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§ 47. Validity and effect of testamentary dispositions.

The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.

Formerly Code of Civil Procedure, $ 2694:

$ 2694. Testamentary disposition; what law governs. The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.3

Comment. The original of this section was new to the Code of Civil Procedure, as is shown by the note thereto by Mr. Throop, the codifier. That it was also largely declaratory of pre-existing law is apparent.

Jurisdiction. Prior to Part II of the Code of Civil Procedure, enacted in 1880, the rule that a foreign will might be admitted

3 Repealed, § 130, Decedent Estate Law.

4 Mr. Throop's note to § 2694, Code Civ. Pro., is follows: “New.- Declaratory of the rule of

law, and inserted in accordance with Subd. 2 of the preliminary note to art. I of this title. See L. 1876, chap. 118, revised in $8 2011-2013 (Code Civ. Pro.) ante."

as

to probate, although the mode of its execution did not conform to the law of this State, was confined to a will of personalty. This rule, the Code left untouched and it is still in force. With regard to a will or devise of real property, the effect of its probate, before the adoption of Part II, Code of Civil Procedure, was merely the same as the acknowledgment, or proof, and the record, of a deed.? But the probate of a will of personalty was a conclusive adjudication on the factum of a will.8 Notwithstanding such probate of a will of personalty, the Revised Statutes contained provisions for impeaching the probate within a year thereafter. Thus, it appears that as to the probate of wills of real property the probate was not conclusive, either as to validity of the will or its due execution. But a probate of a will of personalty was conclusive as to its validity until reversed on appeal, or revoked in the manner provided by the statute, or until the will was declared void by a competent tribunal. 10

The differences last mentioned in the effect of probate, the codifier of 1880 proposed to abolish, but his proposal encountered great opposition.11 In 1881, the Legislature, however, amended the Code of Civil Procedure so as to make the probate of wills of real property presumptive evidence. Whether it was competent for the Legislature to go even thus far, or so affect the legal title to land by statutory presumption, and in this way impair the right of trial by jury on the regularity and validity of a title by devise, has, as it would seem, never been directly adjudicated by the proper tribunal having final jurisdiction of such questions.13 But, except as to the change in the presumption last indicated, the effect of a decree of probate of a will of realty and the effect of a decree of probate of a will of personalty remain as before the Code of Civil Procedure; and under constitutional reservation of the right of trial by jury on the validity of title by devise, this difference in legal effect seems ineradicable.14 The difference in question is alluded to in our Introduction, and it finds its origin in the fact that legal titles to lands could at common law be determined only by the verdict of a jury, whereas over the validity of wills of personalty the spiritual courts had, prior to the independence of this State, a plenary and complete jurisdiction of great antiquity.15 In the continued distinction pointed out, we may perceive also traces of the old common-law rule, that a devise of lands was in legal theory a mere written appointment or conveyance of particular property to a particular person, whereas in the spiritual courts, affected as they were by the Roman or canon law, a will of personalty was a formal mode of continuing the persona or legal existence of the testator himself.16

688 2611, 2012, 2694, 2703, Code Civ. Pro.

6 $ $ 23, 24 and 25, Decedent Estate Law.

7 See Mr. Throop's original note to chap. 18, tit. 3, art. I, Code Civ. Pro.

8 2 R. S. 61, § 29; Vanderpool v. Van Valkenburgh, 6 N. Y. 190. 92 R. S. 61, 88 30-39.

10 Matter of Last Will of John Kellum, 50 N. Y. 298, 299.

11 See Mr. Throop's note to chap. 18, tit. 3, art I, Code Civ. Pro.

12 Chap. 535, Laws of 1881.

13 See Introduction, p. 40, supra, and chaps. 576, 578, 584, Laws of 1910.

Domicile. Under section 24 of this act, we have referred to the authorities defining “ domicile ” as that particular abode which is the legal residence of the domiciled for almost all purposes except those relating to his nationality."? A married woman's legal domicile is prima facie that of her husband; at least, during the existence of the marital relation. A will of a woman made before marriage, but who at the time of her death is domiciled in New York, is revoked under the laws of this State by her marriage, as the law of the domicile at time of death governs. 19

A late and very interesting case presents the question. how far a marriage contract under foreign law may modify the law of decedent's last domicile, where no policy of the State is affected thereby.20 In Matter of Majot, two citizens of France, married in France under the Community régime, whereby the wife acquired ipso facto an interest in the husband's property and such as he afterward acquires, subsequently immigrated to this State, where he died intestate, seized and possessed of real and personal property which was all acquired here. It was held, in reference to the property acquired by the husband here, that the spouses were domiciled here at the time of his death, and that the law of his last domicile prevailed over that of the matrimonial domicile, and consequently that the widow must pay the transfer tax imposed by the laws of this State on a succession to a share of the husband's estate. 21

14 Corley v. McElmeel, 149 N. Y. 228, 237; $ 2625, Code Civ. Pro.; chaps. 576, 578, 584, Laws of 1910.

15 See Introduction, p. 38, supra.

16 See Tompkins v. Jencken, Modern Roman Law, 202.

17 Supra, p. 210; Matter of Newcomb, 192 N. Y. 238, 251.

18 Jones v. Jones, 8 Misc. 660; Matter of Majot, 199 N. Y. 29.

19 Matter of Coburn, 9 Misc. 437.

20 Matter of Majot, 135 App. Div. 409, affd., 199 N. Y. 29.

Let us now consider the law relative to devo!ution of title to real and personal property within the State when its owner is domiciled out of the State of New York, and dies seised or possessed of such property. If such owner is not only domiciled out of this State but owes allegiance to a foreign power, the legal questions arising in this jurisdiction, relative to devolution of his title to property on his death, are naturally more complex than they would be if he were a citizen of the United States, resident in another State of the United States, or a citizen of this State but domiciled elsewhere.22

It may be stated as general propositions of law, that the law of the decedent's domicile prevails in cases of intestacy or in the interpretation of his will,2- and that his domicile of origin is presumed to continue until a new one is acquired.24 But even these general propositions are often complicated by a variety of intricate circumstances, 25 and by treaties between the United States and Foreign Powers.26

21 135 App. Div. 409, affd., 199 N.

Y. 29.

22 See Caulfield v. Sullivan, 85 N.

Y. 153.

2

Co., 66 App. Div. 144; Matter of
Ruppauer, 15 Misc. 654, affd., 9 App.
Div. 422; Suarez v. Mayor, etc., of
New York,

Sandf. Ch. 173;
Schultz v. Dambmann, 3 Bradf. 379.

24 Dupuy v. Wurtz, 53 N. Y. 556; de Meli v. de Meli, 120 id. 485, 491.

25 Mackenzie v. Mackenzie, 3 Misc.

23 Bascom v. Albertson, 34 N. Y. 584, 587; Caulfield v. Sullivan, 85 id. 153, 159; N. Y. Life Ins. & Trust Со v. Viele, 161 id. 11; Kimble v. Dziedugyiki, 57 How. Pr. Roosevelt v. Porter, 36 Misc. 441; Dammert v. Osborn, 140 N. Y. 30, 46; Putnam v. Lincoln Safe Deposit

208;

200.

26 See & jo, Real Prop. Law. Cf. Tucker v. Field, 5 Redf. 139.

It is impossible even to allude to the more complicated questions of international law, touching intestate succession, in an elementary review of the legislation now embodied in this section of this act. It will suffice to outline the more general propositions of law which now find again their expression in this section.

Wills of Personalty. It was a postulate of the common law, that movable or personal property has no situs or visible locality, but is subject to that law which governs the person of the owner, both with respect to the manner of its disposition and with respect to the transmission of it either by succession or by the act of the owner.27 This postulate of the common law became the law of this State by the effectual and formal continuation of that law by the Constitution of the State; and it still remains the law of this State,28 although the exigencies of modern governments tend more and more to give a local situs to personal property for merely local purposes of taxation.29 But this particular distinction need not be here considered at length.

While the situs of movable property is ordinarily presumed to follow its owner, mobilia sequuntur personam,"

.30 this is only a fiction of law, and like all fictions of law is adopted to prevent injustice and not to thwart justice. An assignment of chattels real, though personal property by the law of New York, is governed by the lex situs.32 So all matters concerning the execution, the interpretation, and the validity of contracts relative to personalty, are still regarded as subject to the law of the place where

27 Sill v. Worswick, I H.- Black. 690; $ 380, Story Conf. of Laws; Matter of Majot, 199 N. Y. 29.

28 Holmes v. Remsen, 4 Johns. Ch. 460, 469, s. C., 20 Johns. 229, 254; Matter of Roberts, 8 Paige, 446; Lynes v. Townsend, 33 N. Y. 558, 561 ; Simonson v. Waller, 14 Misc. 95: Dupuy v. Wurtz, 53 N. Y. 556; Cross v. U. S. T. Co. et al., 131 id. 330, 339; Dammert v. Osborn, 140 id. 30; Wright v. Mercein, 34 Misc. 414, 418; N. Y. Life Ins. & Trust

Co. v. Viele, 161 N. Y. 11; Watkins v. Eaton, 173 Fed. Rep. 133; § 47, Decedent Estate Law and see under 8$ 23, 24, Decedent Estate Law.

29 Matter of Majot, 199 N. Y. 29.

30 Cross v. U. S. T. Co. et al. 131 N. Y. 330, 339.

31 Hoyt v. The Commissioners of Taxes, 23 id. 224, 228; Dearing v. McKinnon Co. 165 id. 78; and see Fowler's Pers. Prop. Law (2d ed.). P. 23.

32 Dicey, Domicile, 157, 225.

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