The principles of law appertaining to this subject are well settled and recognized, and are now invariably acted upon. The language of wills is supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference to them, unless there is something in the language which repels or controls such a conclusion.
In regard to personalty, (in an especial manner) the law of the place of the testator’s domicile governs in the distribution thereof, and will govern in the interpretation of wills, unless it is manifest the testator had the laws of some other country in his own view. This is usually expressed by the legal formula, that, with regard to personal property, the lex domicilii governs.[291] The law on this subject has never been more clearly expressed, or better summarized, than by the Lord Chancellor, in the case of Enohin v. Wylie.[292] His lordship there says: “I hold it to be now put beyond the possibility of a question, that the administration of the personal estate of a deceased person belongs to the court of the country where the deceased was domiciled at his death. All questions of testacy or intestacy belong to the judge of the domicile. It is the right and duty of that judge to constitute the personal representative of the deceased. To the courts of the domicile belong the interpretation and construction of the will of the testator. To determine who are the next of kin, or heirs of the personal estate of the testator, is the prerogative of the judge of the domicile. In short, the court of the domicile is the forum concursus to which the legatees under the will of a testator,[293] or the parties entitled to the distribution of the estate of an intestate, are required to resort.”
As a will is governed in its interpretation according to the law of the place where the testator had his domicile, therefore, if a testator, born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir-at-law, that the descriptio personæ would have reference to, and be governed by, the import of the terms in the sense of the laws of England.[294] The import of them might be very different if the testator were born or domiciled in France, Pennsylvania, or Massachusetts.
To ascertain what the testator means, we must first ascertain what was his domicile, and whether he had reference to the laws of that place or the laws of any foreign country.[295]
The law of the domicile governs as to the proper mode of execution and attestation of wills of personal property; hence it is accepted as a rule of universal application, that a will of personal property, duly admitted to probate where a person has his domicile, is conclusive on all other courts, and is sufficient to pass personal property, wherever situated.[296]
It has been a subject of discussion, whether a will, made by a person according to the law of his domicile at the time when made, will be operative if he subsequently changes his domicile, and dies in his new domicile. This is a question of grave importance, and one on which there is a serious conflict of authority. The question is then presented, as to what law should govern, whether the law of the domicile at the time the will was made, or the law of the domicile at the time of decease.
This question arose in New York, in a case which passed through all the subordinate courts, and was finally determined by its highest court, after very thorough and learned examination. It was the case of Moultrie v. Hunt.[297]
The testator, Benjamin F. Hunt, resided at Charleston, and there made his will, in August, 1849, conformable to the laws of South Carolina. He subsequently removed to New York, where he established his domicile, and where he died. His will was attested, at his request, by three witnesses; but Mr. Hunt did not state to the witnesses the nature of the paper which he requested them to attest, and, therefore, omitted to comply with one of the requisites of the statute in New York, which requires a publication of the will, to be a valid execution thereof.
The Surrogate, when the case came before him, decided to admit the will to probate, and made a decree accordingly. This decree was affirmed by the Supreme Court, whence it was taken on appeal to the Court of Appeals, and it was there reversed, a very able judge (Denio) writing the opinion of the court. His opinion was very able and elaborate, and a thorough examination was made of all the authorities. He holds that a will cannot operate so as to confer rights of property until the death of the testator, until which event it is, in its essence, ambulatory and revocable. Therefore, it is the law in force at the death of the testator that should govern as to the due execution of a will and the capacity of a testator. He illustrated this in the case of the legislature making laws that would have the effect of invalidating wills already made, and shows that where a will was witnessed by but two witnesses, three being required at the time it was made, that it was subsequently validated by a law in force at the decease of the testator, allowing two witnesses to attest a will. He quotes from Story[298] to show that it is the law of the domicile at the time of death that should govern as to the proper execution, and he approves that doctrine, and holds it applicable to this case; which, it was held, should be governed by the law of New York, the law of the domicile of the testator at the time of his death, and therefore Mr. Hunt was considered as dying intestate in respect to personal property in New York. Judge Redfield, in his work on wills, approves of this doctrine,[299] and the same point has been decided in Missouri.[300]
The question, however, is not free from doubt, as very able jurists differ on it. As far as New York is concerned, it has settled the law there.