voluntary act on the part of the testator, it is dependent for its effect upon his death, which is involuntary. It is therefore to be classed under this head."

The second instance of capacity in involuntary transactions may be designated business capacity in general (exclusive of contracts and other voluntary acts). Under this head are grouped all those cases in which the abstract question arises whether the party is a competent agent, but in which he does no voluntary and deliberate act.

Under the head of voluntary transactions, the first instance of capacity will arise in respect to the making of contracts in general, and the second with respect to capacity to enter into the contract of marriage in particular." The "proper law" to regulate those instances of capacity belonging to the first class is the law of the party's legal situs or domicil; while capacities of the second class are controlled by the law of the party's actual situs at the time of the transaction, subject to modifications which will be discussed hereafter.

§ 70. Testamentary Capacity. In respect to the capacity to make a will, a distinction, already adverted to, must be made between wills of lands and wills of personal property. In respect of wills of lands, the testamentary capacity of the testator is one of the steps in the chain of title, all of which are to be regulated by the law of the place where the land is situated. Hence, it is well settled that the lex situs of the land governs the capacity to devise, as well as the formal and substantial validity of the will.1

But in the case of a will of personalty the rule is otherwise, the legal situs of personal or movable property being with the person of the owner. Hence the general rule of private international law is that the law of the owner's situs shall determine his capacity to bequeath it; and since the will takes effect

7 See post, §§ 70, 142.

9 Post, §§ 72, 73.

8 Post, § 71.

1 Ante, § 11; Story, Confl. L. § 474; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 61, 70; Carpenter v. Bell, 96 Tenn. 294, 34 S. W. 209; Frazier v. Boggs, 37 Fla. 307, 20 So. 245.

by the death of the testator (an involuntary act) it is the law of the testator's legal situs (or domicil) at the time of his death that will govern. That the lex domicilii of the testator is the proper law to govern testamentary capacity in case of personalty is settled beyond dispute.

It is not always easy however to determine when a question is really one of testamentary capacity. Because the law of a State prohibits its citizens to make particular testamentary dispositions, it does not follow that the prohibition is against their testamentary capacity. In order to create a true testamentary incapacity, the policy of the prohibiting law must be directed against the right of the testator to dispose of his property, not against some particular form of disposition he may desire to make, nor against the right of his beneficiary to hold the property bequeathed.

Thus, a law prohibiting a person under legal age to make a will creates a testamentary incapacity; or a law prohibiting married women from bequeathing their property, whether applying to all or only part of their possessions. So also, a law providing that no will shall be valid, unless executed a certain time before the testator's death; or a law providing that no will creating a charitable trust shall be valid if executed within a named time before the death of the testator; or a provision that a testator shall not give more than a certain proportion of his estate to charities. The policy of all these provisions is to prevent the testator from making indiscreet dispositions, to the disinheritance of his family. They are aimed to deprive him of a discretion which, if given full sway, might result in injustice to those dependent upon him. They create a true testamentary incapacity. The policy of such laws is applicable to all persons who are subject to them, to all persons domiciled in that State,

2 Roberts' Will, 8 Pai. Ch. (N. Y.) 519; Chamberlain v. Chamberlain, 43 N. Y. 424, 432-433; Kerr v. Dougherty, 79 N. Y. 327, 341; Cross v. Trust Co., 131 N. Y. 330, 340; Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 194; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 873; Montgomery v. Millikin, 5 Sm. & M. (Miss.) 151, 43 Am. Dec. 507; Cameron v. Watson, 40 Miss. 191, 207; Wil liams v. Saunders, 5 Coldw. (Tenn.) 60.

regardless of their actual situs, or the actual situs of the property bequeathed. Wherever the latter may be, it must for this purpose be regarded as helping to make up the aggregate wealth of the State whose citizen the owner is. The strict lex scripta of the testator's domicil therefore will govern testamentary incapacities of this character."

On the other hand, a law is not a restriction upon testamentary capacity, which avoids a will creating a trust to endure longer than lives in being, or other perpetuity; or which avoids charitable trusts, or other vague and indefinite dispositions. These prohibitions are not for the protection of the testator's estate from his improvident dispositions, but for the general welfare of the State, or because of the incapacity of the courts to enforce the provisions. The State passing such laws is only concerned with their enforcement when the property is designed under the will to be held in perpetuity within its limits, or where its courts are to enforce the vague and indefinite trusts created by the will. This policy is not affected by the residence or the non-residence of the testator, but only by the presence or non-presence of the property disposed of. If the perpetuities or indefinite trusts are to take effect there, the policy of these laws is violated, and the domicil of the testator and its laws are not of material importance.*

Another class of these prohibitory laws relate to the capacity of the beneficiary to take the property bequeathed. These laws also are to be distinguished from those which place a restriction upon the capacity of the testator to dispose of his property. The purpose of such laws is not to restrain the testator from improvident dispositions, but to subserve a general policy, which the welfare of the State as a whole requires should be carried out. To this class belong prohibitions upon a corporation to be a legatee, or to hold more than a certain amount of the property bequeathed to it, etc. The purpose is to impose a check upon the aggrandizement of the corporation and for the protection of the State against its undue influence and power. 3 See Healy v. Reed, 153 Mass. 197, 200; Montgomery v. Millikin, 5 Sm. & M. (Miss.) 151, 43 Am. Dec. 507. See post, § 144.

See Healy v. Reed, 153 Mass. 197, 200; post, § 144.

Such is the policy of statutes of mortmain. In such a case, it is evident that the State enacting such law is not interested in enforcing it if the corporation or other beneficiary thus prohibited to take is not within its borders; and on the other hand, if such beneficiary is within its limits, the policy of the law applies, no matter where the testator's domicil may be or what may be its laws. The question here involved is not the testamentary capacity of the testator, but the capacity of the legatee to take, and that capacity should be regulated by the law of the beneficiary's domicil, just as much as the testator's capacity is to be controlled by the law of his domicil."

6

Thus, in Chamberlain v. Chamberlain, a leading New York case, a testator, domiciled in New York, bequeathed property to a Pennsylvania corporation for educational purposes. If the legatee had resided in New York and the property was to have remained there, the disposition would have contravened the New York law placing restrictions upon the capacity of corporations to take as legatees. But inasmuch as the corporation legatee was capable of taking the legacy under the law of Pennsylvania (its situs), the court construed the New York statute not to apply. In the course of its opinion the court says: "It is no part of the policy of New York to interdict perpetuities or gifts in mortmain in Pennsylvania."

On the other hand, in another New York case," a testator domiciled in New York bequeathed a legacy to a Pennsylvania corporation for charitable purposes, and died within a month after executing his will. The law of New York provided that no devise or bequest to a corporation by one leaving a wife, child, or parent should be valid in any will not made and executed at least two months before the testator's death. The law of Pennsylvania was the same. It was held that the bequest

• Chamberlain v. Chamberlain, 43 N. Y. 424 ; Kerr v. Dougherty, 79 N. Y. 327; Healy v. Reed, 153 Mass. 197, 200; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868; Fellows v. Miner, 119 Mass. 541; Sohier v. Burr, 127 Mass. 221; Hope v. Brewer, 136 N. Y. 126. See Cameron v. Watson, 40 Miss. 191. See Vansant v. Roberts, 3 Md. 119; post, § 144.

6 43 N. Y. 424.

7 Kerr v. Dougherty, 79 N. Y. 327, 341.

was invalid. This decision was clearly correct, but it is submitted that the court erred in following the Pennsylvania law rather than that of New York in reaching its conclusion. The result was the same, for the two laws were similar; but the prohibition of the New York law was directed in this case against the capacity of the testator, not against the capacity of the legatee, and should therefore have furnished the guide, since New York was the testator's domicil. Mr. Wharton's criticism upon this decision is well founded.8

Following the same line of reasoning, it would seem that if the question should arise, not in the testator's domicil but in the State where the property is or the legatee resides, the courts of the forum should be governed by the lex domicilii of the testator, it is true, but should construe that law according to the policy indicated thereby. If intended as a restriction upon testamentary capacity, the strict lex scripta of the testator's domicil should be applied. If the lex domicilii is intended to lay down rules governing the mode in which property in the domicil should be held or enjoyed, as in case of statutes prohibiting gifts in perpetuity; or rules prescribing what persons under its jurisdiction may receive bequests, as in case of statutes of mortmain; or rules governing its courts in the administration of trusts, as in case of provisions that vague and indefinite trusts shall not be enforced, — in all such cases the policy of the lex domicilii indicated by such laws is confined to the limits of the domicil itself and is not to be construed as applying to property to be enjoyed in other States, to legatees domiciled elsewhere, or to trusts to be administered by the courts of other States.

In those cases in which the law of the testator's domicil is to be applied, it must be observed that it is the domicil possessed by the testator at the time of his death that furnishes the proper

8 Whart. Conf. L. § 577. In a similar case in Massachusetts it was held that the lex domicilii of the testator, not of the legatee, should govern. Healy v. Reed, 153 Mass. 197. See Hollis v. Seminary, 95 N. Y. 166; Curtis v. Hutton, 14 Ves. 537.

9 See Chamberlain v. Chamberlain, 43 N. Y. 424; Healy v. Reed, 153 Mass. 197; Dammert v. Osborn, 140 N. Y. 30; Cross v. Trust Co., 131 N. Y. 330. In the last case the disposition was opposed to the policy of both States.