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thereto by the law of the place where it was executed, or by the law of the place which was the testator's domicil either at the time of its execution or at the time of his death.

It is founded upon

This rule is new, though not without sanction. the unreasonableness of requiring persons sojourning abroad to have their wills drawn in conformity to the law of their domicil, of which the means of information may not be at hand; the hardship of affixing to a change of domicil the legal consequence of the revocation of a will made in the former domicil, and the inconvenience of requiring a new execution upon a change of domicil.

It is not the rule applied by the American courts generally, but is more in harmony with the spirit of the civil law. Irwin's Appeal, 33 Connecticut Rep., 128.

It seems to be a sufficient safeguard to the solemnities necessary to a valid testament, that the testator should respect and fulfill the requirements of either of the systems of local law which may reasonably be supposed by him to be applicable to his case. This rule is, however, restricted to wills of movables.

Such a relaxation of the existing rule was suggested as a reasonable and proper one, by the Chancellor of New York, in the matter of Roberts, 8 Paige (New York) Rep., 519, and is sustained by Schultz v. Dambmann, 3 Bradford's Surrogate (New York) Rep., 379.

In 1856 a statute was passed in the State of Connecticut, enacting that a will whether of real or personal estate, executed according to the formalities required by the law of the country within which it is executed, shall be valid to pass such property wherever situate. This rule is understood to have been approved by experience, and has been in force there ever since. The same has been adopted in some other of the United States.

The general rule of English and American courts, as laid down in Moultrie v. Hunt, 23 New York Rep., 394, may be stated as follows:

The validity of a will of movables, in respect of form, is determined solely by the law of the place which was the testator's domicil at the time of his death.

Story states this rule as settled; and adds, that, if void by that law, the will is void everywhere, although it fulfills the requisites of the law of the place where assets are situated. Story, Confl. of L., § 467.

There is much to be said, however, against this rule; and perhaps the doctrine, better supported by the existing authorities, is that, a will valid in form is not revoked, nor is its interpretation altered by a subsequent change of domicil of the party, unless expressly stated to be revoked thereby. Fælix, Droit Intern. Privé, nos. 117, 77.

"It can never be imagined that by his transference of his domicil to England, the testator intended tacitly to revoke his will, more especially since by the continental law, with which alone from his previous life he can be supposed to be acquainted, such transference would not have that +ffect." Westlake, Private Intern. Law, p. 326.

The act of 24 and 25 Vict., c. 114, §§ 2, 3, adopts the principle, that, a will executed by a British subject according to the law of that part of the United Kingdom where it was made, is valid without reference to the domicil of the testator at the time of making, or of death; and that the validity or construction of a will is not affected by any subsequent change of domicil. Whether a marriage in a new domicil can affect it, may be doubtful. Matter of Reid, Law Rep., 1 Probate & Divorce, 74.

Testamentary capacity as to movables.

592. The law of the place which was the testator's domicil at the time of his death, determines both his capacity to make a will of movables, and his disposable power over the movables.

Schultz v. Dambmann, 3 Bradford's Surrogate (New York) Rep., 379; Exp. McCormick, 2 Id., 169; Story, Confl. of L., § 465.

Qualification of preceding Articles.

593. The provisions of articles 591 and 592 are subject to the right of every nation to regulate the object of testamentary gifts of movables, as well as immovables, within its territory, by positive laws.

Story, Confl. of L., § 472. The creation of trusts, and other matters relating to the substance of the disposition, are to be governed of course by the local law.

Testamentary capacity as to immovables.

594. The law of the place where immovable property is situated determines the capacity of the testator to make a will of such immovables, the extent of his power to dispose of the property, the form and execution of the will, and the solemnities necessary to give it effect.

Story, Confl. of L., § 472. This is stated to be the common law rule, and one supported by great weight of authority of foreign jurists, although they are not entirely agreed upon it.

According to the case of White v. Howard, 52 Barbour's (New York) Rep., 294, this rule includes the application of such local laws as limit bequests and devises for certain uses to a portion of the testator's estate.

Probate, when necessary.

595. A will proved in one nation or state, is not sufficient to pass immovables situate in another, unless admitted to probate in the latter, according to its laws.

Crusoe v. Butler, 36 Mississippi, (7 George,) Rep., 150, citing McCormick

. Sullivant, 10 Wheaton's U. S. Supr. Ct. Rep. 202; United States v. Crosby, 7 Cranch U. S. Supr. Ct. Rep., 115; Kerr v. Moon, 9 Wheaton's U. S. Supr. Ct. Rep., 565; Carmichael v. Elmendorf, 4 Bibb (Kentucky) Rep., 484; Cornelison v. Browning, 10 B. Monroe (Kentucky) Rep., 428. But letters are not necessary in the latter state, unless the execution of the power conferred by the will depends upon them. As to real property not assets, the probate is only authenticated evidence, and not the foundation of the executor's title. Crusoe v. Butler, 36 Mississippi, (7 George,) Rep., 150.

Construction or interpretation of will.

596. The interpretation of a will, whether of movables or immovables, depends upon the law of the place where it was made, unless a different intent appears on the face of the instrument, either from its being made in a foreign language, or from other circumstances.

The rule, as generally laid down, refers to the law of the domicil of the testator for the interpretation of his will. Parsons v. Lyman, 4 Bradford's Surrogate (New York) Rep., 268; Anstruther v. Chalmer, 2 Simon's Rep., 1; Yates v. Thomson, 3 Clark & Finnelly's Rep., 544; Isham . Gibbons, 1 Bradford's Surrogate (New York) Rep., 69; Demangeat in notes to Falix, Droit Intern. Privé, vol. 1, 130, note b.

On this point the following rules may be extracted from the principles discussed and laid down by Story:

A will of movables must be interpreted according to the law of the testator's domicil at the time of the actual making of the will. Story, Confl. of L., § 474, a, f.

The question whether or not a testator intended to devise real estate or immovables by his will, or as to what is included in the words "real estate,' immovables," or the like, must be determined by the same law. Ib. § 479, a.

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So, also, of the interpretation to be put upon the words of description of a person or a class of persons mentioned by a testator. Ib., § 479, e. But it seems a more reasonable rule, and one in harmony with the principles embodied in the preceding Articles, to make the interpretation of the language dependent upon the law of the place where such language was used, rather than on that of the testator's domicil.

TITLE XXVI.

OBLIGATIONS.

CHAPTER XLV. Obligations in general.
XLVI. Contracts.

XLVII. Obligations imposed by law.
XLVIIA. International bills of exchange.

CHAPTER XLV.

OBLIGATIONS IN GENERAL.

ARTICLES 597. " Obligation" defined.
528. Obligation, how created.
599. When an obligation accrues.
600. Certain contracts excepted.

"Obligation" defined.

597. The term "obligation," as used in this Code, means a legal duty by which a person is bound to do or not to do a certain thing.

Civil Code, reported for New York, § 670.

Obligation, how created.

598. An obligation arises either from,

1. The contract of the parties; or,

2. The operation of law.

Civil Code, reported for New York, § 671.

When an obligation accrues.

599. The time when an obligation accrues is determined by the law of the place where it arises. Gassaway v. Hopkins, 1 Head (Tennessee) Rep., 583.

Certain contracts excepted.

600. The provisions of this Title have no application to marriage, nor to contracts relating to immovables,' in so far as they relate thereto.

1 It has, however, been held that a contract made and to be performed in S., for the discharge of a debt secured by a mortgage on an immovable in D., is governed as to its interpretation, and the appropriation of payments made under it, by the law of the place of the contract." The mere fact of the money having been advanced on a mortgage in a foreign country, does not render it requisite that the contract should be governed by the law of that country in which the mortgaged land is situate." Campbell . Dent, 2 Moore's Privy Council Rep., 292, 307, 308; Westlake, Private Intern. Law, § 229.

CHAPTER XLVI.

CONTRACTS.

SECTION I. Law of place.

II. Place of making contract.
III. Formalities.

SECTION I.

LAW OF PLACE.

ARTICLE 601. Contracts made and performed in same nation. 602. Contracts made and performed in different nations. 603. Law governing interpretation of contract.

604, 605. Illegality of contract.

606. Mode of charging parties to negotiable instruments.

Contracts made and performed in same nation. 601. A contract made and agreed expressly or tacitly,' to be wholly performed within the jurisdiction of the same nation, is governed by the law of that nation.

1

Story, Conf. of L., § 280. This rule of municipal law requires to be mentioned as a rule of international law, not only because the contracting parties may be foreigners, but because the effect of such a contract even when made between members of the nation is frequently drawn in question abroad, in respect to the rights of foreigners. Benners v. Clemens, 8 Pennsylvania State Rep., 24.

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