STORY, Circuit Justice.
It is agreed by the parties, that, at the time of his death, Sir John Caldwell had his legal domicil in the province of New Brunswick; and, indeed, there is no doubt, that he was at that time, and for many years before, and probably from his birth, a subject of the sovereign of the United Kingdom of Great Britain and Ireland. His residence in Boston was merely for temporary purposes. It is further agreed between the parties, that the law governing wills in the province of New Brunswick is an act entitled “An act for the amendment of the law with respect to wills,” passed on the 9th of March, 1838 (Act. 1837-38, 1 Yict. c. 9), which is now before me in the printed laws of New Brunswick, and it is in its main provisions a transcript of the act of the British parliament of 1 Viet. c. 26. By the provincial statute, it is expressly enacted, “that no will shall be valid, unless it shall be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” Now this enactment is, in its terms, equally applicable to all wills whether of personal estate or of real estate or of both. And it is plain, that the letters of Sir John Caldwell, stated in the bill and admitted by the answers, if they constitute a testamentary disposition of the property therein mentioned, are void under the statute of the province, as not being executed according to the provisions of that statute, if that statute constitutes the governing rule.
Two questions therefore arise: (1) Whether these letters constitute in point of law a testamentary disposition by Sir John Caldwell. (2) If they do, then, whether the law of the province constitutes the rule, by which they are to be judged as to their interpretation and validity. In respect to the first question, it is manifest, that these letters are susceptible of but three modes of interpretation as to their object and effect. They constituted a disposition of the property therein mentioned, either by way of gift or by way of donation mortis causa, or by way of testament. In the first place, they cannot be construed as a gift inter vivos, because they were to have effect only in case of the death of Sir John Caldwell, were revoked by him in his life time, and there was [995]*995no delivery or transfer either actual or constructive to the donees. See 2 Bl. Comm. 441; Vin. Abr. tit “Gift,” A. In the next place, they cannot be construed as a donation mortis causa — for all the essential ingredients of such a mortuary donation are wanting. There was no delivery or transfer of the property. The donation was not in any illness of Sir John, or in expectation of death from any existing illness; and it was not made to depend upon the condition of his death by any disorder or illness then existing. Now these are indispensable to the validity, and indeed constitute the essence of a donation mortis causa. The cases on this subject will be found generally collected in 1 Story, Eq. Jur. §§ 600, 607; and in Mr. ■Williams’ excellent Treatise on the Law of Executors and Administrators (volume 1, Ed. 1838, pt 2, bk. 2, c. 2, § 4, pp. 544-554). The judgment of Lord Eldon in the case of Duf- . field v. Elwes in the house of lords, 1 Bligh (N. S.) 497, 527-530, contains a very full and accurate review of the whole doctrine, and completely disposes of the point, that these letters in no just sense constitute a donation mortis causa. See, also, Tate v. Hillbert, 2 Ves. Jr. Ill, 118, 119. The letters must then be treated as in their nature, scope and object ■testamentary, or, in other words, as being a testament of personal property. To constitute such an instrument no particular form is necessary. All that is required is, that it should clearly appear, that it is the intention of the party, that it should operate after his death and not before; for that constitutes the test whether it is testamentary or not Hence a deed poll, or indenture, a deed of gift, a bond, a marriage settlement, letters, drafts on bankers, assignments of bonds, and indorsement of notes, have been held to be testamentary, where it was clear, that they were intended to operate only after the death of the party. See Williams, Ex’rs & Adm’rs (Ed. 1838) pt. 1, bk. 2, pp. 58-61, c. 2, § 3. Tried by this test it is plain, that these letters are purely testamentary. They are to take effect in the event of the death of Sir John, and after his death, and until that period they are intended to be inoperative. Swinburne has put the definition of a will or testament correctly when he says, “It is the first sentence of our will touching what we would have done after our death,” respecting our property.' Swinb. Wills, pt. 1, I 231; Williams, Ex’rs & Adm’rs, pt. 1, bk. 1, p. 6, c. 2. And this is the very definition given by Modestinus in the Roman law. Testa-mentara est voluntatis nostrae justa sententia de eo, quod quis post mortem suam fieri velit. Die. iib. 28. tit. 1. 1. 1.
In respect to the second question, by what law the execution of a will of personal estate is to be governed as to its validity and interpretation, there is now no ground for •doubt The rule now firmly established is, that the law of the place of the testator’s domicil is to govern in relation to personal property, although the will may have been executed in another state or country, where a different law prevails. It was settled many years ago in America, and, at least, as early as the case of Desesbats v. Ber-quier, 1 Bin. 336, and the same rule is now as firmly established in England. Stanley v. Bernes, 3 Hagg. Ecc. 373-466; Moore v. Darell, 4 Hagg. Ecc. 346, 334; Countess Ferraris v. Marquis of Hertford, Curt. Ecc. 468. So that here there is no matter open to controversy. The validity and interpretation of these testamentary papers must be governed by the laws of the province of New Brunswick, where Sir John Caldwell was domiciled at the time of his death, and where they were executed; and by that law the testamentary papers are utterly void and incapable of any legal operation to pass the property bequeathed therein. If, indeed, these papers had constituted .a valid testament. the legatees could have obtained no benefit from the bequests therein contained, .since it is admitted that Sir John died insolvent. But then the present grant of administration, being not as in a pure case of intestacy, could not have stood; but administration should have been taken by the plaintiff as administrator cum testamento annexo; and this could not have been granted until after the papers had been first duly admitted to probate in the proper probate court of the province of New Brunswick; or at least until they were established as testamentary in the proper court in Massachusetts. Notwithstanding the doubt intimated by Sir John Nicholl in the Case of Reid, 1 Hagg. Ecc. 474, I very much incline to the opinion that either course might nave been open to the parties to have been pursued, if these papers had been a valid testamentary disposition; and I should rather gather from the case of Price v. Dewhurst, 4 Mylne & C. 80, 84, that this was the inclination of opinion of Lord Cottenham in Larpent v. Sindry; 1 Hagg. Ecc. 382, where it was thought a foreign will might well be admitted to probate in the ecclesiastical courts of England, upon the production of an exemplified copy of the will proved in the foreign domicil. See 1 Williams, Ex’rs & Adm’rs (Ed. 1838) pt 1, pp. 228, 229, c.
Free access — add to your briefcase to read the full text and ask questions with AI
STORY, Circuit Justice.
It is agreed by the parties, that, at the time of his death, Sir John Caldwell had his legal domicil in the province of New Brunswick; and, indeed, there is no doubt, that he was at that time, and for many years before, and probably from his birth, a subject of the sovereign of the United Kingdom of Great Britain and Ireland. His residence in Boston was merely for temporary purposes. It is further agreed between the parties, that the law governing wills in the province of New Brunswick is an act entitled “An act for the amendment of the law with respect to wills,” passed on the 9th of March, 1838 (Act. 1837-38, 1 Yict. c. 9), which is now before me in the printed laws of New Brunswick, and it is in its main provisions a transcript of the act of the British parliament of 1 Viet. c. 26. By the provincial statute, it is expressly enacted, “that no will shall be valid, unless it shall be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” Now this enactment is, in its terms, equally applicable to all wills whether of personal estate or of real estate or of both. And it is plain, that the letters of Sir John Caldwell, stated in the bill and admitted by the answers, if they constitute a testamentary disposition of the property therein mentioned, are void under the statute of the province, as not being executed according to the provisions of that statute, if that statute constitutes the governing rule.
Two questions therefore arise: (1) Whether these letters constitute in point of law a testamentary disposition by Sir John Caldwell. (2) If they do, then, whether the law of the province constitutes the rule, by which they are to be judged as to their interpretation and validity. In respect to the first question, it is manifest, that these letters are susceptible of but three modes of interpretation as to their object and effect. They constituted a disposition of the property therein mentioned, either by way of gift or by way of donation mortis causa, or by way of testament. In the first place, they cannot be construed as a gift inter vivos, because they were to have effect only in case of the death of Sir John Caldwell, were revoked by him in his life time, and there was [995]*995no delivery or transfer either actual or constructive to the donees. See 2 Bl. Comm. 441; Vin. Abr. tit “Gift,” A. In the next place, they cannot be construed as a donation mortis causa — for all the essential ingredients of such a mortuary donation are wanting. There was no delivery or transfer of the property. The donation was not in any illness of Sir John, or in expectation of death from any existing illness; and it was not made to depend upon the condition of his death by any disorder or illness then existing. Now these are indispensable to the validity, and indeed constitute the essence of a donation mortis causa. The cases on this subject will be found generally collected in 1 Story, Eq. Jur. §§ 600, 607; and in Mr. ■Williams’ excellent Treatise on the Law of Executors and Administrators (volume 1, Ed. 1838, pt 2, bk. 2, c. 2, § 4, pp. 544-554). The judgment of Lord Eldon in the case of Duf- . field v. Elwes in the house of lords, 1 Bligh (N. S.) 497, 527-530, contains a very full and accurate review of the whole doctrine, and completely disposes of the point, that these letters in no just sense constitute a donation mortis causa. See, also, Tate v. Hillbert, 2 Ves. Jr. Ill, 118, 119. The letters must then be treated as in their nature, scope and object ■testamentary, or, in other words, as being a testament of personal property. To constitute such an instrument no particular form is necessary. All that is required is, that it should clearly appear, that it is the intention of the party, that it should operate after his death and not before; for that constitutes the test whether it is testamentary or not Hence a deed poll, or indenture, a deed of gift, a bond, a marriage settlement, letters, drafts on bankers, assignments of bonds, and indorsement of notes, have been held to be testamentary, where it was clear, that they were intended to operate only after the death of the party. See Williams, Ex’rs & Adm’rs (Ed. 1838) pt. 1, bk. 2, pp. 58-61, c. 2, § 3. Tried by this test it is plain, that these letters are purely testamentary. They are to take effect in the event of the death of Sir John, and after his death, and until that period they are intended to be inoperative. Swinburne has put the definition of a will or testament correctly when he says, “It is the first sentence of our will touching what we would have done after our death,” respecting our property.' Swinb. Wills, pt. 1, I 231; Williams, Ex’rs & Adm’rs, pt. 1, bk. 1, p. 6, c. 2. And this is the very definition given by Modestinus in the Roman law. Testa-mentara est voluntatis nostrae justa sententia de eo, quod quis post mortem suam fieri velit. Die. iib. 28. tit. 1. 1. 1.
In respect to the second question, by what law the execution of a will of personal estate is to be governed as to its validity and interpretation, there is now no ground for •doubt The rule now firmly established is, that the law of the place of the testator’s domicil is to govern in relation to personal property, although the will may have been executed in another state or country, where a different law prevails. It was settled many years ago in America, and, at least, as early as the case of Desesbats v. Ber-quier, 1 Bin. 336, and the same rule is now as firmly established in England. Stanley v. Bernes, 3 Hagg. Ecc. 373-466; Moore v. Darell, 4 Hagg. Ecc. 346, 334; Countess Ferraris v. Marquis of Hertford, Curt. Ecc. 468. So that here there is no matter open to controversy. The validity and interpretation of these testamentary papers must be governed by the laws of the province of New Brunswick, where Sir John Caldwell was domiciled at the time of his death, and where they were executed; and by that law the testamentary papers are utterly void and incapable of any legal operation to pass the property bequeathed therein. If, indeed, these papers had constituted .a valid testament. the legatees could have obtained no benefit from the bequests therein contained, .since it is admitted that Sir John died insolvent. But then the present grant of administration, being not as in a pure case of intestacy, could not have stood; but administration should have been taken by the plaintiff as administrator cum testamento annexo; and this could not have been granted until after the papers had been first duly admitted to probate in the proper probate court of the province of New Brunswick; or at least until they were established as testamentary in the proper court in Massachusetts. Notwithstanding the doubt intimated by Sir John Nicholl in the Case of Reid, 1 Hagg. Ecc. 474, I very much incline to the opinion that either course might nave been open to the parties to have been pursued, if these papers had been a valid testamentary disposition; and I should rather gather from the case of Price v. Dewhurst, 4 Mylne & C. 80, 84, that this was the inclination of opinion of Lord Cottenham in Larpent v. Sindry; 1 Hagg. Ecc. 382, where it was thought a foreign will might well be admitted to probate in the ecclesiastical courts of England, upon the production of an exemplified copy of the will proved in the foreign domicil. See 1 Williams, Ex’rs & Adm’rs (Ed. 1838) pt 1, pp. 228, 229, c. 3, § 6. But it is unnecessary to decide this point; and I have introduced it merely to show, that the present bill, upon the present grant of administration, is maintainable solely upon the ground, that the case is one of pure intestacy of Sir John Caldwell.
Upon the whole, upon the grounds already stated, I hold, that these papers are testamentary in their nature, character and operation, and as such are a nullity by the law of Sir John’s domicil; and that consequently he died intestate, and the plaintiff, as his administrator, is entitled to the assets belonging to Sir John, for which the present bill is brought. In respect to the question of interest to be allowed upon the property, my judgment is, that as Mr. Appleton is in no default, and could not safely [996]*996have acted otherwise than he has done, that he ought not to pay any interest upon the assets, unless he has made interest thereon; and it does not appear that he has made any. His is the case of a mere state administrator, acting bona fide, and enitled to be protected by the court He should, therefore, receive the ordinary costs as between client and solicitor. In respect to the other defendants, I think, that the case is not one for costs either for them or against them. The questions involved in the case are very fit for discussion, and were too novel and important, at least here, not to justify a full defence on their part. It appears to me, therefore, that they are not entitled to any costs, and they ought to bear their own costs; and of course, the plaintiff is to bear his own costs as a charge upon the fund. I shall direct a decree to be entered accordingly.
The decree was as follows: That the said Sir John Caldwell, in the bill mentioned, at the time of the writing and executing the letters mentioned in the said bill, and also at the time of his death, was domiciled in the province of New Brunswick; and that the letters aforesaid purport to be, and are, testamentary papers; and that the legal validity and interpretation thereof are to be governed and adjudged by the laws of the said province; and that the same not being executed so as to be binding as a will and testament by the laws of the said province, they are to be deemed to all intents and purposes as testamentary papers, a mere nullity, and of no effect; and that the said Sir John Caldwell is, therefore, to be deemed to have died intestate; and that the said Thomas C. Grattan having been duly appointed administrator of the goods and effects of the said Sir John Caldwell, is entitled to have and hold as such, the assets of the said Sir John Caldwell, now in the hands of the said William Appleton, as in his answer is stated and admitted. And it is thereupon ordered and decreed by the court, that the said William Appleton do forthwith pay over the same to the said Thomas C. Grattan, as administrator, deducting therefrom the amount which shall be awarded to him as costs in this cause by the court, as hereinafter stated. And the- court do further order and decree, that the said William Appleton be allowed his reasonable costs, as between client and solicitor, in this cause, to be settled,. in case of difference between the parties, by a master of the court And that the defendants, Jacob A. Hathome and Julia A. Hath-orne, his wife, do neither receive nor pay any costs; and that the costs of said Thomas C. Grattan, in the cause, be a charge upon the assets to be received in pursuance of this decree.