« ForrigeFortsett »
fer and descent, is to be regulated by the lex loci rei sitæ.a Personal property is subject to that law which governs the person of the owner. Debts and personal contracts have no locality-debita sequuntur personam debitoris. Huberus lays down this to be the common and correct opinion, though the question had been frequently agitated in the courts in his day;b and Bynkershoeck says the principle had become so well established, that no one dared to question it; adeo recepta hodie sententia est, ut nemo ausit contra hiscere. The same principle would seem to be the acknowledged law in Germany and France,
· Communis et recta sententia est in rehus immobilibus servandum esse jus loci in quo bona sunt sila. Hub. tom. i. lib. 3. tit. 13, De success. s. p. 278. In Story's Comm. on the Conflict of Laws, p. 359—390, the authorities, foreign and domestic, are numerously collected in favour of the proposition that real or immovable property is exclusively governed by the territorial law of the situs. The point is too clear for discussion. But by the Revised Statutes of the state of Michigan, 1840, lands lying in Michigan may be conveyed by the owner residing in another state or territory or in a foreign country, according to the laws of such state or country.
Prelec. part 1. lib. 3. De success. ab. inst. collat. tom. i. p. 278. sec. 20. Ibid. part 2. lib. 1. tit. 3. De Conflictu Legum, tom. ii. p. 542. sec. 15.
¿ Quæst. Jur. Prir. lib. I. ch. 16. See, also, the opinion of Grotius on the point, given at Rotterdam, October 31st, 1613, on consultation, and cited at large in Henry on Foreign Law, App. 196.
a Voet, lib. 38. tit. 17. sec. 34. Heinecc. Opera, tom. ii. p. 972. De Testamenti Factione Jure Germ. sec. 30. Opinion of M. Target on the Dutchess of Kingston's will, 1 Coll. Jurid. 240. Toullier, Droit Civil Francais, tom. i. No. 366. Merlin, Repertoire de Jurisprudence, tit. Loi. sec. 6. 3. See, also, supra, p. 67, and infra, vol. iv. p. 441. 513, as to the rule when applied to personal, and when applied to real property. The general utility of this doctrine, that personal property has no situs in contemplation of law, and is attached to the person of the owner, wherever he is, and governed by the law of the owner's domicil, does not fail, as Mr. Justice Story has observed, to recommend itself to all nations by its simplicity, its convenience, and its enlarged policy. But the doctrine is sometimes controlled by local law, and the case of foreign assignments in bankruptcy, is an instance. Vide supra, p. 404-408. So, in Louisiana, delivery has been held necessary to the complete transfer of personal property, as against creditors and purchasers, though the transfer be made by
and Vattela considers the rule to be one that is dictated by the law of nations.
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 ;b and *430 Lord Thurlow observed in the house of *lords in
the case of Bruce v. Bruce, 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
the owner in his foreign domicil, where the transfer would be good without delivery. Norris v. Mumford, 4 Martin's Rep. 20. Ramsay v. Stevenson, 5 Ibid. 23. Fiske v. Chandler, 7 Ibid. 24. Olivier v. Townes, 14 Ibid. 93. 97–103. These decisions have not met the approbation of some of our most distinguished civilians. Livermore’s Dissertation, p. 137–140. Story's Com. on the Conflict of Laws, p. 318–327. - Droit des Gens, b. 2. ch. 7. sec. 85. ch. 8. sec. 103. 110.
2 Vesey, 35. Amb. Rep. 25. See, also, the decision of Lord Mans. field, before the privy counsel, in 1762, on appeal, in the case of Burn v. Cole, Ibid. 415.
€ 2 Bos. f 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 favour of the law of the domicil in the distribu. tion of the personal estate of intestates, and that the actual situs of the goods was of no moment. The decree of the court of session in Scotland was affirmed. So, the very important and very litigated case of Hoy v. Lashley, which arose in the court of session 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 estate 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 Successions, ch. 8. sec. 1. p. 118 to 150. Brown v. Brown, on appeal, Ib. p. 193. 4 Wilson f Shaw's Appeal Cases, 28.
case of Bempde v. Johnstone ;a 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 has now conformed to the English decisions. He 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, 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,
. 3 Vesey, 198.
• 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 niarriage in Scotland of Scotch parents legitimales their previously born bastard issue, but it is not as yet so by the English law. And if the fa. ther 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 personal 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 site, 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 i he 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.”
• 5 Vesey, 750.
Sir. John Nicholls 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.a
. 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. Barnes, 3 Hagg. Eccle. Rep. 373. Story's Comm. on the Conflict of Laws, p. 299. 391–398. In Garland v. Rowan, 2 Smedes of Marshall, 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 had 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 stocks and other property which may be required to be transferred in the mode prescribed by local regulations. Story, ibid. 315, 316. Erskine, in his Institutes, b. 3. tit. 9. sec. 4. 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 site. But they are now clearly subject, like other personal property, to the law of the domicil. Robertson on Personal Succession, p. 84, 85. 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 par. ty. It is said, in Moore v. Darrall, 4 Hagg. Eccle. 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 cannot 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 placo, 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 bu
*5. The rule, as settled in England, and by the general usage of nations, as to the succession and distribu
siness, 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 therefroin. Code Civil, art. 103. Tanner v. King, 11 Lou. 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 codem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summan 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. 1b. lib. 50. tit. 16. 1. 203. Though his family reside part of the year at another place, such place is regarded unly 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. Rep. 1. Attorney General v. Dunn, 6 Meeson f. 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 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 subquent domicil is acquired animo et facto. Somerville v. Somerville, 5 Vescy, 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. 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. Under the English settlement law, minor children take the domicil of the father, and is the mother also, being a widow, changes her domicil, her minor children change theirs also, but not if she acquires a new domicil by re-marriage. 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