is made clear. In the draft of the Napoleon Code which was first submitted the provision subsequently contained in article 389 of that code was not found. The enactment of the article into the code was the result of a recommendation by the Tribunat, its report on the subject expressly saying (Locré. Legislat. Civ. t. VII, p. 215):

"We think that the first article of the chapter should express in precise terms what during the marriage should be the authority of the father over the personal goods of his minor children. . . . Never up to this time has it been exacted that a father should be obliged to qualify as the tutor of his children before the dissolution of the marriage. If while the marriage exist the law did not make a distinction between the father and mother and a tutor in the proper sense of the word, it would follow that the father would be as to the personal goods of his minor children subjected during marriage to all the conditions and burdens which the law imposes upon a tutor. The father would then be as to his minor children under the supervision of an under tutor, would depend upon the advice of a family meeting, etc., etc., all of which would be repugnant to the accepted conceptions of paternal authority. It seems fitting that up to the dissolution of marriage the only title which the father should have is that of administrator, and it is for this reason that we recommend the adoption of the article."

And the views which were thus expounded have been substantially applied by the decided cases in France, and are concurred in by the practically unanimous opinion of the theoretical writers. The result of those decisions and the opinions of the writers on the subject adequately portray the plenary power conferred upon the father as the administrator of all the property of his minor children during marriage and the distinction between that authority and the narrower power as to the natural tutorship arising only after the dissolution of the marriage. The authorities will be found exhaustively collected in the notes to article 389 of the Napoleon Code in

the Fuzier-Herman edition of that code, published at Paris in 1885.

Much reliance in argument is placed upon the terms of article 3350 of the Louisiana Code of 1870, which reads as follows: "ART. 3350. Before fathers and mothers, who by law are entitled to the usufruct of property belonging to their minor children, shall be allowed to take possession of such property and enjoy the fruits and revenues thereof, they shall cause an inventory and appraisement to be made of such property, and cause the same to be recorded in the mortgage book of every parish in the State where they or either of them have immovable property."

This article was not contained in any of the previous codes. Its origin is this: Prior to the Louisiana Constitution of 1868 the moneyed obligations of natural tutors towards their minor children, of husbands to their wives, and some other pecuniary obligations expressly provided for by law, were secured by what was known to the Louisiana law as legal and tacit mortgages. Those mortgages existed by operation of law and without registry. No such provision, however, ever obtained, as we have seen, concerning a father administering upon the estate of his minor children during the marriage. The Louisiana constitution of 1868 (art. 123), provided that all legal, tacit mortgages should cease after a specified date, and expressly imposed upon the legislature the duty of providing by law for a mode of registry in order to preserve existing and future mortgages of that character. By an act passed in 1869, entitled an act to carry out this article of the constitution and "to provide for recording all mortgages and privileges," the legislature sought to comply with this constitutional direction. Acts La. 1869, p. 114. The act in question contained specific directions for recording mortgages of the character referred to, the mode of registry which was adopted as to these mortgages being the making of an abstract of an inventory showing the amount of the minor's property, and the putting of the same of record. Section 12, the last section

of the act, contained the exact provision subsequently embodied when the Code of 1870 was adopted, in article 3350, except that section 12 of the act of 1869, moreover, had these words, which are not found in the article of the code referred to: "Which recordation shall operate a mortgage on such property until a final settlement of the administration of said property." In other words, when the Code of 1870 came to be adopted the compilers omitted the words of section 12 of the act of 1869 just quoted, but placed in the code the remainder of the section providing for the registry of an abstract of the inventory in the case stated. It is difficult to determine exactly the reason which impelled the compilers of the Code of 1870 to omit the provision as to mortgages found in section 12 of the act of 1869, conceding that that provision was constitutional despite the title of the act, and to reenact the remainder of the section providing for the registering of an abstract of an inventory in the case named, since by the omission of the provision as to mortgage no possible security could arise from the recording of an abstract of an inventory in the case provided for. For, certain it is that neither under the codes as they existed prior to 1870, nor in that code, was or is there any provision for a legal mortgage securing the minors against loss resulting from the enjoyment by either parent during marriage of a usufruct. The intention of the compilers of the Code of 1870 not to change the powers of administration of the property of his minor children, conferred upon the father by the prior codes, is expressly shown by the reënactment without change of those provisions, and is cogently exemplified by the further fact that in reënacting the provisions in question they were removed from the chapters of the code referring to tutorship and were transferred to the chapters of the code relating to paternal authority. As the full significance to be given to article 3350 is a question of local Louisiana law, which we are not called to decide, except so far as is essential to the determination of the case before us, we content ourselves with saying that we think it is clear that that

article in no way modifies or controls the full power of the father to administer during marriage the estates of his minor children, so well settled under the Louisiana law. In any event, we think that article 3350 simply implies that unless an inventory is made and an abstract recorded the usufruct which otherwise would exist shall not obtain. But giving this effect to the article in no way modifies the powers of administration conferred upon the father during marriage to which we have referred, because, as clearly pointed out by the authorities which we have previously cited, the administration is wholly independent of the usufruct and applies to the minor's property during marriage, whether or not there be a right of usufruct.

As then by the law of their domicil the minors were represented by their father as administrator, with full power under that law to receipt for and administer the property for their account, was the transfer of property made by Tracy in the District of Columbia to Thomas M. Turner, as the administrator or representative of his minor children, valid and binding? It is said that it was not because Turner, the testator, was domiciled in Virginia, and if the property had been administered upon in that jurisdiction, never mind what was the power of the father, under the law of Louisiana he would not have been entitled to receive or remove the property from the jurisdiction without an order made by a Virigina court and upon the giving of satisfactory security. But the property in question was in the District of Columbia, and in the absence of all showing that there were creditors in Virginia, the Probate Court of the District of Columbia would have had power under the circumstances disclosed, if administration had been had in the District, to direct the delivery of the property to the person lawfully entitled to represent the minors, without compelling the transmission of the funds to Virginia. Under these circumstances, we are of opinion that the payment in the District of Columbia to the father of the complainants as administrator of their estate, fully empowered to collect and

receive the same by the law of their domicil, is controlled by the cases of Wilkins v. Ellett, 108 U. S. 256; S. C., 9 Wall. 740. It is, however, urged that although as a general principle the cases referred to are decisive of this, the terms of the will and the knowledge which Tracy had of the intentions of the testator, made the delivery by Tracy to the father of the children a violation of the terms of the will and operated a fraud upon the rights of the children, which, it is claimed, takes this case out of the general rule. The unsoundness of the first of these contentions, which rests upon the terms of the will, we think is demonstrated by its mere statement. The proposition is that the words of the will "and appoint Philip A. Tracy to distribute the proceeds of said property equally between them" (the minor children of Thomas M. Turner) implied a direction. to Tracy to hold and administer the property for the benefit of the children, and not to pay it over to a lawfully appointed administrator or to one legally authorized to receive it. The second contention rests upon the assumption that as a matter of fact the proof establishes that Tracy had knowledge that the purpose of Silas H. Turner in making his will was to exclude the administration by Thomas M. Turner of the property bequeathed to his children, because Thomas M. Turner was a spendthrift and the testator lacked confidence in him. And this assumption of fact, as we have seen, was adopted by the trial court. Conceding for the sake of argument only that the existence of such knowledge on the part of Tracy would have caused it to be a fraud for him to turn over the property to the lawful administrator of the minors, we can find no reliable proof whatever in the record justifying the premise of fact upon which the contention is based. The sole and only possible basis for such an assumption is a statement made by Erle H. Turner in the course of his examination-in-chief, where, in purporting to give his recollection of a conversation had with Tracy, he said:

"Tracy himself wrote the will; and he said that he had suggested to uncle to leave it to my father, and if I remember,