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applicable, and a good authority in the United States. Our laws as to the effect of marriage, in regard to testamentary capacity, are generally the same with the English, and are in fact no other than the English law applied to cases as they arise. We do not therefore see why the above doctrine would not, in this country, meet all the reasons and principles by which it can be supported in England.

The cases of forfeiture and corruption of blood by crimes or otherwise, are arranged by Mr. Williams, under incapacity to make a will, founded upon the fact of the testator in such case having nothing to bequeath. Upon this principle of arrangement a person without property is intestable. But in these instances. there seems to be no personal incapacity; the will is defeated for want of a subject to operate upon. They, therefore, seem not to be properly classed by the author. The cases under this head, in England, are those of a felo de se, in respect to his chattels which are forfeited; traitors and felons, whose goods and lands are forfeited; and outlaws during the continuance of the outlawry. The last case does not occur in the United States, where, according to Mr. Dane, the process of outlawry has never been adopted. Under the laws of the United States all forfeitures of estate and corruption of blood in consequence of crimes, are abolished, from an unwillingness to punish heirs for the offences of their ancestors. It is true that a man may be deterred from the crime of treason or murder, out of regard to his children or heirs, but this motive seems to be too inconsiderable in comparison with others, to justify the visiting of his offences upon his children. Accordingly the constitutions of Pennsylvania, Delaware, and Kentucky have abolished attainder and corruption of blood in cases of treason and felony, and those of Ohio, Tennessee, Illinois, and Indiana have abolished forfeitures of lands and goods for crimes. In other States, again, the abolition of deodands and forfeitures in cases of suicide, leave the question, as to the cases of treason and felony, open. In Maryland forfeitures of this kind are limited, by the constitution, to cases of treason and murder. By the New York Revised Statutes treason is the only crime that works a general forfeiture of property. In Massachusetts all general forfeitures of property for crime are abolished.

On the subject of the execution of a will, the laws of Vermont

require that it shall be under seal; a provision peculiar to that State. The Revised Statutes of New York have a rather singular provision on this subject, by requiring that the testator shall sign a will at the conclusion. This provision originated, no doubt, from the decisions in England that the testator's writing his name in the beginning of the will was a sufficient signing. Whatever may be thought of those decisions, the provision seems to be one of those attempts at minute legislation, which are apt to give greater inconvenience than that proposed to be remedied. After providing that a will, in order to its validity, shall be signed by the testator, or some one in his presence and by his direction, the latitude for construction, as to what shall be considered a signing, is not broader than is offered under almost every legal doctrine. Besides, why should the laws define what is a signing of a will, any more than what is the signing of a deed or note of hand, or any other instrument? The decision in a particular case that the testator's writing his name in the beginning or any other part of a will, is not necessarily applicable to other cases of which the circumstances are different; for after all it is a question of intention. If it appears that a party by writing his name or making his mark at the beginning, or in the margin, or at the end of an instrument, intended to give it his ultimate sanction as a valid and binding document, the purpose of the law in requiring his signature is answered. If, however, it was apprehended that the courts in England had gone too far in their construction of what is a signing, it might have been better to have made a negative provision as to what should be considered not to be a signature, than to have defined what should be such.

In Roberts on wills, vol. 1, p. 97, Exeter Ed. 1823, is a list of cases on the question whether sealing is signing, beginning with one in Strange, in which it is held to be a signature, including Lea v. Libb, Show. 69, in which Lord Holt is reported to have so held, down to Ellis v. Smith, 1 Ves. Jr. 11, in which the contrary doctrine is laid down, where Mr. Chief Justice Willes said he did not think sealing was to be considered signing, notwithstanding the obiter dicta which in many cases were nunquam dicta, but barely the words of the reporters, for he found that many of the sayings ascribed to that great man, Lord Holt, were never said by him. This question is not

mentioned in Mr. Williams's section on signature, nor is sealing to be found referred to in bis index, whence we conclude that it is omitted. And another similar question is introduced in Roberts, whether a mark is a signing within the statute, and he cites a case, Harrison v. Harrison, 8 Ves. 185, decided by Lord Eldon, in favor of the sufficiency of such a signature by an attesting witness. The same point is introduced by Mr. Williams, not inaptly, perhaps, in the section on the capacity of the testator, the marksman being classed in this respect with the blind man, the insane, &c. But we do not find this case of Harrison v. Harrison to be cited by Mr. Williams to this point; nor do we indeed find it to be cited at all by him.

On the subject of attestation we find in Roberts the case of Bond v. Seawall, 3 Burr. 1773, Black. 407, 422, 456, one of some interest, which we do not find in Williams. The facts were that S. made his will on two sheets of paper in his own hand-writing, and signed his name at the bottom of each page, and then called a witness into the room who attested each sheet, and after he had left the room two other witnesses were then called in, who attested the latter sheet, being the only one shown to them. The two sheets were found, after the decease of the testator, wrapped up together in a paper envelope carefully laid up in his desk, but the two sheets were not fastened together. The court was of opinion that the jury should have been instructed, in this case, that if they thought there was reason to presume that the first sheet was in the room when the two witnesses attested the latter, the attestation was sufficient; and that they should have been instructed also, that there was ground to presume that the first sheet was in the room.

In treating of the questio vexata, whether a prior will is revived by the cancellation and revocation of a subsequent one, Mr. Williams, after stating the various decisions, says, that it is 'to be regarded as a question of intention, to be collected from all the circumstances of the case, and that the legal presumption is neither in favor of nor adverse to the revival of a former uncancelled will. Having furnished this principle the law withdraws altogether, and leaves the question as one of intention merely, and open to a decision either way, solely according to the facts and circumstances.' The doctrine has not yet found its way into our jurisprudence precisely in this form, though we

The New York Revised Stat

are inclined to think it correct. utes contain some amendments of the law upon this subject, recommended to our judgment, says Chancellor Kent, by their simplicity and good sense. They provide that in no case does. the destruction or revocation of a second will revive the first, unless the intention to revive it be declared. This provision coincides with the doctrine above laid down, without, however, going its whole length.

No branch of the law is more intricate than that relating to the conflict of laws; but though intricate, the investigation is exceedingly interesting, since it involves the relations of different communities to each other. It not unfrequently happens that the property of persons at the time of their decease is situated under different jurisdictions, in which the regulations of descent of property, making of wills, and construing of legacies and devises, and marshalling assets vary very materially. Questions as to the conflict of laws accordingly very frequently arise under these instruments, and the law on the subject is as yet. very imperfectly settled. In the United States, generally, when a will is made in a foreign country by a person resident there, an administration must be granted here, in order to administer upon his effects in this country; and the law of England is similar to ours in this respect. It is usually ancillary to the foreign administration, but it has been held in Massachusetts, in Stevens v. Gaylord, 11 Mass. R. 256, that an original administration may be granted here for the purpose of administering on the property situated within our jurisdiction, in case none has been taken out in the place of the domicil of the deceased.

As to the form and execution of a will made by a foreigner abroad and offered for probate here, it will be sufficient for the purpose of disposing of personal property if the testator was capable of making a will in the place of his domicil, and if the will is made according to the laws of such place. So in a case, 1 Hagg. 498, it was held in England that the will of a married woman resident in Spain and made according to the laws of that country, was valid for the purpose of disposing of her own separate personal property in England.

But though the rule is that in general the validity of a will made abroad is to be determined by the laws of the place of the testator's domicil, Sir John Nicholl, in Cushing v. Thornton、

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2 Add. 17, expressed his doubts whether a British subject is permitted so far exuere patriam, as to select a foreign domicil in complete derogation of his British, and thereby to render his property liable to distribution, even in case of intestacy, according to any foreign law; still less to make the validity of his will to depend on that law. In the case of the Duchess of Kingston, who made her will in France while she was residing there, but according to the English and not in conformity to the French law as to its execution, the will was held to be valid in England. But suppose the case of a person domiciled abroad and having property in this country, who makes his will in this country while here transiently, and in such form and with such attestation as would not entitle it to probate in the place of his domicil, though it would be entitled to probate under our laws would such a testamentary instrument be a valid disposition of the property in this country, supposing it to have been intended to operate only on such property? This case does not seem to come within any of the decisions that we have met with. According to the general rules on this subject, the law of the place where the contract or instrument is made, or that of the place where it is proposed that it shall be carried into effect, is to govern, according to the circumstances and the objects of the contract or instrument. But a third code of laws comes into consideration in this case, namely that of the place of the testator's domicil; and the laws of this code will govern the distribution of the testator's effects among his heirs. But upon the subjects of probate and administration in the place where the will is made, and the property situated, it seems to us that, in the case supposed, the laws of that place ought to be followed in pursuance of the rules already stated.

Lord Hardwicke gives a singular reason why the goods and chattels situated in England, of a person domiciled abroad, should be distributed according to the rules of succession of the place of domicil, namely, because, if it were otherwise, it would destroy the credit of the public funds, for no foreigner would put into them, if, because a title must be made up by administration or probate of the prerogative court of England, the property was to be distributed differently from the laws of his own country. The maintenance of the public credit seems to be a very remote consideration in determining the rules of succession to property.

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