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

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.

of her real estate. It was contended that the law of Kentucky controlled and that the will was void. The court said: "This contention is unsound, as is well settled by the authorities. As to immovable property, the rule is that the law of the place of the property governs, as to the capacity or incapacity of the testator, the extent of his power of disposition, and the forms and solemnities necessary to give the will its due authority and effect.”

§ 92. Revocation of a will. The revocation of a will may be accomplished in many ways: by marriage after the execution of the will; by the execution of another will expressly revoking it; by destroying it; and other ways provided by statute. But these methods differ in different states, and it becomes an important question at times what law shall govern in determining whether a revocation of a will has been accomplished. To illustrate: By the law of England a subsequent marriage revokes, but by the law of France it does not. Is the effect of the marriage in accomplishing a revocation to be determined by the law of France, where testatrix was domiciled when she was married, or by the law of England, where she was domiciled when she died? It is assumed that a will of personal property was made before the marriage and no later will. The rule is that the law of the domicile at the time of the death is to decide whether the alleged revocation was effective. In the instance given, the English law would control, and would accomplish a revocation (10). As to real estate, however, the law of the place of its location determines the effectiveness of the attempted

revocation. If by that law it was accomplished, then the will is deemed revoked everywhere.

§ 93. Estate devised governed by law of situs. The principle here involved can be best understood by a study of a concrete case. Assume that the testator is domiciled in Minnesota, and that he owns a tract of land in Illinois. Assume the devise reads "to A for life and upon his death to his heirs." Assume also that in Illinois the rule in Shelly's case is applied, and that by its application A would get the absolute title to the land at the testator's death. Also assume that by the law of Minnesota A would get only a life estate, and that a remainder would pass to A's heirs, who would be ascertained only at his death. In such a situation if the law of Illinois were applied to the title, A would get a fee simple title; if the Minnesota law applied he would get only a life estate. The rule of Conflict of Laws in such a case permits the quantum of A's estate to be determined by the law of the location of the land (11). A similar case arises where a deed conveys title to another without using the word "heirs" to designate the estate granted. If by the law of the domicile such a grant would convey a fee simple, but by the law of the state where the land is situated a life estate only would pass, the latter will control.

§ 94. Interpretation of will governed by law of domicile at time of execution. The leading case on this subject is Staigg v. Atkinson (12). Testator owned land in Minnesota, was domiciled in Rhode Island when he executed his will, and in Massachusetts when he died. It

(11) Pratt v. Douglas, 38 New Jersey Eq., 516.

became material in the case to determine what the testator meant by giving his wife a portion of his real estate in the will. By both the Minnesota law and the Rhode Island law a devise to her was interpreted by the courts to be in addition to her common law dower interest. By the Massachusetts law the devise was interpreted to be in lieu of dower. She laid claim to a dower interest in the Minnesota land, and it was contended against her that the law of Massachusetts controlled. The court held that she could get her dower interest in addition to the portion she took by devise. The court held that either the law of the domicile at the date of the execution of the will, or the law of the location of the land should control, but did not distinctly state which. It would seem, on principle, that the law of the domicile should control.

§ 95. Validity of devise of land governed by law of situs. In Duncan v. Lawson (13) the testator, who was domiciled in Scotland, willed certain real estate situated in England to charities. By the English law gifts to charities were at that time prohibited. The court decided the case on the ground that the validity of the gifts of the land situated in England should be determined by the law of England. The case is one of a class of cases showing that the effect and validity of the provisions in a will of realty are to be determined always by the law of the nation where the realty is located, and not by any other law, even though testator was domiciled in some other nation.

(13) 41 Ch. Div., 394.