one half the personalty as her intestate husband's distributee, and made this applicable to all property situated in that State, regardless of marital rights which might have accrued in other States. The question was whether the widow's renunciation in the Virginia courts operated to make the husband intestate in Mississippi, and therefore made the law of that State applicable so as to entitle her to one half instead of one third of her husband's personalty. The Mississippi court held that the Virginia court was the proper place for the wife's renunciation to be made; that that renunciation did not render the husband "intestate" in the sense used by the Mississippi statutes applicable to all property of intestates within its limits, regardless of the owner's residence; that the general rule that the lex domicilii of the deceased owner governs the distribution of his personalty would therefore apply; and that the widow's share in the husband's Mississippi personalty should be determined by the Virginia law.

Cases of election may also arise where the testator, possessed of real and personal property, makes a will disposing of it all, the will being valid by the law of his domicil (as respects the personalty) or by the lex situs of some of the realty, but invalid as to the rest of the land by its lex situs, a beneficiary under the will being also an heir to the property as to which the will is invalid. In such cases the beneficiary (and heir) is generally required to elect between the valid benefit conferred upon him and the property to which he succeeds as heir.

9

8

In Brodie v. Barry, a testator domiciled in England left all his real and personal property upon trusts for the benefit of his nephews and nieces. The land was in Scotland, and the will was insufficient under the Scotch law to pass the realty. Only one of the beneficiaries could under the law of Scotland succeed as heir to the land there. The others sought to make her elect in the English court of chancery, and Sir William Grant compelled her to do so.

8 Brodie v. Barry, 2 Ves. & B. 127; Balfour v. Scott, 6 Bro. P. C. 550, cited in Brodie v. Barry; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324. See Rice v. Harbeson, 63 N. Y. 493. But see Maxwell v. Maxwell, 3 DeG. M. & G. 705; Maxwell v. Hyslop, L. R. 4 Eq. 407.

92 Ves. & B. 127.

§ 148. Same - Change of Domicil after Execution of Will. We have heretofore supposed that the testator's domicil at the time of the execution of the will has remained unchanged up to the time of his death. In such case, in the absence of contrary evidence, we have seen that he will be presumed to have in mind, when he uses certain ambiguous words or phrases, the meaning attached to such terms by the law or vernacular of his domicil.

But it may be that the testator, though domiciled in one State when he executes the will, has subsequently at some time before his death removed permanently to another State, where he dies, without revoking his will executed in the first domicil, and without executing a new one in his last domicil. And the meaning attached to the terms he has used in the will in the last domicil may differ from that attached to the same terms in his first abode.

Under such circumstances, it becomes a matter of extreme difficulty to determine by which law (or usage) the ambiguous phrases shall be interpreted, whether by the law of the domicil at the time of the execution of the will or at the time of the testator's death. Weighty arguments may be advanced to uphold either position. The point was raised in Harrison v.

1 Thus, in favor of the law of the last domicil, it may be said: (1) That the whole subject of wills of personalty is thus made to depend upon the same law, the law of the testator's last domicil being the law upon which depends the validity of the will so far as concerns either the capacity of the testator, the formal validity of the will, or its substantial validity; and that to allow a different law to govern its interpretation or construction would be incongruous and inharmonious. See Cross v. Trust Co., 131 N. Y. 330, 349. But this argument overlooks the fact that the interpretation of a will rests upou a very different foundation from matters of validity. The former is based upon the intention of the testator, while the latter is independent of intention, and rests upon the policy of the law. Logically therefore there is no reason why the same law should govern. (2) A second and more powerful argument in favor of the law of the last domicil is to be found in the rule that wills speak as of the death of the testator, not as of the time of their execution. See Moultrie v. Hunt, 23 N. Y. 394; Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139; Lincoln v. Perry, 149 Mass. 368, 374. It may be argued that although the testator may have attached to his words when he wrote them the meaning given them by the law of his then domicil, yet

2

Nixon, but was left undecided. Notwithstanding some dicta to the contrary, the better view is believed to be that the law of the domicil at the execution of the will is to govern its interpretation and construction.*

when he changes his domicil to a State whose law gives a different meaning to the words used, it must be supposed that he is as familiar with the latter law as with the first, and that if he had desired the words to have retained their first meaning, he would have altered the language so as to convey that meaning under the law of his new domicil. See Moultrie v. Hunt, 23 N. Y. 394, 400.

On the other hand, it may be urged in favor of the domicil at the time the will is executed, that since the law (and usage) of that State certainly determines primarily the meaning to be given to the words used, the will as the testator wrote it is to be construed in accordance therewith; that such was the meaning intended by the testator, and such was his will; that he can only alter that will by revoking it, or by executing a new will or a codicil, without which no subsequent change of intention on his part would be of any effect; that the will is made up, not only of the words the testator has used, but also of the meaning to be attached to those words; that the words, as first written, with the meaning then attached to them, constitute his will; and that it cannot be revoked and a new will substituted for it, except by the ceremonies required by law for the revocation of a will and the execution of a new one. See Staigg v. Atkinson, 144 Mass. 564, 569, 12 N. E. 354; Holmes v. Holmes, 1 Russ. & Myl. 660, 662, 663.

It is true that a will speaks as at the death of the testator, not as at its execution, so far as relates to the property owned by the testator, which may pass under the terms of his will; but this is not so much a question of the intention of the testator - of what property he intends shall pass under the will. It is in larger measure a question of testamentary capacity; that is, even supposing his intention fixed to dispose of all his property now or hereafter owned, it is a question whether he has the capacity to dispose of such as he acquires after the execution of the will. See Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139, 142. This question of testamentary capacity, and incidentally the question of the testator's intention with respect to the disposition of after acquired property, is settled by the rule that the will speaks as at the death of the testator. But it leaves untouched the intention of the testator in other respects and the interpretation of language used in other connections.

29 Pet. 483.

3 Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 195. See Merrill v. Preston, 135 Mass. 451; Story, Confl. L. § 479 g.

Staigg v. Atkinson, 144 Mass. 564, 569, 12 N. E. 354; Holmes v. Holmes, 1 Russ. & Myl. 660, 662, 663. See Merrill v. Preston, 135 Mass. 451.

It may at least be asserted positively that the law or usage of a domicil possessed prior to the execution of the will is not generally to be regarded, if at the time of its execution the testator was domiciled in another State."

§ 149. Revocation of Wills. With respect to wills of real estate, the effect of an act of revocation will in general be determined by the lex situs, whether the revocation be express or implied. Thus, in Ware v. Wisner, 2 a foreign testator devised certain lands situated in Iowa. Afterwards an heir was born to the testator. It was held that the effect of the subsequent birth of the heir as a revocation of the will should depend upon the lex situs of the land, and the will was declared revoked.

With respect to wills of personalty, on the other hand, the effect of an act of revocation will depend upon the law of the testator's domicil, whether the revocation be express, as by the execution of a new will, or the destruction of the old, animo revocandi, etc., or whether it arises by implication of law, as by the testator's marriage, the birth of pretermitted children, etc.3

It should be specially observed that the revocation of a will, whether express or by implication, is not a continuing act, but once validly accomplished the revocation is complete and final; the will at once and forever loses its efficacy as a will, unless afterwards republished or re-executed. It follows therefore that no subsequent subjection of the testator to the law of a new domicil will alter the effect of a revocation once validly completed and perfected. Hence no subsequent change of domicil by the

5 Anstruther v. Chalmer, 2 Sim. 1; Lincoln v. Perry, 149 Mass. 368, 374. 1 Ware v. Wisner, 50 Fed. 310; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 53, 55; Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139. An exception will probably arise if the revocation is dependent upon the interpretation of ambiguous words in a subsequent will. As shown in the preceding section, the interpretation of such words will depend upon the law of the testator's domicil at the execution of the subsequent will.

2 50 Fed. 310.

3 Price v. Dewhurst, 8 Sim. 437; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 55; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341, 347; Senac's Will, 2 Rob. (La.) 258. See Bloomer v. Bloomer, 2 Bradf. (N. Y.) 339.

testator to a country by whose law a prior act of revocation, effectual in a former domicil, would cease to have that effect, will of itself suffice to revivify the will, which once legally killed is dead forever, unless resurrected by the act of the testator himself, as by a re-execution of the will. It is always therefore the testator's domicil at the time of the occurrence of the act relied upon as a revocation, which will determine its effect.

Thus if the alleged revocation be by tearing or burning the will, animo revocandi, the law of the testator's domicil at the time of the acts in question will determine whether they operate as a revocation. If the prior will be alleged to be revoked by a subsequent will, the effect of the latter in revoking the former would seem to depend in the first instance upon whether the subsequent will operates immediately to revoke the first will completely and finally, or only so operates after the testator's death, when it has itself ceased to be revocable. If it operates immediately, the law of the testator's domicil at the time of the execution of the subsequent will would govern; if only after the testator's death, the law of his last domicil will control. And whether the revoking will is to operate an immediate revocation of the former, or is to operate only post mortem, must be determined by the law of the testator's domicil at the time of the execution of the last will; for if the first is thereby revoked immediately, no subsequent change of domicil will revive it.*

5

In Price v. Dewhurst, A and his wife, domiciled in the Danish island of St. Croix, made a joint will (which under the Danish law could only be revoked jointly), by which they bequeathed certain legacies. They afterwards became domiciled in England, and the husband made a new will bequeathing his share of their joint property to his wife. After his death, the wife also made a new will bequeathing her property to other legatees than those named in the joint will. The question was whether the testators could, under the law of a subsequent domicil (England), make separate wills which would operate to re

• All these results flow from the one principle that a revocation is not a continuing act, but takes effect once and for all. See Cottrell v. Cottrell, L. R. 2 P. & M. 397.

58 Sim. 437.