still further have, occasion to observe an important principle generally applicable to personal property (except in case of conveyances and other voluntary transactions with respect to it), namely, that it has its legal situs at the legal situs, or domicil, of the owner. Marital rights in the personalty of the consort, if regarded as mutual transfers of interests in the property, are transfers by operation of law, not by the voluntary act of the parties, and, like other transfers by act of the law, such as the succession to a decedent's personalty, are to be controlled by the law of the legal situs of the owner, not by the law of his actual situs, nor by the law of the actual situs of the property."

The law of the domicil will govern the marital rights of the parties in personal property, not only because of the general principle just pointed out, but also because these rights are incidents of the marriage status, and governed therefore by the same law that regulates that status in other respects. And it should be particularly observed that the domicil whose law governs in these matters (supposing the married pair to have changed their domicil several times) is that domicil possessed by them at the time the particular marital right in question became vested. A mere contingency cannot be said to be either a transfer, or an incident of the status.

Hence, as to rights acquired by either in the personalty of the consort upon his or her death, as distributee or otherwise, the law of their domicil at the time of the death will control, not that of the domicil at the time of the acquisition of the property, nor that of the place where the death took place. Such rights do not vest until the death occurs. Indeed this is merely

one instance of the rule that the law of the last domicil of a decedent controls the succession to his personal property.

1 See ante, § 14; post, §§ 120 et seq. This applies to involuntary transfers and dealings with personalty. If the owner voluntarily deals with it, as by conveyance, it is the actual, not the legal, situs of the owner that, for the purposes of that transaction, gives the situs to the property. Post, §§ 128 et seq.

2 That the lex domicilii is the proper law governing succession, see post, §§ 139 et seq.

3 See White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 599; Steer's Succes

As to those marital rights in personalty which vest at or during marriage, such as the husband's common law right to the wife's chattels and choses in action, the law of the domicil at the time the right vests will control. If the consort in whose property the right is claimed owned it at the time of the marriage, the marital right vests immediately upon the marriage, and the law of the parties' domicil at that time (that is, the law of the husband's domicil at that time) will determine the character and extent of the rights in question."

It is sometimes said that these marital rights in property owned by the consort at the time of the marriage are to be controlled by the law of the "matrimonial domicil," which is defined to be "the country where the husband is domiciled at the time of the marriage, or in which he intends to settle immediately after the marriage."5

But it is submitted that to hold the country where the husband intends to settle (the factum not combining with the animus) to be his domicil, whether "matrimonial" or otherwise, is violative of one of the leading principles governing the acquisition of a domicil of choice. This doctrine has recently

sion, 47 La. Ann. 1551, 18 So. 503; Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Hegeman v. Fox, 31 Barb. (N. Y.) 475. See post, § 139 et seq.

4 Mason v. Homer, 105 Mass. 116; Graham v. Bank, 84 N. Y. 393, 400, 38 Am. Rep. 528; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168, 169; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180. See Ford v. Ford, 2 Mart. N. s. (La.) 574, 14 Am. Dec. 201, 203; Townes v. Durbin, 3 Met. (Ky.) 352, 77 Am. Dec. 176. The lex celebrationis of the marriage, as such, has nothing to do with the question, for the sole effect of the executed contract of marriage, standing alone, is to create the marriage relation or status. See ante, §§ 76 et seq.

5 Story, Confl. L. § 193; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, 181; Besse v. Pellochoux, 73 Ill. 285, 24 Am. Rep. 242, 246, 247-248; Ford v. Ford, 2 Mart. N. s. (La.) 574, 14 Am. Dec. 201, 203; Larquie v. Larquie, 40 La. Ann. 457, 4 So. 335, 336; Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399; Routh v. Routh, 9 Rob. (La.) 224, 41 Am. Dec. 326; Allen v. Allen, 6 Rob. (La.) 104, 39 Am. Dec. 553; Le Breton v. Nouchet, 3 Mart. (La.) 60, 5 Am. Dec. 736; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 23; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277; State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109.

been disapproved in England, where it has been adjudged that there is no such thing as a 66 matrimonial domicil." "

A somewhat similar question has arisen with respect to property acquired by either consort, while the married pair are actually in transitu from one State to another, having abandoned one domicil and not yet reached the other. It has been held in several cases, in analogy to the theory of the "matrimonial domicil," that the law of the intended domicil should govern. It will not be attempted to reconcile these cases with principle."

In general, with respect to after acquired property, the marital rights will depend upon the law of the actual domicil of the parties at the time of such acquisition, for at that time, if at all, the rights vest.

It must be constantly remembered however that these rules for the determination of the "proper law" are subject to the general exceptions discussed in the second chapter, and that the proper law will be substituted by the lex fori (the law of the

Le Mesurier v. Le Mesurier, App. Cas. 517, 11 Rep. 527 [1895]. It should be further observed that if the theory is correct that the law of the intended domicil should control the marital rights of the parties, then there must be substituted for the doctrine of the transfer of these interests by operation of law, or as an incident of the marriage status, that of a transfer by tacit or implied contract, for it is only upon that theory that the law of an intended domicil can govern. Yet Judge Story, who is one of the strongest advocates of the "matrimonial domicil," has also placed the seal of his disapproval upon the theory of any implied or tacit contract with reference to marital rights. Story, Confl. L. § 190. See Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530. And even Story admits that if the property is acquired after marriage, the marital rights are governed by the law of the actual domicil at the time of the acquisition. Story, Confl. L. § 187; State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180.

7 See Ford v. Ford, 2 Mart. N. s. (La.) 574, 14 Am. Dec. 201; State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109.

8 McLean v. Hardin, 3 Jones' Eq. (N. C.) 294, 69 Am. Dec. 740; State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109; Ford v. Ford, 2 Mart. N. s. (La.) 574, 14 Am. Dec. 201; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180; Murphy v. Murphy, 5 Mart. (La.) 83, 12 Am. Dec. 475; Hicks v. Pope, 8 La. 554, 28 Am. Dec. 142; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341.

actual situs of the property) whenever the interest or policy of the forum, or the welfare of its own citizens, demand it.9

Thus, in Smith v. McAtee, 10 upon a partition of land in Maryland, the land was sold, the proceeds in part belonging to a woman who, with her husband, resided in Illinois. By the law of Illinois the wife's personalty vested in the husband absolutely and was liable for his debts. By the law of Maryland it was the property of the wife, free from the husband's debts. A creditor of the husband attached the fund in Maryland, but it was held that the lex fori should govern, on the ground that to enforce the Illinois law would contravene the established policy of Maryland."1

§ 82. Same-Express Contract touching Marital Rights. -If there be a contract between husband and wife touching the marital rights of each in the property of the other, and such contract embraces only personalty owned at the time of the marriage, the contract, if valid by the law of the place where it is made, will govern as to the personalty owned at that time, wherever it be actually situated.1 But in such case, as to personalty thereafter acquired, the contract not embracing it, the marital rights will be determined by the same law as if there had been no contract, that is, by the law of the actual domicil at the time of the acquisition.2

If the contract embraces personalty then owned or thereafter to be acquired by the parties, and is valid where made, it will fur

9 Story, Confl. L. § 189; Le Breton v. Nouchet, 3 Mart. (La.) 60, 5 Am. Dec. 736; McLean v. Hardin, 3 Jones' Eq. (N. C.) 294, 69 Am. Dec. 740; Smith v. McAtee, 27 Md. 420, 92 Am. Dec. 641.

10 27 Md. 420, 92 Am. Dec. 641.

11 It is the more remarkable that the court should have followed the lex fori instead of the proper law, since the attaching creditor was a citizen of Maryland, while the married woman was not. The decision was based entirely upon the State's policy.

1 Subject to the great exceptions to the proper law. See Story, Confl. L. §§ 183 et seq.; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180; Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721.

2 Story, Confl. L. §§ 183, 184 et seq.; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277.

nish the rule by which their marital rights will be determined throughout their wedded life, though they subsequently remove to or acquire property in another State, where such a contract, if made there, would not be upheld.

§ 83. Rights and Duties of Parents towards Children. — The rights and duties of parents with respect to their children may be regarded as an incident of the marriage relation, or the relation of parent and child may be treated as a distinct status or condition. In either aspect the result is the same.

So far as the rights of personal control, treatment, or chastisement are concerned, these are usually considered questions of local policy or police, the extent of which must be determined and fixed in each State by its own laws, as to all persons within its borders, regardless of their legal situs or domicil.1 No State could be justly expected to permit persons within its limits to violate its police or criminal laws, because they are given a right so to act by the law of their legal situs or domicil. Comity is not to be carried so far. It is a case for the substitution of the proper law by that of the forum and actual situs of the party.2

But save in such exceptional cases, the general principle is that the law of the legal situs or domicil is the "proper law" governing the relation of parent and child, just as in other cases of status.

Thus where a mother domiciled in England had a child born in Scotland, which by the Scotch law she was bound to support (but not by the English law), the Scotch Court of Sessions refused to hold her liable therefor, on the ground that "she has the status of an English woman, and it is the law of the country of her domicil that must determine her obligations now."

Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180; Castro v. Illies, 22 Tex. 479, 73 Am. Dec. 277; Le Breton v. Miles, 8 Pai. Ch. (N. Y.) 261; Decouche v. Savetier, 3 Johns. Ch. (N. Y.) 190, 8 Am. Dec. 478; Schefferling v. Huffman, 4 Ohio St. 241, 62 Am. Dec. 281; McLeod v. Board, 30 Tex. 238, 94 Am. Dec. 301; Young v. Templeton, 4 La. Ann. 254, 50 Am. Dec. 563.

1 Woodworth v. Spring, 11 Allen (Mass.) 321; Jac. Dom. § 33. See Blackinton v. Blackinton, 141 Mass. 432, 435-436.

2 See Whart. Confl. L. §§ 166, 167. See also De Boimont v. Penniman, 10 Blatchf. 436, for other applications of the lex fori.

Macdonald v. Macdonald, 8 Bell & Murray (2d series), 331-334; Whart. Confl. L. § 168.