CHAPTER XII.

THE LAW BY WHICH THE VALIDITY OF THE TESTAMENT IS TO BE DECIDED.

I. The validity of the testament of immoveable property, if it depend on the capacity of the testator or devisee, is determined by the lex loci rei sita.-Reference to former observations on this subject.-If the property be moveable, the capacity depends on the law of the domicile. -Rights in immoveable property decided by the lex loci rei sita, and in moveables by the law of the domicile.-Effect of a change of domicile where the laws of the former and acquired domicile differ from each other.

II. A testament in which the testator has complied with the forms prescribed by the lex loci actus will be valid to pass property situated in a country where different forms may be required.-Qualification of this doctrine. -The law of England and of the United States requires a will of real property in England and the States, to be passed with the formalities required by the Statute of Frauds.-Rule applies to testaments of moveables.-English cases.-Testator not obliged to adopt the forms prescribed by the lex loci actus, but may use those of the situs, if the devise be of immoveables, and of the domicile, if moveables.

III. Expressions in the testament presumed to be used in the sense in which they are understood in the place of the testator's domicile.

I. IT has been perceived, that the capacity to make, and the capacity to take under a testament, the rights conferred by it, the forms and solemnities with which it is to be made, and the construction it should receive, are subjects on which there is considerable diversity amongst the systems of jurisprudence which this work embraces. When the law of the place in which the testament was

made differs from that of the place of the testator's domicile, or from that of the place of the situs of the property, on all or some of these subjects, it becomes necessary to ascertain which of these conflicting laws ought to be invoked in the adjudication on the validity of the testa

ment.

In treating of the alienations of real property by act inter vivos, it has been stated as a conclusion, sanctioned by the authority of jurists and of judicial decisions, and most consistent with admitted principles, that the capacity to make and to take under the alienation was governed by the law of the actual situs of the property, if it were immoveable, and by that of the domicile, if it were moveable. It is admitted by all jurists, that the transfer of, and title to real property, must be regulated by the lex loci rei sitæ, that a law which prohibits its alienation is a real law, and must, in whatever place the alienation is attempted, prevent the acquisition of any title. It necessarily follows from that admission, that the character and effect of the law must be the same, whether its prohibition has relation to the quality of the property itself, or to the person of the owner; or whether the prohibition be general and absolute, or partial and qualified, or existing only sub modo. It is a quality impressed on the property no less when the property is prohibited to be alienated under particular circumstances, than when it is prohibited to be alienated under any circumstances, or when it is prohibited to be alienated by and to persons standing in certain relations to each other, or by persons who are under a certain age, or who are in any situation, which by the law precludes them from making or taking under the alienation.

There can be no distinction in this respect between an alienation by act inter vivos, and that by testament, if the validity of the title under it depends on the capacity of the person to make it. The observations by which in the preceding parts of this work it has been submitted

that the lex loci rei sita must determine whether the alienation by act inter vivos is valid in respect of the capacity of the person to make it, are equally applicable, when the question regards the law which should decide whether the testamentary disposition is valid in respect of the capacity of the testator or devisee.

It has been seen in a former part of this work, that there is a class of eminent jurists who maintain, that when the capacity or incapacity is dependent on the status of the person, the law of the domicile which gives that status extends even to property situated in another country.

Rodenburg, who is to be included in the number of those who hold that opinion, does not, it seems, adopt it when the question regards the capacity or incapacity to make a testament: (a) " Sed, quid si nostras testetur anno ætatis decimo quarto, sortieturne effectum dispositio in rebus, quæ alterius regionis solo inhæreant, in quâ major ad testandum desideratur ætas? Sit dubitandi ratio, quod de personarum ætate ac capacitate lata lex in personam concepta esse videatur, adeoque ad quæcunque producenda territoria. Verum contra reale statutum esse inde dixeris, quod in statum ac conditionem personæ non sit scriptum, sed expressim directum in rerum alienationes aut alterationes, et quidem per solam testamenti speciem, adeoque circumscriptivè ad istum alienationis actum, cujusmodi statuta realia esse traditum sæpius: et vel inde in proposito conspicere est, quod immoto personæ statu, quæ nullâ ex parte tutelæ subducitur, auctoritate tutoris non spectante minoris testationes, tribuatur nostratibus hæc testamenti factio, adeoque cum status non turbetur, lex personalis dici nequeat." (b)

Merlin also admits in the passage which has been before cited, that if the law importing a prohibition to make

(a) Merlin, Rep. tit. Majorite, § 5, and tit. Autoris. Marit. § 10.
(b) Rodenb. de Jure, c. 5, tit. 2, p. 75.

a testament before the person had attained a certain age, is general, and has no relation to the status of majority, it is a real law, and must govern the disposition by testament of immoveable property situated in the country where such law exists.

The difficulty of adopting such a distinction arises from the consequences to which it leads, for it seems to import that if the law of the situs prohibits the alienation by a minor, the question whether he is a minor, or in other words, whether he is competent to make a testament, is to be determined, not by that law, but by the law of his domicile. But if the law had prohibited an alienation by a person who had not attained the age of twenty-one or twenty-five years, or any other age which was prescribed by the law as the age of majority, the law of the situs would prevail, and the competence of the person would depend on his having attained that age.

But without further pursuing the inquiry which has already been made in the former volume, it may be considered that the opinions of Dumoulin, Burgundus, Peckius, J. and P. Voet, and the decision reported by Stockmans, afford authority sufficient to justify the conclusion, that the capacity to alienate by testament, is that which is established by the law of the country, in which the immoveable property is situated, and by that of the domicile when the testamentary disposition regards moveable property. (a)

In fictione juris, the situs of moveable property is the place of the testator's domicile, and therefore if the validity of a testament in respect of its disposition of immoveable property would be governed by the law of the country in which that property was actually situated, the validity of the testament, as it regards the disposition of moveable property, would be decided according to the

(a) Ante, vol. 1, p. 112, et seq. and the authorities there cited. Peckius, de Test. Conj. lib. 4, c. 28, n. 7, et seq. Dumoulin, ad Cod. lib. 1, tit. 1, Christin. Decis. 282, vol. 1, n. 12.

tom. 3, p. 554, 556.

law of the testator's domicile. The capacity to make the testament and to take under it must be governed by that law. Thus, J. Voet, with reference to the conflicting laws of different states, as to the age which conferred a capacity to make a testament, says, " Dicendum videtur, in his omnibus quantum ad mobilia spectandum unicè esse domicilii legem; quippe quâ solâ regi mobilia ubicunque sita, adstruxi, adeoque, Hollandum annos quatuordecim egressum, et in sacris paternis adhuc constitutum, rectè testari de mobilibus, utcunque non in Hollandiâ, sed vel Ultrajecti, vel in Frisiâ, vel in loco alio testamenta non admittente, sitis." (a) In this opinion there seems to be the concurrence of all foreign jurists. (b) The decisions of the English and American courts are in conformity with it.

If the person at the time he made his will had attained the age which rendered him competent according to the laws of that place to make it, but he afterwards acquired a domicile in another place, the laws of which required that he should attain a more advanced age before he could exercise the power of testing, and he should die in the latter place, the will previously made would become, by the change of domicile, invalid, because the testator must possess the capacity to test both at the time of making his will, and at the time of his death. Nor will the testament become valid, if he should survive the period when by the laws of that place he was competent to test. (c)

(a) Voet, lib. 28, tit. 1, n. 44.

Choppin, de Moribus Paris. D'Argentr. ad Britt. art. 218, et ad Leg. Mech. tit. 16, art. 39.

(b) Gaill, lib. 2, obs. 124, n. 18. Burgund. ad Cons. Fland. tr. 1, n. 36, et tr. 2, n. 32. Sande, Decis. lib. 4, tit. 8, def. 7. P. Wesenb. consil. 1, n. 65. Molin, ad Cout. Paris, § 33, gloss. 1, n. 86. lib. 1, tit. 1, n. 4, et lib. 2, tit. 5, n. 21, 22. gloss. 6, n. 24. Christin. vol. 2, decis. 59, Mævius, Quæst. Prælim. 4, n. 26. Matth. Auctor. de Divert. Leg. et Usus. n. 58. Groeneweg. ad Grot. Intr. Juris. Holl. part 26, lib. 2. P. Voet, de Stat. sect. 9, c. 1, n. 8.

(c) Voet, lib. 28, tit. 3, n. 13.