. Sullivant, 10 Wheaton's U. S. Supr. Ct. Rep., 202; United States v. Crosby, 7 Cranch U. S. Supr. Ct. Rep., 115; Kerr v. Moon, 9 Wheaton's U. S. Supr. Ct. Rep., 565; Carmichael v. Elmendorf, 4 Bibb (Kentucky) Rep., 484; Cornelison v. Browning, 10 B. Munroe (Kentucky) Rep., 428. But letters are not necessary in the latter state, unless the execution of the power conferred by the will depends upon them. As to real property not assets, the probate is only authenticated evidence, and not the foundation of the executor's title. Crusoe v. Butler, 36 Mississippi, (7 George,) Rep., 150. Construction or interpretation of will. 596. The interpretation of a will, whether of movables or immovables, depends upon the law of the place where it was made, unless a different intent appears on the face of the instrument, either from its being made in a foreign language, or from other circumstances. The rule, as generally laid down, refers to the law of the domicil of the testator for the interpretation of his will. Parsons v. Lyman, 4 Bradford's Surrogate (New York) Rep., 268; Anstruther v. Chalmer, 2 Simon's Rep., 1; Yates v. Thomson, 3 Clark & Finnelly's Rep., 544; Isham v. Gibbons, 1 Bradford's Surrogate (New York) Rep., 69; Demangeat in notes to Felix, Droit Intern. Privé, vol. 1, p. 130, note b. On this point the following rules may be extracted from the principles discussed and laid down by Story: A will of movables must be interpreted according to the law of the testator's domicil at the time of the actual making of the will. Story, Confl. of L., § 474, a, f. The question whether or not a testator intended to devise real estate or immovables by his will, or as to what is included in the words “real estate," "immovables," or the like, must be determined by the same law. Ib., § 479, a. So, also, of the interpretation to be put upon the words of description of a person or a class of persons mentioned by a testator. Ib., § 479 e. But it seems a more reasonable rule, and one in harmony with the principles embodied in the preceding Articles, to make the interpretation of the language dependent upon the law of the place where such language was used, rather than on that of the testator's domicil, which may be another place. 38 TITLE XXVI. OBLIGATIONS. CHAPTER XLV. Obligations in general. XLVII. Obligations imposed by law. CHAPTER XLV. OBLIGATIONS IN GENERAL. ARTICLE 597. "Obligation" defined. "Obligation" defined. 597. The term "obligation," as used in this Code, means a legal duty by which a person is bound to do or not to do a certain thing. Civil Code, reported for New York, § 670. Obligation, how created. 598. An obligation arises either from, 1. The contract of the parties; or, 2. The operation of law. Civil Code, reported for New York, § 671. When an obligation accrues. 599. The time when an obligation accrues is determined by the law of the place where it arises. Gassaway v. Hopkins, 1 Head (Tennessee) Rep., 583. Certain contracts excepted. 600. The provisions of this Title have no application to marriage, nor to contracts relating to immovables,' in so far as they relate thereto. It has, however, been held that a contract made and to be performed in S., for the discharge of a debt secured by a mortgage on an immovable in D., is governed as to its interpretation, and the appropriation of payments made under it, by the law of the place of the contract. "The mere fact of the money having been advanced on a mortgage in a foreign country, does not render it requisite that the contract should be governed by the law of that country in which the mortgaged land is situate." Campbell v. Dent, 2 Moore's Privy Council Rep., 292, 307, 308; Westlake Private Intern. Law, § 229. CHAPTER XLVI. CONTRACTS. SECTION I. Law of place. II. Place of making contract. III. Formalities. SECTION I. LAW OF PLACE. ARTICLE 601. Contracts made and performed in same nation. tions. 603. Law governing interpretation of contract. 606. Mode of charging parties to negotiable instru- Contracts made and performed in same nation. 601. A contract made and agreed expressly or tacitly,' to be wholly performed within the jurisdiction of the same nation, is governed by the law of that nation. 1 Story, Confl. of L., § 280. This rule of municipal law requires to be mentioned as a rule of international law, not only because the contracting parties may be foreigners, but because the effect of such a contract even when made between members of the nation is frequently drawn in question abroad, in respect to the rights of foreigners. Benners v. Clemens, 8 Pennsylvania State Rep., 24. Contracts made and performed in different nations. 602. Subject to articles 604 and 605, a contract made within the jurisdiction of one nation, and agreed expressly or tacitly to be performed either wholly or in part within the jurisdiction of another, is governed as to its validity' by the law of the place where it is made;' and as to its interpretation by the law actually or presumptively intended by the parties for that purpose; as provided in the next article. The expression "existence" of a contract has been sometimes recommended in preference to the terms validity" or "legality," for the reason that an invalid or unlawful contract is "no contract at all." (Coppocks . Brower, 4 Meeson & Wellesby's Rep., 368.) "It must be a legal contract or it is nothing." Washburn ». Franklin, 28 Barbour (New York) Rep., 28. So a fraudulent transaction as between the parties "in contemplation of law. . . never had any existence at all." Bottomley v. United States, 1 Story U. S. Circ. Ct. Rep., 147. This reasoning, however, does not appear to be entirely satisfactory; for in ordinary language an agreement between parties is a contract in conscience, though not a contract in law. ance. Many cases might be cited as holding in general terms that the validity or existence of a contract depends on the law of the place of performBut no case has been found holding, for instance, that the contract of two infants of the age of 15 years, made in New York, to be wholly performed in a country where at that age they would be consid ered adults, is a valid contract. The main exception to this principle is found in the cases on usury, which lay down the rule that the law of the place of performance is to govern; so that, if payment is to be made in another country, the rate prescribed by the law of either country may be stipulated for, even when the law of the place of making the contract prescribes a lower rate than that allowed in the place of payment. Andrews v. Pond, 13 Peters' (U. S. Supreme Ct.) Rep., 65; Pecks v. Mayo, 14 Vermont Rep., 38; Cope v. Allen, 53 Barbour (New York) Rep., 350; 2 Kent's Commentaries, 461; 2 Parsons on Contracts, 585, note n; Story, Confl. of L., § 296; Savigny and Felix, as cited by Westlake, Private Intern. Law, § 205. When the rate allowed by the place of making the contract is higher than at the place of performance this question does not arise. Such a contract at the rate allowed by either law is, of course, valid. Depau v. Humphreys, 8 Martin, Louisiana, (N. S.) 1; 2 Kent's Commentaries, 461, note b; Balme v. Wombough, 38 Barbour (New York) Rep., 352; Richards v. Glove Bank, 12 Wisconsin Rep., 692; Vliet v. Camp, 13 Id., 198; Fisher v. Otis, 3 Chandler, (Wisconsin) Rep., 83. The point decided in the case of The Commonwealth of Kentucky v. Bassford, 6 Hill (New York) Rep., 438, was that a contract made and to be performed beyond the State of New York in relation to a foreign lottery, if lawful where made, will be enforced in New York, though if made in New York it would be unlawful. Thatcher v. Morris, 11 New York Rep., 438. The dictum of Lord MANSFIELD, in Robinson v. Bland, 2 Burrows Rep., 1077, evidently has reference to the cases provided for in Article 604. So the validity of a voluntary assignment of movables in trust is governed by the law of the place of its origin. Speed v. May, 5 Harris (Pennsylvania) Rep., 91; Law v. Mills, 6 Id., 185; but some exceptions have been made, 6 American Law Reg., (N. S.,) 522. It is not enough that the parties have in view a reference to the law of another State in the formation of their contract; for, if that were sufficient the statute of usury would in every case at the option of the parties become a dead letter. The rule is that the parties must have a view to the laws of another State in the execution of the contract, and then undoubtedly the contract is to be governed by such foreign law. Kent, J. Van Schaick v. Edwards, 2 Johnson's Cases, (New York,) 367. This familiar and fundamental rule is stated by most authorities as a consequence of the independent sovereignty of States, but it has been well expounded in a recent case with reference to the principle which is also essential to it; that, men ought to be safe from civil loss and criminal liability if they conform to the laws of the place where their acts are done. An act to be punishable as an offense must be a crime where it is performed. A person who is about to enter into a contract ought to have an opportunity to take legal advice. This privilege he would be in a great measure deprived of unless he can apply to members of the legal profession in the place where the contract is to be made, and they would naturally instruct him in that law with which they are familiar. Koster v. Meritt, 32 Connecticut Rep., 246. Law governing interpretation of contract. 603. The law intended by the parties to govern the interpretation of any stipulation of their contract is deemed to be: 1. The law of any nation named by them for that purpose, as a part of their contract; or,' 2. If no such law is so named, the law of the place where such stipulation is agreed to be wholly performed; or,' 3. If no such law or place of performance is specified, the law of the place of making their contract;" but in this case a contrary intention may be shown." Where there are several stipulations to be performed in several places, the law of the place of performance of one does not govern as to anther. Pomeroy v. Ainsworth, 22 Barbour (New York) Rep., 128. It seems that English subjects on their marriage may stipulate that their marriage rights shall be regulated by the law of a foreign country; and the courts of England will enforce such a contract. Este v. Smith, 23 Law Journ. Chanc., 705. |