Chase, J.
An executor, takes the legal title to the personal estate of the testator as a trustee. Equity has jiuisdiction over trusts and such jurisdiction is exercised to construe wills whenever necessary to guide the action of the trustee.
This action is brought by the executor to determine the legal domicile of the testator at the time of the execution of his will, and in case the testator’s legal domicile was in France, what law governs the distribution of his personal estate; and it is also brought to obtain a construction of. such will so far as it relates to personal property. The plaintiff is entitled to the direction of the court in regard to his trust, and the action is maintainable.
Section 2694 of the Code of Civil Procedure, after directing in regard to the validity and effect of a testamentary disposition of real property, provides: “ Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country of which the decedent was a resident at the time of his death.”
By section 2611 of the Code of Civil Procedure, it is provided: «-x- «• x- q^Q to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein* is not affected by a change of the [256]*256testator’s residence made since the execution of the will * * *." It, therefore, becomes necessary, first, to inquire where the testator was legally domiciled on the day of the execution of his will.
John Augustus Pell, the' testator, was bora in the year 1816. He was a native-born citizen of the state of Hew York. He lived in Hew York until the year 1848 when he married,, and almost immediately thereafter went with his wife to Europe, where they remained until after the' birth of their daughter, the defendant Eleanor Livingston Phelps, and until the year 1858, when they returned to the state of Hew York and remained here until about the year 1866. In that year they returned to Europe and traveled about and resided in many different parts .-of Europe until the month of June, 1876, when they again returned to Hew York. He then remained here with, his family part of the time maintaining a household and part of the time living in summer and other hotels iñ and about Hew York, until the 18th day of October, 1879, when he went with his wife to London, and from London to Paris, and then to Pau, Prance, a famous winter and health resort, where they remained during the balance of the winter season and until June, 1880. .From 1880 to 1886, he spent his summers at hotels in different parts of Europe, being one summer in the Pyrenees, and at Vichy, one summer in Bavaria, one summer in Genoa, one summer at Osborne, England, and dining the winter season he was at Pau, France, one season at a hotel, one season at "an apartment-house^ 'and after 1882, at the Villa Hohtpensier, a furnished house at Pau, rented by him. . In August, 1886, he returned to the state of Hew York, and while in Héw York, on the 11th day of September, 1886, he made and executed his last will and testament which is in controversy in this action. He returned to Europe in Hovember, 1886. In 1887, he became non compos mentis and a committee of his "property and estate was appointed by the Supreme Court of the state of HeW York in that year. His wife, Susan M. Pell, was appointed committee of his person. Hr. Pell continued to live with his wife at Pau, France, for some time thereafter and was then taken by her to Paris where he died on the 8th, day of July, 1894, and was buried in the cemetery at Pan. Hr. Pell frequently expressed a preference for Europe and France as a place of residence. ' The son-in-law of Hr. Pell testifies that Hr. Pell told him that he reached the 'determination to live in Europe in the year 1865; he also testifies that Hr. Pell always declared his intention to remain in Pau and to die and be buried -there, and that he repeatedly ' [257]*257declared that he never would return to the city of Hew York ta live. Sometime prior to making his will he purchased in perpetuity a lot in the cemetery at Pau, and had erected thereon a large monument or vault and he expressed the desire that wherever he died his remains should be brought to Pau and be buried in such vault. While at Pau, he had visiting cards printed with the prefix “ de ” before his name as follows: “ J. Aug. de Pell,” and had his trunks marked in the same way.
Before going to Europe in 1866, Mr. Pell, who was one of the. trustees in a deed of trust made by Moses Augustus Field and others, resigned his trust and in the instrument of declination Mr. Pell says: “ Whereas John A. Pell of the said trustees, contemplates visiting foreign countries and remaining absent from the United States of America for a¡ considerable period of time whereby he will be unable to act as one of said trustees.” It was claimed by Mr. Pell that it was constitutionally impossible for his wife or his daughter Eleanor Livingston Phelps to live in Hew York, and he further says in writing to his daughter “ You have tried it under the best circumstances and slowly but surely gave way, and was most speedily going to your grave. The same has three times happened to Mama, first before coming to Europe when three doctors ordered her to leave Hew York and again twice after returning from Europe hale and hearty; here you know she is always well excepting.that weakness of the chest.” In the many letters that were offered in evidence upon the trial of this .action Mr. Pell frequently speaks of the necessity of his wife and daughter remaining in Europe by reason of their inability to withstand what, he calls in one letter the “ detestable ” climate of Hew York. Again in a letter to his son-in-law in 1883 relating to his daughter in speaking of the wholesale purchase of carpets and rugs by him says: “ They certainly are not wanted here, nor can they be at Hew York. You well know Eleanor has fairly tried the climate and that a continued residence there would soon result in death. Her constitution is similar to that of her mother, and like her, she requires a climate 'of neither excessive heat or cold * * *. if experience goes for anything then you know that Eleanor’s life would be sacrificed at Hew York. Our lives depend so greatly upon hers that I most assuredly should make no provision for her living in that most atrocious climate.”
Mr. Pell was the owner of a large amount of real estate in Hew York but it does not appear that he ever sold a piece óf real estate [258]*258that he owned, individually after 1860. He had considerable personal property all of which was invested in American securities and they were deposited for many years, and up to the time of his death with the Hew York Life Insurance & Trust Company, a Mew York corporation having its office in Mew York and investments were made and changed under the direction of Mr. Pell by such Trust Company. Mr. Pell never made an investment of any kind whatever either real or personal in Europe, No property of ' any kind whatever , has come to the hands of the executors from Europe and the only property in Europe owned .by Mr. Pell at the time of his death other than the cemetery lot, was his personal clothing, jewelry, and a service of porcelain mounted with his monogram and a few articles of furniture that he used in connection with the furnished house that he occupied shortly previous to his death.
From 184.7 down to and including 1886, a large number of deeds' were executed from and to him, individually, and as trustee of Mew York real estate, and , in every instance he was described in such deed either “ of the city of Mew York ” or “ of the city, county and state of Mew York.” Many of these deeds were in his handwriting, and with all of which he was personally familiar. During this period other papers, contracts, and agreements were made by him, many of which were in his handwriting and in all of which he was described as stated. During all these years a very large number of leases were made relating to his real estate, most of which he drew himself and in all the leases he ever had drawn he was described as of the city, county and state of Mew York.
On the 1st day of August, 1882, Mr. Pell delivered a lease to a tenant Charles Jones, which lease was prepared.and executed in Europe and sent, by Mr. Pell to Mr. Jones, and in this lease he describes himself as of the city of Mew York, and after this statement is interlined “.Temporarily residing at' Paris.”, This interlineation was in the instrument when it was delivered to. Mr.- Jones by Mr. Pell. During his visit to New York in 1886, he made a contract for the purchase of a piece of real estate on Fifth avenue and arranged for its improvement for business purposes. This contract was in his handwriting, and in it he describes himself as • “ of the state of Mew York.” The deed of this property was' afterward delivered to him in which his residence is stated the same' as in the,contract,
[259]*259His wife, Susan. M. Pell, executed her will at Pau, France, on the Yth day of January, 1886. It was either prepared by Hr. Pell or supervised by him, and the interlineations in the will were in his handwriting and noted by him, In this will Mrs. Pell is described as follows: I Susan M. Pell of the city, county and state of Hew York, United States of America, now traveling in Europe and for the time being, temporarily sojourning in the city of Pau, France, wife of John Augustus Pell, of said city of Hew York.” By her will she named the -same executors and trustees, corporate and individual as named by Mr. Pell in his will, and she provides in different places in her will on certain contingencies for a division of her estate among “ Such person or persons as would inherit my real property, situated in said state of Hew York, in case of my death in said state, unmarried and intestate.” Mrs. Pell died in December, 1893, and her will has been duly probated in the county of Hew York.
Mr. Pell prepared his own will. It is in his handwriting as are all the indorsements thereon. In this will he describes himself as follows: “I, John Augustus Pell, of the city, county and state of Hew York, United States of America.” He named as his executors, two residents of the city and county of Hew York, and as his trustee a Hew York corporation, and in the event of such corporation declining to act as such trustee, another Hew York corporation, and in the event of such corporation declining to act as such trustee, several individuals all residents of the state of Hew York. All of the persons and corporations who are beneficiaries under his will so far as appears are of the state of Hew York, and all of his relatives are of old Hew- York families. He also provides that if any of the persons named in the fourth subdivision of his will do not accept the allowance of income as therein stated, that the same shall be paid over to the Children’s Aid Society of the city of Hew York, a corporation of the state of Hew York. Hot one dollar of money or property is given absolutely or contingently to a person or corporation outside of the state of Hew York. He directs his trustees • to invest so much of his residuary estate as consists of personal property “ in public securities of any of the United States, not situated in a latitude south of the state of Pennsylvania, or in first mortgage railway company bonds, the market value of which shall not be more than five per cent, below par value thereof at the time of making such investments and in amounts not exceeding $5,000, in. bonds of any one [260]*260of such companies or in bonds secured by first mortgages on real estate in the city of Hew York or Brooklyn, in the state of Hew York. ,
■ - Among the other provisions in said will is the following: “ I give and bequeath to my wife all moneys which at my death may be standing to my credit or to which I may be entitled in any bank in the city of Hew York other than the Hew York Life Insurance & Trust .Company, or if I happen,at time of my death to be traveling or sojourning in Europe, then dll moneys which may be to my credit in any Emopean bank, or if she be not then living, then, and in such case I give and bequeath in trust to the Hew York Life Insurance & Trust Company, all such moneys to become a part óf my personal estate.”
He also provides in his will on certain contingencies therein namedj for the division of a certain part of the residue of bis estate among “ Such person or persons as would inherit from him his real estate in state of, and by the laws of Hew York were he to die intestate or unmarried, owning land in said state and in such share or shares as such person-or persons xould so inherit such real estate.
The will was executed in the city of HeW York before witnesses residing in said city in the form used in and in conformity with the laws of the state of Hew York. His will was probated in the Surrogate’s Court of-the county of Hew York, in January,' 1895, and the plaintiff was duly appointed executor and entered upon the discharge of his duties as such executor. After making his last will and in October, 1886, in conversation with, the architect engaged in the alteration of the Fifth avenue building purchased by him while he was in Hew York, he had conversations with him in regard, to changing an apartment-house and when he left said: “I will be bach in the spring and I want you to make alterations for the Carlton House. In the meantime you look it up carefully and considt with my brother George.”, He never sought .for or obtained the authorization of the French government to his residence in France under article 13 of the Code Civil.
Some of the leading rules of law relating to domicile are laid down by the Court of Appeals in Dupuy v. Wurtz, 53 N. Y. 556, as follows: “ For the purposes of succession every person must have a domicle somewhere, and can have but one domicile, and that the domicile of origin is presumed to continue until a new one. is acquired * * * to effect a change of domicile for the purpose [261]*261of succession, there must he not only a change of residence, but an intention to abandon the former domicile and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile.
“ Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile.
“ This rule is laid down with great clearness in the case of Morehouse v. Lord, 10 H. L. 283-292, as follows: Change of residence alone, however long continued, does not effect a change of domicile as regulating the testamentary acts of the individual. It may be and is strong evidence of intention to change the domicile, but unless in addition to residence, there is an intention to change the domicile, no change of domicile is made. And in Whicker v. Hume, 7 H. L. 139, it is said the length of time is an ingredient in domicile. It is of little value if not united to intention, and is nothing if contradicted by intention. And in Aikman v. Aikman, 3 McQueen, 877, Lord Cranworth says, with great conciseness, that the rule of law is perfectly settled that every man’s domicile of origin is presumed to continue until he has acquired another sole domicile with the intention of abandoning his domicile of origin; that this change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change. The question what shall be considered the domicile of a party, is in all cases rather a question of fact than of law. Bruce v. Bruce, 6 Bro. Par. C. 566. With respect "to the evidence necessary to establish the intention, it is impossible to lay down any positive rule. Courts of justice must necessarily draw their conclusions from all the circumstances of each case and each case must vary in its circumstances. ' And moreover, in one a fact may be of the greatest importance, but in another the same fact may be so qualified as to be of little weight. 12 Moore Priv. C. C. 330. In passing upon such a question in view of the important results flowing from a change of domicile, the intention to make such a change should be established by very clear proof especially when the change is to a foreign country. The intention may be gathered both from acts and declarations. Acts are regarded as more important than dec[262]*262larations, and written declarations are usually more reliable than oral ones.”
Dicey in defining domicile uses this language*. “ A person’s home is that place or country either inj which he in fact resides with the intention of residence or in which, having so resided, he continues actually to reside, though no longer retaining the intention of residence, or wdth regard to which having so resided there, he retains the intention of residence though he in fact no longer resides-there.”
A change of domicile to a foreign country is so injurious to the ' welfare of families, and affects so radically the validity and construction of testamentary acts, the disposition of property in case-of intestacy, the rights of married women, the relations of husband and wife, and everything affected by legal principles depending for their solution upon the place of domicile, that it should only be established by the clearest and most. convincing and satisfactory evidence. Where, as in this case, the domicile of origin corresponds-with the domicile of all the relatives of such person, and the-property interests as well as the residence of the executors, trustees, and beneficiaries under the will are all at the place of such domicile of origin, the evidence to establish a change of domicile should be something more than casual, and unadvised statements made without special reference to the technical meaning of the language used. In cases of succession, it requires plain and certain evidence showing a fixed and definite purpose to establish that *a person has become-a foreigner to his native land.
Mr., Pell was a highly-educated man, possessed of a large property, real and personal. He was very careful, conservative and accuraté in all his business transactions and dealings. He had studied medicine here, and he had also studied law, and was admitted as' an attorney and counselor of the Supreme Court of the-State of Hew York.
It is not claimed that Miv Pell’s stay in Europe from 1848 to-1858 was with any intention of changing his domicile. His intentions in going to Europe in 1866 are best expressed in the instrument resigning a trust when he says' he “ contemplates visiting' foreign countries and remaining absent from the United States of _ America, for a considerable period of time.” He remained aWay ten years, going from place to place, his acts not indicating any intention of fixing upon any particular place even as a place of sojourn.
[263]*263It appears from his letters that his trip to Europe in 1848, immediately after his marriage, was on account of the health of his wife and under- orders from her physician. He says she returned hale and hearty twice (1858-1876), but that he was required to seek a climate of neither excessive heat nor cold. There is nothing whatever to indicate any intention on the part of Mr. Pell to acquire a domicile in Europe prior to 1879, and nothing to indicate that he had any idea of returning to Europe when he came with his family to Hew York in 1876. He went to Europe in 1879 because, as he repeatedly states, it was necessary to save the lives of his wife and daughter. It is true that in his letters and conversations he at times expressed a preference for Europe. Such preference was generally expressed in connection with the necessity of residing there on account of the health of his wife and daughter, and that his-happiness depended so largely upon then health. In such conversations and letters he used the words “ reside,” “ residence,” “ domicile,” and “home,” in my judgment without much reference to their technical meaning, but with reference to his place of temporary sojourn. In one letter he speaks of home as being abroad, and in the same letter uses the same word referring to this country.
His daughter’s husband desired that she should go with him to Hew York, but Mr. Pell was so imbued with the belief that to do so would sacrifice her life, that he went to great length, even to the verge of separating her from her husband in persuading her not to go. His letters are filled with this thought, and if at times language is used uncomplimentary to his native country', it was more. to divert his daughter from her thoughts of returning home than an expression of dislike on his part. His regard for Hew York, its institutions and its people are more accurately shown in the bequests and appointments under his will.
His living in Europe at all times prior to the making of the will . was migratory and according to his caprice and in his conversations and letters in spealdng of living in Europe, instead of specifying a particular place or referring to his residence, domicile, or home, in a particular place, he speaks of living “ abroad,” or “ in Europe,” or “ in Prance,” or “ on this (other) side of the Atlantic.” This is too uncertain and indefinite to make anything like convincing and satisfactory proof of a change of domicile to a particular place in a foreign country. At the time of the conversations mentioned in the. testimony, and of writing most of the letters, he was an old man, and he repeatedly stated that he could [264]*264live but a short time. He believed that it would be impossible for him to live for any length of time with his wife in HeW York without serious injury to her health,, but that by remaining in-Europe, she Would outlive him. It is possible that he anticipated spending 'most, if not all, of his days on the other side of the Atlantic. This is not inconsistent with'the intention of retaining his domicile of origin in New York.
In deeds and other instruments executed by and to him, there is a uniform and unvarying reference to his residence in the city of Hew York. This statement is made in instruments prepared and executed in Prance and other parts of Europe, as well as in instruments prepared and executed, in this country. Such, designation in these papers was not the work of a draftsman, but the work of the testator. They present a contimious unequivocal -and consistent statement of intention in solemn instruments, covering all the period in question. These statements were made when there was no controversy, and cover such a long period of time as to preclude the idea of their being made with reference to property rights, and they were so deliberately and frequently made as, to preclude the idea of carelessness or inadvertence. To hold in the face of all these declarations that Mr. Pell intended- to change his legal domicile is'to brand him as a' deliberate falsifier.
These declarations, .under the circumstances, are in the nature of facts rather than declarations (Ward v. Oxford, 8 Pick. 476), and to my mind outweigh any declarations that may have been made to .the.Contrary, and are conclusive in -favor of the contention .of the defendants that Mr. Pell, 'when he made his will, and when he died, "Was legally domiciled in Hew York. The whole tenor of his will is inconsistent with the idea of his being-domiciled abroad.. It is conceded that the traste are void under the French law. The will should be construed under the law of this State, as testator intended where its general provisions are effective and valid*
As to whether the courts of France Would assume jurisdiction of the, personal estate situated in Hew York, if Mr, Pell had a domicile de facto in France, query. . It is unnecessary to decide this question, for the reason that I hold that Mr. Pell never lost his domicile or origin in Hew York. The only other question to be determined in this action is as to whether the condition mentioned in the “ fourth ” subdivision-of his will is void, and if void, what effect, if any,'it has on the other parts .of the will.
[265]*265The condition in the will by which the daughter forfeits her right to the "income of the residuary estate in case she resides or travels outside of the continent of Europe, is expressly limited to the lifetime of her husband, or until “ she shall be divorced from him a vinculo matrimonii, and remain so divorced from him.” The daughter’s husband, Charles Harris Phelps, is a member of the Hew York Bar, and his home is in Hew York. During most of the time since his marriage to the daughter of Mr. Pell, in 1879, he has traveled with her in Europe and other parts of the world. The evidence shows that he desired to return to Hew York, and that his wife to some extent shared in that desire. This was a matter of frequent controversy between them and Mr. Pell. Mr. Pell told Mr. Phelps he would take his wife away from him, and that he had made testamentary provisions to prevent his ever living with his" wife in America. The condition being imposed only during the lifetime of her husband, or until she obtains a divorce from him, is a direct inducement to the daughter to procure such divorce.
The separation of husband and wife impairs the peace of famij lies, seriously affects the offspring of the marriage, and is at war with the best interests of society. The courts have uniformly held all contracts and provisions tending to induce a husband and wife to live separate or be divorced, void as against public policy and good morals. Redfield on the Law of Wills (3d ed.), vol. 2, p. 314; Schouler on Wills, § 604; Jarman on Wills, vol. 2, p. 62; Whiton v. Snyder, 54 Hun, 552; Potter v. McAlpine, 3 Dem. 108.
The condition referred to is void. The other provisions of the will can stand as if-the will had been written entirely omitting all that part thereof relating to the condition.
Judgment may be prepared accordingly, with costs to be paid out of the estate; the amount of costs and to whom allowed to be settled when the formal decision and judgment are settled by me.
Judgment accordingly.