Wills as Affected by Domicile.

There is a certain respect paid by the laws of one nation or community to those of another, which is termed international comity, which, for general convenience and utility, is observed and regarded by tribunals when certain acts done in one place are to be construed in another.

Of course, such comity is merely conventional—there is no binding obligation to enforce it; but from long observance, and the customary regard tribunals have given to certain rules of international comity, these rules have been so long sanctioned by precedent and authority as now to have the force of law. The law relating to wills as affected by domicile is, to a great extent, founded on such rules of international comity, or leges gentium.

The principles of law appertaining to this subject are well settled and recognized, and are now invariably acted upon. The language of wills is supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference to them, unless there is something in the language which repels or controls such a conclusion.

In regard to personalty, (in an especial manner) the law of the place of the testator’s domicile governs in the distribution thereof, and will govern in the interpretation of wills, unless it is manifest the testator had the laws of some other country in his own view. This is usually expressed by the legal formula, that, with regard to personal property, the lex domicilii governs.[291] The law on this subject has never been more clearly expressed, or better summarized, than by the Lord Chancellor, in the case of Enohin v. Wylie.[292] His lordship there says: “I hold it to be now put beyond the possibility of a question, that the administration of the personal estate of a deceased person belongs to the court of the country where the deceased was domiciled at his death. 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. To the courts of the domicile belong the interpretation and construction of the will of the testator. To determine who are the next of kin, or heirs of the personal estate of the testator, is the prerogative of the judge of the domicile. In short, the court of the domicile is the forum concursus to which the legatees under the will of a testator,[293] or the parties entitled to the distribution of the estate of an intestate, are required to resort.”

As a will is governed in its interpretation according to the law of the place where the testator had his domicile, therefore, if a testator, born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir-at-law, that the descriptio personÆ would have reference to, and be governed by, the import of the terms in the sense of the laws of England.[294] The import of them might be very different if the testator were born or domiciled in France, Pennsylvania, or Massachusetts.

To ascertain what the testator means, we must first ascertain what was his domicile, and whether he had reference to the laws of that place or the laws of any foreign country.[295]

The law of the domicile governs as to the proper mode of execution and attestation of wills of personal property; hence it is accepted as a rule of universal application, that a will of personal property, duly admitted to probate where a person has his domicile, is conclusive on all other courts, and is sufficient to pass personal property, wherever situated.[296]

It has been a subject of discussion, whether a will, made by a person according to the law of his domicile at the time when made, will be operative if he subsequently changes his domicile, and dies in his new domicile. This is a question of grave importance, and one on which there is a serious conflict of authority. The question is then presented, as to what law should govern, whether the law of the domicile at the time the will was made, or the law of the domicile at the time of decease.

This question arose in New York, in a case which passed through all the subordinate courts, and was finally determined by its highest court, after very thorough and learned examination. It was the case of Moultrie v. Hunt.[297]

The testator, Benjamin F. Hunt, resided at Charleston, and there made his will, in August, 1849, conformable to the laws of South Carolina. He subsequently removed to New York, where he established his domicile, and where he died. His will was attested, at his request, by three witnesses; but Mr. Hunt did not state to the witnesses the nature of the paper which he requested them to attest, and, therefore, omitted to comply with one of the requisites of the statute in New York, which requires a publication of the will, to be a valid execution thereof.

The Surrogate, when the case came before him, decided to admit the will to probate, and made a decree accordingly. This decree was affirmed by the Supreme Court, whence it was taken on appeal to the Court of Appeals, and it was there reversed, a very able judge (Denio) writing the opinion of the court. His opinion was very able and elaborate, and a thorough examination was made of all the authorities. He holds that a will cannot operate so as to confer rights of property until the death of the testator, until which event it is, in its essence, ambulatory and revocable. Therefore, it is the law in force at the death of the testator that should govern as to the due execution of a will and the capacity of a testator. He illustrated this in the case of the legislature making laws that would have the effect of invalidating wills already made, and shows that where a will was witnessed by but two witnesses, three being required at the time it was made, that it was subsequently validated by a law in force at the decease of the testator, allowing two witnesses to attest a will. He quotes from Story[298] to show that it is the law of the domicile at the time of death that should govern as to the proper execution, and he approves that doctrine, and holds it applicable to this case; which, it was held, should be governed by the law of New York, the law of the domicile of the testator at the time of his death, and therefore Mr. Hunt was considered as dying intestate in respect to personal property in New York. Judge Redfield, in his work on wills, approves of this doctrine,[299] and the same point has been decided in Missouri.[300]

The question, however, is not free from doubt, as very able jurists differ on it. As far as New York is concerned, it has settled the law there.

The case of the will of General Kosciusko, before the Supreme Court of the United States, in December, 1852, was in many respects the most notable and interesting case on this subject ever examined. In that case, it was necessary to examine, carefully and strictly, the law of wills as affected by domicile, and the manner of acquiring a domicile, and the mode of proving it. This case, besides its importance in a legal point of view, is of much public interest, as bringing up some memorable incidents connected with our revolutionary struggle and the eminent personages who participated in that struggle. It is found in the case of Ennis v. Smith,[301] and we will be justified in stating the facts somewhat in detail.

Kosciusko made four wills, one in the United States in 1798, another in Paris in 1806, the third and fourth in Switzerland, whilst sojourning there during the years 1816 and 1817. In his third will there was a revocation clause, canceling the first and second wills, in these words:

“Je revoque tous les testaments et codiciles que J’ai pu faire avant le prÉsent auquel seul Je m’arrÈte comme contenant mes dernierÈs volantes.”

The object of the suit in the Supreme Court was as to the disposition of a fund belonging to Kosciusko in the United States, which, it was claimed, was undisposed of by his will, and to which the descendants of his sisters laid claim if he died intestate as to this property in the United States. The origin of this fund is full of interest. Kosciusko came here in 1776, entered our army as a volunteer in the Engineers, participated in all the struggles of our revolutionary war, and retired at its close with the rank of Brigadier General, poorer than when he came, and actually a creditor of our government for his military pay. During his absence in Europe, participating in the heroic struggle of his native land, he became entitled, under a military certificate, to the sum of $12,280.54, and not being able to receive it then, Congress passed a law in 1799 giving him interest from the 1st of January, 1793, to 31st December, 1797. When the money was paid it was invested in American stocks, and placed under the care of Jefferson. By judicious care and management the fund increased to the sum of $17,159.63, which was the subject of the suit in 1852. Before his departure from the country, in 1798, he made his will in his own handwriting, directing this fund to be laid out in the purchase of young negroes, who were to be educated and emancipated. In regard to this, he wrote to Jefferson, September 15th, 1817, as follows:

“We all grow old, and for that reason, my dear and respectable friend, I ask you, as you have full power to do, to arrange it in such a manner, that after the death of our worthy friend, Mr. Barnes, some one as honest as himself may take his place, so that I may receive the interest of my money punctually; of which money after my death, you know the fixed destination. As for the present, do what you think best.”

As the will of 1816 revoked the two previous wills, the disposition of the fund became canceled.

But in the will of 1817, by the second clause, he provided: “Je lÉque tous mes effets, ma voiture, et mon cheval y comprise À Madame et À Monsieur Zavier Zeltner, les hommes ce dessus.” It was on this clause the dispute arose; because it was claimed that by the words “mes effets,” the property in the United States passed, that it was a residuary devise, and that all went to the two persons named. On the other hand, it was claimed, that as Kosciusko, having been domiciled for fifteen years in France, and was only temporarily sojourning in Switzerland, that the law of France should control, and that the proper interpretation of such a phrase was that it referred to property as belonging at the time and which was attached to his person, and that the subsequent words restricted its meaning, and prevented it having a general signification. It was held that as to this property in the United States Kosciusko died intestate; and that, on the principle that personal property, wherever it may be, is to be distributed, in case of intestacy, according to the law of the domicile of the intestate, that the disposition of this property should be governed by the law of France, the proper domicile of Kosciusko. There was some difficulty to ascertain the domicile, but it was shown that he did not leave Poland compulsorily, which would be an important consideration in determining his intent; but he left voluntarily to obtain a civil status in France, which he conscientiously thought he could not enjoy in Poland whilst it continued under a foreign dominion.

With regard to real estate, a different rule prevails. It would not comport with the dignity or independence of one country to allow real property, which by its nature is fixed and immovable, to be controlled and affected by foreign laws. Hence it is the law of the place where the real estate is situated that governs in its distribution, and as to the proper execution of a will devising it. This is expressed by the formula that the lex locus rei sitÆ governs. Thus, a devise of lands in England, though made abroad, must be executed pursuant to the English statute. Thus, where C made his will abroad, devising lands in England, but the same was executed in the presence of two witnesses, (three being necessary, at the time of its execution, to devise lands in England) in accordance with the law where he was domiciled, it was held that the will must be void as to lands in England, which lands can only pass by such a will as the laws of England require, and that the lex rei sitÆ should govern.[302]

And if a testator, by his will, direct personal property to be invested, in another State, in certain trusts of real estate there lawful, but not lawful by the law of the State where the testator is domiciled, the trusts will be declared void.

This was the case where a testator, a resident of the State of New York at the time of his death, who, by his will, directed his personal property and the proceeds of his real estate there situated to be invested in real estate in the State of Ohio, upon trusts which were invalid by the law of New York, it was held that the devise in trust was invalid, as it was inconsistent with the law of the testator’s domicile.[303]

Jarman[304] considers that a will of realty is construed according to the law of the country where the land is situated; but Story,[305] Greenleaf,[306] and others are of opinion that this doctrine of the lex rei sitÆ does not apply to the construction, as distinguished from the execution, of wills. There are several American authorities on either side, the balance, however, being in favor of the law as stated by Jarman.

A will has always been presumed, in England, to speak only from the death of the testator as to personalty, but before 1838, from its date as to realty. By 1 Vict., Ch. 26, devises and bequests were to be from death of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most of our States.[307] A will is presumed in the following States to speak only from the testator’s death, as regards the subject-matter (as distinguished from the objects) of the testator’s bounty: California, Maryland, Missouri, New York, and Pennsylvania.

In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary.[308] It is so in Massachusetts, New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina, Connecticut, and Kentucky; though a testator may, in these States, convey by his will any after-acquired land, provided he declares his intention to that effect. The construction, however, on these statutes virtually raises a presumption that wills speak only from the death of the testator, if there is nothing in the context to the contrary.[309]

It seems the better opinion, that the law of the domicile of the testator will govern as to what shall be regarded as personal estate, and what real. Thus, in Kentucky, shares in the capital stock of railroad companies are considered as real property,[310] and, according to this rule, a will made by a person domiciled there must be executed as a will of real estate, to convey such shares.

And the law of the place of domicile must govern as to what ought to be regarded as testamentary capacity.

Thus, in England, administration was granted upon the probate of the will of a married woman, domiciled in Spain, she being also a native of that country, it appearing that by the law of that country a feme covert may dispose of her property by will, with certain limitations, the same as a feme sole.[311]