Jarman[304] considers that a will of realty is construed according to the law of the country where the land is situated; but Story,[305] Greenleaf,[306] and others are of opinion that this doctrine of the lex rei sitæ does not apply to the construction, as distinguished from the execution, of wills. There are several American authorities on either side, the balance, however, being in favor of the law as stated by Jarman.
A will has always been presumed, in England, to speak only from the death of the testator as to personalty, but before 1838, from its date as to realty. By 1 Vict., Ch. 26, devises and bequests were to be from death of the testator, unless a contrary intention appears. The rules thus settled by this act have long been adopted in most of our States.[307] A will is presumed in the following States to speak only from the testator’s death, as regards the subject-matter (as distinguished from the objects) of the testator’s bounty: California, Maryland, Missouri, New York, and Pennsylvania.
In Virginia, wills of land speak from the making of the instrument, unless it discloses an intention to the contrary.[308] It is so in Massachusetts, New Hampshire, Vermont, Maine, Indiana, Illinois, North Carolina, Connecticut, and Kentucky; though a testator may, in these States, convey by his will any after-acquired land, provided he declares his intention to that effect. The construction, however, on these statutes virtually raises a presumption that wills speak only from the death of the testator, if there is nothing in the context to the contrary.[309]
It seems the better opinion, that the law of the domicile of the testator will govern as to what shall be regarded as personal estate, and what real. Thus, in Kentucky, shares in the capital stock of railroad companies are considered as real property,[310] and, according to this rule, a will made by a person domiciled there must be executed as a will of real estate, to convey such shares.
And the law of the place of domicile must govern as to what ought to be regarded as testamentary capacity.
Thus, in England, 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.[311]
CHAPTER VIII.
Construction of Wills.