In re the Judicial Settlement of the Account of Proceedings of Coudert

Majority

p. 109

Matter of the Judicial Settlement of the Account of Proceedings of Frederic R. Coudert, as Executor of the Last Will and Testament of Alcime Baillard, Deceased.

(Surrogate’s Court, New York County,

October, 1915.).

Headnote

Wills — of movables — governed by law of testator’s last domicile-rights of legatee.

A will of movables is generally, in-the absence of other intentions, to be governed by the law of the testator’s last domicile.

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Where under a French will of. a domiciled Frenchman there is .a universal succession to movables, the rights of a legatee thereto depend on the law of France, although the will ma;/ have been probated in the state of New York in the first instance.

Proceeding upon, the judicial settlement of the accounts of an executor.

Coudert Bros,, for executor.

The will of Alcime Baillard, a native of France, dying in France, was duly proved in this jurisdiction. The will in question was executed in Paris, but in conformity with the law of New York. The property of M. Baillard was, at his death, in New York, where for some portion of his life testator had sojourned. The will is in the French tongue and technically it corresponds with the requirements of the law of France regulating last wills and testaments. It appoints the daughter of testator, Mme. Caras sale, the wife of the Consul for Uruguay at Nice, “ universal legatee,” subject, however, to certain life legacies or usufructs for the lives of legatees: “ Je legue á ma filie Georgine Baillard, épouse de Monsieur Americo Carassale, Consul de 1’Uruguay á Nice, avec lequel elle demeure dans la dite ville, tous les biens meuble •et-immeuble, droits et actions- mobiliéres •; et, imrnobiliéres qui m’appartiendrqnt lors de mpn dpces et composeront ma ■succession, en quoi qufils puissent consister et en quelsques endroits qu’ils soient- dus et sitúes, sans aucune exception, ni reserve, je 1’institute en consequence ma légataire universelle'a charge de supporter et d’executor les legs d’usufruit et rente viagéres constituées au cours de present testament.”

Mr. Coudert, the sole executor, having now adminis

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tered the estate in New York and having instituted this proceeding, presents to us a decree providing for the remittance of the balance, now held by executor for distribution, to Madame Cassarale, the universal legatee of M. Baillard, without bonds; the same to be held by her in conformity with the law of the testator’s last domicile, viz, France. If the will is to be construed according to the law of this state, Madame Cassarale might be held to be a trustee for the life beneficiaries mentioned in the will. This construction is not desired and not pressed.

What, then, is the proper construction of this will? It must be remembered that it is a will of a Frenchman last domiciled in France. The administration has taken place here thus far simply because the property of the deceased happened at his death to be in this jurisdiction. Such property is altogether movable or personal property. Ordinarily “ mobilia sequunter personam.” The fact that the will.in question was proved in this jurisdiction does not necessarily make this the principal place of administration. The testator was domiciled in France when he died and his movable property necessarily occupies the situs of the testator’s last domicile. France, therefore, should be regarded in this case as the principal and not the ancillary place of administration.

It should not be forgotten that there is under this will a universal succession. Now, if we have regard to the law of France a “ univer sitas juris ” or a universal succession is always governed by the lex loci domicilii (These, par le Docteur en droit, Marion, p. 13, et seq.). But independently of the principle just stated, a will of movables is generally, in the absence of other intention, to be governed by the laws of a testator’s last domicile. Westlake, Private International Law, (5th ed.) 170; Bentwich Domicile & Succession,

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101; Dicey Conflict of Laws (2d ed.) 679; Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 id. 192 . Thus it is that where children are entitled to legitim by the law of testator’s last domicile any provision in the will in derogation of legitim must give way to the law of testator’s last domicile. Thornton v. Curling, 8 Sim. 310; Hog v. Lastaley, 6 Bro. P. C. 377; Kilpatrick v. Kilpatrick, Id. 58; Munro v. Douglas, 5 Mad. 394. To give effect to the principle indicated, administration in a foreign jurisdiction will sometimes be stayed in order to await and abide by the construction -of the courts of the last domicile.

But we are not without domestic authority on these and similar points. That the decree in this case should provide that the surplus be remitted to the universal legatee to be disposed of by her in accordance with the will and the law of the testator’s last domicile I have no doubt. Despard v. Churchill, 53 N. Y. 192 ; Hardenberg v. Manning, 4 Dem. 437 . While it may be that there is a substitution under French law (corresponding to the trusts known to our law), of which substitution the usufructuary legatees are the beneficiaries, that is for the French law to determine. I am also of the opinion that the universal legatee should not be required to give security.

Decreed accordingly.

Cases cited

Parsons v. Lyman 20 N. Y. 103 N.Y. p. 112
Despard v. Churchill 53 N. Y. 192 N.Y. 1873-09-23 p. 112