voke the joint will executed when they were domiciled in St. Croix, and which, under Danish law, could only be revoked by their joint act. It was held that the law of their domicil at the date of the execution of the revoking wills and at the time of their deaths should determine the effect of those wills in revoking the joint will.

The same principle applies to revocations implied from the subsequent marriage of the testator, the subsequent birth of pretermitted children, etc. It is the testator's domicil at the time of the circumstance relied upon to show a revocation that will furnish the "proper law" to determine its effect.

Thus, in the case of an alleged revocation by reason of a subsequent marriage, the law of the testator's domicil at the time of the marriage will determine whether it has revoked the will. The fact that the testator afterwards changed his domicil to a State whose law would have given a different effect to the act of marriage is immaterial, and so is the fact that the law of the place of marriage is different."

So, in the case of a pretermitted child, if it is the birth of the child which by the law of the testator's domicil at that time constitutes a revocation of his will, it stands revoked, and is not revived by removal to a new domicil whose law is different. If, by the law of the testator's domicil at the time of the birth of the pretermitted child, it is not the birth of the child which revokes the will, but the death of the testator, leaving the child unprovided for (or if the child be born after the testator's death), it is the law of the testator's last domicil that is to govern the question."

§ 150. Wills in the Exercise of a Power of Appointment. It is a peculiar characteristic of a transfer of property made in the exercise of a power of appointment that the law overlooks the intermediate instrument through which the appointment is made, and regards the appointee as in possession by virtue of a direct transfer from the original owner (by the deed or will he

• See Goods of Reid, L. R. 1 P. & D. 74.

7 See Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341, 347.

has used to create the power), and not under the instrument through which the appointment is made.

The original owner of the property is styled the donor of the power; the person upon whom is bestowed the power to appoint is the donee of the power; and the person appointed by the donee to take the property is the appointee. Thus, if A (the donor of the power) by will leaves his property to B (the donee of the power) for life, and after B's death, to whomsoever B by last will shall appoint, and B wills it to C (the appointee under the power), C is considered as holding the property under A's will, and not under B's. B is merely the channel through which A's will operates. The property given to C belongs to A, not to B.1

Since it is the will of the donor of the power which really operates to transfer the estate to the appointee, the law governing the donor's will, not that controlling the donee's, should determine most of the questions that arise.

If the property disposed of be real estate, difficulties are not likely to arise, though the donor of the power and the donee reside in different States; for the lex situs of the land will usually govern under any circumstances. But if it be personalty, the lex domicilii, not the lex situs, is to be looked to. The difficulty in such case is to determine whether the proper law applicable to the particular question is the lex domicilii of the donor of the power or of the donee, if they reside in different States.

With respect to the capacity of the donee to make a will in the exercise of the power, the better opinion seems to be that this is not really a testamentary capacity at all, as nothing passes under the donee's will, but is rather to be viewed as the execution of an authority conferred upon an agent. Whether such an authority can legally be conferred upon the donee de

1 See Sewall v. Wilmer, 132 Mass. 131; Bingham's Appeal, 64 Penn. St. 345; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530.

2 Polson v. Stewart, 167 Mass. 211, 218, 45 N. E. 737. See Sewall v. Wilmer, 132 Mass. 131, 138. Except perhaps with regard to the interpretation of the donee's will, which is not dependent upon the lex situs, and is probably governed by the same principles as if the property were personalty. Ante,

pends (it is said) upon the law governing the validity of the donor's will.'

So since the real disposition to be looked to is that of the donor of the power, the substantial or essential validity of the provisions of the donee's will in the exercise of the power must be regulated by the law and policy of the donor's domicil, not the donee's.1

But with regard to the proper law governing the formal validity of the donee's will in the exercise of the power, it would seem upon principle that the donee's will in that respect should be controlled by the lex domicilii of the donee,· at least if the donor's will only provides for an appointment "by the donee's will," without more. In such event, the instrument of appointment must be the donee's "will." It is difficult to see how this provision is complied with, if the instrument is not a will; and it would seem that the fact that it would have been a will, if executed by one resident in the donor's domicil, does not make it a "will" of the donee resident in another State, where it is no will.5

With regard, lastly, to the proper law controlling the interpretation of the language used in the donee's will, the question is simply as to the meaning and intention of the donee at least in those cases where he has a discretion as to the estate to be disposed of or as to the appointees? Who are intended by the donee to be the appointees? What property or interest does he intend them to take? To what extent has the donee in

tended to execute the power?

Upon principle it would seem that these questions should be answered as similar ones are answered respecting the meaning

Dicey, Confil. L. 701, 702. See Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530. It might be otherwise in cases where, in default of appointment, the property is to remain in the family of the donee.

4 See Sewall v. Wilmer, 132 Mass. 131, 137.

5 But see Story, Confl. L. § 473 a; Whart. Confl. L. § 590. In Sewall v. Wilmer, 132 Mass. 131, 137, it is said that the law of the donor's domicil should control the formal validity of the donee's will. But in that case the power conferred was to transfer the property as the donee "should, by deed in writ ing, or by last will, or by any writing purporting to be her last will, appoint. The court based its decision on the last clause.

and intention of an ordinary testator, namely, by an appeal to the law and usage of the donee's domicil, with the language of which he is supposed to be more intimately acquainted. And it is probably true that the law of the donee's domicil will furnish the answers to such questions as the first two above mentioned.

Nor is it easy to see why the same rule should not apply to the third question also. It is admitted that the donee, by choice or by accident, may fail to execute the power. Whether he executes it or not is a matter of choice, or if there is a doubt as to his having done so, is a matter of his intention, not the donor's. Yet the few cases that have passed upon the question have held that in the event of an ambiguity or a doubt as to whether the donee has intended by his will to include the property over which he has the power of appointment, that doubt is to be resolved by an appeal to the law of the donor's domicil, not to that of the donee's."

Thus in Sewall v. Wilmer, the donor of the power resided in Massachusetts, while the donee, his daughter, was domiciled with her husband in Maryland. The donee died, and by her will left all her property to her husband, without expressly mentioning the property over which she had a power of appointment. Under the law of Massachusetts, it passed without express mention; under the law of Maryland, it only passed where the intent to make an appointment was manifest. The court held that the law of Massachusetts (the donor's domicil) should govern, upon the ground that the property was the donor's, not the donee's, and that the lex domicilii of the former should determine whether or not the power had been executed, and the property disposed of."

6 Ante, §§ 145 et seq.

7 Sewall v. Wilmer, 132 Mass. 131; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530; Bingham's Appeal, 64 Penn. St. 345.

8 132 Mass. 131.

9 In this case and the others holding the same way, it is to be noticed that the property was actually situated in the donor's domicil, which was also the forum.

PART V.

SITUS OF CONTRACTS.

§ 151. Contractual Liabilities Transitory determine Existence of Contract.

Before entering into a de

tailed investigation of the "proper law" governing the various questions that may arise with respect to foreign contracts, some preliminary observations must be made.

Contracts are either executed or executory. An executed contract is performed as soon as entered into, and being a voluntary act of the contracting party, the "proper law" is always the law of the actual situs of the party at the time of the transaction. We have touched upon the proper law governing such contracts in our discussion of the contract of marriage,1 and have dealt with them much more fully in the discussion of voluntary transfers of property. The explanations there given will suffice; and in the future discussion we will confine our attention to contracts executory. These differ from contracts executed in that they are to be performed at another time and often at another place than the time and place when and where they are entered into. This characteristic of executory contracts raises difficulties and doubts with regard to the "proper law" to regulate the various phases of the contract, that do not arise at all in the case of executed contracts.

It has never been doubted that liabilities based upon a valid contract executory are, generally speaking, transitory in their nature, and enforceable in the courts of any country obtaining jurisdiction of the promisor's person. But often the effect given 1 Ante, §§ 77, 78.

2 As to transfers of real property, ante, §§ 11, 12. As to transfers of personalty, ante, §§ 122, 128 et seq.

• See W. U. Tel. Co. v. Phillips, 2 Tex. Civ. App. 608, 21 S. W. 638.