Hunt v. Mootrie

The Surrogate. The will propounded for probate, bears date the 14th day of August, 1849; and was executed in the city of Charleston, South Carolina, where the decedent then resided. The petition for probate states, that the decedent at, or immediately previous to the time of his death, was an inhabitant of the county of Few York. . Assuming that to be the fact, two points arise—first, whether the will was executed according to the laws of the State of Few York; and second — 336 — ly, if not, whether if made according to the laws of South Carolina, it was a valid will at the decedent’s death. The will was attested by three witnesses, and the usual ceremonies appear to have been performed, except the testamentary declaration, the proof as to which is alleged to be deficient. The testimony was at first taken under a commission issued to Charleston, and subsequently two of the witnesses came to New York, and were personally examined before me. Heckmann, one of the witnesses who was not re-examined, says, he was requested by the decedent at the time of the execution “ to witness his signature to a paperthat “ he was called upon at that time and place by Col. Hunt to witness a paper, but Col. Hunt did not state what it wasthat “ Col. Hunt acknowledged the signature and seal to the paper “he made no declarations to witness as to what the paper to which he acknowledged his signature was“ Col. Hunt said nothing about his will or witnessing his will;” “Col. Hunt said nothing about the nature or contents of the paper;” that he “ signed the paper without knowing what it was— never knew until recently told ;” “ Col. Hunt made no declarations in the presence of witness—he merely acknowledged his signature, and requested him to sign as a witness ;” “ he heard no declaration from Col. Hunt.” These repeated answers to repeated questions touching a testamentary declarar tion, put it beyond all question, if any evidence can, that no declaration as to the nature or character of the instrument was made to this witness by the decedent. Heckmann also testifies, that only one other person was present in the office with Col. Hunt, and that he was not acquainted with that person. He also says, “ he knows nothing” about the signatures of the other witnesses, and that “ nobody signed it” in his presence. Mahoney in his testimony under the commission, says he “ signed his name to the paper;” that Messervey requested him to go to Col. Hunt’s office, and he there “ signed the paper” in the presence of the decedent and of Messervey, but — 337 — cannot remember whether Heckmann was present—“ thinks Messervey said Col. Hunt wished witness to sign his name as witness to his will, but this statement was not in the presence of Col. Hunt, and Col. Hunt said nothing as to what the paper was“ simply acknowledged the signature and seal, without saying what, the paper was“ thinks that the others signed at the same time with him;” “knows that he was witness to some paper or instrument of writing which Messervey had told him was Col. Hunt’s will; but cannot say that Col. Hunt did anything more than acknowledge the signature and seal, and request the witnesses to sign their names at the places where they are written;” “ he did not declare what the paper shown to witness was, he merely requested him and the others to sign the same as witnesses;” that “he was in the habit of calling upon witness to act as a subscribing witness to written instruments, but never told the nature or contents of such papers to witness;” that “ he knew nothing about the contents of the paper when he signed it—Col. Hunt said nothing about them to witness,”—“ said nothing to witness as to what the paper was which he desired him to subscribe.” Messervey when examined under the commission, stated, that he was the clerk of the decedent—was called into the office where B. F. Hunt was present, and was asked by the decedent to “subscribe his name to the paper,” which he did, there being “no other person present at the time of his signing;” that “he knew” at the time it was decedent’s will, “ but that Col. Hunt did not tell witness it was his will;” that he subscribed his name in the presence of the decedent, “ but not in the presence of John Mahoney and Adolph Heckmann, or of either of them;” that “ Col. Hunt acknowledged his seal and signature;”—that the will is in the handwriting of the decedent; that “ Col. Hunt was in the habit of calling on him to witness written instruments, but not of telling him of their nature or contents;” that “ Col. Hunt never did tell him of the nature or contents of any instrument of writing which witness was ever called upon to witness; but that he knows from conversations between Col. Hunt and his — 338 — son B. F. Hunt, jr., just previous to the execution of the will and his subscription as a witness, that the will so subscribed, was the will of Col. Hunt; and also that Col. Hunt knew that witness knew that said instrument was the will of Col. Huntthat “he thinks he was present when Mr. Mahoney signed, at the request of Col.- Hunt—he called Mr. Mahoney to witness the will.” On the return of the commission under which this evidence was taken, it seemed to me the testimony disproved a testamentary declaration; but upon its being urged that there was a possibility of a declaration having been made by the reading of the testatum clause, I allowed the proponent the opportunity of a further inquiry. On his examination before me, Messervey testified, that the decedent requested him to go below and get “ two witnesses to the will.” This is I think in conflict with his testimony under the commission. He also says, that Col. Hunt pointed out the spot where the witnesses were to put their names, and that he acknowledged his signature. Messervey further testifies that he the witness read the testatum clause. Mahoney on being recalled stated, that Messervey, on the day the will was executed, called on him, and said that Col. Hunt wished him “ to witness his will,”—that on proceeding to the place, the paper was lying on the table—he looked over it “ about a minute,”—the decedent then stepped up, acknowledged the signature, and then “ pointing his finger to the place where my name is written,” said, “ see here, sign your name there.” This witness also says, he glanced over the attestation clause, and saw the instrument was a will. I do not perceive that the case is helped any by these new or further statements of Messervey and Mahoney. All the witnesses agree that the decedent did not declare the instrument to be his will at the time of the execution—that so far as his words are concerned, he used no expression indicative of the nature of the instrument, whether it was a will, deed, or any other document; that he simply acknowledged his signature, and requested the witnesses to sign at a particular place point — 339 — ed out by him. These then were all the acts performed by the decedent. The knowledge of the character of the instrument gained by the subscribing witnesses from looking at the attestation clause, does not constitute a testamentary declaration by the decedent, unless it was clearly obtained by his request or direction, or at the least, his consent and privity. If anything is to be taken as substitution for an express declaration, it must be such an act as is clear and unequivocal, and as gives the basis of a necessary inference that the testator conveyed, intended to convey, and knew he had conveyed to the minds of the witnesses, that he executed the paper as his last will and testament. There must be mutuality as to the knowledge of all the parties, testator and witnesses, in respect to the nature of the transaction. We cannot spell out, and guess at this mutuality. It must be evinced with reasonable definiteness by the party. There is not enough in the proof to satisfy me, that Col. Hunt had reason to know that the witnesses were aware the paper was his will, or that he wished them to know that. Messervey it is true, says, the decedent requested him to go below and procure witnesses to his will, but that request was made before any one except himself had attested; and although he may have communicated that request to the other witnesses in the same words, it would not supply the defect of a testamentary declaration to the witnesses in person. The declaration must be made to each of the witnesses at the time of subscribing or acknowledging, and as part of the transaction. It must be made in the presence of the parties, and must point to the particular instrument in process of execution. I am of the opinion, therefore, that this instrument was not executed in conformity with the provisions of the statutes of this State. As wills of real estate are governed, so far as relates to the forms of execution, by the law of the place where the land is situated, this instrument is not valid so. as to affect lands in the State of Hew York; and it cannot be admitted to record as a will of real estate. But the question still remains, whether it is to be treated as invalid as a will of personalty. — 340 — In the State of South Oarolina, the formalities requisite to the due execution of wills, were regulated by the Statute of Frauds, (29 Car., 2, ch. 3; Statutes S. C. vol. 3, p. 382,) until the year 1825, when a stricter rule was adopted, requiring the instrument to be signed by the decedent, and to be attested by three witnesses, (Statutes S. C., vol. 6, p. 238.) At the time of its execution, this will was made in a form sufficient to carry real and personal estate according to the law of the place where it was made, and where the decedent was then domiciled. It was a good and valid instrument, duly executed in conformity with the laws which then regulated the act. But a most interesting question arises as to the effect upon the validity of this instrument by a change of the decedent’s domicil to the State of Hew York. I find at the outset the great authority of Justice Story against the validity of a will, which though made under such circumstances, does not conform to the law of the testator’s domicil at the time of his death. He says, “ 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 or testament is void ; for it is the law of his 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.” The distinguished jurist cites John Yoet in support of this proposition; but the passage cited from Yoet, relates only to the question of testamentary capacity, and not to the forms of the instrument. The case he puts is this: if one living in Holland, where a testament may be made at fifteen years, should make his testament, and then change his domicil to Utrecht, where full puberty (eighteen years,) is required in a male testator—his testament as to movables would be rendered void by the change. The same thing would occur he says, if one should — 341 — institute bis wife heir in a country where that was lawful, and then change his domicil to a place where it was not lawful. It is manifest that the observations of Yoet touch only upon the point of testamentary capacity, and not upon the forms and solemnities required for the valid execution of a testament. It is impossible, indeed, he should have intended to apply the rule as to the effect of a change of domicil, to testamentary forms; for he himself is one of the strongest supporters of the doctrine that in respect to forms, locus re-git actum, and in sustaining it, he has gathered a most formidable array of authorities. (Voet, De Statutis, lib. 1, §§ 13, 14, 15.) He shows, that it is a rule of universal recognition, even as against the lex domicilii, unless indeed, it appears that the law of the domicil has been avoided by fraud. He says distinctly on this very case:—Adeoque si Hdllandus. in Moilandid de prcediis Ullragectimis testamento disponat, effectmn sortiri debet voluntas ejus, quia observamit soleovnia loci in quo acias testandi celébralas fuit. Nee infirmabitwr ex eo quod forte post conditum ita in Hollamdid svpremum elogium TJllrar jeclam migret; cum enim peregrini cugusvis in Hollamdid reperti, ibique more Hollandico testantis, voluntas etiam post redilum in palriam rata maneat, si nihil aliad impediat ini quumforet, migratione sold ad locum alia solenwia desiderantem, interrumpí actum in prioris domicilii loco solenniter ante célébralum.—(Liber 28, Tit. 1, § 27 : qui test. fac. poss.) It would be unjust, he says, that a will executed in Holland according to the solemnities there required, should be broken solely by a change of domicil to a place, whose laws demand other solemnities. I proceed now to show that this is not the opinion of Yoet alone. YanLeeuween, commenting upon the subject, 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 the number of witnesses required is seven, * * and upon the general — 342 — 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 and 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. p. 215.) Grotius says: “ DM deformó, sive solemnitate testamenti agitwr respici locum conditi testamenti. (Epis. 467, in 4 Burge. Com. p. 220.) Dumoulin states the rule very broadly—“ Est omnium doctorum sententia, ubicungue consuetudo vel statutum locale disponit de solemmitate vel formd actus, ligari etiam exteros, ibi actum ilium gerentes, et gestum esse validum et efficaeem ubigue, etiam super bonis soli extra territorivm consuetudinis velstaluti." (Dumoulin cited Story’s Confl. Laws, § 441.) M. Toullier says,—“ Enfin il faut observer gue la forme des testaments ne depend ni de la loi du domicile du testatewr, ni de celle des Mens gui sont dormís, ni de celle du temps oü le testateur vient ct dícíder. Elle ne dípend gue de la loi du lieu et du temps de la confeótion du testament."—(Le droit Civil Francais, vol. 5, p. 290, § 382.) Thus Dumoulin declares, that by the consent of all the learned, the local custom governs the form of the act; and M. Toullier, that the form does not depend upon the law of the testator’s domicil, nor of the situs of the goods, nor of the time of the testator’s death, but upon the law of the place, and of the time of the execution of the will. M. Duran ton also states, that the form of the testament is regulated by the law of the time when it was made, and shows that in this respect the rule differs from that which prevails in regard to the testator’s capacity. (Cours de droit Francais, vol. 9, p. 15, § 14, 15, 16.) M. Felix in his Conflict of Laws, says,—“ JJn principe auyourd’hui giniralement adoptí pa/r Vusage des nations, c’est gue la forme des — 343 — actes est réglée par les lois du lieu dans lequel ils sont f aits oil passés.”—(Conflit des Lois, cited by Story, Confl. of Laws and note, p. 727.) Merlin defines the following distinctions, “ In regard to testaments, there are three things to consider—the capacity of the person, the disponibility of the goods, and the form of the disposition. The first is governed by the law of the domicil, the second depends upon the situation of the goods, and the third is governed by the law and custom of the place where the disposition is made.” He adds, “ it is needless to recall the disputes which were raised upon this point by the old civilians—it is many years since they were finished; and now ”—“ tout le monde comient wnanimement que la forme de tester dépend du statut, ou de la coutume du lieu oil Von teste.”—All the world agree unanimously that the form of making the testament depends on the law, or the custom of the place where it is made. (Répertoire Universel et raisonné de Jurisprudence, vol. 34, p. 111, Guyot, Tom. 16, p. 167.) In the reasoning of M. De Yoisins upon the testament of M. De Pommereuil, the grounds of this rule are carefully elaborated—such as the necessity of counsel, the difficulty or impossibility of practising other forms, the ignorance of other forms, the variety of forms, the necessity of adopting one, and the convenience of adopting that of the place. He says, “ les nations en sont cowoenues, et elles vivent augourdVhui entdelles sur lafoi de cette régle.”—(Merlin, Art. Testam.) Pothier speaking on this subject, says,—“The testament in France, ought to be made in the form prescribed by the law of the place where it is made, although the testator has not his domicil in that place, and was there only temporarily,-— that although there would appear to be more difficulty in regard to testaments made by a Frenchman in a foreign country—foreign law not being received in France; nevertheless, “ néammoins les arréts les ontjugés valables: parce que c'estime régle du droit des gens de se conformer, pour la forme des actes, awx lois du lieu oil on les passe —they have been adjudged valid, because it is a rule of the law of nations to conform in respect .to the forms of acts, to the law of the place — 344 — where they are effected.—(Euvres de Pothier. Nouvelle edition, par M. Dupin. Tom. 10. Coutumes, Tit. 16, § 2, 5, 11.) I suppose it impossible to find a single authority among the Continental jurists of the highest character impeaching the doctrine sustained by the authors I have cited, so far as it applies to movables. M. Felix criticises the opposing opinions of three modern authors who question the rule, with entire success. Besides the authorities I have quoted, Vattel, Sande, Peckius, Paul Voet, Christinas us, Bodenburg, Yinnius, Boullenois, Bouhier, and Huberus agree to the principle, and most of them press its application even to immovable property. It is recognized in the codes of Louisiana, France, the two Sicilies, and Sardinia; and is the law of Spain, Holland and Germany. (Jurisprudence du XIXme sièle, par M. M. Sirey et de Villeneuve, pp. 1022-26-40. Code Napol. Art. 99. Concordance entre les Codes Civiles Etrangers et le Code Napoleon, par M. de Saint Joseph. 4 Burge. Com. p. 585.) It has such universal acceptance, that Pothier emphatically styles it a rule of the law of nations. Thus according with the usage of civilized nations, and the concurrent opinion, and. judgment, and enlightened reason of the most eminent civilians, it remains to consider how far it has been adopted by the common law. And in this connection it may be observed, that to adopt the lex loci actus as to the form of the will, does not necessarily oppugn the lex domicilii. The law of the domicil undoubtedly governs in cases of testacy and intestacy, both alike; but then the inquiry arises, what is the law of the domicil in the particular case. The adoption of th£ lex dormcilii, is itself a concession to foreign law upon principles of public convenience, national comity, and right reason; a concession which has been made, justified, and sustained by an appeal to the common consent of nations and the authority of jurists. In determining what is the law of the domicil in any given case, where the local law is not positively settled by legislation, there would seem to be no good reason why a similar deference should not be paid to the jus gentium, and the opinions of learned men. It appears from — 345 — the authorities I have cited, that the rule locus regit actum, has been generally received, perhaps not so much as an exception to the law of the domicil, as a part of that law itself—so that in the adoption of the lex domicilii in this class of cases, it may reasonably be inquired why we should not take with it its universally accepted modifications. In Potinger vs. Wightman, 3 Merivale, 67, on a question of succession and domicil, and the law of England being silent on the subject, Sir William Grant observed, “ on the subject of domicil, there is so little to be found in our own law, that we are obliged to resort to the writings of foreign jurists for the decisions of most of the questions that arise concerning it.” It may be well to see whether the precise point in controversy in the present case has been adjudicated in the English or American tribunals. In the case of the Duchess of Kingston, her will of personal estate, executed at Paris according to the English, but not according to the French forms, was admitted to probate in the Ecclesiastical Court. (Cited in Curling vs. Thornton, 2 Add. R. 21.) Justice Story says she was domiciled in France, Hr. Burge, that she had not relinquished her English domicil; but probably no stress was laid on that point, as she had obtained Letters Patent from the French king, giving her the same power of devising as she would have had in England. The opinion of H. Turgot in favor of the validity of the instrument, was based on the supposition of an English domicil—and proceeded on the principle, that although the solemnities of the lex loci actus were not observed, the will would be good if conformed to those of the domicil.— In Stanley vs. Bernes, 3 Hagg. 373, codicils were rejected, because not made in conformity with the forms of the Portuguese law, which was the lex loci actus et domicilm. The deceased was domiciled in Portugal, and the codicils were executed there. This was the decree of the High Court of Delegates reversing the judgment of Sir John Hicholl. The grounds of the reversal do not appear; but in a subsequent case, Sir Herbert Jenner stated, that the principle decided was, “ that if the instrument be not executed according to — 346 — the law of the domicil of the testator, it is invalid.” He says, “ The Court of Delegates having reversed the sentence of the Prerogative Court, it follows, (though no reasons are given by the court for its decision,) that the two codicils were pronounced against, on the ground that they were not executed according to the law of Portugal, where the testator was domiciled.” (De Bonneval vs. De Bonneval, 1 Curteis, 856.) This conclusion is, I think too broad, for the codicils were not executed according to the lex loci actus; and it would be quite as sound a deduction, looking only at the' case itself, to say, that they were rejected for that reason, as for the other reason. In the case last above cited, the Marquis De Bonneval left a will executed in England, conformably to the English law; but having his domicil in France, Sir Herbert Jenner determined that the validity of the will must be determined by the French tribunals, and for that purpose suspended proceedings. In The Countess De Zichy Ferraris vs. The Marquis of Hertford, 3 Curteis, 468, the testator left a will and a large number of codicils—some of the codicils were not executed according to the statute, (1 Vict. c. 26,) and one of them was executed at Milan, where the testator frequently resided, and had an establishment. The testator being domiciled in England, Sir Herbert Jenner Fust held, that this codicil was invalid, making the following observations:—“It is not pleaded that the late Marquis was domiciled at Milan; it is only pleaded that he was resident there, as a visitor, as he might have been in any other country, and therefore merely a temporary resident, having his domicil in this country, and therefore he was liable to the law of this country with respect to his testamentary disposition. The law of Austria, it is pleaded, would give effect to this codicil, as the act of a foreign resident there, and this may be perfectly true; but if the law of Austria would give effect to the paper, it does not follow that this court could decree probate of the paper, unless it can be shewn that the domicil of the party was in those dominions, and not in the dominions of England, because the domicil of the Marquis was in England: for it is too late now — 347 — to contend that the succession to personal property, either in cases of testacy or intestacy, is to be governed by any other law than the law of the country in which the deceased had his domicil. In the case of succession to the personal estate of an intestate, the cases are too numerous for the court to entertain any doubt that the succession is governed by the law of the domicil; and if there had been any doubt whether the succession to personal property in a case of testacy is governed by the same rule, such doubt would be removed by the decision of the Court of Delegates, in the case of Stanley vs. Bernes. It was there decided that a British born subject who had domiciled himself in Portugal, was bound in the disposition of his property to conform to the law of the country in which he had become so domiciled; and although in that case he had expressed an intention of returning to this country, yet, as he died in Portugal, a domiciled Portuguese subject, the court held, that his will could not be valid unless executed according to the laws of the country in which he was domiciled. Therefore, that case disposes of the whole question as to succession in cases of testacy, deciding that a will to be valid, must be executed according to the law of the country where the party was domiciled; and following that decision, I am bound to administer the law as I found it laid down by the supreme court, as the law of the country ; and I am consequently of opinion, that the circumstance of the paper having been written and executed by the late Marquis at Milan, can give no effect to the paper, it not being executed according to the law of the country in which it is admitted he had his domicil.” It thus appears, that on the authority of Stanley vs. Bernes, where the codicils were not executed in conformity to the lex loci aotús, the learned judge rejected a codicil which was executed according to the lex loci actus. In the absence of the reasons of the court in Stanley vs. Bernes, it is impossible to say what general doctrine was laid down as applicable to cases of this character, for the facts before the court only called for a sentence in rejecting papers which conformed neither to the law of the domicil nor — 348 — to the law of the place where they were executed. It is obvious that the question in Stanley vs. Bernes, did not arise on a testament made with the solemnities required by the lex loei actus, though deficient in those required by the lex domicilii. (4 Burge, 589. See Curling vs. Thornton, 2 Add. 6; Hare vs. Nasmyth, 2 Add. 25; Craigie vs. Lewin., 3 Curteis, 435; Collier vs. Rivaz, 3 Curt., 355; Maltass vs. Maltass, 1 Robert Ecc. R. 67.) Her does it appear in the case of the Marquis of Hertford, how far the judgment of the court would have been affected had the testator been domiciled at Milan, at the time the codicils were made; though if the doctrine inferred from Stanley vs. Bernes be strictly applied, it would seem to exclude wills executed according to any other forms than those prevailing by law at the testator’s domicil at the time of his decease. This case was taken before the Judicial Committee of the Privy Council, (3 Notes of Cases, p. 150;) and the decision below affirmed on the principle, that the English statute of wills, is to be construed as applying to the testamentary acts of all domiciled Englishmen, wheresoever done. I am not aware, however, of but a single decision avoiding a will, made in pursuance of the forms required by the testator’s domicil at the time it was made, but not in conformity to the solemnities demanded by the law of his domicil at the time of his death. The effect of this change of domicil does not appear to have been considered judicially, save in the case of Nott vs. Coon, 10 Miss. R. 543; where it was determined, that a will made in another State by a person then a resident of such State, but who afterwards removed to Missouri, and died a resident thereof, was invalid, not being made according to the law of Missouri. The grounds of this judgment do not appear—nor whether the will related to real estate or to personal. In Desesbat vs. Berguier, 1 Binney, 336, the decedent was an inhabitant of St. Domingo, at the time of making the will and at the time of his death; and the instrument though sufficient in form to pass personal estate in Pennsylvania, was declared invalid. But it was not valid by the law of St. Domingo, and therefore conformed — 349 — neither to the lex loci actús, nor to the lex domicilii. In Grattan vs. Appleton, 3 Story, 755, the decedent was domiciled in the province of Hew Brunswick, and made certain testamentary papers at Boston. The law of his domicil was held to control, and the papers were declared invalid. Returning to the English cases, we find in Price vs. Dewhurst, 8 Simon, 279, 4 My. & Cr., 76, a conjoint will made in 1807, by a husband and wife lately removed from a Danish colony, revoked by posterior wills of both parties made in England, where they were domiciled. In Frère vs. Frère, 5 Notes of Cases, 595, the will was made in England according to the English form, by a person domiciled at Malta, and it appearing that by the law of that island the lex loci actús governed, the will was admitted. In Moore vs. Budd, 4 Hagg. 346, the decedent made his will in Spain, where he was domiciled; and it was rejected, not being conformable to the lex loci actús, nor to the lex domicilii. In Thornton vs. Curling, 8 Simon, 310, there was no question as to the forms of execution—but Lord Cottenham intimated, that the provisions of the will, which was made in England by a British subject domiciled in France, contravening the civil Code, by providing for an illegitimate child to the exclusion of a widow and a legitimate child, might be disregarded by the Court of Chancery. The precise question then in this case has not been determined. If it is to be tested by the general doctrine, that the law of the domicil at the time of the death, governs universally,—a principle which seems to be laid down in many of the cases,—then, although this point has never been directly passed upon, we still have a rule applicable to its solution. The English courts have undoubtedly come to the conclusion that the rule, locus regit actwm, does not govern as to the forms of wills. The case of the Marquis of Hertford settles that point definitely. Whether the law of the domicil at the time of the death, will ever be applied where the domicil has been changed since the execution of the will, so as to effect the revocation of a will valid at the date of its execution, remains — 350 — to be seen. There seem to be just reasons why a change of domicil should not produce such a revocation. The form is not attached to the person, but to the thing done—it is inherent in the body of the act, which when performed with all the solemnities required by the law of the place where it is done, and by the law of the testator’s domicil at the time, is a consummate and perfect transaction. The will is then a complete and valid instrument by whatever rule tested. It has an actual, integral existence. It is a will in due form. Is it to be changed by a change of abode ?—is its validity to fluctuate with the migratory habits of the maker, and to depend upon the contingency of his residence at the time of decease 1 or originally performed with all lawful ceremonies, does it stand good once for all, unless revoked by the express act of the party ? The lex domicilii has been adopted in England, and the lex loci actús rejected; and it is supposed this determination is commended by reasons of simplicity; but in the nature of things, there does not seem to be more difficulty or complexity in determining one than the other. Either rule leads to the adoption of foreign law, and of necessity to its examination. I do not understand the lex loci actús to be carried to the extent of governing the transaction, but simply that if executed according to that rule it may be good, though defective according to the lex domicilii. A will executed according to the law of the domicil at the time of the death, should be held good under all circumstances. Though defective according to this rule, if it still be conformable to the lex loci actús, the continental jurists sustain its validity. If at the time of its execution it be made in harmony with the solemnities required by the law of the place where it was made, and where the testator was then domiciled, I can perceive no good reason in the nature of things, why it should be revoked by a simple change of residence of the maker to another country where other forms are required. The transaction is a perfect and valid act, by the common consent of the continental authorities; and in the . absence of any authoritative decision repugnant to this view, their conclusions as well as — 351 — reasoning command my assent and judgment. It is not without interest as to this subject of revocation, to observe, that our statute seems to contemplate wills executed with other forms than those prescribed by our own law; and in declaring how wills shall be revoked in writing, uses such general terms as embrace other forms,—not giving any particular mode of revocation, but simply requiring the revocation to be “ executed with the same formalities with which the will itself was required by law to be executed.” How, Col. Hunt’s will was required by law to be executed in the precise way in which it was in fact executed—and was then a perfect and legal will. And how has it been revoked % By a change of residence ? There is not a word in all our statute of a revocation effected in that mode; and if not, if this will was valid when it was made, and if no will in writing can be revoked, except in the cases and in the mode required by our statute, how then has this will been revoked ? But there is another portion of our law, which appears also to be in harmony with the liberal usages of those countries where the customs and doctrines of the civil law prevail. At the revision of our statutes, a mistake was made in not providing for the proof of wills where the witnesses were out of the jurisdiction of our courts. This was remedied by the amendatory Act of 1830. (2 R. S. p. 67, §§ 63, 64, 65, 66, 67;) and the Chancellor was authorized to issue a commission for the purpose of taking proof in such cases; but these provisions apply only to wills executed according to the laws of this State. Another section provides for proving before the Chancellor “ wills of personal estate, duly executed by persons residing out of this State, according to the laws of the State or country in whdch the same were made and then the succeeding section 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 such will shall home been executed accm'dmg to the laws of the State or country in which the same was made! (§ 68, 69. In the matter of Roberts’ will, 8 Paige, 446,) these provisions appear — 352 — to adopt the lex loci actús, in the case of persons domiciled abroad: although as I have indicated elsewhere, they do not exclude the operation of the law of the domicil, exiept in the particular modes of probate recognized in these sections of the statute. (Isham vs. Gibbons, 1 Bradford's R. p. 77.) I think the fair construction of these provisions makes these sections applicable to persons residing abroad -at the time of the execution of the will ; and in such case recognizes the law of the place where the act was performed, as a proper criterion and guide in respect to the formality of the act—not as the only criterion, but as one which the law is willing to adopt in view of the special modes of probate prescribed in the statute. If that interpretation be reasonable and just, the policy of our law is sufficiently declared in this branch of the statute. In view then of the state of the continental law and of the jus gentium, in view of our own statute, as well in regard to revocations as to the recognition of the lex loci actús just stated; in view of the fact that the will in question was made conformably to the law of the place where the decedent was domiciled at the date of its execution ; and in the absence of any authoritative ruling on the precise point involved, I conclude in favor of the validity of this instrument as a will of personal estate, and must direct sentence of probate accordingly.