in other States, as if they were in reality lineal descendants of the adopter.18

The provisions of a deed of conveyance of land will be in general governed by the lex situs of the land, not only with respect to their validity and effect, as has been already shown, but also with respect to the interpretation to be given ambiguous legal phrases used therein, such as "heirs; ""children" (as whether including illegitimate or legitimate children); "brothers" (as whether or not including those of the half-blood); whether or not a provision for a wife is to be deemed intended in lieu of her dower; whether a limitation to one for life, with remainder to his heirs, vests an inheritance in the ancestor, etc. Where the legal effect of such provisions in a deed varies in different States the lex situs of the land (not the lex loci contractus), it is believed, will control; for in the construction of a deed to land, legal terms are given their strict legal interpretation, in the absence of plain evidence of a contrary intent. They constitute, as it were, rules of property, muniments of title. It may be doubted, however, whether the same rule will necessarily control the interpretation of ambiguous phrases in a deed, when the phrases in question have no particular legal signification in connection with transfers of land. In regard to such matters the actual, not the legal, meaning of the grantor's words will be sought, in accordance with the prin

14

18 Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 207; Keegan v. Geraghty, 101 Ill. 26; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628. It would seem to be otherwise where the recognition of the foreign status might result in injustice to third persons, citizens of the forum, as where the adopted child claims to inherit, because of the adoption, from collateral kindred of the adopting parent, unless the statutes of the situs provide for such a case. Keegan v. Geraghty, 101 Ill. 26; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628. See Loring v. Thorndike, 5 Allen (Mass.), 257.

14 Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210; Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648; Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354; Jennings v. Jennings, 21 Ohio St. 56; Richardson v. De Giverville, 107 Mo. 422; 17 S. W. 974, 977; Baxter v. Willey, 9 Vt. 276, 31 Am. Dec. 623.

ciples whereby is determined the law governing the interpretation of ordinary contracts, hereafter to be noted. 15

But in the case of a devise, the courts are more prone to abide by the actual (as opposed to the legal or constructive) intent of the testator, in matters depending merely upon his will. The law which he most probably had in mind when he used the words (generally the lex domicilii of the testator), it is believed, will determine the testator's meaning. 1

16

Whether a valid trust in lands is created by the provisions of a deed or will, whether or not a trust results by implication of law, whether or not a conveyance absolute on its face shall be deemed a mortgage, and other questions of this character, are to be governed by the lex situs. 17

Another point that should be observed in this connection arises in regard to the effect to be given to covenants contained in a deed conveying lands, where the deed is executed and the grantor resides in one State, and the land is situated in another. In the solution of this question, it must first be observed that although a covenant is contained in a deed of conveyance it is itself in general only an executory contract, and for most purposes it is to be governed by the law controlling executory contracts. But if it be a covenant running with the land, especially if it be a covenant of title, it is the better opinion that the effect of it must be determined by the lex situs in all cases where its breach imposes a liability or confers a right upon the party holding the title to the land. A covenant of title follows the title and should therefore be governed by the same law, though the liability be sought to be imposed elsewhere.18

15 Post, § 186. See Mullen v. Reed, 64 Conn. 240, 29 Atl. 478. 16 Post, § 145; Story, Confil. L. §§ 479 h, 479 m. There is authority

however in favor of the lex situs of the land in such cases. See Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210. But see Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.

17 Hawley v. James, 7 Pai. Ch. (N. Y.) 213, 32 Am. Dec. 623; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413; Baxter v. Willey, 9 Vt. 276, 31 Am. Dec. 623; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88.

18 Post, § 185; Dickinson v. Hoomes, 8 Gratt. (Va.) 353, 410; Succession of Cassidy, 40 La. Ann. 827, 5 So. 292; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650. But see Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648, which appears not to have been very carefully considered.

So, according to the better opinion, the right of a creditor to charge in equity a married woman's equitable separate estate in lands (apart from charging her personally) is to be determined by the lex situs of the land, regardless of the locality of the debt. Such a claim on the part of the creditor is practically the assertion of a lien, created as to the wife in invitam; and the effect of a lien upon land, as well as the capacity to create such a lien, since it affects the title to the land, is to be governed by the lex situs.19

So also the marital rights of the husband or wife in the lands of the consort, such as dower or curtesy under the common law system, community rights under the civil law, or other rights of a similar nature created by the statutes of particular states, will be regulated by the lex situs of the land in question, and not by the law of the parties' domicil, nor by that of the place where the marriage was contracted.20 And the effect of a divorce of the parties upon their marital rights in the lands of the consort will be governed by the same law, regardless of the law of the place of divorce," although the validity of the divorce itself will be determined upon entirely different principles.2

22

§ 13. Meaning of “Immovable Property" in Private International Law. In the previous sections the term "immovable property" has been used as synonymous with "real property," and for the most part they may be used interchangeably. In

19 Bank v. Williams, 46 Miss. 618, 12 Am. Rep. 319; Wicks v. Dawson, 42 W. Va. 43, 24 S. E. 587; La Selle v. Woolery, 14 Wash. 70, 44 Pac. 115, 32 L. R. A. 75; Johnston v. Gawtry, 11 Mo. App. 322; Cochran v. Benton, 126 Ind. 58, 25 N. E. 870; Swank v. Hufnagle, 111 Ind. 453, 12 N. E. 303. But see Story, Confl. L. §§ 266, 267, 268; Spearman v. Ward, 114 Penn. St. 634, 8 Atl. 430. These authorities regard the charge upon the land as a part of the married woman's obligation, and governed by the lex solutionis of her

contract.

20 Lamar v. Scott, 3 Strob. L. (S. C.) 562; Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168; Richardson v. DeGiverville, 107 Mo. 422, 17 S. W. 974, 977.

21 Barber v. Root, 10 Mass. 260; Ross v. Ross, 129 Mass. 243, 248, 37 Am. Rep. 321; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; McGill v. Deming, 44 Ohio St. 645, 11 N. E. 118, 123; Hilbish v. Hattel, 145 Ind. 59, 33 L. R. A. 783, 787.

22 See post, §§ 89 et seq.

0

deed it may be postulated that all such property as at common law was real estate is to be classed as immovable property.1 But the reverse of this is not always true. It is the quality of immovability which international law looks to. Thus, terms for years or leasehold estates constitute immovable property, and yet at common law they are to be deemed personalty. From the standpoint of international law, these interests, according to the better opinion, are to be classed as immovables, to be regulated by the lex situs of the land. On the other hand, property may be movable (following the owner), though considered in the State where it is situated as real property for some purposes.❜

In any event, it is universally admitted that each State may impress upon all property within its limits whatsoever character it sees fit, and that character will attach to it everywhere, as long as the property remains within that jurisdiction. The lex situs will determine what is or is not to be considered real or immovable property so as to possess a locality of its own. But if personalty has impressed upon it by the law of its actual situs the character of real estate, as was sometimes the case in Southern States, prior to the war, with respect to slaves, and such property is afterwards removed to another State by whose law it is to be regarded as personalty, the latter character is deemed to have been imposed upon it from the time of the removal."

1 Story, Confi. L. § 447.

2 Dicey, Confl. L. 72; Whart. Confl. L. §§ 286, 287; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 58, 59, 60. But see Despard v. Churchill, 53 N. Y. 192.

* Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 56, 61; McCollum v. Smith, Meigs (Tenn.), 342, 33 Am. Dec. 147, 148. In the first case, a testator domiciled in Indiana owned slaves and other property in Ken

What low? tucky. The Kentucky law declared slaves descendible to the heirs like land,

but the court held the will to be governed by Indiana law (lex domicilii).

♦ Chapınan v. Robertson, 6 Pai. Ch. (N. Y.) 627, 630, 31 Am. Dec. 264; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718; Lamar v. Scott, 3 Strob. L. (S. C.) 562; Guillander v. Howell, 35 N. Y. 657, 663; McCollum v. Smith, Meigs (Tenn.), 342, 33 Am. Dec. 147, 148; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168, 169. See Union Bank v. Hartwell, 84 Ala. 379, 4 So. 156, 157; Story, Confl. L. § 447.

5 Minor v.

Cardwell, 37 Mo. 350, 90 Am. Dec. 390. The rents and profits

If the owner of land directs his lands to be sold and converted into personalty, the question whether the principle of equitable conversion will apply so as to convert it instanter into personalty, or whether it shall remain land, will depend upon the lex situs of the land." On the other hand, should a testator, domiciled in one State, by his will direct personalty to be invested in land, so that an equitable conversion into land takes place, the essential validity of the trusts or provisions of the will should be controlled, not by the law of the testator's domicil (as if it were a will of personalty 7), but by the lex situs of the land actually purchased under the directions of the will." But in the latter case, the question whether in the first instance there is an equitable conversion of the money into land must be decided in accordance with the law of the testator's domicil, for that is the law by which his will is to be interpreted. Hence also the question whether or not the testator had the legal capacity to make the will is to be determined by the law of his

of lands (already accrued) are personal property, and, like other personalty, are legally situate with the owner. Cameron v. Watson, 40 Miss. 191, 208; Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 605, 28 Am. Dec. 451.

• Curtis v. Hutton, 14 Ves. 537; Hawley v. James, 7 Pai. Ch. (N. Y.) 213, 32 Am. Dec. 623, 625; Newcomer v. Orem, 2 Md. 297, 56 Am. Dec. 717, 718-19; Chamberlain v. Chamberlain, 43 N. Y. 424, 432; Hope v. Brewer, 136 N. Y. 126; Hobson v. Hale, 95 N. Y. 588; Bible Society v. Pendleton, 7 W. Va. 79; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413.

7 Post, § 144.

Ford v. Ford, 80 Mich. 42, 44 N. W. 1057; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413. But see Wood v. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451, in which it was held that a will made by a citizen of New York, directing his personalty to be invested in Ohio lands upon trusts violating the New York law against perpetuities, must be governed by New York law. It might well be asked, Why? If the provisions of the will had been carried out, the money would have gone to the person in Ohio from whom the land there was purchased, and the land would have been in Ohio. Of what interest could it be to New York whether or not Ohio property was held in perpetuity? This case seems to have been tacitly overruled by the later New York cases. Thus, it is said in Chamberlain v. Chamberlain, 43 N. Y. 424, 434: "It is no part of the policy of New York to interdict perpetuities or gifts in mortmain in Pennsylvania."

See post, §§ 145 et seq.