Lapas attēli

property, wherever situated, is governed by the law of the country of the owner's or intestate's domicil at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. The principle applies equally to cases of voluntary transfer, of intestacy and of testaments. (a)' On the other hand, it is equally settled in the law of all civilized countries, that real property, as to its tenure, mode of enjoyment, transfer, and descent, is to be regulated by the lex loci rei sitæ. (6) ? Personal property is subject to that law which governs the person of the owner.

Debts and personal contracts have no locality debita sequuntur personam debitoris. Huberus lays down this to be the common and correct opinion, though the question had been frequently agitated in the courts in his day ;(c) and Bykenshoek says the principle had become so well established that no one dared to question it; adeo recepta hodie sententia est, ut nemo ausit contra hiscere. (d) The same principle would seem to be the

(a) Stanley v. Bernes, 3 Hagg. Eccl. 373. Ferraris v. Hertford, 3 Curteis, 468. Desesbats v. Berquier, 1 Binney, 336. The construction of wills as to real property is to be given according to the lex rei site, and as to personal property according to the lex domicilü, unless it be manifest that the testator had the law of some other country in view. Story on the Conflict of Laws, secs. 465, 474. Harrison v. Nixon, 9 Peters U. S. 503. See, also, 1 Jarman on Wills, edit. Boston, 1845, ch. 1, pp. l-10, where the numerous authorities are referred to. It is also a declared principle, that although personal property is, as to the succession, controlled by the laws of the domicil, yet each state is competent to regulate within its own territory that succession in personal and real property at its pleasure. Story's Conflict of Laws, secs. 23, 447. Jones v. Marable, 6 Humph. 116.

(6) Communis et recta sententia est in rebus immobilibus servandum esse jus loci in quo bona sunt sita. Hub. tom. i. lib. 3, tit. 13, De Success. s. p. 278. In Story's Com. on the Conflict of Laws, secs. 424-428, the authorities, foreign and domestic, are numerously collected in favor of the proposition that real or immovable property is exclusively gov. erned by the territorial law of the situs. The point is too clear for discussion. But by the Revised Statutes of the state of Michigan, 1840, lands lying in Michigan may bo conveyed by the owner residing in another state or territory, or in a foreign country, according to the laws of such state or country.

(c) Prælec. part 1, lib. 3. De Success. ab Inst. Collat. tom. i. p. 278, sec. 20. Ibid. part 2, lib. 1, tit. 3. De Conflictu Legum, tom. ii. p. 542, sec. 15.

(d) Quæst. Jur. Priv. lib. 1, ch. 16. See, also, the opinion of Grotius on the point,

i Grattan v. Appleton, 3 Story C. C. 755. Leach o. Pillsbury, 15 N. Hamp. 137. Williams v. Williams, 5 Md. 467. Lawrence v. Kitteridge, 21 Conn. 577. Spraddling v. Pipkin, 15 Mis. 118. Graham v. The Public Administrator, 4 Bradf. (N. Y.) 127. Moultrie v. Hemp, 23 N. Y. 394. Parsons v. Lyman, 25 N. Y. 103.

9 Hughes v. Hughes, 14 Louis. Ann. 85.

acknowledged law in Germany and France; (e) and Vattel (f) considers the rule to be one that is dictated by the law of nations.

This principle was understood to be settled in England, in the time of Lord Hardwicke, in the cases of Pipon v. Pipon, and of

Thorne v. Watkins ; (9) and Lord Thurlow observed in the * 430 House of * Lords in the case of Bruce v. Bruce, (a) that to

hold that the lex loci rei sitoe was to govern as to personal property, when the domicilium of the intestate was in a different country, would be a gross misapplication of the jus gentium. And yet, notwithstanding all this weight of authority in favor of the sol

given at Rotterdam, October 31, 1613, on consultation, and cited at large in Henry on Foreign Law, App. 196.

(e) Voet, lib. 38, tit. 17, sec. 34. Heinecc. Opera, tom. ii. p. 972. De Testamenti Factione Jure Germ. sec. 30. Opinion of M. Target on the Duchess of Kingston's Will, i Coll. Jurid. 240. Toullier, Droit Civil Français, tom. i. No. 366. Merlin, Répertoire, de Jurisprudence, tit. Loi, secs. 6, 3. See, also, supra, p. 67, and infra, vol. iv. pp. 441, 513, as to the rule when applied to personal and when applied to real property. The general utility of this doctrine, that personal property has no situs in contemplation of law, and is attached to the person of the owner wherever he is, and governed by the law of the owner's domicil, does not fail, as Mr. Justice Story has observed, to recommend itself to all nations by its simplicity, its convenience, and its enlarged policy. But the doctrine is sometimes controlled by local law, and the case of foreiga assignments in bankruptcy is an instance. Vide supra, pp. 404–408. So, in Louisiana, delivery has been held necessary to the complete transfer of personal property, as against creditors and purchasers, though the transfer be made by the owner in his foreign domicil, where the transfer would be good without delivery. Norris v. Mumford, 4 Martin (Louis.) 20. Ramsey v. Stevenson, 5 Ibid. 23. Fisk v. Chandler, 7 Idem. 24. Olivier v. Townes, 14 Idem. 93, 97–103. These decisions have not met the approbation of some of our most distinguished civilians. Livermore's Dissertations, pp. 137–140. Story's Com. on the Conflict of Laws, sec. 385 et seq.

(f) Droit des Gens. b. 2, ch. 7, sec. 85, ch. 8, secs. 103, 110.

(g) 2 Vesey, 35. Amb. 25. See, also, the decision of Lord Mansfield before the privy council in 1762, on appeal in the case of Burn v. Cole, Ibid. 415.

(a) 2 Bos. & Pull. 229, note. The decision in the House of Lords, in the great case of Bruce v. Bruce, is considered as settling the law, both in England and Scotland, in favor of the law of the domicil in the distribution of the personal estate of intestates, and that the actual situs of the goods was of no moment. The decree of the court of sessions in Scotland was affirmed. So the very important and very litigated case of Hoy v. Lashley, which arose in the court of sessions in 1791, and was carried by appeal to the House of Lords, and which led to collateral issues and subsequent appeals, and to the most learned and able discussions, settled, among other things, the points, that the succession in personal estates of every description, wherever situated, was regulated by the law of the domicil; and that parties marrying and having their domicil in England, and then changing their domicil to Scotland, changed their rights and those of their children, and subjected them to the succession of the law of Scotland. Robertson on Personal Succession, ch. 8, sec. 1, pp. 118–150. (Law Library, vol. xii.) Brown v. Brown, on appeal, Ibid. p. 193. 4 Wilson & Shaw's Appeal Cases, 28.

idity and universality of the principle, the point was permitted to be very extensively and learnedly debated before Lord Loughborough, in the case of Bempde v. Johnstone ; (b) and he said that the question had been decided and settled, and the law clearly fixed in England, by repeated decisions in the House of Lords; and that by those decisions the law of the intestate's domicil at the time of his death carried the distribution of his personal property wherever it was situated. The law of Scotland was once different; but the court of sessions was now conformed to the English decisions. (c) He admitted, however, that if the point had been quite new and open, it would be susceptible of a great deal of argument, whether, in the case of a person dying intestate, having property in different places, and subject to different laws, the law of each place should not obtain, in the distribution of the property situated there ; and many foreign lawyers, he said, had held that proposition. Afterwards in Somerville v. Lord Somerville, (d) the rule as above settled was declared, by the master of the rolls, to apply to all cases where the fact of the domicil was not in dispute. But in the case of Curling v. Thornton, (e) Sir John Nicholl doubted whether a British natural-born subject could shift his forum originis for a foreign domicil, in complete derogation of his rights under the British law; and he said it must be at least complete and total, to make his property in England liable to distribution according to the foreign law, and the party must have declared and carried his intention into full effect. (f)

16) 3 Vesey, 198.

(c) The rule, as stated in the text, may lead, and has led, to the anomalous result, that the same person may be legitimate as to the real estate of his father, and illegitimate as to the personal. Thus, by the Scotch law, the marriage in Scotland of Scotch parents legitimates their previously born bastard issue; but it is not as yet so by the Eng. lish law. And if the father of such issue removes and dies domiciled in England, leaving real and personal estate in Scotland as well as in England, the issue being legitimate by the Scotch law and illegitimate by the English, cannot take the real or personal estate of his father by the English law, either as heir or next of kin, but he would take the real estate of his father in Scotland, according to the lex rei sitæ, and would not take the personal, because the Scotch courts would, by the comity of nations, be bound to recognize, in the distribution of the personal estate, the lex domicilii. And thus, as an English lawyer humorously observes, the same person would, by the same court, and by this paradox in the law, be deemed legitimate as to the real estate, and illegitimate as to the personal — "legitimate as to the mill, illegitimate as to the machinery — born in law. ful wedlock as to the barn, but a bastard as to the grain within it.” (d) 5 Vesey, 750.

(e) 2 Addams, 15. (5) The inference from the case is, that the English property of British subjects, resi* 431

5. The rule, as settled in England, and by the general usage of nations, as to the succession and distribution of

dent abroad, and dying there intestate, follows the course of distribution directed by the English laws. As to the general rule, that the disposition and distribution of personal property are governed by the law of the owner's domicil at the time, see Sill v. Wors. wick, 1 H. Blacks. 690; Potter v. Brown, 5 East, 130; Stanley v. Bernes, 3 Hagg. Eccl. 373; Story's Com. on the Conflict of Laws, ch. 9. In Garland v. Rowan, 2 Smedes & Marsh. (Miss.) 617.1 The general rule of the distribution of the personal estate of intestates, according to the law of the domicil of the intestate, was held to apply equally to the widow's share of the personal estate. In the case of Sill v. Worswick, Lord Loughborough observed, that it was a clear proposition of every country in the world, where law held the semblance of science, that personal property had no locality, and was subject to the law of the country where the owner had his domicil. But the general rule is subject to some qualification as to stocks and other property, which may be required to be transferred in the mode prescribed by local regulations. Story, sec. 383. Erskine, in his Institutes, b. 3, tit. 9, sec. 4. And Pothier, in his Court d'Orleans, c. 1, sec. 2, n. 23, considered that interests in public stocks, or local companies, &c., were governed by the lex loci rei sito. But they are now clearly subject, like other personal property, to the law of the domicil. Robertson on Personal Succession, pp. 84, 85, (12 Law Lib.) Jarman on Wills, vol. i. p. 2. What facts constitute a domicil of the person has been a question frequently discussed. There is no fixed or definite period of time requisite to create it. The residence to create it may be short or long, according to circumstances. It depends on the actual or presumed intention of the party. It is said in Moore v. Darrall. 4 Hagg. Eccl. 346, that domicil does not depend on residence alone, but on a consideration of all the circumstances of each case.

The domicil may be in one state, and the actual residence in another. Frost v. Dickinson, 19 Wendell, 11. But a man can have but one domicil for the purpose of succession. He cannot have more than one domicil at the same time for one and the same purpose; and every person has a domicil somewhere. A person being at a place, is primâ facie evidence that he is domiciled there ; but it may be explained, and the presumption rebutted. The place where a man carries on his established business or professional occupation, and has a home and permanent residence, is his domicil; and he has all the privileges, and is bound by all the duties, flowing therefrom. Code Civil, art. 103. Tanner v. King, 11 Louis. 175. Opinion of the judges in 5 Metcalf, 587. It is the home of the' party, the place of his principal establishment, which constitutes the domicil. The definition of a domicil, in the writings of the jurists generally, is taken from the civil law. In eodem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus si nihil avocet ; unde cum profectus est, peregrinari videtur ; quod si rediit, peregrinari jam destitit. Code lib. 10, tit. 39, 1, 7. See, also, Dig. 50, 1, 27, 1; Ibid. lib. 50, tit. 16, 1, 203. Though his family reside part of the year at another place, such place is regarded only as a temporary resi. dence, and the home domicil for business takes away the character of domicil from the other. The original domicil of the party always continues until he has fairly changed it for another, even though he has intentionally forsaken it. There must be intention

i Sherwood v. Wooster, 11 Paige, 441.

· See High Appellant, 2 Doug. (Mich.) 515. In this case, the subject of domicil is largely discussed.

: Ennis v. Smith, 14 How. U. S. 401.

personal property, has repeatedly been declared to constitute a part


and act united, to effect a change of domicil. A new domicil is not acquired by residence, unless taken up with an intention of abandoning the former domicil. Bradley v. Lowry, 1 Speer Eq. (S.C.)1. Attorney General v. Dunn, 6 Mees. & W. 511. Hallowell v. Saco, 5 Greenl. 143. Putnam v. Johnson, 10 Mass. 488. And it was held, in De Bonneval v. De Bonneval, i Curteis, 856, that where A. quitted France, in 1792, and resided in England until 1814, and then returned to France, and from that time resided occasionally in both countries, he had not, thereby, abandoned his original domicil. A dwelling place or home means some permanent abode or residence, with intention to remain, and has a more restricted meaning than domicil, as used in international law. 19 Maine, 293. The forum originis, or domicil of nativity, remains until a subsequent domicil is acquired animo et facto. Somerville v. Somerville, 5 Vesey, 750. Balfour v. Scott, cited Ibid. p. 757. In this last case, the domicil of birth had been shifted, by election and residence, to a domicil in England, which controlled the personal estate. Case of Dr. Munroe, 5 Madd. Ch. 379. Harvard College v. Gore, 5 Pick. 370. Case of James Casey, 1 Ashmead, 126.5 A woman, on marriage, takes the domicil of her husband. The husband's change of domicil changes that of his wife; and the parent also possesses the power of changing the domicil of his infant child by changing his own. Under the English settlement law, minor children take the domicil of the father; and if the mother also, being a widow, changes her domicil, her minor children change theirs also, but not if she acquires a new domicil by remarriage. Cumner v. Milton, 2 Salk. 528. Woodend v. Paulspury, 2 Lord Raym. 1473. Freetown v. Taunton, 16 Mass. 52. See, also, supra, p. 227, note, on the right of the surviving parent, whether father or mother, to transfer the domicil of the minor children, if done in good faith. If a party has two contemporary domicils, and a residence in each alternately, of equal portions of time, the rule which Lord Alvanley was inclined to adopt was, that the place where the party's business lay should be considered his domicil. Lord Thurlow, in Bruce v. Bruce, 2 Bos. & Pull. 229, note. 3 Vesey, 201, 202. 5 Ibid. 786–789. See 1 Johns. Cas. 366, note, and 4 Cowen 516, note, for a collection of authorities on this question of domicil. See, also, supra, vol. i. pp. 74–81, as to the domicil for commercial purposes, and in the purview of the law of nations. Domicil is distinguished by the various situations to which it is applied. There is a political, a civil, and a forensic domicil. There is a domicil arising from birth, and from the domestic relations, and from election. Bynk. Quæst. Jur. Priv. lib. d, ch. 16. Henry on Foreign Law, App. 181–209. Code Napoleon, Nos. 102– 111. Répertoire de Jurisprudence, art. Domicile. Toullier, Droit Civil Français, tom. i. p. 318. Story's Com. on the Conflict of Laws, ch. 3. Burge's Com. on Colonial and Foreign Laws, vol. i. ch. 2, tit. Domicie. resident and inhabitant mean the same thing. But inhabitancy and residence do not mean the same thing as domicil, when the

* State v. Hallett, 8 Ala. 159. White v. Brown, 1 Wallace Jr. 217. Horne v. Horne, 9 Ired. (N. C.) 99. Hardy v. De Leon, 5 Texas, 211. Ringgold v. Bailey, 5 Md. 186. Layne v. Pardee, 3 Swan, 232. Glover v. Glover, 18 Ala. 367. Brewer v. Linnaeus, 36 Maine, 428. Hoskins v. Matthews, 35 E. L. & Eq. 532. Brown v. Smith, 11 Ibid. 6. Hairston v. Hairston, 27 Miss. 704. Otis v. Boston, 12 Cush. 44.

6 Anderson v. Laneuville, 29 E. L. & Eq. 59.

• If the husband and wife are living, separated by the decree of a competent court, the change of the busband's domicil does not change that of the wife. Vischer v. Vischer, 12 Barb. (N. Y.) 640. Williams v. Dormer, 9 E. L. & Eq. 598.

As to domicil of minors, see Heistand v. Kuns, 8 Blackf. 345; Allen v. Thomason, 11 Humph. 536.



« iepriekšējāTurpināt »