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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; (a) and Lord Thurlow observed

in the house of lords in the case of Bruce v. Bruce, (b) *430 that to hold that the lex loci rei sita 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 solidity 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; (c) 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 session was now conformed to the English decisions. (d) He

(a) 2 Vesey, 35. Amb. Rep. 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.

(b) 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 to 150, (Law Library, vol. xii.) Brown v. Brown, on appeal, ib. p. 193. 4 Wilson & Shaw's Appeal Cases, 28.

(c) 3 Vesey, 198.

(d) 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 English 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 per

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, (a) 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, (b) 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. (c)

sonal 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 lawful wedlock as to the barn, but a bastard as to the grain within it."

(a) 5 Vesey, 750.

(b) 2 Addams's Rep. 15.

(c) The inference from the case is, that the English property of British subjects, resident 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. Worswick, 1 H. Blacks. Rep. 690. Potter v. Brown, 5 East's Rep. 130. Stanley v. Bernes, 3 Hagg. Eccl. Rep. 373. Story's Com. on the Conflict of Laws, ch. 9. In Garland v. Rowan, 2 Smedes & Marshall's Miss. R. 617. 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

1 Sherwood v. Wooster, 11 Paige Rep. 441.

5. The rule, as settled in England, and by the gen- 431 eral usage of nations, as to the succession and dis

sec. 4.

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, 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 sitæ. 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. Rep. 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. 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 prima 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. Rep. 175. Opinion of the judges in 5 Metcalf, R. 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. Ib. lib. 50, tit. 16, 203. Though his family reside part of the year at another place, such place is regarded only as a temporary residence, 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 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's S. C. Eq. Rep. 1. Attorney-General v. Dunn, 6 Meeson & W. 511. Hallowell v. Saco, 5 Greenleaf, 143. Putnam v. Johnson, 10 Mass. R. 488. And it was held, in De Bonneval v. De Bonneval, 1 Curteis, 856, that where A. quitted France, in 1792, and resided in England until 1814, and then returned to France, and from

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

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

8 State v. Hallett, 8 Ala. R. 159. White v. Brown, 1 Wallace, Jr. R. 217. Horne v. Horne, 9 Iredell, 99. Hardy v. DeLeon, 5 Tex. 211. Ringgold v. Bailey, 5 Md. 186. Layne v. Pardee, 3 Swan, 232. Glover v. Glover, 18 Ala. 367. Brewer v. Linnaeus, 36 Me. 428. Hoskins v. Matthews, 35 Eng. L. & Eq. 532. Brown v. Smith, 11 ib. 6. Hairston v. Hairston, 27 Miss. 704.

tribution of personal property has repeatedly been declared to constitute a part of the municipal jurisprudence of this

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 Rep. 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. Rep. 379. Harvard College v. Gore, 5 Pick. Rep. 370. Case of James Casey, 1 Ashmead's Rep. 126.1 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.2 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. Rep. 528. Woodend v. Paulspury, 2 Lord Raym. 1473. Freetown v. Taunton, 16 Mass. Rep. 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's Rep. 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 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. 1, 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. Domicile. A resident and inhabitant mean the same thing. But inhabitancy and residence do not mean the same thing as domicil, when the latter is applied to successions to personal estates; but they mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence. Roosevelt v. Kellogg, 20 Johns. Rep. 208. Ch. Walworth, 8 Wendell's Rep. 140. See also 4 Wendell, 603. Residence, combined with intention, constitutes a domicil. Whether the residence be long or short is immaterial, provided the intention of resi

1 Anderson v. Laneuville, 29 Eng. L. & Eq. 59.

2 If the husband and wife are living, separated by the decree of a competent court, the change of the husband's domicil does not change that of the wife. Vischer v. Vischer, 12 Barb. R. 640. Williams v. Dormer, 9 Eng. L. & Eq. 598.

As to domicil of minors, see Hiestand v. Kuns, 8 Blackford, R. 345. Allen v. Thomason, 11 Humph. 536.

country. (a) The difficulty has been not in the rule itself, but in the application and execution of it. In Topham v. Chapman, (b) it was said, that though the distribution was to be according to the laws of the country of the domicil of the intestate, yet that his debts in a foreign country must be collected and paid according to the law of that country. Administration must be granted where the debts were; for an administrator has no power beyond the jurisdiction in which he received his letters of administration; and the home creditors must first be paid before the administrator could send the surplus fund to the country of the proper domicil of the intestate. (c) Much dis

dence is wanting in the one case and exists in the other.1 Code Napoleon, art. 103. Toullier, vol. i. 323, art. 372. Hennen v. Hennen, 12 Louis. Rep. 190. Guier v. O'Daniel, 1 Binney, 349, note.

(a) Dixon v. Ramsay, 3 Cranch's Rep. 319. United States v. Crosby, 7 ibid. 115. Blane v. Drummond, 1 Brockenbrough's Rep. 62. Kerr v. Moon, 9 Wheaton, 565. Desesbats v. Berquier, 1 Binney's Rep. 336. Decouche v. Savetier, 3 Johns. Ch. Rep. 210. Holmes v. Remsen, 4 ibid. 469, 470. Dawes v. Boylston, 9 Mass. Rep. 337. Harvey v. Richards, 1 Mason's Rep. 408. Crofton v. Ilsley, 4 Greenleaf's Rep. 134. Stent v. M'Leod, 2 M'Cord's S. C. Ch. Rep. 354. Story's Com. on the Conflict of Laws, ch. 9, pp. 391-393, 402–411. Leake v. Gilchrist, 2 Dev. N. C. Rep. 73.

(b) 1 Const. Rep. S. C. 292.

(c) The general rule in England and in this country is, that letters testamentary, or of administration, granted abroad, give no authority to sue or be sued in another jurisdiction, though they may be sufficient ground for new probate authority. Tourton v. Flower, 3 P. Wms. 369. Lee v. Bank of England, 8 Vesey, 44. Dixon v. Ramsay, 3 Cranch's Rep. 319. Doe v. McFarland, 9 ibid. 151. Pond v. Makepeace, 2 Metcalf's Rep. 114. Sabin v. Gilman, 1 N. H. Rep. 193. Goodwin v. Jones, 3 Mass. Rep. 514. Riley v. Riley, 3 Day's Rep. 74. Morrell v. Dickey, 1 Johns. Ch. Rep. 153. Dangerfield v. Thurston, 20 Martin's Louis. Rep. 232. Kerr v. Moon, 9 Wheaton, 565. Armstrong v. Lear, 12 ibid. 169. Story's Com. on the Conflict of Laws, § 513. Vaughan v. Northup, 15 Peters's U. S. Rep. 1. In N. Carolina, it is now held that probate of a will in another state and duly authenticated, supersedes the necessity of a new probate in that state. Lancaster v. McBryde, 5 Iredell, 421. The administration on a foreigner's estate must be taken out where he died, though

1 The subject of domicil is much discussed by Mr. Justice Paige, in Crawford v. Wilson, 4 Barb. S. C. Rep. 504, and the general conclusions of the author's note, supra, affirmed. See also Shelton v. Tiffin, 6 How. U. S. 163. A man may obtain a new domicil in a country where he is only a lodger, and not a housekeeper, and without repudiating his nationality. Whicker v. Hume, 5 Eng. L. & Eq. 52. See also Bartlett v. Mayor, &c.,

5 Sandf. 44.

2 In the case of The Boston, Bl. & How. 309, Mr. Justice Betts holds that the commonlaw. disability of foreign administrators is essentially technical and formal, and does not apply to proceedings in rem in admiralty.

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