A CONCISE TREATISE ON CHAPTER I. BY WHAT LOCAL LAW WILLS ARE REGULATED. Chap. I. will of immovables. A WILL, So far as it relates to immovable property, must be made in accordance with the formalities required by the law of the land where the immovable property is situated. Immovable property for this purpose includes leaseholds; Leaseholds. the validity and construction, therefore, of wills, so far as they affect leaseholds in England, must be governed by English law. Freke v. Lord Carbery, 16 Eq. 461; In bonis Gentili, I. R. 9 Eq. 541; De Fogassieras v. Duport, 11 L. R. Ir. 123; Duncan v. Lawson, 41 Ch. D. 394. sale of There appears to be a conflict of cases on the question Proceeds of whether proceeds of sale of immovables devised on trust for immovables. sale are governed by the lex loci or by the law of the domicile. In Freke v. Lord Carbery the Thellusson Act, which does not extend to Ireland, was held to render invalid certain trusts of the proceeds of sale of English leaseholds devised on trust for sale by a testator domiciled in Ireland. On the other hand, in In re Piercy; Whitwham v. Piercy, (1895) 1 Ch. 83, the trusts of the proceeds of sale of land in Sardinia devised on trust for sale by a testator domiciled in England were held to be subject to English law. Wills of personalty made in execution of powers are valid, if Will under made in accordance with the instrument creating the power power. T.W. B Chap. I. Wills made out of the admitted to without reference to the domicile of the testator, subject of course to sect. 10 of the Wills Act, which enacts that no appointment shall be valid unless executed in accordance with the Act. Thus, a will executed according to the Wills Act is a good execution of a power, though the will would be invalid according to the law of the testator's domicile. Tatnall v. Hankey, 2 Moo. P. C. 342; In bonis Alexander, 6 Jur. N. S. 354; 29 L. J. P. 93; 1 Sw. & T. 454, n.; In bonis Hallyburton, 1 P. & D. 90; In bonis Huber, (1896) P. 209, see Pouey v. Hordern, (1900) 1 Ch. 492; In bonis Trefond, 81 L. T. 56; overruling on this point, Crookenden v. Fuller, 1 Sw. & T. 441, 454. The administration of a fund appointed under a general power in a Scotch will is subject to Scotch law, though the appointor may be a domiciled Englishman. Re Bald; Bald v. Bald, 76 L. T. 462. A testamentary power to appoint personalty can be exercised by a will valid according to the law of the testator's domicile, but not executed according to the Wills Act. D'Huart v. Harkness, 34 L. J. Ch. 311; 11 Jur. N. S. 633; 34 B. 324; In re Price; Tomlin v. Latter, (1900) 1 Ch. 442. In re Kirwan's Trusts, 25 Ch. D. 373, only decides that Lord Kingsdown's Act (see infra) does not affect sect. 10 of the Wills Act, which makes an appointment by will invalid if not executed in accordance with the Act. A will, therefore, admitted to probate by virtue only of Lord Kingsdown's Act, but not executed according to the Wills Act, does not exercise a testamentary power of appointment. See, too, per Lord Cranworth in Dolphin v. Robins, 7 H. L. p. 419; Hummel v. Hummel, (1898) 1 Ch. 642. By 24 & 25 Vict. c. 114 (Lord Kingsdown's Act), which extends only to testamentary instruments made by persons dying after the 6th August, 1861, it is enacted: 1. Every will and other testamentary instrument made out kingdom to be of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be held to be well executed for the purpose of being probate if madə accord. ing to the law admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin. See In bonis De la Saussaye, 3 P. & D. 42; In bonis Donaldson, 3 P. & D. 45; In bonis Lacroix, 2 P. D. 94; In bonis Gatti, 27 W. R. 323. Chap. I. of the place where made. 2. Every will and other testamentary instrument made Wills made in within the United Kingdom by a British subject (whatever to be admitted the kingdom if made according to may be the domicile of such person at the time of making the same, or at the time of his or her death) shall, as regards local usage. personal estate, be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made. domicile not to invalidate 3. No will or other testamentary instrument shall be held Change of to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent will. change of domicile of the person making the same. Leaseholds are personal estate within the Act. Watson; Carlton v. Carlton, 35 W. R. 711. In re The Act applies to British subjects only, and neither this Act nor sect. 2 of the Naturalization Act, 1870 (33 Vict. c. 14), enables an alien to make a will in English form, whether his domicile at the date of the will and death is foreign or English. In bonis Von Buseck, 6 P. D. 211; S. C., Bloxam v. Favre, 8 P. D. 101; 9 ib. 130; In bonis Keller, 61 L. J. P. 39; 65 L. T. 763: But a foreigner who has obtained letters of naturalization as a British subject is a British subject within the meaning of the Act. In bonis Gally, 1 P. D. 438. In ascertaining the validity of testamentary papers the Court will apply the law of one country only at a time. Thus, where a codicil well executed in Italy according to Italian law was endorsed on an unexecuted will, but according to Chap. I. Domicile. Domicile governs administration and construction of will. Italian law the codicil could not stand alone and could not confirm the will, it was held that Italian law could not be applied, so as to uphold the codicil, and English law, so as to confirm or republish the will, but that neither could be proved. Pechell v. Hilderley, 1 P. & D. 673. By virtue of sect. 3 of the Act, the will in Scotch form of a person domiciled in Scotland, who afterwards marries there and then acquires an English domicile is not revoked, inasmuch as marriage does not revoke a will in Scotland. Int bonis Reid, 1 P. & D. 74. When there is no testamentary law in force in the place where the will is made, a will simply signed but not attested would probably be good. Stokes v. Stokes, 78 L. T. 50 (Congo Free State). The validity of wills of personal property, except in the case of British subjects dying after August, 1861, is governed by the law of the testator's domicile at the date of the death. Anstruther v. Chalmer, 2 Sim. 1; Stanley v. Bernes, 3 Hag. 373; Price v. Dewhurst, 8 Sim. 279; 4 M. & Cr. 76; Preston v. Melville, 8 Cl. & F. 1; Craigie v. Lewin, 3 Curt. 435; De Zichy Ferraris v. Lord Hertford, 3 Curt. 468; Bremer v. Freeman, 10 Moo. P. C. 306; Enokin v. Wylie, 10 H. L. 1; see Eames v. Hacon, 16 Ch. D. 407. Legislative changes in the law of the country, where the deceased was domiciled, made after his death, though with express reference to his will, cannot be considered in deciding upon the right to have the will proved in this country. Lynch v. Provisional Government of Paraguay, 2 P. & D. 268. The administration of the personal property of a deceased person, whether a British subject or not, including the construction of his will, is governed by the law of his domicile at the time of his death unless the testator indicates that the will was intended to take effect with reference to some other law. Enohin v. Wylie, 10 W. R. 467; 10 H. L. 1; see Doglioni v. Crispin, L. R. 1 H. L. 301; Ewing v. OrrEwing, 9 App. C. 34; 10 App. C. 453; In re Hernando ; Hernando v. Sawtell, 27 Ch. D. 284; In re Trufort; Trafford v. Blane, 36 Ch. D. 6C0; In re Marsland, 55 L. J. Ch. 581; Abd-ul-Messih v. Farra, 13 App. C. 431, P. C.; In re Where a Frenchman marries without a settlement so that the law of community of goods applies, the effect is the same as if he had executed a marriage settlement in accordance with that law, and if he dies domiciled in England he cannot dispose of his personal property in such a way as to interfere with the rights of the wife under the law of community of goods. In re De Nicols; De Nicols v. Curlier, (1900) A. C. 21; where Lashley v. Hog, 4 Pat. 581, is explained. Chap. I. In matters of procedure, such as payment of interest on Procedure. legacies, the Court follows its own practice. Hamilton v. Dallas, 38 L. T. 215. The question of domicile is independent of naturalization Domicile and allegiance. Udny v. Udny, L. R. 1 H. L. Sc. 441; of allegiance. independent Haldane v. Eckford, 8 Eq. 631; Brunel v. Brunel, 12 Eq. 299; Douglas v. Douglas, 12 Eq. 617. The following cases on this point are overruled-Moorhouse v. Lord, 10 H. L. 272; In re Capdevielle, 2 H. & C. 985; A.-G. v. Countess de Wahlstatt, 3 H. & C. 374; Jopp v. Wood, 34 B. 88; 13 W. R. 481; Maltass v. Maltass, 1 Rob. 67. According to English law every person has a domicile. If a domicile of choice has not been acquired, the law attributes to him a domicile, which may be called his domicile of origin. origin. It has not been decided whether domicile of origin means Meaning of the domicile at birth or the last domicile imposed by the domicile of choice of the father or other person having authority to change the domicile of an infant by changing his own. The point was raised in In re Craignish; Craignish v. Hewitt, (1892) 3 Ch. 180. The better opinion appears to be that domicile of origin is domicile at birth; see Udny v. Udny, L. R. 1 H. L. Sc. 441: see, however, Westlake's Private Int. Law, p. 312, § 261. children. The domicile of origin of a legitimate child is that of its Domicile of father, of an illegitimate child that of its mother. Dalhousie v. Macdouall, 7 Cl. & F. 817; Munro v. Munro, 7 Cl. & F. 842; Re Patten, 6 Jur. N. S. 151. After the death of their father the mother, so long as she |