the duty of ecclesiastical courts to ascertain what was the domicil of the party whose will is offered for probate, in order to ascertain whether that is a valid will, the testator having. complied with the requisites of the law of the country in which he was domiciled. But if probate is granted of a will, then that conclusively establishes, in all courts, that the will was executed according to the law of the country where the testator was domiciled." . . . "No other court could go back upon the factum, and raise any question upon the validity of the will."

LAW GOVERNING FOREIGN WILLS.

8. It is scarcely necessary to state, that in regard to real property, the mode of execution, the construction, and the validity of a will must be governed, exclusively, by the lex rei sitæ. The descent of real estate, as well as the devise of it, are governed exclusively by the law of the place where the property is situated. It would not comport with the dignity, the independence, or the security of any independent state or nation, that these incidents should be liable to be affected, in any manner, by the legislation, or the decisions of the courts, of any state or nation besides itself. This has been a universally recognized rule of the English law from the earliest time, and is so unquestionable, that we should scarcely feel justified in occupying much space in reviewing the cases.5

9. And it is equally clear, that personal estate is, in all respects, governed by the law of the domicil of the deceased owner, both in regard to its distribution, where there is no testament, and equally, where there is one, as to the requisites, validity, and construction of such testament. But as to the court, and the

1 Jarman, ed. 1861, 1; Bovey v. Smith, 1 Vernon, 85. It is here said, that wills in Latin or Dutch must be so framed as to pass an estate according to our law, this having reference to real estate in England. Drummond v. Drummond, cited 2 V. & B. 132; Brodie v. Barry, 2 V. & B. 131.

mode of administration, the law of the place where such personal estate is situated will prevail. But the rule does not apply to a will made in execution of a power.7

10. And as to legacy duty, it seems to be now settled in England, although long in controversy, that where the domicil is foreign, that legacy duty is under no circumstances payable.8

1 Jarman, 2 and notes; Anstruther v. Chalmer, 2 Sim. 1; Price v. Dewhurst, 8 Sim. 299; 4 My. & Cr. 76; Spratt v. Harris, 4 Hagg. 408; Ferraris v. Hertford, 3 Curt. 468; Croker v. Hertford, 4 Moore, P. C. C. 339; Reynolds v. Kortwright, 18 Beavan, 417; Robins v. Dolphin, 27 L. J. Prob. 24. Stock in the public funds is regarded, of course, as personal estate. In re Ewin, 1 Cr. & J. 151.

Alexander in re, 6 Jur. N. s. 354.

8 Re Bruce, Cr. & J. 436; Hay v. Fairlie, 1 Russ. 117; Logan v. Fairlie, 1 My. & Cr. 59, reversing the decision in 2 Sim. & Stu. 284; Arnold v. Arnold, 2 My. & Cr. 256; Commissioners r. Devereux, 13 Sim. 14; Thomson v. Adv. Gen. 12 Cl. & Fin. 1; s. c. 13 Sim. 153. See re Coales, 7 M. & W. 390; AttorneyGeneral v. Cockerell, 1 Pr. 165, and the Same v. Beatson, 7 Pr. 560, which are now clearly overruled.

But where the testator has a representative appointed in England, for the purpose of collecting his personal effects situated in that country, and elsewhere, and the testator is domiciled there, legacy duty is payable, not only upon that portion of the effects belonging to the estate, situated in that country, and which rendered the administration there necessary, but upon all the effects collected elsewhere, and remitted to England to be there distributed. In re Coales, 7 M. & W. 390; Attorney-General v. Napier, 6 Excheq. 217; Re Ewin, 1 Cr. & J. 151.

But if the will is not proved in that country, and there is no administration there, no legacy duty is payable, although the amount is payable to the legatee in England out of funds in the hands of the foreign agent in that country, at the time of the decease of the testator, or are collected abroad where the testator resided, and remitted to the executors in England, and there administered under a decree of the Court of Chancery. Arnold v. Arnold, 2 My. & Cr. 256; Jackson v. Forbes, 2 Cr. & J. 382; s. c. nom. Attorney-General v. Jackson, 8 Bligh, N. s. 15.

But the English cases are not entirely reconcilable upon this point, and may not be entirely applicable to the several state statutes in force, or to that of the United States recently come in force. The following cases have more or

But in regard to the general incidents of administration, there can be no question they are governed by the law of the place of administration, which is, that where the goods and effects are situated, without reference to the domicil of the deceased. But what is the last will of the deceased, he having his domicil abroad, and how it is to be executed, so far as personal estate is concerned, is to be determined exclusively by the law of the place of domicil.9

11. In the State of New York, statutory provisions exist for making probate of foreign wills before the Court of Chancery, by means of the appointment of commissioners to take the proofs. The petitioner must show, that the decedent left assets within the state, or that such are within the state at the time of the application, and that the petitioner is interested in the same, and what probate court has the proper jurisdiction of the case, and whether the will is to be proved as a will of real or personal estate, or both.10 And it must appear, that the will, so far as personal estate is concerned, was duly executed according to the laws of the country where the testator was last domiciled. It was here held, that a Scotch deed of disposition and settlement, if duly executed. as a last will and testament by the laws of Scotland, where the

less bearing upon questions as to legacy duty under the English statute. Attorney-General v. Dimond, 1 Cr. & J. 356; Same v. Hope, 1 Cr., M. & R. 530 ; 2 Cl. & Fin. 84; 8 Bligh, 44; Drake v. Attorney-General, 10 Cl. & Fin. 257, affirming Platt v. Routh, 3 Beav. 257; 6 M. & W. 756, and overruling AttorneyGeneral v. Staff, 2 Cr. & M. 124; and Palmer v. Whitmore, 5 Sim. 158. See also, 4 M. & W. 171; 9 Sim. 430; 6 Sim. 570.

.9

• Lord Cottenham, Chancellor, in Price v. Dewhurst, 4 My. & Cr. 75, 82, 83, and the summary of cases in the ecclesiastical courts there cited and commented upon. Hare v. Nasmith, 2 Add. 25; Stanley v. Bernes, 3 Hagg. 373; Curling v. Thornton, 2 Add. 6, 21, 22.. See also, Thornton v. Curling, 8 Sim. 310.

10 Easton's Will, 6 Paige, 183. The proof being made before the Court of Chancery, the decree is to be remitted to the proper surrogate having jurisdiction of administration, with direction to grant letters, and proceed with the administration in due course. See also, Roberts' Will, 8 Paige, 446, 519.

testator was domiciled at the time of his decease, and in the presence of two witnesses, as required by the laws of New York, it was a valid will of the testator's real and personal estate in that state.10 In those American states, where the probate of wills is conclusive both of real and personal estate, the courts of equity will not assume jurisdiction to compel the performance of a trust arising under a will proved in another state, but of which there has been no probate, or its equivalent, by filing a copy of the original probate, in the state where the trust is claimed to be enforced, and into which state the funds belonging to the estate have been removed by the personal representatives. Such probate and administration is entirely local, and the personal representative appointed in one state, or his authority, cannot be recognized in any other state. The rule is again recognized by the same court, as to funds directed by a testator in England to be remitted to a person in Boston, and by him held in trust for certain purposes under the will. The will had been regularly proved in the Prerogative Court of Canterbury, but no copy filed in Massachusetts, as required by the statute of that state, and the court held, that a Court of Equity had no jurisdiction to enforce the trust under the will, until it was made a record in the Probate Court there.12

12. It was for a long period made a question, whether it was indispensable for the will of a testator, domiciled abroad, to conform to the requirements of the law in the place of domicil, in order to pass the title to personalty. And so lately as 1840, the distinguished Chancellor of New York, in the case of Roberts' Will,18 states the law thus: "The better opinion," seems to be, "so far as regards the mere formal execution of the testament, it is sufficient, if it conforms to the law of the country

"Campbell v. Sheldon, 13 Pick. 8. We shall have occasion to discuss this question more in detail, when we consider the question of the probate of wills. "Campbell v. Wallace, 10 Gray, 162.

38 Paige, 519, 525.

where the will is made, according to the maxim, locus regit actum." 13 14 And the learned judge adds: "Probably the testament may also be valid if made and executed in conformity to the law of the testator's domicil, although it does not conform, in all respects, to the lex loci actus." But it is entirely well settled, and has been for many years, that a will of personalty must conform to the law of the place of the domicil of the testator at the time of his decease, and that it will not be entitled to probate unless it do so conform; and that it will make no difference in that respect, that the testator is a native of England, and that the personal estate is there situated, and that the will is made in conformity with the English law. If it do not also conform to that of the place of the domicil of the testator, it is wholly inoperative, so far as personalty is concerned.15

1 See 17 Guyot, Repert. De Juris, art. Testament, 186; 4 Burge, Col. & For. Law, 583; Civil Code of Louis. art. 1589.

15 Stanley v. Bernes, 3 Hagg. 373-465; Moore v. Darell, 4 Hagg. 346, 352; and other cases before cited to the same point. It is true, that even as late as 1823, Sir John Nicholl held, that in regard to a British subject, domiciled in a foreign country at the time of his decease, and whose will was executed according to the law of England, but not according to that of the place of domicil, it would be valid to pass personalty, but chiefly upon the ground, that it was not competent for a British subject, to so completely divest himself of allegiance, as to come under the same law in that respect as one never owing any allegiance there. He admitted, that as to British subjects, domiciled in any part of the United Kingdom, the law of their domicil must govern, both as to successions and testaments, and that the same rule must govern as to foreigners, domiciled abroad, but having personal estate in England. The point which he made was, that a British subject, resident abroad, and having personal estate in England, could not so far defeat the operation of the law of his own country as to such estate, as to render an English will void in regard to it. Curling v. Thornton, 2 Add. 6, 10–25. But even in this case, after probate of the will in the ecclesiastical courts by the executor, application was made to the Court of Chancery, 8 Sim. 310, and Sir L. Shadwell, V. C., held, that he could not revise the decision of the Ecclesiastical Court in regard to the probate, but that he was