PART II. CAP. VII. Morables followed as to the validity of the will; and if that law recogPROPERTY. nised as valid a will made either in accordance with the law of a former domicil, or with the law of the place of execution, the above authorities point to the acceptance by the English Succession. Court of that decision. But if the domicil of the testator at the time of death is English, and the will is not in accordance with English law, it would clearly be invalid, apart from statutory provisions.(~) C. 114. It is now, however, unnecessary to consider whether a testator, being a British subject, has changed his domicil since making his will, since, as regards British subjects, it was 24 & 25 Vict. enacted by Lord Kingsdown's Act (24 & 25 Vict. c. 114), first, that any will of personal estate (b) made out of the United Kingdom by a British subject, wherever domiciled at the time of making or of death, should be admitted to probate as valid, if it was executed in compliance with the forms prescribed either by the lex loci actus, the lex domicilii at the time of its execution, or the lex domicilii originis of the testator. Secondly, that any will of personal estate made within the United Kingdom by a British subject, whatever his domicil at either time, should be admitted to probate as valid, if it was executed in compliance with the forms required by the laws for the time being in force in that part of the kingdom where it was made (s. 2). And, thirdly, that no will or other testamentary instrument should be held to be revoked or to have become invalid, nor should the construction thereof be altered, by reason of any subsequent change of domicil of the person making the same (s. 3). But it has been held that a will and revocation, executed according to the testator's domicil at the time of his death, revokes altogether a will made under a former English domicil, with the appointment of executors contained in it, if the intention that it should have that effect is apparent.(c) This last section is not in terms confined to the wills of British subjects, but, having regard to the title of the Act ("An Act to amend the law with respect to wills of personal estate made by British subjects"), it is difficult to see (a) In the Goods of Reid, L. R. 1 P. & D. 74 ; In the Goods of Rippon, 32 L. J. P. & M. 141. (b) "Personal estate." It may be suggested that this statute was not intended to extend to English leaseholds, which are immovables and subject to the lex situs for most other purposes. (See p. 181, 182.) But in construing an English statute it seems almost impossible to give the words "personal estate" any meaning narrower than that ordinarily attributed to them by English law. It would follow that in cases falling within Lord Kingsdown's Act, the ler situs with respect to leaseholds may be satisfied without the formalities required for the devise of English land by the Wills Act. The statute will be found set out as an appendix to the present chapter. (c) Cottrell v. Cottrell, L. R. 2 P. & D. 400. PART II. PROPERTY. CAP. VII. Morables how it could be extended to the wills of foreigners who should have acquired a British domicil between the time of making their will and that of their death.(a) Assuming that the section cannot be so extended, the validity of such a will would have to be decided upon its compliance or non-com- Succession. pliance with the requirements of English law, and the fact that it was valid by the law of the testator's domicil at the time of making would be immaterial. With regard to the alternative tests of validity offered by the first two sections, it was decided by Lord Penzance (b) that only one can be adopted in each case, and that it is not competent for those who seek to set up a testamentary paper to endeavour to secure the advantages of two conflicting jurisdictions. The privileges conferred by the Act attach to British subjects by naturalisation (under 7 & 8 Vict. c. 66) as if they had been so by birth.(c) But the provision in the Naturalisation Act, 1870 (33 Vict. c. 14), s. 2, enacting that real and personal property may be "taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a naturalborn British subject," has been held not to confer upon aliens the privileges as to making wills which are given to British subjects by Lord Kingsdown's Act.(d) In the case just cited it was said by Lord Selborne, that though the words "disposed of" in the Naturalisation Act must include a disposition by will, yet in determining what is a valid will of an alien, the general principles of law already laid down must still be applied. As to the possible effect of marriage in England after the acquisition of an English domicil upon the validity of a will previously made, having regard to the provisions of the 3rd section, see In the Goods of Reid.(e) And where the testator, being a naturalised Englishman, whose domicil was not ascertained, but appeared to be French, made in France a will and codicils in English form, and a holograph will confirming them in French form, it was held that all were valid under s. 1 of the Act, it being proved that the French law permitted foreigners in France to make their will according to the forms required by the law of their nationality; so that the French will was good directly, and the English will and codicils indirectly, by the lex loci actus.(ƒ) (a) See In the Goods of Von Buseck, 6 P. D. 211; and infra. (b) Pechell v. Hilderley, L. R. 1 P. & D. 673. (c) In the Goods of Gally, L. R. 1 P. D. 438. (d) Bloxam v. Farre, 9 P. D. 130. See, to the same effect, In the Goods of Von Buseck, 6 P. D. 211. (e) L. R. I P. & D. 74. (f) In the Goods of Lacroix, L. R. 2 P. D. 95. PART II. PROPERTY. CAP. VII. The exceptional case has recently arisen of a British subject dying domiciled in Baden, the Courts of which State, according to the admitted statements in the case, regarded all questions Morables of distribution on intestacy as governed by the law of the Succession. country of which the deceased was a subject.(a) The English Court, being called upon to distribute movable property of the deceased, was thus referred by the lex domicilii back upon itself; and when referred back to itself, would according to the ordinary rule look to the lex domicilii. Farwell, J., said that it was impossible to treat this as a circulus inextricabilis, and adopted the law of the domicil of origin of the deceased (which happened to be Maltese), on the ground that the acquired domicil in Baden, being ineffectual to create any rights or liabilities governing the distribution of movables, was for this purpose no domicil at all. Capacity of testatordepends on The general rule that the law of the domicil governs testamentary dispositions of personalty applies to capacity, lex domicilii. and there can be little doubt that, whatever may be the claims Forms of wills of movables. of the lex loci with reference to capacity to do an act or enter into a contract within its jurisdiction (b) the right of the lex domicilii is indisputable when the capacity to make a will is in question.(c) The capacity of a legatee to take under a will is similarly referred to the lex domicilii, but in this case it is the law of the domicil of the legatee, not of the testator, which determines the question.(d) On the other hand, the legitimacy of the legatee depends upon the lex domicilii of the testator, the question usually being as to the proper meaning of the word "child" or "son" in the will.(e) With regard to forms and solemnities, the question of the proper law by which wills of personalty should be tested was for some time left undecided, it having been thought at one period that there was a difference between the will of an English subject domiciled abroad and that of a foreigner similarly situated; and it was held in several cases that compliance with the English forms by an English subject was sufficient (f) and necessary.(g) But this distinction was (a) Re Johnson, Roberts v. Attorney-General (1933), 19 T. L. Rep. 309. It will be noted that Farwell, J., calls attention to the fact that the Master's finding as to the Baden law was not appealed from. It may be doubted whether it was correctly or sufficiently stated. (b) As to the question of capacity for these purposes, see ante, chap. iii. (c) Story, Confl., § 103; Westlake, P. I. L., § 401; Enohin v. Wylie, 10 H. L. C. (e) Andros v. Andros, 24 Ch. D. 637; Goodman's Trusts, 17 Ch. D. 266. (g) Curling v. Thornton, 2 Addams, 21. PART II. PROPERTY. CAP. VII. exploded, and the principle of referring to the decision of the lex domicilii, and of the lex domicilii alone, firmly established by subsequent decisions.(a) The alteration made in the English law on this subject by Lord Kingsdown's Act (24 & 25 Vict. Morablesc. 114) has been already pointed out. 66 Succession. after death. Further, by the law of the testator's domicil is meant not Change of only the law of his domicil at the time of his death, but lex domicilii the law at the time of his death of his domicil at the time of his death. In Lynch v. Provisional Government of Paraguay (b) a domiciled Paraguayan died in Paraguay, leaving personal property in England. After his death all his property wherever situate became by a change in Paraguayan law the property of the nation of Paraguay, and his will became by the same law absolutely invalid. It was held, however, that the legatee under the will of the property in England was entitled to probate here notwithstanding, and that no retrospective operation could be attributed to the Paraguayan decree. The question is," said Lord Penzance, "in what sense does the English law adopt the law of the domicil? Does it adopt the law of the domicil as it stands at the time of the death, or does it undertake to adopt and give effect to all retrospective changes that the legislative authority of the foreign country may make in that law? No authority has been cited for this latter proposition, and in principle it appears both inconvenient and unjust. Inconvenient, for letters of administration or probate might be granted in this country which this Court might afterwards be called upon, in conformity with the change of law in the foreign country, to revoke. Unjust, because those entitled to the succession might, before any change, have acted directly or indirectly upon the existing state of things, and find their interests seriously compromised by the altered law. As, therefore, I can find no warrant in authority or principle for a more extended proposition, I must hold myself limited to the adoption and application of this proposition, that the law of the place of domicil as it existed at the time of the death ought to regulate the succession to the deceased in this case." This case was followed and approved by Romer, J., in 1895, the question having arisen by reason of the substitution of Italian law for Austrian in Padua in 1871.(c) (a) Stanley v. Bernes, 3 Hagg. Eccl. 373; Moore v. Darell, 4 Hagg. Eccl. 346 ; Price v. Dewhurst, 4 My. & Cr. 76; De Zichy Ferraris v. Hertford, 4 Moo. P. C. 339; Laneuville v. Anderson, 2 Sw. & Tr. 24. (b) L. R. 2 P. & D. 268. (c) Re Aganore's Trusts (1895), 64 L. J. Ch. 521. PART II. PROPERTY. CAP. VII. The rule which refers all questions of the validity of a will to the law of the testator's domicil applies not only to the formal requisites of execution, but to all objections which could Morables be raised in the Court of the domicil. Where the will of the Succession. testatrix had been duly proved in Jersey, where she was domiciled, it was not allowed to be impeached in the Court of Probate here on the ground that the testatrix was of unsound mind or that it was obtained by undue influence.(a) Testamentary Execution of Powers. The question of the validity of testamentary instruments, purporting to be made in execution of powers created by English wills or settlements, has often arisen. The following propositions appear now to be established. Firstly, a simple testamentary power is taken to be well executed by a will made in conformity with the lex domicilii of the donee of the power;(b) and this is so, whether the power be general or special.(c) Secondly, when the instrument creating the power requires specified formalities for its due execution, compliance with the lex domicilii is not sufficient, unless these formalities have also been observed.(d) Thirdly, a will that complies with the formalities required by the instrument creating the power is a good execution of the power, though not made in accordance with the lex domicilii of the testator, and as such, will be admitted to probate.(e) It will be observed that the third of these propositions is an extension of the second; and reference to the authorities cited will show that on principle it has not escaped criticism. The history of the first proposition, that a power not requiring special formalities is well executed by a will complying with the forms of the lex domicilii, is as follows. In D'Huart v. Harkness (b) (1864) it was so decided; and the authority of the decision was expressly recognised by the recent decision of Stirling, J., in Re Price: Tomlin v. Latter (1900 I Ch. 442). In the earlier of these cases the will had been admitted to probate; and in the latter, letters of administration with the will annexed had been granted; but there is no apparent reason for saying that formal recognition of the will (a) Miller v. James, L. R. 3 P. & D. 4. (b) In re Price; Tomkin r. Latter (1900), 1 Ch. 442; following on this point D'Huart v. Harkness 34 Beav. 324 (1864). Cf. Tatnall v. Hankey (1838), 2 Moo. P. C. 342 (c) Porey v. Hordern (1900), 1 Ch. 492; 69 L. J. Ch. 231. (d) Barcetto v. Young (1900), 2 Ch. 339; Hummel v. Hummel (1898), 1 Ch. 642. (e) In the Goods of Huber (1896), P. 209; In the Goods of Hallyburton, L. R. 1 P. & D. 90; In the Goods of Alexander, 29 L. J. P. M. 93. |