Ross v. Ross

In 1865 J. G. R., a merchant, then and at the time of his death domiciled in the city of Quebec, while temporarily in the city of New York made the following will in accordance with the law relating to holograph wills in Lower Canada:

I hereby will and bequeath all my property, assets or means of any kind, to my brother Frank, who will use one-half of them for Public Protestant Charities in Quebec and Carluke, say the Protestant Hospital Home, French Canadian Mission, and amongst poor relatives as he may judge best, the other half to himself and for his own use, excepting X2,000, which he will send to Mary Frame, Overton Farm "

A. R. and others, heirs at law of the testator, brought action to have the will declared invalid.

, that the will was valid.

, that the rule locus regit actum was not in the Province of Quebec, before the code, nor since under the code itself (art. 7), imperative, but permissive only. :--Sir Henry Strong C.J., and Fournier, Taschereau, Sedgewick and King JJ.

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, that the will was valid even if the rule locus regit actum did apply, because it sufficiently appeared from the evidence that by the law of the State of New York the will would be considered good as to movables wherever situated, having been executed according to the law of the testator's domicile, and good as to immovables in the Province of Quebec, having been executed according to the law of the situation of those immovables.

In this action interventions were filed by Morrin College, an institution where youth are instructed in the higher branches of learning, and especially young men intended for the ministry of the Presbyterian Church in Canada, who are entitled to receive a free general and theological education, and are assisted by scholarships and bursaries to complete their education; by the Finlay Asylum, a corporate institution for the relief .of the aged and infirm, belonging to the communion of the Church of England ; and by W. R. R., a first cousin of the testator claiming as a poor relative. Held, that Morrin College did not come within the description of a charitable institution according to the ordinary meaning of the words, and had therefore no locus standi to intervene ; Sedgewick J. dissenting; but that Finlay Asylum came within the terms of the will as one of the charities which F. R. might select as a beneficiary, and this gave it a right to intervene to support the will.

Held further, that in the gift to "poor relatives" the word poor was too vague and uncertain to have any meaning attached to it, and must therefore be rejected, and the word "relatives" should be construed as excluding all except those whom the law, in the case of an intestacy, recognized as the proper class among whom to divide the property of a deceased person, and W. R. R. not coming within that class his intervention should be dismissed. Held, per Fournier and Taschereau JJ., that the bequests to "poor relatives " was absolutely null for uncertainty.

APPEAL and CROSS-APPEAL from a decision of the Court of Queen's Bench for Lower Canada (appeal side) (1) affirming the judgment of the Superior Court by which the action to set aside the will of the Hon. and affirmed as to the remainder.

(1) Q.R. Q.B. 413.

The will, which appears at length in the head note, was wholly written and signed by the testator while temporarily in New York in 1865, and was . by him mailed from New York to Quebec, addressed to his brother Frank; it was subsequently restored to the testator, who on various occasions subsequently at Quebec delivered it to Mr. F. Ross, the last occasion being in 1883, five years before his death.

The estate in the province of Quebec alone is sworn at about four millions. The testator further had large property, both real and personal, in other provinces of Canada and in the United States.

During the pendency of the suit William Russell Ross, a first cousin and former partner of the testator, then in bad health and advanced in life, in poor circumstances and with a large family, applied for assistance, pleading the terms of the will, and upon being refused he presented a petition in intervention which was allowed, cause to the contrary being shown by plaintiffs and defendants.

Subsequently further interventions were filed by Morrin College and Finlay Asylum, claiming to be public protestant charities and as such to be interested in supporting the validity of the will.

Plaintiffs and defendants also opposed these interventions, but the points taken were decided against them by the Superior Court.

The plaintiffs contended that the will was invalid because, being in holograph form, it was made in New York where wills made in that form are not in general recognized; and, further, that the trust devise is void for uncertainty, and that thus the trust half should be apportioned amongst the heirs-at-law. Mr. Frank Ross answered that the will was in all respects valid, that under it he took the estate " subject to the trusts therein stated," and that, by the law of New York, wills made by persons domiciled elsewhere are valid in that State, so far as personalty therein is concerned, if made in R.

the form required by the law of the testator's domicile. To the interventions, the plaintiffs and the defendant, Frank Ross, pleaded similar defences-the defendant in addition demurring.

For pleas to the interventions plaintiffs set up 1. The will was bad in form as having been made in New York.

Under no circumstances is Morrin College-an institution under Presbyterian control-entitled to anything.

The defendant Frank Ross contested the interventions on the grounds following:

That the whole estate and succession was absolutely his own, and the bequests in favour of public protestant charities and of poor relations were void for vagueness and uncertainty, and conferred no right ' whatever in favour of any charity or relation.

. 2. As Episcopalian and Presbyterian institutions, the Finlay Asylum and Morrin College have no claim under the will.

The present appeal is from part of the judgment the Court of Queen's Bench for Quebec, confirming the judgment of the Superior Court, whereby the legality of the bequest in the will directing the appellant to use one-half of his estate for public protestant charities in Quebec and Carluke and amongst poor relatives as he should judge best, was sustained.

The evidence establishes that a holograph will is invalid according to the laws of New York unless executed by the testator in presence of two witnesses and attested by them; that nevertheless, a holograph will, executed in New York by a person domiciled in Quebec, would be valid in New York to pass personal property, but not real estate, provided the will were valid in Quebec.

Sec. 2611 N.Y. Code of Procedure. A testamentary bequest, to be valid, must be the expression of the will of the testator; he cannot make a legacy depend upon the will of a third person, nor can he leave the choice of the legatee to a third person.

Pothier (1) ; C.C. art. 756; Aubry & Rau (2); Toullier (3) ; 3 Zachariae (Mass6 & Verge) (4) ; 18 Demolombe ; Re Jean Merendol (6); Merlin (7); de Sauvan v. de Sarries ; loeg/in v. Willig D6tive & Ditive ; Laboujouderie v. Raffer Legrand-Masse v. H67ritiers L6pine ; Beurier v. Emorine ; Britelle v. Diyvrande Simon v. Simon

Saying that if no discretionary power had been given the law would imply equal distribution and the court would distribute equally, would be to assume the validity of a bequest to charities unnamed and undefined, and to relatives undescribed.

In Liddard v. Liddard the question arose as to the distribution of property among the children of the deceased. In such a case our law provides for equal distribution but as between relatives, some distant and some close, the law gives to the nearer collateral relations to the entire exclusion of the further.

The Superior Court has not the powers of the courts in France, nor of the Parlement de Paris, and cannot overrule the express provisions of the statute 34 George ch. 6, which while conferring upon the Courts King's Bench, to which the Superior Court succeeded, the jurisdiction of the Prev6t6 de Paris, provided that nothing in the act should grant the court legislative powers possessed by any court prior to the conquest. Stuart v. Bowman (1) ; McGibbon v. Abbott (2); Tiden v. Green ; Levy v. Levy

What shall be considered charities in England is settled by the statute 43 Elizabeth c. 4.

The doctrine of the English law, which it is suggested the court should follow in this case, for the purpose of preventing the legacy from lapsing in the event of the appellant not executing it, has been harshly criticised and does not recommend itself either by its wisdom or its justice. Cary v. Abbot See remarks by Sir William Grant in Morice v. The Bishop of Durham

The decisions in Contant v. Mercier (7) have no material bearing upon this discussion, as the question of jurisdiction and power was never raised.

The intervening parties should be not only possible but certain beneficiaries, to justify their intervention. The old rule " l'intiret est la mesure des actions," as contained in the Code of Procedure art. 13, applies. The decision in the Privy Council in Mc Gibbon v. Abbott appears to support the view that where a person's rights are dependent upon the exercise of a legal discretion vested in another, no right to defend the instrument creating the discretion accrues until after the exercise of the discretion has created a right. Isaac v. Defriez ; Attorney-General v. Price Anon.

As to the Morrin College, it is an educational institution and in no sense a charity.

The Finlay Asylum, though a charitable institution in the proper acceptation of the word, is not a public charity.

None of the articles of the Code which refer to this subject purport to introduce new law.

They express the law as it stood immediately before the passing the Code, and for a long time anterior thereto.

Article 7 of our Civil Code adopts in its entirety the rule locus regit actum. This rule was always considered as imperative, and not merely facultative. Re Gilbert Andras ; de Ponimereu ; Merlin ; in re de Boisel (5); in re d'Argelos

All decided in the Picqassary case was that holograph wills were authorized by the custom of Angou- 14me.

See also, Bourjon (8); Ricard (9).

Article 999 C. N. really emphasizes the rule by creating a special exception in favour of holograph wills made abroad by Frenchmen. Demolombe (10) ; Marcad6 sur art. 999.

Laurent ; Browning v. deNayve Mendis v. Brandon ; Aubry & Rau (14).

In England and Scotland, up to 24 & 25 Vic. ch. 114, the rule was that validity of the will depended on the law of the testator's last domicile.

By this act R'* British subjects, only in so far as regards personal estate, may adopt the forms recognized by the lex actus, or by the law of the domicile of origin.

Dicey On Domicile (1).

In the United States the rule recognized is that the testator's domicile.

Story Confl. of Laws (2). The rule of the law of New York requires conformity to the law of Quebec; and as the law of Quebec requires that the formalities of foreign law should be adopted and followed the provisions of our law have not been complied with, and the will is invalid. The Marquis de Bonneval died in 1836, in London, where he had resided for a considerable period, and left a will executed in England in the English form dated 19th September, 1814. The will was contested and the question debated whether the Marquis de Bonneval was domiciled in England or in France. The court held that the testator had never lost his French domicile of origin, notwithstanding his prolonged residence in England, that the validity of the will should be decided by the French law, and ordered a suspension of proceedings until a decision should be obtained from the French courts.

De Bonneval v. De Bonneval

Both the Court of Appeal and the Cour de Cassation held that as the testator had followed the usual form required by the place of execution (England), the will must be held valid.

If the will in question is considered as a will in the English form it could not operate in regard to realty even in Quebec, inasmuch as it does not comply with the requirements of the Statute of Frauds. Meiklejohn v. Alty.-Gen.

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Sec. 10 of the Quebec Act merely introduced a new form of will, and must be interpreted as referring to wills made within the province. Endlich on Statutes, ss. 387; Migneault v. Malo

The French rule locus regit actum is part of our law, is an imperative rule, and was constantly and inflexibly applied by the highest courts in old France, and is still applied by the Cour de Cassation in France, and cannot be characterized as unreasonable or inconvenient as compared with the English rule in force when the Quebec Act was passed, and down to the Imperial Act 24 & 25 Vic. 114.

The power of election given Frank Ross by the will is so absolute that he might, following McGibbon v. Abbott entirely exclude any one of the intervenants. The rule known as the cy pris doctrine, when the beneficiary can not be ascertained, has no place in our law, nor do the modern French decisions apply To follow the case of Liddard v. Liddard would be to violate the testator's express intention. The legacy to charities and poor relations should be declared to be void for vagueness and uncertainty, and because, in the absence of the exercise by Frank Ross of the discretionary powers vested in him by the will, the courts of this province could not enforce the execution of this bequest.

The present appellants do not agree with Frank Ross as to the disposition which should be made the fund representing this trust in the event of the bequest being set aside.

If the charitable bequest is void heirs-at-law are entitled to half the estate. Presumptive heirs of a man still living would not be permitted to take any proceedings, even conservatory, with respect to an estate in which they may never have any real interest, and it is difficult to see why the present intervenants should be in any better position than presumptive heirs.

With regard to William Russell Ross, such discretion as the trustee may have has been exercised so as exclude him from all participation in the estate. As to Morrin College, under its charter, 24 Vic. ch. 109, which provides in section 7 that all the property belonging to the corporation shall be exclusively applied to the advancement of education in the college, and to no object, institution or establishment whatever not in connection with nor independent of the same, it cannot be regarded as constituting a charitable institution.

As regards the Finlay Asylum, incorporated by Vic. c. 219, such a sectarian institution cannot pretend to be a public charitable institution of Quebec, and has no locus standi in this case, and no right or interest to support the will in question.

The question for solution is: Is a holograph will made in New York by a person temporarily there, but domiciled at the time in the province of Quebec, and owning both moveable and immoveable property in said province, which is disposed of by the will, valid, such form of will not being locally recognized by the laws of New York, although the rule prevails there as elsewhere generally in the United States, that a will disposing of moveable property is valid if made in the form prescribed by the laws of the testator's domicile-one disposing of immoveables being only valid if made in accordance with the law of the place where the real property is situated-lex rei sitae ?

Against the validity of the will it is urged that the matter must be governed by our own law, and that by it the maxim, locus regit actum, requires a will made in New York to be made in a form valid by the laws of that state on pain of nullity. It is contended that article 7 of our Code, based on the ancient law, follows this rule, and declares, at least by implication, that acts and deeds are invalid if not made in the form required by the lex loci actus ; that our Code must be interpreted on this point in conformity with the old French law which prevailed in this province, and that by that law such a will was invalid.

Such a conclusion seems to be contrary to the whole avowed policy of our Code and of the Imperial statute 14 George 8, ch. 83, on the subject of wills, by which freedom of willing and facilities for doing so were extremely favoured and carried far beyond anything known to the old law, the policy of which in this respect was the very reverse of our own, seeking as it did uniformly to restrict the powers of and facilities for disposal by testament.

See Merlin's opinion re de Mercy

He is far from placing the maxim locus regit aclum on a firm foiindation as a rule of settled law.

He cites the law and a large number of writers, including Vinnius, Burgundius, Rodenburg, against the rule.

Again in the same article Merlin reports an appeal judgment in the case of the will of Despuget, of the 20th August, 1806, which clearly shows how far the doctrine was from settled law. Troplong speaking of article 999 of the Code Napoleon, does not say that it is an innovation or new law, but asserts that it gives the preference to the opinion of Ricard and his school, the opposite opinion, that is, from that of Furgole. Guyot and Merlin, which opinion was supported not only by Ricard, but by Boullenois, Cujas and many of the greatest names in French jurisprudence as well as by arrdts of parliament. Troplong refers to an arrdt to that effect as not an isolated one; and how divided views were on the question is seen in the statement of the various opinions by Pothier, and by all the authors who discuss it (Laurent, Droit Int., vol. nos. 406, 422, 424), or by referring to even the last arrit reported by Merlin, to any arrdt that deals with the subject, an example of which is seen in the arrdt of Cambolas, liv. 4, ch. 41, where the question is discussed both as regards wills and contracts in an arret of the 7th of August, 1622, there reported. The old writers and Ricard, cited under C. C. art. 854, are in favour of the validity of such wills made abroad, in conformity with the law of the testator's domicile. * In this they are supported by Boul- Rs lenois and by Cujas.

At no. 191 of part I of Ricard, he cites an arrdt in support of the validity of a holograph will by letter missive, and gives as a precedent the case of the codicil made by Lentulus in a letter written from Africa, which was approved by Augustus, and became law as stated in the Institutes B. tit. 25. Wharton, Conflict of Laws, 2nd ed. p. 573, and sec. 588; Story, Conflict of Laws, ss. 465, 468, et seq.; 4 Burge, Colonial and Foreign Laws, p. 582 et seq., and p. 590 ; Savigny, sec. 381, p. 324. The observance of the form in use at the place of the act is merely facultatiie, and allows an election.

Fcelix, p. 107. Bar Westlake, Private International Law, 123. Folix, vol. 1, p. 181.

C.C. art. and authorities in pede, art. 7, C. N. 999; Abbott v. Fraser (1); C. C. arts. 850, 854; Troplong, Don. Test. vol. p. 392, no. 1465; 1 Laurent, Droit Civil, 158, 162; Laurent, Droit. Int, 653; Aubry & Rau, vol. 7, subsec. 699; 21 Demolombe 142. The Imperial statute 14 Geo. 3, introducing the absolute freedom of devise by will, and the right willing in the English form " with all its incidents," laid down by the Privy Council in Migneaut v. Malo (2), necessarily introduced the right of making a will in the form of the lez domicilli. Until the Code the power to make wills in this form existed, and British subjects could make them anywhere. .Veiklejohn v. The Attorney General Personalty follows the law of the domicile, wills are valid if made in accordance with the law the domicile, and only valid (till 24 & Vic.), if made according to such law. This principle is a rule of private international law, and part of the jus genlium. Croicer v. The Marquis of Hertford ; Bremer v. Freeman (1); Whicker v. Hume (2); Story, Conflict of Laws (3); Wheaton

R Under the old law of France previous to the cession R. the weight of authority was in favour of the rule locus regit actum being facultative and not imperative, in relation to wills; and during the last 150 years the rule that a testator may make his will, in relation to personalty, according to the lex domicilii, has by common assent become a rule of private international law. The will is valid under 14 Geo. ch. 83, in force when it was made, and preserved quoad it, by C. art. 2613.

The lex loci actus was not violated but observed, the law of New York empowering strangers to make wills according to the lex domicilli. The devise in trust and the discretion of the trustee come expressly under art. 869 of the Civil Code which the codifiers (fourth report art. 124 bis, p. 181) state to be purely old law. The nature and extent of this discretion is well stated by Troplong, Pothier and all the authors

Quoniam quasi viro bono ei potius commissum est, non in meram voluntatem heredis

The discretion in this case is much less than in those cited.

The expression, as he may judge best, would not admit of discussion in view of the opinion expressed by all the authors-that si putaveris is binding. Frank Ross is bound to distribute the trust estate whether he will or not, to the best of the judgment of a bonus vir, due regard being had, as Troplong says, to the fortune to be distributed, the position and needs of the recipients and all other circumstances.

To judge of the distribution evidence can be given, even parol, before the court of all matters that will enable it to judge of the bona fides of the distribution, and how far it conforms to the judgment or arbitriumn boni vivi ; Dellevaux v. .Jambon

The trustee cannot defeat the trust by refusing to distribute the fund. The court will do it for him even un iter English law where the courts allow much more absolute discretion to trustees than does our own, which in this respect is based on the equitable doctrine of the Roman law approved and adopted by Pothier and our best jurists. But even by English law the trustee must distribute the funds. Thus Lewin onTrusts ch. 28, p. 836, is in point.

Gower v. Mllainwaring (3). The fact of a trustee having refused or failed to make a distribution is a ground on which the court will interfere and control him. Lewin, 777.

The discretion is not as to who are to be the objects of the charity or bequest, but as to the proportion to each, and that must be bona fide and not capriciously determined. Lewin, 839.

Abbott v. McGibbon (4) does not apply, as the object arrived at in substitutions is to conserve the property in the family, and that object is secured by giving to one of the family.

In the Ross will the object is to support charities generally of a particular class and poor relations, and to give all to one or to a few is to defeat the intention of the testator. For arrets see Ricard, no. 589, and Beaucourt v. Soc. de Lille There is no vagueness and uncertainty in the sum, for the amount is fixed, nor in the objects, for they are readily ascertainable.

No microscopic search is required to discover the public Protestant corporate charities of this city and of a small Scotch village. See also Noad v. Noad (1) ; Molson's Bank v. Lionais ; Comte v. Lagac6 ; Russell v. Lefranpois (4); Harding v. Glyn (5); Taylor, Ev. (6); Moggridge v. Thackwell ; Power v. Cassidy

It is sufficient for the intervenants to establish a primd facie interest; the question of their absolute rights is to be decided when other claimants have been notified to appear. The immediate object is to defend the document on which their rights depend, which is impugned by both the plaintiffs and the defendant. The charter of the Finlay Asylum (20 Vic., ch. 219) establishes that it is a public Protestant charity at The case of Morrin College is still stronger. The testator was for years a governor; he repeatedly expressed his intention of providing for it substantially; a short while before his death he stated that the college had been opened prematurely and on insufficient means, that it was doing a good work and would succeed, and he was in the habit of contributing to its bursary fund for the assistance of students with limited means. What Morrin College is, and was intended to be, its charter (24 Vic. ch. 109), the trust deed and deed of gift produced in the case, the statement of the first principal, and the evidence abundantly show. The deeds explain Dr. Morrin's intentions:- " Whereas, the said Joseph Morrin is desirous of leaving some permanent memorial of his regard for the city of Quebec,

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* and at the same time of marking his attachment to the Church in which he was reared, and to which he has always belonged; " And, whereas, he considers none can be more suitable for both purposes than a provision for increasing and rendering more perfect the means of obtaining for s the youth generally, and especially those who may R.

devote themselves to the ministry of the said Church, the means of obtaining a liberal and enlightened education; he does, &c."

The inaugural address declares the principles which were intended to guide the policy of the college, and which have ever since been pursued. For over thirty years, with very limited resources, it has, apart from theological instruction which was necessarily presbyterian, afforded a liberal and enlightened education to all desirous of obtaining it, without test or subscription of any kind, and by means of professors belonging, not only to the various Protestant churches, but to the Roman Catholic church.

Nominal fees exacted from others have never been required from poor students, who have also, apart from their religious belief, been aided by money bursaries and free accommodation in the college rooms.

The generous intention of the founder was to supply a want which, the University being exclusively Catholic, and its instructions given almost entirely in the French language, could not so well render to the Protestant and English speaking youth.

Both French and English law regard colleges as charities.

If the statute of Elizabeth on charitable trusts is in force in this province the question does not admit of a doubt; and in a sense it is submitted that that statute is in force. From the earliest period the King,' as pater patria3, was by his prerogative the guardian and protector of charities. The act of Elizibeth declared and defined the charitable objects over which the prerogative extended, and in this sense it forms part of our law, as necessarily being introduced at the cession of the country to the British Crown. 0.0., 869. Theobald, pp. Pomeroy v. Willway (1).Ross

The King's Edict of 1743, cited in Fraser v. Abbott . (2), prohibited under certain circumstances the foundation of charitable establishments by will.

Our own statute book, in which for the last hundred years educational and benevolent institutions are classed together, fully bears out this view. Desrividres v. Richardson

No order was made in the Superior Court as to costs. As to whether the estate generally, as held by Chief Justice Meredith, in Russell v. Lefrancois and supported by this court the losing parties individually, should bear the costs, it is for the court to say. It is clearly a hardship for the successful parties to be compelled to bear their own. It may be said that no appeal has been taken by the intervenants in this case. That is true; but all costs are in the legal discretion of the court seized of the cause; and in Peters v. The Quebec Harbour Commissioners where no appeal was taken on this subject, the court dealt in its own way with costs. The respondents submit that costs should be awarded in all courts.

The respondents ask that the judgment appealed against be affirmed, and costs awarded them in all courts;

Because, under the will, a valid trust was established, to the extent of one-half of the estate passing under it, in favour of charities and poor relations, and by proving the will and accepting and administering the estate, Mr. Frank Ross accepted the office and V* assumed the duties and responsibilities of a trustee; Because Morrin College and the Finlay Asylum are public Protestant charities within the meaning of the will; and William Russell Ross is a poor relative within such meaning, and as such they had an interest to intervene for the purpose of defending and establishing the validity of the document upon which their rights and those of their co-beneficiaries depend; 4. Because Frank Ross having asserted that the whole estate devised was his own absolutely, and having disregarded the obligations of a trustee, the respondents were bound to intervene to protect their interests; particularly as the plaintiff and defendant plead that the trust devise of half the estate is void, and only differ as to its distribution;

William Russell Ross is admitted to be a poor relation.

His interest, however, is barred, in the opinion of both plaintiff and defendant, from the double fact his having lost money when in partnership with the testator, and having owed money to the estate when he died. And so Frank Ross, while denying that he is called upon to exercise any discretion, uses what he terms his discretion, and excludes his cousin. Rights, conferred by the testator, cannot be thus summarily dealt with without a mockery of justice. That James Gibb Ross intended that his poor relations, others than his heirs-at-law, should be benefited is proved by this. In 1865 he had but two heirs-at-law apart from Frank, for whom the will provided, and,they both were then as wealthy as, if not more wealthy than, J. G. Ross himself.

The respondent, William Russell Ross, submits that . the judgment of the court appealed from is in all respects right, in so far as it affects him, save as to costs.

He relies on the opinions of Mr. Justice Andrews, and of the Chief Justice of the Court of Queen's Bench, and on the reasons urged by the intervening parties, Morrin College and Finlay Asylum, and prays that the appeals be dismissed with costs in all courts.

JUSTICE.-First, as regards the principal action which had for its object a declaration that the will was null and void, I am of opinion that the plaintiffs fail and that the action must be dismissed as against the defendants Frank Ross and Dame Mary Frame, with costs.

In other words, I am for affirming the judgment of the Superior Court so far as it relates to the principal action in all respects, except that portion of it which declares the will void as to immovables situate in Ontario, New Brunswick, British Columbia and in the United States.

I think the judgment in this last respect was wrong. There was nojurisdiction in the Quebec courts to deal with such immovables, the question of the validity or invalidity of wills as to immovable property being one exclusively for the forum rei sitae. I will not say that the judgment does any harm by this declaration, but it being irregular and without jurisdiction I think the judgment of the Superior Court, and of the Court of Queen's Bench which affirms it, should be rectified by striking out all about immovables in Ontario, New Brunswick, British Columbia and the United States. This would leave the judgment, so far as concerns the principal action, a judgment dismissing the action.

This dismissal of the action should, for manifest reasons, be with costs to Frank Ross and Dame Mary Frame. R.

My reasons for this conclusion as to the disposition of the appeal from the judgment in the principal action, are as follows: First, I am of opinion that the rule locus regit actum was not before the enactment of the code (nor since under the code itself, art. 7) imperative, but permissive only. The jurisprudence is, it is true, contradictory, but Pothier treats it as an unsettled point, and such great authorities as Boullenois, Ricard, Mass6, Mailher de Chassat, Wharf on, Story, Westlake, and I may say all modern writers whose opinions are entitled to weight, are in favour locus regit actum being regarded as permissive only. To hold it to be imperative would be harsh and unreasonable, entirely at variance with the policy of the law of Lower Canada since the Quebec Act, 1774, which favours the exercise of the testamentary power instead of discouraging it, as was the policy of the old law of France, and most arbitrary in making the sufficient execution of a will depend upon the locality of a testator who, whilst in transiiti, makes his will according to the law and forms of his own domicile. Viewed as permissive only the rule locus regit actum is, on the other hand, most beneficent and reasonable since it enables a testator who wishes to make an authentic will to avail himself of the notaries and public officers of a foreign country through which he may be passing at a time when he would not be able to avail himself of the instrumentality of the notaries and public officers of his domicile. I therefore conclude that the will was good because made in strict accordance with the law relating to holograph wills prevailing in the province of Quebec, in which province the testator was domiciled, both at the time of the will and at the time of his death.

Secondly, I agree with the reasons of the learned Chief Justice in his judgment in the Court of Queen's 'ss Bench, that even if the rule locus regit actum does apply, yet it sufficiently appears from the evidence, that by the law of the State of New York this will Justice. would be considered good as to movables everywhere, and as to immovables in Quebec.

Good as to movables wherever situated because it was executed according to the law of the testator's domicile, and good as to inmovables in the province of Quebec because executed according to the law of the situation of those immovables. Therefore, applying the rule locus regit actun the will was a good will according to the law of the State of New York, at least to the extent to which it can properly come under the jurisdiction of the courts of the province of Quebec; that is to say, excluding the immovables situate in the provinces of Ontario, New Brunswick and British Columbia, and in the United States.

Then as to the Interventions. As the principal action was to annul the will, and as that action is dismissed, we are not called upon to interpret the legacies to any greater extent than is rendered necessary for the purpose of disposing of the interventions, but to this extent we must interpret it in order to ascertain if the parties had any right to intervene..

Then the intervention of William Russell Ross must be dismissed because he has no locus standi to maintain it.

The gift to " poor relations " is, according to the terms of the will, not an absolute gift to the objects the testator intended to benefit, but rightly interpreted is to be read as conferring upon Frank Ross a faculty selection amongst persons coming within that description. Could William Russell Ross have possibly derived any benefit under this disposition ? If it had been in the power of Frank Ross to select him as one of the beneficiaries

I should unhesitatingly have agreed with the learned Chief Justice of the T e Queen's Bench in holding that William Russell Ross had a s/andi to maintain an intervention in favour of the assailed will, though his interest would be contingent and uncertain until Frank Ross should exercise his faculty of selection. But according to the interpretation which I put on the description "poor relations," Frank Ross had no power to select this. William Russell Ross, who was a cousin of the testator only and not one of his heirs-at-law, as a beneficiary under the will. " Poor relations " must be interpreted as meaning " heirs-at-law."

The word " poor " is too vague and uncertain to have any meaning attached to it, and must therefore be rejected.. The word " relations," then standing alone, must be restricted to some particular class, for if it were to be construed generally as meaning all relatives it would be impossible ever to carry out the directions of the will. The line must therefore be drawn somewhere, and can only be drawn so as to exclude all except those whom the law, in the case of an intestacy, recognizes as the proper class among whom to divide the property of a deceased person who dies intestate, namely, his heirs. Then William Russell Ross is not an heir; therefore his intervention must be dismissed with costs to Frank Ross, but without costs as regards the plaintiffs and other heirs who contested the intervention on a ground which failed, namely, that the testament was null. As regards the intervention of " Morrin College," it does not come within the description of a charitable institution according to the ordinary meaning of the words, for in administering the law of the province Quebec we have, of course, nothing to do with technical charities under the English law and the statute of Elizabeth. If, therefore, Frank Ross were to select Morrin College as a charitable institution entitled to benefits under the will his selection would be unauthorized and void, for it does not appear from the record that that seminary of learning is an eleemosynary institution.

Consequently, for the same reason as in the case of William Russell Ross, the intervention of Morrin College must be dismissed with costs to Frank Ross.

As regards the intervention of Finlay Asylum, it stands on a different ground from the other interventions and must be maintained upon the principle the learned Chief Justice states. It would be competent to Frank Ross to select Finlay Asylum as a beneficiary, and this gives that institution a right to intervene for the purpose of supporting the will. Frank Ross fails, therefore, in his contestation in this respect and must pay the costs of the intervention of Finlay Asylum.

As I say above, I only interpret the will so far as is necessary for disposing of the interventions. I disclaim any intention of construing its provisions as to these legacies to poor relatives and charities beyond this. I therefore leave open for future consideration, and for a determination in some further action or proceeding if the parties cannot agree, the questions of how far Frank Ross's powers of selection go; whether he can give to some of the heirs and exclude others, or whether he must give something to all; and I would say the same with reference to the charities. Further, the question of whether Frank Ross himself is entitled to benefit as one of the heirs is not in any way prejudiced by the present judgment.

The judgment in the principal action must, therefore, be varied by omitting all reference to the immovables outside the province of Quebec, and by simply dismissing the action with costs to Frank Ross and Dame Mary Frame. The intervention a ,of

William Russell Ross and that of Morrin College must both be dismissed with costs payable to Frank The intervention of Finlay Asylum must be maintained with costs against Frank Ross.

As regards the costs in the Court of Queen's Bench, Frank Ross and Dame Mary Frame are to have their costs of the appeal from the judgment in the principal action, and Frank Ross is to have his costs of the appeal in respect of the intervention by William. Russell Ross and Morrin College and must pay the costs of the appeal of Finlay Asylum, and in this court the costs must be disposed of in the same way as in the court of Queen's Bench.

. J.-L'action en cette cause, intent6e par Dame Annie Ross contre Frank Ross et autres, a pour but principal de faire dclarer nul le testament olographe de feu James Gibb Ross.

Apres avoir alligu6 le d~chs, A Quebec, le ler octobre 1888, du dit feu James Gibb Ross, elle d6clare que plus d'un an apris, le 28 octobre 1869, un testament olographe, dat6 du 8 f6vrier, 1865, & New-York, a 6t0 trouv6 h sa rsidence, lequel se lit comme suit :

Elle allbgue ensuite que ce testement est nul, parce qu'il a 6t0 fait & New-York dans une forme qui n'est pas reconnue par la loi de cet ]'tat; elle all6gue de plus que le d6fendeur Frank Ross a seul pris possession de la succession en vertu de ce testament, et qu'elle, la demanderesse, ainsi que les autres d6fendeurs sont les seuls h6ritiers 16gitimes du dit feu James G. Ross, ayant s droit A sa succession.

En vertu d'un amendement permis plus tard, la demanderesse a ajout A sa declaration les allgations Fourmer J. suivantes, que mme si testament pouvait Atre consid6r6 valable dans aucune partie, il 6tait certainement ill~gal quant tous les immeubles situ6s en dehors de la province de Quebec, parce que la loi des pays de leur situation, ne reconnaissait pas la validit6 d'un semblable testament quant aux immeubles, et que quant A l'autre moiti6 16gu6e A Frank Ross pour 6tre distribu6e A sa discretion parmi les institutions charitables, et A des parents pauvres, le dit James- G. Ross devait 6tre consid6r6 comme d6c6d6 intestat, attendu que ce legs 6tait nul pour cause d'incertitude. Elle concluait A la nullit6 du testament, que le dit Frank Ross fut condamn6 & lui livrer un neuvibme de la succession, et de plus, A lui rendre compte des fruits et revenus.

Frank Ross et Mary Frame, out seuls plaid6 A l'action, la validit6 du testament du dit James Gibb Ross; que ce testament, quoique fait A New York, a 6t6 apport6 par le testateur A son domicile A Qu6bec, qu'il 'a toujours conserv6 jusqu'A sa mort; ce testament est fait suivant les formalit6s de la province de Quebec, ofi il avait son domicile, et par la loi de New-York, tout testament fait dans cet tat, suivant la loi du domicile du testateur, est 16gal; les d6fendeurs nient aussi que le testament a ex~cut6 dans 1'I'tat de New-York. Les conclusions demandent le renvoi de laction. Tous les faits qu'il 6tait n6cessaire de prouver A 1'appui de cette contestation ont td admis.

A cette action se sont port6es parties intervenantes. lo. W. Russell Ross, se disant un parent pauvre du testateur; 2o. le Morrin College; et 3o. le Finlay Asylum, all6guant qu'ils 6taient des institutions chari- R tables, (public charities) suivant l'intention du testa- .

teur, pour soutenir la validit6 du testament.

Le droit des intervenants a td contest6 par la demanderesse et le d~fendeur, qui out all6gu6 quant an Morrin Coll~ge qu'il n'6tait pas une institution charitable suivant l'intention du testament, et quant an Finlay Asylum que ce n'6tait pas une institution publique charitable, et quant A W. Russell Ross, le dit Frank Ross disait avoir exerc6 A son sujet la discr6tion qui lui 6tait laiss6e par le testament, en l'excluant de la participation du legs pour les motifs qu'il a indiqu6s.

La cause pr~sente pour la d6cision de cette cour, les questions suivantes :

lo. Validit6 du testament de James G. Ross, fait a 2o. Les legs qu'il contient en faveur des institutions charitables et des parents pauvres du testateur, est-il valable ?

3o. S'il est nul, A qui doivent revenir les biens 16gu6s, aux h6ritiers du testateur, on A son 16gataire, Frank 4o. Les intervenants avaient-ils un int6r~t suffisant pour justifier leur intervention dans la cause ? Le testament ayant t6 fait en 1865, c'est A la loi ant6rieure an code civil de la province de Quebec qu'il faut recourir pour en d60ider la validit6. Le testament 6tant dans la forme olographe, sa validit6 doit 6tre d~cid6e d'apris les principes de l'ancien droit frangais qui 6tait alors en force dans la province de Quebec. L'Honorable Sir Alexandre Lacoste, juge en chef, a discut6 dans ses savantes notes sur cette cause, les opinions les plus en vogue parmi les auteurs qui out 6crit sur le droit des gens et trait6 de la validit6 des testaments faits A P6tranger.

D'apris les uns, le testament n'est valide que s'il est fait selon les formalit6s requises par la loi du lieu de sa confection, d'apr~s la s maxime locus regit actum. Une autre opinion vent V* qu'il soit fait suivant la loi du domicile du testateur. La troisiame, qui est la plus -6n6ralement adopt6e, dit- Fournier J. il reconnatt tons les testaments faits en la forme requise, soit li oA se trouve le testateur, soit en celle de son domicile.

Apris avoir pass6 en revue ces diverses opinions et cit6 beaucoup d'arr~ts 'Hon. Juge en arrive A la conclusion que la maxime locus regit actum r6gissait le territoire assujetti A la coutume de Paris et que d'apres notre droit en 1865 le testament fait A 1'6tranger par une personne domicili6e daus le Bas-Canada devait fait suivant les formes du lieu oA il 6tait pass6 & peine de nullit6.

Le droit ancien a 6 reproduit dans l'article de notre code civil qui se lit comme suit :

On a soutenu A 1'argument que les testaments olographes n'avaient pas de forme.

Certains anteurs out 6mis cette opinion.

Cependant, le grand nombre est d'un sentiment contraire et la jurisprudence se declare dans leur sens.

4crit Quelle est, d'aprbs laloi de l'Etat de New-York, lavalidit6 du testament de James G- Ross fait A New-York en 1865 ? Si ce testament edt t fait par un r~sident de l'tat, il serait nul, comme u'ayant pas t attest6 par deux t6moins. Mais l'art. 2611 du code de procidure de cet ttat, permettant aux 6trangers de faire un testament suivant les formes du pays de leur domicile, ce testament est 16gal en vertu de cette disposition introduite en faveur des 6trangers.

Ce testament, entibrement Fournier J 6crit de la main du testateur et sign6 de lui, se trouvant en la forme olographe conform6ment a la loi en force, lors de sa date, dans la province de Quebec, est par 1'exception de 1'art. 2611 de la loi de New-York, en faveur des 6trangers, reconnu valable comme le testament d'un 6tranger, autoris6 par cette loi .9 se servir de la forme de testament de son pays.

C'est comme si la loi de New-York avait admis sp~cialement la forme ulographe en faveur des 6trangers, et, en ce sens, c'est par application de la ragle locus regit actum, que ce testament doit 6tre consid~r6 comme valable.

Ce testament quoique valable ne pent cependant pas avoir le mime effet partout. S'il devait 6tre invoqu6 dans l'IEtat de New-York, il ne pouvait avoir d'effet que par rapport aux meubles comme 6tant fait suiv ant la forme du domicile du testateur. Mais n'6tant pas ex6cut6 en pr6sence de deux t6moins, il n'aurait aucun effet quant aux immeubles situ6s dans lI'tat de New-York. Cependant sa validit6 comme testament fait d'apris la loi du pays oii il a t6 ex6cut6 (A New-York) n'en est pas affect6e ; l'effet seul en est limite suivant la loi du pays oxi. il est invoque.

Mais dans la province de Qu6bec il doit 6tre consid6r6 quant & ses effets comme testament fait d'apris la loi en force ici, et produit tons les effets que la loi en force lui donne.

On doit de plus, 1'interpr6ter conform6ment A 'art. 8, code civil reproduissant l'ancien droit, qui' veut que h lien; 1 Le testament ayant td fait en vertu d'une disposition sp6ciale de la loi de New-York, permettant A l'6tranger de tester d'apris la loi de son domicile. ce testament doit avoir tout 1'effet qu'il aurait en s'il eat et fait dans la province de Qu6bec.

Au lieu de n'avoir effet que pour les meubles comme s'il 6tait invoqu6 A New-York, il doit, au contraire, dans Qu6bec, s'appliquer A toute espece de biens, soit meubles, soit immeubles. En outre, 1'intention 6vidente du testateur 6tait do s'en rapporter A la 1oi de son pays, comme le prouve 1'6tendue des termes du testament par lequel il legue tous ses biens sans distingner entre ses meubles et ses immeubles.

Cette intention r&ulte 6galement des circonstances etablies dans la cause.

Le testateur n'6tait quo do passage A New-York.

Sa fortune se trouvait presque toute entibre dans la province de a do suite envoy6 son testament A son frdre A Quebec.

Se 1'6tant ensuite fait remettre, il 'a gard6 en sa possession daus la province de Quebec jusqu'd son d~ces.

Je crois pour toutes ses raisons que le testament doit avoir 1'effet d'un testament olographe, comme s'il avait t6 fait dans la province de Quebec quoique fait A Quant A la validit6 des legs faits par le testament j'ai le regret de diff6rer d'avec 'Hon. Sir A. Lacoste au sujet des interventions du Morrin College, et do W. R. Ross comme parent pauvre.

Le Morrin College n'est pas une institution de charit6.

C'est uniquement une maison d'6ducation. S'il est vrai d'apris quelgues auteurs, que quelques-unes de ces maisons puissent 4tre consid6rbes comme des institutions de charit6, il n'en pout 6tre ainsi du Morrin College.

C'est uniquement une maison d'6ducation dont l'emploi des revenus est appropri6e d'une manire si exclusive a l'ducation qu'elle ne pourrait, sans RV. violer les conditions de sa charte, employer partic de ses fonds en charit6.

Get emploi est r6gl6 par la sec. Fournier

.m

7eme de son acte d'incorporation de manibre lui enlever toute possibilit6 de se pr6tendre une institution charitable. Voir Acte d'incorporation du College Morrin, sanctionn6 18 Mai, 1861.

(24 Vic. c. 109.)

Le Morrin College ne pouvait devenir une institution de charit6 n'a pourtant point qualit6 pour accepter un legs en cette qualite ni pour intervenir dans cette cause pour soutenir la validit6 du testament.

Le legs aux parents pauvres est aussi nul pour cause d'incertitude.

Que doit-on entendre par 1'expression " poor relations " (parents pauvres) ? Sont-ce les parents aux degrbs successibles, on seulement tons ceux qui pourraient tracer leur descendance d'un ancktre commun, qui doivent 6tre compris dans ce legs ? Ces parents pauvres ne sont aucunement d~sign~s et ne pourraient tre reconnus par ancun 6v~nement indiqu6 par.le testateur; 1'expression vague et incertaine dout le testateur s'est servi rend leur identification impossible et doit 4tre rejet~e.

Cependant, dans tout legs il y a deux conditions indispensables, une chose 16gude, et une personne A laquelle la chose est 16gube. Sur ces deux points la loi requiert que le testateur s'explique avec certitude. Le legs pour 6tre valide doit ktre 1'expression de la volont6 du testateur ; le legs ne pent pas d6pendre de la volont6 d'un tiers, ni le choix du 16gataire 6tre laiss6 A une tierce personne; agir ainsi, ce ne serait pas exercer le pouvoir accord6 par la loi de disposer par testament, mais plut6t transf~rer ce pouvoir A une tierce personne. Pothier, Donations testamentaires, pose ainsi la rgle: RVs. nme A Troplong (1).

La certitude de la personne gratifi6e est une des premieres conditions do toute lib~ralit6. La raison donn6e par Cains se r6sume dans ces paroles : " Incerta outem videtur persona, quam per incertam opinionem, animo suo testator subjicit." Le testateur n'a eu aucune id6e pr6cise de la personne gratifibe ; il n'aurait rien dit de positif.

Cette autre ragle du droit romain " in alienam volunta/em conferri legatem non potest, a t6 adopthe dans notre code, art. 756.

7 Aubry & Rau

6tre On entend par personnes incertaines celles dont l'individualit6 n'est ni actuellement d6terminhe, ni mime susceptible de l'Atre par l'arriv&e de quelque 6v~nement indiqu6 dans le testament.

Les dispositions testamentaires doivent 6tre 1'expression directe de la volont6 du testateur. Do ce principe r6sultent deux cons6quences suivantes :

(a) Le testateur ne pout faire d6pendre l'existence m~me d'un legs, du pur arbitre mieram arbitrium de 'h&ritier on d'un tiers.

(b). Le testateur ne peut faire d6pendre 1'effet d'un s legs en ce qui concerne la d6signation du 16gataire du U choix de l'heritier on d'un tiers. En d.'autres termes, il ne peut conf6rer it qui que ce soit la facult6 d'61ire, Fournier J o'est-h-dire de choisir soit ind6finiment, soit parmi plusieurs individus indiqu~s au testament, la personne qui devra profiter du legs (1).

Demolombe dit comme suit: (2)

Nous croyons qu'il faut entendre par personnes incertaines celles dont 1'acte m6me de disposition ne cdtermine pas actuellement I'individualit6 et n'indique non plus aucun aucun 6vineient par 1'accomplisseinnt desquels elle pourrait plus tard d~terinine. Puisqu'il faut que le 1gataire soit design par le testament luimbne, le testateur ne saurait confier Phdritier on b un tiers le soin de le designer : et voila comment la facult6 d'61ire se rattache N thiorie des personnes incertaines.

Voir aussi Merlin in re lean Merendol (3) ; Merlin (4) Rej : 12 aoft 1811, Cass. Affre. Lauglier et H6ritiers Merendol (5); Rej : 3 mars 1857, Cass. Idritiers de Saivan v. de Saurieu (6) ; Arrt, C. d'Appel de Colmar. Affre. Merglin v. Willig. 22 mai 1850 (7).

Consid~rant que le testament doit l'expression de la volont6 du testateur, fix6 sur une personne certaine, et ne saurait 6tre par suite subordonn6 la volknt6 d'un tiers, que le 16gataire doit 6tre clairement d6sign4 etc.

Arrt Cour d'Appel de Douai, 15 DNc. 1848, Deteve v. Delive (8); Arrat C. Royale de Bordeaux 6 mars 1Z41, Laboujouderie v. Raffier (9) ; Rej. Cass. 8 aoitt Legrand Masse v. Lepine (10); Cass. 28 mars (1) Toullier,nos 350, 351,606;

367 Belge].

Zacharie & Verg4) p.

S.V. 1, 391.

note 2.

(6) S.V. 57, 1, 182.

(7) S.V. 52, 2, 435.

(3) Rap. vo. Lig. par. II, vol.

(8) S.V. 49, 2, 538.

16, p. 425 [6d. Belge].

(9) S.V. 41, 2, 240.

tier, s. V., par. 1, no. XVIII, vol.

1859. Beurier v. Emorine (1).

Rep. Cass. 30 nov. 1869. Britelle et al. v. Deyvrande (2) ; Simon v. Simon (3). D'aprs l'6nonc6 de ce jugement, on voit que la cer- Rss. titude sur la personne de l6gataire est une des premieres conditions de la validit6 de tout legs.

Tout legs fait Fournier J. a une personne incertaine doit &tre consid6r6 comme nul.

Les personnes incertaines sont celles dont l'individualit6 n'est pas d6termin~e par le testament ni susceptible de 1'6tre par l'&venement de quelque condition indiqu&e dans le testament.

11 suit de I que la validit6 du legs ne peut d~pendre de l'arbitraire de l'htritier ou d'un tiers, et que le testateur ne pent non plus en ce qui concerne le choix du 16gataire, le faire d6pendre du choix de l'h6ritier on d'un tiers.

L'Hon. Juge qui a decid6 en premibre instance a Anonc6 dans sa savante dissertation sur cette cause, les principes souvent formul, ainsi qu'il suit:

1st. It is the certain policy of our law and my clear duty to give effect to the whole will of the testator unless prevented by insuperable difficulties.

2nd. If the will had not contained the words giving Mr. Frank Ross a discretionary power to the selection of the particular ineividual bodies and persons to be benefited, but had simply said that be should give one half of the estate to the public protestant charities of Quebec and Carluke and to poor relatives, I think the law would imply that the distribution between them be an equal distribition.

3rd. I think that if Mr. Frank Ross shall refuse or neglect to exercise the discretion vested in him the will, the courts here should not allow such refusal or neglect to defeat the testator's bequest ; but as the court lacks the special knowledge which Mr. Frank Ross presumably has of what would have been the distribution which the testator would have wished, it would make no endeavour to exercise any discretion or discrimination beyond that pointed out by the lines of the will itself and would therefore distribute the testator's bounty equally among all the individuals composed in the category or class of beneficiaries therein designated.

Le premier de ces principes est admis.

11 n'en est pas de m~me de deux autres. Il n'est certainement pas (1) S.V. 60, 1. 346.

Dalloz, Recueil 1, Journal du Palais correct de dire que si le testament n'avait pas donu6 A Frank Ross le pouvoir de faire lui-m~me la distribution, elle aurait lieu par parts 6gales d'apr~s la loi; et que dans le cas olx il refuserait d'exercer les pouvoirs qui Fournier J lui sont conf6r6s la cour en ferait la distribution. Cotte distribution 6gale ne peut avoir lieu qu'entre successibles au mame degr , mais entre parents A diff6rents degrs les plus proches excluent les plus 6loign~s. Si Frank Ross d6c6dait sans avoir fait la distribution la cour no pourrait en ordonner une distribution 6gale entre les parents, car les tribunaux dans la province de Qu6bec ne possident aucun pouvoir A cet c6gard. La 34 Geo. 3, tout en conferant A la cour du Banc du Roi remplac~e par la cour Sup&rieure, la juridiction de la Pr6v6t6 de Paris, a cependant d6clar6 qu'aucun ponvoir 16gislatif poss6d& par aucune cour avant la Conquite n'6tait transf6r6 A la Cour du Banc du Roi.

La cause du testament de Dame Anne

-c., Beauvoisin (1), cit6e dans le factum de l'appelant, qui avait laiss6 le r~sidu de ses biens aux pauvres honteux qui seront choisis par les ex6cuteurs testamentaires se rapportant au choix des pauvres A leur discr6tion, est une de ces causes oi les cours par 1'exercice de leur pouvoir 16gislatif substituait leur volonth A colle du testateur. O'est en vertu de ce pouvoir que la cour ordonna quela moiti6 du r6sidu des biens serait divis6e entre les h6ritiers suivant 1'ordre dans lequel ils auraient succ6d6 si la succession avait 6t6 ab intestat et l'autre moiti6 A l'Hl6tel-Dieu de Paris et aux pauvres de l'aum6ne do Lyon.

Quoique cette distribution soit contraire au testament on voit cependant que dans la moiti6 attribu6e aux parents, la cour a suivi l'ordre de succession. Il en doit 6tre de mime dans le cas d'un legs faits aux pauvres parents.

C'est l'ordre de succession qu'il faudrait suivre. D'autres causes de ce genre sont citbes, mais elles sont comme celle-ci. fond~es sur I'exercice du pouvoir 16gislatif de ces cours.

Maintenant en France les legs faits aux pauvres oU *. pour des fins de charit6 sont consid6r6s comme faits an bureau de Bienfaisance de la Commune. Nous n'avons Fournier J. aucune institution de ce genre dans notre province. Parmi les nombreuses institutions de charit6 existant dans le pays, aucune n'est autoris6e par la loi A reclamer et administrer les legs pr~sumbs faits par ces objets.

Consid6rant le legs fait aux parents pauvres comme absolument nul pour cause d'incertitude, je suis d'avis que W. R. Ross n'avait aucun droit d'intervenir dans la pr~sente cause et que son intervention doit 6tre renvoy6e.

Le jugement doit aussi tre modifie dans cette partie qui condamne le d6fendeur Frank Ross A remettre et livrer A la demanderesse un neuvi~me indivis des biens de la succession situde en dehors de la province de Quebec, savoir dans la province d'Ontario, New Brunswick, la Colombie Anglaise, et les Etats-Unis, parce qu'il n'est pas prouv6 que le dit d6fendeur en ait jamais en possession ; cette partie du jugement doit 6tre retranch~e; en outre, la cour n'avait aucune juridiction pour decider sur 1'effet de ce testament dans les provinces ci-dessus nommbs.

Le testament attaqu6 doit Atre d6clar6 bon et valide, et 1'action renvoybe avec d6pens ainsi que les interventions du Morrin College et de W. R. Ross, aussi avec depens.

J.-I dissent, I would allow the appeal. There is, however, one of the questions of law arising in the case upon which I agree that the conclusion reached by the judgment appealed from is entirely correct. That is, as to the absolute nullity of Ross's will by the law of the province taken alone and exclusively of the New York statute. The learned Chief as

Justice, Sir Alexander Lacoste, has so amply demonstrated the soundness of the doctrine unanimously adopted by the Court of Queen's Bench on this part Tasereau the case, that I would have thought it unassailable. The respondent, however, not quite sure perhaps of his position on the. other question in the case, to which I shall presently refer, upon which he succeeded before the Court of Queen's Bench in having the will in question maintained, has strenuously argued before us, as he had a perfect right to do, that this will is valid by the law of the province independently of the New York law. and that the Court of Queen's Bench's judgment to the contrary is erroneous.

Under the circumstances, though I feel that I cannot add anything to the strength of the reasoning of the learned Chief Justice of the Court of Queen's Bench, I have thought that the respondent was entitled to expect at our hands a full review of the question.

It is a general rule, in relation to forms of acts deeds, that forms prescribed merely for the purpose facilitating the solemnization of an act or deed are facultative or optional, but that forms necessary to their validity, as those for wills all are, must imperatively be complied with.

In accordance with this principle, besides other reasons, the jurisprudence was uniform in France, before the Code Napoleon, that the rule locus regit actumi, re-enacted by art. 7 of the Quebec code, imperatively governed wills made in foreign countries. including holograph wills.

Laurent answers the opinions expressed to the contrary by the German writer Savigny, and a few others whom Wharton, Conflict of Laws, 585-588, 681, calls modern Roman jurists, upon whose writings the respondent has almost exclusively to rely in support of his impeachment of the conclusion reached by the court of Queen's Bench on this point.

Not a single case has been cited by him in support of his contention. On the contrary, find that as far back as in 16 in a case of Pinard v. Andras the Parliament of Paris held that a holograph will made in Bruxelles by a Frenchman domiciled in Paris was absolutely null because the Belgian law did not allow that form of will. The same doctrine was followed by the same high court in 1720, in the case of d'Arg-elos in 1721 in the case of Ponnerea and in 1722 in the case of Boisel (4). These cases are all noted, with an acte de notori61d, in the same sense, re Paulo, in CAuyot where the author adds, page 166, that- The Pommereu case, reported at length in 7 Journal des Aud. 51, commented upon by Merlin is precisely in point.

The will there in question had been made in the holograph form by a testator whose domicile was in Paris, while he was temporarily in Douay where holograph wills were not legal. argument in support of the will was, as it is here on the part of the respondent, that as it was in the form allowed by the testator's domicile it was valid; that the testator carried everywhere with his person the right to make a holograph will; that the contrary doctrine is irrational and inconvenient; that a holograph will has no forms,

Against the will it was argued that a will null by the law of the place where it was made is null everywhere even if made according to the law of the testator's domicile; that it is an error to say that the option to make a will either in one form orin another is attached to the person and carried with the person everywhere. The question, it will be seen by this short extract of the report of the case, was fully argued on both sides, and the result was, as stated, that the highest court the Kingdom declared the will null.

In another case, re Millot, on the 15th July 1777, a holograph will, made in Paris by a testator domiciled in a place where such wills were not legal, was held valid. And on the 15th Pluv. and 20th August 1806, by two arrits, will made in Bordeaux where holograph wills were not legal, by a testator domiciled in Paris where such wills were legal, was declared void. The leading commentators under the old system adopted the same doctrine.

Auzanet, on art. 289 of the Coutume de Paris, says " The formalities for a will," says Bourjon " are those required by the law of the place where it is made." And Ricard says that the question whether it is lex domicilii or the lex loci or the lex rei site which is to govern the formalities of a will had formerly been a subject much discussed, but that it is now settled by a uniform jurisprudence that the formalities must exclusively be those required by the law of the place where the will is made.

Troplong answers what Ricard says to the contrary in another part of his writings which is also commented upon in the Pommereu case I have referred to.

Ferribre, Grand Coutumier

IRosseau de la Combe Furgole all adopt the same doctrine, and recognize that the law is authoritatively settled in that sense.

.7. In France, now, under art. 999 of the Code Napoleon, and in Louisiana under art. 1588 of their Code, a holograph will, according to the French form, made in a foreign country is valid whether the law of that foreign country authorizes it or not, but that provision is no where to be found in the Quebec Code. That it has been deliberately left out there can be no doubt. The drafters had constantly before them in the course of their labours the enactments of those two Codes, and they did not adopt a single article without maturely weighing the changes thereby made in the law and closely scrutinizing their corresponding enactments, yet they entirely omitted this provision that a holograph will may be legally made anywhere.

This, to my mind, is as conclusive on the question as if the code had decreed expressly that a holograph will cannot he made in any foreign country where such a form of will is not allowed, and that such had always been the law in the province.

reference to the leading commentators under the Code Napoleon also supports that view.

Marcad6 (4), says:

And he adds that it was generally admitted by the best commentators and by a uniform jurisprudence. 18.94 under the old system, that a holograph will made in a country where that form is not known to the law, was invalid.

Coin-Delisle (1), and Demante (2), are of the as e same opinion.

I refer also to Journal du Droit Inter- Taschiereau.

J.

national Priv6, 1880, p. 381; Dalloz (3), says in the same sense:

en est du lieu comme du temps ; c'est la loi du lieu oii le testament a it6 pass6 qui rkgle les formoalitds decet acts.

De 1A Padage connu, locusregit actum. No. 2507. L'application de la rkgle regit actum aux testaments olographes 6tait quelque peu contestie sons l'ancienne jurisprudence.

* *

*

Mais l'opinion de Boulier et de Ricardne privalent pas.

Furgole et Pothier

* * soutinrent 1 contraire.

auteurs que le testateur quelle quo ffit d'ailleurs sa loi personnelle, 6tait capable on incapable de tester par testament olographe, suivant que cette forme 6tait ou non admise dans le lieu le testament trouvait Cette th6orie 6ti consacr6e par quatre arrts de parlement mars janvier juillet juillet 1777, par un acte de Notoridt6 du Chatelet, du septembre et appuy6e de Fautorit6 de Merlin.

arrits avaient la jurisprudence d'une manire invariable, et it ne restait de dissidence daus la doctrine quo Popinion contraire de Boullenois, opinion influencie par une extension syst6matique et 6videment exag6rde des principes l'auteur sur les 'statuts.

No. 2508.

Le Code Napol6on ne s'est occupd maxime locus regit actum que pour la confirmer coinme il Pa fait par Particle A Pigard du testament authentique tout en la modifiant d Pdgard du testament olographe accomplis Pun et l'autre par un fraugais en pays ktrangers.

Demolombe (4), says:

est vrai que Particle 999 autorise le Frangais A faire un testament olographe suivant la forme frangaise dans les pa memes cette forine ne serait pas admise; mais c'est une exception que la loi frangaise faite en faveur des Frangais, afin de leur donner le plus de moyens possibles de faire lour testament en pays 6tranger ; exception de faveur, disons-nous, qui ne prouve nullement que les auteurs du Code aient miconnu le vrai caracttre de la loi qui autorise cette forme de testament.

Rip. vo. Dispositions, entre- (2) Vol. 4, 301.

vifs et testamentaires, no. 2506. Vol. xxi, nos. 482-3 453.

The same author then discusses the assertion of Fcelix and Aubry and Rau that the rule locus regit actum is facultative so as to permit the execution of the will either according to the law of the domicile or accord- ing to the law of the place of execution, and adds (1) : Cette doctrine, sans doute, pourrait paraitre raisonnable, et nous sommes en effet port6 croire qu'elle serait, si elle 6tait admise, un progbs du droit nouveau sur Pancien droit.

Mais il faut reconnattre que Pancien droit ne 1'avait pas admise ; et nous avons aussi constat6 ailleurs qu'elle n'a pas encore non plus r~ussi faire reconnaitre dans notre droit nouveau.

At par. 482, in fine, the author says that the doctrine in France before the Code had almost universally prevailed that a holograph will made in a country where that form of will is not recognized, is a nullity, even if the lex donicilii of the testator recognized it. And at par. 106 bis vol. 1, p. 129 the same author says:-" Is the rule locus regit actum imperative or merely facultative ? " The question was under the old law much discussed, but, however, the opinion that it was imperative bad prevailed.

And such is the tendency of our modern jurisprudence.

Laurent (2), says:- La drogation est claire, mais quelle en est ]a port6e ? En faut-il conclure que la forme des testaments olographes est un statut personnel ? On l'a prdtendu et nous verrons A l'instant que cette question de th6orie a un int6rit pratique.

I nous semble que la diflicult6 n'en est pas une, car les principes les plus 614mentaires sur Pinterpretation des lois suffisent pour la d6cider.

Que la loi qui rigle les solennitis d'un acte ne soit pas une loi personnelle tout le monde convient Fopinion de Boullenois et Boubier est toujours restde isolde. L'article 999 en d~rogeant Padage, locus regit actum, a-t-il change ]a nature des lois concernant les formes ? II a permis an Frangais de faire un testament olographe d'aprbs la loi frangaise dans les pays cette forme de tester ne serait pas admise.

Toute exception doit ftre renferm6e dans les limites de la qui Pa ctablie. L'exception de Particle 999 borne 4 accorder un Frangais une facult6 qu'il n'avait pas (1) Dem. vol. xxi, no.

Dr. Civ. vol. xiii, no.. 349' The same writer at par. 245 et seq. vol. droit international, repeats the same doctrine.

Also in vol. droit civil et seq., and in vol. 6 droit intern., nos. 415- 922, he says of art. 999, Code Napoleon, that the Code has deviated from the old law on the subject and inaugurated a new principle. In vol. dr. intern. nos. 5 et seq., are other remarks of the same writer in the same sense.

Aubry and Rau though of opinion that the rule locus regit actum is merely facultative and not imperative, concede that under the old law the rule was held to be imperative. That it is facultative under art. 999 of the Code Napoleon is unquestionable, but I repeat it, that it is not and never has been law in the province of Quebec; and Boileux (2) says:- I refer also to the decisions in De Veine v. Routledge (3) ; to the same case in Cassation and to 3 Troplong where it is said that the opinion Ricard and others to the contrary did not prevail in France before the Code

As to the contention faintly urged on the part of the respondent, that the fact that holograph wills have no form and that they need not be dated from any place shows that they can be made anywhere, I need only say that it is one that was propounded long ago by Ricard inter alios, whose opinion is so often wrong, says Troplong, no. 1463, but has never been sustained by any court, and is repudiated expressly by the judgment in the Pommeren case (I), to which I have already referred, where that same point had been explicitly taken, and Merlin calls it a " subtilit6."

The respondent contends that the rule locus regit aclum is absurd and irrational. That may or may not be. Laurent r and Despagnet think that it is the English rule that is absurd.

With this, however, clearly we are not concerned.

For these reasons I agree with the Court of Queen's Bench (and we are unanimous on this point I understand, though I have not seen my learned colleagues' opinions), that under the law of the province, considered alone and without reference to the New York law, Ross's holograph will made in New York is void. The Court of Queen's Bench, however, have maintained the validity of that will upon the ground that it was made according to the form required by the law of New York and consequently valid under art. 7 of the Quebec Code and the rule locus regit aclum. Now as a matter of fact alone, upon the evidence in the record, I would say that this will is not made according to the forms required for wills in New York. The experts examined all agree that holograph wills are unknown to the New York law. That should put an end to the controversy.

But the conclusion reached by the Court of Queen's Bench on this branch of the case is based upon art. 2611 of the New York Code Procedure by which it is decreed that:

Therefore, they say, Ross's will is made in the New York form as to personal estate.

I am unable to adopt this reasoning.

It rests entirely, it seems to me, on a misconstruction or misapplication of the New York statute.

cite here the '^s cases of Bremer v. Freeman Concha v. Murrietta and City Bank v. Barrow, as to the construction a foreign code.)

The granting of the probate of a will made under foreign law is not conclusive and does not regulate and affect the ultimate destination of the property; Jarman, ; In re Kirwan's Trusts ; Barnes v. Vincent (6) ; Abston v. Abston (7) ; Atkinson v. Rogers, (8); and ancillary probate may be granted of a will made according to the laws of the foreign domicile the testator though that will is invalid according to the /ex fori

In Thornton v. Curling for instance, reported in England in 8 Sim. 310, and in France in Journal du Pal. 1826, 898, commented upon by the Vice Chancellor in

Price v. Dewhurst (10), the will there in question had been made in England, in the English form, by a testator domiciled in France. That will was null according to English law, because not in the form required by the law of the testator's. domicile.

Yet it was admitted to probate in England, Addams, because it was valid as to form in France according to the rule locus regit actum, though eventually the Cour de Cassation in France held its dispositions illegal under the French law.

And such a course of dealing would be followed under the same circumstances in New York, I apprehend, as by art. 2624 of that same code, it is only of wills made in the State by residents of the State that the Surrogate determines the validity.

By art. 2694 it is expressly enacted that the validity of a will of any personal property situated within the State is regulated by the laws of the State or country of which the decedent was a resident at the time of his death. It is only to . personal estate in New York that this article can have any application, and it is likewise only to personal estate in New York that art. 2611 is intended to apply. It cannot, it is evident, have any application in the. courts of any foreign country.

The form that, under art. 7 of the Quebec Code declaraory of the old law, has to be followed by a Quebecer who makes a will in New York, is the form required by the law of New York for wills by its own subjects, the form generally used in New York, as the last part of art. 999 of the Code Napoleon reproducing the rule locus regit actum expresses in clear terms. And the New York Legislature had not the power to alter that law for the province of Quebec, and to decree that a Quebecer could in New York make his will either according to his lex domicilii or to the lex actus, or to neither one nor the other, but according to a mixture of both, at least so as to affect movables in It cannot be that the legislature of New York had the right to pass a statute in the following terms: "Whereas by the law of the province of Quebec a holograph will made in New York by a citizen of the province is invalid in Quebec; whereas it is expedient to provide otherwise ; it is hereby decreed that hereafter such a will shall be valid."

Could such an enactment affect property in Quebec ? I would say not, and the New York legislature never intended to do so.

To give to their statute the meaning that the respondent contends for would be to extend it in a manner not justified by any principle of law that I know of.

The respondent, in other words, would argue, at least his argument leads to it, that though the legislature in Quebec has refused to adopt the change in the law made in this respect as to holograph wills by art. 999 Tase.reau of the Code Napoleon or by art. 1588 of the Louisiana Code, yet the New York legislature has done it for them.

To so contend is evidently to forget the sovereignty of the province and of the law of the domicile of the testator in the matter and leads to a reasoning in a circle.

And a safe rule that I would apply here is the one laid down by Lord Penzance in a somewhat analogous case, Pechell v. Hilderly (1) that in determining the question whether such a will is valid or not, regard can be had to the law of one country alone at a time and the court will not mix up the legal precepts of different countries. The law of Quebec is exclusively the rule here.

But were it necessary to make the inquiry, it seems to me established in the case that the will would be held invalid in New York.

Mr. Adams, one of the experts examined in the case, makes this point clear and I do not see that he is contradicted by the other experts.

As in England, in matters of testate succession, when the will has been made by a person dying with a foreign domicile, inquiry is madein New York, I assume, with regard to the validity of that will by the law of the domicile and according to the result of such inquiry, probate of the will is granted or rejected.

Art. 2694 New York Code of Procedure (2).

Upon evidence that by the Quebec law a holograph will made in New York by a citizen of Quebec is not valid in Quebec to transmit property real or personal situated or to be found in Quebec if, by the New York law, holograph wills by citizens of New York are not valid in New York, this will in question here would 'ss not be admitted to probate in New York.

. This art. 2611 of the New York Code of Procedure does not cover this will as it applies only to a will of J. personal property executed by a person not a resident of the State according to the laws of the testator's residence. And Ross's will is not executed according to the laws of the testators's residence.

It was said at the argument on the part of the respondent, this will is good by the Quebec law, it is also good by the New York law, why should it not be upheld? This is, however, but an assumption of the very question at issue. That is precisely what has to be determined, whether this will is valid or not; and to such an argument the appellants have only to answer, with not more but with as much force, by saying that as the will is bad in Quebec, and also bad in New York, it cannot be upheld. If Ross had left personal estate in New York, and the New York Court upon contestation of his will had referred the question of its validity to the Quebec courts, following the course adopted by the Prerogative Court in England in de Bonneval's case to have the question settled by Ross's lex domicilii, the Quebec courts would have had to answer, and the Court of Queen's Bench concedes it,.that by Ross's lex donicili, alone and independently of the New York law, the rule locus regit actum imperatively governs, and that this will by that law is therefore null; that by the Quebec law a Quebecer, who in New.York desires to make a will disposing of either movables or immovables, or both, in Quebec, must do so according to the New York forms. And as a holograph will is not in the New York form, that would have been the end of the controversy, as art. 2694 of the New York Code of Procedure, above referred to, expressly says that as to personal estate it is by Ross's lex domicilii that, in New York, the validity of his will is ea to be concluded. I utterly fail to understand the import of the rule locus regit actum, if it does not mean, adapting it to this. case, that a Quebecer who desires when in New York to make a will has to make it according to the form required by the law of New York for its own subjects; or to put it in other words, if a will in the holograph form made by a New Yorker in New York is void under the New York law in New York, a Quebecer's will in that form made in New York is also void in Quebec, which is Ross's lex domicilii.

This art. 2611 of the New York Code, relied upon by the Court of Queen's Bench to maintain this will, requires no form at all for any will in the sense that the word " requires " bears in art. of the Quebec Code. It is a mere enabling enactment as to probate when a foreign testator has left personalty in the State of New York. The form that is required by the New York law for New York citizens for a will made in the State of New York is the form derived from the English law of a will before witnesses.

All that this article of the Code of Procedure enacts is that a will made by a nonresident of the State of movables to be found in the State may be admitted to probate if made according to the law of the testator's residence.

It does not purport to legalize any will otherwise illegal. It merely decrees that probate may be -granted in New York, as to personalty, of any will that is legal by the law the foreign testator's residence. It does not at all help any will, or in any way come to the assistance of any will, that is not perfectly legal by the law of the testator's residence and by that law alone. The fact that Ross's will happens to have been made in New York does not make the least difference.

The article does not merely apply to wills made in New York; it has the same application to a will made for instance in . England by a Frenchman domiciled in Paris, or in - Paris by an Italian, or to bring the illustration closer to the present case, to Ross's will if it had been made in England.

If, under such a will, the testator had disposed of movables in New York, and probate was in consequence demanded in New York, the New York court would grant probate if the will is good by the law of the testator's residence exclusively, and refuse it if the will is bad by that same law.

Such is the New York law. In the Marquis de Bonneval's case above cited a Frenchman had made his will in England in the English form. The court in England (1), held that by the English law the validity of that will as to personalty in England had to be determined by the law of France, the lez domicilii of the testator, and accordingly referred the case to the French courts to ascertain what that law was. Thereupon the Court of Cassation in France, where the case was eventually carried, determiiied that, by the French law, that will made in England, irrespectively of the question of the testator's domicile, by a French subject in the English form was good under the common law and art. 999 of the Code Napoleon, which decrees, in express words, that a Frenchman in a foreign country may make his will in the forms recognized (usities) in that country, re-enacting thereby the rule locus regit actumn, which had always governed in France and which is reproduced in art. 7 of the Quebec Code, as I have already remarked.

But if instead of being a will in the English form de Bonneval's will had been a holograph will, the courts in France would unquestionably before the Code have held it utterly void as they did for the Pinard Andras, the d'Argelos, the Pommereu and the de Boisel wills, and the other wills in the cases that I have cited.

This enactment of the New York code, art. 2611, upon which the respondent bases this branch of his argument is, it seems to me, nothing more than a re-enactment of the English common law; v. ; Croker v. The Marquis of Her/ford

Now, would Ross's holograph will have been good according to Quebec law if made in England?

That is the same question undoubtedly. The law of England, as I have said, is the same as the law of art. 2611 of the New York Code. Would not the courts in France, before the Code Napoleon, have held such a will null, as they did in the above cited cases ? Upon an application for probate of Ross's will, if it had been made in England the court in New York would not have proceeded before inquiring what was Ross's lex domicilii, and upon ascertaining that by that lex domicilli holograph will made in England by one of its subjects is void, as the English law does not know of holograph wills, probate would have been refused.

The New York article can apply only to wills made by a subject of a foreign country, or of any other State of the Union where the English law on this subject prevails, that is to say where, by the testator's lex domicilii, he carries everywhere with his person the right to make a will in the forms prescribed by the law of his own country, a doctrine which, to use Guyot's words in the passage I have cited, cannot be seriously contended for under the French common law. With the law on the subject under the English system there is in the New York law no conflict; with the law under the French system there is conflict. It has been said that it would be an anomaly if this will was held to be valid in New York and invalid in R s the province of Quebec.

But anomalies of this kind, s. assuming that the New York courts might uphold the validity of this will, are constantly met with. It is r the inevitable result of the differences between the municipal laws of the different countries of the civilized world. In a case of Guigonand v. Sarrazin for instance, a will made in Austria was declared null by the French courts, though it had been held valid by the Austrian courts. In a case of Meras v. Meras a holograph will made in France by a Spaniard was held good by the French courts, though it had been held bad by the Spanish courts.

And an English subject, temporarily in France, may, by the French law, make a holograph will in France, and such a will will affect both movables as well as immovables situated in France.

Re Quartin ; Meras v. Meras But in England such a will at common law would have been invalid ; Croker v. the Marquis of Hertford (4); Bremer v. Freeman (5); as to both movables and immovables.

And a will in the English form, made in France by an Englishman domiciled in England, is null in France both as to movables and immovables See Mendes v. Brandon

It is good in England as to both.

In re Rippon (8); In re Raffenel, (9); Doglioni v. Crispin " Attendu," says the Cour de Cassation, in Re Browning declaring the nullity a will in the English form made in France by an Englishman :

Qu'il est de principe de droit international quela forme ext6rieure des Riss actes est essentiellement soumise aux lois,usages et coutumes des pays ob is sont pass6s ; que ce principe s'applique aux testaments olographes comme tous autres actes publics et privds. Attendu que si tout qui tient h F'tat du testateur, 1'6tendue et I la limite de ses droits et de sa Taschereau

J.

capacit6 est rdgi par le statut personnel qui suit la personne partout elle se trouve, il en est autrement de la solennitd de Facte et de sa forme extdrieure qui sont regl6es par ]a loi du pays oii le testateur dispose.

Qu'ainsi le testament olographe fait par un 6tranger en France, et dont 1'exdcution est demand6e devant les tribunaux frangais ne peut tre ddclar6 valable qu'autant qu'il r6 unit toutes les conditions de forme exigies par la l6gislation frangaise, quelle que soit h cet 6gard la 1gislation du pays auquel appartient le testateur.

The considdrants of the same court, re Quartin and of the Paris Court of Appeal, in Mendes v. Brandon, cited above, are as strong and clear in the same sense. On the same principle it is held in France that a joint will, although null if made in France, is valid in France if it is made by foreign consorts in their domicile of origin, according to the law of the place, even for immovables (1).

A case of Withall v. Van Often (2), goes very far in support of the same doctrine. There, a holograph will made in France by a Dutchman was declared valid as to the personal estate left by the testator in France, though by the Holland Code holograph wills are not merely not allowed, but prohibited; so that the estate in France went to the legatees under the will and the estate in Holland went to the heirs at law, the court unequivocally repudiating, as they did in the Meras case cited before, the preponderance of the foreign law over the municipal law of the country that, in the present case, the doctrine of the Court of Queen's Bench would concede to the New York law over the law of the province of Quebec.

These examples demonstrate that no rules or principles of private international law, upon which the respondent partly bases his contentions on this point, Rss. can have any bearing on this case. There are on the question no rules ex comnitate between States or ad e reciprocam utilitatem that can be given effect to in the courts of justice.

Each country, as the cases I have quoted demonstrate, follows its own law in each case without reference to the foreign law.

In Dupuy v. Wurtz for another instance, a citizen of New York made his will in France bequeathing both real and personal property in the form recognized by the State of New York.

That will was clearly null in toto in France. But the New York Code held it good in toto (2).

A New Yorker, who whilst temporarily in Quebec, desires to make a will, has, by the New York law, to make it according to the New York form to devise his real estate in New York, and if he desires to bequeath any estate, real or personal, situate in Quebec, he must, by the Quebec law, make another will according to the Quebec forms.

But a will by a Quebecer in the New York forms, whilst temporarily in New York, will, by the Quebec law, pass his real and personal estate in Quebec, and, by the New York law, both his real and personal estate in And in this Dominion itself the same divergence exists in the laws between the different provinces, at least between the province of Quebec and the English law provinces.

A will made in Quebec, for instance, under the French law form does not affect real estate in Ontario, but a will made in Ontario under the Ontario form affects real estate in Quebec. This shows that international law has nothing to do with the question.

In Louisiana, in 1848, in Re M'Candless it was held that under the civil law in force in that State W* the form of the will is to be decided according to the law of the place where made, whether it relates to movables or immovables situated in another country, whatever principles to the contrary may prevail in countries governed by the English common law, and consequently, a will of movables and immovables situated in the state, made in another country by a citizen of the state, temporarily there according to the forms of that other country, was declared valid. This Louisiana decision, rendered under the same system of law that rules the province of Quebec, is a striking instance of the difference between the English and the French law on the subject, a difference which we must constantly bear in mind in determining this case. Under the English law the rights that attach to the person and are carried with him everywhere, under the rule mobilia personam sequuntur, include, as to personalty, the right to make a will in the form of the testator's lex donieijli. Under the French law that rule does not extend to forms of wills; this right of a testator is not included in the rights that attach to the person, and the laws as to forms of deeds or wills are not personnels.

Another great difference between the two is that under the French system the rules for the forms wills are the same for movables as for immovables. Laurent (2) ; Pothier (3) ; ler Boileux, page 22; Quartin's case, cited above, and Annotator's remarks; whilst under the English system the lez rei sitae strictly prevails as to realty.

It does not necessarily follow, however, (under both systems probably) that a will to be valid in form must conform to that law which would have regulated the succession to the testator's property if he had died intestate, as said per Sir John Nicholl in England, in Curling v. Thornton and as results from the judgment of the Cour de Cassation in France in re Quartin above cited on the first ground of the pourvoi.

In Brenier v. Freeman the Privy Council held that by the French law an Englishman domiciled in France, though not naturalized, cannot validly by a will made in France in the English form bequeath movable property in England.

The French courts would unquestionably have also held the will in question in that case void, as, under any circumstances, by the French law, is a will in the English form made in France, even by an Englishman domiciled in England, valid either as to movables or as to immovables, whilst by the English law, such a will made in France by an Englishman domiciled in England is valid, and, in fact, as to real estate in England, the only one that an English court would recognize. French law had in that case been misconstrued in the Prerogative Court (3).

The respondent's argument by which he relies on the private international law in force in New York to uphold Ross's will is based on the same fallacy as his argument by which he tries to uphold it on the New York Code of Procedure (4).

It is apelitioprincipii. It assumes that the will is good by the Quebec law. It is merely an argument that could be invoked if Ross's will had been made in Quebec.

Then it would unquestionably be good in Quebec both as to movables and immovables, and good by the New York law to transmit personal property in New York. It is a settied principle of private international law that the aV. formalities required for a deed or an instrument of any kind, are those required by the law of the place where the. deed or instrument is made.

Locus regit actum; Journ.de dr. intern. priv6,1883, p. 85. The respondent's argument begs the whole question and assumes that this holograph will made in New York is just as valid by the Quebec law as if it had been made in Quebec. In other words, it assumes that art. 999 of the Code Napoleon is not new law, and that the rule locus regit actum is not law in Quebec, both of which propositions are untenable.

I would come to the conclusion that Ross's will is void, but in any case I do not see how it can affect immovables in Quebec.

It is only as to movables that the New York statute, in express terms, legalizes a devise by a foreigner made according to his lex domicilii, and Ross's will, it is conceded, would not affect immovables situated in New York, if he had left any. If he had devised his immovables only clearly his will would not be admitted to probate in New York. On what principle it can be made to extend to immovables in Quebec I cannot see.

The intentions of the testator are to be given effect to, it is said. Certainly, but that is so only of the intentions that he has expressed in a valid will, and so far only as such will is valid. If intention alone was to be given effect to there would be no need for any form. If a will is valid as to movables the testator's movables will pass under it, but if invalid as to immovables these immovables are left intestate.

To use the words of Lushington J. in Croker v. Marquis of Hertford :

And in France it is said on the same principle: In this very case it is evident that Ross's intention was to bequeath all his immovable property wherever situated. Yet it is conceded that his will does not cover the immovables he left in Ontario.

The only point that now remains for my cbnsideration in this case is the view taken by the Superior Court that this will is valid.as made in the English form as it was introduced in the province in 1774. Now, under the Statute of Frauds, the English law in force in Quebec in 1865 when this will was made, nothing but personal estate could be devised by a holograph will. And here again the judgment should in any case be reformed so as to maintain this will only as to the personal estate of the testator. But I go further, and I think, with what may be assumed to have been the unanimous opini6n of the Court of Queen's Bench, that this will, as an English will, is null in toto.

By the English law, different in this again from the French law the will speaks at the death of the testator and it is the law at the time of Ross's death that governs the execution of his will. Now, by that law, art. 851 of the Code, in force when Ross died, wills derived from the English form both as to movables and immovables must, now in England, executed before witnesses.

Art. 2613 CC. invoked by .

the respondent against this has no application. That it is the law at the time of the death that governs the ase rwills derived from the Enlish law and its execution is no new rule in the Code.

And that article relates only to new rules or changes made in the law by the Code so as not to affect past transactions or acquired rights. And when article 581 decrees that thereafter all such wills must be executed before witnesses, that applies to the wills of all those who died after the coming into force of the Code.

I would allow Annie Ross's appeal and maintain her action.

Consequently, and also for the reasons given *by my brother Fournier, I would dismiss all the interventions with costs on all the issues, and allow Frank Ross's appeal with costs on the appeal between him and those intervening parties.

I remark that in the formal judgment of the Court of Queen's Bench there is no reference to these interventions or any of them. However, this has no consequence.

As to Frank Ross's appeal or cross-appeal as between him and the plaintiff, there should be a reformation at least of that part of- the judgment by which he is condemned to deliver up the real estate left by the testator outside of the province of Quebec, and to render an account of his administration thereof. It is established that he never had possession of that real estate. The admission in the record relates only to the estate devised by the will, and the realty outside of the province, it is conceded, did not pass by the will. How can he deliver up what he never had, or render an account of an administration which he never had? J.-I concur with the learned Chief Justice in this case except as to that part of the judgment relating to Morrin College, whose intervention in my opinion should be maintained as that of a jss charity within the terms of the will, and except as to . costs in the lower courts. I think that the order of the Superior Court and the order of the Court of Queen's S e Bench as to costs should stand except as to the interventions dismissed.

J.-I concur in the judgment of the Chief Justice except as to costs in the lower courts. orders in the Court of Queen's Bench and the Superior Court should stand except as to the interventions which have been dismissed.

Appeal and cross-appeal dismissed with costs.