42 of 1876, but chapter 686, Laws of 1893, changed the form of chapter 118, Laws of 1876, as it re-enacted all the sections of the Code, embodying the Act of 1876, as one new section of the Code of Civil Procedure, and this condensation, or rearrangement, proved awkward legislation. The Consolidated Laws have restored the original arrangement of the Code of 1880 and chapter 118, Laws of 1876. It will be perceived, then, by a reference to the Act of 1876, that section 24 of the Decedent Estate Law is in reality derived from section 3 of chapter 118 of the Laws of 1876,3 and that it was after 1880 made section 2612 of the Code of Civil Procedure. In 1893 it was condensed and made part of section 2611 of the Code of 1893. In this last form section 2611 of the Code of Civil Procedure was in 1909 made sections 23, 24, and 25 of the Decedent Estate Law.16 44 45 49 In accordance with the general rule recognized in most countries,17 the validity in this State of the execution of a will of personal property, prior to 1876,48 depended upon the law of the place where the testator was domiciled at the time of his death, not at the time of the execution of the will. In law, the "domicile" of a testator is not necessarily in the same country as that of his immediate residence,50 although it was held in Matter of Cleveland, that "residence" and "domicile" are synonymous.51 "Domicile," however, seems to be that particular abode which is the legal residence of the domiciled for almost all purposes except those relating to his nationality.52 A person's nationality is not necessarily that of his domicile, nor is a person's "residence" necessarily his 42 See Matter of Rubens, 128 App. Div. at p. 631. 43 Repealed subd. 52, chap, 245, Laws of 1880. 44 Chap. 178, Laws of 1880. 45 Chap. 686, Laws of 1893. 46 Chap. 18, Consol. Laws. 47 8 585, Wharton, Conflict of Laws; Story, Conflict of Laws, chap. XI. 48 Chap. 118, Laws of 1876. 49 Moultrie v. Hunt, 23 N. Y. 394; Dupuy v. Wurtz, 53 id. 556; Matter of Coburn, 9 Misc. 437. Cf. text under $8 23, 44, 47, Decedent Estate Law. 50 Matter of Newcomb, 192 N. Y. 235; Younger v. Duffie, 94 id. 535. 51 28 Misc. at p. 371, citing De Meli v. De Meli, 120 N. Y. at p. 491; People v. Pratt, 117 id. at p. 167. And see Matter of Sands, 62 Misc. 146. 52 Matter of Newcomb, 192 N. Y. 238, 251. Cf. Tucker v. Field, 5 Redf. 139. domicile." "53 One may be domiciled in Paris and yet be a resident of Pau, France, and at the same time a citizen of the United States of America.54 A married woman's domicile is presumed to be that of her husband.55 Formerly a change in a testator's domicile might annul or at least have very serious results on his prior testamentary dispositions, as the law of the place where testator was domiciled at the time of his death alone governed them.56 The intent of the Act of 18765 and that of the Code of Civil Procedure of 188058 was to change this harsh rule to some extent.59 What is a change of residence is a difficult problem. Every person, however, has a status or "a domicile of origin," and this domicile of origin is not constructively changed by long foreign residence, and the burden of proving a change always rests on the party asserting the change.60 In the contested succession to the historic Lauderdale Peerages in 1885, decided in the House of Lords in England, the case largely turned upon the domicile of origin of a British officer, Major Maitland, who died in the garrison city of New York before the colonies separated from Great Britain. The domicile of origin of Major Maitland, the ancestor of one claimant, was Scotch, but the counter-claimant, Sir James Maitland, attempted to show that 53 Matter of Newcomb, 192 N. Y. 238, 251; Cruger v. Phelps, 21 Misc. 252; Matter of Brant, 30 id. 14; Matter of Sands, 52 id. 146. 64 Matter of Newcomb, 192 N. Y. 238; N. Y. Life Ins. Co. v. Veile, 161 id. 1, 19; §§ 1993, 2172, U. S. R. S.; chap. 2534, 34 U. S. Stat. at Large; Ware v. Wisner, 50 Fed. Rep. 310; Cruger v. Phelps, 21 Misc. 252; Matter of Cruger, 36 id. 477. 55 Jones v. Jones, 8 Misc. 660. Cf. Harry v. Dodge, 66 id. 302; Haiter v. Van Camp, 64 id. 366, 368. 56 Moultrie v. Hunt, 23 N. Y. 394; Dupuy v. Wurtz, 53 id. 556; Ames v. Duryea, 61 id. 609. Cf. Matter of Cleveland, 28 Misc. at p. 370; Matter of Majot, 109 N. Y. 29. 57 Chap. 118, Laws of 1876. 59 Matter of Coburn, 9 Misc. 437; Matter of Cruger, 36 id. at p. 482; Matter of Rubens, 129 App. Div. 626; N. Y. Life Ins. Co. v. Viele, 161 N. Y. II, 19. 60 Matter of Cleveland, 28 Misc. at p. 371; Ames v. Duryea, 61 N. Y. 609; N. Y. Life Ins. Co. v. Viele, 161 id. 11, 19; Cruger v. Phelps, 21 Misc. 252, 261; Matter of Newcomb, 192 N. Y. 238. Cf. Matter of Jones, 19 Misc. 80, 83, as to proof of change of domicile; Matter of Brant, 30 id. 14; Matter of Majot, 109 N. Y. 29. Major Maitland, in fact, became domiciled in New York, for by the common law, in force in New York, Major Maitland's descendants were not entitled to succeed, but by the Scotch or civil law, they would prevail. It was held by the Peers that Major Maitland's domicile of origin was Scotland, and unchanged, and his issue prevailed.61 The precise extent and application of this section of the Decedent Estate Law is not clear. It will be noticed that in Matter of Coburn, in 1894, the surrogate, speaking of this very section, states that it does not go to the extent of declaring that the validity of a will is not affected by a change of the testator's residence made since the execution of the will." 63 Such a construction is doubtless sound. This section seems on its face to relate wholly to the former legal effect of a change of domicile on a prior will. It modifies the former legal effect of such a change only in so far as the probate of the prior will is concerned, or in so far as the validity or the construction of a provision contained therein is concerned. 64 Cross-Reference to Section 48, Decedent Estate Law. By an amendment to the Decedent Estate Law,65 adding section 48 of this act, section 2514, Code of Civil Procedure, is now made expressly applicable to this section. 61 Lauderdale Peerages, 10 App. Cas. 692; s. c., 17 Abb. N. C. 439 (N. Y.). 62 § 23, Decedent Estate Law, formerly 2611, Code Civ. Pro. of 1893; but it was § 2612 of the Code Civ. Pro. of 1880, and before that it was $3 of chap. 118, Laws of 1876. 66 639 Misc. at p. 439. And see Dammert v. Osborn, 140 N. Y. 30. 64 § 16, chap. 240, Laws of 1909. 65 Chap. 18, Laws of 1909. 66 See below, § 48, Decedent Estate Law. § 25. Application of certain provisions to wills previously made. The last two sections apply only to a will executed by a person dying after April eleventh, eighteen hundred. and seventy-six, and they do 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 seventysix, 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 article first of title third of chapter eighteen of the code of civil procedure. Formerly part of § 2611, Code of Civil Procedure: 2611. (Am'd 1893.) 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. This 67 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.68 Comment. This section is the repetition of a mere saving clause first contained in sections 4 and 5 of chapter 118, Laws of 1876.69 Sections 4 and 5 of chapter 118, Laws of 1876, were next repeated 67 The italics are ours, to show the derivation of $ 25, Decedent Estate Law. 68 Repealed, § 130, Decedent Estate Law. 69 Repealed, subd. 52, chap. 245, Laws of 1880. in Part II of the Code of Civil Procedure, enacted in 1880.70 Sections 2611, 2612, and 2613 of the Code of Civil Procedure of 1880 were amended and re-enacted in 1893"1 and condensed in one section, all being made section 2611 of the Code of Civil Procedure.72 The last part of that section was next transferred to section 25, Decedent Estate Law, where it now is. It will be perceived that this section 25 and the two prior sections, 23 and 24, Decedent Estate Law, are mere re-enactments of chapter 118, Laws of 1876, as amended by chapter 178, Laws of 1880, and chapter 686, Laws of 1893. The commentary on the prior section makes this apparent. 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.75 70 § 2613, chap. 178, Laws of 1880. 71 Chap. 186, Laws of 1893. 72 Repealed, § 130, Decedent Estate Law. 73 § 16, chap. 240, Laws of 1909. 74 Chap. 18, Laws of 1909. 75 See below, 8 48, Decedcnt Estate Law. |