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made under the principle, locus regit actum.33 But the ordinary rule, applying the law of the owner's domicile to transfers of personal property wherever situate, does not require the courts of New York to recognize a transfer which is prejudicial to local creditors, armed with legal process.34 These exceptions in application do not, however, affect the integrity of the general principle stated in this section of the Decedent Estate Law, that testamentary dispositions of personal property are primarily regulated by the law of the country where the testator was domiciled at the time of his death.35 Some of the important modifications of this general rule have been noticed under prior sections of this act, and they need not be repeated.36
Another modification of the rule stated in this section, in so far as domestic wills of personalty are concerned, is that the validity of particular bequests to foreign legatees may depend, not on the law of testator's domicile, but on the law of the legatee's domicile.37 If such foreign law clearly inhibits the gift or bequest, or if under that law the donee or legatee has not the legal capacity to take the gift, the courts of this State will so decree, 38 and for this purpose a direction to sell may convert realty into personalty.39
Ancillary Letters on Foreign Wills. The Code of Civil Procedure, with great particularity, provides for the issuance of ancillary letters upon a foreign probateor to foreign administrators. 41
The place of the testator's last domicile is always the place of principal administration, and all other administrations are regarded as ancillary.42 Yet the law of the place of ancillary administration may govern as to the payment of debts there, although the distribution among the next of kin or legatees is governed by the le.r domicilii.43 As every sovereign has plenary power over properly within its jurisdiction, it is, however, always within the power of a foreign court to grant original probate, even if the will be not probated at testator's domicile. **
33 Alcock v. Smith (1892), i Ch. 238; Union Nat. Bank v. Chapman, 169 N. Y. 538.
34 Dearing v. McKinnon Co., 165 N. Y. 78. Cf. Sherwood v. Judd, 3 Bradf. 419; Lawrence v. Elmendorf, 5 Barb. 73.
35 $8 47, Decedent Estate Law; Moultrie v. Hunt, 23 N. Y. 394.
36 $8 23, 24, Decedent Estate Law.
37 Congregational Unitarian Soc v. Hale, 29 App. Div. 396.
38 Chamberlain v. Chamberlain, 43 N. Y. 424; Matter of Huss, 126 id. 544; Hope v. Brewer, 136 id. 126 ; St. John v. Andiews Society, 191 id. 254; Kennedy v. Town of Palmer, 1 T. & C. 581; Mount v. Tuttle, 183 N. Y. 358; Fowler's Charitable Uses, 92, 93.
39 Hope v. Brewer, 136 N. Y. 126.
Wills of Real Property. Real or immovable property was in the common law of this State, as in almost every other enlightened system of jurisprudence, always regarded as exclusively governed by the law of its situs, or the place where it was situated. The title to real property, therefore (whether by deed, descent, or devise), might be acquired, passed, and lost only in accordance with the principles laid down by the ler rei site. The domicile of the owner was quite immaterial.45 These principles are still the law of this State in respect of wills or devises of real property.46 Under them, a will of both real and personal property executed at testator's domicile may be valid here as to its disposition of real property, but void as to its disposition of personalty which is governed by the law of testator's domicile, 47 as stated above under this section.
Cross-reference to Section 48, Decedent Estate Law. By an amendments to the Decedent Estate Law,49 section 2514, Code of Civil Procedure, is now made expressly applicable to this section."
43 $ 2700, Code Civ. Pro.; Churchill v. Prescott, 3 Bradf. 233; Suarez v. Mayor, etc., of New York, i Sandf. Ch. 173; Dearing v. McKinnon Co. 165 N. Y. 78. Cf. Homans v. N. Y. Life Insurance Co. 55 Misc. 574, 577.
44 See 23 Harv. Law Rev. 467, 468; 10 Cal. Law Journal, 340, 341.
45 Story, Conf. of Laws, $8 424, 428; Hosford v. Nichols, i Paige, 220, 226; Mills v. Fogal, 4 Edw. Ch. 559; Smith v. Chesebrough, 82 App. Div. 578; Lynes v. Townsend, 33 N. Y. 558, 561; White v. Howard, 46 id. 144, 159; Matter of Majot, 199 id. 29; and see under $$ 23, 24, 44 and 45, Decedent Estate Law, supra.
46 $ 47, Decedent Estate
Law; Mills V. Fogal, 4 Edw. Ch. 559; Matter of Law, 56 App. Div. 454, 458; Mills v. Mills, 28 Misc. 633 ; Olmstead v. Olmstead, 190 N. Y. 458, affd., 216 U. S. 386.
47 Bloomer V. Bloomer, 2 Bradf. 339; Matter of Law, 56 App. Div. 454. Cf. Wells v. Seely, 47 Hun, 109, where domestic will of minor held good as to personalty and void as to realty.
48 $ 16, chap. 240, La of 1909. 49 Chap. 18, Laws of 1909.
50 See below, § 48, Decedent Estate Law.
§ 48. Application of certain sections in this article. Sec
tion twenty-five hundred and fourteen of the code of civil procedure is applicable to the provisions of sections twentythree to twenty-five, both inclusive, and sections forty-two to forty-seven, both inclusive, of this chapter.
Comment. This section was added to the Decedent Estate Law (chap. 18, Laws of 1909) by section 16 of chapter 240, Laws of 1909. Section 2514 of the Code of Civil Procedure, so explicitly referred to in this section of this act, is as follows:
$ 2514. (Am'd, 1900.) Definition of expressions used in this chapter,
In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:
1. The word, “intestate" signifies a person who died without leaving a valid will; but where it is used with respect to particular property, it signifies a person who died without effectually disposing of that property by will, whether he left a will or not.
2. The word, assets” signifies personal property applicable to the payment of the debts of a decedent.
3. (Am'd, 1900.) The word debts" includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word “creditor" includes every person having such a claim or demand, any person having a claim for expense of administration, or any person having a claim for funeral expenses.
4. The word "will" signifies a last will and testament, and includes all the codicils to a will.
5. The expression “letters of administration,” includes letters of temporary administration.
6. The expression, “testamentary trustee,” includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions, as executor or administrator.
7. The word, “surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate.
8. The expression, "judicial settlement,” where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all pur
poses, or for certain purposes specified in the statute; and an account thus made conclusive is said to be “judicially settled.”
9. The expression, “intermediate account,” denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands and not made the subject of a judicial settlement.
10. The expression, “ upon the return of a citation,” where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited.
11. The expression, "person interested,” where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for an inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree or other final determination, and no appeal therefrom is pending.
12. The term, next of kin,” includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife.
13. The expression, "real property,” includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, “inheritance," signifies real property, as defined in this subdivision, descended as prescribed by law. The expression, “personal property," signifies every kind of property, which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator.
Omitted Sections. There are, at present, no sections of this act between section 48 and section 80 of article 3.
Descent and Distribution
Section 80. Definitions and use of terms; effect of article.
81. General rule of descent.
ants and grandparents.
specific provision for payment of debt.
8 80. Definitions and use of terms; effect of article.
1. The term “real property” as used in this article, includes every estate, interest and right, legal and equitable, in lands, tenements and hereditaments, except such as are determined or extinguished by the death of an intestate, seized or possessed thereof, or in any manner entitled thereto; leases for years, estates for the life of another person; and real property held in trust, not devised by the beneficiary. “Inheritance ” means real property as herein defined, descended according to the provisions of this article.