For the purpose of this appeal the testator whose will has been admitted to probate must be considered to be a non-resident of this State jmd domiciled in the city of Paris in the Republic of France. He' died in France where he had resided for upwards of forty years, leaving an instrument executed there with the formalities required by the laws of this State as a last will and testament, but which was nvalid under the laws of France, the place of his domicile. Fie left personal property within this State and his will was offered for probate here. The question arises as to the proof required of the execution of a will of a non-resident under sections . 2611 and 2694 of the Code of Civil Procedure to admit such a will to probate.
It seems to me that it must be conceded that the admission of a will to probate and the. grant of letters thereunder is an adjudication that the decedent djed testate and not intestate. By the judicial act of admitting a will to probate and the grant of letters testamentary . the personal property of the testator passes to his executors to be held by them and distributed- according to the terms of the will if valid by the laws of this State. Section 2611 of the Code of Civil Procedure relates directly to the probate of such instruments and the difficulty in its construction has resulted from combining in one section various independent statutes having relation to the probate of wills by the passage of the Code of Civil Procedure. It is there provided that a will of real or personal property “ executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country whére it is or was exe*632cuted, or a will of personal property executed by a person not a resident of the State, according to the laws of the testator’s residence, may be proved as prescribed in this article.” By the reviser’s note this section was a revision of chapter 118 of the Laws of 1876, and was amended “so as-to allow-: a will of personal property to be proved, which is executed according to the laws of the testator’s. residence, wherever it may have been executed.” (See Throop’s Anno. Code Civ. Proc. [1892 ed.] § 2611,. note.) Turning to chapter 118 of the Laws of 1876 it will be seen that related to two clásses of cases. First, a will made out of the StMe of New York,, and within the United States of America, the Domíñipn of Canada, or the Kingdom of Great Britain and Ireland:, wliateVer may be the domicile of the person making the same. And as to shell a will it was pi-ovided that it should as regards personal property b§ held to be well executed for the purpose of being admitted to probate in the State of Mew York, if the same was' made according to .the forms required either by the law of the place where the same w»s made or by the law .of the place where such person was domieileAl when the will was made or by the laws of the State of New York. Second, a will made within the State of Mew York, whatever may be the domicile of the person making the same at the time of making the same, or at the time of his or her death; and such a will should, as regards personal estate, be held to be. well executed, and be admitted to probate in the State of New York if the same be executed according to the forms required by the laws of this State. It will be seen that section 1 of this act applied to testamentary instruments made out of the State of Mew York and within the United States of America, the Dominion of Canada, or the Kingdom of Great Britain and Ireland. Section 2 of the act provided for a will made within the State of. Mew York and authorized its admission to probate whatever may be the domicile of the person making the same, provided that the same be executed according to the forms required by the laws of Kis State.
In the re-enactment of this statute in the Code of Civil Procedure the revisers stated that the only amendment that was proposed Wás to allow a will of personal property to be proven which is executed according to the laws of the testator’s residence wherever it may have been executed.- As the act of 1876 was confined to wills exe*633cuted in this State or in one of the States or countries enumerated in the act, it certainly was not intended by the revisers, and presumably by the Legislature that accepted the proposed provision, to substantially obliterate all of the restrictions in relation to wills executed by non-residents at the. place of their domicile when not executed within the countries specified in the act of 1876.
To ascertain just what was intended by this provision there should be read in connection with it section 2694 of the Code of Civil Procedure. According to the reviser’s notes to this section (Throop’s Anno. Code Civ. Proc. [1892 ed.] § 2694, note) it was passed as declaratory of the rule of law and inserted in accordance with the preliminary note to article 1 of title 3 of chapter 18 of the Code, which is the article in which section 2611 is contained! It is there provided that the validity and effect of a testamentary disposition of personal " property situated within the State, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the State or country of which the decedent was a resident at the time of his death. Reading these two sections together I think the intent of the Legislature was to provide that a will of real or personal property executed by a resident of this State or executed within this State should be admitted to probate when executed as prescribed by the laws of this State; that a will of personal property executed without the State and within the United States of America, the Dominion of Canada, or the Kingdom of Great Britain and Ireland as prescribed by the laws of the State or country where it is or was executed may be admitted to probate, and a will of personal property executed by a person not a resident of the State according to the law of the testator’s domicile may be admitted to probate. The 1st clause of section 2611 provides for admitting a will to probate made by a person domiciled in this State, or where the will was executed in this State. The 2d provision applies to wills executed' in other States of the Union, tiie Dominion of Canada, or the Kingdom of Great Britain and Ireland, as provided in the 1st section of the act of 1876, and the 3d provision was inserted to allow a will of personal prop-x erty to be proved which was executed according to the law of the testator’s domicile.- In view of the provisions of section 2694 it could not have been intended to admit to probate the will of a per*634son domiciled in a foreign country which, when admitted to probate could have no effect as a testamentary disposition of either real or personal property.- If the instrument is a valid will and is admitted to probate it certainly disposes of the testator’s property if the disposition of the property is not in violation of the law of this State. The decree of the surrogate is án adjudication that tiie instrument was duly executed according to law, and thus, so far as it affects personal property —• unless the disposition of the property violates some express provision of law —■ a valid disposition of the testator’s property. It would be a substantial contradiction to, admit a will to probate where the will was not executed with the formalities necessary to make it a will or to constitute it a testamentary disposition of a testator’s property.
In an application to admit an instrument purporting to he a last will and testament to probate, necessarily the first question presented is whether the deceased died testate'or intestate, and that necessarily depended upon the question as to whether the instrument propounded for probate was executed according to the law of the testator’s domicile. It is a universal principle that personal property has no situs except the domicile of its owner, and as was said by Sir Lancelot Shadwell in Price v. Dewhurst (8 Simons, 279): “ I apprehend it is now clearly established by a great variety of cases which it is not necessary to go through in detail, * * * that the rule of law is this, that where a person. dies intestate, his. personal estate is to be administered according tq the law of the country in which he was domiciled at the time of his death, whether he was a British subject or not; and the question whether lie died intestate or not must be determined' by the law of the same country.” In Desesbats v.’ Berquier (1 Binn. [Pa.] 336), in an opinion by Yeates, J., in which all of the English cases and the authorities upon the law of nations were examined, it was declared to be the settled law that “the succession to the personal estate of an intestate is to be regulated by the law of the country in which-he was a domiciled inhabitant at the time of his death,” and that the same rule prevailed with respect to last wills. In Stanley y. Bernes (3 Hag. 373) it was decided that if a testator, “ though a British subject, be domiciled abroad, he must conform jn his testamentary acts to the formalities required by the lex domicilii. *635And in De Bonnevál v. De Banneval (1 Curt. 856) it was held that the place of domicile and not the lex loci rei sites governed “ the distribution of and succession to personal property, in testacy or intestacy; ” and that the question is to be determined by the law of the country where the deceased was domiciled at his death. These cases are cited and held, to be controlling in this State by the Court of Appeals in Moultrie v. Hunt (23 N. Y. 394). If a decedent died without having executed a will or made a testamentary disposition of his property, valid by the law of his domicile, he necessarily died intestate, and if he died intestate, then there certainly is no instrument to be admitted to probate as a last will and testament, And thus, I think, the . construction given to these two sections of the Code of Civil Procedure in the prevailing opinion involves an express contradiction when it is said that an instrument may be admitted to probate as a will of personal property, and that it is not a testamentary disposition of personal property because not executed according to the law of the deceased’s domicile. If by the law of the State it is not a valid testamentary disposition of property, because not executed according to the law of the testator’s domicile, it cannot be a testamentary disposition of property for the purpose of being admitted to probate.
The question presented to the surrogate on the probate of the will was whether the will was executed with the formalities required by the laws of this State to make it a valid disposition of real or jrersonal property, and by section 2626 of the Code of Civil Procedure a decree admitting to probate a will of personal property made as prescribed in this article is conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article until it is reversed upon appeal or revoked by the surrogate. . If the will is admitted to probate, I do not see how the court can say that the will was not' executed so as to be a valid testamentary distribution of personal property within this State. ' It seems to me that the whole system prescribed by the Code of Civil Procedure for the probate of wills is opposed to this construction of the statute given by the prevailing opinion, and the will, not having been executed according to the law of the testator’s domicile, and not having been executed within this State, should not have been admitted to probate.
*636I, therefore, think the decree appealed from should be reversed and the application to probate the will denied.
Patterson, P. J., concurred.
Decree modified as provided in opinion, and as modified affirmed with costs to respondents. Settle order on notice.