and, by its provisions, the rule of distribution of the personal property of intestates domiciled elsewhere is supplied by Illinois (3).

§ 85. Intestate succesion to real estate governed by law of situs. If, by the law of the nation of the domicile, an intestate's widow would be entitled to one-third of his land for her life, and the children of the deceased entitled to the rest, and, by the law of the nation where the land was situated, she would be entitled to one-half the land in fee simple, and deceased's children the other half in fee, then the law of the place where the land was situated and not the law of the domicile would control. The widow in such a case would take one-half the real estate in fee, and the children the other half. This rule is applicable as well to chattels real as to real estate. By chattels real is here understood leasehold interests in land. In fact, this rule applies to any interest in property which in law is deemed an immovable. If, by the law of the nation where an intestate's leasehold interest in land is situated, the property goes to the widow; but, by the law of the intestate's domicile, it passes to his children; the law of the place where the land or leasehold interest in it is situated will supply the rule of devolution (4).

SECTION 2. TESTATE SUCCESSION.

§ 86. In general. An owner of property has a right, under the law, to indicate whom he desires to be the distributees of his property. This he may do in his will. If the will is executed as required by law, and if its provi

(3) Cooper v. Beers, 143 Illinois, 25.

(4) Duncan v. Lawson, 41 Chan. Div., 394.

sions violate no rule that renders them void, they will be carried out by the courts and the rules of intestate distribution provided by law will be superseded. In determining the validity of the execution of a will and of its provisions, conflicting laws may seem applicable, owing to the fact that the testator may be in one nation and his property in another, or owing to the fact that he may execute his will in accordance with the law of his residence, instead of in accordance with the law of the domicile or of the location of the property. It is the purpose of this section to determine in accordance with what law it must be executed and its provisions tested.

§ 87. Execution of will of personalty: Law of domicile governs. In Gilman v. Gilman (5) a testator originally resided in the state of Maine. He had a residence there which he kept furnished and equipped, and to which he resorted at times. He acquired a residence in the city of New York and had his place of business there. He made his will in New York, and died in Maine at his residence. He had property both in Maine and New York. Under such a set of facts the court said: "If the domicile of the testator, at the time of his death, was in New York, then his will should be allowed and recorded in this state as a foreign will. And, in that case, the movable property in this state would be disposed of, under the will, according to the laws of the state of New York. But, if his domicile was in this state, then

the probate court here has original jurisdiction, and our laws must govern the construction of the will and the dis

(5) 52 Maine, 165.

posal of the property." If Maine had been the residence, then New York would have provided the law for the disposal of the property under the will; on the other hand, if New York had been the residence merely and Maine the domicile, then Maine law would govern. The court held that he was domiciled in Maine and merely had a temporary residence in New York. Under such circumstances the Maine law, the law of the domicile, would control as against the law of New York, the state of the mere residence.

§ 88. Same: Law of domicile at time of death governs. In Moultrie v. Hunt (6), the deceased was domiciled in New York at the time of his death. His prior domicile had been in South Carolina. While domiciled in South Carolina he executed a will, and, at the time of the execution, he merely stated to the subscribing witnesses that his signature and seal were affixed to the document that he requested them to subscribe. He subsequently abandoned that domicile and took up a domicile in New York, but did not execute another will in accordance with the law of New York. That law required the testator to state, at the time of subscribing his will or at the time he acknowledged it, in the presence of at least two attending witnesses, that it was his last will and testament. The question arose whether this will was valid to pass personal property of the deceased. The court held it was not. The deceased was domiciled in New York at the time of his death, and personal property could be willed by him only in case his will was executed in accordance with the law of New York. This is the rule, entirely

(6) 23 New York, 394,

regardless of where the property is situated, and of the law of the place where the will was actually executed. The court, quoting from Story's Conflict of Laws, said: "But, it may be asked, what will be the effect of a change of domicile after a will or testament is made of personal or movable property, if it is valid by the law of the place where the party was domiciled when it was made, and not valid by the law of his domicile at the time of his death? The terms in which the general rule is laid down would seem sufficient to establish the principle that, in such a case, the will and testament is void; for, it is the law of his actual domicile at the time of his death, and not the law of his domicile at the time of his making his will and testament of personal property, which is to govern.' In such a case, where the will is ineffectual because improperly executed, the distribution in the will is ignored and the rules of intestate succession become operative.

§ 89. Execution of will of realty: Law of situs governs. In Robertson v. Pickerell (7) a will was relied upon to establish a title to a tract of land situated in the District of Columbia. That District is governed in the matter of execution of wills of realty by the law of Maryland. The will was executed in Virginia and admitted to probate in its court. By the proof produced at the trial it was merely shown that the will was written by the testator in his own handwriting and his signature was identified. There was no evidence which tended to show that any persons witnessed the signature, nor how many, if any, did so. By the law of Maryland three subscribing witnesses were required to make a will of real estate in

(7) 109 United States, 608.

the District of Columbia. The court held the Virginia will was ineffective to pass the land, saying: "It matters not how effective the instrument may be to pass real property in Virginia; it must be executed in the manner prescribed by the law in force in the District to pass real property situated there, and its validity must be established in the manner required by that law. It is familiar doctrine that the law of place governs as to the formalities necessary to the transfer of real property, whether testamentary or inter vivos."

§ 90. Same: Contrary rule by statute of situs. Some states have passed statutes, under which a will is not required to be executed in accordance with their law in order to devise real estate situated in their boundaries. It is sufficient under such statutes that the will be admitted to probate in some foreign state. If so, it may be recorded in the state where the land is, and thereupon it is effective to pass real estate situated there (8). General statutes of this character would greatly simplify the matter of the proper execution of wills of real estate and would tend to lessen intestacies of such property arising from insufficient execution.

§ 91. Capacity of person to devise realty governed by law of situs. In Carpenter v. Bell (9) a will was executed by a married woman domiciled in Kentucky. By the law of that state a married woman had not the capacity to execute a will of real estate. But the land was located in Tennessee, by whose laws a married woman could make a will

(8) Amrine v. Hamer, 240 Illinois, 272. (9) 96 Tennessee, 294.