The opinion
Mr. Justice Hebel dissents and does not concur with the conclusion reached by the majority opinion of this court in finding that William B. Schultz, deceased, was domiciled in California at the time of his death, nor with the conclusion that by reason thereof the bequest to the trustee of one half of the estate to the Addison Manual Training School for Boys and one half of the estate to the Addison Manual Training School for Girls be so reduced that the aggregate thereof shall not exceed one third of the entire estate, as required by the laws of the State of California, and that two thirds of the estate shall descend and be distributed as intestate estate in accordance with the statutory laws of California. (Section 41, Article II, Probate Act of California, amended by statute 1939, ch. 334 T.' B. 79.) The California Probate Act provided in substance that no more than one third of any estate may be bequeathed or devised to any charitable or benevolent society or corporation, or in trust for charitable uses by a testator who leaves a spouse, brother, sister, nephew, niece or descendant or ancestor surviving him, who under the will or the laws of succession would otherwise have taken the property so bequeathed or devised, and that if such devises and bequests shall' exceed one third of such estate then a pro-rata reduction shall be made so as to reduce the aggregate thereof to one third of the estate, and that all property bequeathed or devised contrary to the provisions of this law shall go to the descendants, etc., if and to the extent that they would have taken the property as aforesaid but for such devises or legacies.
Upon this subject the Supreme Court of Illinois, in the case of Fowler v. Lamson, 146 Ill. 472 , said upon the question of whether a law of one State can be enforced by a State other than the State of the lex loci, as follows: In the case of Lust v. Atchison, T. & S. F. Ry. Co., 267 Ill. App. 60 , the court held that where a statute of a State creates a new right and also provides a special remedy, such right will not be enforced in another State where the remedy is unknown. Therefore, upon the question involved, as to the enforcement of the statutory remedy afforded by the California special statute, it is my opinion that the special statute cannot be enforced in this State.
£ ... It is well settled that these special remedies having been provided for the enforcement of the individual liability of stockholders created by the laws of Kansas, they alone can be pursued to enforce that liability. (Fourth Nat. Bank v. Francklyn, 120 U. S. 747 , and cases cited in note; 3 Am. S. R 854; Thompson on Liability of stockholders, sec. 56; Cook on the Law of Stock and Stockholders, sec. 219.) The reason of this rule is manifest. The liability only exists by force of some constitutional or statutory provision, and the person incurring that liability is presumed to do so subject to its enforcement by the special provision made for that purpose, and no other. Lowery et al. v. Inman, 46 N. Y. 119 , and authorities cited.
£ 1 The amended bill in this case proceeds upon the allegation that the corporation has been dissolved, but attempts to enforce the individual liability of the defendants by a proceeding entirely different from that prescribed by the statute of Kansas, and thus deprive the defendants of the speedy and adequate remedy given them by that statute against other stockholders, if they should be held liable. There is also the further insuperable objection to this proceeding that it is an attempt to enforce the individual liability of the defendants in a jurisdiction other than that in which the corporation exists, the rule being, that when a special remedy is given creditors of a corporation against its stockholders, the liability cannot be enforced in another State. (Lowery v. Inman, supra; Christenson v. Eno, 106 N. Y. 97 ; Minnick v. Mings Iron Works Co., 25 W. Va. 184 .) The reason for this rule is forcibly illustrated by the above quoted statute of Kansas providing a remedy in case of the dissolution of a corporation, which remedy, it must be conceded, could only be enforced in the State of Kansas, where, presumably, the stockholders of the corporation generally reside.”