13. The American courts early adopted the same rule, and so far as we have been able to ascertain, by careful examination, have uniformly adhered to it.16 But a question of more difficulty has arisen in some cases, and where there seems to exist a serious conflict of authority, and especially among the Continental jurists of Europe, that is, whether a will, executed in conformity to the law of the place where made, and of the domicil of the testator at the time of its execution, is rendered inoperative by a change of domicil of the testator, by reason of not conforming to the law of the place of the domicil, at the time of the decease of the testator. This question arose in a case in New York, which passed through all the subordinate

at liberty to hold, that notwithstanding such probate, the will had no operation beyond the appointment of the executor, which seems to us a view not easy to maintain, upon established principles, the probate being conclusive, not only as to the validity of the appointment of the executor, but equally as to that of the will itself in all its provisions, until reversed or set aside. But upon appeal to the Court of Delegates, this doctrine of Sir J. Nicholl was declared untenable, and the rule established, which is stated in the text, and this now every where prevails in England and America, or if there are any exceptions, they are of so limited an extent, and of so little weight, as authority, as not seriously to bring the rule in question.

16 Desesbats v. Berquier, 1 Binn. 336. See Parsons v. Lyman, 20 N. Y. Ct. of App. 103; Moultrie v. Hunt, 23 id. 394; s. c. 3 Bradf. 322; Grattan v. Appleton, 3 Story, C. C. 755; Story, Conf. Laws, § 468. And it makes no difference, that the will is executed according to the law of the place where the goods are found. If not executed in conformity to the law of the domicil of the testator, it will not be sufficient to pass personalty. Desesbats v. Berquier, supra; Grattan v. Appleton, supra; Parsons v. Lyman, 20 N. Y. Ct. App. 103. The Massachusetts statute, allowing the will of any inhabitant, made in conformity to the law of any other state, to be admitted to probate there, applies to every kind of testamentary act. Where a testator, therefore, who had made his will in Massachusetts, subsequently made a paper as follows, in the State of New York, "It is my wish that the will I made be destroyed, and my estate settled according to law," which was duly executed as a will by the laws of New York, but not according to the laws of Massachusetts; it was held operative here as a will, to make the former void. Bayley v. Bailey, 5 Cush. 245.

courts, and was finally determined by the Court of Appeals,” where it was held, three of the judges dissenting, that whether a deceased person died intestate or not, is to be determined by the law of the place where he was domiciled at the time of his death. That is the law which prescribes the requisites for the valid execution of a will of personal estate. Thus, where a citizen of South Carolina executed his will in such a manner, as to be a valid bequest of personal property according to the law of that state, but not according to the law of New York, and subsequently established his domicil, and died in the State of New York, it was held, that he died intestate, as to personal property in that state. The same conclusion is reached by Mr. Justice Story,18 after a careful review of the authorities. And it seems to us there can be no question, that the true construction and just application of principle to the case, must* lead to this conclusion. The same point was decided in Missouri.19

17 Moultrie v. Hunt, 23 N. Y. 394; s. c. 3 Bradf. Sur. Rep. 322.

18 Confl. Laws, § 473, citing 1 Binney, 336; Pottinger v. Wightman, 3 Meriv. 68; Henry, and other foreign jurists.

19 Nat v. Coons, 10 Mo. 543. It is here said, that if such a will be made according to the laws of the state where the testator had his domicil at the time, it is not requisite that it be republished in that state, after the testator's removal there, although made in conformity to the laws of another state, where the testator had his domicil at the time of its execution. See also, 1 Jarman, 5; 25 Beav. 231, 232.

And where a paper was made thus: "Codicil 1st; I request my executors and trustees will, after my decease, pay to Mrs. M. C. C. £100 sterling, annually, in quarterly payments, during her life, out of my American property," the maker being a British subject, and having delivered the paper to one in Boston, with request to keep the same until after his death, or till he should call for it, and it having remained in the custody of such person till after the death of the maker, it was held, that such paper was not a donatio mortis causa, but of a testamentary character, and that it was rendered wholly inoperative by a subsequent will of the maker, made in England, and there proved and recorded in Massachusetts, by which he revoked all former wills, and disposed of his American property. Coffin v. Otis, 11 Met. 156.

14. It has accordingly been held, that the words of a will of personalty are to be construed with reference to the law of the domicil of the testator, unless there is some evidence of a different intention. Thus, where one, born and domiciled in England, made his will, giving his personal estate to his heir at law, it was held to import the heir at law, according to the definitions of the English law.20

15. And it seems the better opinion, that the law of the domicil of the testator will govern as to what shall be regarded as personal estate, and what real. The intimation, therefore, in the first edition of Mr. Jarman's work on Wills,21 that this law will only govern as to movables, in the language of the Civil Law, and that it will not apply to leaseholds, which are not included among movables, although regarded as personalty by the English law, has not been acquiesced in by the profession, or the courts.2 It has been held, accordingly, that a Scotch heritable bond, although it contain a personal obligation to pay the debt, does not, on that account, lose its heritable quality, and will not pass by an English will, but descends to the heir at law.23

16. And the law of the place of domicil must govern as to what ought to be regarded as testamentary capacity.24 Thus, administration was granted upon the probate of the will of a married woman, domiciled in Spain, she being also a native of that country, it appearing that, by the law of that country, a feme covert may dispose of her property by will, with certain limitations, the same as a feme sole.25

20 Harrison v. Nixon, 9 Peters, U. S. 483.

21 P. 4, and note, vol. 1.

22 See note to 1 Jarman, 4 Eng. ed. of 1861. "Jeringham v. Herbert, 4 Russ. 388.

24 Ante, n. 8; post, pl. 24 b.

25 Re Maraver, 1 Hagg. 498; Re Gayner, 4 Notes Cas. 696. See also, as to the law of Spain, respecting testamentary disposition. Moore v. Budd, 4 Hagg.

346.

17. It has become a question of considerable importance in the American states, by what law, with reference to the execution of the will and the decease of the testator, the validity of a will is to be governed.26 Upon general principles, there would seem no question that the validity of a will should be determined by the law in force, when the instrument becomes operative. But there seems to have been considerable difference of opinion upon the point, the great weight of principle, if not of authority, being, however, in favor of the proposition just stated. It has been held in Massachusetts, that the provision in the Revised Statutes of that state, that after acquired lands of the testator should pass under a will, where that appeared to have been the intention of the testator, should apply to wills already in existence.27 And it was here said by Wilde, J.: "That the statute

* In most of the states, the law upon this subject is liable to considerable variation, in consequence of the increasing disposition, constantly to amend the law upon all subjects. And although the amendments in regard to wills, more commonly contain provisions, saving those already executed according to the provisions of the former law, this is not always the case.

"Cushing v. Aylwin, 12 Met. 169; Pray v. Waterson, id. 262. The Supreme Court of the United States held, in Carroll v. Carroll's Lessee, 1 How. 275, that a similar statute of the state of Maryland, made without the qualification of the Massachusetts statute, that it should apply only where such appeared to be the intention of the testator, but fixing the construction of all wills, could only be applied to wills thereafter made. And the same course of argument would seem to lead to the conclusion, that general statutes, in regard to the execution of wills, should only extend to such as might be thereafter executed. This is matter of construction, in regard to which there is room for doubt. But wherever a statute is so framed, as to show an intent to reach all wills which shall thereafter become operative by the death of the testator, there can be no question of the power of the legislature to give them that operation.

The subject has recently been discussed, very elaborately, in the Supreme Court of Pennsylvania, and the conclusion arrived at, that wills are to be governed, as to their operation upon future acquired real estate, by the law in force at the time of their execution, and not by that in force at the decease of the testator. Gable's Ex'rs v. Daub, 40 Penn. St. 217. The court rely upon the English cases in regard to charitable uses created by wills, executed before the

disturbs no vested rights, for, before the death of the testator, his heirs had no right whatever, to any part of his estate. This statute is, therefore, to be construed like other statutes, according to the meaning of its language, and the intention of the legislature."—"That the legislature had the constitutional power to enact such a law is not to be denied."

18. It seems equally clear, upon principle, that the legislature must have full power to alter the law, as to the validity of wills, and to require additional formalities in their execution, although it may have the effect to annul existing wills, since no rights can have vested under them, until after the decease of the testator. There can be no more question of the right of the legislature to apply such a law to existing wills, than to the right to change the law of descents, or distributions, as to the estates of such persons, as may decease after the enactment of the law.

statute of mortmain, but where the testator deceased afterwards, and where it was held, that the provisions of that statute did not apply. Ashburnham v. Bradshaw, 2 Atk. 36, referred to with approbation, in Attorney-General v. Lloyd, 1 Vesey, 33, 3 Atk. 552; Attorney-General v. Andrews, 1 Vesey, 225. Those cases, where wills, executed before the statute of frauds, according to the existing law, and which were upheld, although the testator deceased after that statute came in force, are here referred to as favoring the conclusion to which the court came. Tuffnell v. Page, 2 Atk. 37. See also, Attorney-General v. Bradley, 1 Eden, 482; Attorney-General v. Downing, Dickens, 414. There are other cases, in this state, holding the same view. Mullen v. McKelvy, 5 Watts, 399; Murry v. Murry, 6 Watts, 353; Lewis v. Lewis, 2 W. & S. 455; Mullock v. Souder, 5 W. & S. 198; Kurtz v. Saylor, 8 Harris, 205. It seems that at one period, it was decided by a majority of the Supreme Court of this state, the opinion being delivered by Chief Justice Gibson, that wills were to be judged by the law existing at the decease of the testator. But the case has not been reported, and did not have the effect to change the current of decision in that state. There will always be felt a strong inclination in the courts, to uphold wills, executed according to the existing state of the law, and not to declare them invalid by reason of any change in the law, unless it is very clear that such was the intention of the legislature. And as matter of construction, this is not unreasonable.