of the expert, Dr. Huberich, on the question to be determined, but after a very careful consideration of this matter I cannot agree with his conclusions. I have therefore construed the law for myself. As was said by the Court of Appeals in Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54, 58: "Proof of foreign law by experts, though ever so clear and though uncontradicted, is not conclusive, since the court must examine and determine the law for itself. * It is true that foreign law is ordinarily proved as a fact, still it is not in its essential nature a fact any more than domestic law is a fact."

*

It therefore follows that, in accordance with the obvious meaning of the provisions of section 47 of the Decedent Estate Law, the New York court should apply the French internal or territorial law, i. e., section 1044 of the French Civil Code as construed in the French cases cited above; that is, the legacy to Ida Bisland Williams accrues to that of the surviving legatee and the whole residuary estate passes to Mrs. Tallmadge and thence to her assignee.

The fact that the will was drawn in New York and executed according to New York law, and was not validly executed by French law, does not militate against this view, as the formal validity of the will is determined by section 23 of the Decedent Estate Law, regardless of the law of the domicile. See Matter of Rubens, 128 App. Div. 626; 195 N. Y. 527; Matter of Cleveland, supra; Fowler's Decedent Estate Law, 207.

Nor does Dreyfus v. Lecoutourier, Civil Tribunal of the Seine, 2d Div., 1st Sec., Aug. 10, 1908, the strongest case cited by contestant, seem to be against this view. In that case the question involved was whether the French court had jurisdiction of an action for an accounting and the liquidation and distribution of an estate, the Surrogates' Court of New York county having already rendered a decree admitting the will and a

codicil to probate. The testator, originally a French citizen, had become a naturalized American citizen. He had taken this step in defiance of the law of France, and therefore could not subsequently acquire a legal domicile in France without authorization from the French Government, although he was domiciled de facto in France. The court states that in the exceptional case of a person who can claim no nationality a domicile de facto is sufficient to determine the place where an estate is to be "opened"- meaning doubtless where the will is to be probated and the administration in chief is to be had. This exceptional rule was not to be applied to a citizen of a foreign state domiciled de facto in France. Consequently the distribution of the estate was to be governed not by French but by American law. The court therefore declined jurisdiction of the action. In other words, this is an application of the "desistement" theory, which has been already discussed and rejected.

In arriving at my decision I have not considered the apparent intention of the testator to cut off his brother from any share of his estate, as that intention is set forth in the two holographic documents - one found with the will and the other in his executor's possession and also as it is indicated by the ten dollar legacy to his brother.

Report confirmed by order of the surrogate dated October 17, 1919.

INDEX

ACCOUNTING.

-

Executors and administrators - Issues should be raised by objec-
tions to account.— Upon a creditor's application to compel executors
to account, all the issues may be raised by objections in the usual
way, and the practice of one of the executors filing an answer
asking that the court, before directing any accounting, construe an
agreement of guaranty entered into by said executor, the testator
and a third person, and to determine the extent of the separate
liability of the estate and its interest in certain securities, should
neither be encouraged nor sanctioned. Matter of Loeb, 167.
See Executors and Administrators; Trustees; Trusts.

ACTIONS.

-

In what district action

Municipal Court of city of New York
should be brought — When demand to transfer to proper district
must be made-Appeal.- A Municipal Court action brought by
the city of New York to recover penalties for violations of the
Building Code, alleged to have occurred within the territorial limits
of a particular district of the Municipal Court, should be brought
in that district. Where, however, the action was brought in another
district and the defendant did not before or at the joinder of
issue demand that the action be transferred to the proper district,
an order transferring the cause, granted nearly two months after
the action was begun, will be reversed on the ground that defendant
had lost his right to such removal. City of New York v. Greis, 537.
See Contracts; Deeds; Receivers; Wills.

ADOPTION.

When Surrogate's Court without power to abrogate, without con-
sent Domestic Relations Law.- Where the mother of a three-year
old child, the issue of a bigamous union, just before she died, volun-
tarily gives her written consent to its adoption by strangers, the con-
tract of adoption is valid. A proceeding for adoption under the
Domestic Relations Law is not a judicial proceeding and the Surro-
gate's Court which confirmed the adoption of said child is without
power to abrogate the adoption on the petition of the father of the
child, except upon the consent of the foster parents. Matter of Hay-
ford, 479.

AGENCY.

See Lease.

ALIEN ENEMIES.

Who are

-

- Right of retransfer of right of action by alien prop-
erty custodian · Parties - Pleading When demurrer sustained
- Trading with the Enemy Act of October 16, 1917, as amended
July 11, 1919.- The provision of the Trading with the Enemy Act
of October 6, 1917, as amended July 11, 1919, which authorized the

ALIEN ENEMIES - Continued.
return of property held by the alien property custodian to citizens
of our allies solely by reason of residence in that portion of the
territory of any nation associated with the United States in the
prosecution of the war which was occupied by military or naval
forces of Germany or Austria-Hungary or their allies, if such per-
sons are citizens or subjects of such associated nation, was designed
to confer power to retransfer to subjects, citizens or denizens of
allies of the United States who were in occupied territory of allied
nations during the war. The privilege thus granted is founded
upon the doctrine of post liminium, and residents of the German
empire have no valid claim to a right of retransfer to them by the
alien property custodian of a right of action, and where two such
residents are joined as plaintiffs in an action relating to an alleged
retransfer, with other joint owners who are actual residents of
Prague, in Czecho-Slovakia, and not in the category of alien
enemies, a demurrer to the complaint on the ground of misjoinder
of parties plaintiff will be sustained. Waldes v. Basch, 306.

ALIEN PROPERTY CUSTODIAN.

See Alien Enemies.

ALIENS.

See Naturalization.

ANTENUPTIAL AGREEMENT.
See Dower; Trusts.

APPEAL.

-

1. Meaning of doing business" - Non-residents - Transfer tax
Tax Law, § 220 (2). The investment and reinvestment of a
person's own money does not constitute "doing business" within
the meaning of section 220 (2) of the Tax Law. On appeal by
the state comptroller from an order assessing a transfer tax upon
the estate of a non-resident, a finding of the transfer tax appraiser
that decedent in making, in this state, regular and frequent invest-
ments and reinvestments of her own money was not at the time of
her death engaged in "business" in this state within the meaning
of section 220(2), will be affirmed. Matter of Green, 112.

2. To Appellate Division - Foreclosure · Pleading Default.—
Where the order of the Appellate Division which reversed an order
denying a motion to set aside the judgment of foreclosure and the
sale thereunder directed that the judgment "stand until the final
determination of the issues raised by the answer of the appellant "
the order of reversal which provided for the service of an answer
and the trial of the issues arising thereon must be construed as
an order opening the appellant's default. D'Elisa v. Rittondo, 440.

3. City ordinances - Power of the board of aldermen of the city
of New York to prescribe punishment for breach of an ordinance —
Evidence Misdemeanor · Criminal law Greater New York

charter

--

-

- Code of Ordinances, chap. 3, art. 3, §§ 60-62.- The
board of aldermen of the city of New York has power, under the