THE LAW WITH RESPECT TO WILLS. *CHAPTER I. BY WHAT LOCAL LAW WILLS ARE REGULATED. an inquiry By what local regulated. law wills are To ascertain by what local law a will is regulated is which necessarily precedes all others relating to the instrument, and which seems, therefore, properly to form the commencing subject of the present treatise. After showing to what wills the English law applies, we shall proceed to discuss the nature of such law. lex loci rei sitæ. A will of fixed or immovable property is generally governed by the lex loci rei sito;1 and hence, the place where such a Realty ruled by will happens to be made and the language in which it is written are wholly unimportant, as affecting both its construction and 1. All questions as to the capacity of the testator, his power to make a disposition of the property, and what forms and solemnities are required in the execution of his will, as far as this class of property is concerned, must be governed by the law of the place where such property is situated. Story Confl. Laws, 474; 4 Kent 513; 2 Id. 429; Flood on Wills 243; 1 Redfield on Wills 397; Williams *. Saunders, 5 Cold. (Tenn.) 60; Calloway v. Doe, 1 Blackf. 372; Robertson v. Barbour, 6 Mon. 523; Crofton v. Ilsley, 4 Greenl. 134; Potter v. Titcomb, 22 Me. 300; the ceremonial of its execution; the locality of the devised property is alone to be considered. Thus, a will made in Holland (a) and written in Dutch must, in order to operate on lands in England, contain expressions which, being translated into our language, would comprise and destine the lands in question, and must be executed and attested in precisely the same manner as if the will were made in England. (6)2 And, of course, lands in England *belonging to a But in case the will shows no intention to charge the realty to the exclusion of the personalty, after the payment of debts, it will be held that the intention of the testator is that the estate shall be administered as provided for in the state where the will was admitted to probate. Harris v. Douglass, 64 Ill. 466. In Ohio, before the title of a devisee of real estate, under a will made in another state, can be considered complete, the will must be admitted to record there. Wilson's Ex'rs v. Tappan, 6 Ohio 172. (a) In Holland the code Napoleon prevails, subject to modifications which have been ingrafted thereon by Dutch legislation. See Gambier v. Gambier, 7 Sim. 263. (b) Bovey v. Smith, 1 Vern. 85; see also Bowman v. Reece, Pre. Ch. 577; Drummond v. Drummond, 3 B. P. C., Toml. 601; Brodie v. Barry, 2 Ves. & B. 131. 2. Quare, whether this statement is not too broad as to the construction of such wills. It is probably correct as to the requisites attending their execution to give them validity. See 2 Greenl. Ev., 671, where Mr. Greenleaf remarks that "in the interpretation of wills, where the object is merely to ascertain the meaning and intent of the testator, if the will is made at the place of his domicile, the general rule is that it is to be interpreted by the law of that place at the time the will was made." As to interpretation, Mr. Justice Story also considers the rules of construction generally to be identical for both wills of immovables and mova bles, unless there be clearly evidence within the instrument that the testator actually had in mind the situs. Story Confl. Laws, & 479, h. It would seem to be settled now, however, in England and the United States, that in matters that concern the succession to personalty, the lex domicilii of the deceased is to control, while on the other hand it is maintained that as far as the descent and heirship of realty is concerned, the lex rei sita determines it finally. Whart. Confl. Laws, 561; 1 Redfield on Wills 398; Potter v. Brown, 5 East 130; Price v. Dewhurst, 4 Myl. & C. 76; De Bonneval v. De Bonneval, 1 Curteis 856; Enohin v. Wylie, 10 H. L. Cas. 1; Dixon v. Ramsay, 3 Cranch 319; Kerr v. Moon, 9 Wheat. 565; Ennis v. Smith, 14 How. 400; Harrison v. Nixon, 9 Peters 483; Grattan v. Appleton, 3 Story C. C.755; Moultrie v. Hunt, 23 N. Y. 394; Desesbats v. Berquier, 1 Binney 336; Bascom v. Albertson, 34 N. Y. 584; Gilman v. Gilman, 52 Maine 165; Swearingen v. Morris, 14 Ohio St. 424; Johnson v. Copeland, 35 Ala. 521; Abston v. Abston, 15 La. An. 137; Hill v. Townsend, 24 Texas 575; Danelli v. Danelli, 4 Bush. 51; Barnes v. Brashear, 2 B. Mon. 380; Richards v. Miller, 62 Ill. 417; Banta v. Moore, 2 McCart. 97; Flood on Wills 241; In re Bruce, 2 Cr. & J. 436; Thompson v. Advocate-General, 12 Cl. & Fin. H. L. Cas. 1; Attorney-General v. Napier, 6 Ex. Rep. 217; Coppin v. Coppin, 2 P. Wms. 291; Birtwhistle v. Vardill, 5 Barn. & Cr. 451; U. S. v. Crosby, 7 Cranch 115; McCormick v. Sullivant, 10 British subject domiciled abroad, who dies intestate, descend according to the English law. (c) lex domicilii. In regard to personal, or rather movable property, the lex domicilii prevails, (d) [that is to say the law of the country in Movables by which the testator or intestate was domiciled at the time of his death. (e)3 By a modern statute, indeed (ƒ) some material exceptions (affecting chiefly the mode of execution by British subjects dying after 6th August, 1861, of wills of personal estate) are made to the general rule but in most respects the rule still holds good, and will, therefore, be most conveniently dealt with before adverting in detail to the statutory exception.] If, then, a British or foreign subject dies domiciled in England, his personal property in England, in case he was intestate, will Domiciled be distributed according to the English law of succes Wheat. 192; Darby v. Mayer, Id. 465; Dunbar v. Dunbar, 5 La. An. 158; Cutter *. Davenport, 1 Pick. 81; Holman v. Hopkins, 27 Texas 38; Hosford v. Nichols, 1 Paige 220; Applegate v. Smith, 31 Mo. 166; Lucas v. Tucker, 17 Ind. 41; Bloomer 2. Bloomer, 2 Bradf. 339. Who would be entitled in a case in which the testator had devised his real estate to his next of kin, would be determined by the law of his domicile. Story Confl. Laws, & 479, h; Potter v. Titcomb, 22 Maine 300. So, also, if the will should designate a particular class or description of persons to take under it, they would be determined by the law of the place where the will was made and the testator was domiciled. Richards v. Miller, 62 Ill. 417. (c) See Doe d. Birtwhistle v. Vardill, 5 B. & Cr. 438. [As to land in Italy, see Earl Nelson v. Earl Bridport, 8 Beav. 547.] (d) This position respects only the devolution of the property, and not the court of administration, which, by our law, is regulated by the lex loci rei sita. [Enohin v. Wylie, 10 H. L. Cas., pp. 19, 24, per Lords Cranworth and Chelmsford, following Preston v. Melville, 8 Cl. & F. 1, diss, Lord Westbury.] (e) Bremer v. Freeman, 10 Moo. P. C. Englishman. C. 306; i. e, the law as it stood at the death; subsequent changes between death and the grant of probate or administration being disregarded. Lynch v. Para-* guay, L. R., 2 P. & D. 268. 3. 4 Kent 513, 514; McConnell v. Wilcox, 1 Scam. 373; Smith v. Union Bank, 5 Peters 518; Irving v. McLean, 4 Blackf. 52; Meese v. Keefe, 10 Ohio 362; Bempde v. Johnstone, 3 Vesey 198; Somerville v. Somerville, 5 Vesey 750; In re Roberts' Will, 8 Paige 519; Turner v. Fenner, 19 Ala. 355; Harrison v. Nixon, 9 Peters 483; Bloomer v. Bloomer, 2 Bradf. 339; Williams on Ex'rs (6th Am. ed.) 1626; Chamberlain v. Chamberlain, 43 N. Y. 424; McCune's Devisees v. House, 8 Ohio 144; Moultrie v. Hunt, 23 N. Y. 394. In Nat v. Coons, 10 Mo. 543, it is said that if a will be made in one state by a testator, who afterwards moves into Missouri, his will will not be valid in Missouri unless executed in accordance with the laws of Missouri. But if in accord with those laws, it will be valid in Missouri without republication. A copy of probate of such a will from the courts of such other state is of no force or effect in Missouri. (ƒ) 24 and 25 Vict., c. 114. sion; (g)4 and if he left a will, his testamentary capacity [(both as regards personal status (h) and the bequeathable quality of the property willed,] (i) and the construction of the instrument, (k) (whether this be made in the testator's native or in his adopted country, or elsewhere, and wherever he may have died,) must be tried by the law of England. And it is scarcely necessary to observe, that stock in the public funds is undistinguishable in this respect from other personal property. (And the movable property *of such a person, which is out of England at the time of his death, will also, it seems, generally (g) Thorne v. Watkins, 2 Ves. 35; Bempde v. Johnstone, 3 Ves. 198; Balfour v. Scott, 6 B. P. C. Toml. 550; Bruce v. Bruce, Id. 566, 2 B. & P. 229, n. 4. If a person die intestate, the rights of the next of kin as to personal property will be determined by the laws of the place where the intestate was domiciled, but the laws of the place where such personalty is situate will regulate the court and the mode of administration. 1 Redfield on Wills 398; Goodall v. Marshall, 11 N. H. 88; Suarez v. Mayor, &c., of N. Y., 2 Sandf. Ch. 174; Ennis v. Smith, 14 How. 400; Jennison v. Hapgood, 10 Pick. 100; Fay v. Haven, 3 Metc. (Mass.) 109; Stevens v. Gaylord, 11 Mass. 264; Campbell v. Sheldon, 13 Pick. 8; Dawes v. Boylston, 9 Mass. 355; Harvey v. Richards, 1 Mason C. C. 381; Dawes v. Head, 3 Pick. 128; Dixon v. Ramsay, 3 Cranch 319; Stent v. McLeod, 2 McCord Ch. 354; Grattan v. Appleton, 3 Story C. C. 755; Richards v. Dutch, 8 Mass. 506; Dorsey v. Dorsey, 5 J. J. Marsh. 280; Thomas v. Tanner, 6 Mon. 52; Atchison v. Lindsey, 6 B. Mon. 86; Potter v. Titcomb, 22 Maine 300; Porter v. Heydock, 6 Vt. 374; Holmes v. Remsen, 4 Johns. Ch. 460; Ferraris v. Hertford, 3 Curteis 468; Shultz v. Pulver, 3 Paige 182; Price v. Dewhurst, 8 Sim. 299; Spratt v. Harris, 4 Hagg. 408. "All questions of testacy or intestacy belong to the judge of the domicile. It is the right and duty of that judge to constitute the personal representative of the deceased." Per Lord Westbury, in Enohin v. Wylie, 10 H. L. Cas. 1; 31 L. J. Ch. 402; Lawrence v. Kitteridge, 21 Conn. 577; Grattan v. Appleton, 3 Story C. C. 755; Wilkens v. Ellett, 9 Wall. 740; Petersen v. Chemical Bank, 32 N. Y. 21; Harvard Coll. v. Gore, 5 Pick. 369. “It is of no consequence what is the country of the birth of the intestate, or of his former domicile, or what is the actual situs of the personal property at the time of his death; it devolves upon those who are entitled to take it according to the law of his actual domicile at the time of his death." Story Confil. Laws, 481. (h) Price v. Dewhurst, 8 Sim. 299, 4 My. & Cr. 76; Robins v. Dolphin, 1 Sw. & Tr. 37, 7 H. L. Ca. 390. (i) Kilpatrick v. Kilpatrick, 6 B. P. C., Toml. 584, cit.] (k) Anstruther v. Chalmer, 2 Sim. 1; [Reynolds v. Kortwright, 18 Beav. 417; Boyes v. Bedale, 1 H. & M. 798; Peillon v. Brooking, 25 Beav. 218.] Domicile as affecting legacy duty.— (1) In re Ewin, 1 Cr. & J. 151. In this case the question was, as to the liability of property to legacy duty, the discussion of which sometimes indirectly involves points as to domicile, alienage, &c. [Where the domicile of the testator is foreign it is now settled beyond question that under no circumstances whatever is legacy duty payable. In re Bruce, 2 Cr. & J. 436, 2 Tyr. 475; Hay v. Fairlie, 1 Russ. 117; Logan v. Farlie, 1 My. & Cr. 59, re |