PRECEDENT XVIII. WILL WITH TRUST FOR ACCUMULATION TO DISCHARGE INCUMBRANCES. trust for accumulation hereinbefore contained during the 20. Appointment of testator's wife, and after her death her testamentary nominees, if any, or if none, the trustees to be XIX. WILL of lands in AUSTRALIA, and other REAL and PERSONAL estate. DECLARATION as to the testator's (f) That the statutory power of appointing guardians may be so delegated, see supra, p. 62, note. Although the appointment is not valid as to the illegitimate children, effect would probably be given to it by the Court. See Chatteris v. Young, 1 J. & W. 106. PRECEDENT XIX. WILL OF LAND SETTLING SHARES PRECEDENT XIX. WILL OF LAND SETTLING SHARES ACCUMULATION. 1. Revocation of during minority and each DAUGHTER during minority and spinsterhood, and to RAISE a specified SUM for each SON on attaining twenty-one and each DAUGHTER on attaining twenty-one or marriage. POWER of ADVANCEMENT as to sons. DIRECTION to ACCUMULATE surplus income of shares of sons and daughters until they attain TWENTYFOUR or until twenty-one years after the testator's death, and that the ACCUMULATED fund shall be ADDED to the original share. ULTERIOR TRUSTS for son or daughter for LIFE and afterwards for payment of a THIRD part of the income, not exceeding a specified amount, to his or her surviving WIFE or HUSBAND and subject thereto for his or her CHILDREN at twenty-one, &c. PROVISO that a share shall be appropriated to any SON or DAUGHTER of the testator DYING in his LIFETIME leaving ISSUE. CROSS TRUSTS as to shares NOT VESTING under the primary trusts. ULTIMATE TRUST to take effect on failure of vesting under the prior trusts. POWER to RAISE MONEYS for the purposes of the will by SALE or MORTGAGE. POWERS to DIVIDE the residuary estate into shares without conversion, and to ALLOT property SPECIFICALLY, as the equivalent of a share in the residuary estate, with ANCILLARY PROVISIONS, and with power of further SUBDIVISION and ALLOTMENT among the class ultimately entitled. DIRECTIONS for DIVISION of the DUTIES of trust between the trustees in ENGLAND and AUSTRALIA. USUAL CLAUSES adapted to the division of duties of the trustees, and the trusts of the Australian property. I, A. B. of &c., hereby revoke all wills, codicils, and other testamentary dispositions heretofore made by me, and declare this to be my last will, which is to take effect (so far as the case admits) according to the law of Eng land, where I am and intend to remain domiciled (a). I PRECEDENT XIX. BEQUEATH to my wife C. B. the use and enjoyment and WILL OF LAND SETTLING SHARES 2. OF SONS AND TRUSTS FOR ACCUMULATION. Bequest of leasehold house and stables and fixtures and furniture, &c., to wife for life, without trustees, and afterwards to fall into residue. Local law by which wills are regulated. (a) In general, the operation of a will on real (or immovable) property depends on the law of the country in which the property is situate (lex loci rei site); and the operation of a will on personal DAUGHTERS, WITH (or movable) property depends on the law of the testator's domicil at his death (lex domicilii). By such local law the extent of the testamentary power is regulated, and questions as to the sufficiency of the will in point of execution, or as to the construction or effect of its contents, are determined. See Jarm. Wills, c. 1, "By what local law wills are regulated;" and on the subject of domicil, see the very learned and able note in Hayes & Jarm. Conc. Wills, 8th ed., pp. 543 et seq., in which a great mass of authorities are collected and arranged; and The Indian Succession Act, No. X. of 1865, Part II. It has been maintained by some of the foreign jurists that a will of land depends, as regards the formalities required for execution, on the law of the place where it is made, according to the maxim locus regit actum, and not on the lex situs, although as to its operation it is regulated by the latter law; but this doctrine is opposed to the view universally held by English writers, and in which most continental writers concur, (see Story, Conflict of Laws, 7th ed., §§ 363-373, 435-446); and it would not be safe to act upon it. Although leaseholds for years are regarded according to the law of England as personal estate, they would be classed as immovables in a system founded on the civil law, and the devolution upon death of leaseholds in England is governed by the law of England and not by that of the domicil; see 1 Jarm. Wills, 3rd ed., p. 4, note (k), Freke v. Lord Carbery, L. R. 16 Eq. 461. By 24 & 25 Vict. c. 121, power is given to the sovereign by convention with any foreign state to provide that as to a subject of either state going to reside in the dominions of the other, domicil shall not be considered to have been acquired otherwise than by residence for one year immediately preceding his death, and a declaration in writing of the intention to become domiciled in the foreign country, and that in the absence of such residence and declaration, the deceased shall for purposes of testate and intestate succession to movables, be deemed to retain his prior domicil. It will be seen that in cases to which this Act may apply, the will of a British subject will as to its dispositive power and its construction be subject to British law, unless the testator has by formal adoption as well as residence assumed a foreign domicil. The Act, however, is at present inoperative, as no convention has (it is believed) been entered into under it. Such a declaration as that in the text of the testator's domicil, Effect of decla PRECEDENT XIX. beneficial interest of and in my leasehold messuages and premises situate &c., and my leasehold coach-house and WILL OF LAND AND OTHER SETTLING SHARES and his intention to retain it, is, no doubt, entitled to weight, domicil being established by intent and fact (animo et facto), but DAUGHTERS, WITH will not prevail against facts showing a foreign domicil (see Re Steer, OF SONS AND TRUSTS FOR ACCUMULATION. ration of intention as to domicil. Recent statute as to wills of British subjects domiciled abroad. 3 Hurl. & N. 594). The requirement that a will of personal property must be executed according to the law of the testator's domicil, was carried to its logical results by the courts of this country with such rigour as to expose a duly executed will of personal property in England to invalidation ex post facto by the testator acquiring a foreign domicil. The liability to this contingency appeared from the principles laid down in Lord Wensleydale's judgment in Bremer v. Freeman, 10 Moo. Priv. C. C. 306, 357 et seq., though in that case there was no change of domicil between the execution of the will and the death. To meet the hardships incidental to this state of the law, the legislature has interposed. By 24 & 25 Vict. c. 114 (“An Act to amend the Law with respect to Wills of personal estate made by British Subjects," commonly known as Lord Kingsdown's Act), a will of personal estate made by a British subject out of the United Kingdom (whatever be the testator's domicil), is to be held well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if made according to the forms required either by the law of the place where the will was made, or by the law of the place of the testator's domicil when the will was made, or by the law of the testator's domicil of origin (s. 1); a will made by a British subject in the United Kingdom (whatever be the testator's domicil) is, as regards personal estate, to be held well executed, and is to be admitted in England or Ireland to probate, and in Scotland to confirmation, if executed according to the forms required in that part of the United Kingdom where the will is made (s. 2); and no will is to be revoked or invalidated or receive an altered construction by reason of a subsequent change of domicil by the testator (s. 3). The Act also provides (s. 4) that it shall not have the effect of invalidating any will as regards personal estate, which but for the Act would have been valid, except as such will may be revoked or altered by a subsequent testamentary disposition made valid by the Act. By the provision saving wills which would have been valid independently of the Act, a will executed according to the law of the testator's domicil at his death is good as to personal estate, though not answering any of the three alternative conditions prescribed by the first section; so that the will of a British subject (wherever domiciled) will now be admitted to probate or confirmation stables situate near to my said residence in Mews, PRECEDEnt xix. and of and in the fixtures in the same leasehold premises WILL OF LAND IN AUSTRALIA SETTLING SHARES OF SONS AND TRUSTS FOR ACCUMULATION. throughout the United Kingdom (and thus acquire the character of an authenticated testamentary instrument), if executed according to the law of the place where the will is made, or of the DAUGHTERS, WITH testator's domicil whether of origin, or at the date of the will, or at his death. By the French law a will made by a British subject in France according to the forms required by English law is valid and would be carried into execution by the French Courts, and will therefore be admitted to probate in England under the first section of the above Act as a will made according to the forms required by the law of the place where it was made, without regard to what the testator's domicil may have been (Re Lacroix, 2 P. D. 94). The Act applies to naturalized British subjects as well as British subjects by birth (Re Gally, 1 P. D. 438; Re Lacroix, ubi sup.). In Re Reid, L. R. 1 P. & D. 74, an antenuptial settlement made by a domiciled Scotchman which by the Scotch law was not revoked by his subsequent marriage, was held, by virtue of the 3rd section of the Act, to remain unrevoked, although the testator afterwards acquired an English domicil. As the probate of a will merely establishes its character as a testamentary instrument, but does not imply the legality of its dispositions (see Campbell v. Beaufoy, Johns. 320), it seems that the statute leaves the extent of the power of testamentary disposition over personal property in England to be determined by the law of the testator's domicil at his death, except in cases within the 3rd section, preventing a will from being invalidated by a subsequent change of domicil, which, it may be thought, means not merely that the will is to remain a valid instrument, but that, as to property within the United Kingdom, its operation is not to be curtailed. Reference may here be made to the 2nd section of the Naturalization Act, 1870, 33 Vict. c. 14, enabling aliens to acquire, hold, and dispose of real and personal property in the same manner in all respects as natural born British subjects. The rule requiring a will of personalty to be executed according As to wills to the law of the domicil was not applicable to a will made under under powers. a power (see 1 Jarm. Wills, 3rd ed., p. 5, and the references in note (r); Re Hallyburton, L. R. 1 P. & D. 90); but a will executed according to the law of the domicil was held to be a valid execution of a power (D'Huart v. Harkness, 34 Beav. 324). Legacy duty is not payable where the deceased had a foreign domicil (see 1 Jarm. Wills, p. 2, note (ƒ); and as to the liability to probate duty, see the latter part of the same note. As the operation of a will on real property depends on the law of As to wills |