William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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late Ch. J. Reeve, of Connecticut, in his laborious Treatise on the Law of
Descents in the sei^eral United States of America. This work does honour to his
memory; but it is not calculated to suit the taste of those general readers
who have no mathematical heads, by reason of the numerous algebraical
statements of hypothetical cases with which the work abounds, and by
which it is perplexed.



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doiu of ages, and fully and profouadly illustrated by a series of
judicial decisions, was well selected, as the most suitable and
judicious basis on which to establish our American law of descent
and distribution.

(4). There has been much discussion as to the rule of distribu-
tion of personal property, when the place of the domicil of the
intestate, and the place of the situation of the property,
were not the same. But it has become a settled * prin- [ * 429]
ciple of international jurisprudence, and one founded
on a comprehensive and enlightened sense of public policy and
convenience, that the disposition, succession to, and distribution
of personal property, wherever situated, is governed by the law
of the country of the owner's or intestate's domicil, at the time
of his death, and not by the conflicting laws of the various
places where the goods happened to be situated. The principle
applies equally to cases of voluntary transfer, of intestacy, and
of testaments. On the other hand, it is equally settled in the law
of all civilized countries, that real property, as to its tenure, mode
of enjoyment, transfer and descent, is to be regulated by the lex
loci rei sitoe (a). Personal property is subject to that law which
governs the person of the owner. Debts and personal contracts
have no locality-^— dcfei7a seqiiuntur 2>ersonam 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 (6) ;
and Bynkershoeck says, the principle had become so well estab-
lished, that no one dared to question it; adeo recepta hodie sententia
est^ ut nemo ausii contra hiscere (c). The same principle would
seem to be the acknowledged law in Germany and France (d) ; and

{a) Communis rt rectn srnirntia est in rehuR immohifibus serrandum esse jw* loci in
quo bona swit «i7a. Huh. tome 1, lib. 3. tit. 13, De SuccrsM, a. p. 278. In
8tory*8 Comm. on. (he Conflict of Law< p. :^59 — 390, the nuthorities, foreign
and domestic, are nnmeronsly collected in favour of the proposition that real
or immoveable property is exclusively juoverned by the territorial law of the
mhfu. The point is to<> clear for discussion.

(6) Praelee. part 1, lib. 3. De succetts. ab inst. coNnt. tome i. p, 27R, sec. 20,
Ibid, part 2, lib. 1, tit. 3. De Confiiciu Ijegum. tome ii. p. 542, sec. 15.

(e) Quresi. Jur. Prir. lib. 1, ch. 16. See, al»o» the opinion of Grotius on
the point, given at Rotterdam, October 31st, 1613, on consultation, and cited
at large in Henrjf on Foreign Iaiw. A pp. 196. ,

(«/) VoeU lib. 38. tit. 17, sec. 34. Ht inter. Opera, tome ii. p. 9T2. De Tw-
lamenii Fadione Jure Germ. hoc. 30. Opinion of M. Target on the Dutchess
of Kingston's will, 1 0>//. Jurid. 240. Tuulfier, Droit Ciril Fran^ais, tome i.
No. 366. Merlin, Repertoire de JuriftprudencCj tit. Loi. sec. 6, 3. See, also,
auprOf p. 67, and infra, vol. iv. p. 441, 513, as to the rule when applied to

35 VOL. II. KENT. 545


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Yattel (a) considers the rale 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 y. Pipon, and of
Thorne v. Watkins (6); and Lord Thorlow observed in
r *430 ] the hoase of * lords in the case of Bruce v. Bruce (c),
that to hold that the lex loci rei sitce was to govern as
to personal property, when the domicilfum of the intestate was
in a different country, wonld be a gross misapplication of the jus
gentium. And yet, notwithstanding all this weight of anthority
in favour of the solidity and universality of the principle, the
point was permitted to be very extensively and learnedly de-
bated before Lord Loughborough, in the case of Bempde v.
Johnstone (d) ; and he said that the question had been decided
and settled, and the law clearly fixed in England, by rep>eated

personal, and when applied to real property. The general utility of this
doctrine, that personal property haa no 9itU9 in contemplation ot 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 re-
commend itself to all nations by its simplicity, its convenience, and its enlarg-
ed policy. Bat 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 Ix>aisiana, delivery has been held necessary to the complete
transfer of personal property, as against creditoYs and purchasers, though
the transier be made by the owner in his foreign domicil, where the transfer
would be good without delivery. * Norris r. Mumford, 4 Martinis Rep, 20.
Kamsay r. Stevenson, 5 Ibid. 23. Fisk r. Chandler, 7 Ibid 24. Olivier r.
Townes, 14 Ibid. 93, 97 — 103. These decisions have not met the approba-
tion of some of our most distinguished civilians. Livermore DisseHation, p.
137 — 140. Story^s Comm. on the Conflict of Lav»^ p. 318 — ^327.

{a) Droit des Oens. b. 2, ch. 7, sec. 85; ch. 8. sec. 103. 110.

(h) 2 Vesey, 35. Anih. Rep. 25. See, also, the decision of Lord Mansfield,
before the privy council, in 1762, on appeal, in the case of Burn v. Cole, Ibid.

(c) 2 Boss. <fr Pun. 229, note. The decision in the house of lords in the
great case of Bntce v. Bruce^ is considered as settling the law both in Eng-
land and Scotland, in favour of the law of the domicil in the distribution of
the i>er8onal estate of intestates, and that the actual situs of the goods was
of no moment The decree of the court of sessions 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 dmnicil in England, and then changing their domicil to Scot-
hind, changed their rights and those of their children, and subjected them
to the succession of the law of Scotland. Robertmn on Ptraonal iSuceesmoiw.
ch. 8, sec. 1, p. 118 to 150. Brown v. Brown, on appeal, lb. p. 193. 4 H'il-
stm A Shaw^H Appeal Cases, 28.

(rf)3 Vesey, 198.



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decisioQs in the honse 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 (a). 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 or a person dying intestate, having property in difiPerent
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 proposi-
tion. Afterwards in Somerville v. Lord Somerville (6), 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 dis-
pute. But it the case of Curling v. Thornton (c), Sir John
Nicholls doubted whether a British natural bom subject could
shift his forum originia for a foreign domicil, in complete deroga-
tion of his rights under the British law ; and he said, it must be
at least complete and total, to make his property in England lia-
ble to distribution according to the foreign law, and the party
must have declared and carried his intention into full effect (d).

(a) The rnle as stated in the text may lead and has lead to the anomalons
result, that the same person may be legitimate as to the real estate of his
father, and illegitimate as to the persobal. Thus by the Scotch law the
marriage in Scotland of Scotch parents legitimates their previously Iwm
bastard issue, but it is not as yet so by the English law. And if the father
of such issue removes and dies domiciled in England, leaving real and per-
sonal 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 per-
sonal estate of his father by the English law, either as heir or next of kiu,
but he would take the real estate of his father in Scotland according to the
lex rei sitfe, 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 humour-
ously observes, the same person would, by the same court, and by this par-
adox in the law, be deemed legitimate as to the real estate and illegitimate
as to the personal — ''legitimate as to the mill, illegitimate as to the ma-
chinery — born in lawful wedlock a3 to the barn, but a bastard as to the grain
within it."

(ft) 5 Vesey, 750.

((•) 2 Addame' Rep, 14.

{d) 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 r. Worswick, 1 //. Blaeh*. liep, 690.
Potter r. Brown. 5 Ecutt^a Rep. 130. Stanley r. Barnes, 3 Hatfg. Eccle. Rep.
373. Story^H Comm, on the Conflict of Laves, p. 290, 391—398. In the case of



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[* 431] * 5. The rule, as settled in England, and by the general
usage of nations, as to the succession and distribution of

Sill r. Worswick, Lord Loughborough observed, that it was a clear proposi -
tion 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 Instifutes, b. 3, tit. 9, sec. 4. And Pothier, in his Cout
ifOrieans, c. 1, sec. 2, n. 23, considered that interests in public stocks or local
companies, &c., were governed by the lex loci rei siife. But they are now
clearly subject, like other persolial property, to the law of the domicil.
Robertson on Personal Succession, p. 84, 85. 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 party. It is said, in Moore v. Darrall, 4 JToffff.
Eccfe. Rep. 346, that ddmicil does not depend on residence alone, but on a
consideration of all the circumstances of each case. The domicil may he 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. A person being
at a place, 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 business, or professional occupation, and has a home and per-
manent residence, is his domicil ; and he has all the privileges, and is bound
by all the duties flowingt herefrom. Code Civil, art. 103. Tanner v. King.
11 Lou. Rep. 175. 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 eodem
loco singulos habere dotnicilium non amhigiiur^ ubi quis laretn rcrumque ac Jor-
tinuirum suarina summan constituit, unde [rnrsm] non sit discessurus si nihil
acocel;vnde cttm profectus est, peregrinarivideiur; quod si rvdiif, peregrinari Jam
(fcsiitiL Code, lib. 10, tit. 39, 1,7. See also Dig. 50, 1, 27, 1. lb. lib. 50,
til. 16, 1. 203. Though his family reside part of the year at another place,
such place is regarded only 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. There must be intention and act united, to effect a change of
domicil. The fonnn origim\ or domicil of nativity, remains until a sub-
sequent domicil is acquired animo et facto. Somerville v. Somerville, 5
Veaey, 750. Balfour r. Scott, cited ibid. p. 757. In this last case the
domicil of birth had been shifted by election and residency to a domicil in
England which controlled the personal estate. Case of Dr. Monroe, 6
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 wifo. 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 if 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 r. Milton, 2 Salk.
Rep. 528. Woodend v. Paulspury, 2 Lord Rayin. 1473. Freetown v. Taun-
ton, 16 3fa88 Rep. 52. See also «*pm, p. 227, note, on the right of the surviving
parent, whether father or mother, to transfer the domicil of the minor chil-
dren-, if done in good faith. If a party lins two contemporary domicils, and
a residence in each alternately, of equal portions of lime, the rule which
Lord Alvanley was inclined to adopt was, that the place where the party^s
business lay should be coiisidcred hia domicil. Lord Thurlow, in Bruce r.



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personal property, has repeatedly been declared to constitute a
part of the municipal jurisprudence of this country (a). The
difficulty has been, not in the rule itself, but in the application
and execution of it In Topham v. Chapman (6) it was said,
that though the distribution was to be according to the laws of
the country of the domicil of the intestate, yet that his debts in
a foreign country must be collected and paid according to the
law of that country. Administration must be granted where
the debts were; for an administrator has no power beyond the
jurisdiction in which he received his letters of administration;
and the home creditors must first be paid before the adminis-
trator could send the surplus fund to the country of the proper
domicil of the intestate (e). Much discussion took place on this

Bruce, 2 Bos. ^ Pull. 229, note. 3 Vesey, 201, 202. 5 Ibid. 786—789. See
1 Johns. Can. 366, note, and 4 Oowen^s Rep. 516, note, for a collection of au-
thorities on this question of domicil. See, also, supra^ vol. i. p. 74 — 81, as
to the domicil tor commercial purposes, and in the purview ol the law of
nations. Domicil is distinguished by the various situations to which it is
applied. There is a political^ a ci'riV, and a forensic domicil. There is a
domicil arising from hirth^ and fVom the domestic relations, and from efecWon.
Bytik. Qwest. Jur. Priv. lib. 1, ch. 16. Henry on Foreign L<tWy App. 181 —
208. Code NapoIeony'So. IQQ — 111. Repertoire de Jurispntdence, Skrt Domicife.
Ihullier, Droit Civil Francois, tome i. p. 318. Story *8 Comm. on the Conflict of
Laws^ ch. 3. Burgees Cotnm. on Colonial and Foreign Laics^ vol. 1, ch. 2, tit.
Domicile. A resident and inhabitant mean the same thing. But inhabitancy
and residence do not mean the same thiuR as doinicil, when the latter is ap-
plied to successions to personal estates ; but they mean fi fixed and permanent
nbodCy a dwelling-house for the time being, as contradistinguished fn^m a
mere temporary locality of existence. Roosevett n. Kellogg, 20 Johns. R.
208. Ch. Walworth, 8 WendelVs R. 140, See also 4 Wendell, 603. Residence,
combined with intention, constitutes a domicil. Whether the residence be
long or short is immaterial, provided the intention of residence is wanting
in the one case and exists in the other. Code Napoleon, art. 103, Thuillier
vol. 1, 323, art. 372. Hennen v. Hennen, 12 Lou. R. 190.

(a) Dixon v. Ramsay, 3 Cranch's Rep. 319. United States r. Crosby. 7 76»VI.
115. Blanet*. Drummond. 1 Brockenbrougfi' s R. 62. Kerr v. Moon, 9 Wheaton^
565. Desesbats v. Berquier, I Binney's Rep. 336. Decauche v.^ Savatier, 3
Johns. Ch. R(p. 210. Holmes r. Remsen, 4 Ibid. 469, 470. Dawes v. Boyles-
town, 9 Mass. Rep. 337. Harvy v. Richards. 1 Mason'* s Rep. 408. Crofton v.
Ilsley, 4 Oreenlears Rep. 134. Stent v. M'Leod, 2 M'Cord's S. C. Ch. Rep,
354. Story's Oomm. on the Conflict of Laws, p. 391—398, 402—411. Leake t>.
Gilchrist 2 Dev. N. C. Rep. 73.

(A) 1 Const. Rep. 3. C. 292.

(e) The general rule in England and in this country is, that letters testa-
mentary, or of administration, granted abroad, give no authority to sue or
be sued in another jurisdiction, though they may be sufficient ground for
new probate authority. Tourton r. Flower, 3 P. Wms. 369. Lee v. Bank of
England, 8 Vesey, 44. Sabin r. Oilman, 1 N. H. Rep. 193. Goodwin f».
Jones, 3 Mass. Rep. 514. Riley v. Rilev, 3 Day's Rep. 74. Morrell r. Dickey.
1 Johns. Ch, Rep. 153. Leake r. Gilchrist. 2 Dev. N. C. Rep. 73. Danger-
field V. Thurston, 20 Martin's Ixtuis. Rep. 232. Kerr i?. Moon. 9 Wlieafon,
565. Armstrong r. I^ar. 12 Ibid. 169. Story's Com. on the Conflict of Laics^
p. 422. In McNamara v. Dwyer, 7 Paige, 239, the chancellor was of opinion



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[*432] part of the * subject, in Harvey v. Richards {a). It
was held, upon a masterly consideration of the case,

that the creditors and next of kin were not confined in their remedies against
an executor or administrator to the courts of the country in which the letters
testamentary or of administration were granted. It was a(\judged that the
conrt of chancery had jurisdiction to compel a foreigu executor or adminis-
trator to account for the trust funds which he received abroad and brought
with him into the states, and without taking out letters of administration
in New York on the estate of the deceased. But the assets will be applied
and distributed according to the laws of the state or country from which he
derived his authority to administer. It is held in other cases that a foreign
administrator may receive payment any where, and give an acquittance.
Doolittle r. Lewis, 7 Johns, Ch. Rep. 45. Stevens v. Gaylord, 1 1 M<ua. Rrp.
256. Trecothick r. Austin, 4 Mason's Rep. 16, 33. Atkins r. Smith, 2 Atk.
Rep. 63. Nisbet v. Stewart, 2 Dev. A Batile's R, 24. But in Vaughn r. Barrel,
5 Vermont Rep. 333, a contrary doctrine is declared, and it was afljndged,
upon full discussion, that an administrator appointed in another stat«, had
no authority to settle and discharge a debt due from a citizen of Vermont to
bis intestate, and that such a discharge would be no bar to an action for the
debt by the administrator appointed in Vermont. Under the local law of
Pennsylvania, letters of administratiotf granted in another state are a suffi-
cient authority to maintain an action in that state. M*Culloch r. Young, 1
Binney's Rep. 63. This is the case in Ohio. Stntufes of Ohio, 1831, p. 241.
8 Ohio Rep. 228. And m Tennessee by the statute of 1809, and the provision
is commended in Smith v. Marry, 7 Verger^^^. as just and liberal. But for-
eign executors and administrators cannot be sued in Tennessee, as such, in
virtue of their foreign letters testamentary or of adnjinistration. Allsnp c.
Allsup, 10 Verger, 283. But in the Kevised Statutes of Pennsylvania relat-
ing to orphans' courts, as reported in January, 1831. the law of Pennsylvania
was recommended to be made to agree, in this particular, with the law of
most of the other states. In Massachusetts'and Ohio, no will is effectual to
pass either real or personal estate, unless duly proved and allowed in the
probate court; and the probate of a will devising real estate is conclusive as
to the due execution of the will, equally as it is of a will of personal estate.
3fass. Rerised Statutes, 1835, part 2, tit. 3, ch. 62, sec. 20. Swazey r. Black-
man, 8 Ohio R. 1. So, the probate is equally conclusive on trials at law, in
Maine, Connecticut, and Virjfinia; (4 Greenleaf, 22,'). 5 Jbid. 494. 1 XVry,
170. 1 Leigh, 293,) whereas in Pennsylvania, the probate of a will is con-
clusive as to chattels, and only prima evidence of title under it as to
lands. In England, the probate is evidence of the will as to chattels* but
none at all as to lands, for Ihe ordinary has no jurisdiction over wills as to
lands. The conprraation of foreign letters testamentary, of administration,
and of guardianship, is made very simple ^nd easy in Alabama and Indiana
by their statute codes. It is by filing with the clerk of the court where suit
is brought, the same authorities or authenticated copies thereof. The guard-
ian is to give new security, as well as fileacopy of the appointment, in order
to have the privilege of a resident guardian. So, in Virginia, a will duly
authenticated and proved in another state, or in a foreign country, will be
admitted to probate, if the proof abroad be such, that if made in Virginia,
it would have been admitted to proof, as a will of chattels, or of lands, as
the case may be. Ex parte Povall, 3 Leigh's Rep. 816. In Massachusetts
and Maine, a will proved and allowed in any other state, or in a foreign
country, according to the laws of such state or country, may be filed and
recorded, on producing an authenticated copy to the judge of probate of any
county in which there is any estate, real or personal, on which the will may
operate; and the Judge is to hear the case on the probate of the will on gi\'-
ing the prescribed notice of the time and place. 11 allowed, it is to be fi.led
(a) 1 3fagon's Rep. 403.



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that whether a court of equity would proceed to decree an accouot
and distnbntion according to the lex loci ret eitce^ or
direct the assets to be * distributed by the foreign tri- [ *433 j
bunal of the domicil of the party, would depend upon
circumstances. The situs rei\ as well as the presence of the par-
ties, conferred a competent jurisdiction to decree distribution,
according to the rule of the lex domicilii; and such a jurisdic*
tion was sustained by principles of public law, and was con-
sistent with international policy. The court was not bound, at
all events, to have the assets remitted to the foreign administrator,
and to send the parties entitled to the estate abroad, at great
expense and delay, to seek their rights in a foreign tribunal.
Though the property was to be distributed according to the lex
domicilii, national comity did not require that the distribution
should be made abroad. Whether the court here ought to de-
cree distribution, or remit the property abroad, was a matter of
judicial discretion, and there was no universal or uniform rule on
the subject.

The manner and extent of the execution of the rule were well
discuHsed and considered, in the supreme court of Massachu-
setts (a). A person ^as domiciled at Calcutta, and died there
insolvent, and his will was proved, and acted upon there. Ad-
ministration was taken out in Massachusetts, on the probate of
the will in the East Indies; and assets came to the hands of the
administrator at Boston, sufficient to pay a claim due citizens of
the United States, and a judgment debt due a British subject in

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 70 of 108)