§ 23. What wills may be proved. A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property executed without the state, and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be admitted to probate in this state.

Formerly the first part of § 2511, Code of Civil Procedure, as amended by chapter 686, Laws of 1893.

§ 2611. What wills may be proved; change of residence not to affect validity. A will of real or personal property, executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, executed by a person not a resident of the State, according to the laws of the testator's residence, may be proved as prescribed in this article.16 The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will. This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered, by a will which those sections rendered valid, or capable of being proved as prescribed in this article.17

Comment. In the prior pages, this treatise has at some length referred to the legal requirements regulating testamentary dispo

16 The italics are for the reader's convenience to indicate the origin of § 23, Decedent Estate Law.

17 Repealed, § 130, Decedent Estate Law. § 2611, Code Civ. Pro., was in 1880 in substance enacted in Part

II, Code Civ. Pro., and by chap. 686, Laws of 1893, it was amended. It is taken from chap. 118, Laws of 1876, repealed by $ 52, chap. 245, Laws of 1880, and again by $ 130, Decedent Estate Law.

sitions when made in this State, 18 and also to the definition of a "last will." 19 The rule in this State in reference to cross-reference to extraneous documents of a testamentary nature has also been considered.20 The commentary on this section may therefore be confined to the construction which it has received from the courts of this State. The law of this State still recognizes a great difference between testamentary dispositions of personalty and devises of land. The former are generally governed by the law of the testator's domicile and the latter by the ler rei sitæ.

Prior to the year 1876 it was the law of this State, as in all other civilized states, that the execution of a devise of real property situated in this State, or the dispositions made thereof, must, no matter where executed, be in compliance with the existing Wiils Act of New York; 1 but a bequest of personalty must be executed according to the law of the place where the testator was domiciled at the time of death, in order to be a valid disposition of personalty within this jurisdiction.22 In other words, as regards wills of real property lex rei sita governed, but as regards personalty ler domicilii regit actum.23

In 1876 the Legislature somewhat modified the rule in respect of wills of personalty so as to provide that the same were well executed if made "according to the forms required either (1) by the law of the place where the same was made or (2) by the law of the place where such person was domiciled when the will was made or (3) by the laws of the State of New York." Every will made in the State of New York, according to its forms, was to be valid here as to personal estate situated here, without regard to the law of testator's domicile. No such execution of a will was to be invalidated by a subsequent change of domicile; but the act was not to be retroactive in operation.24

18 Supra, pp. 106–134.

19 Supra, pp. 45, 46, § 2, Decedent Estate Law.

20 Supra, pp. 115, 134.

21 Lynes v. Townsend, 33 N. Y. 558, 561; White v. Howard, 46 id. 144. And see text under §§ 44, 47. Decedent Estate Law.

22 Mills v. Fogal, 4 Edw. 559; Davison's Will, 1 Tuck. 479; Moultrie v. Hunt, 23 N. Y. 394; Dupuy

v. Wurtz, 53 id. 556; Booth v. Timoney, 3 Dem. 416; Tucker V. Field, 5 Redf. 139; Cross v. U. S. T. Co., 131 N. Y. 330; Matter of Cleveland, 28 Misc. at p. 370.

23 See $ 47, Decedent Estate Law; Trimble v. Dziedugyiki, 57 How. Pr. 208; Wright v. Mercein, 34 Misc. 414.

24 Chap. 118, Laws of 1876.

In 1880 the Legislature with some changes placed chapter 118, Laws of 1876, in Part II of the Code of Civil Procedure,25 relating to surrogates; but in 1893 the Code of 1880 was amended and the substance of the act of 1876 was again re-enacted in a single section, as 2611, Code Civil Procedure.26 The original act of 1876 had been repealed when re-enacted in 1880." The Consolidated Laws of 1909 restored the form of the act of 1876 and the Code of 1880, and transferred a part of section 2611, Code of Civil Procedure to section 23 of the Decedent Estate Law, where it now is; and it repealed the act of 1893.28 The residue of the act of 1876 is now sections 24 and 25 of the Decedent Estate Law.

Under this legislation as thus amended wills of personalty executed anywhere, but according to the laws of this State, may be probated here, without regard to their compliance with the law of the testator's domicile.29 If executed within most English-speaking countries according to the law of place of execution,30 and if executed in other countries in accordance with the law of the place of testator's residence,31 such wills of personalty now receive force and recognition in this State as testamentary dispositions.32

But the legislation indicated did not change the fundamental rule, that the sufficiency of a will or devise of real property situated in this State is to be governed wholly by the law of this State, lex rei sitæ, no matter where it may be executed.33

25 §§ 2611, 2612, 2613, Code Civ. Pro. of 1880; and Mr. Throop's note to $ 2611.

26 Chap. 686, Laws of 1893, formerly 8 2611, 2612 and 2613, Code Civ. Pro., Part II, as amended by chap. 178, Laws of 1880.

27 Subd. 52, chap. 245, Laws of 1880.

28 See below, § 130.

29 Matter of Rubens, 123 App. Div. 626; Matter of Cleveland, 28 Misc. 369.

30 $23, Decedent Estate Law. Cf. $ 44, 45, Decedent Estate Law.

31 Matter of Cruger, 36 Misc. 477; Estate of Delaplaine, 19 Abb. N. C.

32 §§ 23, 47, Decedent Estate Law; Matter of Rubens, 128 App. Div. at p. 630.

33 $ 47, Decedent Estate Law; Matter of Klett's Will, 3 Misc. 385; Koppel v. Holm, 23 id. 557; Matter of Coope, 53 id. 509; Matter of 'Nash, 37 id. 706; Matter of Law, 56 App. Div. 454, 458, citing Matter of Gaines, 84 Hun, 520; affd., 154 N. Y. 747; Monypeny v. Monypeny, 131 App. Div. 269; Matter of Wohlgemuth, 110 id. 644, 648. And see text under $$ 44, 45, 47. Decedent Estate Law, infra.

In respect of devises of real property, the rule of most nations recognizes that title to real property can pass only in conformity with lex rei sita, and this is peculiarly true in English-speaking countries, where a devise is regarded only as a species of conveyance, and not a species of succession.34

The earlier history of the legislation in New York respecting foreign wills or wills executed by citizens of this State in foreign jurisdictions is very ably reviewed in several decisions of our courts, and their perusal will enable the reader to perceive more easily the bearing of the later New York acts now embodied in this section of the Decedent Estate Law.35

This present section of the statute, in so far as it validates wills or bequests of personalty, executed in a foreign state according to New York law, but without conformity with the law of that state, can of course have no extra-territorial effect. In France, for example, the rule is "locus domicilii regit actum," and a will by a foreigner executed in France must, by the law of France, conform to French law, that is, be executed before a notary or be holographic. A late case in the Court of Cassation, it is however hoped, has changed somewhat this rule so as to give some effect to the wills of strangers executed in France according to the law of the stranger's domicile.36

Cross-Reference to Section 48, Decedent Estate Law. By an amendment to the Decedent Estate Law, adding section 48 of this act, section 2514, Code of Civil Procedure, is now made expressly applicable to this section.39

34 Markby, Elements of Law, 581; Lord Mansfield in Harwood v. Goodright, Cowp. 90; Corley v. McElmeel, 149 N. Y. 228, 236; Matter of Majot, 199 id. 29; Dixon v. Cozine, 64 Misc. 602. And see § 47, Decedent Estate Law.

35 Estate of Delaplaine, 19 Abb.

N. C. 36; Russell v. Hart, 87 N. Y. 19. Cf. Moultrie v. Hunt, 23 id. 394.

36 Gesling v. Viditz. See 35 Law Mag. & Rev. (London) 34.

3716, chap. 240, Laws of 1909. 38 Chap. 18, Laws of 1909.

39 See below, § 48, Decedent Estate Law.

§ 24. Effect of change of residence since execution of will. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will.

Formerly 2611, Code of Civil Procedure, as amended by chapter 686, Laws of 1893.

§ 2611. What wills may be proved; change of residence not to affect validity. A will of real or personal property, executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, executed by a person not a resident of the State, according to the laws of the testator's residence, may be proved as prescribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will.40 This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered, by a will which those sections rendered valid, or capable of being proved as prescribed in this article.41

Comment. Under the prior section of the Decedent Estate Law, the history of the legislation culminating in this section of the Decedent Estate Law has been given, and we have seen that this section of the Decedent Estate Law is really taken from chapter 118, Laws of 1876.

Chapter 178 of the Laws of 1880 first enacting section 2611, Code of Civil Procedure, preserved the form of chapter 118, Laws

40 The italics are not in the original, but are for convenience of the reader and to point out the origin of $ 24, supra.

41 Repealed, § 130, Decedent Estate Law. 2611, Code Civ Pro., was in

1880 placed under Code Civ. Pro. in substitution of chap. 118, Laws of 1876, repealed subd. 52, chap. 245, Laws of 1880, and by § 130, Decedent Estate Law.