PART III.

SITUS OF STATUS.

1.

§ 68. Preliminary — Situs of Status follows the Situs of the Person. - The attributes and qualities attached to a person by operation of law, regardless of his own wishes, constitute his status in law. As well defined in a leading English case: "The status of an individual, used in a legal sense, is the legal relation in which that individual stands to the rest of the community." 2

These legal relations may be various. One who is under age does not occupy the same relation to the rest of the community as one who is an adult: the relations of a single man differ from those of one who is married; one who is competent to transact business occupies a different relation from one who is not; a legitimate or adopted child from one who is not; a ward from one who is not under guardianship; a fiduciary from one who is acting for himself, etc. All these and others that need not be enumerated are instances of status.

It is natural and proper that these personal attributes or qualities, grouped under the generic term status, should follow the person to whom they are attached, and should in the main be regulated and governed by the same law that governs him. Indeed, for the most part, it is through these qualities and attributes that a particular law can be said to govern a person at all. The law which governs the person is in general the law of his situs. Hence the law governing the status of the person is

1 Niboyet v. Niboyet, 4 P. D. 11.

↑ See also Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420, 421; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A, 82, 87, 53 Am. St. Rep. 165.

the law of his situs. The law of the person's situs then is "the proper law" controlling the status.

8

But we have seen in a preceding chapter that when a "proper law" comes to be enforced in another State, there are certain circumstances, such as the consequent violation of the policy of the forum or the perpetration of injustice upon its people, that may lead the courts of the forum to substitute the lex fori in a given case in the place of the proper law. This is exemplified in some whole groups of status, as in the case of fiduciaries, where the application of the lex fori is the rule rather than the exception; and sometimes in other cases of status where the exceptional circumstances arise.

4

But when we say that "the proper law" to determine status is the law of the person's situs, we must bear in mind that the person's situs may be twofold. He may have an actual situs or he may have a distinct legal situs or domicil; that is, his actual situs may be recognized for one purpose, and his legal situs for another, and the two need not coincide.5

We have also seen that the actual situs of a person is looked to in those matters which are the result of the person's activity and voluntary efforts, for in respect to such matters the recognition of the sovereignty of the State wherein they arise demands that its law should govern them, and to the operation of that law the party has voluntarily and deliberately submitted himself. On the other hand, if the rights or liabilities in dispute have been conferred upon the party, not by his own voluntary act, but as a result of the operation of law, if they are dependent upon the law of the person's situs at all, it will in general be the legal, not the actual, situs of the person, that will furnish the applicatory law. We shall hereafter have occasion to apply these principles more than once; they are at the foundation of many of the problems that present themselves.

With respect to the particular instance, now under consideration, of the application of the law of the person's situs, namely, the status of the individual, it may be said that it belongs in the

8 Chapter II.

6 See ante, § 18.

7 See ante, §§ 17, 18

Post, Chapter IX.

• See ante, §§ 17, 18.

main to the second class of cases above mentioned, that is, matters arising by operation of law without the active intervention of the party. Hence, the general rule of private international law is that questions of status are to be determined by the law of the legal situs or domicil (lex domicilii) of the party whose status is in dispute.

8

But this is not universally true, and under some circumstances "the "" proper law to determine a status may be the law of the person's actual situs, while in other cases the lex fori may be substituted for the proper law altogether.

The status may be considered under four main groups, to each of which one or more chapters will be devoted. These are: (1) Personal capacity; (2) The marriage status; (3) The status of legitimacy and adoption; and (4) The status of fiduciaries.

Lamar v. Micou, 112 U. S. 452; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321; Watkins v. Watkins, 135 Mass. 83, 84; Adams v. Adams, 154 Mass. 290; Kinney v. Com., 30 Gratt. (Va.) 858; Miller v. Campbell, 140 N. Y. 457, 460, 35 N. E. 651; Miller ». Miller, 91 N. Y. 315; Moultrie v. Hunt, 23 N. Y. 394, 403-404; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 893; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac. 915; Gray v. Holmes, 57 Kan. 217, 33 L. R. A. 207, 45 Pac. 596; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508; Jones v. Jones, 67 Miss. 195, 6 So. 712; Gregory v. Gregory, 78 Me. 187, 57 Am. Rep. 792; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Birtwhistle v. Vardill, 7 Cl. & F. 895; Skottowe v. Young, L. R. 11 Eq. 474; Price v. Dewhurst, 8 Sim. 279.

9 Post, §§ 72, 73.

CHAPTER V.

STATUS OF PERSONAL CAPACITY.

§ 69. Capacity in General·

Several Sorts of Capacity.

In general, the capacity or incapacity of a person to take part in a particular transaction is not an active but a passive element of the transaction, one imposed by law, and independent of the will of the parties.

Theoretically therefore, upon principles just examined, the proper law governing the capacity or incapacity of the person is the law of the person's legal situs or domicil (lex domicilii), not the law of his actual situs. And in general, as we shall see, this is the rule.1

But when the matter with respect to which the party's capacity is questioned is the result of a voluntary and deliberate act on the part of the person, for example, the making of a contract in a particular State (other than his domicil), a serious question arises whether his capacity to enter into such contract is to be governed by the law of his legal situs (lex domicilii) or by the law of his actual situs (the place where the contract is entered into). The point, being one upon which the courts are much confused, will be discussed hereafter."

As illustrating this distinction, in respect to capacity, between the active participation of a party in a given transaction and such participation as is imposed upon him by the law, it will not be amiss to quote the language of a leading Massachusetts decision:

"The capacity or qualification to inherit or succeed to property, which is an incident of the status or condition, requiring no action to give it effect, is to be distinguished from the 2 Post, §§ 72, 73.

1 Post, §§ 70, 71 et seq.

Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321, Gray, J.

capacity or competency to enter into contracts that confer rights upon others. A capacity to take and to have differs from a capacity to do and contract; in short, a capacity of holding, from a capacity to act."

It will be seen that when the actual situs and the legal situs (or domicil) of the party coincide, that is, when the act or matter in question arises in the domicil, the lex domicilii will, under all circumstances, be the proper law to determine the party's capacity, no matter where the question may arise. It is true that the proper law may be substituted by the lex fori, but only in the exceptional cases heretofore discussed.*

If the act is a voluntary one (e. g. making a contract) performed in a third State, the question arising in a State other than the party's domicil, the courts of such State will usually hold that the law of the place where the contract is entered into, or other act is done, that is, the law of the actual situs of the person at that time, will govern his capacity to do the act.5

But if, though the act be voluntary and performed in a third State, the question is raised in the party's domicil with respect to his capacity or incapacity to do the act, there is great difference of opinion, or at least apparent difference of opinion, as to the law which should govern."

The status of personal capacity is to be examined, according to the character of the transaction, in different aspects. The primary distinction is that already noted between cases of involuntary transactions (if the expression may be used) and those which are the result of voluntary action by the party. We will consider two instances of capacity under each of these heads.

The first instance of capacity under the head of involuntary transactions is that of the capacity to make a will and to be a beneficiary thereunder. At first glance, the making of a will would seem to be a voluntary act of the testator, but a moment's reflection will show that though the actual writing of a will is a

4 Chapter II.

5 Post, §§ 72, 73.

• Post, §§ 72, 73. The discrepancy is due for the most part to the different conceptions of the various courts as to the importance to be attached to the policy of the forum.