Clarke, J. :
This is an appeal from & decree of the Surrogate’s Court admitting to probate two instruments, executed in the city of Paris, France, in accordance with the forms required by the laws of the State of Hew York for the execution of testamentary instruments,
The learned surrogate declined to- receive evidence offered on the question of domicile, stating: “ I will assume he was domiciled in France. I will assume it for the purpose of my decision, and if I am reversed, the appellate court will of course send it either to this tribunal or to another for a re-trial of that issue.”
It is conceded that the decedent left personal property within the county and State of Hew York. It is conceded that the papers offered for probate were not executed in accordance with the laws of the republic of France so as to permit 'their probate in that country. There was nothing to show, other than the declaration in the will contained, that the decedent was a.citizen of the United States. The sharply-defined question presented by this record is this: Is an instrument formally executed with the forms and in the manner required by the Hew York law disposing of personal property, there being personal property of the decedent within the State, admissible to probate as a will of personal property, regardless of the testator’s domicile ?
Section 2611 of the Code of Civil Procedure, entitled “ What wills may be proved,” provides that “ A will of real or personal' propérty, executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, executed by a person not a resident of the State, according to the laws [628]*628of the testator’s residence, may be proved as prescribed in this article. '* * *”
This section authorized the probate of the will in question under the first classification therein contained : “A will of * * * personal property, executed as prescribed by the laws of the State,” unless this section is governed and controlled by the ¡irovisions. of section 2694 of the Code of Civil Procedure, which provides as follows : “ The validity and effect of a testamentary disposition of real . property,, situated within the State, or of an interest in real property so situated, which would descend to the heir of an intestate and the manner in which such property or such ah interest descends, where it is not disposed of by will,’ are regulated by the laws of the State, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and.effect of a testamentary disposition of any other prop- ■ ert-y 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.”
The appellants claim that the words “ the validity and effect of a testamentary disposition * * * are regulated by the laws of the State or country of which the decedent was a resident at tlie time of his death” control those formalities required to prove the factum of the will, as well as the interpretation of its terms. If this be so, the elaborate scheme governing the probate of wills executed without the State of Kew York, collected and crystallized in section 2611, is abrogated and destroyed, and the only test to be applied to the question of whether a will should be admitted to probate is, was it executed in accordance with the laws of the State or donntry of which the decedent was a resident at the time of his death ?
This construction would make but one rule applicable to all cases, and would repeal that provision of section 2611, which was first enacted by chapter 118 of the Laws of 1876, providing that a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed may be proved. But the lan[629]*629g'uage of that act when originally passed was, “ whatever may ✓ be the domicile of the person making the same or 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 admitted to probate in the State of Hew York, 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 will was made, or by the laws of the State of New York?’’
■ So that it is quite apparent, as it seems to me, that if section 2694 is to be regarded as governing in any way questions as to the form of the execution of a testamentary document, the words ‘‘ except where special provision is otherwise made by-law” expressly limit its effect and leaves section 2611 in full force and effect as the only provision of the statute determining what wills may be proved.
That section, was construed shortly after its passage by the General Term of the fourth department in Matter of Seabra (18 Wkly. Dig. 428) in 1884. The probate of a will was opposed on the ground that, at the time of the execution of the will and death of the testatrix, she was a citizen and resident of and domiciled in Portugal, and that the will was not executed in accordance with the laws of that country. The court said : “ The law has not always been the same, but now the will of a non-resident, without regard to the place of its execution, or the place of thé testator’s death, may be admitted to probate if.the same be executed in pursuance of the laws of this State, or as prescribed by the laws of the testator’s residence.”
Surrogate Rollins had the same question before him, in 1886, in ■ Matter of McMulkin (5 Dem. 295). In that matter the decedent died in Scotland. The paper was executed in Scotland, and the decedent was there a resident at the time of its execution'. Its execution was fatally defective under the laws of that country.
The court said: “ I am asked by all parties interested to determine whether, upon this state of facts, it must necessarily be denied probate, even though it was executed in manner and form as prescribed by our Statute of Wills. * * * It is argued with much ingenuity that the first clause of the section above quoted [Code Civ. Proc. § 2611] was not intended to cover wills of non-residents without this State, and that in passing upon the sufficiency of the [630]*630execution of a will of personalty made without this State by a nonresident, regard should be had solely to the law of his domicile. * * * I should be greatly disposed to put this interpretation upon the'.statute if its language would permit.
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Clarke, J. :
This is an appeal from & decree of the Surrogate’s Court admitting to probate two instruments, executed in the city of Paris, France, in accordance with the forms required by the laws of the State of Hew York for the execution of testamentary instruments,
The learned surrogate declined to- receive evidence offered on the question of domicile, stating: “ I will assume he was domiciled in France. I will assume it for the purpose of my decision, and if I am reversed, the appellate court will of course send it either to this tribunal or to another for a re-trial of that issue.”
It is conceded that the decedent left personal property within the county and State of Hew York. It is conceded that the papers offered for probate were not executed in accordance with the laws of the republic of France so as to permit 'their probate in that country. There was nothing to show, other than the declaration in the will contained, that the decedent was a.citizen of the United States. The sharply-defined question presented by this record is this: Is an instrument formally executed with the forms and in the manner required by the Hew York law disposing of personal property, there being personal property of the decedent within the State, admissible to probate as a will of personal property, regardless of the testator’s domicile ?
Section 2611 of the Code of Civil Procedure, entitled “ What wills may be proved,” provides that “ A will of real or personal' propérty, executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, executed by a person not a resident of the State, according to the laws [628]*628of the testator’s residence, may be proved as prescribed in this article. '* * *”
This section authorized the probate of the will in question under the first classification therein contained : “A will of * * * personal property, executed as prescribed by the laws of the State,” unless this section is governed and controlled by the ¡irovisions. of section 2694 of the Code of Civil Procedure, which provides as follows : “ The validity and effect of a testamentary disposition of real . property,, situated within the State, or of an interest in real property so situated, which would descend to the heir of an intestate and the manner in which such property or such ah interest descends, where it is not disposed of by will,’ are regulated by the laws of the State, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and.effect of a testamentary disposition of any other prop- ■ ert-y 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.”
The appellants claim that the words “ the validity and effect of a testamentary disposition * * * are regulated by the laws of the State or country of which the decedent was a resident at tlie time of his death” control those formalities required to prove the factum of the will, as well as the interpretation of its terms. If this be so, the elaborate scheme governing the probate of wills executed without the State of Kew York, collected and crystallized in section 2611, is abrogated and destroyed, and the only test to be applied to the question of whether a will should be admitted to probate is, was it executed in accordance with the laws of the State or donntry of which the decedent was a resident at the time of his death ?
This construction would make but one rule applicable to all cases, and would repeal that provision of section 2611, which was first enacted by chapter 118 of the Laws of 1876, providing that a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed may be proved. But the lan[629]*629g'uage of that act when originally passed was, “ whatever may ✓ be the domicile of the person making the same or 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 admitted to probate in the State of Hew York, 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 will was made, or by the laws of the State of New York?’’
■ So that it is quite apparent, as it seems to me, that if section 2694 is to be regarded as governing in any way questions as to the form of the execution of a testamentary document, the words ‘‘ except where special provision is otherwise made by-law” expressly limit its effect and leaves section 2611 in full force and effect as the only provision of the statute determining what wills may be proved.
That section, was construed shortly after its passage by the General Term of the fourth department in Matter of Seabra (18 Wkly. Dig. 428) in 1884. The probate of a will was opposed on the ground that, at the time of the execution of the will and death of the testatrix, she was a citizen and resident of and domiciled in Portugal, and that the will was not executed in accordance with the laws of that country. The court said : “ The law has not always been the same, but now the will of a non-resident, without regard to the place of its execution, or the place of thé testator’s death, may be admitted to probate if.the same be executed in pursuance of the laws of this State, or as prescribed by the laws of the testator’s residence.”
Surrogate Rollins had the same question before him, in 1886, in ■ Matter of McMulkin (5 Dem. 295). In that matter the decedent died in Scotland. The paper was executed in Scotland, and the decedent was there a resident at the time of its execution'. Its execution was fatally defective under the laws of that country.
The court said: “ I am asked by all parties interested to determine whether, upon this state of facts, it must necessarily be denied probate, even though it was executed in manner and form as prescribed by our Statute of Wills. * * * It is argued with much ingenuity that the first clause of the section above quoted [Code Civ. Proc. § 2611] was not intended to cover wills of non-residents without this State, and that in passing upon the sufficiency of the [630]*630execution of a will of personalty made without this State by a nonresident, regard should be had solely to the law of his domicile. * * * I should be greatly disposed to put this interpretation upon the'.statute if its language would permit. ' But it seems to me to assert very squarely that if- a testamentary paper is shown to have been executed in conformity with the laws of this State, it is, so far as regards the formalities of execution, entitled to probate wheresoever and by whomsoever executed, whatever the nature of the property whose disposition it seeks to effect, and wherever such property may be situated. * * * There is no inconsistency between § 2611, as thus interpreted, and § 2694. * * ' * A will may be entitled to probate* although all its dispositions of property may be discovered to be invalid.”
I have found no case, since the passage of the provision under consideration, where a will duly executed according to the laws of this State has been denied probate upon the ground that It has not been executed according to the laws of decedent’s domicile.
Section 2611 clearly provides for three classes of cases, and the clause providing for each of the classes is divided from the following clause by the disjunctive word “ or.” First, a will is to be admitted to probate it executed as prescribed by the laws of the State ;• second, or a will of personal property executed without the State and within the United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland, as -prescribed by the laws of the State or country where it is or was executed; third, or a will of personal property executed by a person not a resident of the State, according to the laws of the testator’s residence.
We are dealing in this section with the question of proof, the question of authenticity of the expression of the last will and testament of- the decedent. Upon what proof will our courts say that an instrument is the true expression of the dead man’s wishes? First, and in any event, we will accept it if executed according to our laws which we have determined sufficiently safeguard the authenticity of the instrument; second, if the will was made in certain specified countries, if executed according to their lawsand, thirds if of a non-resident, according to the laws of his residence. Any other view, it seems to me, would do violence to tne plain language of the statute and to" its historic growth.
[631]*631As it does not appear that there is any real property of the decedent within the State of Hew York, the decree appealed from should be modified by providing that the will should be admitted to probate as a will of personal property and not as a will of real and personal property, and as so modified affirmed, with costs to the respondents.
Laughlin and Scott, JJ., concurred; Patterson, P. J., and Ingraham, J., dissented. '
See 2 R. S. 63, § 40.— [Rep.