Let the decree be affirmed.
7. What Law Governs in Case of Conflict of Laws.
53 New York, 192. - 1873.
Action for the construction of a will.
Folger, J. - The testator had his domicile in the State of California. He made his will there. No question is made but that it is in all of its provisions valid by the law of that State. It, however, by its terms, disposes of certain property in this State, and by provisions which are invalid here, inasmuch as they run counter to our statute law. I.R.S. 723, sec. 15; Id. 773, sec. 1. The statute law here referred to embodies the policy of this State in relation to perpetuities and accumulations. As this sovereignty will not uphold a devise or a bequest by one of its citizens in contravention of that policy, it will not give its direct aid to sustain, enforce or administer here such a devise or bequest made by a citizen of another sovereignty. See Chamberlain v. Chamberlain, 43 N. Y. 424. Yet it is no part of the policy of this State to interdict perpetuities or accumulation in another State. Id. 434.
The property in this State affected by this will is leasehold estates held by leases for a short term of years. This is, at common-law, personal property. 3 Kent, 401; 2 Id. 342; Merry v. Hallett, 2 Cow. 497; Brewster v. Hill, I. N. H. 350. The statutes of this State have, for some purposes, modified its character. Estates for years are denominated estates in lands. I. R. S. 722, sec. 1; Id. 750, sec. 10; Id. 762, sec. 33. They are still chattels real (Id. 722, sec. 5), and are not classed as real estate in the chapter of " title to property by descent." Id. 754, sec. 27. A judgment binds and is a charge upon them (2 Id. 359, sec. 4), yet they go to the personal representatives as assets for distribution. Id. 82, sec 6; and see Pugsley v. Aikin, II N. Y 498. They vest in the executors as a part of the testator's personal estate. These leasehold estates must, for the purposes of this case, be treated as personal property.
Personal property is subject to the law which governs the person of its owner as to transmission by last will and testament; and this principle, though arising in the exercise of international comity, has become obligatory as a rule of decision by the courts. Parsons v. Lyman, 20 N. Y. 103. And, as a general rule, the distribution of personal property, wherever made, must be according to the law of the place of the testator's domicile. Harvey v. Richards, 1 Mason, 381-407.
The cases are not uncommon in which a testamentary disposition made in a foreign jurisdiction has controlled the transmission of personal property in this. Usually the administration of the estate has been committed by the will to citizens of that jurisdiction. They have acquired the possession and control of the property through voluntary payment or surrender, or, by making probate of the will here, have obtained auxiliary letters testamentary, and under these have enforced collection or surrender. In such case, those charged with the administration are liable to account here for the assets collected by the authority granted here. It seems to have been generally held, that where there are domestic creditors of the estate, payment of the debts may be decreed out of the assets. Dawes v. Boylston, 9 Mass. 337; Richards v. Dutch, 8 Id. 506; Harvey v. Richards, supra. For other purposes, such as the payment of legacies and the distribution of the surplus to the next of kin, the courts in Massachusetts have held that the assets must be remitted to the place of the domicile. See cases above cited. But this has been questioned with great force and reason. See Harvey v. Richards, supra. And the better rule is, that whether the courts of one State are to decree distribution of the assets collected in it under auxiliary letters granted by them, or to remit the disposition thereof to the courts of the testator's domicile, is not a question of jurisdiction, but of judicial discretion under the circumstances of the particular case. Harvey v. Richards, supra; Parsons v. Lyman, supra. Nor does the fact that, by the will in this case, the testator appointed citizens of this State as executors, as well as citizens of the State of his domicile, and charged those here with the care and administration of the property here, alter the rule. In Mason v. Richards, above cited, the defendant was appointed, in this country, administrator, with the will annexed of a testator domiciled in the East Indies, where the executors resided.
The question then arises, under the particular circumstances of this case, whether the assets in this State should not be remitted to the executors in the State of California to be administered, as they may be, in accordance with the directions of the will, under the laws of that State.
As has been stated, the courts of this State may not directly aid in carrying out here, a bequest which is in violation of its statute law, and contrary to a policy of which it is tenacious. And yet they may not hold the bequest void, when it is valid by the law of the State by which the disposition of the property is to be governed. The one would be to transgress the written law of this State; the other would be to disregard an unwritten rule of law, well settled, and of extensive and frequent application.
There are certain legacies appointed by the will which are valid under our law; they are to persons residing in the Atlantic States. The will directs the executors here to use from the assets here to pay those legacies. There is no obstacle of law, economy or convenience in the way of this provision of the will being carried out to its letter. The residue of the assets should be remitted to the executors in California to be administered there. This residue will be much less in amount than the assets there. They are leasehold estates of terms not long, and will soon cease (if they have not already) to be continuously available for any purpose of the will. There are no creditors of the estate in this State to be protected. 1 he legatees here are protected by the payment of the legacies to them from the assets. The next of kin of the testator are also the annuitants under the provision of the will, which is void by our law. As annuitants, they must soon rely mainly upon the fund, the executors and the courts, in California. If to them as next of kin were adjudged here a distribution of the property here, it might not prevent them from claiming there as annuitants. Thus, by conflict of laws and adjudication, there would be a measureable thwarting of the testamentary intention, and the giving to them of more than the testator designed. It seems, then, that the rule of law above mentioned and the circumstances of the case indicate that the judgment of the Special Term directing a distribution of the assets in this State among the next of kin was not well advised, and that the judgment of the General Term reversing that of the Special Term in that respect was proper.