the place where executed, shall be valid, and that the same shall not be deemed revoked *420 unless by an instrument in writing, executed with the same formalities.
I am unable to see any reason upon principle or authority, why such a change of domicil should be held to be a revocation of a will. I think the legislature have in effect declared that it shall not, and that a will valid at the time of its execution, remains such, unless revoked in the manner and with the forms prescribed.
The judgment of the Supreme Court should therefore be affirmed, with costs.
SELDEN and MASON, Js., also dissented.
Judgment of the Supreme Court and of Surrogate reversed.