real or personal, in some other state than that of his domicile, that questions arise, and then only when the rules of distribution differ in the two. In such a case it may be urged by those whose interests are favored by the rules of distribution of the domicile that the law of the domicile should be applied; and, on the other hand, it may be urged by those whose interests are favored by the law of the state where the property is located that its rules should be applied.

SECTION 1. INTESTATE SUCCESSION.

§ 83. Intestate succession to personal property governed by law of domicile. A well-settled rule has been established as a result of conflicts that have arisen in cases where one died intestate leaving personal property in a state not his domicile. In such a situation the rule has been almost universally applied that the law of distribution provided by the domicile of the intestate controls, as against the rule provided by the nation where the property is situated.

In Lawrence v. Kittredge (1) the intestate had his domicile in Vermont. He had an estate there, but also had a claim of $1,000 against a person residing in Connecticut. The question arose as to whether Connecticut or Vermont should supply the rule for the distribution of the $1,000 and determine what persons should have it. By the law of Vermont, where the intestate was domiciled, the brothers and sisters of an intestate of the whole and half blood were entitled equally to the personal property. By the law of Connecticut the half blood could not take any inter

est. It was contended by the whole blood brothers and sisters, there being no other heirs of the deceased, that the Connecticut law, where the property was situated, should apply and thus exclude the half bloods from any interest in the property. The half bloods took the position that they had a right to a part of the $1,000, as the law of the domicile of the deceased and not the law of the place of the property controlled. The court applied the law of the domicile, and, quoting from another case (2), said: "It certainly is now a settled principle of international law that personal property shall be subject to that law which governs the person of the owner, and that the disposition, distribution of, and succession to personal property, wherever situated, is to be governed by the laws of that country where the owner or intestate had his domicile at the time of his death."

§ 84. Same: Exception by statute of situs. It is to be noted, however, that the above rule is subject to an exception where the law of the state where the property is situated expressly commands that even as to the property of persons domiciled beyond its jurisdiction, its rules shall apply. As stated by the court in the case cited above: "It is in the power of every sovereignty, and within the constitutional powers of the states of this Union, to repudiate this salutary doctrine in its application to themselves, or to modify it for what they may suppose to be the protection of their own citizens; but, without some peculiar necessity, it cannot be supposed that any well regulated government will do it." The state of Illinois, for example, has an express statute regulating such cases,

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.

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

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