In re the Judicial Settlement of the Account of Proceedings of Coudert

Fowler, S. The will of Alcime Baillard, a native of France, dying in France, was duly proved in this jurisdiction. The will in question was executed in Paris, but in conformity with the law of Few York. The property of M. Baillard was, at his death, in Few York, where for some portion of his life testator had sojourned. The will is in the French tongue and technically it corresponds with the requirements of the law of France regulating last wills and testaments. It appoints the daughter of testator, Mine. Oarassale, the wife of the Consul for Uruguay at Fice, “universal legatee,” subject, however, to certain life legacies or usufructs for the lives of legatees: “ Je legue á ma filie Georgine Baillard, épouse de Monsieur Americo Carassale, Consul de l’Uruguay a Fice, avec lequel elle demeure dans la dite ville, tons les biens meuble et immeuble, droits et actions mabiliéres et immobiliéres qui m’appartiendront lors de [265] mon décés et composeront ma succession, en quoi qu’ils puissent consister et en quelsques endroits qu’ils soient dus et situés, sans aucune exception, ni reserve, je l’institute en consequence ma légataire universelle á charge de supporter et d’exécuter les legs d’usufruit et rente viagéres constituées au cours de present testament.” Mr. Coudert, the .sole executor, having now administered the estate in Mew York and having instituted this proceeding, presents to us a decree providing for the remittance of the balance, now held by executor for distribution, to Madame Carassale, the universal legatee of M. Raillard, without bonds; the same to be held by her in conformity with the law of the testator’s last domicile, viz, France. If the will is to be construed according to the law of this state, Madame Oarassale might be held to be a trustee for the life beneficiaries mentioned in the will. This construction is not desired and not pressed. What, then, is the proper construction of this will ? It must be remembered that it is a will of a Frenchman last domiciled in France. The administration has taken place here thus far simply because the property of the deceased happened at his death to be in this jurisdiction. Such property is altogether movable or personal property. Ordinarily “ mobiliw sequunter personam.” The fact that the will in question was proved in this jurisdiction does not necessarily make this the principal place of administration. The testator was domiciled in France when he died and his movable property necessarily occupies the situs of the testator’s last domicile. France, therefore, should be regarded in this ease as the principal and not the ancillary place of administration. It should not be forgotten that there is under this will a universal succession. Mow, if we have regard to the law of France a “ universitas juris ” or a universal succession is always governed by the lex loci domiciUi (These, par le Docteur en droit, Marion, p. 13, et seq.). But independently of the principle just [266] stated, a will of movables is generally, in the absence of other intention, to be governed by the laws of a testator’s last domicile. (Westlake, Private International Law [5th ed.] 170; Bentwich, Domicile & Succession, 101; Dicey, Conflict of Laws [2d ed.] 679; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 id. 192.) Thus it is that where children are entitled to legitim by the law of testator’s last domicile any provision in the will in derogation of legitim must give way to the law of testator’s last domicile. (Thornton v. Curling, 8 Sim. 310; Hog v. Lastaley, 6 Bro. P. C. 377; Kilpatrick v. Kilpatrick, Id. 58; Munro v. Douglas, 5 Mad. 394.) To give effect to the principle indicated, administration in a foreign jurisdiction will sometimes be stayed in order to await and abide by the construction of the courts of the last domicile. But we are not without domestic authority on these and similar points. That the decree in this case should provide that the surplus be remitted to the universal legatee to be disposed of by her in accordance with the will and the law of the testator’s last domicile I have no doubt. (Despard v. Churchill, 53 N. Y. 192; Hardenberg v. Manning, 4 Dem. 437.) While it may be that there is a substitution under French law (corresponding tO' the trusts known to our law), of which substitution the usufructuary legatees are beneficiaries, that is for the French law to determine. I am also of the opinion that the universal legatee should not be required to give security. Decreed accordingly.