WILLS.

§ 666. Proof necessary to establish a will. In order to ascertain the quantity and kind of proof necessary to establish a will, regard is to be had either to the law of the domicile of the testator or to the law of the country where the property is situated, and sometimes to both. The mode of proof is also affected by the nature of the proceedings under which it is offered. In some cases it is necessary to prove the concurrence of all the circumstances essential to a valid will, by producing all the subscribing witnesses, after due notice to the parties in interest; while, in others, it is sufficient for the occasion to prove it by a single witness. (a) There is also a diversity in the effect of these different modes of proof; the one being in certain cases conclusive, and the other not. There is, moreover, a diversity of rule, arising from the nature of the property given by the will; a few States still recognizing the distinction between a will of personalty, at common law, and a devise of lands under the Statute of Frauds, in regard to the formalities of their execution; and others having by statute established one uniform rule in all cases. These varieties of law and practice create great embarrassments in the attempt to state any general rules on the subject. But still it will be found that, on the question as to what law shall govern, in the requisites of a valid will, there is great uniformity of opinion; and that the several United States, in their legislation respecting wills,

(a) If a will is conditional, or only to take effect on certain contingency, the condition must be shown to be fulfilled by him who would set up the will. Parsons v. Land, 1 Ves. Sr. 190; Sinclair v. Howe, 6 Ves. 607; Cowley v. Knapp, 42 N. J. 1. 297; Estate of White, Myrick's Prob. (Cal.) 157. But if the contingency is the occasion of making the will, and not a condition on which the instrument is to become operative, the happening of the contingency need not be shown. Thus, where the will was in this form: "Let all men know hereby, if I get drowned this morning, Mar. 7, 1872, that I bequeath all my property, personal and real, to my

beloved wife, Florence. Witness my hand and seal, 7th March, 1872. Wm. T. French :" it was held not to be a contingent will, and that it took effect though the testator lived a long time after that morning. French v. French, 14 W. Va. 460, where the subject of conditional wills and the authorities are very fully cited and discussed. Nuncupative wills will not be favored, and, if admitted to probate, will be construed strictly (Peirce v. Peirce, 46 Ind. 86); and, if invalid as to a part of a specific item of property bequeathed, it is invalid as to the whole (Striker v. Oldenburgh, 39 Iowa, 653).

have generally adopted the provisions of the statute of 29 Car. II. c. 3, commonly called the Statute of Frauds.

§ 667. Division of the subject. It will therefore be attempted, first to consider by what law wills are governed, and then to state the formalities generally required in the execution of wills, noting some local exceptions as we proceed. Thus it will be seen to what extent the evidence must be carried, in the complete and formal proof of any will.

§ 668. Law which governs will. (1.) As to what law is to govern the formalities of a will, a distinction is to be observed between a will of personalty or movables and a will of immovable or real property. In regard to a will of personal or movable property, the doctrine is now fully established, that the law of the actual domicile of the testator is to govern; (a) and if the will is void by that law, it is a nullity everywhere, though executed with the formalities required by the law of the place where the personal property is locally situated. There is no difference, in this respect, between cases of succession by testament, and by intestacy, both being alike governed by the rule Mobilia personam sequuntur. And if, after making a valid will, the testator changes his domicile to a place by whose laws the will thus made is not valid, and there dies, his will cannot be established; but if, still surviving, he should return to and use his former domicile, or should remove to another place having similar laws, the original validity of his will or testament will be revived.2 It results, that a will of personalty may be admitted to probate, if it is valid by the law of the testator's last domicile at the time of his decease, though it is not valid by the law of the place of the probate.3

§ 669. Lex fori governs in wills of personalty. From this rule it would seem to follow, almost as a matter of necessity, that the same evidence must be admitted to establish the validity and authenticity of wills of movables, made abroad, as would establish them in

1 Story, Conf. Laws, §§ 467-469; Stanley v. Barnes, 3 Hagg. Eccl. 373; Dessebats v. Barquier, 1 Binn. 336; Crofton v. Ilsley, 4 Greenl. 134; Vattel, b. 2, c. 8, §§ 110, 111; 4 Kent, Comm. 513; 1 Jarman on Wills, pp. 2-6, and notes by Perkins, 5th (Am.) ed. *2-*7; De Zichy Ferraris v. Marquis of Hertford, 3 Curt. 468.

2 Story, Confl. Laws, § 473; 4 Burge on Col. & For. Law, pp. 580, 591. 8 In re De Vaer Meraver, 1 Hagg. Eccl. 498.

(a) An Englishman, residing in Spain, directed his wife to make his will after his decease, such a will being valid by the law of Spain; and a will so made by the

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wife, in pursuance of such directions, was held valid in England. In re Osborne, 33 Eng. Law & Eq. 625.

the domicile of the testator; for otherwise the general rule above stated might be sapped to its very foundation, if the law of evidence in any country, where the movable property was situate, was not precisely the same as in the place of the testator's domicile. And therefore parol evidence has been admitted in courts of common law, to prove the manner in which a will is made and proved in the place of the testator's domicile, in order to lay a suitable foundation to establish the will elsewhere.1 (a)

§ 670. Lex rei sitæ. Realty. But in regard to wills of immovable or real property, it is equally well established, that the law of the place where the property is locally situated is to govern, as to the capacity or incapacity of the testator, the extent of his power to dispose of the property, and the forms and solemnities to give the will its due attestation and effect.2 (6)

1 Story, Confl. Laws, § 636; De Sobry v. De Laistre, 2 Har. & Johns. 191, 195; Clark v. Cochran, 3 Martin, 353, 361, 362. And see Wilcox v. Hunt, 13 Peters, 378, 379; Don v. Lippmann, 5 Cl. & Fin. 15, 17; Yates v. Thompson, 3 Cl. & Fin. 544, 574. The rule that a devise of lands must be executed in the form required by the law of the place where the lands lie, though a general rule of law, has been expressly enacted in the statutes of Maine, New Hampshire, Delaware, Rhode Island, Indiana, and Missouri. In several other States a contrary rule is adopted, by which lands in those States may pass by a will, made in a foreign State, in the form required by the law of the place where it was made. But to have this effect, the foreign will must have been first proved abroad, and then be admitted by a certified copy, to be filed and registered in the State where the lands lie. Such is the rule, as expressly enacted in Massachusetts, Vermont, Florida, Michigan, Illinois, Louisiana and Arkansas. Whether such is the legitimate effect of the rule adopted in other States, as in Virginia, Ohio, New Jersey, Kentucky, Tennessee, Mississippi, and Alabama, where a copy of the foreign will, being duly proved abroad, may be allowed in the Court of Probate, and admitted to be recorded, quære. See Dublin v. Chadbourn, 16 Mass. 433; Parker v. Parker, 11 Cush. 519; Bailey v. Bailey, 8 Ohio, 239; Mease v. Keefe, 10 Ohio, 362; 1 Jarm. on Wills, pp. 1, 2, n. by Perkins; Maine Rev. St. 1840, c. 107, § 20; Mass. St. 1843, c. 92, Pub. Stat. pp. 748, 749; Bayley v. Bayley, 5 Cush. 245; N. H. Rev. St. 1842, c. 157, § 13; R. I. Rev. St. 1844, p. 237; Vt. Rev. St. 1839, c. 45, § 24; Del. Rev. St. 1829, p. 557; Ind. Rev. St. 1843, c. 30, § 51; Missouri Rev. St. 1845, c. 185, § 35; Fla. Thomps. Dig. p. 194; Mich. Rev. St. 1846, c. 68, §§ 21-24; Ill. Rev. St. 1839, p. 688; La. Civ. Code, art. 1589; Ark. Rev. St. 1837, c. 157, § 36; Tate's Dig. p. 900; Ohio Rev. St. 1841, c. 120, §§ 29-33; N. J. Rev. St. 1846, tit. 10, c. 9, § 2; Ky. Rev. St. 1834, vol. ii. p. 1548; Tenn. Rev. St. 1836, p. 593; Miss. Rev. St. 1840, c. 36, §§ 13, 14; Ala. Tolm. Dig. p. 885. See 6 Cruise's Dig. tit. 38, c. 5, § 69, n. (Greenleaf's ed. 1857).

2 Story, Confl. Laws, § 474, and authorities there cited; 4 Burge on Col. & For. Law, pp. 217, 218; 1 Jarman on Wills, pp. 1, 2, and notes by Perkins; 4 Kent, Comm. 513.

(a) Upon this principle, that personal property must follow the domicile of the testator, it was held, if a will, disposing of movables situated in Delaware, was made in Pennsylvania where was the domicile of the testator, and was valid by the laws of Pennsylvania, though not by those of Delaware, it was a good will and would pass title to the personal estate. In order,

however, to give effect to it in Delaware, probate of it must be made in the county where the goods were situated, but that the proof required would be that requisite by the laws of Pennsylvania, not of Delaware. St. James Church v. Walker, 1 Del. Ch. 284. Cf. Re Osborne, 33 Eng. Law & Eq. 625.

(b) Where a testator made a will in

§ 671. Interpretation. In the interpretation of wills, whether of movable or immovable property, 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 of the common law is, that it is to be interpreted by the law of that place at the time when the will was made. Thus, for example, if the question be, whether the terms of a foreign will include the "real estate of the testator, or what he intended to give under those words; or whether he intended that the legatee should take an estate in fee or for life only; or who are the proper persons to take, under the words "heirs at law," or other designatio personarum, recourse is to be had to the law of the place where the will was made and the testator domiciled.1 And if the will is made in the place of his actual domicile, but he is in fact a native of another country; or if it is made in his native country, but in fact his actual domicile at the time is in another country; still, it is to be interpreted by reference to the law of the place of his actual domicile. The question whether, if the testator makes his will in one place, where he is domiciled, and afterwards acquires a new domicile in another country, where he dies, the rule of interpretation is changed by his removal, so that if the terms have a different meaning in the two countries, the law of the new domicile shall prevail, or whether the interpretation shall remain as it stood by the law of the domicile where the will was made, is a question which does not seem yet to have undergone any absolute and positive decision in the courts acting under the common law.3

§ 672. Probate. In determining the effect of the probate of wills, regard is to be had to the jurisdiction of the court where the will is proved, and to the nature of the proceedings. For, as we have heretofore seen, it is only the judgments of courts of exclusive jurisdiction, directly upon the point in question, that

1 Story, Confl. Laws, § 479, a, b, c, e, h, m; Harrison v. Nixon, 9 Peters, 483. 2 Story, Confl. Laws, § 479 f; 4 Burge on Col. & For. Law, pp. 590, 591; Anstruther v. Chalmer, 2 Sim. 1; ante, vol. i. §§ 282, 287, 292; 1 Jarman on Wills, 5th (Am.) ed. pp. 5–*8. 8 Harrison v. Nixon, 9 Peters, 483, 505; Story, Confl. Laws, § 479 g.

Pennsylvania, attested by two witnesses, conveying both real and personal estate, it appearing that his domicile was in Rhode Island, where three witnesses are required, the will was refused probate in Pennsylvania. Carey's Appeal, 75 Pa. St. 201.

A person's domicile is that place where he has fixed his habitation, without any present intention of removing therefrom. Bouvier, Law Dict. v. 1, 489; Story, Confl. Laws, 43.

are conclusive everywhere, and upon all persons.1 In England, the ecclesiastical courts have no jurisdiction whatsoever over wills, except those of personal estate; and hence the probate of wills, by the sentence or decree of those courts, is wholly inoperative and void, except as to personal estate; being, as to the realty, not even evidence of the execution of the will. The validity of wills of real estate is there cognizable only in the courts of common law, and in the ordinary forms of suits; and the verdict. and judgment are conclusive only upon the parties and privies, as in other cases. But as far as the personal estate is concerned, the sentence or decree of the proper ecclesiastical court, as to the validity or invalidity of the will, is final and conclusive upon all persons, because it is in the nature of proceedings in rem, in which all persons may appear and be heard upon the question, and it is the judgment of a court of competent jurisdiction directly upon the subject-matter in controversy.2 But in many of the United States, courts are constituted by statute, under the title of courts of Probate, Orphans' courts, or other names, with general power to take the probate of wills, no distinction being expressly mentioned between wills of personalty and wills of real estate; and where such power is conferred in general terms, it is understood to give to those courts complete jurisdiction over the probate of wills as well of real as of personal estate, and therefore to render their decrees conclusive upon all persons, and not re-examinable in any other court.3

1 Ante, vol. i. §§ 528, 550.

21 Williams on Executors, b. 6, c. 1, pp. 339-348 (1st Am. ed.), 8th (Eng.) ed. pp. 556-565; 1 Jarman on Wills, pp. 22, 23, and notes by Perkins; Tompkins v. Tompkins, 1 Story, 547.

3 Such is the law in Maine and Massachusetts. Potter v. Webb, 2 Greenl. 257; Small v. Small, 4 Greenl. 220, 225; Osgood v. Breed, 12 Mass. 533, 534; Dublin v. Chadbourn, 16 Mass. 433, 441; Laughton v. Atkins, 1 Pick. 548, 549; Brown v. Wood, 17 Mass. 68, 72. (a) So in Rhode Island. Tompkins v. Tompkins, 1 Story, 547. So in New Hampshire. Poplin v. Hawke, 8 N. H. 124. So in Connecticut. Judson v. Lake, Day, 318; Bush v. Sheldon, 1 Day, 170. So in Ohio. Bailey v. Bailey, 8 Ohio, 239, 346. So in Louisiana. Lewis's Heirs v. His Ex'rs, 5 La. 387, 393, 394; Donaldson v. Winter, La. 137, 144. So in Virginia. Bagwell v. Elliott, 2 Rand. 190, 200. So in Alabama, after five years. Toulman's Dig. 887; (b) Tarver v. Tarver, 9 Peters, 180.

In Pennsylvania and North Carolina, the probate of a will of lands is prima facie

(a) In Massachusetts, the decree of the court of probate, duly approving and allowing the will of a married woman, unappealed from and unreversed, is final and conclusive upon the heirs-at-law of the testator, and they cannot in a court of

common law deny the legal capacity of the testatrix to make such a will. Parker v. Parker, 11 Cush. 519, 524.

(b) Goodman v. Winter, 64 Ala. 410. Cf. Hardy v. Hardy, 26 Ala. 524.