Succession of Guillaume Dazet Senac.-J. M. Duperu, and others, Appellants, 2 Rob. 258

Morphy, J. This appeal is from a judgment declaring-null and void the last will and testament of the late G. D. Senac, on an opposition to its homologation by his widow, on the ground of the birth of a child, the offspring of the opponent’s subsequent mar riage with the deceased. The facts of the case are, that the late G. D. Senac, a native of France, who had long resided in this country, made his olographic will in this State on the 8th of May, 1836, whereby he made several legacies, and bequeathed their freedom to two of his slaves under certain restrictions.

On the 10th of the same month, he married Marie Tourné, the opponent, of this city, and on the next day departed with her for France, where, on the 10th of April, 1837, she. brought him a child. Senac died at Bagniéres de Bigorre, on the 27th of August, 1838. The testimony shows that the deceased several times expressed to his friends his intention of passing the remainder of his life in France, and that his property here consisted of one hundred shares of the stock of the Commercial Bank, of several slaves, and some notes and accounts. Schmidt, for the legatees.

The widow having no interest in the will, cannot sue to annul it. The capacity of the testator to dispose of his property, and the validity of such dispositions, must be determined by the law of his actual domicil. Habilis vel inhabilis loco domicilii est habilis vel inhabilis in omni loco. Journal du Palais, v. 13, p. 17. Story’s Confl. of Laws, 398 — 402. The domicil of the testator was in France. By the laws of that kingdom the subsequent birth of a child does not revoke a will. Dal-loz, J^urisp. XIX Siécle, v. 11, p. 191-2.

Though the will should be, in other respects, annulled, bequests of freedom are valid under the general rule of the Roman law. Digest, 28, tit. 4, § 3. J. Seghers, for the opponent. MoRPhy, J. The legatees deny the right of the opponent to sue in her own name, or as the widow of the deceased. It is said that her son, as an heir of the deceased, has an interest to set aside this will, but that she has none. We can see no reason to doubt the capacity of the opponent to stand in judgment for her child.

By the laws of France, where she now resides, she became ipso jure the tutrix of her son on the death of her husband, and needed no letters of tutorship to act as such. But, independently of this right of suing on behalf of her child, the opponent has a personal interest in the matter, because, by these same laws, she is entitled to the enjoyment of all her child’s property until he reaches the age of eighteen years, or is emancipated. Code Nap. arts. 390, 384. On the merits, it is contended that the will of Senac didnot become void, by the birth of a child from his subsequent marriage with the opponent.

It is admitted that under art. 1698 of the Civil Code, there would be no question as to the nullity of this will, had the testator continued to reside in Louisiana ; but the argument is, that when the validity of a will is in question, reference must be had to the time of the death of the testator. That, at that time,' he was residing in France, and that by the laws of his new domicil which are to govern, the subsequent birth of a child did not invalidate his will.

It appears to us that this case presents but the single question, whether the law of Louisiana, under which this will was made, and which pronounces its nullity in case the testator have legitimate children posterior to its date, is to have its effect ? If it is, the will of Senac became absolutely void on the 10th of April, 1837, when the child was bom, as much so as if it had been expressly annulled and revoked by the testator himself. 5 Toullier, No. 313. In such a case the testator, who has not made a new will, must be considei’ed as having died intestate.

In support of the position taken by the counsel for the appellants, we have been referred to several passages of the valuable treatise of Judge Story on the Conflict of Laws, establishing generally the doctrines that a will of personal property, regularly made according to the law of a testator’s domicil, is sufficient to pass such property in every other country in which it is situated, and that the capacity of the testator is to be determined by the law of his actual domicil.

These principles are undoubtedly correct, and would be applicable, were this a testament made in France, disposing of moveable property situated here. Even then we would have to be governed, not by the general principles of international law, which on this subject are not free from doubt and uncertainty, but by our local laws which have provided for such a case. The general rule is laid down in

article 483 of the Civil Code, which provides that “ persons who reside out of the State, cannot dispose of the property they possess here, in a manner different from that prescribed by its laws.” The only exception to this rule is to be found in the 10th

article of the Code, which establishes another general rule applicable to this case. It provides that, “ the form and effect of public and private written instruments, are governed by the laws and usages of the places where they are passed and executed. But the effect of acts passed in one country to be executed in another, is regulated by the laws of the country where they are to have effect.

The exception made in the second paragraph does not hold, when a citizen of another State of the Union, or a citizen or subject of a foreign state or country, disposes, by will or testament, or by any other act causa mortis, made out of this State, of his moveable'property situated in this State, if at the time of making said will or testament, or any other act mortis causa, and at the time of his death, he resides and is domiciliated out of this State.” It is only under the conditions mentioned in this article, that our laws recognize and permit the operation of foreign laws on wills disposing of property here.

In all other cases the law of this State is to govern. In the present instance the will having been made in Louisiana, and the property of the deceased being situated here, we can see no good reason why our law should be superseded by that of France.

Article 1698 may in some measure be considered as a tacit resolutory condition, on the happening of which the will was to ‘ become void. Of this the testator must have been aware when he left his will behind him, to be carried into effect under our laws. This provision of our Code is founded on the presumption that he would not have made such a will, had he foreseen that he would thereafter have children.

If, as has been remarked, the testator did not revoke this will during the sixteen months that he survived the birth of his child, it is fair to presume that it was because he knew that by the law of Louisiana, under which it was made, it had become a nullity on the birth of such child. It has further been urged that even if the will be declared void, the bequests of freedom to the slaves Rose and Mathilda are valid, and should be carred into effect; and we have been referred to the Roman Digest, book 28, tit. 4, § 3.

It could hardly be expected of us to adopt as a rule to be followed the decision of the Em-perorAntoninus in relation to a succession, claimed by the Treasury on account of a will that had become void for the want of instituted heirs. He decided in his liberality that certain slaves emancipated by the will should be set free, notwithstanding its nullity ; but this decision was obtained from his munificence, and not on principles of strict law. Quod nullum est, nullum producit affectum. Judgment affirmed.