here ex

sonal prop

a person resident, but not domiciled, in France, made domiciled a testamentary paper relating to personalty in France, tend to perand to personalty and realty in England, and a second erty paper solely relating to personalty in France, and dis- abroad: posing of the whole of it to a woman with whom he cohabited, but appointed no executor in either paper, nor residuary legatee, nor devisee of his property in England; his widow was held entitled to administration with both papers annexed. (d)

probate here does

grant of

not extend

to it:

It must not be understood, however, that where a testator dies domiciled in England, leaving assets abroad, the grant but the of probate here can extend to them. For the probate was never granted except for goods which at the time of the death were within the jurisdiction of the ordinary who made the grant. (e) Though if it should become necessary * that the courts of the foreign country where the assets were situate should grant probate or administration for the purpose of giving a legal right to recover and deal with them, such courts, by the comity of nations, would probably follow the decision of the court of probate in this country, as being the country of domicil. (f)

here of

Again, if a will be made here and proved in the court of probate here, the probate will not extend to property in the colonies; (g) though, if the testator was domiciled in this country, the judge of probate in the plantations is

eign representative after appointment of a domestic representative, is no defence to an action by the domestic representative to foreclose the mortgage. Stone v. Scripture, 4 Lansing, 186; Vroom v. Van Horne, 10 Paige, 549. See Wilkins v. Ellett, 9 Wallace, 740.]

(d) Spratt v. Harris, 4 Hagg. 405; In the Goods of Winter, 30 L. J., P. M. & A. 56.

(e) Attorney General v. Dimond, 1 Cr. & J. 356; S. C. 1 Tyrwh. 243; Attorney General v. Hope, 1 Cr., M. & R. 530; S. C. 4 Tyrwh. 878; 8 Bligh, 44; 2 Cl. & Fin. 84; Raymond v. Von Watteville, 2 Cas. temp. Lee, 551; Story Confl. Laws, ch. xiii. § 514; post, pt. 1. bk. vII.; [Attorney General v. Bouwens, 4 M. & W. 191, 192; Boston v. Boylston, 2 Mass. 384; Brodie v. Bickley, 2 Rawle, 431; Embry

Will made property in nies, &c.

the colo

v. Millar, 1 A. K. Marsh. 300; Schultz v. Pulver, 11 Wend. 361, 363, 372; post, 1929, note (b); Willard v. Hammond, 21 N. H. 382.]

(f) See Story Confl. Laws, ch. xiii. §§ 512, 513, 518; Burton v. Fisher, Prerog. Dublin, 1 Milward's (Irish) Rep. 188.

(g) Burn v. Cole, Ambl. 416; Atkins v. Smith, 2 Atk. 63. So a defendant who had been arrested in Ireland by writ of ne exeat regno issued out of chancery there for a debt due to an intestate, was discharged, on the ground that the plaintiff had not obtained administration in that country. Swift v. Swift, 1 Ball & Beat. 326. See stat. 23 Vict. c. 5, s. 1, by which probate here is to extend to India government notes, &c.

bound by the probate here, and ought to grant it to the same person. (h)

An execu

here in re

spect of foreign assets with

out a

foreign probate.

But though the executor of a man who has died domiciled in England be not able to sue in a foreign court by virtue tor may sue of an English probate (any more than he can sue in an English court by virtue of a foreign probate), yet for the purpose of suing in an English court, a probate obtained in the proper court here extends to all the personal property of the deceased wherever situate at the time of his death, whether in Great Britain, or the colonies, or in any country abroad. (i) And assets in any diocese in Ireland are, with reference to this doctrine, subject to the same rule as assets found in any other place out of the realm, as Scotland for instance, or the colonies, or France, or any other foreign country. Therefore an executor having clothed himself with an English probate, might, without having obtained probate in Ireland also, sue in the courts here to recover a debt which was bona notabilia in Ireland. (k)

*It is now a clearly established rule, that the law of the country in which the deceased was domiciled at the time of the death, not only decides the course of distribution or succession as to personalty, (1) but regulates the decision as to what constitutes the last will, (m) without regard

The law of the place of domicil regulates the deci

sion as to

(h) By Lord Mansfield, Ambl. 416. (i) 3 Q. B. 507.

(k) Whyte v. Rose, 3 Q. B. 493. It would, however, be a good defence to such an action that the debt had been paid to a personal representative of the deceased duly constituted by the ecclesiastical court in Ireland. 3 Q. B. 510. [See Hutchins v. State Bank, 12 Met. 425, 426.]

(1) See post, pt. III. bk. IV. ch. 1. § v. [p. 1515 et seq. So as to the proceeds of real estate. Wood v. Wood, 5 Paige, 596.]

(m) Craigie v. Lewin, 3 Curt. 435; De Zichy Ferraris v. Lord Hertford, 3 Curt. 468, 486; Bremer v. Freeman, 10 Moore P. C. 306; Enohin v. Wylie, 10 H. L. Cas. 1; Crispin v. Doglioni, 3 Sw. & Tr. 96, 99; [L. R. 1 H. L. 301;] Whicker v. Hume, 7 H. L. Cas. 124. [Whether a person died intestate or not, is to be de

termined by the law of the place where he was domiciled at the time of his death. Moultrie v. Hunt, 23 N. Y. 394.] A question is put in Story's Conflict of Laws, ch. xi. § 473, as to what will be the effect of a change of domicil after the will is made, if it is valid by the law of the place where the testator was domiciled when it was made and not valid by the law of his domicil at the time of his death. And that eminent writer expresses his opinion that the will in such a case is void; for that it is the law of the actual domicil of the testator at the time of his death, and not the law of his domicil at the time of making his will, which is to govern. [So held in Dupuy v. Wurtz, 53 N. Y. 556; Moultrie v. Hunt, 23 N. Y. 394.] Sed quare. See, also, as to wills made by persons who die after August 6, 1861, stat. 24 & 25 Vict. c. 114, § 3; post, 374.

to the place either of birth or death, or the situation of the validity of the the property at that time. Accordingly, if the deceased was a foreigner, domiciled abroad, and his will be brought into the court of probate here for the purpose of being admitted to probate, the court, in deciding whether the instrument be a valid will or not, will be guided, not by our own law, but by the law of the country where the deceased was domiciled. (n)

by the law

of the place of domicil:

be guided Thus, in a modern case, where the testatrix was a married woman, a native of Spain, domiciled there, and it appeared upon affidavits, that by the law of Spain she had power to bequeath as a feme sole, the property which she brought her husband on her marriage, probate was granted of the will, made according to the law of that country. (0)

the same with respect to

the wills of British

subjects

domiciled

in foreign

states, who

* And it was established by the determination of the delegates in Stanley v. Bernes, (p) that the same rule, viz, that the question of the validity of a will of a testator domiciled abroad ought to be determined in our courts of probate according to the law of the country where the testator died domiciled, extends to the case of a British died before subject domiciled in a foreign state, notwithstanding the will disposes of property in England. (9) In that case, the delegates, reversing a sentence of the prerogative court, refused probate to two codicils, disposing solely of money in the British funds and made by a British born subject, domiciled in the Portuguese dominions, on the ground that the instruments were not

Aug. 6,

1861.

138; Potter v. Titcomb, 22 Maine, 303, 304; Darby v. Mayer, 10 Wheat. 468, 469; Kerr v. Moon, Wheat. 565; U. States v. Crosby, 7 Cranch, 115; 4 Burge Comm. Col. & For. Law, pt. 2, ch. 15, pp. 217, 218; Robertson v. Barhom, 6 Monroe, 527; Bailey v. Bailey, 8 Ohio, 239; Varner v. Bevil, 17 Ala. 286; Calloway v. Doe, 1 Blackf. 372, and notes. In Massachusetts, a will made in another state, which might be proved and allowed according to the laws of the state or country in which it was made, may be allowed and admitted to probate in Massachusetts, and will thereupon have the same effect as if it had been executed according to the laws of the latter state. Gen. Sts. c. 92, § 8. A similar law exists in many other states. This statute applies to every kind of testamentary act; as, to an instrument proved as a will revoking a previous will. Bayley v. Bailey, 5 Cush. 245. See Manuel v. Manuel, 13 Ohio St. 458; State v. M'Glynn, 20 Cal. 233. It has been held that a court of equity in Massachusetts, has no jurisdiction to enforce a trust arising under the will of a foreigner, which has been

proved and allowed in a foreign country only, and no certified copy of which has been filed in a probate court in Massachusetts. Campbell v. Wallace, 10 Gray, 162; Campbell v. Sheldon, 13

Pick. 8.]

(0) In the Goods of Maraver, 1 Hagg. 498. Before granting probate of a foreign will, the court should be satisfied of one of two things; either that the will is valid by the law of the country where the testator was domiciled, or that a court of the foreign country has acted upon it, and given it efficiency. In the Goods of Des Hais, 34 L. J. N. S., P. M. & A. 58. [See Goods of De Vigny, 4 Sw. & Tr. 13.

The testamentary capacity of the testator, including not only his general capacity to make a will but his power to affect the estate intended to be disposed of by it, is governed by the law of his domicil. Schultz v. Dambmann, 3 Bradf. Sur. 379.]

executed according to the law of Portugal. This decision has overruled the doubts expressed by Sir John Nicholl in Curling v. Thornton, (r) whether a British subject is entitled so far "exuere patriam" as to select a foreign domicil in derogation of his British, and thereby to make the validity of his will depend on its conformity to the foreign law. (8)

And it should seem, according to the old law, that if a British subject, domiciled in a foreign country, by his will appoints an executor, but makes a disposition of his property, which, though valid by the law of England, is invalid by the laws of that foreign country, the court of chancery is at liberty, notwithstanding probate may have been granted to the executor in this country, to hold that the will has no operation *beyond the appointing of the executor; (t) and, consequently, that he is a trustee for the next of kin, and must distribute the property exactly as if the deceased had died intestate.

the term

"the law

country of

When it is said that the law of the country of domicil must regulate the succession, it is not always meant to speak meaning of of the general law, but, in some instances, of the particular law which the country of domicil applies to the of the case of foreigners dying domiciled there, and which domicil:" would not be applied to a natural born subject of that country. Thus in Collier v. Rivaz, (u) the testator, an English born subject, died domiciled in Belgium, leaving a will not executed according to the forms required by the Belgian law. But by that law, the succession in such a case is not to be governed by the law of the country applicable to its natural born subjects, but by the law of the testator's own country. And it was held, that the will, being valid according to the law of England, ought to be admitted to probate. (v) So in Maltass v. Maltass, (w) it appeared that by the law of Turkey no subject of that country can make a will.

(r) 2 Add. 17.

(s) See, also, Moore v. Budd, 4 Hagg. 346; De Bonneval v. De Bonneval, i Curt. 857, 858; In the Goods of Gayner, 4 Notes of Cas. 696, and the cases cited, Ib. 697, note; Collier v. Rivaz, 2 Curt. 855; Laneuville v. Anderson, Prerog. 11 March, 1853, 17 Jur. 511, 2 Sw. & Tr. 24; Bremer v. Freeman, 10 Moore

P. C. 306; In the Goods of Osborne, Dea. & Sw. 4.

(t) Thornton v. Curling, 8 Sim. 310. See, also, Campell v. Beaufoy, Johns. 320; post, pt. 1. bk. v1. ch. 1.

(u) 2 Curt. 855.

(v) See the observations made on this case by Lord Wensleydale in Bremer v. Freeman, 10 Moore P. C. 374. (w) 1 Robert. 67.