26 Barb. 252 | N.Y. Sup. Ct. | 1857
Benjamin F. Hunt in 1849 was a resident of, and domiciled in, Charleston, S. C. He made his will in the presence of three witnesses, executed in the form required hy the laws of South Carolina, but not according to our laws, as he omitted to declare it to the witnesses to be his will. He afterwards, in the year 1854, removed to the city of Hew Y ork, and died here. The surrogate of this county admitted the will to probate as a will of personal estate, but not as a Will of real estate. The appellants appeal from the first part of that decision. The principle held by the surrogate is that the validity of a will, so far as regards the capacity of the testator, is to be determined by the domicil of the testator, when he dies, and also as to some other matters; but as to the forms of execution, by the law of the place of execution, lex loci r^git actum. In this distinction he is sustained by the authorities under the civil law, so far as we have been able to examine them. He is opposed by Judge Story, who, it is alleged, relied on authorities as to the capacity of the testator, as if they related to the formality of the instrument. He also seems to consider the English authorities as adopting a different rule. In this view of the law, Judge Story and the English authorities Would be one way, and the authorities under the civil law the other. There was a conflict which it was expedient the legislature should settle, and any language of theirs, which, although somewhat ambiguous, may fairly be deemed as covering the question, should be considered controlling, by our courts. The opinion of the chancellor was that a will is valid as to personal estate, whether made in its forms according to the law of the domicil of the testator or the law of the place of its execution; and so he understood our revised statutes. (See 8 Paige, 524, 5, 6, in matter of C. Roberts’ will) The revised statutes, as amended in 1830, (2 R. S. 2d
The statute seems by implication to exclude from its benefits a citizen of this state temporarily absent from the state, perhaps under the notion that he must lmow what the law of his own state is—and conrply with it—or he cannot avail himself of the disposing power which our law gives him. It clearly applies to all who are residing out of this state. The
The act of 1840 is also on the principle that the place of execution is to give the law as to the formality of execution, for it allows a will' of a non-resident duly executed in this state, and proved abroad, to be admitted to probate here on an exemplification. The test is as to execution—“ duly executed in this state.” That implies that it was executed here according to our laws. The result of these statutory provisions, so far as they concern personal estate, is, that in each of them the test of the due execution of a will as to its forms, when it is offered for probate in our state, is conformity to our laws, or to the laws of the state where it was executed, whether executed here or in a foreign state. And it is fairly to be inferred that the legislature, aware of the diversity of rules prevailing in different countries, chose to adopt the rule most common in countries where the civil law prevails.
By our law, this will was good as to personal estate, when it was made in 1,849, the testator being then a resident of
The decree of the surrogate, admitting the will to probate as a will of personal estate, should he affirmed with costs.
Mitchell, Dames and Gierke, Justices.]