
    Matter of the Contested Probate of the Will of Eugene G. Cruger, Deceased.
    (Surrogate’s Court, New York County,
    December, 1901.)
    Will — Testamentary capacity — Proof of foreign will of personalty, under Code C. P., § 2611 — Residence distinguished from citizenship — Bequest to a mistress.
    Where a foreign holographic will relating to personalty and without witnesses was attacked for lack of testamentary capacity in that the testator then had a progressive disease accompanied by paralysis of the speech and of the limbs, tremulousness of the hands and a gradual weakening of the powers, the surrogate considered it an important circumstance, in favor of the will, that it was intelligently constructed and that its handwriting did not exhibit much tremor or physical decay. 0
    
    Evidence deemed sufficient to show that the testator was “ not a resident of the State ” within Code C. P.,- § 2611, although- a citizen thereof, that he was a resident of Fontainebleau, France, that his will was executed “ according to the laws of the testator’s residence ”, and was therefore entitled to probate in the State of New York.
    A will making his mistress of seven years’ standing “universal legatee”, reduced as to benefit by the Civil Code of France in view of his leaving three legitimate children to one-quarter of the estate, supported as a reasonable provision for the mistress.
    Pboceedings upon the probate of a will.
    Charles E. Lydecker (J. Hampden Dougherty, William Morton Grinnell and Francis M. Appelgate of counsel), for proponent.
    Ward, Hayden & Satterlee, for general guardian, contestant.
   Thomas, S.

The paper propounded for probate as a will of personal property is in holographic form and without witnesses. It is dated at Fontainebleau, France, on May 29, 1896, and is in the French language, and purports to constitute the proponent the universal legatee ” of the decedent and to leave to her his entire estate. The decedent died at Fontainebleau on April 4, 1898,. being then about forty-two years of agé. The proponent had lived with him as a wife for about six years before his death, but was never married to him, and during'1 the whole of that time he had a wife. The contestant is the general guardian of three children by his first marriage. It is quite clear that the propounded paper does not in any way conform to the requirements of the law of this State as to its method of execution, and it can be sustained, if at all, only as a French will, executed in France by a resident of that country. By the law of France: “ A holographic will shall not be valid unless it is wholly written, dated and signed, in the hand of the testator. It is not subject to any other formality.” Civil Code of France, § 970. On the part of the proponent it is alleged that the paper in question was wholly written, signed and dated by the decedent, and the contestant. endeavored to establish that it was in all respects a forgery. On this issue I must determine in favor of the genuineness of the document. The proof is that it was handed for safekeeping by the decedent to a French notary in the fall of 1896, and that he spoke of' having made such a will to other persons. The notary was a public officer, one of whose principal duties was to' act as a custodian of papers affecting rights of property. He is not impeached, and it is not shown that he would have served his personal interests by becoming a party to a conspiracy to concoct or enforce a forged will. The evidence against the paper was mainly that of persons familiar with his handwriting, and of experts in handwriting, and testimony of a similar kind was also offered by the proponent. The expert testimony was interesting and served to direct my attention to the peculiarities of the penmanship of' the decedent and led me to a close examination of the disputed paper. After such examination and after making a comparison of' the writing in question with the other writings shown to be genuine, I am of the opinion that the paper propounded was written by the decedent. The testamentary capacity of the decedent was. also called in question. On this issue the testimony offered is-entirely incapable of being harmonized. The decedent, at some time prior to 1896, became affected with a disorder of some kind, which was progressive in its effects, and which finally ended in his death in April, 1898. Among the symptoms were a paralysis of speech, and of the limbs, and a gradual weakening in physical and mental power. Tremulousness of the hands, inducing a shaking handwriting, was also a symptom. As to this general condition the witnesses are in substantial accord, but as to whether, on April 29, 1896, the disease had so far advanced as to make the decedent incapable at that time to make an intelligent disposition of his estate, the differences are radical. The great bulk of the evidence is in favor of testamentary capacity. I am also-aided by the instrument itself, which shows intelligence in construction, and the writing of which does not exhibit much of tremor or physical decay. I decide that the decedent had sufficient testamentary capacity. F"o proof was offered on which a finding that the paper was procured fraudulently or by undue influence could be based. The fact that the chief beneficiary was the mistress of the testator might have weight under some circumstances, though not all controlling; but, .under all of the facts appearing, the paper is not at all unreasonable, and may fairly be inferred to express the wishes of the decedent. By section 2611 of the Code of Civil Procedure 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 ” by our statute. If, therefore, Mr. Crager was, at the time of making the paper in question, not a resident of this State, but a resident of Fontainebleau, in France, and continued so to be a resident of France to the time of his death, and the paper propounded was executed according to the laws of France, it must be admitted to probate here as a will of personal property. In determining these questions the terms “ resident ” and residence” as used in our statute must be used in the sense in which those words were used by our legislators and as defined by our coufts7'"As so used' a resident of a place is an inhabitant of that place who has a fixed intention to remain there. The “ residence ” must be equivalent to “ domicile,” and must include both actual residence and intention. Dupuy v. Wurtz, 53 N. Y. 556; Mitchell v. United States, 21 Wall. 450; Moorehouse v. Lord, 10 H. L. Cas. 272. It is, however, something less than or different from citizenship or nationality, and a citizen of the United States and of the State of Hew York may- well be a resident of any other country in the world. Dupuy v. Wurtz, supra. Mr. Cruger, the decedent, was bom in Florence, Italy, in 1856, his parents being American citizens who were married in Europe and who continued to reside there until they died, the father in 1866 and the mother in 1873. He was educated in France until the outbreak of the Franco-Prussian war in 1870, when he was brought to America. He received some schooling at Peekskill, in this State, and in 1872 he was appointed a cadet at the United States Haval Academy at Annapolis, as an American citizen, residing in Dutchess county, Hew York. He was discharged from the Haval Academy in 1873, and then went to Europe to join his mother. IHs mother died in that year, and he was again brought to America. He was first in Dutchess county with relatives, and subsequently came to Hew York city, where he was residing when he reached his majority, in 1877. He was for a time a clerk in his uncle’s real-estate office in this city, and for some years prior to 1880 he was an officer in the National Guard of the State of York. In 1880 he was married and went to live in the residence of his father-in-law in the city of New York. In 1881 he registered as a voter in the city of New York and voted at the election held during that year. He continued to reside in this city for several years, during which time his three children, the contestants in this proceeding, were born. In January, 1887, the marriage between him and the mother of the contestants was dissolved by a judgment of the Supreme Court of the State of New York, in an action brought by her on statutory grounds, and the custody of the infant children was awarded to her. These facts require the inference that, up to January, 1887, Mr. Cruger was legally domiciled in this State. The question is then presented whether that domicile was lost and a new domicile was acquired by his subsequent acts. After his divorce, and in March, 1887, Mr. Oruger was married for a second time in London, to a lady whose home had been in Hew York. Shortly after his second marriage he returned with his wife for a brief stay in Hew York, but shortly went with her to Europe, where they lived a more or less roving life, traveling about Europe, in a villa at Paris and in a hotel at Fontainebleau, until about 1891, when a separation was had between them. Mr. Oruger then seems to have formed his relation with the proponent, and he thereafter lived with hei until his death. For a year or more the couple appear to have traveled from place to place, living in hotels and furnished lodgings, mainly in France. In March, 1893, Mr. Cruger hired a furnished house known as The Madeleine,” at Fontainebleau, for a term ending with October of that year. After the expiration of that lease he made a trip to Africa with the proponent, returning to Fontainebleau in the spring of 1894, when he took a new lease of “ The Madeleine ” from May 15 to November 1, 1894. The winter of 1894-95 was spent elsewhere, but in May, 1895, Mr. Cruger leased a furnished house at Fontainebleau for a year from June 1, 1895. This lease seems to have been renewed from time to time; the feeble health of Mr. Cruger or some other reason seems to have induced him to refrain from traveling, and in this house he died on April 4, 1898. In these furnished houses at Fontainebleau Mr. Cruger gathered the souvenirs of his travels; he supplied himself with horses and carnages and dogs; he superintended the cultivation of his garden and amused himself with driving and with riding. His means of support always came from his uncle in Hew York who managed his estate, but he was greatly attached to France and to French methods of living, and he was very fond of his home at Fontainebleau and of its surroundings. His declarations of intent to remain at Fontainebleau for the rest of his life, and the expressions of his wish to be buried in France beside his mother, were made to so many people that I must find as a fact that he had elected to live and to die there and to abandon his American domicile. In the French law the term “ domicile,” in the fullest sense of that term as there used, means something in the nature of nationality or citizenship, and can only be jobtained-by am authorization by a decree. French Civil Code, § 13. In the absence of such decree a foreigner resident in France remains an alien for some purposes, other than political, no matter how permanent the character of his establishment or how fixed his intention of remaining. There is, however, a sort of domicile recognized and called a “ domicile da facto ” which is substantially identical with our domicile.” A person residing in France, though not a citizen and never having taken any step to become a citizen, if his residence has been with intent to make France his home and fixed abiding place, is domiciled there “ de facto,” and certain legal results follow. Among these is that after his decease the administration of his estate found in France is submitted to the tribunals of the place of his principal establishment in France, and the validity of his will, considered as to its form and manner of execution, is to be there determined. The French law does not impose any condition of nationality or residence in order that a will may be valid. In the language of the French Code, every person can dispose of his property by will.” § 967. The form of execution, permitting holographic wills without witnesses, is the same for citizens and aliens, residents and nonresidents, and the application of the French law to such wills is conditioned only upon the fact that the testator must have died in France, leaving property there. The fact of domicile seems to be important mainly for the purpose of determining the judicial forum in France which is to direct as to administration of the estate and pass upon disputed questions. It must be borne in mind that the only question before me at this time is the validity of the propounded paper as a will. Ro question of distribution of the estate of the decedent on the theory that he died either in whole or in part intestate is presented, and, since the questions which would control such distribution have no hearing upon the principal issue, they will not be discussed. The law of this State and the law of France agree in granting to the owners of property a right to transfer such property by will. In the face of a valid will, next of kin have no rights to share as distributees, under any law. By our statute, now in force, a will of personalty, executed in conformity with the law of the place of residence of the testator, is valid. Decisions of courts, based upon earlier and now obsolete statutes, cannot aid us. We may not speculate upon the wisdom of our law when confronted with a plain duty to apply it. I, therefore, determine that the propounded paper was executed by a person not a resident of the State, according to the laws of the testator’s residence,” and that it must be admitted to probate as a will of personal property. Code Civ. Pro., § 2611. It must, however, be limited in its effect to grant to the beneficiary named in it no greater rights than the law of France, to which it owes all of the force that it has, gives to it. In the language of section 2694 of the Code of Civil Procedure, the “ force and effect ” of the testamentary disposition of his personal property “ are regulated by the law of the State or country of which the decedent was a resident at the time of his death.” By the French Civil Code, “ advantages resulting from donations inter vivos or from wills cannot exceed one-half of the property of the person who has made such dispositions, if he leaves only one legitimate child at his death; one-third if he leaves two children; one-fourth if he leaves three or a greater number.” § 913. Mr. Cruger left three legitimate children, the contestants in this proceeding. The force and effect of the testamentary provision in the paper to be admitted to probate is to give to the beneficiary therein named one-fourth of the personal estate and property of which he died pos-, sessed, and no more, and the decree will so- adjudge and declare. No executor is named in the will, and the question as to who is entitled to administration must be determined on an independent application. Settle findings and decree on notice.

Decreed accordingly.  