It was accordingly held in New York, that where a will was made before the Revised Statutes came into operation, but the testator died afterwards, the validity of the trusts and provisions of the will must be determined by the law, as it existed at the decease of the testator.28 And it is clear also, that a will executed before the passage of a statute, and not in conformity to the then existing law, but which is in conformity to the new law, will be regarded as a valid will, if the testator decease while such new law is in force.29 19. The law of the domicil governs as to the testamentary capacity, which extends, not only to general capacity to make a will, but also to the disposable power over the estate.30 20. And the decisions of the court of the place of the domicil of the testator, as to the validity, or the revocation, of a will of personalty, are held conclusive upon all other courts, but not so as to realty, not within that jurisdiction.31 21. And the provisions of a will made by a testator domiciled here, in regard to the investment of his personal estate, situated "De Peyster v. Clendining, 8 Paige, 295; Bishop v. Bishop, 4 Hill, 138; ante, § 30, n. 38. Lawrence v. Hebbard, 1 Bradf. Sur. Rep. 252. This was the case of a will, executed while the law required three witnesses to a will, but this will, having but two witnesses, was, therefore, clearly invalid. But by the Revised Statutes, in force at the decease of the testator, only two witnesses were required, and it was held, the will was legally executed; ante, § 18, pl. 25. 30 Schultz v. Dambmann, 3 Bradf. Sur. Rep. 379. Bloomer v. Bloomer, 2 Bradf. Sur. Rep. 339. Hence, it is the practice of the ecclesiastical courts and Court of Probate, in England, to grant probate of the wills of Englishmen, domiciled in the British territories in India, which have been proved there, without inquiring into the grounds of the proceedings in India, although the bulk of the property may happen to be in England. Re Read, 1 Hagg. 474; Hare v. Nasmyth, 2 Add. 25. And such is the general practice in the American states. But where the will is first proved, away from the forum of the proper domicil of the testator, such probate will not be regarded with the same respect when brought into the forum of the domicil. Nat v. Coons, 10 Mo. 543. within the foreign jurisdiction of the place of his domicil, in violation of the law of the place of the domicil, but not in violation of the law of the place where the investment is directed to be made, cannot be upheld. The personal estate, and the proceeds of the real estate, must be disposed of in conformity to the law of the domicil of the testator, especially if within that jurisdiction.82 22. By the Code Napoleon, which is the law of Holland, as well as of France, the surviving parent is entitled to the income of the children's estate, until they attain eighteen years of age. But it was held, that this incident of the local law did not attach to an estate in Holland, decreed to children, on account of a marriage settlement of their deceased mother, the children being born, and always residing with their father in England, and that the father could not claim the income of such estate, while the children were under eighteen.33 Sir Lancelot Shadwell, V. C., said: "The claim of the father does not arise by virtue of the contract, but solely by the local law of the country, where he was residing at the time of the marriage, and therefore this property must be considered just as if it had been an English legacy, given to the children." 23. Some curious questions have arisen in regard to marshalling assets in different countries. A native and constant resident of Holland, made his will there in due form, giving certain houses to charitable objects, and then gave all the residue of his estate to the defendant, making him his universal heir and executor, he having effects to a considerable amount in England.3 The executor did not prove the will in Holland, as, if he did, by the law of that country he became liable for all the debts of the deceased, without regard to the amount of property which had come into his hands. But the executor proved the will in Eng VOL. I. 82 Wood v. Wood, 5 Paige, 596. 33 Gambier v. Gambier, 7 Simons, 263. 35 land, and took possession of the testator's effects there. The plaintiff, being the charitable legatee in Holland, came into chancery to compel the executor and residuary legatee to reimburse him for the houses specifically bequeathed to him, and which had gone to pay the testator's debts in Holland; and the court held, that the plaintiff was entitled to be reimbursed, for the value of his specific devise, which had been taken to pay the debts of the testator. 24. The question in regard to the law which governs the succession to intestate estates, is discussed somewhat extensively by Mr. Justice Wayne, in the case of the will of Kosciusko,35 and the rule fully recognized, that it is the law of the place of domicil as to personalty, which must govern in all cases, citing the early English cases in confirmation of the judgment pronounced.36 The rule also prevails, says the learned judge, in the ascertainment of the person who is entitled to take as heir or distributee. It decides whether primogeniture gives a right of preference, or an exclusive right to take the succession; whether a person is legitimate to take the succession; whether · the person shall take per stirpes or per capita, and the nature and extent of representation. 25. It has lately been held in the English Court of Probate,37 that the rule of law, that a will of personalty must be executed in conformity to the law of the testator's domicil, as it existed at the time of his decease, does not apply to a will made in execution of a power. In the course of the opinion, Sir Cresswell Cresswell took occasion to correct an observation made by him 35 Ennis v. Smith, 14 How. U. S. 400. Pipon v. Pipon, Amb. 25, 27; Thorne v. Watkins, 2 Vesey, 35. See also, 3 Paige, 182. The case of Ennis v. Smith, supra, which involved the consideration of the domicil of Kosciusko, and the construction of his will, and how far he died intestate, is in many respects a most interesting case upon this subject, and contains many valuable incidents connected with general history, q. v. "In re Alexander, 6 Jur. N. s. 354. in another case,88 to the effect, that the rule of law upon this subject, as laid down in Tatnall v. Hankey,39 in these words, " A will disposing of personal estate, situated in this country, in pursuance of a power of appointment, and executed in compliance of the requirements of the power, is entitled to probate, though not executed according to the testamentary law of the domicil of the party making it," was not maintainable. The learned. judge said, he had since been furnished with the actual judg ment of the Privy Council, in these words, "That the validity of the will of the said deceased, so far as regards the appointment [there] does not depend upon the law of the domicil of the testatrix at the time of her decease," and that he was bound to act upon that decision. This is upon the ground, that where the execution of the power is in conformity with the instrument giving the power, it is sufficient, since the donee under the power and its execution, takes by force of the power, and not of its execution, except incidentally. Hence if the will, made in execution of the power, is in conformity with the law of the domicil of the party at the time the power is conferred, it is all which is fairly implied in the power.40 26. It was recently decided in the English Court of Probate,11 that the law of the domicil, at the time of the death of the testator, as to what constitutes the last will, is binding on other countries. And that where a will, made in an acquired domicil, uses technical language of the native domicil, the courts of the acquired domicil resort to the law of the native domicil for the purpose of ascertaining the meaning of such language.42 27. And where a will is executed in a foreign jurisdiction, and has been there duly proved, and a copy of such probate "Crookenden v. Fuller, 5 Jur. N. s. 1225. "2 Moore, P. C. C. 342. 40 1 Jarman, 5, ed. 1861. "Laneuville v. Anderson, 2 Swab. & Trist. 24; 6 Jur. N. s. 1260. Martin v. Lee, 4 Law T. N. s. 651; ante, pl. 10, n. 8. duly allowed and filed in the proper probate court of the ancillary administration, it will be presumed that the probate court of the place of domicil had jurisdiction of the same, unless the contrary appears, and all exceptions to the validity of the foreign probate must be taken at the time of the admission of the copy in the ancillary jurisdiction, or they will be considered as waived.43 SECTION III. STATUTES PASSED PENDING THE SETTLEMENT OF ESTATES. 1. Statutes affecting procedure merely will operate upon estates in course of settle ment. 2. In matters affecting the expense of settlement and in the discretion of the judge, rule the same. 3. The right of the heir vests upon the descent cast. 4. The right of a distributee also vests from the decease. 5. So also in regard to the right of the widow of the intestate. n. 8. Abstract of the rule which obtains in Connecticut. 6. The right of a distributee becomes vested at the decease of the intestate in Massachusetts. 7. But the assignments for support of widow and family are not vested until made. 8. And the right of the widow to waive the will and claim dower, &c., is personal. 9. The extent to which legislative acts affect estates in course of settlement. 10. Clearly cannot affect vested rights. § 30 b. 1. There can be no doubt of the validity of statutes passed during the settlement of an estate, requiring conformity to its provisions, in all future proceedings in the administration of estates of deceased persons, whether deceased before or after the date of such statutes, at least so far as the mode of procedure is concerned. 43 Townshend v. Downer, 32 Vt. 184. The same rule obtains in New Hampshire. Barstow v. Sprague, 40 N. H. 27. |