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Full text of "Conflict of laws, or, Private international law"

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THE LIBRARY 

OF 

THE UNIVERSITY 

,0F CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



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CONFLICT OF LAWS; 

OB, 

PRIVATE INTERNATIONAL LAW. 



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CONFLICT OF LAWS; 



OB, 



PRIVATE INTERNATIONAL LAW. 



BY 

RALEIGH C. MINOR, M.A., B.L., 

PROFESSOR OF LAW IN THE UNIVERSITY OF VIRGINIA. 



BOSTON 

LITTLE, BROWN, AND COMPANY 

1901 



Copyright, 1901, 
Bt Raleigh C. Minor. 

AU right* re*erv«i. 

T 
l9o| 



TO 

OF 

MY FATHER, 

WHOSE PURITY AND SIMPLICITY OP HEART, PROFOUND KNOWLEDGE 

OF MANKIND, AND ENTHUSIASM IN THE SEARCH FOB 

TRUTH WILL EVER BE MY INSPIRATION, 

THIS BOOK IS REVERENTLY DEDICATED. 



709188 



PREFACE. 



The arrangement, as well as the theory, of this book departs 
materially from that of its predecessors, the offspring of the 
great intellects and profound learning of Story, Dicey, and 
Wharton. I should feel that some explanation of this is neces- 
sary, save for my belief that the reader will find the arrange- 
ment its own best defender. 

If from the tangled skein of decisions upon this subject it 
can be said that a single certain conclusion may be drawn, after 
a careful and laborious analysis of the cases I should select as 
that conclusion the fact that the great foundation and basic 
principle of private international law is Situs. Find the situs 
of the particular act, circumstance, or subject under inquiry and 
you will know the law which should properly regulate its validity 
and effect. This proposition, it is true, is subject to exceptions, 
but the exceptions are quite clearly defined, and may in general 
be applied without great difficulty. They will be found discussed 
in the second chapter. 

It is logical therefore to treat the subject under the heads 
which follow, each head constituting a separate division or part 
of the work: Part I., Introductory. Part II., Situs of the 
Person. Part III., Situs of Status. Part IV., Situs of Per- 
sonal Property. Part V., Situs of Contracts. Part VI., 
Situs of Torts and Crimes. Part VII., Situs of Remedies. 
Part VIII. Pleading and Proof of Foreign Laws. 



Vlil PREFACE, 

All the principles of private international law (it might more 
properly be called The Law of Situs) will be found to group 
themselves under one or the other of these heads. 

The branch of the law herein discussed, though of daily 
growing importance, is at present in a most chaotic condition. 
Comparatively few points may be regarded as settled. The 
courts too frequently fail to rest their decisions upon sound 
foundations of reason and principle ; they are too often 
inclined to indulge in vague generalities and dicta, without 
analyzing the transaction before them into its elements, and 
applying the law of the situs of each element to determine its 
effect. 

It has been my constant aim to reduce every proposition to 
its ultimate principles, for only by this means can order be 
brought out of the confusion that now exists. In some in- 
stances I have been forced to cite decisions which, while sup- 
porting the conclusions to which they are cited, have reached 
those conclusions by fallacious courses of reasoning. 

If the principles enunciated in this work shall aid in illumi- 
nating even a few of the many dark places to be found along 
the path, I shall be more than gratified. 

R. C. M. 

University of Virginia, 
January, 1901. 



TABLE OF CONTENTS. 



PART I. 

INTRODUCTORY. 
CHAPTER I. 

PAOI 

Introduction 1 

§ 1. Origin of Private International Law 1 

2. Public and Private International Law distinguished . . 2 

3. Foreign Element essential to Operation of Private Inter- 

national Law 4 

4. Basis of Private International Law <, . 5 



CHAPTER 11. 

Exceptions to the Application of a Foreign Law . . 8 
§ 5. General Grounds upon which the Exceptions are based . 8 

6. First Exception — Policy or Interests of Forum contra- 

vened by Enforcement of Proper Law 10 

7. Second Exception — Injustice or Detriment to People of 

the Forum 12 

8. Extent of Second Exception 14 

9. Third Exception — Proper Foreign Law Contra Bonos 

Mores 17 

10. Fourth Exception — Pi'oper Foreign Law Penal in its 

Nature 21 

11. Fifth Exception — Transactions relating to Immovable 

Property 28 

12. Same — Application of Lex Situs to Transfers of Land, 

and Liens thereon 32 

13. Meaning of "Immovable Property" in Private Interna- 

tional Law 38 



TABLE OF CONTENTS. 



§ 14. Application of Lex Situs to Transactions relating to 

Movable Property 41 

15. Effect of Transactions completed and perfected under 

Proper Law not generally altered by Subsequent 
Change of Situs 43 

16. Value of Precedents in Private International Law . . 48 



PART II. 

SITUS OF THE PERSON. 

CHAPTER IIL 

Actual Situs of the Person 51 

§ 17. Importance of Situs in Private International Law ... 51 
18. Actual Situs of the Person .... 54 



CHAPTER IV. 

Leoal Situs of the Person, or the Domicil 58 

§ 19. Domicil, National, Quasi-National, or Municipal ... 58 

20. Domicil distinguished from Mere Residence .... 59 

21. Domicil distinguished from Nationality or Citizenship . 60 

22. The Legal Situs or Domicil of the Person 61 

23. Definition of Domicil of Natural Persons G2 

24. Area of Domicil 63 

25. Domicil, the Actual Permanent Home 64 

26. Domicil, the Constructive Permanent Home .... 05 

27. Certain General Principles touching Domicil — I. No 

Person without a Domicil 67 

28. 11. Only One Domicil at a Time 68 

29. ni. Domicil retained until another is acquired ... 70 

30. IV. Persons Sui Juris may change Domicil at Pleasure 72 

31. Several Kinds of Domicil — I. Domicil of Origin . . 73 

32. Original Domicil of Child born Legitimate 74 

33. Original Domicil of a Bastard — Of Legitimated Child 75 

34. Original Domicil of a Foundling — Of an Adopted 

Child 77 



TABLE OF CONTENTS. M 

VAoa 

86. n. Constructive Domicil arising by Operation of Law 78 

36. Constructive Domicil of Infant — Legitimate Child . 79 

37. Domicil of Legitimate Child — Father Alive .... 80 

38. Same — Father Dead, Mother Surviving 82 

39. Effect of Remarriage of the Mother 84 

40. Constructive Domicil of Orphan . 85 

41. Power of Guardian to alter Ward's Domicil .... 87 

42. Constructive Domicil of an Illegitimate Child ... 91 

43. Constructive Domicil of Child subsequently Legitimated 92 

44. Constructive Domicil of an Adopted Child .... 92 

45. Domicil of a Married Infant 93 

46. Constructive Domicil of Married Woman 94 

47. Domicil of a Deserted Wife 96 

48. Domicil of Wife who Deserts her Husband .... 98 

49. Domicil of Wife whose Husband is Insane or otherwise 

incapacitated 100 

50. Domicil of Wife contemplating Divorce 101 

51. Domicil of Wife whose Husband applies for Divorce . 102 

52. Domicil of Divorced Wife 103 

53. Domicil of Wife, where the Marriage is Voidable or 

Void 105 

54. Constructive Domicil of Idiots 105 

55. Constructive Domicil of Lunatics 106 

56. III. Domicil of Choice — Three Essential Elements . 109 

57. Party must be free to choose Domicil 110 

58. Same — Invalids compelled to Reside Abroad . . . 112 

59. Further Elements of Domicil of Choice — Actual Pres- 

ence and Animus Manendi 114 

60. Actual Presence 115 

61. The Animus Manendi 117 

62. Commencement of the Intention . 118 

63. Duration of the Intention 120 

64. Evidence of Animus Manendi 121 

65. Effect of Abandonment of Domicil — Conflicting Views 124 

66. Same — A Solution suggested 126 

67. Situs (or Domicil) of Corporation 129 



XU TABLE OF CONTENTS. 

PA JIT III. 

SITUS OF STATUS. 

rAM 
§ 68. Preliminary — Situs of Status follows Situs of the 

Person . 131 

CHAPTER V. 

Status of Personal Capacity 134 

§ 69. Capacity in General — Several Sorts of Capacity . . 134 

70. Testamentary Capacity 136 

71. Business Capacity in General 141 

72. Voluntary Transactions — Capacity to Contract . . . 144 

73. Same — Capacity to Marry 149 

74. Particular Incapacities to Marry — Guilty Party to 

Divorce prohibited to Marry again 155 

75. Same — Polygamous and Incestuous Marriages . . . 160 

CHAPTER VI. 

tJTATus OF Marriage 163 

§ 76. Dual Nature of Marriage 163 

77. The Contract of Marriage — Formal Validity .... 165 

78. Substantial Validity of Marriage Contract 169 

79. The Marriage Status or Matrimonial Union — Its Com- 

mencement and Continuance 172 

80. Incidents of the Marriage Status — Marital Rights in 

Consort's Property — Lands 173 

81. Marital Rights in Personalty of Consort — In Absence 

of Express Contract 175 

82. Same — Express Contract touching Marital Rights . . 179 

83. Rights and Duties of Parents towards Children . . . 180 

CHAPTER VII. 

Dissolution of Marriage Status by Divorce .... 182 

§ 84. Causes for Divorce 182 

85. Proceedings in Personam and in Rem distinguished . 184 



TABLE OF CONTENTS. Xlii 

PAai 

§ 86. Exterritorial Effect of Foreign Judgments and Decrees 186 

87. Divorce Causes, Proceedings Quasi in Rem .... 190 

88. The Res in Divorce Causes 191 

89. Exterritorial Effect of Divorce — Both Parties Domiciled 

in State of Divorce 195 

90. Neither Party Domiciled in State of Divorce .... 197 

91. Only one of the Parties Domiciled in State of Divorce . 200 

92. First Theory — Jurisdiction over one Party confers 

Jurisdiction over the other also 203 

93. Second Theory — Divorce, a Proceeding in Personam . 204 

94. Third Theory — Divorce neither in Rem nor in Per- 

sonam, but Quasi in Rem — Requires Best Notifica- 
tion practicable to Non-resident Defendant .... 205 

95. Exterritorial Effect of Divorce, as respects Costs and 

Alimony 207 

96. Exterritorial Effect of Decree for Custody of Minor 

Children 208 



CHAPTER VIII. 

Status op Legitimacy axd Adoption 211 

§ 97. Legitimacy and Adoption Instances of Double Status . 211 

98. Legitimacy — Child Born in Wedlock 213 

99. Subsequent Legitimation — Intermarriage of Parents of 

Infant Bastard 215 

100. Bastard an Adult when Parents Marry — No Intermar- 

riage of Parents 218 

101. Legal Status of Adoption 221 



CHAPTER IX. 

Status of Fiduciaries 224 

§ 102. Dual Nature of Fiduciary Status 224 

103. Illustrations — Various Classes of Fiduciaries . . . 225 

104. Executors and Administrators — Outline of Discussion 228 

105. Appointment and Qualification of Administrators and 

Executors 229 

106. Incidents of Status of Personal Representatires — 

Their Rights and Liabilities in Gteneral .... 232 

107. Suits by and against Personal Representatives . . . 235 



Xiv TABLE OF CONTENTS. 

FAU 

§ 108. Right of Foreign Representative to Sue for Decedent's 

Death by Wrongful Act 238 

109. Voluntary Payment of Debts to Foreign Represent- 

ative 242 

110. Order of Payment of Decedent's Debts — Marshalling 

of Assets 243 

111. Right of Creditor to Subject Decedent's Land in Hands 

of the Heir 245 

112. Exoneration of Realty out of Personalty, and vice 

versa — Contribution between Heirs or Devisees . 247 

113. Termination of Status of Executors or Administrators 

— Auxiliary or Ancillary Administrations . . . 253 

114. Status of Guardians 257 

115. Status of Guardian with respect to Ward's Person . . 258 

116. Status of Guardian with respect to Ward's Property . 261 

117. Status of Receivers — In General 263 

118. Suits by and against Receivers 266 



PART IV. 

SITUS OF PERSONAL PROPERTY. 

§ 119. Preliminary — Outline of Discussion 268 

CHAPTER X. 

Situs of Chattels and of Debts 270 

§ 120. Legal and Actual Situs of Tangible Chattels .... 270 

121. Legal and Actual Situs of Debts 274 

122. Situs of Debt for Purposes of Voluntary Transfer . . 278 

123. Situs of Debt for Purpose of Taxation 281 

124. Situs of Debt for Purpose of Administration .... 283 

125. Situs of Debt for Purpose of Attachment and Garnish- 

ment 285 

126. Same — Exemptions 290 



TABLE OF CONTENTS. XV 

CHAPTER XI. 

Pisa 

Voluntary Transfers of Personalty Inter Vivos . . 292 

§ 127. Preliminary — Various Kinds of Transfer .... 292 

128. Absolute Conveyances and Executed Sales of Pei-sonalty 293 

129. Same — As to Third Persons 297 

130. Sale of Personalty, with Reservation of Title in Vendor 300 

131. Donations Mortis Causa 303 

132. Chattel Mortgages — Liens upon Personalty .... 304 

133. Voluntary Assignments for Benefit of Creditors — 

Greneral Principles 309 

134. What Creditors may Attack a Voluntary Assignment . 312 

135. Policy of the Forum 316 

CHAPTER XII. 

Involuntary Transfers of Personalty Inter Vivos . 319 

§ 136. Transfers by Marriage 319 

137. Involuntary Assignments in Bankruptcy or Insolvency 320 

138. Creditors for whose Benefit Assigfnment disregarded . 324 

CHAPTER Xni. 

Transfer by Succession 327 

§ 139. Titles of Administrator and Distributee distinguished 327 

140. Persons to Take as Distributees — Capacity of Dis- 

tributees to Take 328 

141. Shares of Distributees 331 

CHAPTER XrV. 

Transfers of Personalty by Will ........ 332 

§ 142. Transfer by Will, Involuntary 332 

143. Formal Validity of Wills of Personalty 333 

144. Substantial Validity of the Provisions of the Will . . 335 

145. Interpretation of the Will 338 

146. Same — Beneficiaries — Property Disposed of . . . 341 

147. Same — Lapse — Election 343 

148. Same — Change of Domicil after Execution of Will . 347 

149. Revocation of Wills 349 

150. Wills in the Exercise of a Power of Appointment . . 351 



Xri TABLE OF CONTENTS. 

PART V. 

SITUS OF CONTRACTS. 



PAGB 



§ 151. Contractual Liabilities Transitory — Proper Law to 

determine Existence of Contract 355 

152. Applications of Greneral Exceptions to Foreigfn Law 

somewhat restricted in Case of Executory Contracts 357 



CHAPTER XV. 

Locus Contractus 360 

§ 153. Conflicting Views as to Situs of Contract 360 

154. True View — Locus Contractus not necessarily a Single 

Place, but may consist of One Place for One Pur- 
pose, and Another Place for Another Purpose . . 363 

155. Three Leading Elements in every Contract — Each 

may have a Separate Situs 367 

156. The Various Incidents or Qualities of Contracts . . 369 



CHAPTER XVI. 
Locus Cklebkationis; Locus Solutionis; and Locus Con- 

8IDERATIONIS .... 371 

§ 157. Locus Celebrationis — Place where Contract becomes 

finally Binding ... 371 

158. Same — Contracts of Agents 374 

159. Locus Solutionis — Optional with the Parties — No 

Place of Performance named 377 

160. Same — Several Places of Performance 380 

161. Locus Considerationis 382 

162. Same — Considerations Executed and Executory . ■ 385 

163. Situs of Particular Contracts — Contracts to Pay 

Money 388 

164. Negotiable Instruments — Contract of Maker or Ac- 

ceptor 391 

165. Indorser's or Drawer's Contract 392 

166. Situs of Insurance Contracts 398 



TABIiB OF CONTENTS. Zytt 



CHAPTER XVn. 

PAOB 

Validity of Contracts . 401 

§ 167. Preliminary 401 

168. Contracts Prohibited to be entered into — In General 

— Lex Loci Celebrationis 402 

169. Same — Exemptions in BiUs of Lading 405 

170. Same — Insurance Contracts 407 

171. Capacity to Contract — Lex Loci Celebrationis . . . 409 

172. Formal Validity of Contracts — Lex Celebrationis — 

Marriages — Stamps 410 

173. Same — Contracts in Writing — Statute of Frauds . 413 

174. Same — Contracts for the Sale of Land 415 

175. Performance of Contract Prohibited — Lex Loci Solu- 

tionis 418 

176. Validity of Consideration — Lex Loci Considerationis 

— Executory Consideration 421 

177. Executed Considerations — Sufficiency of Considera- 

tion 424 

178. Same — Legality of Consideration 427 

179. Usurious Considerations 429 



CHAPTER XVIII. 

Obligation and Interpretation of Contracts .... 438 

§ 180. Obligation of a Contract 438 

181. Obligation of Contract dependent upon Intention of 

Parties « . . ' 440 

182. Negotiable Instruments — Maker's or Acceptor's Con- 

tract 446 

183. Same — Obligation of Drawer's or Indoi'ser's Contract 450 

184. Obligation to Pay Interest 454 

185. Covenants and Contracts touching Land 457 

186. Interpretation of Contracts 459 



CHAPTER XIX. 

Discharge of Contracts 464 

§ 187. Various Sorts of Discharge 464 

188. Discharge by Actual Performance or Tender .... 464 

b 



Cviii TABLE OF CONTENTS. 

PASI 

§ 189. Discharge by Substituted Agreement ... .467 

190. Discharge by Operation of Law — In General ... 469 

191. Same — Discharge in Bankruptcy 470 



PART VI. 

SITUS OF TORTS AND CRIMES. 

CHAPTER XX. 

5iTU8 OF Torts 475 

§ 192. Local and Transitory Actions 475 

193. Torts, Common Law and Statutory 477 

194. Exceptions to Operation of Lex Loci Delicti .... 479 

195. Situs of Tort or Locus Delicti 481 

196. Law governing Torts in General 484 

197. Defenses to Actions for Tort 485 

198. Damages — Compensatory, Punitive, and Penal . . 488 

199. Statutory Torts — Death by Wrongful Act .... 490 

200. Death by Wrongful Act — Increasing Liberality of the 

Courts 491 

201. Same — Proper Plaintiff 493 

202. Same — Other Conditions of Suit 495 

CHAPTER XXI. 

Situs of Crimes . . 497 

§ 203. Crimes generally Local, not Transitory . . . , 497 

204. Situs of Crimes 498 



PART VII. 

SITUS OF REMEDIES. 

CHAPTER XXIL 

Situs of Remedies . . 505 

§ 205. Nature of the Remedy — Form of the Action . . . 505 
206. Modes of Procedure — Parties to the Suit .... 509 



TABLE OF CONTENTS. XIX 

PAOB 

§ 207. Process, Pleadings, and Rules of Practice .... 510 

208. Admissibility of Evidence — Presumptions of Law — 

Incidents of the Trial 513 

209. Exemptions 516 

210. Certain Defenses, Matters of Remedy — Statute of 

Limitations — Statute of Frauds 521 

211. Set-offs and Counter-claims 525 



PART VIII. 

PLEADING AND PROOF OF FOREIGN LAWS. 

CHAPTER XXIIL 

Pleading and Pkoof of Foreign Laws . 527 

§ 212. Foreign Laws must be Specially Pleaded .... 527 

213. Proof of Foreign Laws . 528 

214. Presumptions as to Foreign Laws ..... . 530 

INDEX 535 



TABLE OF CASES. 



[beferkmcbs abb to faobs.] 



Abbebobr v. Marrin (Mass.) 295, 428 

Abington v. N. Bridgewater (Mass.) 62, 64, 67, 69, 70 

Abshire v. Corey (Ind.) 467 

Abt V. Bank (lU.) 397, 443, 445 

Adams v. Adams (Mass.) 183, 197, 212, 213, 340 

V. Palmer (Me.) 160, 173 

V. People (N. Y.) 499 

v. R. R. Co. (Vt.) 24,480,489 

Aikman v. Aikman (Eng.) 216, 217 

Akers V. Demond (Mass.) . . . 18,368,372,379,388,428,433,434,436 

Alabama, etc. R. R. Co. v. CarroU (Ala.) 407, 482, 487 

Albee i;. Albee (111.) 499 

Alexander v. R. R. Co. (Ohio) 407, 487, 630 

Allen V. Allen (La.) 177, 532 

V. R. R. Co. (la.) 267 

V. Thomason (Tenn.) 83, 84, 128 

Alley V. Caspari (Me.) 186, 265 

Allgood V. Williams (Ala.) . . 59, 65, 67, 69, 70, 72, 79, 80, 81, 82, 93, 109, 

115, 117, 125 

AlUhouse V. Ramsav (Penn.) 467 

Ambler v. Whipple (lU.) 622 

American Coal Co. v. Allegheny Co. (Md.) 282 

American Insurance Co. v. Hettler (Neb.) 277, 290 

American Mortgage Co. v. Jefferson (Miss.) 18, 379, 380, 431 

V. Sewell (Ala.) 363, 431, 434 

American Oak Leather Co. v. Bank (Utah) 532 

Ames V. McCamber (Mass.) 530 

Ames Iron Works v. Warren (Ind.) 44, 271, 272, 304, 307 

Anderson v. Anderson (Vt.) 109 

V. Laneuville (Eng.) 114 

V. R. R. Co. (Wis.) 492 

Andrews v. Avory (Va.) 232, 233 

V. Herriot (N. Y.) 506, 507 

i;. Pond (U. S.) 433 

V. Smith (U. S.) 265 

Anonymous (1 Bro. Ch. Gas. 376) 465 

(9 Mod. 66) 249, 250 

Anstruther v. Chalmer (Eng.) 339, 340, 344, 349 

Antelope, The (U. S.) 21 

Anthony v. Rice (Mo.) 191, 201, 203 

Applegate v. Smith (Mo.) 341 

Arayo v. Currell (La.) 374, 877 

Arbuckle v. Reaume (Mich.) 18, 403, 404 



xxil TABLE OF CASES. 

[References are to Pages.] 

Armistead v. Blytlie (Miss.) 434 

Armstrong v. Best (N. C.) .... 10, 13, 49, 133, 144, 146, 147, 148, 372 

V. Lear (U. S.) 231 

V. Stone (Va.) 93 

V. Toler (U. S.) 17, 18 

Arndt v. Arndt (Ohio) 187 

Arnold v. Potter (la.) 431 

Arrington o. Arrington (N. C.) 94, 99, 101, 170, 183, 184 

Ash V. K. R. Co. (Md.) 241, 492 

Askew V. Bank (Mo.) 279, 312, 31(i 

Atchison r. Lindsey (Ivy.) 227,236,328 

Atchison, etc. R. R. Co. v. Betts (Colo.) 479, 532 

V. Maggard (Colo.) 287, 516 

Atherton Co. v. Ives (U. S.) . 8, 13, 16, 16, 49, 254, 310, 314, 315, 316, 317 

Atlantic Phosphate Co. v. Ely (Ga.) 373, 429 

Attorney General v. Bouvrens (Eng.) . 280 

V. Dimond (Eng.) 280 

V. Hope (Eng.) 280 

Aurora, City of, v. West (Ind.) 443, 447 

Ayer v. Tilden (Mass.) 455 

r. Weeks (N. H.) 59,64,67,60,71 

Aymar v. Sheldon (N. Y.) 892, 396, 397, 398, 444, 448, 453 

Backhouse v. Selden (Va.) 434 

Bacon v. Home (Penn.) 16, 314 

Baetjer v. La Compagnie (U. S.) 381, 406 

Bagby v. R. R. Co. (Penn.) 16 

Bailey v. Maguire (U. S.) 529 

Baldwin v. Gray (La.) 13, 375, 446 

V. Hale (U. S.) 471, 473, 474 

Balfour u. Davis (Or.) 430 

V. Scott (Eng.> 346 

Balme v. Wombough (N. Y.) 434 

Baltimore v. Hussey (Md.) 281 

Baltimore & Ohio R. R. Co. v. Glenn (Md.) 130, 318 

V. Koontz (U. S.) 1.30 

Bank v. Balcom (Conn.) 71, 128 

v. Bleecker (Minn.) 288 

V. Davidson (Or.) 362 

V. Dillingham (N. Y.) 26 

V. Donnally (U. S.) 605, 506, 513, 522 

V. Earle (U. S.) 1.30, 510 

V. Ellis (Mass.) 26 

r. Griswold (N. Y.) 377, .391, 392 

V. Hall (Penn.) 419, 445 

V. Hartwell (Ala.) 39, 145, 272, 298 

f. Hill (Tenn.) 44, 45, .304, 307 

V. Howell (N. C.) 145, 147 

r. Hubbard (U. S.) 392 

V. Indiana Banking Co. (III.) 397, 445 

V. Lacombe (N. Y.) . 15, 16, 17, 254, 315, 322, 326, 326, 368, 396, 397, 

443, 449 

». Lee (U. S.) 43, 44, 299, 307 

w. Low(N. Y.) 371, 373, 389, 434, 4.S6 

V. Motherwell Co. (Tenn.) ,326 

V. National Bank (U. S.) 280, 297 



TABLE OP CASES. XXlll 

[References are to Pages.] 

Bank v. Nav. Co. (Eng.) 863 

V. Norwalk (Conn.) 467 

r. Porter (Conn.) 466,467,513,526 

V. Price (Md.) 22 

f. K. R. Co. (Wis.) 616 

». Richmond (Va.) 281,283 

V. Rindge (Mass.) 27 

V. Rindge (U. S.) 27 

V. Robinson (Conn.) 475, 476 

V. Shaw (N. Y.) 462 

V. Spalding (12 Barb. (N. Y.) 302) 17, 18 

V. Spalding (9 N. Y. 63) 294, 419 

V. State (Tenn.) 282 

t>. Steliings (S. C.) 31,311,314,317 

V. Sutton (U. S.) 391 

V. Talbot (Mass.) 414, 451, 506. 614, 626 

V. Trimble (Ky.) 526 

V. Walker (Conn.) 16, 279, 314, 316 

i;. Wells (Mass.) 392 

r. Williams (Miss.) 17,38,247 

V. Wood (Mass.) 371 

Barber v. Barber (U. S.) 94, 96, 96, 97, 98, 99, 104, 207 

V. Root (Mass.) 38, 195, 198 

Barker v. Brown (Ky.) 516 

V. Stacy (Miss.) 43, 44, 304, 307 

Barnett v. Kinney (U. S.) .... 10, 13, 16, 49, 271, 310, 313, 314, 317 

Barney v. Patterson (Md.) 188 

Barnum v. Barnum (Md.) 136 

Barrera v. Alpuente (La.) 141, 143 

Barretts. Dodge (R.L) 371,378,389,444,447 

Barter v. Wheeler (N. H.) 381 

Barth v. Backus (N. Y.) . . 16, 272, 310, 311, 314, 315, 320, 322, 324, 826 

V. Furnace Co. (111.) 610 

Barton v. Barbour (U. S.) 267 

Bartsch v. Atwater (Conn.) 469 

Bascom r. Zediker (Neb.) 434,437 

Bath Gaslight Co. v. ClafEy (N. Y.) 632 

Baum V. Birchall (Penn.) 146, 147, 372, 373, 374, 388, 443 

Bauserman v. Charlott (Kan.) 190, 522 

Baxter 2;. Willey (Vt.) 36,37 

Baxter, etc. Bank v. Talbot (Mass.) 414,451,506,614,525 

Beach r. R. R. Co. (N. Y.) 491 

Beal V. State (Ind.) 603 

Bearce v. Barstow (Mass.) 430 

Belirensmeyer u. Kreitz (111.) 120 

Belknap Sav. Bank v. Robinson (Conn.) 475, 476 

Bell V. Kennedy (Eng.) 119, 124 

V. Morrison (U. S.) 522 

V. Packard (Me.) . . . 144, 146, 147, 363, 371, 372, 373, 378, 380, 388 

Belt V. R. R. Co. (Tex.) 487, 492 

Bempde v. Johnstone (Eng.) 73, 109, 124 

Benbow v. Moore (N. C.) 531 

Bennett v. B & L. Association (Penn.) 433 

Bentiey v. Whittemore (N. J.) 13, 14, 15, 311, 312, 313, 316, 317 

Berrien v. Wright (N. Y.) 434, 436 

Berry v. Davis (Tex.) 277. 288 



XXiv TABLE OP CASES. 

[References are to Pages.] 

Besse v. Pellochoux (III.) 176, 177 

Bethell i;. Bethell (Ind.) 32,33,87,377,457 

Bettys V. R. R Co. (Wis.) 490 

Beverwyck Brewing Co. v. Oliver (Vt.) 294, 296, 372 

Bevierr. CoveIl(N. Y.) 430 

Bible Society v. Pendleton (W. Va) 40, 336, 337 

Bigelow V. Bumham (la.) 432 

Bingham's Appeal (Penn.) 236,362,364 

Birdseye v. Underbill (Ga.) 279, 318 

Birtwhistle v. Vardill (Eng.) 33, 34, 36, 133, 216 

Black V. Zacharie {U.S.) 272, 278, 280, 293, 312 

Blackinton v. Blackinton (Mass.) . . . . 8, 97, 98, 101, 173, 180, 191, 207 

Blackwell v. Webster (U. S.) 404, 420, 422 

Blake v. Williams (Mass.) 280, 322, 325 

Bloomer r. Bloomer (N. Y.) 349 

Blythe v. Ayres (Cal.) 76, 76, 84, 86, 91, 92, 133, 216, 220 

Boehme v. Rail (N. J.) 32, 130, 300, 304 

Booth V. Clark (U. S.) 263, 264, 266, 267, 321, 322 

Boothby v. Plaisted (N. H.) 294, 296, 384, 428 

Borden v. Fitch (N. Y.) . 103, 104 

Borland v. Boston (Mass.) 67, 70, 71, 118, 281 

Boston Investment Co. v. Boston (Mass.) 130 

Botany Worsted Mills v. Knott (U. S.) 366, 406 

Boulware v. Davis (Ala.) 264, 266, 267 

Bowditch V. Saltyk (Mass.) 340 

Bowen v. Newell (N. Y.) 448 

Bowersox v. Gill (Penn.) 190 

Bowles V. Field (U. S.) 10, 11, 31, 49, 147, 411, 428, 514 

Bowman v. Miller (Va.) 433, 484, 436 

Boyce v. R. R. Co. (la.) 22 

Boyd V. Selma (Ala.) 283 

Boykin v. Edwards (Ala.) 516 

Boyle V. Zacharie (U. S.) 389 

Brabston v. Gibson (U. S.) 893, 443, 447 

Bradlaugh v. De Rin (Eng.) 393,' 394 

Bradley v. Bander (Ohio) 281, 282 

Bragg V. Gaynor (Wis.) 288^ 289 

Brantford City, The (U. S.) 356, 362, 366, 406, 428, 484 

Brauer v. Compagnia (U. S.) 363 

Breitung, Inre (Wis.) 39ft 400 

Bridger r. R. R. Co. (S. C.) 486 

Bridges v. GriflBn (Ga.) 282 

Briggs V. Latham (Kan.) 378, 394, 897, 442, 462 

Brockway v. Express Co. (Mass.) 406 

Brodie v. Barry (Eng.) 248, 257, 346 

Bronson v. Lumber Co. (Minn) 29 33 515 

Brook 17. Brook (Eng.) 149, 162, W. 163 

V. Van Nest (N. J.) 393^ 394 

Brooke v. R. R. Co. (Penn.) 375 

Brown v. Bank (la.) ! . ! '. 430 

V. Bank (Ohio) ! '. 36 37 

V. Brown (Eng.) *.'.'. 342 

V. Browning (R. L) 21, 403 

V. Finance Co. (U. S.) 365, 433 

». Jones (Ind.) 448,462 

V. Lynch (N. Y.) 84 86 



TABLE OF CASES. XXV 

[Beferencea an to Fagao.] 

Brown v. R. R. Co. (Penn.) , ... 881 

V. Richardson (La.) 247 

V. Wright (Ark.) 531, 632 

Bruce ». Bruce (Eng.) 68, 73, 119, 120, 124, 328, 331 

V. U. R. Co. (Ky.) 25, 241 

Brunei v. Brunei (Eng.) 118 

Bryan v. Brisbin (Mo.) 316 

Bryant u. Edson (Vt.) 373,378,389,448 

Buchanan v. Bank (U. S.) 872, 433, 436 

V. Hubbard (Ind.) 631, 632 

Bucher ». B. R. Co. (U. S.) 529 

Buck V. Miller (Ind.) 281 

Bucy V. R. R. Co. (Miss.) 287 

Building & L. Ass'n v. Logan (U. S.) 431 

Bull V. Conroe (Wis.) 517 

Bullock V. Bullock (N. J.) 207, 512 

Burbank U.Payne (La.) 226,233 

Burchard v. Dunbar (111.) 605, 506. 507 

Burgett V. Williford (Ark.) 522 

Burlen v. Shannon (Mass.) 99, 103, 195, 206 

Burlington, etc. R. R. Co. v. Thompson (K«n.) 290, 516, 519 

Burlington University v. Barrett (la.) 334 

Burnett v. R. R. Co. (Penn.) 381, 406, 411 

Burns v. R. R. Co. (Ind.) 25, 241, 492 

Burtis V. Burtis (Mass.) 94, 95, 97, 101 

Butler V. Washington (La.) 190, 201 

V. Wendell (Mich.) 10, 271, 279, 810, 312, 318, 320, 324 

Byers v. McAuley (U. S.) 228, 265, 274 

Caoill v. Woodridge (Tenn.) 44, 45, 264, 265, 268 

Caledonia Insurance Co. v. Wenar (Tex.) 287 

Calloway i;. Bryan (N. C.) 156 

Cameron v. Watson (Miss.) 40, 137, 139, 334 

Campbell v. Coon (N. Y.) 459 

V. Crampton (U. S.) 146, 148, 149, 150, 160, 163, 166, 169, 410, 411, 412 

V. Tousey (N. Y.) 229, 231, 232, 243 

Canadian Pac. R. R. Co. v. Johnson (U. S.) 524 

Capper's Will, In re (la.) 628 

CarUsle v. Chambers (Ky.) 394, 454 

Carnegie v. Morrison (Mass.) . . 32, 857, 376, 392, 411, 412, 417, 419, 458 
Carnegie Steel Co. v. Construction Co. (Tenn.) . . 372, 388, 394, .396, 452 

Carpenter v. Bell (Tenn.) 29, 32, 136, 333 

V. R. R. Co. (Me.) 532 

V. Strange (U. S.) 188 

Carr, Ex parte (Kan.) 601 

Carson v. R. R. Co. (Tenn.) 519, 520 

U.Smith (Mo.) 484,488,489,515 

Carter v. Goode (Ark.) 479, 480 

Case V. Dodge (R. L) 10, 11, 147 

Cassidy, Succession of (La.) 30, 33, 37, 457, 458 

Castro V. Dlies (Tex.) 175, 177, 178, 179, 180 

Catlin V. Silver Plate Co. (Ind.) ... 13, 16, 46, 263, 264, 266, 267, 268 

Caulfield v. Sullivan (N. Y.) 340, 341 

Cavanaugh u. Nav. Co. (N. Y.) 481,495,624 

Central Trust Co. v. Burton (Wis.) 390, 431, 434 

». R. R. Co. (U. S.) 287 



XXVI TABLE OF CASES. 

[References are to Pages.] 

Chafee v. Bank (Me.; .... 13, 15, 31, 130, 311, 312, 314, 316, 317, 325 
Chamberlain v. Chamberlain (N. Y.) 40, 130, 137, 189, 140, 334, 335, 387, 338 

V. Napier (Eng.) 340 

Chambers v. Church (R. I.) 419, 420 

Champon u. Champon (La.) 94,98,177,201 

Chapman v. Chapman (111.) 96, 98, 99, 100, 101, 184 

V. Chapman (Kan.) 198 

V. Robertson (N. Y.) . . . . 31, 39, 362, 363, 378, 389, 390, 431, 432 

Charlestown v. Boston (Mass.) 87, 93 

Chartered Bank of India v. Nav. Co. (Eng.) 363 

Chase v. Chase (Mass.) 170, 198 

V. Henry (Mass.) 472 

Cheelyr. Clayton (U. S.) 94,99,195 

Cheever v. Wilson (U. S.) 96, 96, 99, 101, 190, 196 

Chenery v. Waltham (Mass.) 123 

Chicago, etc. R. R. Co. v. Ferry Co. (U. S.) 628 

V. Moore (Neb.) 520 

V. Packet Co. (III.) 44, 45, 264, 265, 266 

0. Sturm (U. S.) 289, 290, 521 

China Mutual Ins. Co. v. Force (N. Y.) 187 

Chipman y. Peabody (Mass.) 29,30,321 

Chitty V. Chitty (N. C.) 59, 72, 111, 112 

Cincinnati, H. & D. R. R. Co. v. McMuUen (Ind.) 482, 486, 492 

City of Aurora v. West (Ind.) 443, 447 

City of Carlisle, The (U. S.) 514 

City of Hartford »;. Champion (Conn.) 115,117,121,125 

Claflin V. Meyer (La.) 294, 295, 296, 372, 377 

Clark t;. Child (Mass.) 456 

V. Clark (N. J.) 167, 168 

V. Clark (Mass.) 172, 195 

V. Graham (U. S.) 28, 33 

V. Peat Co. (Conn.) 279 

V. Searight (Penn.) 378 

Clarke v. Bank (Ark.) 529 

Coad V. Home Cattle Co. (Neb.) 437 

Cochran v. Benton (Ind.) 32, 38, 247 

V. Ward (Ind.) 416, 418, 457, 525 

Cockle V. Flack (U. S.) 431 

Codmanv. Krell (Mass.) 296,330,340 

Coffinj; V. Dodge (Mass.) 21, 26 

Coffman v. Bank (Miss.) 392, 397, 439 

Coghlan y. R. R. Co. (U. S.) 363, 390, 455, 456 

Colburn v. Colburn (Mich.) 111. 183, 184 

V. Holland (S. C.) 73, 95, 96, 120 

Cole V. Cunningiiam (U. S.) . . . .13, 16, 49, 267, 311, 314, 324, 325, 326 

Collins V. Collins (N. Y.) 160, 204 

Columbian Government v. Rothschild (Eng.) 510 

Commercial Bank v. Davidson (Or.) 362 

V. Motherwell Co. (Tenn.) 326 

V. R. R. Co. (Wis.) 516 

Commonwealtli v. Andrews (Mass.) 502 

V. Avcs (Mass.) 21 

V. Bassford (N. Y.) 47, 423, 424, 428 

V. Blanding (Mass.) 502 

i;. Chiovaro (Mass.) 501 

V. Gaines (Ky.) 281 



TABLE OP CASES. XXVll 

[References are to Pages.] 

Commonwealth v. Graham (Mass.) 87, 98, 167, 531 

i;. Green (Mass.) 21,22,24 

V. Kunzmann (Penn.) 497, 498 

t;. Lane (Mass.) 10, 18, 19, 20, 21, 26, 161, 164, 167, 159, 160, Itil, 171 

V. Linton (Va.) 500 

V. Macloon (Mass.) 499,500,502,503 

V. Pettes (Mass.) 501 

V. Putnam (Mass.) 19, 159 

r. R. R. Co.(Va.) 281,282 

r. Uprichard(Ma8s.) 502,503 

V. Van Tuyl (Ky.) 502 

V. White (Mass.) 502 

Compton V. Bearcroft (Eng.) 167 

Concord v. Ruraney (N. H.) 105, 106, 107, 108 

Connor v. Donnell (Tex.) 432 

Consequa v. Fanning (N. Y.) 455 

Cook V. Cook ( Wis.) 8, 96, 96, 101, 102, 163, 164, 165, 172, 201 

V. Litchfield (N. Y.) 372, 394 

V. Moffat (U. S.) 471, 473, 474 

V. Van Horn (Wis.) 45, 316, 318 

Cooper y. Beers (111.) 64,71,120,121,328 

V. Earl of Waldegrave (Eng.) 455 

V. Reynolds (U. S.) 207 

V. Sandford (Tenn.> 455 

Corbett u. Littlefield (Mich.) 44. 307, 309 

Cottins y. De Sartiges (R.L) 352,353,354 

Cottrell V. Cottrell (Eng.) 350 

Cox i;. Cox (Ohio) 196,201,203 

V. United States (U. S.) 390, 443 

Craig V. Gunn (Vt.) 289 

i;. Williams (Va.) 44,307,308 

Crapo V. Kelly (U. S.) . 14, 15, 44, 45, 271, 273, 274, 310, 311, 322, 324, 325 

Crawford v. Bank (Ala.) - 397, 455 

i;. State (Miss.) 157, 158, 159 

V. Wilson (N. Y.) 69, 64, 67, 69, 74 

Cromwell v. County of Sac (U. S.) 431, 456 

Cronan V. Fox (N. J.) 44,271,272,274,304,307 

Cross V. Brown (R. I.) 277, 289 

V. Cross (N. Y.) 197, 204 

V. Trust Co. (N. Y.) . 11, 12, 137, 140, 253, 272, 333, 335, 337, 338, 347 

Crouch V. Dabney (Va.) 285 

Crowley y. R. R. Co. (N. Y.) 491 

Crumlish v. Improvement Co. (W. Va.) 357, 391 

Crusoe v. Butler (Miss.) 341 

Culver's Appeal (Conn.) 106,109 

Cummington v. Belchertown (Mass.) . 44, 47, 98, 150, 151, 154, 162, 171, 

196, 19T 

Curran v. Craig (U. S.) 265 

Curtis ;;. Hutton (Eng.) 40, 140 

V. Leavitt (N. Y.) 378, 390, 434 

r. R. R. Co. (N. Y.) 362, 380, 381 

Cutter V. Davenport (Mass.) 232, 235 

Cutts V. Haskins ( Mass.) 93 

Da Cunha, In re (Eng.) .141 

Dale V. Irwin (111.) . . . ,- 60 



jcxviii TABLE OF CASES. 

[Beferencea are to Pages.] 

Dale V. R. R. Co. (Kan.) 22, 24, 480, 489 

Dalhousie v. M'Douall (Eng.) 86, 216, 217 

Dalpay, In re (Minn.) 16,273,294,310,312,314 

Dalrymple v. Dalrymple (Eng.) 6, 167 

Dammert v. Osborn (N. Y.) 11, 140, 336, 337, 340 

Daniel v. HUl (Ala.) 88, 89 

Darby D.Mayer (U.S.) 28,333 

D'Arcy v. Ketchum (U. S.) 189, 190 

Darden v. Wyatt (Ga.) 86, 88 

Davidow r. R. R. Co. (U. S.) 494 

Dayifl v. Estey (Mass.) 263, 266 

r. Gray (U. S.) 267 

r. Morton (Ky.) 625 

V. R. R. Co. (Wis.) 406 

V. Williams (Miss.) 299 

Davison r. Gibson (U. S.) 531,532 

Dawes v. Boylston (Mass.) 255, 285 

V. Head (Mass.) 225, 227, 231, 243, 253, 264, 25ti 

Dawson v. Jay (Eng.) 259 

Dealy v. United States (U. S.) 601 

Debevoise v. R. R. Co. (N. Y.) 490, 491 

De Bonneval v. De Bonneval (Eng.) Ill 

De Brimont v. Penniman (U. S.) 180, 188 

Decouche v. Savetier (N. Y.) 180, 331 

Dedham v. Natick (Mass.) 83, 95 

De Haber v. Queen of Portugal (Eng.) 610 

De Ham v. R. R. Co. (Tex.) 482, 483 

Dehon ». Foster (Mass.) 326 

De Jarnett v. Harper (Mo.) 81, 82, 83, 93 

De La Montanya v. De La Montanya (Cal.) . 67, 69, 70, 131, 191, 207, 209 

De La Vega v. Vianna (Eng.) 512 

DeMeli t;. DeMeli (N. Y.) 116,124,190,191 

Dennick v. R. R. Co. (U. S.) 25, 240, 475, 480, 492, 494 

Denny r. Bennett (U. 8.) 471, 472 

V. Williams (Mass.) 465 

Depasw. Mayo (Mo.) 37,174 

Depeau v. Humphreys (La.) 434 

Derringer v. Derringer (Del.) 243 

Desesbats v. Berquier (Penn.) 334 

Desmare v. United States (U. S.) 62, 67, 70, 72, 109, 126 

De Sobry v. De Laistre (Md.) 226, 243, 254 

Despard v. Churchill (N. Y.) 10, 39, 253, 254, 255, 328, 338 

De Witt p. Buchanan (N. Y.) 475,476 

De Wolf ». Johnson (U. S.) 389, 390, 431, 433, 436 

Dial V. Gary (S. C.) . . 13, 225, 227, 229, 281, 232, 233, 234, 242, 271, 275, 

277, 278, 279, 280, 284 

Dickinson v. Edwards (N. Y.) 362, 363, 380, 419, 432, 436 

r. Hoomes (Va.) 37,245,246 

Dickinson. Ex parte (S. C.) 10, 11, 314, 317 

Dickson v. Dickson (Tenn.) 19, 21, 25, 160, 167, 158 

Dike f. R. R. Co. (N. Y.) 380, 489 

Ditson V. Ditson (R. L) 201, 203 

Dixon V. State (Tex.) 502 

Doerr v. Forsythe (Ohio) , . 98, 203 

DofTlioni v. Crispin (Eng.) 330 

Dolan V. Green (Mass.) 296, 373, 428 



TABLE OP CASES. XXIX 

[References are to Pages.] 

Dolphin V. Robins (Eng.) 96, 97, 99, 104, 199 

Don V. Lippmann (Eng.) 618, 623 

Don's Estate (Eng.) 216 

Donald v. Hewitt (Ala.) 46 

Donovan v. Pitcher (Ala.) 17, 21 

Doolittle V. Lewis (N. Y.) 242, 277 

Dord V. BonafEee (La.) 372, 377 

Dorsey v. Dorsey (Penn.) 199 

V. Maury (Miss.) 188 

Doty V. Hendrix (N. Y.) 837 

Dougherty v. Snyder (Penn.) 61, 94, 96, 146 

Doughty i;. Doughty (N. J.) 191, 201, 204, 206 

Douglas V. Bank (Tenn.) 16, 317, 818, 394, 896, 453 

i;. Douglas (Eng.) 79, 89, 90, 127, 129 

V. Insurance Co. (N. Y.) 130, 287 

Dow V. Blake (111.) 207 

V. Sudbury (Mass.) . . • 281 

Downer v. Chesebrough (Conn.) .... 414, 415, 451, 605, 506, 514, 525 
Drake v. R. R. Co. (Mich.) 518 

V. Rice (Mass.) 507 

Dresser v. Illuminating Co. (U. S.) 80, 88, 93 

Drummond v. Drummond (Eng.) 248, 261 

Dugan V. Lewis (Tex.) 431 

Duke of Brunswick v. King of Hanover (Eng.) 510 

Dumaresly v. Fishly (Ky.) 167, 168 

Duncan v. United States (U. S.) 890 

Dunham y. Dunham (111.) 101,164,191,199,203,205 

Dunn V. Adams (Ala.) 531 

Dunscomb v. Bunker (Mass.) 894 

Dupont V. Quebec S. S. Co. (Canada) 481 

Dupuy V. Wurtz (N. Y.) . . 65, 67, 69, 70, 71, 72, 109, 114, 115, 117, 121, 

122, 124, 334 

Dutcher v. Dutcher (Wis.) 95, 98 

Dwight V. Boston (Mass.) 282 

Dyer v. Osborne (R. I.) 282 

Dykes V. Lockwood (Kan.) 281 

Earl r. Dresser (Ind.) 258,261 

Earl of Winchelsea v. Garetty (Eng.) 248, 249, 250 

East Tenn. R. R. Co, v. Kennedy (Ala.) 277, 519, 620 

V. Lewis (Tenn.) 486 

Edgerly *;. Bush (N. Y.) . . . . 10, 14, 15, 48, 44, 272, 300, 304, 307, 484 
Edwards v. Jones (N. C.) 188 

V. Kearzey (U. S.) 439, 517 

Egbert v. Baker (Conn.) 13, 279, 310, 312, 313, 317, 820, 324 

Elbers v. Insurance Co. (N. Y.) 122, 124 

Elder o. Reel (Penn.) 204 

Elliott u. Elliott (Md.) 156 

f. Lord Minto (Eng.) 248 

Ellis i;. Ellis (Minn.) 8,164,196,198 

V. White (la.) 198 

Elsasser v. Haines (N. J.) 188 

Emanuel r. White (Miss.) 443,447 

Embry v. Millar (Ky.) 233, 236 

Emery v. Berry (N. H.) 629 

V. Clough (N. H.) 271. 804 



XXX TABLE OF CASES. 

[References are to Pages.] 

Energia, The (U. S.) 379, 406 

Ennisi-. Smith (U. S.) 72,79,111,122,124,328,329,331 

Enoliin D. Wylie (Eng.) 339,340,342 

Equitable, etc. Society v. Clements (U. S.) 399 

V. Nixon (U. S.) 398, 408 

V. Trimble (U. S.) 398, 409 

Erman ?;. Lehman (La.) 294,295,296,309 

Eureka Springs Co. v. Timmons (Ark.) 530 

Evans v. Cleary (Penn ) 508, 510 

V. Tatem (Penn.) 233. 236 

Everett r. Vendryes (N. Y.) 392,394,396,397,398,449 

Evey tJ. R. R. Co. (U. S.) 475,477,480,485,488,490,515 

Ex parte Carr (Kan.) 501 

Dickinson (S. C.) 10, 11, 314, 317 

Kinney (U. S.) 11, 152, 153, 497, 498 

McNeely (W. Va.) 500 

Picquet (Mass.) 231,235 

Rogers (Tex.) 501 

Smith (U. S.) 504 

Exchange Bank i;. Hubbard (U. S.) 3G2 

Fairchild v. Fairchild (N. J.) 197 

Falls V. Sav. & L. Co. (Ala.) 434 

Fanning v. Consequa (N. Y.) 455 

Fantr. Miller (Va.) 388,394,412.434 

Farmers' Loan & T. Co. v. Tel. Co. (N. Y.) 264, 266, 267 

Farmers' Nat. Bank v. Sutton (U. S.) 391 

Faulkner v. Hyman (Mass.) ... 15, 16, 46, 61, 130, 313, 314, 315, 318 

Fatiton V. Middlebrook (Conn.) 522 

Faxton v. McCosh (la.) 282 

Fay r. Haven (Mass.) 225,227,231,233,236,243,253,255 

Felch V. Bugbee (Me.) 392 

Fellows V. Miner (Mass.) 11, 139, 336, .337 

Felt 0. Felt (N. J.) 170, 191, 206 

Ferguson v. Crawford (N. Y.) 197 

Ferris v. Kimble (Tex.) 281 

Fessenden v. Taft (N. II.) 31, 390, 428 

Finch V. York Co. (Neb.) 282 

Findley v. Hall (Ohio) 374, 377, 434 

First Nat. Bank v. Balcom (Conn.) 71, 128 

u. Dillingham (N. Y.) . 26 

V. Hall (Penn.) 419,445 

r. Price (Md.) 22 

V. Shaw (N. Y.) 462 

V. Walker (Conn.) 16, 279, 314, 316 

Firth v. Firth (N. J.) 61,70,74,109,117,118,133 

Fislier v. Parry (Ind.) 457 

Fithian v. R. R. Co. ( Penn.) 290 

Flagg V. Baldwin (N. J.) 384, 424, 428, 536 

Flannery's Will (Penn.) 231, 2-32, 334 

Fletcher v. Insurance Co. (U. S.) 379, 398, 409 

Flood V. Growney (Mo.) 124 

Florance's Will (N. Y.) 96, 98 

Flower v. Flower (N. J.) 99, 206 

Flukes, In re (Mo.) 521 

Foley's Estate (Penn ) 82,93 



TABLE OP CASES. XXXi 

[References are to Pages.] 

Fonsecar. Cunard S. S. Co. (Mass.) 406 

Ford V. Ford (Mich.) 40, 3o9, 341 

D.Ford (La.) 177,178 

V. Ford (Wis.) . . 30, 32, 33, 137, 333, 334, 385, 337, 339, 840, 341, 348 

r. Insurance Co. (Ky.) 398,399,408,421 

Forepaugh v. R. R. Co. (Penn.) 400 

Fosdick V. Fosdick (U. I.) Ill, 199 

Foss u. Nutting (Mass.) 510 

Foster v. Waterman (Mass.) 92, 189, 192, 221, 223 

Foute V. State (Tenn.) 501 

Fowler, Appeal of (Penn.) 271, 279, 293 

Fowler v. Bell (Tex.) 304 

Fox V. Adams (Me.) 315 

Frank v. Bobbitt (Mass.) ... 10, 13, 14, 16, 271, 310, 313, 317, 318, 324 

Frazier v. Boggs (Fla.) 30, 32, 33, 136, 3-33 

Fred Miller Brewing Co. v. De France (la.) 294, 428 

Freeman, Appeal of (Conn.) . 10, 11, 17, 131, 141, 145, 146, 147, 372, 374 

Freeman v. Alderson (U. S.) 185 

Freese V. Brownell (N. J.) 392,397,432 

Freetown v. Taunton (Mass.) 83, 84 

Frost V. Brisbin (N. Y.) 59 

Fry's Case (Penn.) 60 

Fulham v. Howe (Vt.) 122 

Fuller V. Fuller (Ala.) 158 

V. Steiglitz (Ohio) 13, 16, 279, 310, 311, 316, 525, 526 

Furgeson v. Jones (Or.) 221, 222, 223 

Fuss r. Fuss (Wis.) 175,177,178,179,180 

Gaiwes, In re (La.) 189 

Ganer v. Lanesborough (Eng.) 529 

Garden City Sand Co. v. Miller (lU.) 458 

Gardner r. Lewis (Md.) 11,18,318,529,5.30 

Garner v. Garner (Md.) 157 

V. Wright (Ark.) 531 

Garr v. Stokes (N. J.) 512 

Garrettson v. Bank (U. S.) 373, 392, 411 

Gay V. Ralney (III.) 394, 452 

Gelstonr. Hoyt (U. S.) 187 

Geoghegan v. Atlas S. S. Co. (N. Y.) 481 

Gettys y.Gettys (Tenn.) 198,199 

Gibbs V. Fremont (Eng.) 455 

Gibson v. Insurance Co. (U. S.) 898, 399, 417, 443 

V. Sublett (Ky.) 508 

Gilchrist v. Oil Co. (W. Va.) 529 

Gilman n. Oilman (Me.) 62, 65, 67, 69, 70, 79, 117, 123, 840 

y. Ketchum (Wis.) 13,16,264,265,206,267 

V. Lockwood (U. S.) 471 

V. Stevens (N. H.) 469 

Gist V. Tel. Co. (S. C.) 424, 428, 532 

Glaser v. Priest (Mo.) 262 

(ilenmavis, The (U. S.) 363, 406 

Glenn r. Smith (Md.) 232,23.3,243 

V. Thistle (Miss.) 30, 32, 426 

Glenny Glass Co. v. Taylor (Ky.) 374 

Glidden v. Cliamberlain (Mass.) 484 

Goddard v. Foster (U. S.) 515 



XXXil TABLE OP CASES. 

[References are to Pages.] 

Golson r.Ebert (Mo.) 377 

Goodall y. Marshall (N. H.) 226,264,328 

Goodman, Trusts of (Eng.) 85, 216 

Goodman v. Goodman (Eng.) 35, 216 

Goodricli v. Houghton (N. Y.) 405 

Goods of Reid (Eng.) 351 

Goodwin v. Jones (Mass.) 23.5 

Graham v. Bank (N. Y.) 177, 272, 466 

Grand Lodge v. New Orleans (U. S.) 617 

Grant v. Healy (U. S.) 391 

Graveley v. Graveley (S. C.) . . . 227, 229, 230, 232. 253, 254, 265, 256 
Gravest'. Johnson (Mass.) 294 

V. Roy (La.) 318 

Gravillon v. Richards (La.) 328 

Gray r. Holmes (Kan.) 33,34,36,133,222 

Great Western Tel. Co. v. Purdy (U. S.) 622 

Green r. Iron Works (N. J.) 313,316 

V. Van Buskirk (6 Wall. 307) . 8, 11, 13, 46, 49, 272, 304, 305, 316, 521 

V. Van Buskirk (7 Wall. 139) 8, 10, 187 

Greene v. Greene (Mass.) 69, 96, 102, 129 

Greenhow v. James (Va.) 149, 213 

Greenwald v. Freese (Cal.) 443, 457, 462 

Greenwoodv. Curtis (Mass.) 17,20,21,47,419,424,429 

Gregory v. Gregory (Me.) 133, 164, 196, 197, 198 

Grimmett v. Witherington (Ark.) 258, 259, 261 

Griswold v. Golding (Ky.) 444 

V. Waddington (N. Y.) 18 

Gross V. Jordan (Me.) 366, 444 

Grove, In re (Eng.) 216 

Grover & B. M. Co. v. RadclifEe (U. S.) 190 

Guarantee Co. r. Bank (Va.) Ill 

Guerney v. Moore (Mo.) 21, 26, 27 

Guier v. O'Daniel (Penn.) 62, 65, 73, 74, 79, 116, 120, 124, 328 

Guildhall, The (U. S.) 400 

Guillander i-. Howell (N. Y.) . . . 29, 39, 42, 46, 271, 272, 273, 300, 31 1 

Gulick r. Gulick (N. Y.) 233, 230 

Gunnr. Barry (U. S.) 517 

Guthrie i;. Lo wry (Penn.) 188 

Haogin v. Haggin (Neb.) 632 

Hairston V. Hairston (Miss.) 62,65,115,117,177,178,272,331 

Hale 7'. Nav. Co. (Conn.) 881,382,407 

HalU. Cordell (U. S.) 363,391,392,414,525 

V. Harrison (Mo.) 236, 242, 284, 285 

Hallett V. Bassett (Mass.) 65, 69, 70, 79, 118, 124 

Halley v. Ball (111.) 510 

Halsted v. Straus (U. S.) 62 

Hamilton v. Chouteau (U. S.) 266 

Hancock Nat. Bank v. Ellis (Mass.) 26 

Handley v. Harris (Kan.) 44, 304, 307 

Hanks v. State (Tex.) 497, 501 

Hanley v. Donoghue (U. S.) 529 

Hanna v. R. R. Co. (111.) 489 

Hanover v. Turner (Mass.) 198 

Hanover Nat. Bank r. Howell (N, C.) 145,147 

Harding r. Alden (Me.) . 88,94,95,96,97,98,183,184,196,201,203.208 



TABLE OF CASES. ZXXlll 

[Beferencea are to Pages.] 

Hardware M'fg Co. v. Lang (Mo.) 277, 290 

Harford v. Morris (Eng.) 16» 

Harper v. Butler (U. S.) 232, 284 

Harral v. Harral (N. J.) . 60, 72, 94, 107, 108, 109, 117, 118, 150, 169, 177 
Harris v. Hardeman (U. S.) 190 

V. Harris (N. C.) 204 

Harrisburg, The (U. S.) 495 

Harrison v. Edwards ( Vt.) 447, 513, 626 

V. Harrison (Ala.) 94, 95, 96, 173, 195, 198 

w. Nixon (U. S.) 339,340,342,347,348 

V. Sterry (U. S.) 243, 280, 309, 322, 324, 325, 515 

Hart w. Bostwick (Fla.) 522 

V. Lindsey (N. H.) 60, 62, 70, 115, 116, 118 

V. Wills (la.) 371, 388, 389, 434 

Harteau v. Harteau (Mass.) 95, 96, 97, 101, 103, 170, 183. 184 

Hartford v. Champion (Conn.) 115, 117, 121, 126 

Hartman «;. Aveline (Ind.) 504 

V. R. R. Co. (Mo.) 356 

Harvard College v. Gore (Mass.) 79, 119, 122, 124, 126 

Harvey o. Merrill (Mass.) 531 

V. Richards (U. S.) 227, 230, 244, 253, 254, 255, 284, 285 

Harwell «. Sharp (Ga. ) 277,516,521 

Hatch V. Hansom (Mo.) 405 

Hausman v. Nye (Ind.) 377 

Haviland v. Halstead (N. Y.) 166 

Hawkins v. Ragsdale (Ky.) 203 

Hawley v. Bibb (Ala.) 423 

V. James (N. Y.) 29, 33, 87, 40 

Haymond v. Haymond (Tex.) . 60 

Hazelr. R. R. Co. (la.) 406 

Healy i;. Reed (Mass.) 138, 139, 140, 337 

Heath v. Heath (La.) 99, 100 

Hedenberg v. Hedenberg (Conn.) 233, 236 

Heebner v. Insurance Co. (Mass.) 399, 444, 464 

Hegeman v. Fox (N. Y.) ... 72, 111, 113, 114, 118, 177, 199, 328, 331 

Heine i'. Insurance Co. (La.) 29, 175 

Helleman's Will (Eng.) 141 

Helton V. R. R. Co. (Ala.) 475, 486, 487 

Hemmaker V. State (Mo.) 502 

Henry v. Sansom (Tex.) 430 

V. Sargeant (N. H.) 499 

Hernandez, Succession of (La.) 21, 25, 150, 157, 158, 177 

Herrick v. R. R. Co (Minn.) 475, 480, 485, 487, 490, 493 

Herron v. Keran (Ind.) 281 

Hervev «. Edens (Tex.) . . . . 31,310,311,314,317,320,321,322,324 

V. Locomotive Works (U. S.) 8, 302, 307, 309 

Hewit, In re (Eng.) 249 

Hiatt V. Griswold (U. S.) 433 

Hibernia Nat. Bank v. Lacombe (N. Y.) 15, 16, 17, 254, 315, 322, 325, 326, 

368, .396, 397, 443, 449 

Hickox r. Elliott (U. S.) 389, 390, 404, 419, 420 

Hicks r. Brown (N. Y.) 396,397 

r. Insurance Co. (U. S.) 372,377,399,408 

V. Pope (La.) 178 

Hiestandr. Kun8(Ind.) 74,80,88,109,141,142,143 

Higgins V. R. R. Co. (Mass.) , 25, 448 



XXXIV TABLE OF CASES. 

[References are to Pagea.] 

Hilbish V. Hattel (Ind.) 38, 203 

Hill V. Bank (N. H.) 144 

V. Chase (Mass.) 371 

V. Hill (111.) 94, 101, 115, 117, 196, 197, 199 

V. Spear (N. H.) 47, 294 

V. Tucker (U. S.) 230, 231, 237 

Hilton w. Guyot (U. S.) 6,17,188 

Hinds V. Brazealle (Misa.) 18 

Hoadley r. Transportation Co. (Mass.) 356,505,506,514 

Hobson V. Hale (N. Y.) 40 

Hoffman v. Carow (N. Y.) 484 

V. Hoffman (N. Y.) 197, 198, 204 

Hohner v. Gratz (U. S.) 188 

Hollis V. Seminary (N. Y.) 12, 140 

Holmes v. Green (Mass.) 118 

V. Holmes (Eng.) 348 

t'. Manning (Mass.) 434 

V. Remsen (20 Johns. 229) 243, 318 

V. Remsen (4 Johns. Ch. 460) 280,321,322 

Holy oke r. Haskins (Mass.) 85,88,90,106 

Homestead Cases, The (Va.) 517 

Hood's Estate (Penn.) 71, 72, 117, 125 

Hood i;. Harrington (Eng.) 235 

V. Hood (11 Allen, 196) 96, 97, 99, 103, 184, 190, 195, 196 

V. Hood (110 Mass. 463) 198 

V. State (Ind.) 3, 164, 198 

Hooker v. Olmstead (Mass.) 228, 236 

Hope w. Brewer (N. Y.) 40,139,334,337 

Home V. Rouquette (Eng.) 392, 393, 394, 39(3, 452 

Homthall v. Burwell (N. C.) 13, 14, 43, 44, 187, 271, 272, 300, 304, 307, 308. 

521 

Hosford V. Nichols (N. Y.) 432 

Hoskins r. Matthews (Eng.) 113,114,118 

Houghtaling r. Ball (Mo.) 413,531,532 

Howlandr. R. R. Co. (Mo.) 277,290 

Hoyt V. Sprague (U. S.) 259, 261 

V. Thompson (N. Y.) 277, 279, 299, 306 

Hubbard v. Bank (U. S.) 392,413 

Hubbell V. Land & Imp. Co. (Tenn.) 372, 434, 437, 513 

Hugo, The (U. S.) 365, 406 

Hull V. Blake (Mass.) 447 

HuUett V. King of Spain (Eng.) 509 

Humphreys y. Hopkins (Cal.) 264,266 

Hunt i;. Hunt (N. Y.) 94, 95, 96. 97, 99, 101, 103, 104, 170, 183, 184. 195, 

196, 529 

r. Jones (R. I.) 370, 413, 431 

V. Perry (Mass.) 281 

«. Standart (Ind.) 392,396,397,443,453,454 

Huntington v. Attrill (U. S.) 21, 22, 24,26, 26, 151, 157, 189, 476, 478, 480. 

485, 490. 492 

Huntley v. Merrill (N. Y.) 408 

Hurst V. Mut. L. Ass'n (Md.) 409 

Huse «;. Hamblin (la.) 462 

Hutchings V. Kimmell (Mich.) 160,161,167,168 

Hyde v. Goodnow (N. Y.) 372, 398, 408 



TABLE OF CASES. XXXV 

[References axe to Pages.] 

Illinois Cbntkal R. R. Co. v. Ihlenberg (U. S.) 480, 487 

V. Smith (Miss.) 277,287,618,521 

In re BrcltungJ Wis.) 399, 400 

Capper's Will (la.) 528 

Da Cunha (Eng.) 141 

Dalpay (Minn.) 16, 273, 294, 810, 312, 314 

Flukes (Mo.) 621 

Gaines (La.) 189 

Grove (Eng.) 216 

Helleman's Will (Eng.) 141 

Hewit (Eng.) 240 

Johnson (la.) 82, 93 

Kimball (N. Y.) 204 

Mohr (Ala.) 504 

Olson's Will (la.) 69, 71, 125 

Rice (Mich.) 124, 128, 259 

Robert's Will (N. Y.) 137, 334 

Steer (Eng.) 74 

Ingraham i;. Geyer (Mass.) 312, 315 

Insurance Co. v. Assessors (La.) 281 

V. Brinkley Co. (Ark.) 871, 377, 398, 399, 408 

V. Chambers (N. J.) 277, 288 

V.Clements (U.S.) 39!* 

V. Companhia de Moagens (U. S.) 461 

r. Corbett (111.) 288 

V. Force (N. Y.) 187 

V. Hardware Co. (Tex.) 188 

V. Hettler (Neb.) 277, 290 

V. Nixon (U. S.) 898, 408 

V. Portsmouth (Mass.) 277 

r. Robison (U. S.) 371,375,399 

V. Russell (U. S.) 375 

V. Sawyer (Mass.) 408 

r. Trimble (U.S.) 398,409 

17. Trust Co. (U. S.) 409, 443 

V. Wenar (Tex.) 287 

Iowa, The (U. S.) 406 

Irvine v. Barrett (Penn.) 389 

Isham V. Gibbons (N. Y.) 114 

Ives V. McNicoU (Ohio) 76, 221 

Ivey V. LoUand (Miss.) 18, 362 

Jacks v. Nichols (N. Y.) 436 

Jackson v. Com. (Ky.) 600 

r. Green (Ind.) 457 

v. Jackson (80 Md. 176) 167,168 

i;. Jackson (82 Md. 17) 10,152,153,160,161,167 

V. Jackson (1 Johns. 424) 198 

V. Johnson (Ga.) 233, 236 

V. Mortgage Co. (Ga.) 377, 431 

Jacobs V. Credit Lyonnais (Eng.) 363, 442, 443 

Jacquette v. Huguiron (U. S.) 190 

James' Estate (Cal.) 197 

James v. James (Tex.) .... 532 

Jenness v. Jenness (Ind.) 94, 95, 101, 102, 103 

Jennings v. Jennings (Ohio) 36, 341, 344 



XXXVl TABLE OP CASES. 

[Eeferences are to Pages.] 

Jennison v. Hapgood (Mass.) 117, 121, 124, 281, 253 

Jessup V. Carnegie (N. Y.) 629 

Johns V. State (Ind.) 498. 501 

Johnson, In re (la.) 82, 93 

Johnson v. Hunt (N. Y.) 323 

V. Jackson (Ga.) 233, 2;i6 

V. Powers (U. S.) 230, 231, 235, 237 

Johnston v. Gawtry (Mo.) 38, 147, 247 

V. R. R. Co. (U. S.) . 495, 622, 624 

Johnstone v. Beattie (Eng.) 82, 114, 268, 259, 261 

Jones V. Jones (Miss.) 133, 183, 196 

V. Jones (N. Y.) 163, 191, 204, 512 

V. Leonard (la.) 504 

V. Rice (Ga.) 531 

Jopp V.Wood (Eng.) 62,68,122 

Jordon v. Thornton (Ark.) 393, 610 

Joslyn i;. Miller (Neb.) 434 

Judy V. Kelley (111.) 235 

Juillard v. May (111.) 81, 311, 313 

Kahl v. R. R. Co. (Ala.) 478, 487 

Kanaga v. Taylor (Ohio) 48, 44, 304, 307 

Kansas City R. R. Co. v. Cunningham (Kan.) 518 

Kansas Pac. R. R. Co. v. Cutter (Kan.) 241 

Kavanaugh v. Day (R. I.) 465 

Keegan v. Geraghty (111.) 35, 86, 222 

Keith V. Keith (Mo.) 29 

Keiwert v. Meyer (Ind.) 371, 377, 384, 413, 428 

Kelley v. Kelley (Mass.) 528, 530, 531, 532 

Kellogg V. Miller (U. S.) . . • 373, 380, 390, 431, 432 

Kelly V. Garrett (Ala.) 60 

Kelsey v. Green (Conn.) 80, 81, 100, 259, 260 

Kennebrew v. Machine Co. (Ala.) 444, 532 

Kennedy v. Knight (Wis.) 434 

w. R. R. Co. (U. S.) 267 

Kennett v. Chambers (U. S.) 18 

Kentucky v. Bassford (N. Y.) 47, 423, 424, 428 

Kern v. Field (Minn.) 199 

Kerr v. Dougherty (N. Y.) 10, 137, 139, 334 

V. Kerr (N. Y.) 198 

V. Moon (U. S.) 28, 33, 235, 333 

r. Urie(Md.) 145,293 

Kershaw v. Kershaw (Cal.) 200 

Kidd V. State (Ala.) 502 

Kiefer y. R. R. Co. (N. Y.) 488 489 

Kilcrease v. Johnson (Ga.) 433, 434, 436 

Kilgore v. Dempsey (Ohio) 431, 434 

Kimball, In re (N. Y.) 204 

King V. Cross (U. S.) 289 

r. Sarria (N. Y.) 375 

Kinnev, Ex parte (U. S.) 11,152,153,447,448 

Kinney v. Com. (Va.) 18, 20, 133, 149, 162, 153, 163, 167, 411 

i;. Crocker (Wis.) 267 

Kinnier v. Kinnier (N. Y.) 184, 198 

Kirkland v. Lowe (Miss.) 322, 324 

V. Whately (Mass.) 88, 90. 91 



TABLE OF CASES. XXXVH 

[References are to Pages.] 

Klinck V. Price (W. Va.) 31, 434 

Kline v. Kline (la.) 80, 94, 97, 191, 201, 203, 207, 209 

Kling V. Fries (Mich.) 377 

V. Sejour (La.) 467 

Knapp V. Knapp (Mich.) 681 

Kneeland v. Enslev (Tenn.) 38, 39, 169, 174, 177 

Knight V. R. R. Co. (Penn.) 480 

Knights Templar Ass'n v. Greene (U. S.) 340, 398, 443, 460 

Knights Templar Indemnity Co. v. Berry (U. S.) 372, 399, 408 

Knowlton v. Doherty (Me.) 294 

V. Knowlton (III.) 199 

V. R. R. Co. (Ohio) 406 

Knox V. Jones (N. Y.) 29, 333 

Kohn's Estate (Penn.) 141 

Koshkonongr. Burton (U. S.) 622 

Kraft V. Wickey (Md.) 259, 261, 262 

Kritzer v. Woodson (Mo.) 26 

Kuenzi v. Elvers (La.) 396, 397, 582 

Kuhn V. Morrison (U. S.) 433 

Kyle i; Montgomery (Ga.) 516 

Lact v. Palmer (Va.) 501 

Lamar v. Micou (112 U. S. 452) 79, 80, 82, 83, 84, 85, 88, 89, 90, 133, 141, 

226, 254, 257, 258, 261, 262, 628 

V. Micou (114 U. S. 214) 80, 82, 86, 88, 90, 93, 528 

V. Scott (S. C.) 29, 38, 39, 174 

Lancashire Insurance Co. v. Corbett (HI.) 288 

Lane v. Watson (N. J.) 434 

Lanesborough v. Berkshire Co. (Mass.) 283 

Langdon o. Doud (Mass.) 59 

r. R. R. Co. (N. Y.) 490 

Langworthy v. Little (Mass.) 43, 44, 271, 304, 307 

Lanusse v. Barker (U. S.) 389, 391, 455 

Larendon, Succession of (La.) 33 

Larquie u. Larquie (La.) 60,99,118,177 

La Sella v. Woolery (Wash.) 38, 247, 518 

Law r. Mills (Penn.) 310,316,317 

«.R. R. Co. (U. S.) 480,485,493 

Lawrence v. Bassett (Mass.) 372, 388, 488 

V. Kitteridge (Conn.) 331 

17. Smith (N. H.) 289, 290 

Leach v. Buckner (W. Va.) 238, 255 

V. Greene (Mass.) 510 

Lebel i;. Tucker (Eng.) 392,394,449,450 

Le Breton y. Miles (N. Y.) 109,180 

V. Nouchet (La.) 177, 179 

Lee V. Selleck (N. Y.) 394 

V. State (Ga.) 603 

Le Forest i;. Tolman (Mass.) 24, 479, 483, 486 

Lehman v. Feld (U. S.) 419 

Le Messurier w. Le Messurier (Eng.) 178 

Lennig v. Ralston (Penn.) 391 

Leonard r.Nav. Co. (N. Y.) 25,241,485,490,492,632 

V. New Bedford (Mass.) 281 

Xierkin v. Wilson (Mass.) , . . . . 289 

Leroux v. Brown (Eng.) 414, 415, 625 



XXXviii TABLE OF CASES. 

[References are to Pages.] 

Le Rov V. Beard (U. S.) 506 

Levy V. Levy (Penn.) 393, 510 

Lewi8, Succession of (La.) 83, 84, 85 

Lewis «. Adams (Cal.) .... 236 

V. Headley (111.) 362, 378, 389, Ui 

Lewisohn v. Nat. etc. Co. (U. S.) 406 

Limekiller v. R. R. Co. (Kan.) 241, 494 

Lincoln v. Perry (Mass.) 339, 340, 341, 342, 347, 349 

Lindsay v. Hill (Me.) 362 

Lindsey v. State (Ohio) 499, 501 

Lingen v. Lingen (Ala.) 230 

Litowich V. Litowich (Kan.) 198 

Livermore v. Jenckes (U. S.) 318, 326 

Liverpool Steam Co. r. Insurance Co. (U.S.) 363, 380, 381, 406, 527, 528, 529 
Lloyd V. Guibert (Eng.) 363 

V. Scott (U. S.) 430 

Lockwood V. Mitchell (Ohio) 434 

Loker v. Gerald (Mass.) 96, 99, 103, 195, 201, 203, 206 

LoUey's Case (Eng.) 170, 183 

London Assurance v. Companhia de Moagens (U. S.) 461 

Long V. Girdwood (Penn.) .... 13, 31, 62, 271, 279, 310, 325, 326 

V. Ryan (Va.) 59 

Loring «. Thorndike (Mass.) 36,167,216,629 

Loud V. Loud (Mass.) 198 

Louisville & N. R, R. Co. v. Williams (Ala.) .... 478, 482, 483 

Lovejoy r. Albee (Me.) 287 

Loving •». Pairo (la.) 311,317 

Lower r. Segal (N. J.) 494 

Lowryi). Bradley (S. C.) . . . .64,67,70,115,116,117,125,337 

Ludlow V. Van Rensselaer (N. Y.) 412 

Ludwig V. Steward (Mich.) 622 

Lyman v. Campbell (Mo.) 523 

t;. R. R. Co. (U. S.) 480, 489 

Lynch v. Postlethwaite (La.) 513 

Lyon V. Callopy (I».) 516, 619 

V. Lyon (Mass.) 99, 183, 184 

Lyons v. R. R. Co. (Tex.) 513 

Macdonald v. Macdonald (Sc.) 180 

Machado v. Fontes (Eng.) 476, 479, 481, 486, 493, 532 

Mack V. People (N. Y.) 502 

Mackey v. Coxe (U. S.) 225, 242 

r. Petti John (Kan.) 10,271,304 

Maddoxr. State (Ind.) 82 

Madrazo r. Willes (Eng.) 17 

Magowan v. Magowan (N. J.) 195, 196, 197, 198, 199, 206 

Maguire v. Maguire (Ky.) 94, 96, 167, 173, 195, 198 

Maillard v. Nihoul (La.) 296 

Majestic, The (U. S.) 406, 407 

Male V. Roberts (Eng.) 148 

Malpica v. McKeown (La.) 378 

Manley v. People (N. Y.) 497, 498 

Manufacturing Co. v. Lang (Mo.) . . 277, 290 

Marden v. Insurance Co. (la.) 399 

Marheineke v. Grothaus (Mo.) 86 

Marina, The (U. S.) 302, 303 



TABLE OP CASES. XXXIX 

[References are to Pages.] 

Marshall v. Marshall (N. Y.) 159 

V. Sherman (N. Y.) 13, 21, 26, 27 

Martin r. Hill (N. Y.) 44,300,304,807,308,484 

V. Johnson (Ga.) 390,433,434,436 

Marvin Safe Co. v. Norton (N. J.) 271, 293, 301, 302 

Mashassuck Felt Mills v. Blanding (R. I.) 277 

Mason r. Beebee (U. S.) 43,387,618,619,621 

V. Dousay (111.) 443 

V. Homer (Mass.) 95, 169, 177 

Masonic Ass'n v. Jones (Penn.) 461 

Massey v. Womble (Miss.) 517 

Matthews y. Lloyd (Ky.) 11,13,15,299 

v. Murchison (U. S.) 146,411 

v. Paine (Ark.) 433 

May .'. Bank (111.) . . . 10, 13, 14, 15, 31, 310, 311, 313, 317. 324, 325, 326 

V. Breed (Mass.) 465 

i;. Smith (N. B.) 485, 486 

V. Wannemacher (Mass.) 16, 46, 272,279, 310, 312, 314, 318, 320, 324, 326 

Maynard v. Hall (Wis.) 434 

Mayo V. Equitable, etc. Society (Miss.) . 114, 115, 118, 225, 285, 328, 329 

Maxwell v. Hyslop (Eng.) 252, 341, 346 

V. Maxwell (Eng.) 340, 341, 346 

McAllister v. Smith (111.) 24, 513, 614 

McBee v. Bank (Ind. Ter.) 290 

McCallum u. Smith (Tenn.) 39 

McCarthy v. De Caix (Eng.) 170 

V. n. R. Co. (Kan.) 482, 483, 492 

McCartney «. Osburn (111.) 36,37,341 

McCleesy. Burt (Mass,) 506,507 

McClurev. Campbell (Wis.) 322 

McCormick y. SuUivant (U. S.) . 28 

McCune v. House (Ohio) 334 

McDonald v. Mallory (N. Y.) 481 

McElfatrick u. Hicks (Penn.) 430 

McElmoyle v. Cohen (U. S.) 188, 189, 190, 243 

McGill V. Deming (Ohio) 38, 191, 195 

McGoon V. Scales ( U. S.) 33 

Mcllvaine V. Legare (La.) 296 

Mclntyre f. Parks (Mass.) 47,294,384,428 

AIcKee e. Jones (Miss.) 21, 403 

McKeen v. Northampton Co. (Penn.) 282 

McKenzie v. State (Tex.) 502 

McLean v. Hardin (N. C.) 178, 179 

r. Meek (U. S.) 225,230,237,254 

McMaster v. Insurance Co. (la.) 376 

McNamara v. Dwyer (N. Y.) 233, 235, 2-36, 238, 255 

McNeely, Ex parte (W. Va.) 500 

McPherson v. Housel (N. J.) 98, 100 

McShane v. McShane (N. J.) 199 

Mears v. Sinclair (W. Va.) 75, 79, 80, 83, 84, 88, 89 

Medway v. Needham (Mass.) 19, 20, 151, 153, 161 

Melan w. Fitz-James (Eng.) 511, 512 

Melendy »>. Barbour (Va.) 267 

Melvin v. Martin (R. I.) 36, 133, 222 

Memphis, etc. R. R. Co. v. Alabama (U. S.) 130 

Merchants' Bank v. Griswold (N. Y.) 377, 391, 392, 434 



Xl TABLE OP CASES. 

[References are to Pages.] 

Merchants' Bank v. Spalding (12 Barb. 302) 17, 18 

i;. Spalding (9 N. Y. 63) 294, 419 

Meroney v. B. & L. Ass'n (N. C.) 434 

Merrill v. Insurance Co. (Mass.) . 229, 230, 232, 233, 285, 237, 253. 255, :^85 

V. Preston (Mass.) 339, 340, 342, 348 

Meuer r. R. R. Co. (S. D.) 406 

Mexican Nat. R. R. Co. i;. Jackson (Tex.) 480,488,489 

Mever v. Richards (U. S.) 296, 444 

Middleborough v. Rochester (Mass.) 105 

Midland Co. v. Broat (Minn.) 21, 525, 526 

Miles V. Oden (La.) 304, 305 

Miller, Estate of (Penn.) 243 

Miller v. Campbell (N. Y.) 133, 145, 400 

V. Miller (N. Y.) 33,36,48,46,133,212,216 

V. Tiffany (U. S ) 430 

V. Wilson (111.) 413, 417. 418, 626 

Milliken v. Pratt (Mass.) 11, 146, 147, 148, 362, 371, 373, 376 

Mills V. HopkinsviUe (Ky.) 64, 88, 90, 91 

V. Thornton (111.) 281 

Milne v. Moreton (Penn.) ... 11, 16, 272, 279, 280, 310, 321, 322, 326 

MineralPoint R. R. Co. v. Barron (111.) 516 

Minor v. Cardwell (Mo.) 39 

Missouri Pac. R. R. Co. v. Lewis (Neb.) 241 

V. Sharritt (Kan.) 287, 290, 518, 521, 532 

Mitchell I'. Harmony (U. S.) 476 

V. United States (U. S.) .... 62, 70, 72, 109, 116, 121, 122, 126 

Mohr, In re (Ala.) 504 

Mohr V. Miesen (Minn.) 531 

Monroe v. Douglas (N. Y.) 532 

Montalvan v. Clover (N. Y.) 238 

Montgomery v. Millikin (Miss.) 137, 138, 337 

Mooney v. Buford (U. S.) 288 

V. Manufacturing Co. (U. S.) 290 

V. R. R. Co. (la.) 290, 519 

Moore v. Church (la.) 16, 31, 311, 315, 317 

V. Hegeman (N. Y.) 151, 157, 159 

r. Jordan (Kan.) 236 

V. Mayor (N. Y.) 174 

r. Title & Trust Co. (Md.) 8,31,311 

V. Willett (N. Y.) 273, 310, 312 

Moorehouse ». Lord (Eng.) 72,114 

Morawetz v. Sun Insurance Office (Wis.) 288 

Morey V. Morey (Minn.) 197,203 

Morgan v. Morgan (Tex.) 196 

i;. NeviUe (Penn.) 290, 516, 519, 520 

Morrell v. Dickey (N. Y.) 231, 232, 261 

Morris v. Hockaday (N. C.) 379, 4.^.1 

V. R. R. Co. (la.) 26, 241, 485, 492 

V. Wibaux (111.) 465 

Mortgage Co. v. JeflFerson (Miss.) 18, 879, 380, 431 

o. McLaughlin (Ga.) 363, 390, 432, 434 

V. Sewell (Ala.) 363, 390, 431, 434 

V. Vaden (U. S.) 389, 431 

Moreton v. Hull (Tex.) 621 

Mott V. Rowland (Mich.) 431, 437 

Moultrie v. Hunt (N. Y.) 133, 141, 333, 347 



TABLE OP CASES. xll 

[References are to Pages.] 

Mowryt;. Latham (R. I.) 73,107,108,109,122,124 

Mullen V. Morris (Penn.) 455 

i;. Reed (Conn.) 37, 340, 461 

Mumford v. Canty (111.) 307, 508 

Munn V. Illinois (U. S.) 522 

Munos ». R. R. Co. (U. S.) 495, 524 

Munro v. Munro (Eng.) 73, 76, 216, 217 

V. Saunders (Eng.) 216 

Munroe v. Douglas (Eng.) 119 

Murphy v. Collins (Mass.) 403, 404, 582 

V. Murphy (La.) 178 

Musson V. Lake (U. S.) 396,453 

Mutual Ben. Ins. Co. v. Robison (U. S.) 371, 376, 399 

Nashville v. Thomas (Tenn.) 282 

Nat V. Coons (Mo.) 334 

National, etc. Ass'n v. Ash worth (Va.) 432 

National Bank v. Indiana Banking Co. (111.) 397, 445 

National Insurance Co. r. Chambers (N.J.) 277,288,290 

National Union v. Marlow (U. S.) 408 

Needham v. R. R. Co. (Vt.) 482, 483 

NefE V. Beauchamp (la.) 198, 199 

Neil V. Bank (Ohio) 466 

Nelson v. R. R. Co. (Va.) 26, 241, 476, 485, 493 

Neufelder v. Insurance Co. (Wash.) 277, 290 

Newcomer v. Orem (Md.) 39, 40, 174, 177 

Newell V. Haden (la.) 516 

New England Mortgage Co. v. McLaughlin (Ga.) ... 363, 390, 432, 434 

.;. Vaden (U. S.) 389, 431 

Newlandv. Reilly (Mich.) 289 

Newman v. Cannon (La.) 296, 296, 309, 377 

New Orleans v. Insurance Co. (La.) 283 

New York L. Ins. Co. v. Aitkin (N. Y.) 507 

V. Russell (U. S.) 375 

Niblett V. Scott (La.) 188 

Niboyet v. Niboyet (Eng.) 131 

Nichols V. Bank (W. Va.) 392 

V. Mase (N. Y.) 304, 307 

r. Porter (W. Va.) 445,454 

Nickels v. Association (Va.) 419, 431, 432 

Njus V. R. R. Co. (Minn.) 487 

Noble V. OU Co. (Penn.) 187 

Nonce r. R. R. Co. (U. S.) . . . .' 495 

Norman v. Norman (Cal.) 168 

Norris v. Atkinson (N. H.) 472 

V. Norris (N. H.) 170, 183, 184, 196 

North Pacific Lumber Co. v. Lang (Or.) 480 

Northern Pac. R. R. Co. v. Babcock (U. S.) 487 

Northwestern Association r. Jones (Penn.) 460 

Noyes v. Wyckoff (N. Y.) 467 

Nugent V. Vetzera (Eng.) 259 

Oaklet v. Bennett (U. S.) 321 

Obear v. Bank (Ga.) 522 

Ochiltree v. Contracting Co. (Mo.) 26 

Ockerman v. Cross (N. Y.) 311, 316, 317 



Xlii TABLE OF CASES. 

[References are to Pages.] 

O'Dear. 0'Dea(N. Y.) 96,99,164,191,204 

O'Dell V. Gray (Mo.) 443, 447 

Odom r. Mortgage Co. (Ga.) 390,431,432 

Ogden V. Saunders (U. S.) 471 

Oliver V. Washington (Mass.) 282 

Olivier v. Townes (La.) 274, 298 

Olmstead v. Mortgage Co. (Neb.) 434 

Olson's Will (la.) 69, 71, 125 

Opinion of Judges (Mass.) 60 

Oranmore, The (U. S.) 408 

O'Regan v. Cunard S. S. Co. (Mass.) 406 

O'Reilly V. R. R. Co. (R. L) 480, 485, 489, 491, 492 

Orr V. Armory (Mass.) 610 

Osborn i». Nicholson (U. S.) 21,47 

Oseanvonr. ArmsCo. (U. S.) 18,48,424 

Osgood r. Maguire (N. Y.) 265,277 

O'Shields v. R. R. Co. (Ga.) 524 

Otis V. Boston (Mass ) 64, 65, 67, 69, 79, 118, 119, 129 

V. Gregory (Ind.) 29, 32, 83 

Overseers of Alexandria r. Bethlehem (N. J.) 106 

Overton v. Bolton (Tenn.) 434 

Owen V. Miller (Ohio) 277 

Packer v. Thompson (Neb.) 190 

Packwood, Succession of (La.) 178,232,349,351 

Paine !.-. Lester (Conn.) 16,272,279,320,321,322,324,325 

Parkr. Kelley AxeCo. (U. S.) 376 

V. Manufacturing Co. (U. S.) 411 

V. Rose Bank (Ind.) 396 

Parsons v. Lyman (N. Y.) 230, 243, 253, 254, 255, 256, 328, 340 

V. Trask (Mass. ) 378 

Patterson v. Gaines (U. S.) 167 

Pattison v. Mills (Eng.) 376 

Pawling V. Bird (N. Y.) 198, 209 

Pealer. Phipps (U. S.) 267 

Pearce v. State (Tenn.) 62 

Pearl p. Hansbrough (Tenn.) 146 

Pearsall v. Dwight (Mass.) 510 

Peck u. Mayo (Vt.) 396,443,455,457,515 

Pedan v. Robb (Ohio) 91 

Peet V. Hatcher (Ala.) 384, 422, 531, 632 

Penfieldy. Tower (N.D.) 30,33,37,40,333,335 

Peninsula, etc. Co. v. Shand (Eng.) 363 

Fenn Mut. L. Ins. Co. y. TrustCo. (U. S.) 409,443 

Pennegar v. State (Tenn.) 10, 11, 12, 18, 20, 25, 152, 153, 154, 159, 160, 167 
Pennoyer v. Neff (U. S.) . . 8, 13, 184, 187, 188, 196, 197, 201, 207, 208, 286 

People r. Adams (N. Y.) 499 

V. Baker (N. Y.) 191, 204, 259 

V. Burke (N. Y.) 502 

V. Commissioners (N. Y.) 281 

V. Dawell (Mich.) 133, 164, 184, 196, 197, 198 

V. Hovey (N. Y.) 1.50 

V. Staples (Cal.) 502 

People's Bank v. Norwalk (Conn.) 467 

Perkins v. Guy (Miss.) 523 

Ferry i\ Insurance Co. (N. H.) 399. 409 



TABLE OP CASES. xliii 



[References are to Pages.] 



Perry r. Iron Co. (R. I.) 373, 413 

V. R. R. Co. (Kan.) 241 

Petersen v. Chemical Bank (N. Y.) 3, 8, 227, 231,232, 233, 234, 236, 266, 272, 

284, 285, 328 

Petit, Succession of (La.) 328, 331 

Phillips V. Eyre (Eng.) 486 

r. Gregg (Penn.) 43, 167, 168, 529, 530 

Phinney i>. Insurance Co. (U. S.) 381,409,411,413 

Phippsy. Harding (U. S.) 372,-388,448 

Picquet, Ex parte (Mass.) 231,236 

Pierce i;. Indseth (U. S.) 396, 443, 448, 452 

Pioneer Sav. & L. Co. i>. Cannon (Tenn.) 432 

Plestoro V. Abraham (N. Y.) 324, 326 

Plummer v. Hatton (Minn.) 195 

Poison «. Stewart (Mass.) 29,32,144,175,352,416,417,459 

Pomeroy v. Ains worth (N. Y.) 434 

V. Rand (111.) 277 

Pond V. Cooke (Conn.) 44, 45, 264, 265, 266 

Pope V. Nickerson (U. S.) 362, 374, 380, 381, 401, 411, 419 

Poppleton V. Yamhill Co. (Or.) 283 

Porter r. Price (U. S.) 382,391 

Post i;. Bank (111.) 30 

V. R. R. Co. (Mass.) 26, 27 

Potinger v. Wightman (Eng.) 82. 83 

Powell V. State (Wis.) 502 

V. Stratton (Va.) 255 

Powers f. Lynch (Mass.) 60,396,398,453 

Pratt V. Adams (N. Y.) 294, 428, 433, 434 

Preston v. Melville (Eng.) 242 

Price V. Campbell (Va.) 480 

V. Dewhurst (Eng.) 133, 349, 350 

V. Price (Penn.) 62, 65, 69, 70, 72, 73, 74, 79, 109, 115, 117, 121, 124, 125 
Pritchard v. Norton (U. S.) 378, 380, 383, 389, 390, 411, 414, 425, 426, 466, 

605, 506, 513, 514, 515, 522, 526 

Proctor V. Clark (Mass.) 341, 342 

Prosser i-. Warner (Vt.) 133, 164, 170, 173, 183, 184, 191, 207 

Pry se i>. Association (Ky.) 434 

Public Parks Amusement Co. v. Carriage Co. (Ark.) .... 301, 302, 303 

Pugh i>. Cameron (W. Va.) 374,377,433 

PuUen V. Hillman (Me.) 471, 472 

Pullman Car Co. v. Lawrence (Miss.) 476, 488, 499 

Putnam v. Johnson (Mass.) 65 

0. Putnam (Mass.) 19,25,151,159 

Railroad Co. v. Alabama (U. S.) 130 

V. Babcock (U. S.) .487 

V. Baker (Kan.) 277 

V. Barnhill (Tenn.) 130 

f. Barron (111.) 516 

r. Betts (Colo.) 479, 532 

V. Brown (Ark.) 476 

D. Carroll (Ala.) 407,482,487 

V. Churaley (Ala.) 287 

V. Collector (U. S.) 282 

' r. Cotton Mills (Ga.) 406,407 

». Cox (U. S.) 26, 492 



xliv TABLE OF CASES. 

[References are to Pages.] 

Railroad Co. v. Crane (Dl.) 296 

V. Cunniagham (Kan.) 518 

V. Cutler (Kan.) 241 

V. Dougan (111.) 516, 519 

V. Doyle (Miss.) 482 

V. Ferry Co. (U. S.) 527 

i;. Glenn (Md.) 130, 318 

V. Ihlenberg (U. S.) 480, 487 

V. Jackson (Tex.) 480, 488, 489 

». Johnson (U. S.) 624 

V. Kennedy (Ala.) 277, 519, 620 

V. Koontz (U. S.) 130 

r. Lewis (Neb.) 241 

V. Lewis (Tenn.) 400, 486 

V. Maggard (Colo.) 287, 616 

V. McCormick (Tex.) 480, 485, 492, 493 

r. McMullen (Ind.) 482,485,492 

V. Moore (Neb.) 520 

V. Nash (Ala.) 287, 288 

V. Packet Co. (111.) 44, 45, 264, 266, 266 

V. Sharritt (Kan.) 287,290,518,521,532 

V. Smith (Kan.) 267 

V. Smith (Miss.) 277, 281, 518, 521 

V. Sturm (U. S.) 289, 290, 521 

V. Thompson (Kan.) 290, 516 

V. Whitlow (Ky.) 486 

V. Williams (Ala,) 478, 482, 483 

Ramsay v. Stevenson (La.) 314, 816, 318 

Rand i;. Hubbard (Mass.) 232 

Rankin v. Goddard (Me.) 188 

Rathbone v. Coe (Dak.) 524 

Reddick v. Jones (N. C.) 394 

Redmond i-. Rutherford (N. C.) 283 

Reed v. Reed (Mich.) Ill, 112, 146, 197, 198 

V. Tel. Co. (Mo.) 407 

Reid, Goods of (Eng.) 351 

Reimer v. Manufacturing Co. (U. S.) 277, 288 

Reliance Insurance Co. v. Sawyer (Mass.) 408 

Renaud v. Abbott (U. S.)', 529 

Renierr. Hurlbut (Wis.) 288 

Reynolds V. Adden (U. S.) 267,325 

V. Stockton (U. S.) 190, 228, 229, 236, 263, 266, 274 

Rhawn v. Peters (111.) .326 

Rice, In re (Mich.) 124, 128, 269 

Rice r. Courtis (Vt.) 318 

V. Harbeson (N. Y.) 29, 244, 249, 260, 346 

V. Moore ( Kan.) 622 

Richards V. Dutch (Mass.) 231,236,256 

Richardson v. De Giverville (Mo.) 29, 36, 38, 175, 341 

V. Leavitt (La.) 314 

V. R. R. Co. (Mass.) 25, 241, 492 

f. Rowland (Conn.) 420, 422 

V. Shelby (Okl.) 44, 304, 307 

Richmond v. R. R. Co. (Va.) 608 

Riley v. Burroughs (Neb.) 467, 458 

Ringgold V. Barley (Md.) 115, 118 



TABLE OP OASES. xlv 

[References are to Pages.] 

Rio Grande, The (U. S.) 18T 

Ritchie v. McMullen (U. S.) 188 

Roberts, Will of (N. Y.) 187, 334 

Roberts v. Appleton (Vt.) 72 

V. Mc'Neely (N. C.) 4ci3 

Robinson v. Bland (Eng.) 363, 384, 428 

V. Nav. Co. (U. S.) 481 

i;. Queen (Tenn.) 5, 13, 14, 49, 145, 146, 147, 443, 509, 510 

Rockwell V. Bradshavr (Conn.) 228, 229, 256, 274, 340, 344 

Rodgers u. Rodgers (Kaa.) 29,30,107,108,109,203,207,209 

Rogers, Ex parte (Tex.) 501 

Rogers v. McLean (N. Y.) 259, 261, 262 

V. State (Tex.) 501 

Rose V. Bank (Ind.) 394, 443, 447, 454 

Rosenheim v. Morrow (Fla.) 471 

Ross V. Ross (103 Mass. 576) 118 

V. Ross (129 Mass. 243) 28, 29, 33, 34, 35, 36, 38, 46, 57, 82, 92, 131, 133, 
134, 136, 146, 150, 151, 160, 161, 212, 217, 222, 329, 333 

Roth V. Roth (111.) 8, 60, 150, 170, 191 

Roundtree v. Baker (111.) 21, 47, 424, 428, 429 

Rouquette v. Overmann (Eng.) 397, 462 

Routh V. Routh (La.) 177 

Rudiger v. R. R. Co. (Wis.) 482, 483 

Ruding V. Smith (Eng.) 169 

Ruggles V. Kisler (N. Y.) 526 

Ruhe V. Buck (Mo.) 605, 506, 507, 508, 510 

Ruse V. Insurance Co. (N. Y.) 409 

Russell V. Hooker (Conn.) 137, 233, 254, 272 

V. R. R. Co. (Cal.) 26, 27 

Safe Co. v. Norton (N. J.) 271, 293, 301, 302 

Sanders v. Gatchell (Me.) 60 

Sandidge v. Hunt (La.) 531, 632 

Sands v. Smith (Neb.) 433 

Sapphire, The (U. S) 509 

Satterthwaite v. Doughty (N. C.) 411, 412 

Saul V. His Creditors (La.) 11, 12, 13, 146, 148 

Savings Bank v. National Bank (U. S.) 280, 297 

Scheflferling v. HuflEman (Ohio) 180 

Schluter v. Bank (N. Y.) 47, 141, 142 

Schneller v. Vance (La.) 262 

School Directors v. James (Penn.) . . 64, 74, 80, 83, 84, 85, 88, 89, 90, 91 

Schuler v. Israel (U. S.) 310, 314 

Scofield V. Day (N. Y.) 456 

Scotland, The (U. S.) 481 

Scotland Co. v. Hill (U. S.) 465, 466 

Scott V. Key (La.) 219, 221 

V. Perlee (Ohio) 380, 431, 437 

Scoville V. Canfield (N. Y.) 24, 280, 297, 306 

Scrimshire V. Scrimshire (Eng.) 167 

Scudder v. Bank (U. S.) 362, 368, 377, 391, 392, 411, 413, 414, 419, 448, 454, 

465, 514 

Sea Grove, etc. Ass'n v. Stockton (Penn.) 624 

Seamans v. Knapp Co. (Wis.) 368, 398, 408 

Searight v. Calbraith (U. S ) 466 

Seiter r. Straub (N. Y.) 90 



xlvi TABLE OF GASBS. 

[References are to Pages.] 

Selectmen of Boston v. Boylston (Mass.) 290 

Senac's Will (La.) 349 

Sevier v. Douglass (La.) 334 

Sewall V. Sewall (Mass.) 197, 198 

V. Wilmer (Mass.) 340, 352, 350, 354 

Seward v. Rising Sun (Ind.) 282 

Shannon v. Shannon (Mass.) 198 

y. White (Mass) 230,328 

Sharper. Crispin (Eng.) 73,74,80,82,83,106,129,328,330 

Shattuck V. Chandler (Kan.) 532 

Shaw V. Gould (Eng.) 149, 170, 21t> 

V. Shaw (Mass.) . . 67, 70, 71, 96, 99, 116, 118, 119, 121, 124, 125, 196 

Sheddon v. Patrick (Eng.) 216 

Sheldon?;. Haxtun (N. Y.) 372,373,389,433,434,436,437 

V. Hice (Mich.) 231, 232, 236 

r. Wlieeler (U. S.) 40,314 

Shelton y. Tiffin (U. S.) 62,122 

Siiepherd v. Cassidy (Tex.) 64, 70 

Shields V. Coleman (U. S.) 265 

Shoe & Leather Bank v. Wood (Mass.) 371, 443 

Short V. Galway (Ky.) 246 

Shreck v. Shreck (Tex.) 94, 99, 169, 183, 184, 196 

Shuenfeldt v. Junkermann (U. S.) 377 

Shultz V. Pulver (3 Pai. Ch. 182) 229, 328 

r. Pulver (11 Wend. 361) 234,328 

Sickles V. New Orleans (U. S.) 137, 139, 272, 328, 334, 340 

Sill V. Worswick (Eng.) 270 

Silverman v. Lessor (Me.) .... 472 

Simmons v. Commonwealth (Penn.) 503 

Simonin v. Mallac (Eng.) 167 

Simpson r. State (Ga.) 482,600,601,502 

V. State (Tenn.) 503 

Sims V. Sims (N. Y.) 21, 24 

Singer Manufacturing Co. v. Fleming (Neb.) 187, 618, 520 

Skinner v. Tinker (N. Y.) 412 

Skottowe V. Young (Eng.) 35, 133 

Slack V. Perrine (U. S.) 188 

Slaughter v. Garland (Miss.) 343, 344, 345 

Slocum V. Pomery (U. S.) 463 

Smith, Ex parte (U. S.) 504 

Smith V. Derr (Penn.) 33, 35, 216 

V. Eton (Me.) 287, 324 

V. Kelly (Miss.) 36, 212, 213, 216, 217 

V. McAtee (Md.) 179 

V. Mead (Conn.) 389 

V. Parsons (Minn.) 418, 431 

V. People (III.) 118 

V. Smith (Neb.) 94, 95, 96, 198 

r. Smith (La.) 96, 98, 99, 101, 177, 201, 203, 206 

r. Smith (Mass.) 134, 198 

V. Smith (Va.) .305 

V. Taber (Tex.) 277 

V. Union Bank (U. S.) . . . . 10, 49, 226, 227, 230, 235, 243, 257, 272 

Smythe i». Allen (Miss.) 504 

Sneed v. Ewing (Ky.) 29, 39, 328, 349, 357 

Sohier r. Burr (Mass.) 887 



TABLE OF CASES. xlvii 

[References are to Pages.] 

SomerTillet;. Soraerville (Eng.) 69,70,71,72,74,79,328 

Sondheim v. Gilbert (Ind.) 384, 428 

Sorrey v. Bright (N. C.) 337 

Sottomayor v. DeBarros (Eng.) 149, 160, 154 

Soutli African Breweries v. King (Eng.) 421 

Southern B. etc. Ass'n v. Harris (Ky.) 434 

Southern Ins. Co. v. Hardware Co. (Tex.) 188 

Southern Pacific Co. y. Graham (Tex.) 476,484 

Spearman t>. Ward (Penn.) 38,247,508 

Speed r. May (Penn.) 226,272,278,280,310,311,312,318,325 

Stacy i;. Tliraslier (U. S.) 228,230,237,274 

Staigg V. Atkinson (Mass.) .... 29, 36, 37, 38, 251, 252, 341. 344, 348 

Stanford v. Pruet (Ga.) 394 

Staples V. Nott (N. Y.) 389, 434, 43b 

Starbuck v. Murray (N. Y.) 197 

State V. Barrow (Tex.) 177, 178 

V. Bowen (Kan.) 600 

V. Brown (N. C.) 603 

I'. Carl (Ark.) 296, 373 

V. Carter (N. J.) 600 

V. Chapin (Ark.) 499, 601 

V. Foster (La.) 500 

V. Gessert (Minn.) 600 

V. Grady (Conn.) 601 

V. Hall (N. C.) 447, 498, 600, 604 

V. Kelly (Me.) 500 

r. Kennedy (N. C.) ... 11, 18, 20, 183, 149, 162, 153, 160, 163, 167 

V. Mitchell (N. 0.) 497, 498 

V. Moore (N. H.) 601 

V. Newman (Neb.) 603 

v. 0'Neil(Vt.) 271,295,296,373 

o. Palmer (N. H.) 117 

V. Ross (N. C.) 10, 46, 111, 149, 160, 164, 160, 161 

V. SchaefEer (Mo.) 602 

V. Tutty (U. S.) 152, 163, 163, 167, 173 

V. Weatherby (Me.) 167, 169 

V. Wyckoff (N. J.) 601 

State Bank v. Richmond (Va.) 281, 283 

State Mut, Ins. Co. v. Brinkley Co. (Ark.) . . . 371, 377, 398, 399, 408 

State Tax on Foreign Held Bond (U. S.) 281, 282, 283 

Steams v. Burnham (Me) 284 

Stebbins V. Leowolf (Mass.) 404,448 

Steele v. Braddell (Irish) 167 

Steer, In re (Eng.) 74 

Steer, Succession of (La.) ... 62, 65, 72, 73, 79, 109, 115, 118, 128, 176 

Stephens v. James (Eng.) 262 

Stepp V. Association (S. C.) 455 

Stevens v. Brown (W. Va.) 616, 619 

V. Gay lord (Mass.) 229, 230, 253, 264, 285 

V. Gregg (Ky.) 443, 447, 626 

Stevenson r. Gray (Ky.) 19, 20, 151, 162, 154 

Stewart v. Jessup (Ind.) ... 502 

V. R. R. Co. (U. S.) 26, 26, 27, 239, 240, 241, 242, 475, 477, 478, 479, 

480, 492, 493, 494 

' r. Stewart (W. Va.) 207 

Sticknej' ^'. Jordan (Me.) . 455 



rlviii TABLE OP CASES. 

[References are to Pages.] 

Still V. Woodville (Miss.) 114 

Btirk V. Hamilton (Me.) 441 

St. Joseph, etc. R. R. Co. v. Smith (Kan.) 267 

St. Louis, etc. R. R. Co. v. Brown (Ark.) 476 

i;. McCormick (Tex.) 480,485,492,493 

St. Rureu. Lind8felt(Wi8.) 21,24,199 

Stoddard v. Harrington (Mass.) 472 

Stoneman u. R. R. Co. (N. y.) 608 

Stout V. State (Md.) 600 

Strathmore Peerage (Eng.) 216 

Strawbridge v. Robinson (111.) 879, 397, 441 

Street v. Insurance Co. (S. C.) 187 

Strouther v. Commonwealth (Va.) 602, 503 

Stubbs V. Colt (U. S.) 392, 394, 462 

Sturdivant v. Bank (U. S.) 433, 443 

Sturges V. Crowninshield (U. S.) 471 

Sturtevant v. Armsby Co. (N. H.) .... 13, 15, 46, 264, 322, 325, 326 

V. Robinson (Mass.) 277 

Succession of Cassidy (La.) 30, 33, 37, 457, 468 

Succession of Hernandez (U.) 21,26,150,167,168,177 

Succession of Larendon (La.) 33 

Succession of Lewis (La. ) 83, 84, 86 

Succession of Packwood (La.) 178, 232, 349, 354 

Succession of Petit (La.) 328, 331 

Succession of Steer (La.) ... 62, 66, 72, 73, 79. 109, 115, 118, 128, 176 

Succession of Wilder (La.) 146,148,179 

Suit V. Woodhall (Mass.) 294, 295, 372, 377, 384, 428 

Sullivan v. Sullivan (Mich.) 271, 294, 296, 413 

Supervisors v. Galbraith (U. S.) 443, 447 

Suter o. Suter (Miss.) 94, 99 

Sutro Tunnel Co. v. Mining Co. (Nev.) 466 

Sutton V. Warren (Mass.) 20, 160, 154, 161, 171 

Swank v. Hufnagle (Ind.) 29, 38 

Swann r. Swann (U. S.) 21,49,403 

Swedish- American Bank v. Bleecker (Minn.) 288 

Talbot v. Chamberlain (Mass.) 68, 72, 88, 107, 108, 109 

Talbott V. Transportation Co. (la.) 381, 406, 407 

Talmage v. Chapel (Mass.) 230, 236, 238 

Tappan v. Bank (U. S.) 282 

Tarbox v. Childs (Mass.) 294, 469 

Tax on Foreign Held Bonds (U. S.) 281, 282,' 283 

Taylor v. Badoux (Tenn.) . 326 

V. Pennsylvania Co. (Ky.) 241, 480, 492 

t>. Sharp (N. C.) .... 47,124,145,146,362,411 

Tegler v. Shipman (la.) 47, 296, 296, 377, 384, 428 

Tenant v. Tenant (Penn.) 378, 444, 629 

Texas, etc. R. R. Co. v. Cox (U. S.) 26, 492 

Thatcher ». Morris (N. Y.) 384,424,428,527 

Thayer v. Boston (Mass.) 123 

The Antelope (U. S.) 21 

The Brantford City (U. S.) 356, 362, 366, 406, 428, 481 

The City of Carlisle (U. S.) 514 

The Energia (U. S.) 379, 406 

The Glenmavis (U.S.) 363, 406 

The Guildhall (U. S.) 406 



TABLE OP CASES. xlix 

[References are to Pages.] 

The HaiTJ8burg (U. S.) 496 

The Homestead Cases (Va.) 517 

The Hugo (U. S.) 365, 406 

The Iowa (U. S.) 406 

The Majestic (U.S.) 406,407 

The Marina (U. S.) 302, 303 

The Oranmore (U. 8.) 406 

The Kio Grande (U. S.) 1«7 

The Sapphire (U. S.) 609 

The Scotland (U. S.) 481 

The Venus (U. S.) 125 

Therouxt-. R. R. Co. (U. S.) 624 

Thomas v. Morrissett (Ga.) 189 

Thompson v. Ketcham (N. Y.) 148, 378, 532 

V. Thompson (Ala.) 203 

■y. Whitman (U. S.) 190,197 

Thomson-Houston Electric Co. v. Palmer (Minn.) . . . 362, 411, 469, 505, 

527, 630 

Thorn v. Weatherly (Ark.) 530 

Thorndike v. Boston (Mass.) 281 

Thornton v. Curling (Eng.) 344 

V. Dean (S. C) 363, 434 

Thorp V. Thorp (N. Y.) 19, 151, 159, 160 

Thuret v. Jenkins (La.) 43, 44, 273, 299 

Thurston v. Fercival (Mass.) 478 

i;. Rosenfield (Mo.) 31, 311, 314, 317 

V. Thurston (Minn.) 191, 195, 196, 199, 203, 207, 208 

Tilden v. Blair (U. S.) 372, 391, 438, 436 

Tiilotsonv. Prichard (Vt.) 457,476 

Tingley v. Bateman (Mass.) 289 

Tipton V. Tipton (Ky.) 59, 67 

Tooey v. Lindsay (U. S.) 170 

Toof 17. Miller (la.) 272 

Toronto, etc. Trust Co. v. R. R. Co. (N. Y.) 266 

Touro V. Cassin (S. C.) 428, 429 

Townes v. Durbin (Ky.) 177 

Townsend v. Coxe (111.) 31 

V. Kendall (Minn.) 86, 88, 89, 225, 259, 261 

Train v. Kendall (Mass.) 316 

Trasher v. Everhart (Md.) 507 

Trevor r. Wood (N.Y.) 372 

Trimbey v. Vignier (Eng.) . 393, 394, 449 

Trotter r. Trotter (Eng.) 341,343 

True V. Ranney (N. H.) 10, 152, 160 

TuUer v. Arnold (Cal.) 290 

Tunstall v. Pollard (Va.) 233 

Tyler i;. People (Mich.) 500 

V. Strang (N. Y.) . . . 279 

Udnt v. Udny (Eng.) 72, 76, 114, 120, 125, 126, 128, 149, 216 

Ufford V. Spaulding (Mass.) 628, 529, 530 

Underwood v. Mortgage Co. (Ga.) 434 

Union Bank v. Hartwell (Ala.) 89, 145, 272, 298 

V. State (Tenn.) 282 

Union Pacific R. R. Co. v. Baker (Kan.) 277 

United States v. Britton (U. S.) 501 

d ^ 



1 TABLE OF CASES. 

[References are to Pages.] 

United States v. Crosby (U. S.) 28 

i;. Guiteau (U. S.) 600 

V. Howell (U. S.) 601 

V. Plimpton (U. S.) 602 

f. R. K. Co. (U. S.) 282 

i;. Wagner (Eng.) 609 

United States Investment Co. v. Windmill Co. (Kan.) 459 

United States Sav. and L. Ass'n v. Scott (Ky.) 379, 434 

Upton u. Nortlibridge (Mass.) 73, 106 

Usher r. R. R. Co. (Penn.) 25,239,242,493 

Valk v. Valk (R. I.) 199, 200 

Van Buskirk v. Warren (N. Y.) 305 

Van Cleef i;. Therasson (Mass.) 469 

Van Fossen v. State (Ohio) 101, 133, 170, 184, 196, 198 

Van Matre v. Sankey (111.) 36, 87, 74, 75, 79, 80, 82, 83, 85, 93, 131, 189, 192, 

221 222 629 

VanOrsdalu. Van Orsdal (la.) 203,' 206,' 208 

VanRaden f. R. R. Co. (N. Y.) 487 

Van Steenwyk v. Washburn (Wis.) 341, 344, 345 

Van Storch i;. Griffin (Penn.) 157 

Van Vleet v. Sledge (U. S.) 433 

Van Voorhis v. Brintnall (N. Y.) . 10, 11, 19, 21, 26, 151, 152, 164, 157, 169, 

160, 161, 166 

Van Wyckr. Read (U. S.) 278 

Vander Donk w. Thelusson (Eng.) 630 

Vanderpoel v. O'Hanlon (la.) 60 

Vansant v. Roberts (Md.) 139 

Varnum u. Camp (N.J.) 312,313,315,316,317 

Vassar U.Camp (N.Y.) 872,373 

Vaughn u. Barret (Vt.) 233 

i;. Northup (U. S.) 226,231,232,235,286,264,265 

Vawteru. R. R. Co. (Mo.) 241,480,492 

Venus, The (U. S.) 126 

Vermilya v. Beatty (N. Y.) 232, 236 

Vermont Bank v. Porter (Conn.) 466, 467, 613, 526 

Vidal V. Thompson (La.) 411, 412 

Vischer v. Vischer (N. Y.) .... 103, 104, 115, 117, 125, 167, 169, 196 

Voorheisy. Society (Mioh.) 371,398.409 

Vroora V. Van Home (N. Y.) ... 227, 229, 231, 232, 235, 277, 284, 328 

Wabash R. R. Co. v. Dougan (111.) 516, 619 

Waldo «;. Waldo (Mich.) 19T 

Waldron v. Ritchings (N. Y.) 372 

Walker I'. Marseilles (Miss.) 299 

Wall V. Equitable, etc. Society (U.S.) 379,409 

Walsh V. Mayer (U. S.) 522 

Walters r.Whitlock(Fla.) 310,313,316 

Walworth t). Harris (U.S.) 46,307,309 

Warder v. Arell (Va.) 466, 467 

Ware v. Wisner (U. S.) 333, 349 

Warner v. Jaffray (N. Y.) 316, 318, 326 

Warren v. Lynch (N. Y.) 441, 606, 507 

V. Prescott (Me.) 33 

Warrender t;. Warrender (Eng.) ... 5, 94, 95, 96, 104, 106, 167, 169, 199 
Washburn r. Van Steenwyk (Minn.) 29,341,344,345,346 



TABLE OP CASES. B 

[References are to Pages.] 

Washburn v. White (Mass.) 82, 92 

Washington w. Beaver (Penn.) 77,87,93,106 

Watkins v. Holman (U. S.) 29, 236 

V. Watkins (Mass.) . 94, 99, 100, 103, 133, 170, 183, 184, 198, 199, 200 

u. Watkins (Ind.) 196,198 

Watson V. Brewster (Penn.) „ 507 

i;. Campbell (N. Y.) 306,318 

y. Lane (N.J.) 372,433 

WayneCounty Bank V. Low (N.Y.) 371,373,389,434,436 

Webb's Estate (N. Y.) 168 

Webber v, Howe (Mich.) 294, 373, 377, 384, 428 

Webster r. Howe Machine Co. (Conn.) 447 

V. Munger (Mass.) 294 

WeiU. Golden (Mass.) 294,295,384.428 

Weinstein v. Freyer (Ala.) 271, 293, 302 

Welch r. Adams (Mass.) 231,340 

Welles' Estate (Penn.) ^7, 263, 264, 265, 328, 329, 331 

Wells, Fargo, & Co. U.Davis (N.Y.) 456 

Wesner w. O'Brien (Kan.) 208 

West Cambridge ». Lexington (Mass.) . . 11, 18, 25, 150, 164, 167, 168, 159 

Western v. Insurance Co. (N. Y.) 408 

Western, etc., R. R. Co. v. Cotton Mills (Ga.) 406, 407 

Western Transfer Co. v. Kilderhouse (N. Y.) 371 

Western Union Tel. Co. v. Phillips (Tex.) 356 

V. Way (Ala.) ; 404, 419 

Wheeler v. HolUs (Tex.) 83, 86, 88, 89, 91 

r. Jackson (U.S.) 522 

Whicker v. Hume (Eng.) 72 

Whipple V. Thayer (Mass.) 314 

Whiston V. Stodder (La.) 372 

White V. Brown (U. S.) Ill 

V. Howard (Conn.) 32 

V. Howard (52 Barb. 294) 81, 88, 89 

V. Howard (46 N. Y. 144) 141, 334 

V. Tennant (W. Va.) 62, 65, 67, 69, 70, 109, 115, 117, 118, 119, 120, 176, 

328 331 

Whitford r. R. R. Co. (N. Y.) 478, 49l', 532 

Whitney v. Sherborn (Mass.) 64, 65, 118 

Wick u. Dawson (W.Va.) 29,38,247,505 

Wightman v. Wightman (N. Y.) 20, 161 

Wilcox r. Ellis (Kan.) 281,283 

Wilder, Succession of (La.) 146, 148, 179, 411 

Wilkins v. EUett (9 Wall. 740) 225, 227, 2.30, 242, 253, 328 

V. EUett (108 U. S. 256) 234, 242 

Willettsi^.Waite (N. Y.) 264,265,322,323,324,325,326 

Williams v. Armroyd (U. S.) 187 

V. Dry Goods Co. (Okl.) 10, 13, 31, 62, 271, 310, 311, 313, 314, 316, 317, 

318, 321 

V. Haines (la.) 425 

r. IngersoU (N.Y.) 287 

V. Kimball (Fla.) 36 

V. Mans (Penn.) 234 

V. Gates (N. C.) 162, 156, 159 

V. Saunders (Tenn.) 29, 32, 33, 70, 94, 98, 118, 126, 136, 137, 272, 333, 

334.335 
». Storrs (N. Y.) 242 



In TABLE OF CASES. 

[References are to Pages.] 

Williams v. Wade (Mass.) 396, 454 

V. Williams (N. Y.) 100, 191, 204 

Williamson v. Parisien (N. Y.) 198 

1-. Smart (N. C.) , 331 

Wilson V. Cox (Miss.) 341 

V. Holt (Ala.) 157, 158 

r. Lazier (Va.) . 389,444,526 

V. Mills Co. (N.Y.) 413 

V. Tootle (U. S.) 494 

v, Wilson (Eng.) 170 

Winchelsea t;. Garetty (Eng.) 248, 249, 250 

Winswall v. Sampson (U.S.) 267 

Wolf, Appeal of (Penn.) 216 

Wolfy. Burke (Colo.) 370,41.3,414,415,417,418,625,531 

Wood r. Insurance Co. (Wash.) 371,398,399,408 

V. Malin (N. J.) 512 

V. Roeder (Neb.) 59 

V. Watkinson (Conn.) 189 

r. Wheeler (N.C.) 30,44,144,146 

V. Wood (N. Y.) 40, 88, 89, 90, 259, 387 

V. Wood (Ark.) 102, 200 

Woodard v. R. R. Co. (Ohio) 492 

Wooden v. R. R. Co. (N. Y.) 25, 239, 242, 489, 492, 494 

Woodruff V. Hill (Mass.) 447 

Woodsen v. Owens (Miss.) 447 

Woodward v. Brooks (III.) .... 10, 16, 266, 279, 312, 313, 314, 315, 318 
V. Woodward (Tenn.) 33, 35, 80, 81, 82, 83, 84, 85, 88, 92, 93, 133, 141, 

143 216 222 

Woodworth r. Spring (Mass.) 17, 88, 180, 258,' 259,' 260 

Wooley «;. Lyon (111.) 396,397,452 

Worcester Bank v. Wells (Mass.) 392 

Worley v. Hineman (Ind.) 457, 476 

Worth V. Ashe County (N. C.) 282 

Wright's Trusts (Eng.) 35, 75, 216 

Wrigley, Inre (N. Y.) 59 

Wunstan v. Higgins (N. Y.) 188 

Wyman v. Halstead (U. S.) 272, 283 

Wynne v. Wynne (Miss) 333, 341, 347, 348, 349 

Yates v. Thompson (Eng.) 834, 339, 341 

Yelverton v. Yelverton (Eng.) 97, 99 

Young i;. Harris (Ky.) 378,394,454 

I'. PoUak (Ala.) 72, 111, 112, 117 

r. Templeton(La.) 180 

ZiFCBTv. Thompson (Mass.) 813,316 




u^ 



CONFLICT OF LAWS. 




PART I. 

INTRODUCTORY. 



CHAPTER I. 



INTRODUCTION. 



§1. Origin of Private International Law. — Of the exist 

ence among the ancients of the branch of municipal law known 
as Private International Law, or The Conflict of Laws, we 
have no authentic record. If there were any such cases, they 
have left no impress behind them, and were probably decided as 
they arose, upon no definite principles. 

Nor during the Middle Ages was there any material advance. 
The nations of mediaeval Europe had little intercourse with one 
another, save for warlike purposes. Commerce was as yet but 
scantily developed, traveling much impeded. With but small 
occasion for such codes of rules, little attempt was made to 
establish them. 

But with the revival of commerce, the surer guaranties offered 
for the safety of travelers by reason of the more orderly con- 
dition of the European States, the more frequent intercourse 
between nations, and the advancement of conceptions of justice 
and order, the need of such rules began to be experienced, just 
as, at an earlier period, the necessity for tlie regulations of 
■public international law had been felt. 

Only within the past century however has any regular form 
been imparted to the subject. In recent years it has been much 
discussed both by English and American writers and judges, as 
well as by continental jurists, until it has finally assumed the 

1 



2 PUBLIC AND PRIVATE INTERNATIONAL LAW. § 5 

proportions of a distinct branch of legal science, though many 
of its leading principles still remain remarkably obscure and 
unsettled.^ 

§ 2. Public and Private International Law disting^shed. 
— Private international law may be distinguished from the 
public in three important particulars. 

I. As to the persons on whom it operates. 

Pri vate citizens arethe_^hjpc.ts oUhigbranch of the law, 
w hile public i nternationaJLJasg— doalo foi 
nations as suchi 

Itis"true that occasionally, under the latter law, individuals 
are interested in the questions raised, and are sometimes even 
the cause of international complications, perhaps of war ; but it 
is not as individuals that public international law interferes in 
their behalf or condemns them. It is because individuals neces- 
sarily form a constituent part of every State, parts of which the 
nation as a whole is made up ; and as no injury can be iiu 
flicted on one part of the body or by one member without the par- 
ticipation of the whole, so no member of the body politic can be 
injured without damage to the material interests, the dignity, 
and the honor of the whole. It is because of this blow to or 
by the State that public international law interferes in such 
matters. 

Private international law, on the other hand, is a part of the 
municipal law of each State. It deals with individuals as in- 
dividuals, as persons asking for justice at the hands of judges 
who are striving to give it, regardless of nationality or locality. 

II. As to the transactions to which it relates. 

The la^v^ofnations rec ognizes in general only transac tions in 
which sovereign Htates are interested. Not so with private in- 
toHi^tional law. ine transactions over which it assumes control 
are strictly private in their nature, in which the State as such 
has generally no interest. The private contract of the citizen 
of one State with the citizen of another, or a conveyance or will 
made by the citizen of one State transferring property in an- 
other, are subjects of private international law, with which pul> 
lie international law has no concern. 

1 For the contents of this section, cf. Story, Confl. L., ch. L 



§ 2 PUBLIC AND PBIVATB INTBRNATIONAL, LAW. 8 

III. As to the remedies applied. 

In cases to which private international law is applicable, 
recourse is had to judicial tribunals acting under the authority 
and in accordance with the rules of procedure of the country in 
which they sit. They are asked to hear the evidence and ad- 
minister justice as though the case were one of purely domestic 
concern. But in a contest between sovereign States arising 
under the law of nations, no such recourse is ordinarily practi- 
cable. No State would consent to have its disputes decided by 
the courts of another power, nor to appear before them, a suppli- 
ant for the justice it demands as a right. 

Yet this general principle is not altogether free from excep- 
tions or apparent exceptions, the most pronounced of which, 
perhaps, arises from the peculiar form of government existing 
in the United States. 

The States of this Union are sovereign States, save in so far 
as they have by solemn compact yielded their sovereignty to the 
federal government. They have surrendered their sovereignty 
only with respect to their public relations with other nations, 
and with respect to the few other matters named in the federal 
constitution. In all other respects they are sovereign, having 
exclusive control over persons and things within their terri- 
tories.* Hence, though the federal government is the only 
sovereign in the United States subject to public international 
law, every State and Territory in the Union may be the subject 
of private international law. 

But sovereign as the States are, in most matters of local con- 
cern, it is provided by the federal constitution ' that the Supreme 
Court shall have jurisdiction to decide all disputes arising be- 
tween the States. Thus is presented with us the extraordinary 
spectacle of two or more sovereign or quasi-sovereign States 
submitting their differences to a learned and illustrious tri- 
bunal for an orderly and peaceful solution, anticipating the 
dream of a universal Court of Appeal for all nations. 

Meanwhile, in the absence of such an exalted tribunal, to 

^ Hood V. State, 56 Ind. 263, 26 Am. Rep. 21, 22; Petersen v. Chemicaj 
Bank, 32 N. Y. 21, 40-41, 88 Am. Dec 2»8. 
» U. S. Conat, Art 3, § 8. 



4 FOREIGN ELEMENT ESSENTIAL. § h 

which all nations may resort, the only remedies for the infringe- 
ment of a nation's rights are a recourse to diplomatic channels ; 
should that fail, to retorsion, reprisal, and other means short of 
war; and finally to the arbitrament of arms, — that last dread- 
ful resort of an insulted or injured people. 

§ 3. Foreign Element essential to Operation of Private 
International Law. — Private international law embraces those 
universal principles of right and justice which govern the 
courts of one State having before them cases involving the 
operation and effect of the laws of another State or country. 
Such cases arise whenever a foreign element is introduced into 
a transaction. 

If the transaction in question arises wholly within a single 
State, all the parties interested having been, and continuing to 
be, domiciled and actually present there, the question being 
raised there also, no foreign element exists to cause any inter- 
ference with the usual and regular enforcement of the domestic 
municipal law by the domestic tribunals. There is no room in 
such case for the application of the rules of private international 
law. 

But if we suppose one or more of the parties to live in an- 
other State, or the transaction or some part thereof to have 
arisen elsewhere, a foreign element is at once imported into the 
case, and it may be asked whether the court is to be governed 
in its decision by the domestic law, by the law of the place 
where the parties, or some of them, live (or, in technical phrase, 
are domiciled), by the law of the place where the transaction or 
part thereof arises, or by the law of the place where property 
affected thereby may be situated ? 

Thus, if A, a citizen of New York, should there mortgage to 
B, a citizen of Maryland, personal property situated in Virginia, 
which property A afterwards removes to Illinois and sells to C, 
where B brings suit to recover it, a prominent question before 
the Illinois court might be: Shall we decide upon the valid- 
ity of B's title according to the law of New York, where the 
owner lived and the transfer was made ; or according to the law 
of Maryland, where the vendee lives; or according to the law of 
Virginia, where the property happened to be at the time of the 



§ 4 BASIS OP PRIVATE INTERNATIONAL LAW. 5 

transfer ; or shall we discard all these foreign elements entirely, 
and let the domestic law — the law of Illinois — control ? 

It is the aim of the branch of law with which we are now en- 
gaged to determine, in cases of this character, which law should 
be followed. 

§ 4. Basis of Private International Law. — Effect is given 
to a foreign law, not through any convention or agreement of 
nations, but merely because justice and policy often demand 
that, in the enforcement and interpretation of contracts and 
other transactions possessing a foreign element, the court should 
be governed by some other than the domestic law. 

When one voluntarily does an act in a particular country, it 
is, as a general rule, just and proper that the effect of the act 
should be measured by the law under which it is done. The 
party need not do the act there unless he chooses, and if he elects 
to do it there, the just measure of its operation is the law to 
which he has thus voluntarily submitted himself. In other 
words, the situs or locality of the act in question furnishes the 
law which will govern it. And the same general principle, as 
we shall hereafter see, applies to transactions and circumstances 
which are not the result of voluntary action. The law of the 
situs of the particular matter will control. 

It is often said that a court, in enforcing a foreign law, acts 
ex comitate, and if care is observed to note the meaning of the 
term "comity," the expression is not erroneous. The basis of 
private international law may be said to be comity, but it is 
as much a comity shown to the litigants in referring to the 
law of the situs, as above explained, as a comity to the State 
whose law is thus enforced. In truth, it is something more 
even than comity to the litigants. It is in answer to the de- 
mands of justice and an enlightened policy.^ 

It is to be observed that the rules of private international 
law do not derive force from a power superior to the sovereign 
States which recognize and enforce them. On the contrary, the 
very essence of a sovereign State is that it has no superior. It 
is one of the fundamental principles of this branch of the law 

1 Robinson w- Queen, 87 Tenn. 445, 11 S. W. 38, 39 ; Warrender v. Wax- 
tender, 2 CI. & F. 488, 530. See Whart. Confl. L. §§ 1 a, 2, 3. 



6 BASIS OF PEIVATE INTERNATIONAL LAW. § 4 

that each sovereign State is supreme within its own limits. It 
is therefore within the power of such a State at any time to ex- 
clude any or all foreign laws from operation within its borders. 
To the extent that it cannot do this, it is not sovereign. Hence, 
when effect is given to a foreign law in any territory, it is only 
because the municipal law of that State temporarily abdicates 
its supreme authority in favor of the foreign law, which, for 
the time being, with reference to that particular matter, be- 
comes itself, by the will of that State, its municipal law.' 

There are however some cases in which the courts will not 
permit a foreign law to supplant the domestic law. These 
exceptional cases will be considered more at large hereafter." 

These principles have been recognized by the United States 
Supreme Court, as entering into the definition of the "comity" 
which governs the courts in enforcing foreign laws. In Hilton 
V. Guyot* it is said: "Comity is neither matter of absolute 
obligation nor of mere courtesy and good will. It is the recog- 
nition which one nation allows within its territory to the legis- 
lative, executive, or judicial acts of another nation, having due 
regard both to international duty and convenience, and to the 
rights of its own citizens or of other persons who are under the 
protection of the laws." 

It is of the utmost importance to observe at the outset that 
every point that may come up before a court for its decision 
must have a situs somewhere, and each point that arises will in 
general be governed by the law of the State where that situs is 
ascertained to be. Whether the interest before the court be one 
arising from the voluntary action of the individual, or whether 
it be created, without voluntary action, merely by the law itself, 
is immaterial. It must have its situs, assigned by the indi- 
vidual or by the law. Numerous instances of this principle 
will appear later. A tort, a contract, a conveyance of property, 
the devise or descent of land or personalty, marriages, all have 
their situs, whose law will generally govern with respect to 

2 See Whart. Confl. L. §§ 1, 2, 8 ; Dalrymple v. Dalrymple, 2 Hagg. 
Cons. 58. 

» Post, Chapter II. 
* 159 U. S. lis- 



§ 4 BASIS OF PRIVATE INTERNATIONAL LAW. 7 

tbem. To ascertain the situs in such cases and others is in 
large measure the purpose of this work. 

In the future discussion therefore we will examine (1) The 
situs of the person ; (2) The situs of status ; (3) The situs of 
personal property ; (4) The situs of contracts ; (5) The situs of 
torts ; (6) The situs of crimes ; and (7) The situs of remedies. 
But before entering into the discussion of these heads, a chapter 
will be devoted to the consideration of certain exceptional cases 
wherein it is held that neither the claims of situs nor the dc' 
mands of comity are strong enough to induce the substitution 
of a foreign for the domestic law. 



GBOUNDS OF EXCEPTIONS. 



§5 



CHAPTER II. 

EXCEPTIONS TO TELE APPLICATION OF A FOREIGN LAW. 



§ 5. General Orounds upon which t±ie Exceptions are 
based. — In the jtrecedings ection it ha gbeen shown that^the 
basis of private international law is ^*internation^ _i:Qmity," 
whichin realit y is nothing more than an enlightened sentimen t 
of justice and policy. 

But-l t must never b e fnrgntt:pn fhaf, P-mwy anvft gfeign^Sfglft haS 

abfrftljltg WT'^*'"^ "^*"' *^'^ persons and property within its b or- 
de rs, and may_ regulate tb ^TT^ ^ i*^« rivtrn iM» frmT1ft"hf -pr npri fti-y 

and-poljg y dictate.^ The quest i o n in all ouch caooo ia . a hall it 
exercise the _right t" ^nntr nl ^^^QgQ ""^<"tftrff J2Z^° own law, or 
shall it yiftld tn tbe_jaw of another State ? IfiF~Choo8efr --the 
latter course, it does so not be cause the foreign legislation or 
instrEution8""^ve an exterritorial force within its limit8."' but 
8 imply, J)ecanBe~piQii cy and jus ticft HprnaruT it.' 

It may be that the legislature of the State in which the ques- 
tion arises has foreseen and provided for the contingency, and 
has expressly laid down the rule that shall govern its courts 
should a foreign element creep into a particular case. In such 
event the legislature may enact that the foreign law is to control, 
or that, notwithstanding the foreign element, the domestic law 
shall still govern. This is a matter of policy wholly in the 
discretion of the legislatur ft, irt tfl wbifih tb^ ^^jMirrrLH i-iiiiimt in- 

I See Blackinton v. Blackinton, 141 Mass. 432, 436 ; ElUs v. Ellis, 
55 Minn. 401, 56 N. W. 1056, 1058 ; Roth v. Roth, 104 111. 35, 44 Am. Rep. 
81, 82, 83 ; Cook r. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 35 ; 
Green r. Van Buskirk, 5 Wall. 307 ; s. c. 7 Wall. 139 ; Hervey v. Locomo- 
tive Works, 93 U. S, 664 ; Pennoyer r.Neff, 95 U. S. 714, 722; Atherton Co. 
r. Ivee, 20 Fed. 894, 896; Moore v. Title & Trust Co., 82 Md. 288, 33 AU 
641, 642. 

• PetersMi v. Chemical Bank, 32 N. Y. 21, 44, 88 Am. Dec. 298. 



^ 

■ 

§ 6 GROUNDS OF EXCEPTIONS. 9 ' 

quire. In the latter case, there would be no room for the opera- 
tiono? the rules of private international law. It is merely a 
question of the courts' obedience to the mandates of the State's 
municipal law. 

But it rarely happens that the legislature, in enacting J 
statute, expressly deals with cases involving a foreign element. 
Primarily the legislature enacts laws for its own citizens, touch- 
ing property and transactions within the State, and does not 
usually notice expressly those cases in which the person, the 
property, or the transaction affected may be without the State, in 
whole or in part. Under these circumstances therefore the duty 
devolves upon the courts to determine whether the municipal 
law, by its silence, means to include or to exclude these cases. 
Here it is that the rules of private international law come into 
play, and guide the courts in the solution of problems that are 
often intricate. ^^ 

There may be said to be five instances wherein it is generally ^i/y^ 
considered that the municipal law of the State where the ques- r- 
tion is raised (lex fori) forbids the enforcement of a forei^n-las^./^ 

(1) Where the enforcement of the foreign law would contraven^ 1 
some established and important policy of the State of th^-fortim^f'^ ^ 

(2) where the enforcement of such foreign law would involve 
injustice and injury to the people of the forum; (3) where such 
enforcement would contravene the canons of morality established A") ' 
by civilized society; (4) where the foreign law is penal in its -X 
nature; and (5) where the question relates to real property. ' ^''»'^■^vl 

These exceptions are of supreme importance in the study of ^V- 
this subject, and must be constantly borne in mind, for they xj^^j^ 
constitute standing exceptions to almost every proposition that ^ 
can be laid down. Yet they are often lost sight of by the-»_^ 
courts, or are confounded with the principles themselves. The /) 

unnoticed existence and enforcement of them in many of the 4^^ 
cases is one main cause of the confusion that envelops the sub- 
ject. The reader must therefore pardon a constant recurrence 
to them in the course of the discussion which is to follow. 

In view of these frequently recurring exceptions, and to avoid 
a lengthy periphrasis, we will in future designate as *'Thb 
VsoPEK Law " that law which, upon general principles, is th« 



10 PIRST EXCEPTION — POLICY. § 6 

proper law to govern the case. If it is one of the exceptional 
cases above mentioned, the law governing it will be designated 
The Domestic Law or Lex Fori. 

§ 6. First Exception — Policy or Interests of Forum con- 
travened by Enforcement of Proper Law. — Few general prin- 
ciples of private international law are so well settled as the rule 
that no foreign law (even though, under ordinary circumstances, 
it be the *' proper law ") will be enforced in a sovereign State, 
if to enforce it will contravene the express statute law or an 
established policy of the forum, or is injurious to its interests.^ 

If the policy of the forum has been expressed in a statute 
which in terms covers even transactions having a foreign ele- 
ment, no difficulty will be apt to arise. There can be no ques- 
tion then as to what is the pronounced policy of the forum, a 
'policy deemed so important as to be expressly extended by the 
legislature to foreign transactions. If the forum retains a ves- 
tige of sovereignty, the lex fori will prevail.^ 

It is in cases where the domestic law is not statutory but un- 
written, or, if statutory, where the statute does not in terms 
apply to matters involving a foreign element, that the difficulty 
arises. It is not in every case of this kind that the domestic 
law is applicable. If this were so, there could never be any 

1 May V. Bank, 122 lU. 551, 13 N. K 806, 808 ; Frank v. Babbitt, 
155 Mass. 112, 115 ; Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636, 637 ; 
Bowles r. Field, 78 Fed. 742, 743 ; Case v. Dodge, 18 R. I. 661, 29 AH. 785, 
786 ; Despard v. Churchill, 53 N. Y. 192, 200 ; Van Voorhis v. Brintnall, 

86 N. Y. 18, 26, 40 Am. Rep. 505 ; Freeman's Appeal, 68 Conn. 533, 37 Atl. 
420 ; Armstrong r. Best, 112 N. C. 59, 17 S. E. 14, 15 ; Com. v. Lane, 113 Mass. 
458, 463, 18 Am. Rep. 509 ; Tme v. Ranney, 21 N. H. 52, 53 Am. Dec. 164 ; 
Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; Pennegar v. State, 87 Tenn. 
244, 2 L. R. A. 703, 704-5 ; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678 ; 
Edgerly v. Bush, 81 N. Y. 199 ; Woodward v. Brooks, 128 III. 222, 20 X. E. 
685, 686 ; Ex parte Dickinson, 29 S. C, 453, 7 S. E. 593, 594-5 ; Green i;. 
Van Buskirk, 7 Wall. 139 ; Smith v. Union Bank, 5 Pet. 518, 527. 

2 See WiUiams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; May v. Bank, 
122 111. 551, 13 N. E. 806, 808 ; Frank v. Babbitt, 155 Mass. IH; Com. r. 
Lane, 113 Mass. 458, 463, 18 Am, Rep. 509 ; Bamett v. Kinney, 147 U. S. 
476 ; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 462 ; Pennegar v. State, 

87 Tenn. 244, 2 L. R. A. 703, 704-5 ; Kerr r. Dougherty, 78 N. Y. 327, 541 j 
Case V. Dodge, 18 R. I. 661, 29 Atl. 785, 786. 



§ 6 FIRST EXCEPTION — POLICY. 11 

practical question of a conflict of laws. The law which will be 
applied depends upon the importance attached to the policy 
advocated by the lex fori. The legislature is primarily the 
judge of questions of policy, and if it has spoken plainly either 
for or against the enforcement of a foreign law in a given case, 
the courts must obey.' If the legislature has not indicated 
expressly its will that a particular domestic policy should con- 
trol in all cases, it then devolves upon the courts to determine 
in what cases it shall control.* 

In deciding cases of this kind therefore each court has to pass 
upon the importance of the domestic policy maintained by its 
laws. They are generally loath to deny the enforcement of a 
proper foreign law, and will not, if they consider the domestic 
policy of minor importance. But where it is a fundamental and 
important policy of the State, established after careful consider- 
ation of the supposed needs and wants of its people, no foreign 
law will be permitted to supersede it. 

If however there is an irreconcilable conflict between the two 
systems of law, the courts will usually lean towards the lex 
fori.* Ultimately this question must be decided in each case as 
it arises, and as the solution of it must depend upon the judg- 
ment of each court, great conflicts of decision may be expected, 
and indeed have sometimes resulted. A particular policy, 
regarded in one State as of the gravest importance, will be 

8 Green v. Van Buskirk, 5 Wall. 307, 312 ; Matthews v. Lloyd, 89 Ky. 
625, 13 S. W. 106, 107 ; Bowles v. Field, 78 Fed. 742, 743; Cross v. U. S. 
Trust Co., 131 N. Y. 330 ; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 
505 ; Pennegar v. State, 87 Tenn. 244, 5J L. R. A. 703, 705 ; Ex parte Dick- 
inson, 29 S. C. 453, 7 S. E. 593, 594-5 ; State v. Kennedy, 76 N. C. 251, 
22 Am. Rep. 683, 684 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 
466; West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 512, 11 Am. Dec. 
231 ; Ex parte Kinney, 3 Hughes, C. C. 1, 20. 

* Legislation subsequent to the transaction in dispute may be looked to in 
order to determine what importance the legislature attaches to the policy of 
the State at the time of the transaction. See Milliken v. Pratt, 125 Mass. 
374, 28 Am. Rep. 241 ; Case v. Dodge, 18 R. I. 661, 29 Atl. 785, 786 ; 
Fellows V. Miner, 119 Mass. 541; Freeman's Appeal, 68 Conn. 533, 87 Atl. 
420 ; Dammert v. Osborn, 140 N. Y. 30, 44. 

* Gardner v. Lewis, 7 Gill (Md.), 378, 396 ; Saul v. His Creditors, 5 Mart 
N. s. (La.) 569, 16 Am. Dec. 213 ; Story, Confl. L. § 28, 



12 SECOND EXCEPTION — RESIDENTS. §7 

relegated to the background in another, where the needs of the 
people are different. Moreover, in the same State, the opinions 
of men will often differ as to the relative importance of certain 
lines of policy, or perhaps even the opinion of the same man at 
different times. Hence, while recognizing and applying the 
same general principles, the courts of different States may 
readily reach different conclusions in the same class of cases, 
and neither violate the rules of private international law." As 
has been well said by a learned judge,'' speaking of the con- 
flicting authorities upon a point in the conflict of laws: " They 
have attempted to go too far; to define and fix that which in the 
nature of things cannot be defined and fixed. They seem to 
have forgotten that they wrote on a question which touched the 
comity of nations, and that that comity is, and ever must be, 
uncertain. That it must necessarily depend upon a variety of 
circumstances, which cannot be reduced within any certain 
rule. That no nation will suffer the laws of another to inter- 
fere with her own to the injury of her citizens; that whether 
they do or not must depend upon the condition of the country 
in which the foreign law is sought to be enforced; the particular 
nature of her legislation, her policy, and the character of her 
institutions. That in the conflict of laws it must be often a 
matter of doubt which should prevail ; and that whenever that 
doubt does exist, the court which decides will prefer the law of 
its own country to that of the stranger." 

§ 7. Second Exception — Injustice or Detriment to People 
of the Forum. — This exception, like most of the others, is but 
a branch of the first, but, by reason of its frequency and impor- 
tance, is treated separately. 

It is natural, and not at all to be reprobated, that the courts of 
the forum should refuse to enforce a foreign law, if to do so would 
result in injustice to their own people. The object of the enforce- 
ment of a foreign law in any case is to mete out, as far as possible, 
exact justice to all concerned, as well as to give due effect to the 

« Pemiegart;. State, 87 Tenii. 244, 2 L. R. A. 703, 706 ; Cross v. U. S. 
Trust Co., 131 N. Y. 330, 343 ; HolJis r. Seminary, 95 N. Y. 166. 

"> Porter, J., in Saul v His Creditors, 5 Mart. K. s. (La.) 560, 16 An 
Dec. 212, 225. 



§ 7 SECOND EXCEPTION — RESIDENTS. 13 

laws of other States. But the first and most important of these 
objects fails altogether when the enforcement of the proper law 
would result in injustice and loss to innocent citizens of the 
forum. As between the latter and strangers, it is not remark- 
able that the courts should elect in a close case to decide the 
matter in accordance with the lex fori, thus giving their fellow 
citizens the advantages conferred upon them by the law under 
which they live and ordinarily transact their business. The 
observance of comity towards other States cannot reasonably be 
expected at the expense of injustice to residents of the forum, 
for whose benefit the courts and the law are primarily insti- 
tuted. The existence of this exception to the enforcement of 
the "proper law" is beyond dispute, though its limits are not 
yet precisely defined.^ 

A dictum in a leading Louisiana case*^ will serve to illustrate 
the operation of this exception. In that case the court, argv^ 
endo, supposes a person domiciled in Spain to enter into a con- 
tract with a citizen of Louisiana, the Spanish citizen being 
twenty-three years old. By the law of Spain (lex domicilii) he 
does not become of age until he is twenty-five. By the law of 
Louisiana he is of age at twenty-one, and can make a binding 
contract. Suit is brought on the contract in Louisiana by the 

1 Green v. Van Buskirk, 5 Wall. 307, 312 ; Pennoyer r. NeflF, 95 U. S. 
714, 723; Cole v, Cnnningham, 133 U. S. 107, 126 ; Bamett v. Kinney, 147 
U. S. 476 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Robinson 
V. Queen, 87 Tenn. 445, 3 L. R. A. 214 ; Bentley r. Whittemore, 19 N. J. Eq. 
462, 97 Am. Dec. 671 ; May v. Bank, ]22 111. 551, 13 N. E. 806 ; Matthews 
V. Lloyd, 89 Ky. 625, 13 S. W. 106, 107; Marshall r. Sherman, 148 N. Y. 
9, 10, 29, 42 N. E. 419 ; Armstrong v. Best, 112 N, C. 59, 17 S. E. 14, 15; 
Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722; Frank v. Bobbitt, 
155 Mass. 112, 29 N. E. 209; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 377, 
738; Catlin v. Plate Co., 123 Ind. 477, 24 K E. 250, 8 L. R. A. 62, 63; 
Gilman t;. Ketcham, 84 Wis. 60, 54 N. W. 395; Egbert v. Baker, 58 Conn. 
319, 20 Atl. 466, 467; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368 ; 
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 347-8 ; Fuller v. Steiglitz, 
27 Ohio St. 355, 22 Am. Rep. 312, 318; Long v. Girdwood, 150 Penn. St. 
413, 24 Atl. 711, 712, 23 L. R. A. 33, note. But see Atherton Co. v. Ives, 
20 Fed. 894, 897. 

2 Saul V. His Creditors, 17 Mart. 569, 16 Am. Dec. 212, 226. See aHat 
Baldwin v. Gray, 4 Mart. N. s. (La.) 192, 16 Am. Dec. 169, 170. 



14 EXTENT OF SECOND EXCEPTION. § 8 

Louisiana citizen. The defendant urges the law of his domicil 
as fixing his age of majority (which is a status) and his conse- 
quent capacity to make a binding contract.^ The court, while 
alleging (erroneously) the general operation of the lex domicilii 
in such cases, insists that the foreign law must yield in this 
instance to the lex fori, as its enforcement would work an in- 
justice to the Louisiana citizen who could not be supposed to 
be acquainted with the laws of Spain. 

But in order for this exception to operate, the enforc ement of 
the_£roper law TTvnRt__rpgiilt in injtistire tft thft citizen of the 
foruBU— Tho more fact that nuch unfufCbiiieuL would aubj «ct him 
fri ! i j i rt liabil i ty; vvhirh hr mig h t e s cnpp w^ra thfi_ [ftY fori to 
operate^will not suffice. 

Again, it is a generally accepted principle that a transfer of 
personalty situated abroad is governed as to its validity and 
effect by the law of the place Avhere the transfer is made (lex 
loci contractus).* But this rule will not usually be permitted 
to operate in the State where the personalty is situated in cases 
where an injustice will thereby be done the people of the latter 
State; for example, attaching creditors of the assignor. The 
lex fori will be substituted.* 

So, in a Tennessee case,' a married woman, domiciled in Ken- 
tucky, made there a note as surety for her husband, which note 
was also payable there. Suit was brought against her on the 
note in Tennessee. By the law of Kentucky a married woman 
could bind herself by such a contract ; by the law of Tennessee 
she could not. The court refused to apply the Tennessee law, 
saying: ''If this were a suit against a married woman, a citizen 
of this State, on a contract made out of the State, there would 
be much force in the insistence of the defendant." 

§ 8. Extent of Second Exception. — The limits of this ex« 
ception are not as yet very definitely settled. If there be only 

« See post, §§ 71, 72. « Post, §§ 128 et seq. 

6 Post, § 129 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Bentley v. 
Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671 ; Frank t>. Bobbitt, 155 Mass. 
112, 29 N. E. 209; Edgerly v. Bush, 81 N. Y. 199; Hornthall v. Burwell, 
109 N. C. 10, 13 S. E. 721, 722 ; Crapo v. Kelly, 16 Wall. 610, 622. 

« Robinson v. Queen, 87 Tenn. 445, H S. W. 38, 3 L. R. A. 214. 



§ 8 EXTENT OF SECOND EXCEPTION. 15 

one party who complains of the injustice done him by the en- 
forcement of a proper foreign law, and he is a citizen of the 
forum, the lex fori will generally be substituted in the place of 
the foreign law.^ And the same is true where there are several 
who thus complain, all being citizens of the forum.' 

And it has been held, where the complaining parties were 
partners^ some of whom were citizens of the forum and some 
citizens of another State, that the privileges of the lex fori ac- 
cruing to the citizens of the forum will enure also to the 
benefit of those partners who were citizens of other States, be- 
cause they were jointly interested and their interests could not 
be separated.' 

It has been suggested that, as between the States of this 
Union, to so discriminate against the citizens of other States 
and in favor of the citizens of the forum contravenes the pro- 
vision of the federal constitution which declares that the citizens 
of each State shall be entitled to all privileges and immunities 
of citizens of the several States.* But the opposite is too well 
established to be disputed. This constitutional provision applies 
to fundamental and universal rights, not to special privileges. 

There seems to be a tendency in some of the decisions to ex- 
tend the principle of comity, as between the several States of 
the Union, beyond the limits marked out by strict international 
law. These decisions make the distinction already adverted to 
between citizens of the forum and citizens of foreign countries, 
but place the citizens of other States of the Union upon the 
same footing as residents of the forum, giving them also the 
benefit of the domestic law.' But the weight of opinion and 

1 May V. Bank, 122 111. 551, 13 N. E. 806 ; Matthews v. Lloyd, 89 Ky. 
625, 13 S. W. 106; Frank v. Bobbitt, 155 Mass. 112 ; Edgerly v. Bush, 81 
N. Y. 199 ; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 349 ; Crapo v. 
Kelly, 16 Wall. 610, 622. 

2 Faulkner v. Hyman, 142 Mass. 53, 55. 

3 Faulkner v. Hyman, 142 Mass. 53, 55-56. See Bentley v. "Whittemore, 
19 N. J. Eq. 462, 97 Am. Dee. 671, 672, 674. 

* Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 349. This case itsell 
:jerely makes the suggestion to refute it. See also Athertou Co. v. Ives, 20 
Fed. 894, 897 ; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368. 

6 Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368; Hibernia Bank 



16 EXTENT OF SECOND EXCEPTION. § 8 

reason seems to be in favor of confining the privilege of the lex 
fori to citizens of the forum, so far as the operation of this ex- 
ception is concerned.® 

However it may be as to putting citizens of the forum and of 
third States (within the Union) on an equal footing, opinion 
has been divided as to whether it is proper to exclude citizens 
of the State whose law is properly applicable ; it being said 
that in their favor their own law should not be set aside and 
substituted by the lex fori,^ unless the settled policy of the 
forum (independently of citizenship) requires its substitution.* 

Another question arises which involves the scope of this ex- 
ception. Does it apply only to citizens of the forum, or should 
it be extended to those, not citizens, who are domiciled there, 
or even to those who are casually present there ? As between 
the States of this Union, if the party upon whom the foreign 
law operates injuriously is a citizen of the United States, he 
must be held a citizen of the forum if he is domiciled there.' 
But if he be not domiciled there, or if he be an alien, or if the 

r. Lacombe, 84 N. Y. 367; Catlin v. Silver Plate Co., 123 Ind. 477, 24 X. E. 
250, 8 L. R. A. 62, 65 ; First Nat Bank v. Walker, 61 Conn. 154, 23 Atl, 
696 ; Oilman v. Ketchum, 84 Wis. 60, 54 N. W. 395 ; Fuller v. Steiglitz, 27 
Ohio St. 355, 22 Am. Rep. 312, 318, 319; Milne v. Moreton, 6 Binn. (Penn.) 
353, 6 Am. Dec. 466. See Atherton Co. v. Ives, 20 Fed. 894, 897, in which 
the court seems inclined to place even citizens of foreign countries upon the 
same footing with citizens of the forum. 

« The first exception operates, regardless of citizenship. See Douglas v. 
Bank, 97 Tenn. 133, 36 S. W. 874, 876 ; Moore v. Church, 70 la. 208, 59 Am. 
Rep. 439, 441 ; Barth v. Backus, 140 N. Y. 230 ; Paine v. Lester, 44 Conn. 
196, 26 Am. Rep, 442. The last two are cases of involuntary assignments 
under insolvency laws. Such assignments have no exterritorial effect. See 
post, § 137. 

T Barnett v. Kinney, 147 U. S. 476, 481 ; Cole v. Cunningham, 133 U. S. 
107, 129 ; Bagby v. R. R. Co., 86 Penn. St. 291 ; Bacon v. Home, 123 Penn. 
St. 452, 453, 16 Atl. 794; Oilman v. Ketchum, 84 Wis. 60, 54 N. W. 395 ; 
Faulkner r. Hyman, 142 Mass. 53, 55; May v. Wannemacher, 111 Mass. 
202, 209 ; Woodward v. Brooks, 128 111. 222, 20 N. E. 685; In re Dalpay, 41 
Minn. 532, 43 N. W. 564, 566. But see Barth «;. Backus, 140 N. Y. 230, 29 
N. E. 209 ; Hibemia Nat. Bank v. Lacombe, 84 N. Y. 367. 

« See Moore v. Church, 70 la. 208, 59 Am. Rep. 439, 441. See post, 
§S 134, 138, where this question is more fully discussed. 

• U. S. Const. Amendment XIV. 



§ 9 THIRD EXCEPTION — CONTRA BONOS MORES. 17 

suit be instituted in a foreign country, the point becomes 
important. 

It is believed that the exception comprises within its scope 
all those for whose protection and benefit the lex fori is enacted, 
including not only citizens, but aliens domiciled there, and 
sometimes persons resident there for a temporary purpose.^® 

§ 9. Third Exception — Proper Foreign Law Contra Bonos 
Mores. — This exception also is merely a particular application 
of the first. There are certain things which are inherently 
vicious, demoralizing, and antagonistic to the general principles 
of morality which form the basis of civilized societies. It is 
a most important part of the policy of every civilized State that 
the law should prohibit or discourage such things as far as 
practicable. They are generally condemned by every system 
of municipal law. 

When we come to examine this principle, as it applies in 
private international law, we find that there are certain trans- 
actions which, though valid in some barbarous or semi-civilized 
States, and perhaps even in one or two that are civilized, are 
reprobated by the municipal law of most countries, as immoral ''0 ' 
in fact or in tendency. Such, for example, are polygamous mar- } 
riages; marriages between parent and child, grandparent and 
grandchild, or brother and sister; contracts to reward crime; 
contracts for the price of illicit intercourse ; contracts to corrupt 
or evade the due administration of justice, to defraud or corrupt 
public agents; and in general all transactions which in their 
nature are founded in moral turpitude, and are inconsistent 
with the good order and substantial interests of the forum. 
Such transactions will always be discountenanced by the lex 
fori, regardless of the character stamped upon them by the law 
which should properly govern them.^ 

1" Woodworth V. Spring, 4 Allen (Mass.), 321; Bank v. Williams, 46 Miss. 
618 ; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367 ; Freeman's Appeal, 68 
Conn. 533, 37 Atl. 420. See Donovan v. Pitcher, .53 Ala. 411, 25 Am. Rep. 
634 ; Hilton v. Guyot, 159 U. S. 113. 

1 Story, Confl. L. § 258; Oscanyon v. Arms Co., 103 U. S. 261; Green- 
wood V. Curtis, 6 Mass. 358, 4 Am. Dec. 145, 147-9 ; Armstrong v. Toler, 11 
Wheat. 258 ; Merchants' Bank v. Spalding, 12 Barb, (N. Y.) 302 ; Madrazzo v. 
Willes, 3 Barn. & Aid. 353. 

2 



18 THIRD EXCEPTION — CONTRA BONOS MORES. § 9 

The same principle will also apply where a contract is made 
for the purpose of giving aid to the enemies of a country with 
which the forum is in amity ; ' or to a contract tending to the 
bribery and corruption of the officers of a foreign government.' 

Under this head may likewise be placed those transactions 
which are so detrimental to the interests of the forum itself, 
and disclose such a disregard for the public weal as to amount 
to immorality. Of this character are contracts with alien ene- 
mies, contracts to smuggle goods into the forum, or to evade 
or violate its revenue laws.* Yet, strange to say, the rule has 
been laid down otherwise in cases where the transaction is a 
fraud upon the revenue laws of another State, upon the paltry 
and shortsighted theory that one State has no concern with the 
revenue laws of another, and that the latter must enforce its own 
laws. " Sound morals would seem to point to a very different 
conclusion." ' 

So also, if an attempt be made to evade the "proper law," 
a fraud upon that law is committed, which the courts of that 
State at least will not in general tolerate. They will substitute 
the law which should have governed had there been no such 
fraud. The validity of a transaction cannot be secured by ap- 
parently subjecting it to a law by which it is not properly 
governed.' 

Thus, in Mortg. Co. v. Jefferson,^ the plaintiffs, who resided 

' Eennett v. Chambers, 14 How. 38 (a contract to famish aid to Texans 
against Mexicans). 

» Oscanyon v. Arms Co., 103 U. S. 261, 

* Armstrong v. Toler, 11 Wheat. 258 ; Griswold v. Waddington, 16 Johns. 
(N. Y.) 438; Ivey i;. Lolland, 42 Miss. 444, 2 Am. Rep. 606. 

6 Story, Confl, L. §§ 245 et seq. ; Ivey v. Lolland, 42 Miss. 444, 448, 
2 Am. Rep. 606 ; Merchants' Bank v. Spalding, 9 N. Y. 53, 63. 

• See Story, Confl. L. § 106 ; Mortg. Co. v. Jefferson, 69 Miss. 770, 12 
So. 464, 465 ; Hinds v. Brazealle, 2 How. (Miss.) 837, 32 Am. Dec. 307 ; 
Gardner v. Lewis, 7 Gill (Md.), 378, 392 ; Arhuckle v. Reaume, 96 Mich. 243, 
55 N. W. 808 ; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 704 ; Com. 
V. Lane, 113 Mass. 458, 471, 18 Am. Rep. 509; "West Cambridge i-. Lexing- 
ton, 1 Pick. (Mass.) 506, 11 Am. Dec. 231 ; Akers v. Demond, 103 Mass. 318, 
324; Kinney v. Com., 30 Gratt. (Va.) 858; SUte v. Kennedy, 76 N. C. 251, 
22 Am. Rep. 683. 

7 69 Miss. 770, 12 So. 464, 465. 



§ 9 THIRD EXCEPTION — CONTRA BONOS MORES. 19 

in Tennessee, borrowed money of the defendant, a New York 
corporation, securing the loan by a deed of trust upon land in 
Mississippi. The notes were made in Tennessee and payable in 
New York, and were usurious by the laws of both States, but 
not by the law of Mississippi. The deed of trust recited (con- 
trary to the fact) that it and the notes were made in Mississippi, 
where they were not usurious, and that they were to be con- 
strued according to the laws of that State. But the Mississippi 
court disregarded this recital altogether, holding that the laws 
of a State and access to its courts are not the subject of contract. 

There is an exception, however, to this last principle in the 
case of marriage. It is of the utmost importance to the very 
existence of society that its well-spring, the marriage relation, 
should be kept pure and unpolluted. The courts strain every 
nerve to uphold a marriage, not in itself immoral. Hence, if 
citizens of a State leave it to contract elsewhere a marriage, for- 
bidden by the law of their domicil but valid where contracted, 
and afterwards return to their domicil, though this is an evasion 
of the domiciliary law, the marriage will be upheld in all States 
other than their domicil.^ 

Upon the question whether the courts of the domicil will up- 
hold such a marriage, the authorities are much divided. Many 
influential courts stand in favor of upholding the marriage at 
all hazards, even though it be contracted in fraud and evasion of 
the home law, deeming this general policy superior to all special 
policies of the domicil and forum.' Others, as influential, make 
the question turn upon the relative importance of the policies 
involved. While not lightly setting aside a marriage valid 
where contracted, neither will they lightly set aside important 
domestic policies closely relating to the moral life of the people. 
Under this line of cases the relative importance of the policies 

' See post, § 73 ; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 
444. 

• Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Com. v. Putnam, 
1 Pick. (Mass.) 136; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Put- 
nam V. Putnam, 8 Pick. (Mass.) 433; Van Voorhis v. Briutnall, 86 N. Y. 18. 
40 Am. Rep. 505; Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Thorp w. Thorp, 
90 N. Y. 602. 



20 THIRD EXCEPTION — CONTRA BONOS MORES. § 9 

involved is the criterion, and the result in a particular case will 
depend upon the weight attached by the particular court, in a 
sound judicial discretion, to the policy indicated by the domi- 
ciliary legislation. And this, it is believed, is the better 
view.^° 

There are some transactions which, though deemed immoral 
in some States, cannot be said to be immoral by the laws of 
nature, this being evidenced by the fact that some fully civil- 
ized nations do not so consider them. To this head belong 
marriages between persons related to each other by ties of con- 
sanguinity or affinity. 

All civilized States reprobate marriages between persons in 
the direct lineal line of consanguinity, and those contracted be- 
tween brother and sister. ^^ Such marriages therefore, though 
celebrated in a barbarous country where they are valid, will gen- 
erally be adjudged void in all civilized States, as being contra 
bonos mores.^^ But when we proceed further than this, to mar- 
riages between uncle or aunt and niece or nephew, between 
brother-in-law and sister-in-law, between first cousins, etc., we 
find there is no common opinion in Christendom upon the mo- 
rality of such marriages. Some States prohibit them while 
others permit them. It cannot then be said in such case that 
the marriage is universally or even generally deemed immoral 
throughout the civilized world. The fact is otherwise. Hence 
in these latter cases the courts will not feel at liberty to depart 
from the " proper law," even though by the lex fori such a mar- 
riage would be disapproved and declared void. If valid by its 
proper law, it will be valid everywhere.^* 

w Pennegar r. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 704, 705 ; 
Kinney v. Cora., 30 Gratt. (Va.) 858; State v. Kennedy, 76 N. C. 251, 22 
Am. Rep. 683. See post, § 73, where this whole topic is examined at large. 

" Story, Confl. L. § 114 ; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 
343, 349; Sutton «;. Warren, 10 Met. (Mass.) 451, 452. 

12 Story, Confl. L. § 114. 

^ Story, Confl. L. § 114 ; Greenwood v. Curtis, 6 Mass. 358, 379, 4 km 
Dec. 145 ; Med way v. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Com. 
V. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509; Wightman v. Wightman, 
4 Johns. Ch. (N. Y.) 343, 349; Kinney v. Com., 30 Gratt. (Va.) 858 ; State 
V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683 ; Stevenson v. Gray, 17 B. Mon. 



f 10 FOURTH EXCEPTION — PENAL LAWS. 21 

Another illustration of the principle that private international 
law will not condemn as immoral transactions which are not so 
considered by all, or at least the great majority, of the civilized 
States of the world, is to be found in transactions based upon 
the institution of slavery. Thus a note given in payment for 
slaves or for slave hire, payable in States where slavery is law- 
ful, will be enforced even in States which condemn or do not 
recognize the institution." 

Neither are Sunday laws treated as rules of positive morality, 
certainly not by all civilized nations. Hence contracts entered 
into, or to be performed, on Sunday, and valid by their proper 
law, will be enforced even in States whose laws prohibit and in- 
validate Sunday contracts.^* 

§ 10. Fourth Bzception — Proper Foreign Iiaw Penal in its 
Nature. — It is a well-settled principle of private international 
law that the penal laws of one State will have no exterritorial 
effect in other States. Each State must look after the punish- 
ment of its own people for offences against its laws. Other 
States cannot and will not undertake to aid it in these matters 
further than to surrender a fugitive from justice under extra- 
dition treaties or laws. This general principle is universally 
admitted.^ 

(Ky. ) 193. The proper law governing the validity of marriages will be dis- 
cussed hereafter. Post, §§ 75, 76 et seq. 

^* Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145 ; Bouudtree v. Baker, 
52 111. 241, 4 Am. Rep. 597 ; Osbom v. Nicholson, 13 Wall. 654. It is other- 
wise as to the status of the slave himself. See Com. v. Aves, 18 Pick. (Mass.) 
193; Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634. 

" McKee v. Jones, 67 Miss. 405, 7 So. 348 ; Brown v. Browning, 15 R. I. 
422, 7 Atl. 403 ; Swann v. Swann, 21 Fed. 299. For the proper law governing 
the validity of Sunday contracts, see post, §§ 168, 175. 

1 The Antelope, 10 Wheat. 66, 123 ; Huntington v. Attrill, 146 U. S. 657, 
666 ; Com. v. Green, 17 Mass. 515, 539-540 ; Com. v. Lane, 113 Mass. 458, 
470, 18 Am. Rep. 509 ; Coffing v. Dodge, 167 Mass. 231, 232, 45 N. E. 928 ; 
Van Voorhia v. Brintnall, 86 N. Y. 18, 28, 36, 40 Am. Rep. 505 ; Sims v. 
Sims, 75 N. Y. 466; Succession of Hernandez, 46 La. Ann. 962, 15 So. 461, 
24 L. R. A. 831, 842; Marshall v. Sherman, 148 N. Y. 9, 20, 42 N, E. 419, 
Guerney v. Moore, 131 Mo. 650, 32 S, W. 1132, 1138 ; Dickson v. Dickson, 
1 Yerg. (Tenn.) 110, 24 Am, Dec. 444 ; St. Sure v. Lindsfelt, 82 Wis. 346y 
19 L. R. A. 515, 519; Midland Co. v. Broat, 50 Minn. 562, 52 N. W. 972 



22 FOUBTH EXCEPTION — PENAL LAWS. § 10 

But the authorities by no means agree as to the meaning to 
be attached to the term ''penal," in the international sense of 
the word. In Huntington v. Attrill,* the Supreme Court of the 
United States has laid down the following criterion: '' The 
question whether a statute of one State, which in some ^spects 
may beTcalleT^jSi^j is a pelial law in the international sense, 
so that it cannot be enforced in the courts of another State,"3e- 
peiids upon the question whether its purpose is to punish_^JL. 



offence against t\iQ public justice of the State, or to afford a pri=_ 
vate remedy to a person injured by the wrongful act," the court 
holding that, in the first case, the law has no extraterritorial 
effect, being penal, while in the second case, being remedial, 
it may be given exterritorial operation.' 

First Nat. Bank v. Price, 33 Md. 487, 3 Am. Rep. 204 ; Dale v. R. R. Co., 57 
Kan. 601, 47 Pac. 521. Sufficient reasons for the principle may be found in 
the divergent notions of right and justice current in different countries, the 
differences existing in the forms of administering justice, and the inherent 
right of a sovereign State to control all persons within its limits and to judge 
them by its own laws. See Com. v. Green, 17 Mass. 515, 539. 

« 146 U. S. 657, 666, 673. See also Boyce v. Railway Co., 63 la. 70, 18 
N. W. 673. 

• The ruling in this case is of such importance that it is deemed wise to 
bestow more than a passing glance upon it. The decision, in so far as it 
discusses the general nature of penal laws and their exterritorial effect, is a 
dictwn. The only question before the court was whe£RefT~Judgment ren- 
dered in one State upon a statute of that State giving a private punitive 
remedy, could be enforced in another State, it being denied enforcement on 
the ground that the statute under which the judgment was recovered was 
penal, and not remedial. There is a great difference between the enforcement 
in one State of a judgment obtained in another, though under a penal statute, 
and the enforcement in one State of an outstanding claim (not reduced to a 
judgment) arising under the penal statute of another State. The reduction of 
the claim to a judgment deprives it in large measure of its penal character. 
The general eflfect of a foreign penal statute therefore was not before the 
court. 

The facts of the case were as follows : A New York statute made the offi- 
cers of a corporation, who signed and recorded false certificates of the amount 
of its capital stock, liable for all its debts. The statute was violated by an 
officer of a certain New York corporation, and a judgment was recovered in 
New York against him thereunder. Action being brought upon the judgment 
in Maryland, its courts held that the New York statute was a penal statute, 
and refused to enforce the judgment. On appeal to the Supreme Court of the 



§ 10 FOURTH EXCEPTION — PENAL LAWS. 23 

A better test, however, would seem to be that indicat ed 
by the_ordi.Dary meaning attache d to the phrase "p enal '^ or 
" penalty." A person who unlawfully injures anotner is justly" 
bound to reimburse him to the extent of the damage inflicted; 
and in a case not provided for by the common law, it may be 
provided for by statute. K the law places any additional burden 
upon the wrongdoer by reason of his wrongful act, to this extent 

United States, under the "fall faith and credit" clause of the federal consti- 
tution, that court held that it had jurisdiction to determine whether full faith 
and credit had been given in Maryland to the New York judgment, and, in 
order to determine that question, that it had the right to decide whether the 
statute in dispute was of a penal character. As we have seen, it was not 
necessary to decide this question. As a matter of fact, the court was clearly 
correct in deciding that the particular statute in question was not penal, but 
remedial, as will be shown presently. But the criterion proposed for the de« 
termination of the question whether a statute is penal, with all respect, seems 
to be the result of fallacious reasoning. 

The court's argument is based upon the fact that municipal law distin- 
guishes between a crime and a civil wrong (even where the law gives punitive 
damages to the party injured by the prohibited act). It is submitted that to 
thus reason from the rules of municipal law to those of private international 
law is apt to lead to erroneous conclusions. The two systems are based on 
different principles. The former is founded in positive regiilation ; the latter, 
in international comity. In enforcing the rules of municipal law, the courts 
seek to carry out the intention of the legislature ; in enforcing the rules of 
private international law, the courts seek merely to proceed upon broad lines 
of justice. It is natural and proper that the former should distinguish be- 
tween crimes, offences against its own majesty, and civil wrongs inflicted upon 
a private citizen. But in private international law, the ground of the enforce- 
ment of a foreign law is international comity, which is nothing more than the 
enlightened sentiment that exact justice may best be meted out by requiring 
that a man's acts should be governed by the law under which he acts, pro- 
vided the enforcement of that law will not conduce to injustice nor affect the 
interests of the forum. But if to hold a wrongdoer liable in double or treble 
damages to the party injured is not punishment to the former, it is certainly 
more than justice to the latter. Justice to him is satisfied by compensatory 
damages. Hence the forum, in endeavoring to mete out exact justice to the 
parties by enforcing a foreign law rather than its own, will find itself, undei 
this view, rendering to the injured party more than justice requires, and at 
the expense of the other litigant. He has a right to demand this under the 
municipal law, not because justice, but because the positive law, requires or 
permits it. But where he seeks to enforce his claim in another State, what 
right has he to ask this of the forum whose policy may be entirely different ? 



24 FOURTH EXCEPTION — PENAL LAWS. § 10 

the purpose is to inflict punishment upon him, not merely to 
save the injured party harmless. The purpose of the law is, by 
means of the penalty, to deter the wrongdoer from perpetrating 
the wrong, and this is the object of all punishment. So far as 
private international law is concerned, it matters not whether 
that punishment is inflicted through the instrumentality of an 
ordinary prosecution by the state's officers for a fine, or through 
the medium of a civil action by the party injured for penal dam- 
ages. In substance it is an act of punishment; it is punitive in 
either case. On the other hand, the right given the injured 
party to recover single damages of the wrongdoer is not by way 
of punishment to the latter, but merely by way of reimburse- 
ment or compensation to the former. It is strictly remedial.* 

Under either view, all laws punishing crime in the strict 
sense of the word, or imposing disabilities as the consequence 
thereof, are penal, and will be given no exterritorial effect. 
Hence disqualifications to testify by reason of conviction of 
felony will not follow the convict into another State.* 

So it is, according to the weight of authority, with regard 
to the disability, imposed by the law of many States upon the 

* McAllister v. Smith, 17 111. 328, 65 Am. Dec. 651 ; Le Forest v. Tolman, 
117 Mass. 109 ; Scoville v. Caufield, 14 Johns. (N. Y.) 388; Dale v. R. R. 
Co., 57 Kan. 601, 47 Pac. 521, 523 ; Adams v. R. R. Co., 67 Vt. 76, 30 Atl. 
6gZ^In Dale v. R. R, Co., suit was brought in Kansas for death occurring ia 
New Mexico by wrongful act. The statute of New Mexico, under which the 
action was brought, provided that in case of death resulting from the negli- 
gence of the servants of a railroad company, the corporation should "forfeit 
and pay for every person so dying the sum of $5,000," to be recovered by the 
husband, wife, or child. This statute, though remedial from the standpoint 
of the municipal law of New Mexico, was held by the Kansas court to be 
penal from the standpoint of private international law, because the amount of 
damages recoverable was absolute. So, in Adams v. R. R. Co., where death 
was caused in Massachusetts, whose statute provided for a recovery not ex- 
ceeding $5,000 nor less than $500, to be assessed with reference to the degree 
of culpability of the company, it was held that the statute was penal, and not 
enforceable in Vermont. Both of these cases were decided after Huntington 
V. Attrill. 

6 Huntington v. Attrill, 146 XT. S. 657, 673 ; Com. v. Green, 17 Maas. 
515, 539 ; Sims v. Sims, 75 N. Y. 466; St. Sure v. Lindsfelt, 82 Wis. 346, 18 
L. R. A. 515, 519. With respect to the situs of crimes, see post, § 204. 



§ 10 FOURTH EXCEPTION — PENAL LAWS. 25 

guilty party to a divorce suit, to marry again during the life ol 
the consort. Such a disability is generally regarded as penal in 
its nature, and will uot invalidate a marriage celebrated else- 
where, even where the marriage takes place in evasion of the 
law of the prohibiting State, and the parties immediately return 
thither.' 

At one time it was thought that statutes giving the right to 
recover for the death of a person by wrongful act were penal, 
and not enforceable in other States;' but this view has long 
since been rightly overruled, and it is now universally held that 
such stat#tes are remedial, conferring a special remedy and 
therefore enforceable abroad.* 

So, also, difficulty has been found in the past in determining 
the nature of statutes existing in some jurisdictions, which im- 
pose liabilities upon stockholders, officers, and directors of cor- 
porations, unknown to the common law, with respect to the 
creditors of the corporation. Such are statutes making the 
stockholders liable to creditors of the corporation for an amount 
equal to the amount of their stock ; statutes providing that, 
upon the return of an execution against a corporation unsat- 
isfied, execution may at once issue against any stockholder, or 
that the stockholders may be charged by action with the amount 
of the judgment ; statutes authorizing suits to be brought 
against stockholders of corporations dissolved; statutes making 

« Huntington r. Attrill, 146 U. S. 651, 673 ; Dickson v. Dickson, 1 Yerg. 
(Tenn.) 110, 24 Am. Dec. 444; Com. v. Lane, 113 Mass. 458, 470, 18 Am. 
Rep. 509 ; Putnam v. Putnam, 8 Pick. (Mass.) 433 ; West Cambridge v. Lex- 
ington, 1 Pick. (Mass.) 506, 510, 11 Am. Dec. 231 ; Van Voorhis r. Brint- 
nall, 86 N. Y. 18, 28, 36, 40 Am. Rep. 505 ; Succession of Hernandez, 46 La 
Ann. 962, 24 L. R. A. 831, 842, note. But see Pennegar v. State, 87 Tenn. 
244, 10 S. W. 305, 2 L. R. A. 703. See post, § 74. 

7 Richardson w. R. R. Co., 98 Mass. 85, 89 ; Burns ». R. R. Co., 113 Ind. 
169, 15 N. E. 230, 231. 

8 Stewart v. R. R. Co., 168 U. S. 445 ; Texas, etc. R. R. Co. v. Cox, 
145 U. S. 593 ; Dennick v. R. R. Co., 103 U. S. 11 ; Higgins v. R. R. Co., 
155 Mass. 176, 29 N. E. 534 ; Wooden v. R. R. Co., 126 N. Y. 10 : Leonard 
». Nav. Co., 84 N, Y. 48, 38 Am. Rep. 491 ; Usher v. R. R. Co., 126 Penn. 
St. 207, 17 Atl. 597 ; Bruce v. R. R. Co., 83 Ky. 174 ; Morris v. R. R. Co., 
65 la. 727, 54 Am. R^p. 39 ; Nelson v. R. R. Co., 88 Ya. 971, 14 S- R. 838. 
See post, §§ 200 et seq. 



26 FOURTH EXCEPTION — PENAL LAWS. § 10 

the oflScers of a corporation who sign and record false certificates 
of the amount of its capital stock liable for all its debts, etc. 

Here too it was at one time thought that such statutes were 
penal and for this reason not enforceable in other States.' But 
it is now settled that such statutes are not penal. Their pur- 
pose is not to punish, but to give creditors additional security 
for their debts. ^° Such liabilities are quasi-contractual, the situs 
of which is the situs of the corporation, not of the corporators, 
and if precise and definite in character, and no special remedy 
to enforce them is provided by the law creating them, they may 
be enforced in other States. The general rule has been thus 
accurately laid down by the California c ourt : " *' Whe re a 
sta^te creates "a right and presc ribes a remedy for its en force- 
ment, that remedy is exc lusive. Where a liability is created 
wh ich is not penal, an dTno remedy is prescribfrl^ thn liability 
may be enforced whereverthe person isfound. The procedure 
however will be entirel y gove rned by the law of t he for umTTi 
the "law'creafing the liability~~pfovi3e8ior"arparticular mode 
of enforcing it, the mode limits the liability. If it be a con- 
tract, the parties contracted with the understanding that they 
can be held liable in no other way. And such liability cannot 
be enforced in another State. Here a special remedy is pro- 
vided, and not only so, but plainly it was intended that it 
should be the only remedy." 

The main question in these cases is not whether there exists 
a liability in other States than the one enacting the statute, foi 
it seems to be universally conceded that the liability does exist 
even in States which refuse to enforce it,^* but whether there is 

• Kritzer v. Woodson, 19 Mo. 329; Ochiltree r. Contracting Co., 54 Ma 
113. 

10 Huntington v. Attrill, 146 IT. S. 657, 666, 676 ; Stewart v. R. R. Co., 
168 U. S. 445 ; Russell v. R. R, Co., 113 Cal. 258, 45 Pac. 323 ; Guerney v. 
Moore, 131 Mo. 650, 32 8. W. 1132 ; Marshall v. Sherman, 148 N. Y. 9, 10, 29, 
42 N. E. 419 ; First Nat. Bank v. Dillingham, 147 N. Y. 603 ; Hancock Nat 
Bank v. Ellis, 166 Mass. 414 ; Post v. R. R. Co., 144 Mass. 341, 345. But 
see Coffing v. Dodge, 167 Mass. 231, 45 N. E. 928. 

" Russell V. Pac. R. R. Co., 113 Cal. 258, 45 Pac. 323, 324. See alw 
Marshall v. Sherman, 148 N. Y. 9, 29. 

^ Post V. K. R. Co., 144 Mass. 341, 344, 345. 



f 10 FOURTH EXCETPTION — PENAL LAWS. 27 

in the State of the forum the machinery proper and necessary to 
enforce the peculiar liability, so that care may be taken to see 
that no injustice be done." 

It is obvious that if a special and peculiar remedy is given 
by the law of the State creating the liability, no other State 
will in general possess the machinery adequate to enforce it, 
and its courts would have no authority to enforce it by other 
means." If the statute creating the liability leaves the remedy 
to be determined by the application of general principles of 
jurisprudence, then its «nforcement in a foreign State must 
depend upon whether such State, through its courts, possesses 
adequate machinery to enforce it, without danger of injustice. 
Hence a liability arising upon the same statute may be enforced 
in one State when it will not be enforced in another.*^ Even 
in the same State the machinery may be adequate for the 
enforcement of certain rights in connection with the liability, 
while not adequate for other purposes. In that event, since the 
existence of the liability is recognized everywhere, such redress 
as the courts of the forum may properly grant will be afforded. 
Hence in Massachusetts, whose courts refuse to directly enforce 
a quasi-contractual liability of this kind, it was nevertheless 
held that if the relief sought was merely a discovery in equity, 
by the officers of the corporation, of the stockholders and the 
number of shares held by each, the relief should be granted, 
although the purpose of the discovery was to enforce by suit in 
another State a personal liability imposed upon the stockholders 
by the laws of another State.^' 

18 Post V. R. R. Co., 144 Mass. 341 ; Bank v. Rindge, 154 Mass. 203. See 
Bank v. Rindge, 57 Fed. 279 ; Guerney v. Moore, 131 Mo. 650, 32 S. W. 1132. 

" See Russell v. Pac. R. R. Co., 113 Cal. 258, 45 Pac. 323 : Marshall v. 
Sherman, 148 N. Y. 9, 42 N. E. 419 ; Bank v. Rindge, 154 Mass. 203 ; 
Stewart v. R. R. Co., 168 U. S. 445. 

16 See Bank v. Rindge, 154 Mass. 208 ; Bank v. Rindge, 57 Fed. 279 [U. S. 
Court for California] ; Guerney v. Moore, 131 Mo. 660, 32 S. W. 1132. These 
cases all arose under the same Kansas statute, making stockholders liable to 
creditors of the company for an amount equal to the amount of their stock. 
In the Massachusetts case, it was held that the judicial machinery ol that 
State was inadequate to ensure full justice. In the other two cases the Uik 
bility was enforced. 

i« Post V. R. R. Co., 144 Mass. 341. 



28 FIFTH EXCEPTION — IMMOVABLES. § 11 

§ 11. Fifth Exception — Transactions relating to Immov- 
able Property. — It is generally admitted that transactions 
relating to lands or immovable property of any kind are to be 
governed by the law of the place where the property is situated 
(lex loci rei sitae or lex situs). ^ 

Although this principle is generally recognized, the reason for 
the doctrine has not always been kept clearly in view. In truth 
it simply constitutes one branch of the first exception, already 
discussed, and what is known as the lex situs is, in the last 
analysis, nothing more than the lex fori. Since immovable 
property is fixed forever in the State where it lies, and since no 
other State can have any jurisdiction over it, it follows nec- 
essarily that no right, title, or interest can be finally acquired 
therein, unless assented to by the courts of that State, in accord- 
ance with its laws. The courts of no other State can finally 
pass upon such questions, so as to give or take away from any 
litigant a claim to the property. On the other hand, the courts 
of the situs of the land will be peculiarly rigid in their require- 
ment that the law of the situs be complied with in regard to 
the transfer of the title to that class of property. The policies 
of each State in connection with the transfer of land within 
its limits are justly ranked amongst the most important of 
all its policies, no outside interference with which will be 
tolerated. Every effort is made by each State to have its laws 
touching the devolution, transfer, and charge of lands within 
its borders as definite and certain as possible. Particular for- 
malities are required which are not required in other matters. 
And it is of the utmost importance that the legal records of 
such transactions, constituting chains of title to land, should be 
kept free from blemish, irregularity, or confusion with the 
requirements of other States. 

Hence it becomes peculiarly a part of the policy of every 
State that no transactions relating to the transfer of any interest 
in or title to immovable property situated there shall be upheld, 

1 United States v. Crosby, 7 Cr. 115 ; Clark v. Graham, 6 Wheat. 577 ; 
Kerr v. Moon, 9 "Wheat. 565 ; McCormick v SiiUivant, 10 Wheat. 192 ; 
Darby v. Mayer, 10 Wheat. 465 ; Ross v. Ross, 129 Mass. 243, 245, 37 Am. 
Rep. 321; and other cases cited in note 5, infra 



§11 FIFTH EXCEPTION — IMMOVABLES. 29 

if violative of its own law, whether valid by the laws of foreign 
States or not. These considerations are amply sufficient to 
induce the courts of the situs of land (when the situs is the 
forum) to prefer their own laws upon this subject to those of 
any ether State.'' 

Nor will the courts of other States attempt to enforce their 
own laws with respect to land situated elsewhere, not only 
because of the spirit of comity and their unwillingness to en- 
gage in conduct towards other States, which they would not tol- 
erate in other States towards themselves, but also, and perhaps 
chiefly, because of their utter inability to render any judgment or 
decree that would be final and effectual to transfer any interest 
in the land.* Instead, therefore, of rendering idle judgments in 
accordance with their own law, the courts, in dealing with the 
title to foreign real estate, will seek to determine the rules 
laid down by the lex situs of the land, and will decide in ac- 
cordance with that law, for to it the parties must finally appeal 
in any event.* 

Thus it comes to be a well settled principle of private inter- 
national law, fortified by a great mass of authority, that all 
questions relating to the transfer of title to immovable prop- 
erty, wherever arising, will be governed by the lex situs, the 
law of the ultimate forum in which all such questions must 
finally be decided.* 

« See Williams v. Saunders, 5 Coldw. (Tenn.) 60, 76 ; Sneed v. Ewing, 
5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 56. 

« See Dicey, Confl. L. 38-40 ; Rodgers v. Rodgers, 56 Kan. 483, 48 Pac. 
779, 781. See Guillander v. Howell, 35 N. Y. 657, 660. 

* See Hawley v. James, 7 Pai.Ch. (N. Y.) 213, 32 Am. Dec. 623. 

5 Watkins v. Holman, 16 Pet. 26; Ross v. Ross, 129 Mass. 243, 245, 37 
Am. Rep. 321 ; Williams i'. Saunders, 5 Coldw. (Tenn. ) 60, 70 ; Wick v. Daw- 
son, 42 W. Va. 43, 24 S. E. 587; Swank i;. Hufnagle, 111 Ind. 453, 12 N. E. 
303 ; Otis v. Gregory, 111 Ind. 504, 13 K E. 39 ; Carpenter v. Bell, 96 Tenn. 
294, 34 S. W. 209 ; Knox v. Jones, 47 N. Y. 389, 395 ; Rice v. Harbeson, 63 
N. Y. 493, 502 ; Staigg v. Atkinson, 144 Mass. 564, 569 ; Chipman v. Pea- 
body, 159 Mass. 420, 34 N. E. 563 ; Poison v. Stewart, 167 Mass. 211, 45 N. E. 
737; Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974, 977; Keith v. 
Keith, 97 Mo. 224, 10 S. W. 597; Lamar v. Scott, 3 Strob. L. (S. C.) 562 ; 
Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324 ; Heine v. Ins. Co., 
45 La. Ann. 770, 13 So. 1; Bronson v. Lumber Co., 44 Minn. 348, 46 N. W. 



30 FIFTH EXCEPTION — IMMOVABLES. § 11 

Not only does the lex situs control transfers of land to the 
extent of invalidating such transfers of title as are not in ac- 
cordance with the lex situs, though valid where entered into, 
but the converse is also true. If valid by the lex situs, the 
transaction may be upheld, though invalid where entered into.' 

A qualification of the rule however must be observed, where 
the question relates not to the transfer itself, but to some col- 
lateral incident of the transfer. Thus, while in case of a mort- 
gage of land or an assignment thereof for the benefit of creditors 
the lex situs will still govern to the extent that such transfer 
constitutes a muniment of title as between the parties, it does 
not follow that an instrument sufl&cient for this purpose under 
the lex situs, but which transfers a title voidable by creditors, 
will in the latter respect also be governed by the lex situs. 
Such matters do not constitute any part of the muniment of 
title, and are merely matters of local policy. Such, for instance, 
are laws of the situs avoiding, at the instance of creditors 
thereby defrauded, assignments which prefer creditors, or to 
which is not appended an inventory of the property assigned, 
or to which bonds by the trustees for the due performance of 
their duties are not attached. These requirements, and others 
of the same kind, are for the benefit of creditors. As between 
the parties, the assignment, if in conformity to the lex situs, 
is valid, and if no creditors complain, will be sustained. It is 
manifest that requirements like those above mentioned do not 
constitute part of the title, but are intended for the collateral 
purpose of securing creditors. They are mere matters of policy, 
and may or may not be intended by the legislature to protect 
foreign as well as domestic creditors, their effect depending upon 
the interpretation placed upon the policy by the courts of the 
situs and forum. 

570 ; Ford ». Ford, 70 Wis. 19, 33 N. W. 188, 194 ; Frazier v. Boggs, 37 Fla. 
307, 20 So. 245 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781; Glenn 
V. Thistle, 23 Miss. 42, 49 ; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413 ; 
Post V. Bank, 138 IlL 559, 28 N. E. 978 ; Wood v. Wheeler, 111 N. C. 231, 
16 S. E. 418. 

« Succession of Cassidy, 40 La. Ann. 827, 5 So. 292 ; Post v. Bank, 138 
IlL 559, 28 N. E. 978 ; Chipman r. Peabody, 159 Mass. 420, 34 N. £. 563. 



§ 11 FIFTH EXCEPTION — IMMOVABLES. 31 

In suits by domestic creditors the law of the situs will un- 
doubtedly prevail, not because it is the lex situs however, but 
because it is the lex fori, being an instance of the second excep- 
tion.' But if the creditors who institute the suit are not citi- 
zens, unless the requirements of the lex situs are intended to 
secure all creditors, the law of the place where the assignment 
is made (lex loci contractus) will control in these particulars, 
even though the subject be real estate located elsewhere.' 

So also with respect to mortgages of land, though the mort- 
gage itself must be such as will constitute a transfer of title 
under the lex situs, the question as to whether the debt secured 
thereby (if contracted in another State) is a valid consideration 
to support the mortgage (for instance, whether it is usurious) is 
to be determined by the law which properly governs the validity 
of the debt.' 

The same may also be said of contracts to convey land situ- 
ated elsewhere. So far as they constitute links in the chain of 
title (passing the equitable title thereto), they are to be gov- 
erned by the lex situs of the land. But if the vendee waives 
his right to a conveyance, or has none, and looks upon it in the 

7 Ante, § 8 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Williams v. Dry 
Goods Co., 4 Okl. 145, 43 Pac. 1148, 1149; Long v. Girdwood, 150 Penn. St. 
413, 23 L. R. A. 33, note. 

8 May V. Bank, 122 111. 551, 13 N. E. 806 ; Juillard v. May, 130 111. 87, 
22 N. E. 477; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Longw. 
Girdwood, 150 Penn. St. 413, 23 L. R. A. 33, note, 24 Atl. 711 ; Thurston v. 
Rosenfield, 42 Mo. 474 ; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345. But 
see Moore v. Church, 70 la. 208, 59 Am. Rep. 439. It is otherwise if the 
policy of the State is violated by the assignment. Bank v. Stellings, 31 S. C. 
360, 9 S. E. 1028. In respect to this point, there is no difference in principle 
between assignments of land and of personalty. See post, §§ 133-135. In 
case of involuntary as.signments of land under foreign insolvent or bankrupt 
laws, such assignments being given no exterritorial force in the United States, 
the lex fori (or lex situs) will govern, at least as to creditors domiciled in 
other States than that where such assignment occurs. See Townsend v. Coxe, 
151 111. 62, 37 N. E. 689 ; Moore v. Land, etc. Co., 82 Md. 288, 33 Atl. 641 ; 
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ; post, § 138. 

9 Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713, 714; Klinck v. Price, 4 W. 
Va. 4, 6 Am. Rep. 268. See Bowles v. Field, 78 Fed. 742. But see Chap- 
man V. Robertson, 6 Pai. Oh. (N. Y.) 627, 31 Am. Dec. 264. 



32 LAND — TRANSPEJJS AND LIENS § 12 

light of a mere personal contract, suing for damages for the 
breach thereof, it will be governed by the law properly appli- 
cable to an ordinary executory contract.^*^ Whether the latter 
principle will apply in case of a suit by the vendee for the 
specific execution of a deed to the land, instead of a suit for 
aamages, may be doubtful. It is believed however that it will, 
at least in cases wheie a proper deed can be made, in conformity 
to the lex situs of the land.^^ The courts of the situs would 
recognize and enforce a contract of this character, even though 
not in conformity to the lex situs, if it conforms to the proper 
law. If they did not, there would be nothing to prevent the 
courts of other States from compelling the vendor to make a 
suitable deed, in accordance with the lex situs, which the courts 
of the situs would be bound to recognize.^* 

§ 12. Same — Application of Lex Situs to Transfers of 
Land, and Liens thereon. — Subject to the qualifications men- 
tioned in the preceding section, the lex situs regulates all 
transfers of land, in every point which constitutes part of the 
conveyance. 

Thus, the capacity to devise lands, or to be a devisee thereof, 
or to transfer them inter vivos by conveyance or mortgage, will 
be controlled by the lex situs of the realty.* So also the forms 

» See Glenn v. Thistle, 23 Miss. 42. 

^^ The kind of conveyance which is to be made in pursuance of the contract 
of sale is to be determined by the lex situs of the land, that being the place 
of performance of the contract. See Carnegie v. Morrison, 2 Met. (Mass.) 
381, 398. 

^* This is the conclusion of a majority of the court in Poison v. Stewart, 
167 Mass. 211, 45 N. E. 737. That ca.se however was a suit for the specific 
performance of a covenant by a husband made in North Carolina to release 
and extinguish his marital rights in the wife's land in Massachusetts. The 
covenant did not purport to pass any title. But the principle would seem to 
be the same. 

1 Carpenter v. Bell, 96 Tenn. 294, 34 S. "W. 209 ; Williams v. Saunders, 
5 Coldw. (Tenn.) 60, 72; Frazier v. Boggs, 37 Fla. 307, 20 So. 245 ; Ford v. 
Ford, 70 Wis. 19, 33 N. W. 188 ; Cochran v. Benton, 126 Ind. 58, 25 N. E. 
870; Otis v. Gregory, 111 Ind. 504, 13 N. E. 39; Bethell v. Bethell, 54 Ind. 
428, 23 Am. Rep, 660, 652 ; Poison v. Stewart, 167 Mass. 211, 218, 45 N. E. 
737; Boehme v. Rail, 51 N. J. Eq. 574, 26 Atl. 832; White t; Howard, 38 
Conn. 342. 



§ 12 LAND — TRANSFERS AND LIENS. 93 

aud solemnities required by the lex situs for valid conyeyances 
or devises of land, or for powers of attorney to convey the same, 
must be followed. Compliance with the law of the party's dom- 
icil or of the place where the instrument is executed will not 
suffice.^ 

The same principle applies in the determination of the validity 
and effect of the substantial provisions of the conveyance, mort- 
gage, or devise. The lex situs of the land governs.' 

So it is also in respect to the devolution of land by descent. 
No one is heir to a deceased owner of land, unless he belongs 
to the class designated as such by the lex situs of the land.* 
And the same law will control the shares each heir shall inherit, 
as whether they shall take per capita or per stirpes.^ If the 
rules of primogeniture or of representation prevail in the State 
where the land is situated, they will furnish the guide, what- 
ever may be the law of descent in the domicil of the deceased 
owner. As was said in a leading case: ® " If a man domiciled 
in England has two legitimate sons there and dies intestate, 
owning land in Massachusetts, both sons have the status of 

2 Kerr i;. Moon, 9 Wheat. 565 ; Clark v. Graham, 6 Wheat. 577; Williams 
V. Saunders, 5 Coldw. (Tenn.) 60, 72 ; Otis v. Gregory, 111 Ind. 504, 13 N. E. 
39 ; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650, 652 ; Ross v. Ross, 129 
Mass. 243, 245, 37 Am. Rep. 321 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 
194 ; Succession of Larendon, 39 La. An. 952, 3 So. 219, 220. 

8 McGoon V. Scales, 9 Wall. 23 ; Ross v. Ross, 129 Mass. 243, 245, 37 Am. 
Rep. 321 ; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 72, 75 ; Hawley v. 
James, 7 Pai. Ch. (N. Y.) 213, 32 Am. Dec. 623; Frazier v. Boggs, 37 Fla. 
307, 20 So. 245 ; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650, 652 ; 
Bronson v. Lumber Co., 44 Minn. 348, 46 N. W. 570, 571 ; Penfield v. Tower, 
1 N. D. 216, 46 N. W. 413 ; Succession of Cassidy, 40 La. Ann. 827, 5 So. 
292, 295. 

* Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 895 ; Williams v. 
Saunders, 5 Coldw, (Tenn.) 60, 75 ; McGoon v. Scales, 9 Wall. 23 ; Miller v. 
Miller, 91 N. Y. 315 ; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 
207; Warren v. Prescott, 84 Me. 483, 17 L. R. A. 435, note ; Ross v. Roas, 
129 Mass. 243, 37 Am. Rep. 321 ; Smith v. Derr, 34 Penn. St. 126, 75 Am. 
Dec. 641 ; Birtwhistle v. Vardill, 5 B. & C. 438, 7 CI. & F. 895. 

5 Story, Confl. L. § 481 a. 

» Ross V. Ross, 129 Mass. 243, 247, 37 Am. Rep. 321. See also Story, 
Confl. L. § 481 a. 

3 



34 LAND — TRANSFERS AND LIENS. § 12 

legitimate children here, but by virtue of our statute of de« 
scents the land descends to them equally, and not to the 
eldest son alone, as by the law of England." 

But though it is well settled that the lex situs shall deter- 
mine who shall inherit lauds, it has not always been found easy 
to interpret that law. For example, should that law provide 
that an intestate's land shall go to his "children," a question 
may be, and has been, raised whether that term will include 
bastard children, subsequently legitimated by a proper foreign 
law.' 

In such case, if the lex situs of the land also admits of sub- 
sequent legitimation, though by a different method, there can be 
little doubt that such a child will be included in the class desig- 
nated by the lex situs as ''children."' It is in cases where 
the policy of the situs altogether prohibits such legislation that 
most difficulty arises. The famous English case of Birtwhistle 
V. Vardill ' was of this character. The question there was 
whether a bastard son of Scotch parents, afterwards legiti- 
mated by the marriage of the parents (which by the law of Scot- 
land had that effect), could inherit lands in England as heir. 
The Court of King's Bench held that he could not, though ad- 
mitting that he must be considered in England as legitimate. 
This decision, after elaborate argument, was affirmed in the 
House of Lords. The decision was based upon the strict letter 
of the English statute of Merton, and the history of its pas- 
sage." That statute was construed to mean that, in order to 
inherit, the claimant must not only be a legitimate child (which 
was admitted to be the fact in this case), but must also have 
been born in wedlock. 

"^ The *• proper law " governing the status of a bastard subsequently legiti- 
mated will be examined hereafter. Post, §§ 97 et seq. 

8 Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321 ; Gray v. Holmes, 57 Kan. 
217, 45 Pac. 596, 33 L. R. A. 207. 

9 5 B. & C. 438. Afterwards affirmed in the House of Lords, 7 CI. & F. 895. 
lo The statute of Merton was passed by the English nobility in Parliament 

in response to a demand of the clergy that the Roman law of legitimation per 
subseqtcens matrimonium be adopted in England. The assembled barons curtly 
and emphatically declined through the statute of Merton. See Ross r. Ross, 
129 Mass. 243, 252, 37 Am. Rep. 321. 



§ 12 LAND — TRANSFERS AND LIENS. 85 

But the basis of the English decision is purely technical, 
being founded on the statute of Merton alone, and the modern 
tendency in the United States — at least in States where that 
statute is held not to be in force — seems to be in favor of per- 
mitting the subsequently legitimated bastard to inherit, pro- 
vided his status of legitimacy has been fixed by the proper 
law.^^ Thus in a New York case,^'' an action of ejectment was 
brought there by the plaintiff, who was born a bastard. The 
parents subsequently intermarried in the State of their domicil, 
the effect of which, by the domiciliary law, was to legitimate 
the infant. The law of New York did not permit such an effect 
to a subsequent marriage. The plaintiff claimed the New York 
land as heir to his father, under a statute of that State pro- 
viding that the land should pass to " the lineal descendants " of 
the decedent. It was also provided by the laws of New York 
that ** children and relatives who are illegitimate shall not be 
entitled to inherit." It was held that the plaintiff, being legiti- 
mate by **the proper law," must be so considered in New York, 
and accordingly he recovered the land. 

The same doctrine is applicable, in America at least, to chil- 
dren legally adopted in accordance with the proper law, where 
that law gives them the same status and puts them on the same 
footing as the real children of the adopting parent. They will 
in general be entitled to inherit land from the adopting parent 

u Miller v. Miller, 91 N. Y. 315 ; Scott v. Key, 11 La. Ann. 232 ; "Wood- 
ward V. Woodward, 87 Tenn. 644, 11 S. W. 892, 895 ; Ross v. Ross, 129 Mass. 
243, 256, 37 Am. Rep. 321. Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87, 
was a case in which the child was not legitimated by the " proper law." See 
post, §§ 97 et seq. Even in England the mle is believed to be otherwise with 
respect to the succession of personal property, the statute of Merton not 
being applicable. See Wright's Trusts, 2 K. & J. 595, 25 L. J. (Ch. ) 621 ; 
Goodman v. Goodman, 3 Giff. 643; Goodman's Trusts, 17 Ch. Div. 266; 
Skottowe V. Young, L. R. 11 Eq. 474 ; Ross v. Ross, 129 Mass. 243, 256, 
37 Am. Rep. 321. Some of the American courts however have followed, 
with respect to lands, the decision in Birtwhistle v. Vardill, holding that the 
statute of Merton is in force in their States. Smith v. Derr, 34 Penu. St. 126, 
75 Am. Dec. 641 ; Williams », Kimball, 35 Fla. 49, 16 So. 783. See Bamum 
V. Bamum, 42 Md. 252 ; Keegan v. Geraghty, 101 111. 26 ; Smith ». Kelly 
23 Miss. 167, 55 Am. Dec. 87. 

" Miller v. Miller, 91 N. Y. 315. 



36 LAND — TRANSFERS AND LIENS. § 12 

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

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 am- 
biguous legal phrases used therein, such as ''heirs; " " chil- 
drcM " (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 con- 
tractus), it is believed, will control; for in the construction of 
a deed to land, legal terms are given their strict legal inter- 
pretation, 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- 

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, 101 111. 26 ; Van Matre v. Sankey, 148 111. 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, 101 111. 26 ; Van Matre v. 
Sankey, 148 111. 356, 36 N. E. 628. See Lorlng v. Thomdike, 5 Allen 
(Mass.), 257. 

1* Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; McCartney v. Osburn, 
118 111. 403, 9 N. E. 210 ; Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648 ; 
Staigg V. Atkinson, 144 Mass. 564, 12 N. K 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. 628. 



§ 12 LAND — TRANSFERS AND LIENS. 87 

ciples whereby is determined the law governing the interpreta- 
tion of ordinary contracts, hereafter to be noted. ^^ 

But in the case of a devise, the courts are more proae 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.^' 

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." 

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 solutioja of this question, it must first be observe dthat 
alth ough a covenant is contained in a de^d of fton vpyanfift it ib 

ifgpjf^iTi goTioril nTily nTi (wmi'iiilM y tntxitrai^t^,^ f^nd for mOSt pUT- 

poseg-i t i s t o b e govern e d by the low oontr o lling executory co n-- 
tr acts. 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." 

" Post, § 186. See Mullen v. Reed, 64 Conn. 240, 29 Atl. 478. 

" Post, § 145 ; Story, C!onfl. L. §§ 479 h, 479 m. There is authority 
however in favor of the lex situs of the land in such cases. See Van Matre 
j;. Sankey, 148 111. 356, 36 N. E. 628 ; McCartney v. Osbum, 118 111. 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 r. 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 ap- 
pears not to have been very carefully considered. 



38 WHAT ARE IMMOVABLES. § 13 

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 gov* 
erned by the lex situs." 

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.** And the effect of a divorce 
of the parties upon their marital rights in the lands of the con- 
sort will be governed by the same law, regardless of the law of 
the place of divorce, '^^ although the validity of the divorce itpelf 
will be determined upon entirely different principles. '^ 

§ 13. Meaning of " Immovable Property " in Private Inter- 
national La'w. — 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- 

w 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. (Jawtry, 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. 

»i 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. Doming, 44 Ohio St. 645, 11 N. E. 118, 123 ; HUbiih «. Hattel, 145 InA 
69, 33 L. R. A. 783, 787. 

32 See post, S§ 89 et seq. 



§13 WHAT ABE IMMOVABLES. 39 

deed it may be postulated that all such property as at oommon 
law was real estate is to be classed as immovable property.^ 
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 con- 
sidered 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 South- 
ern 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 persoiialty, the latter character is deemed to 
have been imposed upon it from the time of the removal.* 

1 Story, Confl. 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. 
ChurchUl, 53 N. Y. 192, 

8 Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41, 56, 61; 
McCoUum 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* 
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). 

♦ Chapman 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. HoweU, 35 N.Y. 657, 663; McCollum 
r. Smith, Meigs (Tenn. ), 342, 33 Am. Dec. 147, 148 ; Kneeland v. Enslejr, 
Meigs (Tenn.), 620, 33 Am. Dec. 168, 169. See Union Bank v. Hartwell, 
84 Ala. 379, 4 So. 156, 157; Story, Confl. L. § 447. 

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



40 WHAT AKE IMMOVABLES. § 13 

If the owner of land directs his lands to be sold and con- 
verted 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 in- 
vested 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 domi- 
cil (as if it were a will of personalty'), 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 capa- 
city 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. 45L 

« 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. 

t Post, S 144, 

* Ford r. 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 mortmaio 
in Pennsylvania." 

• See post, §§ 145 et seq. 



§ 14 LEX 8ITUS WHEN APPLIED TO MOVABLES. 41 

domicil, not the lex situs of the land into which he directs his 
money to be converted. For unless the will is a valid will of 
the personalty, the conversion into land cannot take place." 

§ 14. Application of Lex Sitas to Transactions relating to 
Movable Property. — It is a general principle of private inter- 
national law that movable property, such as chattels and choses 
in action, are to be considered in contemplation of law as situ- 
ated with the owner, regardless of their actual locality. The 
maxim "mobilia personam sequuntur" applies very generally; 
so that no matter where the chattels may be actually situated, 
their legal situs follows the situs of the owner himself.^ 

But if the movables are situated in one State and the owner 
has his situs in another, transfers may be made by him, the 
enforcement of which may contravene the interests or policy of 
the State where the property is situated, or may work a wrong 
upon its people, or may be contrary to its views of morality. 
These are the very cases which constitute exceptions to the 
operation of a proper law.* Hence if, under such circumstances, 
it is attempted to enforce the transfer in the State where the 
property is actually situated (and such questions will in general 
arise there) that State becomes the forum, and the lex fori 
will be substituted for the proper foreign law (the law of the 
situs of the owner), in accordance with the principles already 
noticed in discussing these exceptions. It therefore frequently 
comes about, where there is a litigation over the transfer of 
movables situated in the State where the suit is brought, that 
the lex fori, not the law of the owner's situs, will control. 
Furthermore, in such cases the litigation is almost always 
based upon one or the other grounds of exception above men- 
tioned, and if the existence of the exceptional circumstances is 

10 Post, § 70. 

1 The term " lex situs " when applied to movables does not generally mean 
the law of the legal, but of the actual, situs of the property. For a full dis* 
cussion of the situs of personalty, and the law governing transactions con- 
nected therewith, see post, §§ 120 et seq. The distinction between the actual 
and the legal situs of the owner will be noted hereafter. Post, §§ 18 et seq, 
120 et seq. 

2 Aut«, §§ 6, 7, 8, 9. 



42 LKX SITUS WHEN APPLIED TO MOVABLES. § 14 

established, the law of the actual situs of the personalty will 
usually prevail over the law of the owner's situs (the proper 
law).' 

But it cannot he too carefully observed that this result is not 
due to any inherent force of the lex situs of the personalty, as 
such, but because it is in general also the lex fori. There is, 
in the last analysis, in respect to personalty, no such thing as 
the "lex situs," apart from the lex situs of the owner. It is 
only where the actual situs of personalty is the forum, that 
it assumes any importance in private international law.* In 
those cases (so numerous as almost to obscure the general rule) 
where the law of the actual situs of personalty does control, it 
is because of the effect given to it as the lex fori. Hence, if 
the litigation takes place in the domicil of the owner, or in any 
state other than that of the actual situs of the property, the 
situs and the forum are no longer identical, and the grounds for 
the enforcement of the lex situs disappear. 

These principles have sometimes escaped the attention of the 
courts and text writers, so that the proposition is frequently 
stated that **the lex situs controls the transfer of movables." ' 

* All this will be explained more fully hereafter. Post, §§ 120, 129, 182, 
134, 135. 

* For purposes of jurisdiction movables must always be considered as 
situated withiu the territory where they actually are. To hold otherwise 
would be to impeach the sorereignty of that State over everything within its 
borders. The point maintained in the text is not that movables may not 
possess an actual situs apart from the owner, but that there is no such thing 
as a substantive "lex situs" in such cases, as there is in the case of real 
property. 

6 See Guillander v. Howell, 35 N. Y. 657. Mr. Wharton takes this posi- 
tion unreservedly. Whart. Confl. L. §§ 298 et seq. In defence of this view 
he says (§ 299) : *' If it is the domicil of the owner which is to decide, it 
becomes a difficult and sometimes insoluble question to determine who this 
owner is. An action is brought to decide as to the ownership of a chattel. 
The litigants have different domicils ; and if the article in dispute is to be 
subjected to the owner's domicil, the question as to who is the owner not 
being yet decided, the suit has to be stopped at the outset from inability to 
determine how it shall be tried." It is manifest that the case put by Mr. 
Wharton is not one of substantive law, but of jurisdiction. It is not denied 
that for such a purpose a chattel has a situs of its own. In no case could a 



§ 15 SUBSEQUENT CHANGE OP SITUS. 48 

It will do so where the situs is also the forum, provided 
grounds exist (as they frequently will) for the operation of 
any of the exceptions already discussed, but not necessarily, nor 
generally, in other cases. 

§ 15. Effect of Transactions completed and perfected un- 
der Proper Law not generally altered by Subsequent Change 
of Situs. — Before concluding the discussion of these general 
exceptions to the operation of a proper law, it will be well 
(even though we must anticipate some general principles) to 
call attention to a point which will often necessitate some 
modification of the propositions laid down in the preceding 
sections. 

Courts wi ll be reluctant j thnngh th?y will not always rgfnp") 
to app ly these exceptions to a tran sf'^^^^^i wTiioTi Tiaa htyn 
validly fjite^'"'^ "^^" m^Hor ifa prnppr ]p.w, and has, under that 
law, been on ce valid as a gainst the entire world, merely because. 
by so me sub xf. qup.nt r.hange of situs, the transa ntinn ban mmr- 
under t bfi d< ;>mininn of t he law of some other State , wbinh rpt-n- 
ders it void or voidable. In such a case the courts of the forum 
will not so readily substitute the lex fori for the proper law, 
and will usually refuse to do so altogether, except in those cases 
where the lex fori is expressly prohibitory of the enforcement 
of such transactions, even when entered into abroad, or unless 
the policy of the forum or the possible injury to its people is of 
the most pronounced character.^ 

judgment for a specific chattel be given in any other State than that wherein 
it is actually situated, for the judgment is in rem, and the court must have 
jurisdiction over the res. But it is one thing to say that the courts of the 
actual situs alone can have jurisdiction to determine the title to a chattel, 
and quite a different thing to say that, having jurisdiction, they must deter- 
mine that question in accordance with their own substantive law, or to say 
that the courts of another State in which the validity of such title comes 
collaterally into question must be governed by the law of the actual situs. 
See Mason v. Beebee, 46 Fed. 556. 

1 See Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ; Homthall v. 
Burwell, 109 N. C. 10, 13 S. E, 721 ; Thuret v. Jackson, 7 Mart. (La.) 318 ; 
Langworthy v. Little, 12 Gush. (Mass.) 109 ; Bank v. Lee, 13 Pet. 107 ; 
Edgerly v. Bush, 81 N. Y. 199 ; Miller v. Miller, 91 N. Y. 315 ; Phillips v. 
Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 168 ; Barker v. Stacy, 25 Miss. 477; 



44 SUBSEQUENT CHANGE OF SITUS. § 15 

One of the most prominent instances of the application of 
this principle occurs in the case of qualified transfers of movable 
property, for example, a chattel mortgage, where the chattels 
mortgaged are situated at the time in the place of transfer, but 
are subsequently removed to another State, by whose laws the 
mortgage is invalid as against creditors of the mortgagor, 
though valid as against the world by the law of the State where 
the mortgage was executed and the chattels were at the time 
situated. In such case, the transaction has been completed 
under the law of the first State, all the requirements of its law 
(the "proper law" at the time) have been complied with, and 
the parties have been vested with a perfect title, not only as 
between themselves, but as to third parties. This title should 
not be divested merely by reason of the fact that the chattels 
thus transferred are subsequently brought under a new juris- 
diction, at least if this be done without the consent of the 
mortgagee.^ 

Thus, in Kanaga v. T ayl or, L -the-plaia tifE sold a piano in 
New York _to~G~ wEo there exe cuted a chattel mo rtgage lipon it 
to secure the unpaid purch ase money. T he mortgagewas re- 
corded in New York as that law directedTand waS there valid 



Wood V. Wheeler, 111 N.C. 231, 16 S. E. 418 ; Cummington v. Belchertown, 
149 Mass. 223, 227, 21 N. E. 435 ; Crapo v. Kelly, 16 Wall. 610, 622 ; Pond 
V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co. v. Packet 
Co., 108 111. 317, 48 Am. Rep. 557 ; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 
580, 35 Am. Rep. 716 ; Richardson v. Shelby, 3 Okl. 68, 41 Pac. 378 ; Craig 
V. Williams, 90 Va. 500, 505 ; Bank v. Hill, 99 Tenn, 42, 41 S. W. 349 ; 
Handley v. Harris, 48 Kan. 606, 29 Pac. 1145 ; Stirk v. Hamilton, 83 Me. 
524, 22 AtL 391 ; Ames Iron Works v. Warren, 76 Ind, 51 2, 40 Am. Rep. 258. 

« See post, § 132 ; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ; 
Handley v. Harris, 48 Kan. 606, 29 Pac, 1145 ; Hornthall v. Burwell, 109 N. C. 
10, 13 S. E, 721, 722; Thuretv. Jackson, 7 Mart. (La.) 318 ; Craig u. Williams, 
90 Va. 500, 505 ; Crapo v. Kelly, 16 Wall. 610, 622 ; Bank v. Lee, 13 Pet. 
107 ; Langworthy v. Little, 12 Cash. (Mass.) 109; Edgerly v. Bush, 81 N. Y. 
199 ; Martin v. Hill, 12 Barb. (N. Y.) 631 ; Barker v. Stacy, 25 Miss. 477 ; 
Cagill V. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep, 716. But see Corbett 
V. Littlefield, 84 Mich. 30, 47 N. W. 581, It is otherwise if the transaction 
be not completed before the removal of the goods. Cronan v. Fox, 50 N, J, I^ 
417, 14 Atl. 119. 

8 7 Ohio St. 134. 70 Am. Dec. 62. 



§ 15 SUBSEQUENT CHANGE OF SITUS. AH/^^^^ 

as against th e wo rld ^ Ct a ftfirwarHs carriftiii the pia no taj/^^ . 
Ohio and pledged^itllflL^ ^ to secure a l oan. The New York /-f -^ 
mortg age was not recorded in OhioT and M (a residenroT'O faio') 
had no notice_of_the--incumhraiicgi__M8old the piano to the 
defendant, who was also a citizen ofOhio7~an3~WhD-inrew 
nothing of the " New York lien. Though the law of O hio re- 
quiring the.j:ecordation of chattel mortgages was not complied 
with, the court held t he plain tiii's claim t o Be" p5ra muuul. — — 

The same principle has heen applied in regard to the title of 
receivers and assignees for the benefit of creditors. If such 
title has once been fully perfected under the proper law as 
against the world, a subsequent removal of the chattels to a 
State by whose law the title of the receiver or assignee would 
not be good against creditors, will not divest the title once 
vested.* 

In Pond V. Cooke,' a manufacturing corporation in New 
Jersey had contracted to build a bridge in Connecticut. The 
corporation became insolvent and a receiver was appointed by a 
New Jersey court, who purchased iron with the funds in his 
hands and sent it on from New Jersey to Connecticut to com- 
plete the bridge. Connecticut creditors of the corporation 
attached the iron after it reached that State. But the Con- 
necticut court dismissed the attachment on the ground that the 
receiver's title to the iron was complete as against all persons 
in New Jersey, where he was appointed and first held possession 
of the iron, and that the title once thus fully vested in him 
should not be divested by merely sending the goods to another 
State. 

But it must be remembered that this principle is applicable 
only in those cases where the transaction is perfected and com- 

* Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co. 
V. Packet Co., 108 111. 317, 48 Am. Rep. 557 ; Cagill v. Wooldridge, 8 Baxt. 
(Tenu.) 580, 35 Am. Rep. 716 ; Crapo v. Kelly, 16 Wall, 610, 622 ; Cook v. 
Van Horn, 87 Wis. 291, 50 N. W. 893 ; May v. Wannemacher, 111 Mass. 
202, 209 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349. But see Walworth v. 
Harris, 129 U. S. 355 ; Donald v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431. In 
both these cases the lien was imposed by law, not by agreeaent. 

5 45 Conn. 126, 29 Am. Rep. 668. 



46 SUBSEQUENT CHANGE OF SITUS. § 15 

pleted before the property becomes subject to the new jurisdic* 
tion. This will not be the case if the property, at the time of 
the transfer, is situated in the latter jurisdiction. Here third 
persons, resident in the State where the chattels are situated 
(and in some cases though uot residing there), may justly claim 
that as to them the title has not completely passed out of the 
original owner until the law of the actual situs of the chattels 
has also been complied with." 

Another prominent example of this principle may be seen in 
the rules for the determination of the law governing a person's 
status. Once permanently fixed by the proper law,^ it is not in 
general altered by any subsequent change of situs on the part 
of the individual. Thus, if one be born a bastard, and is sub- 
sequently legitimated under the proper law by the intermarriage 
of his parents, his status as a legitimated child becomes perma- 
nent, and will not be altered by the assumption of a new situs, 
though by the law of the latter a subsequent intermarriage of 
the parents does not legitimate,' 

So also, if a marriage is valid by the proper law, it will not 
in general be rendered invalid by a subsequent removal to a 
State by whose laws such marriages are invalid. Thus in State 
V. Ross,' a white woman, domiciled in North Carolina, went 
into South Carolina to marry a negro resident there. They 
were married there and lived there for several years, when they 
removed to North Carolina. Upon a prosecution in North 
Carolina for lewdness, under a statute of that State absolutely 
prohibiting the marriage of a white person and a negro, it was 

« These are the exceptional cases already alluded to, in which the lex fori 
will prevail over the proper law. The cases illustrating this principle are 
very numerous, and are collected hereafter. See post, §§ 129, 134, 135. Ref- 
erence is here made to a few only. Green v. Van Buskirk, 5 Wall. 307 ; 
Guillander v. Howell, 35 N. Y. 657 ; Faulkner v. Hyman, 142 Mass. 53 ; 
Catlinv. Plate Co., 123 Ind. 477, 8 L. R. A. 62; Sheldon v. Wheeler, 32 
Fed, 773 ; Sturtevant v. Armsby Co., 66 N, H, 557, 23 Atl. 368. 

^ What is the proper law to govern the status will be seen, post, §§ 68 
et seq. 

* Post, §§ 99 et seq. ; Miller v. Miller, 91 N. Y. 315 ; Boss v. Ross, 129 
Mass. 243, 247, 256, 37 Am. Rep, 321. 

• 76 N. C. 242, 22 Am. Rep. 678. 



§ 15 SUBSEQUENT CHANGE OF SITUS. 47 

held that since both the parties were domiciled, at the time of 
the marriage, in South Carolina, where such marriages were not 
illegal, the subsequent removal of the parties to North Caro- 
lina, the former home of one of them, should not affect it. 
The prosecution therefore failed. 

So it is also with divorced persons. If validly divorced in 
the State of their domicil, their status as single persons will 
thereafter be recognized, whithersoever they may remove.^" 

This principle explains in some measure the reluctance shown 
by the courts to substitute the lex fori for the proper law iu 
cases where they are called upon to enforce executory contracts 
made abroad. The violation of the policy of the forum entailed 
by an enforcement of the proper law must be very pronounced 
to induce them to decline its enforcement. Thus executory 
contracts relating to lotteries, ^^ for the purchase price of slaves, ^* 
for the sale of intoxicating liquor,^' contracts forbidden by the 
usury laws of the forum," and many other contracts of a similar 
kind, have been enforced in States whose policies strictly pro- 
hibit such dealings, because valid by the proper law. Though 
not expressly stated by the authorities, it is believed that this 
reluctance to substitute the lex fori for the proper law in these 
cases is due to the principle that the rights of the parties, once 
perfected and definitely fixed by the proper law controlling 
their voluntary agreement, will not be set aside without the 
gravest consideration and weighty reasons, even though the 

^ See post, §§ 89 et seq. Other examples of the same principle, as appli- 
cable to status, may be seen by reference (to the following cases : Taylor v. 
Sharp, 108 N. C. 377, IS S. E. 138 ; Cnmmington v. Belchertown, 149 Mass. 
223, 227, 21 N. E. 435 ; Schluter v. Bank, 117 N. Y. 125, 130, 22 N. E. 572. 
This principle does not fully apply to status more or less of an unperraanent 
cliaracter, such as the status of guardians, administrators, etc. See post, 
§§ 102 et seq,, 114 et seq. 

" Kentucky v. Bassford, 6 Hill (N. Y.), 526; Mclntyre v. Parks, 3 Met. 
(Mass.) 207; post, § 178. 

^2 Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145 ; Roundtree v. Baker, 
52 111. 24I,\4 Am. Rep. 597; Osborn v. Nicholson, 13 Wall. 654. 

13 Tegler i^Snipman, 33 la. 194, 11 Am. Rep. 118 ; Hill v. Spear, 50 N. tt 
253, 9 Am. Re>^ 205 ; post, §§ 177, 178. 

" Post, § 179^ 



48 VALUE OF PKECEDENTS. § 16 

general policy of the forum be violated by its enforcement. 
Even in the case of executory contracts, however, there are some 
instances in which the lex fori may be substituted." 

§ 16. Value of Precedents in Private International Law. -~ 
The exceptions and the related principles discussed in the pre- 
ceding sections exert a very marked influence upon the weight 
ordinarily to be attached to precedents and decided cases. This 
effect should be constantly borne in mind in the investigation 
of the authorities upon a point involving the conflict of laws. 
If unnoticed, it may result that decisions will be cited to sustain 
propositions which in reality they do not sustain. 

In the exceptional cases, the court, as has been observed, 
generally substitutes the law of its own State (lex fori) for the 
proper law. If the court says as much in plain terms, naming 
the exception to which it belongs, and giving its reasons for 
believing it to be one of the exceptional cases, no confusion of 
the lex fori with the proper law is apt to arise. But frequently 
the courts fail to make the distinction, merely holding that the 
case is governed by the law of their own State, without even 
specifically designating it the lex fori ; sometimes treating it as 
the enforcement of the proper law, instead of a law substituted 
for the proper law; sometimes confusing terms, as in cases of 
foreign transactions relating to personalty situated in the forum, 
where they designate the substituted law as the lex situs rather 
than the lex fori, in which aspect it should be considered, as we 
have seen.^ The consequence of all this confusion is of course 
that false impressions are created as to the law really looked to 
by the court as ruling the particular case, and still more with 
respect to the proper law which should rule similar instances 
where the circumstances creating the exceptional cases are not 
present. This has been a most fruitful source of confusion and 
error. Some hints therefore, drawn from experience, touching 
the points to be looked to in attaching the proper weight to 
authorities in these investigations will not be amiss. 

1. In distinguishing the various conflicting cases, care must 

1* Ante, § 9. See Oscanyon r. Arms Co., 103 U. S. 261. See also post, 
§ 152. 

1 Ante, § 14. 



§ 16 VALUE OF PRECEDENTS. 49 

be taken in the first place to observe in what State the suit is 
brought, for the determination of the governing law in a given 
case will often depend upon which State is the forum.* 

2. This point must be observed as well with respect to federal 
courts sitting in a State to enforce its laws, as with regard to the 
State courts.' 

3. After ascertaining and carefully noting which State is 
the forum, observation should next be directed to the facts of 
the case. If such as to constitute one of the exceptions, the 
decision will in general be of little direct authority with re- 
spect to the "proper law " governing such transactions. It 
is only a direct authority for the application of the lex fori in 
the case of the particular exception disclosed by the facts of that 
particular case. The rest is dictum, more or less valuable. 

4. If the facts in the case under investigation do not disclose 
an instance of the operation of any of these exceptions, the deci- 
sion is a direct authority, more or less valuable, touching the 
"proper law." 

5. If ♦ihere be disclosed ground for the operation of one of the 
exceptions, but the court enforces a foreign law (not the lex 
fori), the decision is direct authority of a very strong kind to 
show that the foreign law thus enforced is the ""proper law." 

6. The weight to be attached to a particular decision will 
depend, as in other cases, upon the character of the court, the 
care bestowed upon the opinion, whether it is decision or merely 
dictum, its date, the particular facts or statutes in the case, etc. 

7. In examining the facts of the case, care must always be 
taken to note the nature of the transaction in detail, to observe 
what are the various foreign elements that enter into the case, 
which of these are given weight in the decision and which are 

a See Armstrong v. Best, 112 N. C. 59, 17 S, E. 14 ; Robinson v. Queen, 
87 Tenn. 445, 3 L. R. A. 214. This principle should also be borne in mind 
in deciding in what State a suit of this nature should be instituted. 

' Hence federal decisions are as much authorities ou questions of the con« 
flict of laws as are the State courts. For example, see Swann v. Swann, 21 
Fed. 299 ; Atherton Co. v. Ives, 20 Fed. 894 ; Bamett v. Kinney, 147 U. S. 
476 ; Cole v. Cunningham, 133 U. S. 107, 129 ; Bowles v. Field, 78 Fed. 742, 
743 ; Smith v. Union Bank, 5 Pet. 518; Green ». Van Buskirk, 6 "Wall. 307, 
812. 

4 



50 VALUE OF PBECEDSNTS. { 16 

discarded. Many different combinations of these elements may 
arise, and each combination may cause a change in the result. 
It is of the utmost importance therefore to note what combina- 
tion of foreign elements exists in a particular case, and whether 
the court had before it the whole combination, in making its 
decision, or only one or more of the foreign elements. The 
value of the decision will in large measure depend upon 
this. Abundant illustrations of these principles will be seen 
hereafter. 



I 17 IMPORTANCE OP SITUS. 61 

PART II. 

SITUS OF THE PERSON. 



CHAPTER III. 

ACTUAL SITUS OF THE PERSON. 

S 17. Importance of Situs in Private International Law. ^ 

The foundation principle of the Conflict of Laws is Situs. 
Every element in every transaction known to the law has a 
situs somewhere, and the law of that situs will regulate and 
control the legal effect of that element. Not only is this true 
of active steps taken towards the completion of a given trans- 
action, but it is equally true of those elements, not consisting of 
acts of parties, but merely acts of the law, or of passive char- 
acteristics, legal qualities, or disqualifications inherent in the 
parties, independently of their own will or in spite of it. For 
example, in the case of an executory contract, not only may each 
active step in the transaction — the making of the contract, the 
act to be done in consideration thereof, and the performance of 
it — have a separate situs of its own, but the capacity or dis- 
qualification of the parties to enter into the agreement — a mere 
passive quality — must also have its situs, which may perhaps 
be separate from all the rest. These passive qualities of legal 
capacity or incapacity inhere, not in the transaction (in general), 
but in the person of the party, and in the main have the same 
situs as the person whose capacity is in question.^ 

Thus, it is not difficult to conceive of a contract made by A, 
of New York, with B, of Massachusetts, entered into in New 
Jersey, to be performed in Maryland, in consideration of an act 
to be performed by B in Pennsylvania. We may even go fur* 

1 Post, §§ 69 et seq. 



62 IMPOKTANCB OP SITUS. § 17 

ther and suppose the consideration for A's promise to be an 
executory contract made by B to be performed in Virginia. 

In this hypothetical case it will be observed that many dif- 
ferent States, possessing various systems of law, are represented, 
and each may be the situs of some material step (active or pas- 
sive) connected with the transaction. A^s capacity to contract 
has its situs; B^s capacity to contract has its situs; there is a 
situs for the entry into the contract; another for the considera- 
tion of the contract; another for the performance of the contract. 
And if the consideration be itself executory (as where B makes 
a promise), there may be a separate situs for the formation and 
for the performance of that contract. 

Each one of these elements may have a separate situs and be 
governed by a different law. Each such element must be upheld 
by its proper law, the law of its situs, in order that the transac- 
tion as a whole may be upheld.' It is not proposed to consider at 
this point what is the situs of each of these elements. A com- 
plete answer to that question in such a case as the above, and in 
other cases of which this is but a sample, would constitute a 
treatise on the Conflict of Laws, and is the purpose of this work. 
It is intended here merely to point out that the situs of each 
step in a given transaction is to be carefully noted, and its effect 
is in general to be tested by the law of that situs. The com- 
plete transaction being made up of all these various elements, 
its ultimate validity will in general depend upon the validity of 
each of its constituent parts (tested by its proper law). If, when 
so tested, each element is valid, then the transaction as a whole 
will be valid; but if one or more of the essential steps be in- 
valid, when measured by its proper law, neither can the trans- 
action as a whole be in general sustained. 

Hence, in order to arrive at a correct solution of the law 
which is to govern a particular transaction, that transaction 
must be resolved into all its essential parts, and to each of 
these parts the law of its own situs must be applied. 

These elements of a given transaction may be active, depend- 
ent upon the will of the party himself. In such cases he may 

3 Subject always to the exceptions given in Chapter IL 



§ 17 IMPORTANCE OP SITUS. 53 

perform the particular act or not as he pleases, and if he chooses 
to do the act, he may and does select the place where it is done. 
But having once done the particular act at the place selected, 
the effect of that act must in general be determined by the law 
of the place where it is done. This is expressed by the maxim 
" locus regit actum." The party should not be permitted to 
select one place for the doing of the act in question and then 
select the law of a different place to govern that act, for that 
would be to subordinate the sovereignty of the first State to the 
will of the individual. He cannot thus give the act, by the 
mere exercise of his will, a constructive situs which it does 
not actually possess. 

Other elements in a transaction may be passive, arising by act 
of the law. The capacity of a party to do an act or receive 
a benefit, taxation of property, the succession to a decedent's 
property, adjudications of insolvency or bankruptcy, marital 
rights, etc., are instances where elements of this kind occur. 
Such elements also must possess a situs somewhere. But 
when the law acts, it must either act upon the person or 
upon property. If upon the person, the act of the law will 
generally have the same situs as the person; for if the person be 
not actually or constructively within its jurisdiction, the act of 
the law is nugatory. Wheiua cting up f>Ti tbp pp.rsnp, Jjift law 
cre ates a st f it u ru H ft no n f i h r -litii n o f a itat n i. whos e law will 
grfvvfirn it, ia thft sitna of the person. 

If f^^<^-//T.</^ a^fg up on proper ty, f.bft situs of the act of the 
law fii ll o uia thn aitnn o f tb o p io p pit yj i n o tl i n words, the prop- 
erty mufit hnvff itp pitMP; n^^tni ^ lly i^r in rnnt '^ mplation of la w, 
within t he iurisdicti oTi of thn Inw purp orting to act upon it. 
But there may be a legal, as well as an actual, situs of property, 
at least in case of personal property, the actual situs not being 
in general considered save in the exceptional cases mentioned in 
the previous chapter.* It is the legal situs that is usually 
looked to, and that follows the situs of the owner, upon the 
maxim " mobUia personam sequunturJ' * 

These are the basic principles upon which private interna- 
tional law, as a science, is founded. But in their application 

» Ante, §§ 6. 7, 14. 



54 ACTUAL SITUS OF THE PEKSON. § 18 

many difficulties and much confusion among the authorities 
will be encountered, not only in determining what are the es- 
sential elements of a given transaction, but in deciding what is 
their proper situs when ascertained. 

Since the situs of status and of personal property generally 
follows the situs of the party to whom they pertain, in order to 
determine the law which governs questions relating to these 
matters we must consider what is the situs of the person. 

In regard to contracts, we must look to the same law with 
respect to questions of capacity (capacity being a status'), but 
with regard to those elements which consist of active steps 
taken by the parties and dependent upon their own will, such as 
the entering into the contract, the performance of it, or the per- 
formance of the act which constitutes the consideration therefor, 
we must determine what is the situs of each particular act form- 
ing a constituent part of the transaction. 

So likewise, in regard to torts and crimes, we must determine 
the situs of the tort or of the crime, in order to ascertain the 
law properly applicable.* And so it is also with respect to 
remedies.' 

§ 18. Actual Situs of the Person. — It seems a paradox to 
say that a person may occupy two places in space at the same 
time. Yet under the rules of private international law such is 
the case. But it is not the paradox it seems, for the law only 
admits one to occupy two places at the same time for different 
pverposes, — never for the same purpose. The latter principle 
prevents the confusion of applicatory laws that would otherwise 
result from the former. 

The law-a ssigns to every man immediately upon his birth and 
t,hrniig ;hout hia life a situs in the State where he ha s his Jom i - 
oil, whose laws are those to which pr imarily he owes allegiance. 

* Ante, § 14 ; post, §§ 120 et seq. We will see in the following sec- 
tions that the situs of the owner may itself be either actual or legal. In 
regard to immovable property, the actual and legal situs will usually cor- 
respond. See ante, § 11. 

6 Post, § 72. 

* Post, §§ 195 et seq., 204. But in the case of crimes, the exception re- 
lating to penal laws applies in full force. Post, § 203. 

* Post, §§ 205 et seq. 



§18 



ACTUAL SITUS OF THE PERSON. 



55 



In order that ha shnn Td poaSftSS ^^m firim{o\'[^ if. I'n Tinf nanoaqoyy 

that h eshould actually be prfisftnt t^fi 1 1' il itll ti ii — iie-ixia,y 

actuall y he at a given moment in one State, while his domi cil 
is in another. The domicil, then, is the leffol situa of the imi - 
vj^TiiaTT'and ma y^or may not be coincident with h ja n^tu"! H^i^^•^ 
at a given moment. Tlie_^ctualsitus_of,J;^e_gei§onata given 
moment isThe State where, at_that mogafinfeL ^e is jidaiallj 
cally pteseaL TZEEe ^legalsitus o f the person is th e Sta te of his 
domicil^—tjie Statfi-^ol ^is perm anehTresiHellce^^hetKer He is 
actually pre sent there or not. 



Te have seen that there"^e certain cases (transactions touch- 
ing status and personal property) wherein the law of the situs 
of the person will control. Under some circumstances, it will 
be the law of the actual situs of the person. Under others, it 
will be the law of his legal situs or domicil. These two may 
coincide in a given case, or they may be distinct. In the latter 
case, the law of one or the other situs may govern a particular 
element or matter, but never the law of both. In ascertaining 
which situs should furnis h the law to govern a pa rticular matter 
proper ly determinable py the law of the situs of the person, t he 
same diatinp.tini L. must be made as was noted in the pre ceding sec- 
tion between active or v oluntary elements, and passwe or invot- 
untary elflmftTifH, nr ai^ r^h as are created by the law itij(jll, wilhuufc- 



the e xercise of the party's wjlV. It will be remembered, as 
saw in the last section, that a person's status is the creation of 
the law, and not dependent upon his will. On the other hand, 
the disposition or transfer of his personal property may result 
merely from the exercise of the owner's will, as in case of a 
conveyance, or it may result merely from the act of the law, as 
in the case of the succession to an intestate's personal estate. 

If a person domiciled in one State enters actively into a par- 
ticular trarigaY^finT^ in g.Tir>t T^^ T S tfl t »; ^" ^l iP d ftl Th p ralifttyTrfms ftn 
for th e purposes of that transaction to submit himself and it to 
the opera|tion_of_thelatter law. In selecting a place for the 
perfor mance of the act ^ njgpiefltio"; ^'^ nolp/'ffl jts l^w ur tlu> 
governinglawj^to^hold othftrwiaft ^fmjjjhgtn deny to that State 
soverei gnty and control ove r acts taking placeTHefe! Justice to 
the partv himself, to the other parties to the transaction, and to 



56 



ACTUAL SITUS OF THE PERSON. 



§18 



the State where it is entered into, requires the enforcement of its 
law with respect thereto, rather than the law of the legal situs 
or domicil, which has no force ex propria vigore outside its own 
limits, and which the party himself has temporarily renounced, 
so far as that transaction is concerned. 

This is the natural and proper view for the courts of the State 
where the transaction occurs or of a third State to take ; but it 
does not necessarily follow that the same view will be taken by 
the courts of the party's domicil, if in entering into such for- 
eign transaction the party has violated its law or policy.^ 

But if the matter in question (determinable by the lex situs 
of the person) arises, without the active intervention of the 
party, merely as a creation of the law, while he is thus tempo- 
rarily in a State other than the State of his domicil, the same 
reasoning is not applicable. The laws of each State are enacted 
primarily for the benefit of its own citizens ; and to impose those 
laws, except where the welfare of the State demands it, as in 
case of police and criminal laws, upon the citizens of other 
States temporarily there, in regard to matters in which they 
have not voluntarily submitted themselves to those laws, would 
be unjust to them and to the State where they reside, whose 
sovereignty over its own inhabitants would thus be denied. 

If, for example, we take th e__caap of a transfRTL-ofjersonal 
property, which is in gener al povernod by -th a_law of th e situs 
of the owner, and suppose that the transfer occurs while the 
owner is inaTState^^ther th5Sff~Eis domicil, the~~tf3iisfeir-will be 
governed~Ty" the law of the"actu^ situs of the own er j(the lex 
loci co ntractus) or~15y"the"T awj;> f hia l ftga.1 gi't^ig_Qft-r domicilii), 
accordjng^as the transfgrJsL-by^-ygluiitary agreem«nt_on the part 
otthe owner, or arises by operat ion of lawj _aghi the case of the 
succession of a distnbutee^ot he personal e stateonhs^deceased 
intestate owner* " 

Matters of status are always the creatures of the law, being 
fixed by law, independently of the will of the individual. Hence 
we should expect to find such matters always regulated by the 
law of the person's legal situs or domicil, save in the exceptional 

1 Post,§ § 72, 73. 

* Post, §§ 128 et seq., 136 et seq., 139 et seq. 



§ 18 ACTUAL SITUS OF THE PERSON. 67 

cases of the preceding chapter. And such is the general rule.* 
But even in respect to status (the status of capacity) the same 
principle has been applied, and a distinction is made between 
the law governing a person's capacity to do a voluntary act, 
such as to enter into a contract, and his capacity in respect to 
involuntary acts or matters arising by operation of law, such as 
capacity to hold property under a conveyance or will.* 

In conclusion, it may be said that there is usually no diffi- 
culty in ascertaining the actual situs of a person at a particular 
time. It is a mere question of fact. But often the ascertain- 
ment of the domicil or legal situs of the person is not so easy. 
It is a mixed question of law and fact. The legal rules by which 
the domicil is determined will be dealt with at length in the 
succeeding chapter. 

« Post, §§ 68 et seq. 

« Post, §§ 70, 144 ; Ross r. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321. 



58 DOMICIL, NATIONAL OE MUNICIPAL. § 19 



CHAPTER IV. 

LEGAL SITUS OF THE PERSON, OR THE DOMICIL. 

§ 19. Domicil, National, Quasi-National, or MunicipaL — 

Mr. Jacobs, in his work on the Law of Domicil,^ has appropri- 
ately divided Domicil into three classes — (1) The national 
domicil, representing the absolutely sovereign State in which 
one may be domiciled; (2) tht quasi-national domicil, repre- 
senting residence in a State which is not wholly, but only 
partially sovereign, such as one of these United States; and 
(3) the municipal domicil, representing only the intra-State 
political division, such as a county or city within a State, 
which is not sovereign at all. 

The last class has no place in private international law, but 
is entirely the subject of the municipal law of the State where 
the particular county or city is located. And the distinctions 
to be drawn between the first two are comparatively slight and 
unimportant. Whether the particular States in question are 
wholly or only partially sovereign, if they are supreme with 
respect to the point at issue, that is all that private interna- 
tional law requires. If the law of the domicil of a party is to 
control, it is usually of small importance whether this be a 
national or a quasi-national domicil. Occasionally however 
distinctions must be taken between them. 

It follows from what has been said that cases deciding ques- 
tions relating to municipal domicil should be accepted with 
caution as authority in regard to matters of national or quasi- 
national domicil. The former is the subject of municipal law 
only, the latter of private international law. To argue from 
the principles of municipal law to those of private interna' 

» Jac. Dom. § 77. 



§ 20 DOMICIL DISTINGUISHED FROM RESIDENCE. 59 

tional law is always apt to be misleading. The failure to 
reoiember this fact has sometimes led to serious error.' 

§ 20. Domicil distinguished from Mere Residence. — Dom- 
xi\, as we have seen, in the last chapter, is to be distinguished 
from the actual situs of a person, a mere temporary locality of 
existence in a particular State at a particular time. 

It must now be observed that domicil is also to be distin- 
guished from a mere residence, of a temporary character, not 
intended to be permanent. Residence in a State is usually 
said to be necessary to domicil, but it must be a residence of 
a permanent, not of a temporary or limited, character. When 
the term "resident" or "residence" is used in connection with 
private international law, it is generally used in the sense o* 
domicil, though not always.^ 

The Virginia case of Long v. Ryan * is a good illustration 
of the distinction between mere residence and domicil. lu that 
case, a person domiciled in Washington came to Virginia intend 
ing to remain there about nine months, until he should complete 
a contract into which he had entered, proposing afterwards to 
leave Virginia. His property was attached in Virginia under a 
statute permitting attachments against " non-residents," but the 
court, notwithstanding his domicil in Washington, held him to 
be a resident of Virginia, and dismissed the attachment. 

So also a foreign_niiaiater-aetuaHy residBS or is personally 
present at the court J o^ ghich ho is accr G ditcd. -lbttt-his legal 
residence^ and domicil are in his own country. ^Ijoideed., by the 
fip.tinnjfvfjRjt grritnriality, fhft pla-cft nf biaj c a g id fl nfiR -lq a._part of 
his r>wT) nmin try- It iff ^t h ffrwi H ft With ^""ffl ll ft * 

' For example, with respect to the right of a guardian to alter the ward's 
domicil. See post, § 41. 

1 In re Wrigley, 8 Weud. (N. Y.) 134; Frost v. Brisbin, 19 Wend, 11, 32 
Am. Dec. 423 ; Laugdon v. Doud, 6 Allen (Mass.), 423, 83 Am. Dec. 641 ; 
Allgood V. Williams, 92 Ala. 551, 8 So. 722 ; Chitty v. Chitty, 118 N. C. 647, 
82 L. R. A. 394 ; Wood v. Boeder, 45 Neb. 311, 63 N. W. 853 ; Ayer v. 
Weeks, 65 N. H. 248, 18 Atl. 1108; Long v. Ryan, 30 Gratt. (Va.) 718; 
Tipton V. Tipton, 87 Ky. 243, 8 S. W. 440. See Story, Confl. L. § 4a 
bote (c). 

« 80 Gratt. 718. 

« Whart. Confl. L. 5 49 ; Crawford v. Wilson. 4 Barb. (N. Y.) 50S. 



60 DOMICIL DISTINGUISHED FROM NATIONALITY. § 21 

So it is with students. Though resident at a college or univer- 
sity for the period necessary to complete their course, they are 
not domiciled there unless they have the intention to remain 
there permanently. But the question of domicil is distinct 
from the right of suffrage. The latter is a matter of munici- 
pal law, and is subject to the rules prescribed by each State 
within its own borders. If those laws do not require a domicil 
as a condition of suffrage, but only a mere residence, a student 
may be permitted to vote, though he be not domiciled in the 
State. Such is the general rule in the United States.* 

§ 21. Domicil distinguished from Nationality or Citizen- 
ship. — The distinction between domicil and nationality or 
citizenship is just as marked as that which exists between 
domicil and residence. A person may be a subject or citizen 
of one country, while domiciled in another.^ Thus, ^ citizen 
of France may qr-t.naTly >><> in "I^pw Vpr k- Tf merely ^assin^ 
throTi gh~h6 has'only his actual sitna in "N"ew Yor li^_Tf he re- 
sides there, with the intentio rrto remain for a limited period, 
he is a re sident of New York, andi?7couple(i with the residence, 
there is the intentTon to remain^her£_germaiieutly Oftor an un- 
limited period, he is dqmiciled-iji ^oy i f Yor ky^y£iL^e_m^ all the 
time remain a ct^t'gew of Fr ance. 

But it must be observed that, so far as citizens of the United 
States are concerned, the rule is otherwise as between the States 
of this Union. The fourteenth amendment to the federal con- 
stitution expressly provides that ''all persons bom or natural- 
ized in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States, and of the State wherein they 
reside " (that is, are domiciled). This provision establishes 
for the States of the Union the rule that a citizen of one State, 

* Whart. Confl. L. § 48 ; Opinion of the Judges, 5 Met. (Mass.) 587 ; Fry's 
Case, 71 Penn. St. 302; Hart ». Lindsey, 17 N. H. 235, 43 Am. Dec. 602 ; 
Kelley v, Garrett, 67 Ala, 304 ; Sanders r. (Jetchell, 76 Me. 158 ; Vanderpoel 
V. O'Hanlon, 53 la. 246, 36 Am. Rep. 216 ; Dale v. Irwin, 78 111. 170. 

1 Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Raymond v. 
Haymond, 74 Tex. 414, 12 S. W. 90, 92 ; Larquie v. Larquie, 40 La. Ann. 
457, 4 So. 335, 336 ; Roth r. Roth, 104 111. 35, 44 Am. Rep. 81, 82 ; Powers 
V. Lynch, S Mass. 77. 



§ 22 LEGAL SITUS OP THE PERSON, OR DOMICIL. 61 

who abandons that State and goes to another to reside perma- 
nently, thereby ipso facto loses citizenship in the former State 
and acquires it in the latter, regardless of his own intention or 
wishes.* 

§ 22. The Legal Situs or Domicil of the Person. — In law, 
persons are either natural persons, individuals; or artificial 
persons, corporations. Private international law regards for 
the most part the domicil of natural persons. The very nature 
of what is usually termed the ''domicil " of corporations differs 
essentially from that of individuals, and is subject to very 
different rules. It is manifestly impossible for a mere cor- 
poration to possess a permanent home or residence in the same 
sense as an individual, nor is there usually the same occasion to 
fix a domicil for it. Many of the transactions, which in the case 
of an individual must be regulated by the law of his domicil, do 
not arise at all in the case of corporations, such as most questions 
of status, the making of wills, the intestate succession to estates, 
marriage, divorce, etc. But there are some transactions to which 
a corporation may be a party, just as an individual may be, such 
as taxation, the conveyance of property, or the making of con- 
tracts. In these cases, it sometimes becomes necessary to in- 
voke the aid of some foreign law, corresponding to what would 
be the law of the domicil, if the party were an individual in- 
stead of a corporation. For such purposes (comparatively in- 
frequent), a corporation must be assigned a situs, which is 
sometimes spoken of as a domicil.^ 

'■« Dougherty v. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520 ; Firth 
V. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917. Owing to this principle, the 
American courts are more prone than others to use the terms " residence " and 
" citizenship," as synonymous with domicil. But even in the United States, 
this only applies to citizens of the United States, not to citizens or subjects 
of foreign countries. In general, private international law does not concern 
itself with mere residence or with citizenship. See post, § 66. 

^ A section will hereafter be devoted to the situs of corporations. Post, 
§ 67. With respect to associations of persons, not incorporated, such aa part- 
nerships, it may be observed that, since their existence as a legal entity is not 
recognized by the law, neither will the law assign them a distinct situs of 
their own. See Faulkner v. Hyman, 142 Mass. 53, 55. Such associations 
are sometimes spoken of as " domiciled " or " resident " in a particular place, 
but what is meant is merely that all the partners or members reside there and 



62 DEFINITION OF DOMICIL. § 23 

The domicil of natural persons may be divided for the pur- 
poses of the subsequent discussion into the following heads* 
(1) Definition of domicil ; (2) Certain general principles touch- 
ing domicil; and (3) The several kinds of domicil, and the 
principles governing each. These will be taken up in order. 

§ 23. Definition of Domicil of Natural Persons. — The domi- 
cil of a natural person, as used in private international law, may 
be defined as the State or country where a party actually or 
constructively has his permanent horned 

The conduct of a man's business, the presence of his family, 
his voting, the payment of his taxes, etc., are not essential ele- 
ments of a domicil, but are merely evidences, more or less 
weighty, of an intention to make the place where these things 
exist or are done his permanent home. Such circumstances 
therefore should find no place in the definition.^ 

The definition of domicil above given is very broad, as it must 
be to cover all the points that may arise. Indeed, owing to the 
number of points to be covered, there are few terms more diffi- 
cult to define. As was said in Abington v. N. Bridgewater,' 
" The fact of domicil is often one of the highest importance to a 
person; it determines his civil and political rights; it fixes his 
allegiance ; it determines his belligerent or neutral character in 
time of war; it regulates his personal and social relations whilst 

that there the firm transacts its business. It is the domicil of the members 
that is looked to, when that is important, not that of the firm. For instances 
of the loose employment of these terms, as applied to unincorporated associa- 
tions, see Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Halsted 
r. Straus, 32 Fed. 279, 280 ; Long ». Girdwood, 150 Penn. St. 413, 24 Atl. 
711, 23 L. R. A. 33. 

1 Dicey, Confl. L. 79 ; Story, Confl. L. § 41 ; Jopp v. "Wood, 4 DeG., J. & S. 
616, 622 ; Mitchell v. United States, 21 Wall, 350 ; Desmare v. United States, 
93 U. S. 605; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Price v. Price, 
156 Penn. St. 617, 27 Atl. 291 ; Oilman v. Gilman, 52 Me. 173, 83 Am. Dec. 
502 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530, 532 ; White v. 
Tennant, 31 W. Va. 790, 8 S. E. 596 ; Hart v. Lindsey, 17 N. H. 235, 43 Am. 
Dec. 597, 601 ; Steer's Succession, 47 La. Ann. 1551, 18 So. 503. 

* Pearce v. State, 1 Sneed (Tenn.), 63, 60 Am. Dec. 135 ; Guier v. O'Daniel, 
IBinn. (Penn.) 349, note; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 
806; Shelton v. Tiffin, 6 How. 163. 

« 23 Pick. (Mass.) 170, 176. 



§ 24 AREA OF DOMICIL. 63 

he lives, and furnishes the rule for the disposal of his property 
when he dies. Yet as a question of fact, it is often one of great 
difficulty, depending sometimes on minute shades of distinction 
which can hardly be defined." 

To every definition proposed some objection may be offered. 
Thus Story defines domicil to be "the^lace where a person has 
>i T o^-jjm^ ^>y ftfl7 "^ riH^^p^rnfi^p.nt home and principal establish- 
mcnt^ nn(\ tn vrhifih, whe never he isaEsen t^he has the intenTrion 
o f return ing. '^ * Among the objections tothis definition peF- 
haps the most serious one is that it has no application to the 
eonstructive domicil of an infant, married woman, or other per- 
son incapable in law of exercising a choice with respect to his 
or her place of abode. The same fault is to be found with most 
of the definitions that have been proposed. 

§ 24. Area of Domicil. — Since the domicil, for the purposes 
of private international law, is the State or country where a 
party has his permanent home, it is manifest that the term need 
not be confined to the particular tract of land, town, county, 
or district, immediately occupied by him,^ but it also extends 
to the whole country or State in which he resides, that is, the 
whole territory over which the sovereignty of the State extends, 
and controlled therefore by the same system of laws. But it is 
worthy of notice that the term includes the town, county, or 
district of residence, as well as the State itself, and that one 
domiciled in such town, county, or district must also be domi- 
ciled in the State of which it forms a part, for the greater 
includes the less. 

Eminent authorities have declared it not essential that one 
domiciled in a particular State or country should also have a 
fixed residence in any particular spot in that country.* Thus, 
let us suppose a Frenchman comes to England, intending to 
remain permanently, spending his life traveling from one point 
to another in England, but residing permanently at no par- 
ticular spot. According to these authorities, England becomes 

< Story, Confl. L. § 41. 

1 This corresponds to the municipal domicil, but the national or quasi- 
national domicil is more comprehensive. 

s Dicey, Confl. L. 91-93 ; Jac. Dom. § 77. 



*• ^ M/vui^ -ttma/ ^iji^^fr^'^^Ajt ^1/t.x/ Jiyy^A^cuif i/ 



A.4a«£m^^ >.*fctv>-*-^ 



64 



DOMICIL, THE ACTUAL HOME. 



§25 



his permanent home and national domicil, but ii« is domiciled 
in no particular town or county in England, he hr»^s no -munici- 
pal domicil there. 

Under this view, the Frenchman's munic'pal domicil, if he 
has any at ail, remains in France. But having ceased alto- 
gether to reside in France, and becoming domiciled in England, 
he cannot be said to reside in any town or county or province of 
Irance. We are then driven to the conclusion that he must be 
held to have no municipal domicil anywhere. This conclusion 
is in direct contravention of the great weight of authority in 
the United States and elsewhere, to the effect that a resident 
of a State must always be held to pos8e<^s a municipal domicil 
somewhere in that State.'' 

In this country the question is still an open one^ In an 
Ulin ojs case^ ^Vwoman domiciled in Missouri abandoiie(rHiat 
State,--WTfch4iexJiusban37~nrteBdiB^-J;Q_remov^^ and to 

reside-ei%bex..atBloommgton~c>r Salem. Shewent toTlltnois with 
her husbapd. but before they had r<eriiHQf1 in wMrrh-^^wn they 



jrjiii 

lOUld- 



yiTinnld )?pf.flA shfi die'^.izijiggj;^;!^ ^^® laws of Missouri govern- 
ing the succe ssion to _per3onaH"y T^^ffftrftrl fE£m»-ri»f>«^=sf Illinois, 
(^nd t he Question thereu:B QlL-a^Q»^-whethbr she was^^omiciled at 
hazLdgat h in Illinois or _MissQi]ri, the Im? domifti1ii,drtprmining 
tbft _r->rHftT nf sii rfiPiSHinn. — T h e court— h e ld h er-domicil to be 
Missouri, but based its decision upon the ground that, not 
having detinitelj_fixedjipiHL_eithfir.ioiy»_as a place of residence, 
there was no sufficient evidence of the parH^s*--4fitention to 
resi^i e p e xmauently i l l Ill inois at all. The main-peint was left 

undectltETir 

§ 25. Domicil, the ActUEiI Permanent Home. — Domicil 
usually conveys the idea of '* home " in case of persons sui juris 

' Abington v. N. Bridgewater, 23 Pick. (Mass.) 170; Whitney v. Sherborn, 
12 Allen (Mass.), HI; Otis v. Boston, 12 Gush. (Mass.) 44; Crawford v. 
Wilson, 4 Barb. (N. Y.) 505 ; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108 ; 
Siiepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372 ; School Directors v. James, 
2 W. & S. (Penn.) 568, 570, 87 Am. Dec. 525 ; Mills v. Hopkinsville (Ky.), 
11 S. W. 776. 

* Cooper V. Beers, 143 111. 25, 33 N. E. 61. See Lowry v. Bradley, 1 Speer's 
Eq. (S. C.) 1, 39 Am. Dec. 142, 145, where the court seems to lean the other 
way. 



§ 26 DOMICIL, THE CONSTRUCTIVE HOME. 65 

and capable of possessing an actual home of their own, but a 
home need not necessarily be adomicil.^ "Home" means an 
actual abode, coupled with the intention of remaining there, but 
it is not needful that there should be a purpose to remain perma- 
nently or for an unlimited time.^ But when is added to home 
the notion of permanency and stability, wheSTTBecol 
nent home, there being no present fixed exp? 
it gfaTi y fnf.nrft fir^ e . near or remotgy thtf hom e then becomfea a 
domicil. 

— Xndeed it is too well settled for dispute that a person sui 
juris, who actually resides and has his home in a given State, is 
domiciled there, provided he has legally formed an intention to 
remain there permanently, or for an unlimited or indefinite 
period; * or, to put it somewhat differently, provided he has no 
present fixed intention of removing therefrom in the future.* 

§ 26. Domicil, the Constructive Permanent Home. — There 
are some cases in which the law will assume that a person has 
his home in a particular country, though the fact may be far 
otherwise, and even though the party may never have set foot 
upon its shores. In these instances a permanent home is 
implied by construction of law. 

These cases arise for the most part (though not always) where 
the person whose domicil is to be determined is non sui juris, 
and is therefore deemed legally incapable of forming an in- 
tention of permanent residence, or else where from the circum- 
stances of the case the law must presume a purpose to reside in 
a given country. One may thus be assigned a domicil in a 
State where he does not actually live. 

1 Otis V. Boston, 12 Gush. (Mass.) 44; Steer's Succession, 47 La. Ann. 
1551, 18 So. 503. 

^ Dicey, Confl. L. 80 et seq. 

8 Guier v. O'Daniel, 1 Binn. (Penn.) 349, note ; Dupuy v. "Wurtz, 53 N. Y. 
556 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Gilman v. Gil- 
man, 52 Me. 173, 83 Am. Dec. 502 ; Allgood v. Williams, 92 Ala. 551, 8 So. 
722 ; White v. Tennant, 31 W. Va. 790, 8 S. E. 596. 

< Putnam v. Johnson, 10 Mass. 488 ; Hallett v. Bassett, 100 Mass. 167 ; 
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Whitney v. Sherborn, 12 Allen 
(Mass.), Ill ; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502. The firat 
mode of expression is the more accurate. 

6 



66 DOMICIL, THE CONSTRUCTIVE HOME. § 26 

In assigning a constructive domicil, the law will weigh the 
circumstances of the case, the probabilities as to the party's 
regarding one or another place as his home, should he exercise 
a choice, and the duty he may be under to abide at a particular 
spot. From these data the law raises certain presumptions 
more or less strong. It should be noticed that it is the law 
that raises these presumptions, not the courts. Hence they are 
not so liable to change, with the slightly varying circumstances 
of each particular case, and are susceptible of being reduced to 
more or less stable rules. The courts have no other power than 
to decide the questions thus raised in accordance with the rules 
and presumptions fixed by the law. 

Thus, an infant is assigned the domicil of its parent, though 
it be born elsewhere and has never been within their domicil.^ 
Here the law conclusively presumes that the home of the child 
will be with its parents, without regard to the facts of a par- 
ticular case, and hence wherever their permanent home is his 
will be also. 

So, where a woman marries, the law regards her as identified 
with her husband, and recognizes a duty resting upon her to 
live with him. Hence the law presumes her proper home to be 
with him, and his domicil becomes hers upon the marriage. 
And thereafter throughout their married life her domicil 
changes with his, as a general rule, regardless of the actual 
facts in the case.'' 

The instances mentioned have been cases of persons non sui 
juris, but the principle of constructive domicil is not confined 
to them. Thus, if a full grown man should abandon his native 
country, intending never to return, his domicil is not thereby 
lost or changed. It is a well_settled[^rinciple_oJ[ law that a 
doinicil is rp/hajngj imt.i] a new one is acq uired, for no person 
can ever be without a domicil.' A new domicil, in the case of 
a person~swi^'Brw^"cairoTlly be acquired by actual residence in 
the new country, coupled with the intention to remain there per- 
manently.* HencC) until he actually takes up his abode else- 

1 Post, §§ 32, 36 et seq. » Post, §§ 46 et stq.. 

« Post, § 29. * Post, 5§ 56 et seq. 



§ 27 NO PERSON WITHOUT A DOMICIL. 67 

where aninio manendi^ he retains his former domicil. By 
construction of law he is presumed still to have his home in 
his original domicil, though he has turned his back upon 
his country for ever.' 

§ 27. Certain General Principles touching Domicil. — I. No 
Person without a Domicil. — There are four general principles 
relating to domicil which must be borne in mind throughout 
every discussion of this subject. With their aid, many problems 
otherwise difficult may be easily solved. 

The first of these may be thus stated : No natural person can 
ever be without a domicil} 

For the purpose of determining rights and liabilities, the 
courts of all civilized nations have formulated the rule that a 
person must always be held to have a domicil somewhere. He 
may be homeless in the ordinary and popular sense of the word, 
he may be a vagrant, but legally he will always be deemed to 
have his domicil in some country.^ 

Thus, in Shaw v. Shaw,' the facts were that Shaw and his 
wife, domiciled in Massachusetts, determined to remove to 
Colorado. They left Massachusetts, not expecting to return, 
and proceeded as far as Philadelphia. There they stopped tem- 
porarily, and during their stay there Shaw was so cruel to his 
wife that, in fear of her life, she left him and returned to Mas- 
sachusetts, where she applied for a divorce. Shaw never re- 
turned thither. Though fully recognizing the principle that 
a divorce should only be granted upon the application of one 
domiciled within the State,* the court granted the application. 

* See post, § 29. 

i Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177 ; Crawford v. 
Wilson, 4 Barb. (N. Y.) 505, 518 ; Dupuy ». Wurtz, 53 N. Y. 556 ; Desmare 
V. United States. 93 U. S. 605 ; Otis ». Boston, 12 Cush. (Mass.) 44 ; Shaw v. 
Shaw, 98 Mass. 158 ; AUgood v. Williams, 92 Ala. 551, 8 So. 722 ; Oilman 
V. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; Ayer v. Weeks, 65 N. H. 248, 
18 Atl. 1108 ; De La Montanya v. De La Montanya, 112 Gal. 101, 32 L. R. A. 
82, 53 Am. St. Rep. 165; Tipton v. Tipton, 87 Ky. 243, 8 S. W. 440; Whita 
t;. Tennant, 31 W. Va. 790, 8 S. E. 596. 

2 See Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142 ; Borland 
V. Boston, 132 Mass. 89, 42 Am. Rep. 424 ; Shaw v. Shaw, 98 Mass. 158. 

8 98 Mass. 158. * Post, § 50. 



68 ONLY ONE DOMICIL AT A TIME. § 28 

Neither the hushand nor wife had acquired a domicil elsewhere, 
and in the language of the court, " Every one must have a 
domicil somewhere." 

Indeed, the authorities go a step further and lay down the 
proposition that not only must a person always have a domicil 
somewhere, but he must further be deemed to be domiciled in 
some civilized State or at least in a State sufficiently civilized to 
possess a perfected system of law. Such will certainly be the 
rule in respect to persons who have once been citizens of a civil- 
ized country.' The reasons for this last qualification are quite 
evident. Not only is it generally true in cases where a citizen 
of a civilized community has exiled himself in this manner, 
that he does not intend to settle permanently in a barbarous 
country,^ but even should such an extraordinary intent domi- 
nate his mind, public policy and the safety of the individual 
alike require that he should be presumed not to have intended 
to surrender the protection and benefits secured by his home 
laws in exchange for the barbarous customs of the savages among 
whom he lives. 

§ 28. II. Only one Domicil at a Time. — The second of 
these principles may be thus stated: No natural person can 
have more than one domicil at a time} 

It is the settled doctrine both in England and America that 
one cannot have more than one domicil at the same time for the 

5 Thus there are numerous English cases in which citizens of England or 
Scotland have been held to retain their original domicils, though passing their 
lives in India or China. Dicey, Confl. L. 88, 149 ; Bruce v. Bruce, 2 B. & P. 
229 ; Jopp V. Wood, 4 DeG., J. & S. 616. 

8 Dicey, Confl. L. 733, 734. 

1 This is the form in which this proposition is usually stated, but it is sub- 
ject to a qualification. It is true that no one court or no one jurisdiction will 
consider a person domiciled in more than one place at a time. But it is quite 
possible that the court of one State may adjudge a person to be domiciled 
therein at a given time, while the court of another State, before whom the 
same question may be pending, may hold him to be domiciled in the second 
State at that time. Such a position has been asserted by the Massachusetts 
court in passing upon the domicil of an insane person under guardianship 
there, who takes up his abode in another State, where he is adjudged sane and 
capable of selecting his own domicil. Talbot v. Chamberlain, 149 Mass. 57i 
60, 3 L. R. A. 254. 



§ 28 ONLY ONE DOMICIL AT A TIME. 69 

same purpose.^ But it is sometimes said or intimated that a 
person may Have one domicil for one purpose, and, at the same 
time, other domicils for other purposes." These dicta (for they 
are nothing more) Mr. Dicey explains as being the result of con- 
fusion of thought with respect to the terms " domicil " and " resi- 
dence," domicil being used in these cases to designate different 
.kinds of residence. He maintains with great earnestness that 
no person can have more than one domicil at a time for any and 
all purposes, and in this he is supported by strong authority.* 
Indeed, it may be accepted as generally true that no natural 
person can have more than one domicil at one and the same 
time, even for different purposes, using the word " domicil " in 
its technical sense as importing not merely residence, but resi- 
dence for an unlimited period.* 

But to this general rule theieJa-QJie eYception, or at least an 
apparent^excepSon^ in jthe.xase_of -a- mairried woman^ suing in 

other State or country. In such case, notwithstanding the rule 
of law that the wife's domicil follows that of her husband, • and 
the other rule, no less authoritative, that a suit for divorce must 
be brought in the domicil of the complainant,'' it is now gen- 
erally admitted that a wife may acquire a domicil apart from 

2 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Otis v. Boston, 
12 Cush. (Mass.) 44; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108 ; Crawford 
V. Wilson, 4 Barb. (N. Y.) 505 ; Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood 
V. Williams, 92 Ala. 551, 8 So. 722; Oilman v. Oilman, 52 Me. 165, 83 Am. 
Dec. 502 ; In re Olson's Will, 63 la. 145, 18 N. W. 854 ; Somerville v. Somer- 
ville, 5 Ves. 750. 

» See Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood v. Williams, 92 Ala. 551, 
8 So. 722 ; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; De La Mon- 
tanya v. De La Montanya, 112 Cal. 101, 32 L. |R. A. 82, 85 ; White v. Ten- 
nant, 31 W. Va, 790, 8 S. E. 596 ; Abington v. N. Bridgewater, 23 Pick. 
(Mass.) 170, 177; Hallett r. Bassett, 100 Mass. 167; Greene r. Oreene, 11 
Pick. (Mass.) 409, 415. 

* Dicey, Confl, L. 96, 97; Story, Confl. L. § 45, note (a); Jac. Dom. 
§§ 91, 92. 

5 Jac. Dom. §§ 91, 92 ; Otis v. Boston, 12 Cush. (Mass.) 44 ; Price v. Price, 
156 Penn. St. 617, 27 Atl. 291 ; De La Montanya v. De La Montanya, 113 
CJal. 101, 32 L. R. A. 82, 85, 53 Am. St. Rep. 165. 

• Post. § 46. ' Post, § 50. 



70 DOMICIL KETAINED TILL ANOTHER GAINED. § 29 

her husband for the purpose of instituting a suit for divorce.' 
If she doea ^ot desire a divorcCj^ h^er domicil remains in general 
the same as her husband's, and ohangea with his. This principle 
appears to~give the wife one-dataicil for the purpose of divorce, 
and a different domicil (at the same time) for all other purposes. 
The incongruity of this result has even led one court to deny 
the well nigh universally admitted rule that jurisdiction of, 
divorce is governed by the domicil of the complainant, and not 
by his or her mere residence.^ 

But upon a close examination it will probably be found that 
there is little or no real incongruity here. After the wife has 
instituted the suit, if then a question should arise which would 
make it needful to fix her domicil for any purpose, she would 
probably be held to have acquired a domicil apart from her hus- 
band /or aZZ purposes. Until she sues for divorce she has but 
one domicil for any purpose, — that of her husband. After she 
institutes the suit in a foreign jurisdiction, she still has only 
one domicil for any purpose, — the one she has voluntarily 
chosen as the locality in which she wishes to obtain her 
divorce. 

—^ § 29. III. Domicil retained until another is acquired. — 
y^TYiQ third general principle relating to domicil is as follows: 
A domicil once acquired is retained until a new domicil is 
gained.^ 

This principle is but the logical and necessary consequence 
of the two preceding ones. K one can never be without a dom- 
icil, and can never have but one domicil at a time, it must fol- 

» Post, § 50. 

» De La Montanyai;. De La Montanya, 112 Cal, 101, 32 L. R. A. 82, 85, 
63 Am. St. Rep. 165. 

1 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Dupuy v. 
Wurtz, 53 N. Y. 556; Hallett v. Bassett, 100 Mass. 167; Borland v. Bos- 
ton, 132 Mass. 89, 42 Am. Rep. 424 ; Desmare v. United States, 93 U. S. 605; 
Mitchell V. United States, 21 WaU. 350 ; Shaw v. Shaw, 98 Mass. 158; AH- 
good V. Williams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156 Penn. St. 617, 
27 Atl. 291; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502 ; Williams v. 
Saunders, 5 Coldw. (Tenn.) 60 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916 ; 
Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144 ; Shephei-d 
V. Cassiday, 20 Tex. 24, 70 Am. Dec. 372, 373; Hart v. Lindsey, 17 N. H- 
J85, 43 Am. Dec. 597, 601, 602 ; Somerville v. Somerville, 5 Ves. 750. 



§ 29 DOMICIL EETAINBD TILL ANOTHER GAINED. 71 

low that a domicil once acquired will be retained until another 
is gained.' It is to be observed therefore that the abandonment 
of a domicil does not of itself destroy it, even when coupled 
with an intent to acquire a new one, but it continues until an- 
other is in fact gained.' 

Many examples of the application of these propositions might 
be adduced, but one or two will suffice to illustrate them. 

A person domiciled in Boston, Massachusetts, left that city in 
1876, with his family, to reside in Europe for an indefinite 
period, with the fixed purpose never to return to Boston, and to 
make some place other than Boston his residence when he should 
return. While in Europe, prior to May 1, 1877, he fixed upon 
a place of residence in another State, but remained in Europe 
until 1879. The question arose whether, as a domiciled citizen 
of Massachusets, he was liable to taxation there on his personal 
property, the taxes falling due May 1, 1877. It was held that 
he was still domiciled in Boston on that day.* 

In another case, a married woman left New York for Europe, 
with her husband, for her health, at first intending to return. 
But after her husband's death her physicians decided that she 
must not come back. She wrote letters to that effect, but still 
seemed to regard New York as her home. She lived in hotels 
and lodgings in Europe, but never set up any establishment 
there. She finally died, leaving a will of personalty valid 
under the laws of New York but invalid under the law of 
France, where the will was executed and where she died. It was 
decided that the validity of the will must be determined by 
the law of her domicil, and that she must be deemed to have 
retained her New York domicil until she acquired another, 
which she did not do.® 

2 White V. Tennant, 31 W. Va. 790, 8 S. E. 596 ; Ayer w. Weeks, 65 N. H. 
248, 18 Atl. 1108. 

8 Shaw V. Shaw, 98 Mass. 158 ; First Nat. Bank v. Balcom, 35 Conn. 351; 
In re Olson's Will, 63 la. 145, 18 N. W. 854 ; Hood's Estate, 21 Penn. St. 
106 ; Cooper v. Beers, 143 111. 25, 33 N. E. 61 ; Somerville v. Somervillfl^ 
5 Yes. 750. 

* Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424. 

» Dupuy V. Wurtz, 53 N. Y. 556. 



72 DOMICIL CHANGEABLE AT PLEASURE. § 30 

It is a corollary of these propositions that the legal presump- 
tion is in favor of the retention of a previous domicil, and the 
hurden of proof lies on him who asserts a change of domicil.* 
It should he noted however that a change of domicil from one 
country or State to another under the same general sovereignty, 
as from Scotland to England, or from one of the United States 
to another, is more easily inferred than a change to a foreign 
country, whose laws are strange and whose people are alien.'' 
,^y>y^ ,,■ § 30. IV. PerBons Sui Juris may change Domicil at 
^ Pleasure. — The fourth principle is : Every natural person, 
free and sui juris, may change his domicil at pleasure.^ 

This is the result of the personal liberty of locomotion, be- 
longing of right, and now generally accorded to every person 
not under disabilities and capable of controlling his own move- 
ments. It implies the exercise of choice or will, and hence the 
proposition is applicable only to that kind of domicil known as 
the domicil of choice.^ 

But persons who are not legally sui juris, such as infants, 
insane persons, or married women, or those who are incapable of 
exercising a choice as to their locality, such as persons impris- 
oned, invalids ordered to a particular place by their physicians, 
or other persons deprived of freedom of locomotion, cannot in 
general change their domicil at their own pleasure.' 

6 Desmare r. United States, 93 U. S. 605 ; Mitchell v. United States, 21 
Wall. 350; AUgood v. "Williams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156 
Penn. St 617, 27 Atl. 291 ; Hood's Estate, 21 Penn. St. 106 ; Dnpuy v. 
Wurtz, 53 N. Y. 556. 

7 Moorehouse v. Lord, 10 H. L. Cas. 286, 287 ; Whicker v. Hume, 7 H. L. 
Cas. 124 ; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 504; Dupuy ». 
Wurtz, 53 N. Y. 556. 

1 See Jac. Dom. §§ 98, 100; Udny v. Udny, L. R. 1 Sc. App. 441 ; Harral 
». Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17. 

" Post, §§ 56 et seq. 

' Particular instances of these incapacities will be considered hereafter. 
See post, §§ 57, 58. As to domicil of fugitive from justice, see Chitty v. Chitty, 
118 N. C. 647, 24 S. E. 617, 32 L. R. A. 394; Young i;. PoUak, 85 Ala. 439, 
5 So. 279. As to domicil of invalids, see Dicey, Confl. L. 143 ; Dupuy v. 
Wurtz, 53 N. Y. 556; Hegeman v. Fox, 31 Barb. (N. Y.) 475, As to domicil 
of exiles, see Ennis v. Smith, 14 How. 400. Of person rum compos mentis, 
see Harral v. Harral, 39 N. J. £q. 279, 51 Am. Rep. 17 ; Talbot r. Chamber* 



§ 31 DOMICIL OF OBIOIK. 78 

§ 31. Sereral Kinds of Domicil. — I. Domicil of Origin. — 

An individual's domicil may originate in three ways. It may 
be (1) A domicil of origin, or original domicil ; (2) A con- 
structive domicil, or domicil by operation of law ; or (3) A 
domicil of choice. Each of these various forms of domicil will 
be examined in detail. 

The domicil of origin is the place assigned by the law to 
every child as its permanent home or legal situs. It is assigned 
at the moment of birth, for no person can ever be without a 
domicil, and so one must be at once assigned him. Upon this 
account it has been sometimes termed the domicil of birth, ^ but 
the use of this term is liable to mislead, since it implies that 
one's domicil of origin is the place where he is born. In Bruce 
V. Bruce,' Lord Thurlow disapproves this idea, saying: "It is 
an enormous proposition that a person is to be held domiciled 
where he drew his first breath, without adding something more 
unequivocal." Indeed, so far is this from being universally 
true that it is well established that a domicil of origin may be 
assigned a child in a State or country he has never seen. The 
place of birth or the place of actual residence of the child is 
generally immaterial.' 

It must be observed that the domicil of origin is the first of 
all domicils in point of time, since it is assigned at the moment 
of the child's birth. Any domicil acquired after birth, however 
short or long the interval, cannot be a domicil of origin. It 
must be either a domicil by operation of law or a domicil of 
choice. It must also be remembered that no person can have 
more than one domicil at a time. Hence it is impossible for one 
to have more than one domicil of origin. No subsequent occur- 
rence, no combination of circumstances, can make that place a 

lain, 149 Mass. 57, 3 L. R. A. 254 ; Upton v. Northbridge, 15 Mass. 237 ; 
Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Sharpe r. Crispin, L. R. 1 P. & D. 
611 ; Bempde v. Johnstone, 3 Ves. Jr. 198. 

1 See Story, Confl. L. §§ 35, 46 ; Whart. Confl. L. § 35 ; Steer's Succession, 
47 La. Ann. 1551, 18 So. 583. 

2 2 Bos. &Pul. 229, 230. See Munro v. Munro, 7 CI. & F. 842 ; Somerrille 
». Somerville, 5 Ves. 750 ; Price v. Price, 156 Penn. St. 617, 27 Atl. 291. 

* Somerville v. Somerrille, 5 Ves. 750 ; Colbum -». Holland, 14 Sich. Eq. 
(S. C.) 176, 228 ; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. 



74 ORIGINAL DOMICIL OP LEGITIMATE CHILD. § 32 

child's domicil of origin which was not so when he was born. 
The original domicil may be altered by such a combination of 
circumstances, and the person may acquire a new domicil, but 
it will be either a constructive domicil or a domicil of choice. 

These conclusions seem irresistible, but authorities are found 
to hold that the domicil of origin may be affected by certain 
circumstances occurring after birth, such as the subsequent 
legitimation of a child born a bastard.* 

Since every newborn child must have a domicil somewhere, 
and since he is incapable of selecting one for himself, the law 
undertakes to ascertain it by well defined rules. To that end it 
sets apart as his domicil of origin that country which, under all 
the circumstances of the case, would be most naturally looked 
upon by him as his home, had he the power to express a prefer- 
ence.^ And since a domicil once acquired is retained until 
another is gained, it frequently happens that one retains his 
domicil of origin even after he has reached mature years.' 

The rules whereby to determine the domicil of origin depend 
upon various circumstances attending the party's birth, as 
whether he be born legitimate or illegitimate; if the former, 
whether the father be living or dead at the time of his birth ; 
or whether the child is a foundling, whose parents are unknown. 

§ 32, Original Domicil of Child born Legitimate. — If the 
father jA..ali ve a t t be-t^ina«-afJJae birth of a legitimate child, the 
infant has his domicil of origin in the couiitry where the father 
then had his domicil.* It is the~father^s highest duty to pro- 
vide a support and a home for his helpless and dependent off- 
spring,* and it is his privilege to have the care and custody of 

* Dicey, Confl. L. 104. See post, §§ 33, 34. 

» See Price v. Price, 156 Peun. St. 617, 27 Atl. 291. 

• Gaier v. O'Daniel, 1 Binn. (Penn.) 349, note; Crawford v. Wilson, 
4 Barb. (N. Y.) 505 ; Price v. Price, 156 Penn. St. 617, 27 Atl. 291 ; Firth v. 
Firth, 60 N. J. Eq. 137, 24 Atl. 916; In re Steer, 3 H. & N. 594. 

1 Gaier v. O'Daniel, 1 Binn. (Penn.) 349, note; School Directors v. James, 
2 W. 4 S. (Penn.) 568, 37 Am. Dec. 525; Hiestand v. Kuns, 8 Blackf. (Ind.) 
845, 46 Am. Dec. 481 ; Somerville v. Somerville, 5 Ves. 750 ; Sharpe v. Cris« 
pin, L. B. 1 P. & D. 611; Whart. Confl. L. § 35; Story, Confl. L. § 46. 

« See Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Van Matre v. Sankey, 
148 111. 356, 36 N. E. 628; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. 



§ 33 ORIGINAL DOMICIL OP BASTARD. 76 

the child's person and education. To no other person has the 
child the same right to look for these things; and if the infant 
itself had the discretion to express a preference, it would most 
probably choose as its home that of its father. The probabilities 
are in favor of that being the child's permanent home rather 
than any other place. Hence the law, basing a general rule 
upon conrenience and the probabilities of the case, has fixed 
upon this as the infant's domicil of origin. 

If the father is dead when the child is born, he receives as 
his original domicil that of his mother at that time. In the 
absence of the father, his natural protector, the infant must look 
to the mother for a home, and for all the guardian care that 
childhood requires.' 

§ 33. Origined Domicil of a Bastard — Of Legitimated Child. 
— The law does not in general fix upon any particular man as 
the father of a bastard, because of the uncertainty in ascertain- 
ing him. The bastard is filius nullius. But there is no more 
difficulty in ascertaining who is the mother of a bastard than of 
a legitimate child, though the common law thought otherwise. 
And since, in most cases, the care and support of an illegitimate 
child devolves upon the mother, the law justly infers that the 
probabilities in every case are greatly in favor of the bastard's 
living with his mother rather than with the father, even if the 
latter is known. 

Hence the general rule-o£-IagJ g that a bastard^a- domio i-l of ^ 
origin is the domicil of the mother at the moment of his birth.* 

Upon principle, it would seem that no circumstance super- 
vening after the bastard's birth should make his domicil of 
origin other than that of the mother at that time, though such 
a circumstance might confer upon him a new domicil by opera- 
tion of law. Thus, the subsequent acknowledgment by the 
father, or his intermarriage with the mother, which by the law 
of many countries renders the bastard legitimate, may, as we 

8 See Jac. Dom. § 105; Dicey, Confl. L. 103; Van Matre v. Sankey, 148 
111. 356, 36 N. E. 628 ; Mears v. Sinclair, 1 W. Va. 185. 

1 Dicey, Confl. L. 103 ; Wright's Trusts, 2 K. & J. 595, 25 L.J. (Ch.) 621; 
Udny V. Udny, L. R. 1 Sc. App. 441; Blythe t>. Ayres, 96 Cal. 532, 31 Pac. 
915, 19 L. R. A. 40. 



76 ORIGINAL DOMICIL OF BASTARD. § 33 

shall presently see, cause the infant's domicil thereafter to be 
governed by that of the father.* But the bastard's domicil in 
such case would cease to be the domicil of origin, and would 
become a constructive domicil. His ^rst-and -oxigiaal domicil 
was ihatx)! the mother, and hence when he afterwards acquires 
the domicil of ihe fatherT^-xeaaoiLQl tha legitimation, it cannot 
be referred back to the time of his birth, even though the legiti- 
mation itself he^referred to that datg. The domicil of origin is 
assigned at the moment of birth; whatever is then the condition 
of the child will determine the locality of that domicil. If he 
be then illegitimate, and the mother's domicil is once assigned 
him legally as his domicil of origin, no other domicil of origin 
can be assigned him. That would be to give him two domicils 
at the same time." 

It must be admitted however that t^ere are authorities other- 
wise.* For example, so able and accurate a commentator upon 
the Conflict of Laws as Mr. Dicey states the rule to be that one 
born a bastard but afterwards legitimated stands (after legiti- 
mation) in the position he would have occupied if he had been 
born legitimate, and that his domicil of origin is therefore the 
country where his father was domiciled at the time of the bas- 
tard's birth (not at the time of his legitimation). But he admits 
that this opinion is open to doubt.* This view seems to be based 
upon the theory that the act legitimating the 'bastard (such 
as an intermarriage of the parents) is to be referred to the time 
of conception or of birth, thus causing the conception or birth to 
take place, by relation^ in wedlock. Even if this theory is ad- 
mitted, it does not materially weaken the force of the reasoning 
above adduced against the proposition, and would be of no ap- 
plication at all in those cases where the legitimation arises 
from some other source than a subsequent intermarriage of the 
parents, such as the mere acknowledgment of the father, which 
suffices in some States.' 

a Post, § 43 ; Dicey, Confl. L. 104 ; Whart. Confl. L. § 38. 
« See Jac. Dom. § 30. 

* Dicey, Confl. L. 104. See Munro v. Munro, 7 CI. & F. 817. 
« Dicey, Confl. L. 104. 

« See Blythe v. Ayres, 96 Cal. 352, 31 Pac. 915, 19 L. R. A 40 ; Ires a 
McNicoU, 59 Ohio St. 402, 43 L. R. A. 772. 



§ 34 ORIGINAL DOMICIL OP FOUNDLING. 77 

§ 34. Original Domicil of a Foundling — Of an Adopted 
Child. — A foundlifig^domijciI_of-^»igiH--ift-thacouiitry where 
he ifipfound.* The principle applicable here is not different from 
that applied in other cases of original domicil. But there is 
here an element of uncertainty not arising under other circum- 
stances, — an uncertainty as to the locality of the parents' domi- 
cil. In other cases this quantity in the equation is known. 
Here the parents themselves are not ascertained, much less their 
domiciL 

The law therefore in such cases must not only raise the pre- 
sumption, as in the case of other new-born infants, that they 
will have their permanent home in the domicil of their parents, 
but it must make a further presumption as to the locality of that 
domicil. The law will assume that the parents' domicil is in 
the country where the child is found, in the absence of evidence 
to the contrary, upon the principle that where no domicil is 
shown to exist elsewhere, mere presence in a country sufi&ces to 
establish a, prima facie domicil there.* 

It is to be observed that the two presumptions above referred to 
differ in this respect. The presum^ptiott^fchat-the-^omiciljjf. the 
parents is in the country where the foundling_is_.dise»veped-. is 
merely a presumpfibn oTj^ac^, rebuttaiJjle- by evidence to the 
contrwry^; while the other jjresiimption — that a child has as his J 
domicil of origin the domicil of his parents at tte tinre-^Lhis 
birth — is a conclusive presumption of law whieh-«»mnjt' be 
rebutted in a particular case. 

Hence, if it is afterwards discovered that the parents' domicil 
at the birth of the foundling was in reality in some other coun- 
try than that wherein he is found, his domicil of origin is at 
once transferred thither, and the latter place will thenceforth be 
considered his domicil of origin.' This last conclusion is not in 
conflict with the principle that no one can have more than one 
domicil of origin. The law, in this case, merely acknowledges 
itself mistaken in assuming that the parents were domiciled in 

1 Dicey, Confl. L. 103, 132; Whart. Confl. L. § 39. See Washington « 
Beaver, 3 W. & S. (Penn.) 548, 549. 
3 Post, § 64 ; Dicey, Confl. L. 132. 
» See Washington v. Beaver, 3 W. & S. (Penn.) 548, 549. 



78 CONSTRUCTIVE DOMICIL. § 35 

the country where the child is found, and corrects its mistake. 
This is a very different case from that of the legitimated hastard 
adverted to in the preceding section. 

Where a child has heen adopted by persons, not his natural 
parents, it is evident that the adoption, like the subsequent 
legitimation of a bastard, being a circumstance supervening 
after his birth, cannot confer upon him any other original 
domicil than the one he already has. 

§ 35. II. Constructive Domicil, arising by Operation of 
Itaw. — The domiciLjof origin, it will_be rememberedj is as- 
signed at the very moment of birth, and is retained until an- 
other is acquired. Such new domicil may be acquired in two 
ways. The individual, having reached maturity and being free 
from all disabilities, may choose a new home for himself. This 
is a domicil of choice. But it often becomes necessary for the 
law to assign a new domicil other than that of origin to infants 
and other persons incapacitated from selecting their own homes. 

Thus, a child's domicil of origin is the domicil of the father 
at the moment of its birth. But the father may change his 
domicil to another State or country. The same reasons which 
induce the law to make the father's former domicil the child's 
domicil of origin operate to alter the child's domicil with that 
of the father. And so it is with disabilities other than infancy, 
such as those of a married woman or an idiot. 

Such domicil, being assigned by the law, is said to arise by 
construction or operation of law. As in the case of the original 
domicil, the determination of the constructive domicil is based 
upon legal presumptions, which however are so strong as to be 
in the main conclusive and incontrovertible. Indeed the domicil 
of origin itself is only one instance of constructive domicil, though 
generally treated separately because of its peculiar importance 
and influence. 

There are two main points of difference between a domicil of 
origin and a constructive domicil. 

The first is that the domicil of origin is assigned to infants at 
the moment of birth, while a constructive domicil is always as- 
signed after birth, and may be given to others under disabilities 
as well as to infants. 



§ 36 DOMICIL OF INFANT — LEGITIMATE. 79 

The second difference is to be found in the weight sometimes 
attached to the domicil of origin in ascertaining the domicil of 
choice in doubtful cases. It is expressed by the maxim : The 
domicil of origin is less easily abandoned and more easily re- 
verts} This is simply a rule of evidence and means that it will 
take more convincing proof to show that one has abandoned his 
original domicil for a new one than to show that he has aban- 
doned one later domicil for another; and on the other hand, it 
will require less evidence to prove a resumption of the domicil 
of origin (upon the abandonment of some later domicil) than to 
prove the acquisition of an entirely new domicil.* 

There are a number of instances of constructive domicil, the 
most important of which, those of infants, married women, and 
insane persons, will now be examined. 

§ 36. Constructive Domicil of Infant — Legitimate Child. — 
Infants, not having arrived at years of discretion, are incapable 
in law of exercising that voluntary and discreet choice in regard 
to their permanent abode which is essential to the acquisition 
of a domicil of choice.^ 

Furthermore, it being ordinarily true in fact that an infant 
occupies the home of his parents and is under their fostering 
care and protection, until he is himself able to battle with the 
world, the law substitutes the general presumption that such is 
the case in the place of particular evidence in each case as it 
arises. We have already noted the application of this rule in 
ascertaining the domicil of origin. The same principles will 
in general apply to any subsequent change of domicil during 

1 Jac. Dom. §§ 110, 115 et seq. ; Ennis v. Smith, 14 How. 400 ; Hallett 
V. Bassett, 100 Mass. 167 ; Otis r. Boston, 12 Gush. (Mass.) 44 ; Harvard 
College V. Gore, 5 Pick. (Mass.) 370 ; Oilman v. Oilman, 52 Me. 165, 83 Am. 
Dec. 502 ; Somerville v. Somerville, 5 Ves. 750 ; Douglas v. Douglas, L. R. 
12 Eq. 617. See Steer's Succession, 47 La. Ann. 1551, 18 So. 503 ; post, 
§§ 65, 66. 

* This last proposition is discoased, and in some measure dissented from, 
post, §§ 65, 66. 

1 Jac. Dom. § 229 ; Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Price 
V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Lamar v. Micou, 112 U". S. 452 ; 
Allgood V. WiUiams, 92 Ala. 551, 8 Sov 722 ; Mears v. Sinclair, 1 W. Va. 185 ; 
Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. 



80 infant's domioil — fatheb alive. § 37 

the child's minority; and in the main similar distinctions are 
to be taken. 

The domicil of a legitimate child may be brought into ques- 
tion under various circumstances. The child's father may be 
living; or he may be dead, the mother surviving; or both may 
be dead; or they may be divorced. 

§ 37. Domicil of Legitimate Child — Father Alive. — It is 
a well establis hed ru le that the domicil of an infant will usually 
change wijh that of the father, so long aa he lives.* It will in 
general make no difference in the application of this principle 
that the father and mother actually reside apart in different 
States or countries, or that in fact the child lives with its 
mother.' 

The reason for this presumption of law is not only that in the 
rast majority of cases the child actually has the home of his 
father, but it may be placed upon the broader ground of the 
established legal right of the father, as the natural guardian 
of the child, to the custody of his person against all the world, 
— even against the mother, — and his corresponding duty to 
afford it home and shelter.' 

It is said that possibly the father's abandonment of his family 
and the emancipation of the child will constitute exceptions to 
this rule.* And if the parents should have been divorced, under 

1 Dicey, Confl. L. 120 ; Jac. Dom. § 235 ; Story, Confl. L. § 46 ; Whart. 
Confl. L. § 41 ; Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Lamar v. Micou, 112 
U. S. 452; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 
525 ; Van Matre v. Sankey, 148 III. 356, 36 N. E. 628 ; Hears v. Sinclair, 
1 W. Va. 185 ; Dresser v. Illuminating Co., 49 Fed. 257 ; Hiestand v. Runs, 
8 Blackf. (Ind.) 345, 46 Am. Dec. 481 ; Woodward v. Woodward, 87 Tenn. 
644, 11 S. W. 892, 896 ; Kline v. Kline, 57 la. 386, 10 N. W. 825, 826. 

2 See Jac. D«m. § 236 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ; Kelsey 
». Green, 69 Conn. 291, 37 Atl. 679. 

» Allgood V. Williams, 92 Ala. 551, 8 So. 722. See Lamar v. Micou, 114 
TJ. S. 214. " The nurture and education of the offspring make it indispensable 
that they be brought up in the bosom of their parents' family ; without which 
the father could not perform the duties he owes them, or receive from them the 
service that belongs to him." School Directors r. James, 2 W. & S. (Penn.) 
568, 37 Am. Dec. 525, 527. 

* Jac. Dom. f § 231-237 ; Allgood v. Williams, 92 Ala. 551, 8 So. 7J2. See 
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628. 



§ 37 infant's domicil — father alive. 81 

such circumstances of misconduct on the part of the husband 
that the divorcing court has taken the children from his custody 
and has turned them over to the mother, thenceforward, provided 
the court has jurisdiction to make the decree, the domicil of the 
children will usually be held to depend upon that of the mother, 
since she then has the legal custody of them. The father has 
ceased to be the natural guardian, and the foundations upon 
which this rule of domicil is based are shattered.' 

Although it is ordinarily competent for the father to change 
his child's domicil at any time hy changing his own, it is not 
as a general rule within his power to give the child a domicil 
apart from his own.^ 

Thus, in Allgood «. Williams,' it appeared that the father of 
an infant, a few weeks before his death, requested his brother 
to take the child and raise her. The uncle lived in a different 
county from the father but in the same State. The question 
arose as to which county was the legal residence of the child 
after the father's death. It was held that the child's municipal 
domicil remained in the county where the father had lived, and 
was not transferred to the home of her uncle. 

In De Jarnett v. Harper,* the parent, residing in Missouri, 
actually entrusted the custody of the infant child, before death, 
to a person in another county in the same State. It was held 
that that fact did not change the minor's domicil for the pur- 
pose of determining in which county a guardian should be 
appointed on the parent's death. 

But though a father will not generallyJbe_permittedto change 
his child's dom icITsave in so far as he changes his own, there" 

' The same result would seem to follow without a divorce if the husband's 
conduct has been such as to make it necessary to withdraw from him the 
custody of his children. Jac. Dom. § 237. See Kelsey v. Green, 69 Conn. 
291, 37 Atl. 679. 

« Jac. Dom. §§ 237, 241 ; Dicey, Confl. L. 143 ; "Woodward v. Woodward, 
87 Tenn. 644, 11 S. W. 892 ; Allgood v. WiUiams, 92 Ala. 551, 8 So. 722 ; 
De Jamett v. Harper, 45 Mo. App. 415. These two latter cases refer to municu 
pal domicil, but a fortiori the same principle would govern national or quasi' 
national domicil. But see White t>. Howard, 52 Barb. (N. Y.) 294, 318. 

1 92 Ala. 551, 8 So. 722. 

« 45 Mo. App. 415. 

6 



82 DOMICIL OP FATHERLESS INFANT. § 38 

are qualifications of t he rule that deserve attention. If the 
father should^x_the, child'a jesidence apart from his own, with 
the intentioiLflf^JfilBa^eStlyjrfiaQjjncing^o^^ over its actions, 
and surrendering to competent persons his legal right to the cus- 
tody of its "person an drthe'caFe""oF~Tfs~education, this might, in 
some cases, effect a change in the child's domicil . ' Thus if the 
father should Isind the child out as apprentice, the latter's dom- 
icil, it is believed, will then become that of the master, and will 
change with his, even into anothw SfeM of country, if such a 
change is within the scope of^ the contract of apprenticeship. 
Here not only the actual physical custody, but the legal custody 
also, has been renounced by the parent.^" 

The same is true if the father surrenderajfehe child to a third 
person for adoption, at least where the relation of child by adop- 
tion is legally recognized.^^ 

§38. Same — Father Dead, Mother Surviving. — It is a 
general principle of the law that, after the father's death, the 
mother succeeds to his position as the natural guardian of the 
infant children, so long as she remains unmarried and is fit for 
the trust. There is a strong moral, if not a strictly legal, duty 
resting upon her to provide them a home, as in fact she usually 
will. For these reasons the rule seems now well established 
that the domicil of the fatherless infant will change with that 
of the mother, at least so long as she remains unmarried.* 

» Jac. Dom. §§ 246, 247, 248; Maddox v. State, 32 Ind. 14 ; Ross v. Ross, 
129 Mass. 243, 37 Am. Rep. 321; In re Johnson, 87 la. 130, 54 N. W. 69 ; 
Washburn v. White, 140 Mass. 568. 

1° See Maddox v. State, 32 Ind. 14, which however is a case of monicipal 
domicil, involving the right to vote. 

" Jac. Dom. §§ 247, 248; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; 
Washburn v. White, 140 Mass. 568 ; Woodward v. Woodward, 87 Tenn. 644, 
11 S. W. 892 ; In re Johnson, 87 la. 130, 54 N. W. 69 ; Foley's Estate, 11 
Phila. 47. If the adoption is not a legal status, it is doubtful, to say the 
least, whether the same result would follow. See Allgood v. Williams, 92 Ala. 
551, 8 So. 722 ; De Jamett v. Harper, 45 Mo. App. 415. But see Lamar v. 
Micou, 114 U. S. 452. 

1 Jac. Dom. §§ 238, 241 ; Dicey, Confl. L. 121; Whart. Confl. L. § 41 ; 
Story, Confl. L. § 46, note (c); Potinger r. Wightman, 3 Meriv. 67; Johnstone 
V. Beattie, 10 CI. & F. 42, 138; Sharpe v. Crispin, L. R. 1 P.& D. 611 ; 
Lamar v. Micou, 112 U. S. 452; Van Matre v. Sankey, 148 111. 356, 36 N. E. 



§ 38 DOMICIL OF FATHERLESS INFANT. 83 

Some question has been made whether this principle applies 
in cases where the child fails to actually accompany the mother 
to a new home, remaining apart from her in his old place of 
abode. Some of the authorities hold that, under such circum- 
stances, the child's domicil does not follow the mother's.* But 
the better view, and the most reasonable, is that the power of 
the widowed mother with respect to the infant's domicil is the 
same as that of the father, were he alive.' 

It is sometimes said that the widowed mother may change the 
domicil of her child with hers, if she act without fraudulent in- 
tent to thereby alter the rule of succession to the child's person- 
alty (which depends upon the law of the domicil). It may well 
be doubted whether this is a proper qualification of the rule.* 

628; Woodward v. Woodward, 87 Tenn. 644; 11 S. W. 892 ; Mears v. Sin- 
clair, 1 W, Va. 185 ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. 
Dec. 55, 57, note ; Succession of Lewis, 10 La. Ann. 789, 63 Am. Dec. 600, 
601, 602; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 
625; Freetown v. Taunton, 16 Mass. 52; Dedham v. Natick, 16 Mass. 135. 
In De Jarnett v. Harper, 45 Mo. App. 415, it was held that the domicil of a 
widowed mother, even though she had been adjudged a lunatic, fixes the 
municipal domicil of her child, and determines the jurisdiction of the court 
to appoint a guardian. The incompetence or unfitness of the mother as a 
guardian, says the court in that case, can only be tried by the court of the 
county where she is domiciled. 

2 See Jac. Dom. § 241 ; Dicey, Confl. L. 122-123. 

8 Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar v. Micou, 112 U. S. 452; 
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Woodward v. Woodward, 
87 Tenn. 644, 11 S. W. 892 ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 
54 Am. Dec. 55, 57, note ; Mears v. Sinclair, 1 W. Va. 185 ; Succession of 
Lewis, 10 La. Ann. 789, 63 Am. Dec. 600, 601-602 ; School Directors v. James, 
2 W. & S. (Penn.) 568, 570, 37 Am. Dec. 525; Dedham v. Natick, 16 Mass. 
135. 

* Dicey, Confl. L. 126, 127; Potinger v. Wightman, 3 Mertv. 67 ; School 
Directors v. James, 2 W. & S. (Penn.) 568, 569, 37 Am. Dec. 525, 526; 
Wheeler v. HoUis, 19 Tex. 522, 70 Am. Dec. 363, 365. No reason can be 
urged why this qualification should be attached in the case of the mother, 
which would not apply with equal force to the father. Yet it is never applied 
to restrict the father's power to change the child's domicil. Mr. Jacobs argues 
against it with force. He says: " Suppose that for the purpose of affecting 
the personal succession, a mother carries with her her infant child into another 
State or a foreign country, and the child, instead of dying there, should live 
Wid grow up to maturity. Can it be doubted that his general legal capacity 



84 EFFECT OF REMABRIAGE OF THE MOTHER. § 39 

§ 39. Effect of Remarriage of the Mother. — A woman, upon 
marriage, generally ceases to have the power to choose her own 
domicil. The law fixes it, independently of her volition, as 
that of her hushand, whether she actually resides with him or 
at his domicil or elsewhere. She becomes a part of her hus- 
band's family and thereby ceases to be the head of her own.* 

Since therefore her domicil becomes subordinate to her hus- 
band's, and since he owes no legal duty to provide the step- 
children with a home, some of the authorities hold that the 
domicil of the wife's minor children, from the time of her re- 
marriage, ceases to follow any further change of domicil by the 
stepfather and his wife, but remains where it was at the time 
of the mother's second marriage, until she again becomes dis- 
covert, or until the children arrive at maturity and select 
domicils of their own.*^ 

Othe.r_au thorities se em to hold that the question turns upon 
whether Jhe cYni AactiLally c hangea. its -residence to the domicil 
of the stepfather^ jf j after her jcemairiage, the infant actually 
lives with the mothe r^js-Jihe stjftpfathftr'a home, then that be- 
comes his domicil. Otherwije^ the child retains the former 
domicil.* 

would be determined by the laws of the new place ? Can it be doubted that 
his personal property would be taxable there «... It seems therefore more 
logical to hold that while courts would interpose to defeat the fraudulent de- 
sign with which a parent had attempted to change the domicil of his or her 
infant child, they would not do so upon the ground that the change of domicil 
had not been accomplished, but rather upon the ground that, in the particular 
case, the usual legal eflfect could not be given to the change of domicil, so as 
to assist in the i)erpetration of the fraud." Jac. Dom. § 243. But see Mears 
V. Sinclair, 1 W. Va. 185. 

1 Post, § 46; School Directors v. James, 2 W. & S. (Penu.) 568, 569, 
37 Am. Dec. 525, 526 ; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. 
Dec. 55, 57 ; Lamar v. Micou, 112 U. S. 452. 

2 Jac. Dom. § 244; Dicey, Confl, L. 125, 126; Lamar v. Micou, 112 
U. S. 452; "Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896 ; Allen 
». Thomason, 11 Humph. (Tenn.) 536, 64 Am. Dec. 55, 57 ; School Directors 
V. James, 2 W. & S. (Penn.) 568, 569, 87 Am. Dec. 525, 526 ; Mears v. Sin- 
clair, 1 W. Va. 185; Freetown v. Taunton, 16 Mass. 52; Brown v. Lynch, 
2 Bradf. (N. Y.) 214. 

* See Blythe v. Ayres, 96 CaL 532, 31 Pac. 915, 919 ; Succession of Lewis, 



§ 40 CONSTBtrCTIVB DOMICIL OP ORPHAK. 85 

The second view is more consonant with reason. It must be 
admitted that thT'fiKt' doctrine leaves out of consideration the 
strong moral duty resting upon the mother to provide her infant 
children with a home, as well as other necessaries — a duty 
which rests upon her no less strongly after her remarriage than 
during her widowhood. It moreover disregards the usual trend 
of events in such cases, and instead of assuming to be true what 
is true in most cases, as in other instances of constructive 
domicil, it assumes to be true what in most cases is known to 
be false. For though in law the widowed mother ceases proba- 
bly upon her remarriage to be the natural guardian of her infant 
children, and to be as such entitled to the care and custody of 
their persons, in fact it is otherwise in the vast majority of 
eases. Indeed the last doubt as to the fact must be dismissed 
»yhen we suppose the children actually to reside with their 
toother and her husband.* 

§ 40. Constrnctive Domicil of Orphan. — ITpoB ^he pri nciple 
that a domicil once ac quir ed is^ retained until another is gained, 
the settled rule is that a minor^ both_ofjwhose_parents^ are-dead, 
will retajBTjlie last domicil -of ih^Jas^tjauDdvin^pjarent, until It 
is legally changed. This^clMuige the ^infant cannot himseH 
make nniiX^j^hg^omoa-SuiJuris. The law fixes his domicil for 
him during his minority, regardless of the place of his actual 
abode.^ 

But although the authorities are agreed that an orphaned in- 
fant cannot by his own act change his domicil, they are much 
dividied upon the question as to the power of his guardian in 

10 La. Ann. 789, 63 Am. Dec. 600, 601-602 ; Wheeler ». Hollis, 19 Tex. 522, 
70 Am. Dec. 363, 367 ; Brown v. Lynch, 2 Bradf. (N. Y.) 214. In Suoces- 
eion of Lewis, supra, the mother had been appointed the guardian of her child. 
In Wheeler v. Hollis, supra, the stepfather had been appointed the child's 
guardian. 

* See Story, Confl. L. § 46, note (c); Wheeler v. Hollis, 19 Tex. 52J, 
70 Am. Dec. 363, 367 ; Blythe v. Ayres, 96 Gal. 532, 31 Pac. 915, 919, 19 
L. R. A. 40 ; Dalhousie v. M'Douall, 7 CI. 4 F. 817. 

1 Van Matre ». Sankey, 148 111. 356, 36 N. E. 628 ; School Directors v. 
James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, 527. See I^mar v. Micou, 
112 U. S. 452 ; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896 
Holyoke r. Haskins. 5 Pick. (Mass.) 20, 25-26, 16 Am. Dec. 371 



86 C50NSTRUCTIVB DOMICIL OF ORPHAN. § 40 

this respect.* The examination of this point will lead us to 
review briefly the several kinds of guardians and their rights 
and duties, and then to consider especially the guardian's power 
with reference to the ward's domicil. 

The law admits two general classes of guardians, those hav- 
ing the custody and care of the ward's 'person and those having 
the custody of his estate. The first class was known to the 
Roman law as tutors, the second as curators. Under the modi- 
fied system of the common law, as it exists generally in England 
and the United States, there are three main classes of guardians : 
the guardian by nature, or natural guardian ; the guardian by 
appointment of court, or the appointed guardian ; and the tes- 
tamentary guardian. 

1. The guardian by nature has char ge o f the ward's person 
onli/y and the care of his education. The father is primarily 
the natural guardian of a legititnate child, or if he be dead, the 
mother, so long as she remains unmarried and is fit for the 
trust. If the child is illegitimate, the case is like that of a 
legitimate child whose father is dead; the mother is the natural 
guardian. If both parents be dead, then it seems, according to 
the common law, that any lineal ancestor of the minor to whom 
he is heir may be the natural guardian. The father has the 
first claim; the mother the second; and amongst more remote 
ancestors, such as grandparents, etc., he who first obtains pos- 
session of the infant, pursuant to the maxim, in cequali jure, 
melior est conditio possidentis.^ 

2. The guardianship by appointment embraces both the care 
of the person and of the property of the ward. But it applies 
to the ward's person only in the event that there is no natural 
guardian.* It must be observed that the appointed guardian, 

2 See Jac. Dom. §§ 249 at seq. ; Whart. Confl. L. §§ 41, 42 ; Dicey, Confl. 
L. 123. 

8 Jac. Dom. § 245 ; 1 Minor's Insts. (4th ed.) 452 ; 1 Bl, Com. 461 ; 
Lamar v. Micou, 114 U. S. 218 ; Darden v. Wyatt, 15 Ga. 414. But Bee 
Marheineke r. Grothaus, 72 Mo. 204. 

* See 1 Minor's Insts. (4th ed. ) 456-457 ; Wood v. Wood, 5 Pai. Ch. (N. Y.) 
596, 28 Am. Dec. 451. Bat see Townsend v. Kendall, 4 Minn. 412, 77 Am. 
Dec. 534. 



§ 41 POWEB OF GUABDIAN TO ALTBB DOMICIL. 87 

even wbere there is no guardian by nature, has not the same 
ties of affection and influence to draw the ward to him as has 
the natural guardian, nor has he the same control over him iu 
fact.' 

3. Te$tamentary guardians are statutory guardians, depend- 
ing for their authority upon the statutes of the various states. 
They are usually given control of the person and property of 
the ward. But, like an appointed guardian, a testamentary 
guardian does not supersede the natural guardian in the custody 
of the child's person, or the care of his education. Nor can he, 
in the nature of things, possess the same control over the ward 
that the parents would have. 

In conclusion, it is proper to observe that, independently of 
statute, these guardianships terminate, as to male wards at 
twenty-one, and as to female wards at twenty-one or marriage.* 
Even as to male wards, the common law seems to hold that mar- 
riage emancipates the person, but still leaves the property of 
the ward under the control of the guardian.' 

§ 41. Power of Guardian to alter Ward's Domicil. — From 
the brief summary, just given, of the various guardians, and 
remembering the principle that the law, in establishing a con- 
structire domicil, looks to the actual probabilities of the case 
and the presumed choice of the incompetent party, as well 
as to the legal right to the custody and control of the ward, 
some deductions may be drawn of importance in the solution 
of the question, how far a guardian may influence the ward's 
domicil. 

With respect to the natural y Marc?ta?i,_uaitfid aa Jie iaJiathe 
infant by ties x>i parental love^and obligation on the one hand, 
and filial dependence^ Respect, and duty on the^ other, Itf is 
not difficu lt to u nder stand th at all the presumptions of fact, as 
well as of law, are in favor^of -the ^B©ral3ile!Ihat thelffliinbr^s 
domicil will be with the^pareiii wherever he is, and will change 
with^Eis. "TheTnfjuit is an integral part of his family. An4 

6 See Jac. Dom. |§ 251 et seq. 
6 Charlestown v. Boston, 13 Mass. 468, 472. 

' 1 Minor's Insts. (4th ed.) 464. See Com. v. Graham, 157 Mass. 78, 75" 
Washington v. Beaver, 3 W. & S. (Penn.) 548. 549. 



88 POWEB OF GUARDIAN TO ALTEB DOMICIL. § 41 

such is the general rule, not only where the natural guardian 
is the father or the mother,* but even in case of the grand- 
parent also, at least where the infant actually resides with him.' 
Hence, in the further consideration of this much vexed question 
we may eliminate from the discussion the right of the natural 
guardian to change the minor's domicil and confine our atten- 
tion to the powers of the appointed and testamentary guardians 
in this respect, where there is no natural guardian. 

Upon the rights of such guardians to change the ward's 
domicil during his minority there has been great division of 
opinion. Some courts have held that these guardians take in 
law the place of the parents of the infant, and succeed to all the 
powers of the parents — amongst others, that of changing his 
domicil.' 

Others have held with equal positiveness that the guardian's 
intentions or acts have no effect whatever upon the ward's 
domicil, which remains fixed where it was at the death of his 
last surviving parent or natural guardian.* 

Some of the cases have made a distinction in this respect 
between testamentary guardians and those appointed by court, 

1 Ante, §§ 37, 38. 

» Lamar v. Micou, 114 U. S. 218 ; Darden v. Wyatt, 15 Ga. 414 ; Kirkland 
V. Whately, 4 Allen (Mass.), 462 ; Dresser v. Illuminating Co., 49 Fed. 257 ; 
Jac. Dom. § 245. But see Woodward v. Woodward, 87 Tenn. 644, 11 S. W, 
892. 

• Townsend v. Kendall, 4 Minn. 412, 77 Am, Dec. 534, 536 ; Wheeler v. 
Hollis, 19 Tex. 522, 70 Am. Dec. 363, 365 ; Wood r. Wood, 5 Pal. Ch. (N, Y.) 
596, 28 Am. Dec. 451 ; White v. Howard, 52 Barb. (N. Y.) 294, 318 ; Wood- 
worth V. Spring, 4 Allen (Mass.), 321. See Lamar v. Micou, 112 IT. S. 452 ; 
Talbot V. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254. These 
cases relate to national or quasi-national domicil. Other decisions hold that 
the guardian is permitted to change the municipal domicil of the ward. 
See Mills ». HopkinsviUe (Ky.), 11 S. W. 776 ; Kirkland v. Whately, 
4 Allen (Mass.), 462 ; Holyokev. HasMns, 5 Pick. (Mass.) 20, 25-26, 16 Am. 
Dec. 372. 

* Woodward ». Woodward, 87 Tenn. 644, 11 S. W. 892, 896 ; Mears v. 
Sinclair, 1 W. Va. 185 ; Daniel v. HUl, 52 Ala. 430 ; Hiestand v. Kuns, 
8 Blackf. (Ind.) 345, 48 Am. Dec. 481. See Lamar v. Micou, 112 U. S. 452. 
As to municipal domicil, see School Directors v. James, 2 W. & S. (Pena. ) 
568, 87 Am. Dec. 525. See Jac. Dom. §§ 261 et seq. 



§ 41 POWER OP GUARDIAN TO ALTER DOMICIL. 89 

permitting the change of the ward's domicil in the former case, 
but not in the latter. It is difficult to discover any valid basis 
for this distinction. •• 

With regard to the ward's national or quasi-national domicil, 
since the gttardiajij(ffih.ethfiiLtfiatajaen|ar^r appoint6d)^has no 
legal authority as of right^ve^p*hfr'per8ea-of--tEa. ward outside 
of the jnriRJirtion whpirft hp is appointftrl an^j.qvialifipfl as such,* 
and since furthermore the ward is not g6n«raUy4a facLa mein;^ 
ber ol his guardian's family, not expected and not intending to 
make _his home permanently with him,' it would seem reason- 
able to suppose that a change of such domicil on the part of the 
guardian would not ordinarily cause a corresponding change of 
the ward's. 

But if the war d, as a matter of fact, is a member of the . 
guardian's family, living with him as such, and actually remov- 
ing with him to his new abode, his domicil, it is believed, will 
change with that of the guardian.^ 

As between a natural and a testamentary or appointed guar- 
dian, it will be remembered that the legal custody of the 
infant's person belongs, by municipal law as well as by the law 

* Jac. Dom. § 260 ; Lamar v. Micou, 112 U. S. 452 (a dictum). The dis- 
tinction rests upon this dictum of the Supreme Court, for which no reason is 
given and to sustain which only one case (Wood v. Wood, 5 Pai. Ch. (N. Y.) 
596, 605, 28 Am. Dec. 451) is cited. The language of the latter case is ap- 
plicable to all guardians. See contra, Mears v. Sinclair, 1 W. Va. 185. 

* Post, § 115. See Lamar v. Micou, 112 U. S. 452 ; Douglas v. Douglas, 
L. R. 12 Eq. 617, 625. 

'' See Jac. Dom. § 251 ; School Directors v. James, 2 W. & S. (Penn.) 
568, 37 Am. Dec. 525, 527. 

8 Such were the facts in Wheeler v. HoUis, 19 Tex. 522, 70 Am. Dec. 363 ; 
White r. Howard, 52 Barb. (N. Y.) 294, wherein it was held that the ward's 
doaicil followed the guardian's. See also Townsend v. Kendall, 4 Minn. 412, 
77 Am. Dec. 534, 536. But in Daniel v. Hill, 52 Ala. 430, where the same 
state of facts arose, the court decided against a change of domicil. So also in 
Mears v. Sinclair, 1 W. Va. 185, which was the case of a testamentary guar- 
dian. In Wood V. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451, the court 
refused to allow a testamentary guardian residing in another state to remove 
the wards from New York, where their mother lived. The language of the 
decision supports the proposition that a guardian may alter his ward's domicil, 
but the court clearly had in mind the state of facts referred to in the text. 



90 POWER OF GUARDIAN TO ALTER DOMIOIL. § 41 

of nature, to the former, so long as he remains fit for the trust. 
Hence we should expect to find that, so long as there is a 
natural guardian living, the child's domicil will follow his, 
rather than that of the testamentary or appointed guardian. 
And this conclusion is borne out by the cases.' 

It should be observed that the guardian herein alluded to, as 
competent to alter the ward's domicil with his own under cer- 
tain circumstances, is the domiciliary guardian, the guardian 
appointed in the State where the ward is domiciled. If ap- 
pointed in a State where the ward is resident, but not domi- 
ciled, his powers are strictly local. He may be able to change 
the ward's municipal domicil, but he cannot affect his national 
or quasi-national domicil.^" 

With respect to the municipal domicil of the ward, the guar- 
dian's power to alter or affect it is a matter of municipal law. 
It seems however to be generally conceded that the powers of 
the guardian in this respect, there being no natural guardian,*^ 
are much more extensive. There is indeed but little dissent 
from the proposition that a guardian may change an orphan 
ward's municipal residence whenever such a course is for the 
benefit of the ward, not necessarily, it seems, being confined in 
his choice to the place where he himself lives. ^'^ 

There are several reasons why the guardian's powers should 
here be extended. In the first place he has the powers of a 
guardian in every portion of the State of his appointment; 
wherever he places the ward, he has the authority of guardian. 
This is not the case when he takes the ward to another State." 

' Seiter v. Straub, 1 Demar. (N. Y.) 264; School Directors v. James, 
2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Kirkland v. Whately, 4 Allen 
(Mass.), 462 ; Wood v. Wood, 5 PaL Ch. (N, Y.) 596, 28 Am. Dec. 451 ; 
Lamar v. Micou, 114 U. S. 218. 

10 Lamar v. Micou, 112 U. S. 452. 

" In School Directors v. James, 2 W. 4 S. (Penn.) 568, 37 Am. Dec. 525, 
it was held that a ward's personalty could not be taxed in the borough where 
the guardian lived, the ward residing with his mother in another borough. 

12 Jac. Dom. § 257 ; Lamar v. Micou, 112 U. S. 452 ; Mills v. Hopkinsvillo 
(Ky.), 11 S. W. 776 ; Kirkland v. Whately, 4 Allen (Mass.), 462 ; Holyoke v. 
Haskins, 5 Pick. (Mass.) 20, 25, 16 Am. Dec. 372. 

i« Jac. Dom. § 261 ; Lamar v. Micou, 112 U. S. 452 ; Douglas v. DouglM, 
L. B. 12 Eq. 617. 



I 42 DOMICIL OF ILLEGITIMATE CHILD. 91 

Again, the removal of the ward's residence from one part of the 
State to another does not expose him to be subjected to any 
change in the law governing him and his property, as does a 
change of his national domicil. The courts are very jealous of 
a change of that character.^* Finally, the guardian has the 
management of the ward's estate, and his pecuniary interests 
may often require a change of residence, for example, for pur- 
poses of less rigorous taxation, " education, ^' or cheaper living. 

§ 42. Constructive Domicil of an niegitiniate Child. — 
The father of a bastard being unknown, it devolves upon the 
mother to provide a home for him, and she, as the natural 
guardian, has the custody of his person and the care of his 
education. The same principles will apply here as in the case 
of a legitimate child whose father is dead, and whose mother 
survives.^ 

The domicil of the mother is the domicil of the bastard, the 
place of the infant's birth and the domicil of the father being 
immaterial elements.^ Should the mother marry, her domicil 
will thereafter be governed by that of her husband. "Whether 
the bastard's domicil will be correspondingly changed would 
seem to depend upon whether he actually resides with his 
mother and stepfather, the principle being the same as in the 
case of a legitimate child, whose widowed mother marries 
again.* But if the mother marries the father of the child, it 
is believed the rule would be different, even though legitimation 
does not result. In such case, it would seem that the infant 
bastard's domicil would shift with the mother's, whether he 
actually resides with his mother and father or not. 

1* See Pedan v. Robb, 8 Ohio, 227 ; Wheeler v. HoUis, 19 Tex. 522, 70 Am. 
D«c. 363. 

15 Mills V. Hopkinsville (Ky.), 11 S. W. 776 ; Kirkland v. Whately, 4 Allen 
(Mass.), 462. 

16 School Directors v. James, 2 W. & S. (Penn.) 568, 57 Am. Dec. 525, 527. 

1 Ante, §§ 38, 39. 

2 Jac. Dom. § 244, a ; Dicey, Confl. L. 120, 121 ; "Whart. Confl. L. § 37 ; 
Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. 

8 Ante, § 39. See Blythe w. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac 
915, 919. 



92 DOMICIL OP AN ADOPTED CHILD. § 44 

§ 43. Constructive Domicil of Child subsequently Legiti* 
mated. — At common law a child born . put otja^fidlock was a 
bastard, and no subsequent intermarriage of the .parents or 
acknowledgment of the child bjr theiather, or any-other. super- 
venient act, would legitimate him. But by the Roman or civil 
law, and by statute in most of these States, the subsequent 
intermarriage of the parents, either standing alone, or coupled 
with an acknowledgment by the father, will legitimate an ille- 
gitimate child.* In some of the States, the mere acknowledg- 
ment of the father, without marriage, will have the same effect.* 

The question in all such cases is, has the child become legiti- 
mate under the proper law ? ' If so, it is immaterial how that 
result came about. Thenceforth he is in exactly the same posi- 
tion in all respects as if he wejie born legitimate, and his domicil 
will thereafter' lie governed by the same rules. It will follow 
the domicil of his father, or if he be dead thattjf the mother, 
so long as the child remains Tmdeir age; '' 

§ 44. Constructive Domicil Of an Adopted Child. — Unde r 
the common law (it was otherwise by^he ci vil law) there was 
no such legal- relalJidh as t15at of adopted child. Such child 
had no legal right to look to the adopting parent for support or 
home, in the absence of special contract, or to succeed to any 
portion of his property. But in many, if not in most, of these 
States statutes have been passed in accordance with the civil 
law, permitting this relation to be created upon the observance 
of certain formalities. These statutes generally impose upon 
the adopting parent, after the adoption, the same duties that 
the law places upon him in respect to his own children. The 
natural parents or the guardians surrender their control to the 
adopting parent, and he, on the other hand, must supply to 
the adopted child all the necessaries he would be bound to 
supply to his own children, amongst other things, a home.* 

1 See Ross v. Ross, 129 Mass. 243, 249, 37 Am. Rep. 321. 

» See Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. 

• For the proper law to determine this question, see post, §§ 98-100. 

1 Ross V. Ross, 129 Mass. 243, 263, 37 Am. Rep. 321 ; Washburn v. White, 
140 Mass. 558 ; Foster v. Waterman, 124 Mass. 592 ; Woodward r. Wood- 
ward, 87 Tenn. 644, 11 S. W. 892, 896. 



§ 46 DOMICIL OP A MARRIED INFANT. • 93 

Under such a state of the law, the adopting parent hecomea 
the natural guardian of the child, and his domicil becomes that 
of the child also,' 

Possibly this result may also follow, even in the absence of 
legal adoption, in cases where the parents are dead, and the 
children are taken to distant localities, to be reared by relatives 
or others interested in the orphans.* But if the parents or 
either of them be alive, it would seem that, lio ^pattftr ^i n^ 
clearl y they may int e nd or agree to surrender the contr ol of 
the c hild, its do mici l is not thereb y changed.* 

§ 45. Domicil of a Married I^anCr=>- As we have seen in 
speaking of the functions of guardians,^ it is the better opinion 
that at common law, even as to male wards, all guardianship 
ceases, so far as the ward's person is concerned, at twenty-one 
or marriage. In jurisdictions where this is the rule it follows 
that if a minor is married and has a family and home of his 
own, he becomes "emancipated," and may acquire a domicil of 
choice.* 

If the infant is a female and marries, she merely exchanges 
one dependence for another. lier domicil ceases to be that of 
her parents and becomes that of her husband,' even though she 
continues to reside with her parents, provided the husband be 
in no default.* 

An interesting question might be raised as to the domicil of 

2 See cases above cited. See also In re Johnson, 87 la. 130, 54 N. W. 69 ; 
Foley's Estate, 11 Phila. 47 ; Jac. Dom. §§ 247, 248. 

' See Lamar v. Micou, 114 U. S. 218 (the child here resided with the 
grandparent, whom the court held to be the natural guardian) ; Dresser v. 
Illuminating Co. , 49 Fed. 257 (also case of grandparent) ; Cutts v. Haskins, 
9 Mass. 543 (case of brother). But see "Woodward v. Woodward, 87 Tenn. 
644, 11 S. W. 892, 896, criticising Lamar v. Micou, supra. 

* De Jarnett v. Harper, 45 Mo. App. 415. See Armstrong v. Stone, 
9Gratt. (Va.) 102. 

1 Ante, § 40. 

2 Whart. Confl. L. § 41 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ; 
Van Matre v. Sankey, 148 111. 356, 36 N. E. 628; Washington v. Beaver, 
3 W. & S. (Penn.) 548, 549. See Com. v. Graham, 157 Mass. 73, 75. But 
see Jac. Dom. §§ 231, 232 ; Dicey, Confl. L. 128, 129. 

' See the following sections. 

* Charlestown v. Boston, 13 Mass. 468, 472. 



94 * DOMICIL OF MARRIED WOMAN. § 46 

an infant widow or divorcee. Has she been emancipated by 
the marriage so as to give her power to change her domicil at 
pleasure upon the termination of the coverture ? Is she thereby 
relegated to the condition of dependence upon her parents from 
which her marriage took her ? Or is she to retain her last 
domicil (that of her husband) until she becomes twenty-one or 
remarries? The first view seems the more reasonable, especially 
if she is left with children to support and is not again received 
into the bosom of her parents' family.* 

§ 46. Constructive Domicil of Married Woman. — It is a 
general principle of the common law, and one that is more or 
less inherent in all systems of jurisprudence, that a married 
woman merges her legal identity in her husband's, and solemnly 
yields her will to his. Hence it results that the husband is 
bound to support her, has the control of her person, and is en- 
titled to her services. 

From this principle follows the general rule of law which 
fixes her domicil. It is established beyond dispute that a 
woman, upon marriage, immediately acquires the domicil of 
her husband, and that her domicil ordinarily changes with 
every alteration of his, regardless of the actual locality of her 
residence after the marriage.^ 

This rule is founded not only on the above-mentioned prin- 

• Warrender v. Warrender, 2 CL & F. 488, 525. But Mr. Dicey favors the 
last view. Dicey, Confl. L. 130, note 1. 

1 Jac. Dom. §§ 209, 213, 214; Barber v. Barber, 21 How. 582 ; Cheely v. 
Clayton, 110 U. S. 701, 705; Suter v. Suter, 72 Miss. 345, 16 So. 674; Burtis 
V. Burtis, 161 Mass, 508, 510 ; Watkins v. Watkins, 135 Mass. 83, 85 ; Hunt 
r. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Hill v. Hill, 166 111. 54, 46 N. E. 
751, 752 ; White v. White, 18 R. I. 292, 27 Atl. 506; Kline v. Kline, 57 la. 
386, 10 N. W. 825, 826 ; Arrington v. Amngton, 102 N. C. 491, 9 S. E. 200 ; 
Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Williams v. Saun- 
ders, 5 Coldw. (Tenn.) 60; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298 ; 
Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399 ; Shreck v. Shreck, 32 
Tex. 578, 5 Am. Rep. 251, 252 ; Harrison v. Harrison, 20 Ala. 629, 56 Am. 
Dec. 227; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335 ; Harral v. Har- 
ral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 23 ; Dougherty v. Snyder, 15 S. & B. 
(Penn.) 84, 16 Ani. Dec. 520 ; Magnire v. Maguire, 7 Dana (Ky.), 181, 186; 
Warrender v. Warrender, 2 CI. & F. 488. 



§ 46 DOMICIL OF MARRIBD WOMAN. 96 

ciple of identity ' and upon the duty she owes to submit her will 
to her husband's, ' but also on the broader ground, the operation 
of which, with respect to constructive domicil, has already been 
noticed, that the law will presume that to be true which is true 
in the great majority of cases.^ 

Hence this ge neral rule does no t apply when the relations of 
the husband and wife are of an abnormal char acter. IfT hey are 
divorceH^or contemplate divoree, or- il the. iusband deserts the 
wife, becomes i nsane or^ otherwise incompetent to be the head 
of the family and to furnish her with a support and a home, an 
abnormal conditTon- Testtlta- which will sometimes prevent the 
operation of the rule, and will authorize the wife to select a 
domicil apart from that of her husband. Indeed it has been 
said by an eminent tribunal* that **the rule is that she may 
acquire a separate domicil whenever it is right and proper that 
she should do so. The right springs from the necessity for its 
exercise and endures as long as the necessity continues." 

The general rule, however, is in the main strictly adhered to. 
Save in a few exceptional cases, presently to be adverted to, the 
wife cannot acquire a domicil separate and apart from her hus- 
band, though she actually lives in a different State, or even 
though they actually reside apart by agreement or under a 

« Harteauv. Harteau, 14 Pick. (Mass.) 181, 25 Am, Dec. 372; Burtis v. 
Burtis, 161 Mass. 508, 510 ; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 
227, 229 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298 ; Dutcher v. 
Dutcher, 39 Wis. 651 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335 ; 
Hunt V. Hunt, 72 N. Y. 217, 243 ; O'Dea v. O'Dea, 101 N. Y. 23, 36. 

* Barber v. Barber, 21 How. 582 ; Dedham v. Natick, 16 Mass. 135 ; Har- 
teau V. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Harding v. Alden, 
9 Greenl. (Me.) 140, 23 Am. Dec. 549 ; Jenness v. Jenness, 24 Ind. 355, 87 
Am. Dec. 335 ; Hunt v. Hunt, 72 N. Y. 217, 243 ; Colbum v. Holland, 14 
Rich. Eq. (S. C.) 176, 229. 

* Harteau i;. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Mason v. 
Homer, 105 Mass, 116 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129 ; 
Dutcher v. Dutcher, 39 Wis. 651 ; Cook v. Cook, 56 Wis, 195, 43 Am, Rep. 
706, 14 N. W. 33, 34 ; Smith v. Smith, 19 Neb, 706, 28 N, W. 296 ; War- 
render v. Warrender, 2 CI, & F. 488, 523-524 (opinion of Lord Brougham). 

5 The Supreme Court of the United States in Cheever v. Wilson, 9 Wall. 
108, 124. See also Hunt v. Hunt, 72 N. Y, 217, 243, 28 Am. Rep. 129; 
Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am, Dec. 372. 



96 DOMICIL OP DESERTED WIFE. § 47 

deed of separation.' It is otherwise, as we shall presently see, 
if there be a judicial separation.'' 

Even if the wife is induced to leave the husband because of 
his ill-treatment and harshness, or for reasons that would give 
her the right to apply for a separation or a divorce a vinculo, if 
she do not actually ask for one, and until she does, his domicil 
will still be hers.* But should she apply for a divorce, and for 
that purpose change her domicil, it would remain changed for 
all purposes ; otherwise she would have two domicils.' 

But there may be exceptional circumstances surrounding the 
wife that make it necessary that she should in some cases be 
capable of selecting a domicil apart from her husband. To hold 
otherwise would in many instances result in grievous injustice 
to her.^" These more or less abnormal conditions will now be 
considered. 

§ 47. Domicil of a Deserted "Wife. — If the wife applies for 
a separation or a divorce a vinculo because of the husband's de- 

• Jac. Dom. §§ 215, 216; Barber v. Barber, 21 How. 582; Greene v. 
Greene, 11 Pick. (Mass.) 409, 415; Hood v. Hood, 11 Allen (Mass.), 196, 199, 
87 Am. Dec. 709 ; Williams v. Saunders, 5 Coldw, (Tenn.) 60, 79; Dougherty 
V. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Warrender v, Warrender, 
2 01. & F. 488, 524. There are a few cases holding that a permanent depart- 
ure of the wife from the husband's home destroys her domicil there, even 
though it be the result of an amicable arrangement. See Colburn v. Holland, 
14 Rich. Eq. (S. C.) 176, 229; Florance's Will, 54 Hun (N. Y.), 328. 7 N. Y. 
Suppl. 578; Cook v. Cook, 56 Wis, 195, 43 Am. Rep. 706, 14 N. W. 33, 34; 
Smith V. Smith, 19 Neb. 706, 28 N. W. 296, 298 ; Chapman v. Chapman, 129 
111. 886, 21 N. E. 806. In most of these, there were peculiar circumstances, 
such as the pendency of divorce or the desertion of the husband, which took 
the case out of the operation of the general rule. 

"> Post, § 52; Hunt v. Hunt, 72 N.Y. 217, 243, 28 Am. Rep. 129. 

8 Dolphin V. Robins, 7 H. L. Cas. 390 ; Harrison v. Harrison, 20 Ala. 629, 
66 Am. Dec. 227, 229; Shawr. Shaw, 98 Mass. 158 ; Loker v. Gerald, 157 Mass, 
42, 31 N. E, 709, 710 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129 ; 
Maguire ». Maguire, 7 Dana (Ky.), 181, 186; Harding v. Alden, 9 Greenl. 
(Me.) 140, 23 Am. Dec. 549; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248. 
But see Florance's Will, 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578. See Jaa. 
Dom. § 223. 

« Ante, § 28. See Jac. Dom. § 226 ; Dolphin v. Robins, 7 H. L. Cas. 390. 

10 Cheever v. Wilson, 9 Wall. 108, 124 ; Hunt v. Hunt, 72 N. Y. 217, 243, 

28 Am. Rep. 129 ; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. 



§ 47 DOMICIL OP DESERTED WIFE. 97 

sertion, it is nowwell e atah l i shed that_ she may renounce the 
constructive domicil created by the marriagestatus, and actpiire 
a separate domicil of her own where she may obtain a divorce / 

TKe^"ques¥ion becomes more complicated if we suppose the 
wife unwilling or without intention to obtain a divorce, or if the 
question should arise before she has begun to put such intention 
into effect." It has been said by some eminent authorities that 
the doctrine of the wife's separate domicil, under such circum- 
stances, does not extend beyond cases of divorce,* or as it is 
sometimes put, beyond proceedings whose " express object is to 
show that the relation itself ought to be dissolved or so modified 
as to establish separate interests, and especially a separate dom- 
icil and home ; bed and board being put, a part for the whole, as 
expressive of the idea of home." * 

It is believed that this is the proper solution in those cases 
(e. g. adultery or cruelty) where the husband's offense does not 
go to the extent of depriving the wife of his support or of a home 
provided by him. And the cases do not take a position beyond 
this. There is good reason for this doctrine. The wife by her 
silence may be taken to have signified her intention to condone 
the offense, if indeed any has been committed. And if it be 
alleged that she has not condoned it, the difficulties in the way 
of establishing the wrongs alleged in a collateral inquiry would 
be insurmountable.® 

1 Barber v. Barber, 21 How. 582, 594, 595 ; Harteau v. Harteau, 14 Pick. 
(Mass.) 181, 25 Am. Dec. 372 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 
Am. Dec. 709 ; Blackinton v. Blackinton, 141 Mass. 432, 435 ; Hunt v. Hunt, 
72 N. Y. 217, 242-243, 28 Am. Rep. 129 ; Harding*. Alden, 9Greenl. (Me.) 
140, 23 Am. Dec. 549; White v. White, 18 K. I. 292, 27 Atl. 506; Kline u. 
Kline, 57 la. 386, 10 N, W. 825, 826. 

^ For example, should the deserted wife die without taking any step to- 
wards the prosecution of a divorce suit. The disposition of her personal 
estate depends upon the law of her domicil at the time of her death. See 
post, §§ 139-141. 

« See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390 ; Yel- 
verton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J. (P. & M.) 34; Burtia v. 
Bui-tis, 161 Mass. 508, 510-511. 

* Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. 

» See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390. 

7 



98 DOMICIL OP WIFE WHO DESERTS HUSBAND. § 48 

But where the improper act of the husband is one that amounts 
to a total renunciation of the marriage relation, as in case of 
desertion, and as a result the wife is left to make her own way in 
the world and by her own endeavors to provide a home for her- 
self and her family, it would seem to be a great injustice to deny 
her the right to make her legal as well as her actual home in any 
place which will promise her a livelihood, uutrammeled by pre- 
sumptions of law favorable to the husband, which he himself 
has outrageously cast aside. It is submitted therefore (with 
deference) that the wife, even without divorce, should be per- 
mitted to alter her domicil when deserted by her husband, espe- 
cially when he has added to his desertion the offense of taking 
with him a paramour, or otherwise rendering his new home un- 
inhabitable by his wife.' 

In Florance's Will,^ the wife lived apart from her husband by 
mutual agreement for a number of years, during which time the 
children lived with her and were wholly supported by her, the 
husband living in another State and contributing nothing to 
the support of his wife or children. She was held to acquire a 
domicil in the State where she thus lived, so that the husband's 
rights in her personal estate at her decease were governed by the 
laws of that State, not by the law of her husband's domicil. 

It would seem, upon the same principle, if the husband is 
under restraint for hopeless lunacy, or is confined for life upon 
conviction of crime, that the wife should in such cases also be 
permitted to select a new legal domicil for herself, should she 
desire to do so.' 

§ 48. Domicil of Wife who Deserts her Husband. — The 
wife who deserts her husbandj'eren^ though fo_r_a_£aaisewhich 

6 Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399 ; Smith v. Smith, 
43 La. Ann. 1140, 10 So. 248, 249 ; Barber v. Barber, 21 How. 582, 594, 595 ; 
Chapman v. Chapman, 129 111. 386, 21 N. E. 806 ; Cummington v. Belcher- 
town, 149 Mass. 223, 226, 21 N. E. 435 ; Blackintonr. Blackinton, 141 Mass. 
432, 435 ; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec 549 ; Dutcher 
r. Dutcher, 39 Wis. 651, 659 ; Doerr v. Forsythe, 50 Ohio St. 726, 36 N. E. 
1055. 

^ 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578. 

« See post, § 49 ; Whart. Confl. L. § 44 ; McPherson v. Honsel, 2 Beasley 
CN. J.), 85, 13 N. J. Eq. 35. 



§ 48 DOMICIL OF WIFE WHO DESERTS HUSBAND. 99 

would-lje ^round for a d ivnp^ft, nr wTiip.h wnnlrl fnnafifiT^t^^ good 
def ence to a suit bv the husband for a restitutia a -of conj u g aF 
riglifsfj wil] ^fillj according to the great weight y modefn o\i«^ 
th^Hty, bp h"^d to rp|ain_ the domicil of J iar husbands Hjiless 
she sues for di vorce.^ But if she does institute divorce proceed- 
ings she may acquire a new domicil for the purpose. It is not 
essential that she should have left her husband with that 
intent.* 

It is also worthy of observation in this connection that the 
law requires the wife to cling to her husband and to follow him 
into whatever country the necessities of health or of business 
require him to make his home. Her refusal to accompany him 
without legal excuse, and his departure alone, constitute a de- 
sertion on her part, not on his. In such cases, her domicil fol- 
lows that of her husband.' 

But if the husband refuses, without good cause, or refuses 
except upon unreasonable conditions, to permit the wife to live 
with him, and departing to another State sues her there for di- 

1 See Whart. Confl. L. § 43 ; Jac. Dom. §§ 226, 227 ; Dolphin v. Robins, 
7 H. L. Cas. 390 ; Yelverton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J, (P. 4 
M.) 34 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 249 ; Barber v. Bar- 
ber, 21 How. 582; Cheever v. Wilson, 9 Wall. 108, 124 ; Shaw v. Shaw, 98 
Mass. 158; Burlen v. Shannon, 115 Mass. 438, 447 ; Cheely v. Clayton, 110 
U. S. 701, 705; Chapman v. Chapman, 129 111.386, 21 N. E. 806; Flower*. 
Flower, 42 N. J. Eq. 152, 7 Atl. 669 ; Arrington v. Arrington, 102 N. C. 491, 
9 S. E. 200 ; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. See Watkins 
V. Watkins, 135 Mass. 83, 85-86; Florance's Will, 54 Hun (K Y.), 328, 
7 N. Y. Suppl. 578. 

2 Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669 ; Chapman v. Chapman, 
129 111. 386, 21 N. E. 806 ; White v. White, 18 R. I. 292, 27 Atl. 506. But 
see Lyon v. Lyon, 2 Gray (Mass.), 367, 368. 

3 Loker v. Gerald, 157 Mass. 42, 43, 31 N. E. 709, 710 ; Burlen v. Shan- 
non, 115 Mass. 438, 447 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am. 
Dec. 709 ; Watkins v. Watkins, 135 Mass. 83, 85-86 ; Cheely v. Clayton, 
110 U. S. 701, 705 ; Hunt r. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Larquie 
V. Larquie, 40 La. Ann. 457, 4 So. 335, 337 ; Suter v. Suter, 72 Miss. 345, 
16 So. 674. See Chapman v. Chapman, 129 111. 386, 21 N. E. 806. But see 
Heath v. Heath, 42 La. Ann. 437, 7 So. 540, which, however, turns upon a 
doctrine of divorce peculiar to Louisiana, namely, that suit for divorce must be 
brought in the jurisdiction where the married pair have lived together. Se« 
«lso O'Dea v. O'Dea, 101 N. Y. 23. 38 (dissenting opinion of Danforth, J.). 



100 wife's DOMICIL — HUSBAND INSANE. § 49 

vorce because of her desertion, her domicil will not be held to 
follow his.* So, if the wife living in another State from her 
husband herself sues for divorce in the State of her actual resi- 
dence, she cannot allege that her domicil is with her husband, 
in order to defeat a cross-bill for divorce filed by him in answer 
to her complaint.^ 

§ 49. Domicil of Wife w^hose Husbaind is Insane or other- 
wise incapacitated. — If the law itself has established the in- 
competence or incapacity of the husband to be the head of the 
family and to provide them with a home, as by reason of an 
adjudication of permanent insanity, the presumption of law 
that the wife is dependent upon the husband for a home no 
longer applies, and shj_is.at-liber ty to select her own domici l as 
well as that of the minor children. It is similar to, and even 
stronger than, the case of the husband's desertion.^ If there 
has been no legal adjudication of insanity, it would seem that 
the wife's domicil must be held to follow that of her husband, 
notwithstanding mental or physical ailments. 

It has been said that if the husband is incapacitated to sup- 
port the wife by reason of conviction of felony (an incapacity 
established by the law) his domicil will cease to control that of 
the wife.' But unless the confinement is permanent, for life, 
it is difficult to see how it could leave the wife free to select a 
domicil of her own." 

Mere physical weakness or incapacity on the part of the hus- 
band will in no event, it is believed, confer upon the wife the 
privilege of choosing a domicil apart from his. Indeed such a 
course would generally be a plain violation of the duty she owes 
her husband, whom she has taken for better or for worse, in 
sickness as well as in health. 

* Williams v. Williams, 130 N. Y. 193, 197, 29 N. E. 98. See Chapman v. 
Chapman, 129 111. 386, 21 N. E. 806. 

' Watkins v. Watkins, 135 Mass. 83, 85-86. 

^ See Whart. Confl. L. § 44. This is true however only in case the in- 
sanity is of a permanent character. 

» Whart. Confl. L. § 44 ; McPherson r. Housel, 2 Beasley (N. J,), 35, 
18 jST. J. Eq. 35. 

» See Kelsey v. Green, 69 Conn. 291, 37 Atl. 679. 



§ 50 DOMICIL OP WIFE CONTEMPLATING DIVOBCE. 101 

§ 50. Domicil of "Wife contemplating Divorce. — The m u- 

nicipal l aw of almost all States requires that the complainant in 
a divorce suit should be domiciled in the ^ate where" tEe^stiit 
is instituted!. Hence iFhecomes Important Tn sucE cases''^ 

It is now settled that an in nnnent wife maj r fu'.qnjjrA a separate 
domici l from he r husband for purposes o f divorce, or p robably 
in any case where her interests are antagonistic to his and are 
dependent upon the locality of the domicil, provided she actually 
resides there and actually raises the question in a judicial pro- 
ceeding.^ 

Mr. Jacobs has expressed the opinion that this rule should 
not be extended beyond giving to the wife the right to sue for 
divorce in the State where she and her husband have resided 
together." But it is now well settled that the wife may go to 
an entirely new State, and having become domiciled there may 
sue for a divorce.' 

This rule is adopted in order to prevent the grave injustice 
that might be done the wife, if her domicil was held to follow 
her husband's, otherwise she would be compelled to follow him 
into any distant State he might select as his domicil, and after 
expense and trouble sue for her divorce in the forum selected by 
him, perhaps chosen for the very reason that its laws would 
deny her the relief she might obtain at home.* And if she 

1 See Jac. Dora. §§ 223-226 ; Cheever v. Wilson, 9 Wall. 108, 123-124 ; 
Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Hill v. Hill, 166 111. 54, 
46 N. E. 751, 752 ; Chapman v. Chapman, 129 111. 386, 21 N. E. 806 ; Dun- 
ham V. Dunham, 162 111. 689, 35 L. R. A. 70, 77 ; Arrington v. Arrington, 
102 N. C. 491, 9 S. E. 200 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 
249 ; Burtis v. Burtis, 161 Mass. 508, 510 ; Blackinton v. Blackinton, 141 
Mass. 432, 435 ; Harteau v. Harteau, 14 Pick. (Mass.) 187, 25 Am. Dec. 372 ; 
White V. White, 18 R. I. 292, 27 Atl. 506, 507 ; Van Fossen v. State, 37 Ohio 
St. 317, 41 Am. Rep. 507, 508 ; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 
706, 14 N. W. 33, 35. 

2 Jac. Dom. §§ 224, 224 a. 

8 See cases cited, note 1, supra. 

< Jac. Dom. § 224 ; Whart. Confl. L. § 224 ; Cheever v. Wilson, 9 Wall. 
108, 124; Harteau v. Harteau, 14 Pick.<Mass.) 181, 25 Am. Dec. 372; Burtis 
V. Burtis, 161 Mass. 508, 510; Hunt v. Hunt, 72 N. Y. 217, 24S, 28 Am. 
Rep. 129 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec 335, 337. 



102 wife's domicil — husband seeking divorce. § 61 

were relegated to the domicil of her married life, the State 
where she has lived with her hushand, the inconvenience would 
still he great ; she would be compelled to sue for divorce in her 
former home before she could remove to another State, or else to 
forego altogether her right to divorce. 

This rule is prescribed in order to afford a better protection 
to the wife. Its adoption ought not to deprive the wife (at 
least from the standpoint of private international law) of the 
right she would have had without it of treating her husband's 
domicil as still her own, if she should prefer that course, and 
sue there.^ 

But if the allegation of the wife is not that the marriage 
relation should be dissolved by decree of the court, but that 
it is absolutely null and void, and she accordingly asks for a 
decree of nullity, the domicil of the alleged husband will not 
affect hers, for that would be to suppose the existence of a valid 
marriage, the very point in dispute.' 

§ 51. Domicil of Wife '^hose Husband applies for Di- 
vorce. — If the husband, in contemplation of divorce, should 
leave the wife and acquire a new domicil in another State or 
country, it would in many instances result in great injustice to 
the wife, should the law require her domicil to follow his. For 
she would then, merely by construction of law, contrary to the 
actual fact, be subjected to the laws and jurisdiction of her hus- 
band's domicil, chosen by him under circumstances which would 
lead him to advance his own interests and to antagonize hers. 
The law will not ordinarily thus disregard the actual state of 
facts in such cases, nor content itself with idle presumptions 

' See Jac. Dom. § 224 ; Greene v. Greene, 11 Pick. (Mass.) 410. But see 
"Wood V. Wood, 54 Ark. 172, 15 S. W. 459 ; Cook v. Cook, 56 Wis. 195, 43 
Am. Rep. 706, 14 N. W. 33, 35. In Jenuess v. Jenness, 24 Ind. 355, 87 Am. 
Dec. 335, 337, this principle is disapproved on the ground that it gives the 
wife two domicils. It is manifest that this is not so : it only gives her a 
choice between two. Her domicil remains that of her husband until she sues 
for divorce. She may accept the general presumption of law which operates 
upon her up to the time her suit is instituted, and sue where her husband is 
domiciled; or she may accept the alternative of separating her domicil from 
her husband's, suing where she actually resides. 

« See Whart. Confl. L. § 224. 



§ 52 DOMICIL OF DIVORCED WIFE. 103 

which the husband's conduct shows to have no foundation in 
fact.^ Hence it is well settled that the wife, as defendan t in a 
divorce s uitHSrought by her husband in his domicil, is fo be 
con sidered from the time the suit is instituted as domiciled in 
f W sfaffl ^hftT? Pflff a rtTr°^^j " '' I ■■■ " ' " ■ ■ "' j iI Tfn^ti 
and protection she actually is. The acquisition of a new 
domicil b^ the husband for purposes of dtvorce'^oe8"'noB draw 
the^e|fe,mt0-fclifi,j»ftmQ;;jUrisdiction, unless she in fact removes 
thitl^er permanently. Their interests are antagonistic' 

But^a wife cannot thus obtain a separate domicil by her own 
wrong, so that if she deserts her husband he may sue for divorce 
in any State where he is domiciled, and she, though actually 
resident elsewhere, will be deemed in law to be domiciled with 
him, thus giving the court jurisdiction of both the parties.* 

§ 52. Domicil of Divorced Wife. — We have seen that the 
law generally assigns the wife the domicil of her husband, 
because they are one person in law, because it is her duty to 
live with him, and because in fact she will usually do so. But 
when the parties are divorced, these reasons cease to operate 
altogether or in large measure. 

Thus in a case of a divorce a mensa, or judicial separation, 
the law itself, through the courts, has decreed that the parties 
shall no longer be considered identical, as before, and that they 
shall thereafter live separate and apart. All the foundations 
upon which rests the presumption that the husband's domicil is 
likewise the wife's are thus swept away. Indeed the very oppo- 
site presumption at once arises, namely, that the parties have 
obeyed the decree of the court and have ceased to live together.^ 

1 Watkins v. Watkins, 135 Mass. 83, 86. 

2 Story, Confl. L. 229 a, note ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. 
Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643 ; Borden v. Fitch, 
15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225 ; Heath v. Heath, 42 La. Ann. 
437, 7 So. 540 ; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 336-337. 

8 Whart. Confl. L. § 227 ; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709 ; 
Builen V. Shannon, 115 Mass. 438, 447-448 ; Harteau v. Harteau, 14 Pick. 
(Mass.) 181, 25 Am. Dec. 372 ; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 
Am. Dec. 709 ; Hunt v. Hunt, 72 N. Y. 217, 243, 38 Am. Rep. 129 ; Heath 
V. Heath, 42 La. Ann. 437, 7 So. 540. 

'^ So strong is this latter presumption that a child bom more than ten 



104 DOMICIL OF DIVORCED WIFE. § 62 

The fiction that the wife has her home with the husband 
being thus destroyed by the act of the law itself, there would 
seem to be no reason why the wife may not actually acquire a 
separate domicil, even though the dissolution of the marriage 
ties be not absolute. And such is now the general opinion.* 

In case of a divorce a vinculo, the parties have in general 
all the rights and capacities of unmarried persons, amongst 
other things the right to change their domicils at will.* The 
fact that the woman is the offending party, and that the court 
is authorized to decree and does decree that she shall not marry 
again, would not affect her right in this particular; for such a 
penal disability cannot follow her into other States, nor does it 
prevent her status from being in general that of an unmarried 
woman.* 

But if the divorce is invalid, as for example if it is granted 
by a court without jurisdiction, it is of no legal effect in free- 
ing the parties from their marital obligations and disabilities. 
They are still bound by the rules regulating the relations of 
married persons, and the wife's domicil is still in law that of 
her husband's, though she actually resides elsewhere or marries 
another man.' 

The divorce, even though valid, does not necessarily ipso facto 
alter the wife's domicil. She retains the domicil she had imme- 
diately before the coverture was determined until she acquires 
another for herself; and neither her domicil of origin, nor her 
domicil before marriage, will play any part unless she actually 
lives there.' 

months after the decree of separation is prima facie presumed illegitimate. 
See 1 Minor's Insts. (4th ed.) 297 ; 2 Bright's Husb. & Wife, 262, Bac. Abr. 
Marr. & Div. (F.). 

2 Jac. Dom. §§ 217, 219, 220, 221 ; Dolphin v. Robins, 7 H. L. Cas. 390 ; 
Barber v. Barber, 21 How. 582 ; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am, 
Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643 ; Borden v. Fitch, 
15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225. 

« Jac. Dom. § 217; Whart. Confl. L. § 46 ; Dicey, Confl. L. 130 ; War- 
render V. Warrender, 2 CI. & F. 488, 525, 627. 

♦ Post, § 74. 

* See Dicey, Confl. L. 127-128 ; Dolphin r. Robins, 7 H. L. Cas. 390. 

• Jac. Dom. § 222 ; Dicey, Confl. L. 130. This principle has already been 



§ 54 CONSTRUCTIVE DOMICIL OF IDIOTS. 105 

§ 53. Domicil of Wife, where the Marriage is Voidable or 
Void. — If the marriage is merely voidable by decree of court, 
and no decree has been obtained, there would seem to be no 
doubt that the wife's domicil would continue in general to be 
governed by that of the husband.^ 

If the marriage is absolutely void, when tested by the law 
properly applicable to determine the question, as by reason of 
the insanity of one of the parties (which in many States renders 
the marriage absolutely void) or because one of the parties has a 
consort still living and undivorced, it would seem clear that 
since there has never been a marriage, the woman's domicil 
would be identical with her supposed husband's only so far as, 
by her actual residence there with him animo manendi, she 
makes it so. The doubt, if there be any, is not whether she 
may be assigned the domicil of her supposed husband without 
actual residence there, but whether, even though she does actu- 
ally reside there with him, she can be said to have acquired a 
domicil of choice.^ 

§ 54. Constructive Domicil of Idiots. — Idiots are those 
who from birth are so deficient in intellect as to be totally un- 
able to manage their own affairs or to live without the protecting 

applied to the case of an infant wife who has been widowed or divorced. 
Ante, § 45. It should be added that the domicil of a toidow is governed by 
the same rules that govern that of a divorced woman. Story, Confl. L. § 46 ; 
Dicey, Confl. L. 130 ; Jac. Dom. § 222 ; Warrender v. Warrender, 2 CI. & F. 
488, 525, 527. 

1 Warrender r. Warrender, 2 CI. & F. 488, 527, 528. But after a decree 
avoiding the marriage ab initio for a cause existing at the time of the mar- 
riage, it would seem that the wife would be deprived of her right to the hus- 
band's domicil from the beginning, save in so far as it is actually her own. 

2 Jac. Dom. § 212 ; Concord v. Rumney, 45 N. H. 423. See Middle- 
borough V. Rochester, 12 Mass. 363. In both of these cases (which were 
settlement cases) the marriage was void for insanity. In the first it was the 
wife who was insane ; but the court held that if, in residing with her husband, 
she had sufficient understanding to choose her place of abode, her municipal 
domicil must be considered as located at the place where she thus dwelt. In 
the latter case it was the husband who was insane, and it is not clear that the 
wife actually resided at his domicil ; it appears from the report of the case 
that she continued to reside where she was living at the time of the marriage. 
The decision was that her municipal domicil remained unchanged. 



106 CON8TRUCTIVE DOMICIL OF LUNATICS. § 55 

care of some guardian. They are incapable, eyen after they 
become adults, of forming such a definite intention and purpose 
as is necessary to constitute a legal domicil of choice. They 
must always remain dependent for a home, as infants are, upon 
those having the legal custody and control of their persons 
They continue infants perpetually. The rules of law, there- 
fore, which determine an infant's domicil are extended to adults 
also who have never acquired sufficient intelligence to select and 
support a home of their own.^ 

§55. Constrnctive Domicil of Lunatics. — If an infant 
should become insane during his minority and remain in that 
state continuously, the incapacity of minority never having been 
followed by adult capacity to select a home of his own, his 
domicil must be determined by the same rules that control the 
domicil of an idiot or infant.^ But in those cases where the 
lunacy has supervened after the party has reached maturity, 
the domicil must be determined upon different principles. 

One point must be observed at the outset, and should be 
borne in mind. The Supreme Court of New Hampshire * has 
thus expressed it: "Insanity may exist in various degrees, 
from the slight attacks which are hardly distinguishable from 
eccentricity to the most raving and uncontrollable madness. It 
may be general, seeming to affect all the operations of the mind 
upon all subjects, or it may exist only in reference to a small 
number of subjects, or a single subject: the mind in such cases 
of partial insanity seeming to be in its habitual and natural 
condition as to all subjects and matters which do not come 
within the scope of the partial disease. In no case at the 
present day is it a mere question whether the party is insane. 
The point to be established is, whether the party is so insane 

1 Jac. Dom. §§ 264-269 ; Whart. Confl. L. §§ 52, 53 ; Holyoke v. Haskins, 
5 Pick. (Mass.) 20, 25-26, 16 Am. Dec 372 ; Upton v. Northbridge, 15 Mass. 
237 ; Overseers of Alexandria v. Bethlehem, 1 Harr. (N. J.) 119, 31 Am. 
Dec. 229. 

1 Jac. Dom. § 268 ; Whart. Confl. L. § 53 ; Sharpe v. Crispin, L. R. 1 P. & 
D. 611, 618 ; Washington v. Beaver, 3 W. & S. (Penn.) 548, 549. 

^ Concord v. Rumney, 45 N. H. 423. See Culver's Appeal, 48 Conn. 304 ; 
Holyoke v. Haskins, 5 Pick. (Mass.) 20, 26, 16 Am. Dec. 372. All these are 
eases of municipal domicil. 



§ 55 CONSTRUCTIVE DOMICIL OF LUNATICS. 107 

as to be incapable of doing the particular act with understand- 
ing and reason. This would be the essential question now, 
where marriage is alleged to be void by reason of insanity, and 
the same test would be applied in determining the question of 
capacity to change the domicil: Had the party at the time 
sufficient reason and understanding to choose her place of 
residence?" 

There can be no doubt that a stricter test of insanity should 
be required to deprive one of the capacity to select his own 
home than is required to avoid a contract or a will.' 

The determination of a lunatic's domicil would seem to 
hinge upon the question whether there has been an adjudica- 
tion of lunacy, or rather whether his person has been actually 
committed to the custody and control of a legal guardian or 
committee.* 

Indeed, so far as his national or quasi-national domicil is 
concerned, a question has been made whether even an adjudi- 
cation and commission of lunacy would be given such force in 
other States as to affect the lunatic's right, should he go to 
another State, to acquire a domicil there.' It is submitted that 
the gist of the inquiry in such cases is not whether the adjudi- 
cation of lunacy shall be given exterritorial effect ex propria 
vigore, but whether as a matter of evidence, the action of the 
court of one State should not be taken as very strong evidence, 
if not conclusive, of the proposition that, at the time of such 
decree, the party was really of such unsound mind as to require 
his person to be controlled.* 

But while this last principle is believed to be sound, it is ap- 
plicable only to the party's state of mind at the time of the 

» See Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Concord v. 
Rumney, 45 N. H. 423 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781 ; 
Talbot r. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3 L. R. A. 254 ; 
Mowrj' V. Latham, 17 R. I. 480, 23 Atl. 13. 

♦ See Talbot v. Chamberlain, 149 Mass. 57, 58, 20 K E. 305, 3 L. R. A. 
254 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13. 

6 See Talbot v. Chamberlain, 149 Mass. 57, 59, 20 K E. 305, 3 L. R. A. 
254. 

• See Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781 ; Mowry v. Latham, 
17 R. L 480, 23 Atl. 13. 



108 CONSTRUCTIVE DOMICIL OF LUNATICS. § 55 

decree. The continuance of that state of mind may be rebutted. 
It is not indispensable that there should be an adjudication of 
restoration to sanity by the same or any other court.' 

The true principle therefore would seem to be that a lunatic, 
whose person has been placed under the control of a guardian 
or committee, is prima facie incompetent to establish a domicil 
iu another State, but, upon satisfactory proof of mental capacity 
supervening, such domicil may be recognized. In any event, 
the mere fact that the control of the lunatic's property has been 
committed to a guardian or committee will not suffice to prevent 
him from choosing even a municipal domicil, much less a na- 
tional or quasi-national one.^ 

A fortiori would the party be capable of choosing his own 
domicil, if there is no adjudication or commission of lunacy at 
all. Thus, one suffering from habitual intemperance, melan- 
cholia, monomania, or very pronounced eccentricities, may ordi- 
narily be fully competent to determine where he should reside.® 
Nor would an adjudication of lunacy in a collateral proceeding 
to set aside a contract have the effect of depriving the party of 
the right to choose his own domicil, for the tests in the two 
cases are different, and no control is thereby assumed of the 
lunatic's person. 

If the insanity is so marked or so violent as to require the 
duress of an asylum, there can then of course be no question of 
any selection of domicil by the lunatic. 

The question remains, what is the locality of the lunatic's 
domicil when he is himself too insane to choose one ? Shall 
the guardian or committee have power to change it, or must it 
remain unalterably where it was when the disability was first 
incurred ? 

The case is closely analogous to that of the guardian's power 
to change an infant ward's domicil, already discussed.^" As to 

T Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781. 

8 Mowry v. Latham, 17 R. L 480, 23 Atl. 13 ; Talbot v. Chamberlain, 149 
Mass. 57, 20 N. E. 305, 3 L. R. A. 254. 

• Concord v. Rumney, 45 N. H. 423. See Harral ». Harral, 39 N. J. Ect 
379, 51 Am. Rep. 17. 

w Ante, § 41. 



§ 56 DOMICIL OP CHOICE. 109 

the lunatic's municipal domicil, it seems that the guardian has 
the power, but not so with respect to his national or quasi- 
national domicil.^^ His latter domicil will remain unchanged, 
regardless of the place of his actual residence. He will retain 
the domicil he possessed before he beca me insane. uponirfTe^ in- 
ciple that a donircil once acquired is retained until a, nother is 
gainedT'^''^ 

§ 56. HI. Domicil of Choice — Three Essential Elements. 
— The domicil of origin assigned to an infant immediate!}^ 
upon his birth, upon principles already considered, is retained 
by him, even after maturity, until another has been acquired.^ 
Unless one is acquired by operation of law in the meanwhile, 
an infant will always arrive at the age of majority with his orig- 
inal domicil still clinging to him.* From that time, if free 
from disabilities, he may choose a new home for himself. But 
it does not follow that he will do so. On the contrary, he will 
usually retain his original domicil all his life. 

The burden of proof is on him who alleges a change of dom- 
icil, or in other words there is a prima facie presumption in 
favor of the retention of a domicil once acquired. This presump- 
tion applies not only to the original domicil but to domicils of 
every sort.' 

A domicil of choice, as the name implies, means simply that 
a party is legally competent to exercise his own choice with re- 
spect to his permanent home, and has exercised it. 

" Talbot V. Chamberlain, 149 Mass. 57, 59, 3 L. R. A. 254 ; Culver's Ap- 
peal, 48 Conn. 165 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Anderson 
V. Anderson, 42 Vt. 350, 1 Am. Rep. 334 ; Rodgers v. Rodgers, 56 Kan. 483, 
43 Pac. 779, 781. 

1* Bempde v. Johnstone, 3 Ves. Jr. 198, 201 ; Harral v. Harral, 39 N.J. 
Eq. 379, 51 Am. Rep. 17, 21 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 
781 ; Mowry r. Latham, 17 R. I. 480, 23 Atl. 13. 

1 White V. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Steer's Succession, 
47 La. Ann. 1551, 18 So. 503, 505 ; Firth v. Firth, 50 N, J. Eq. 137, 24 Atl. 
916, 917. 

2 Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hiestand v. Kuns, 
8 Blackf. (Ind.) 345, 46 Am. Dec. 481. 

8 Desmare v. United States, 93 U. S. 605 ; Mitchell v. United States, 21 
Wall. 350 ; Dupuy v. Wurtz, 53 N. Y. 556 ; Allgood v. Williams, 92 Ala. 551, 
8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 291. 



110 PARTY FBEE TO CHOOSE DOMICIL. § 57 

There are three elements which are essential to the acquisi- 
tion of a domicil of choice: (1) Freedom of choice, without 
which it would he idle to speak of a domicil of choice / (2) Ac- 
tual presence in the locality chosen ; (3) Intention to remain 
permanently, without which there would be no " permanent 
home," as the definition of domicil demands. 

Curiously enough however, although all these attributes are 
essential to the acquisition of a domicil of choice, the domicil 
when once acquired may continue though all three or any of 
them be absent. Thus, in order to acquire a domicil of choice, 
one must of his own free will select it, he must actually be pres- 
ent there, and such presence must be coupled with the intention 
to remain there permanently. But such domicil having been 
once acquired thus, will continue until another is gained, 
though the party be kept there against his will, as by im- 
prisonment, or though, while remaining in the State, he changes 
his mind about residing there permanently, or even though he 
leaves the State altogether (no new domicil being acquired). 

§ 57. Party must be free to choose Domicil. — The first 
essential of a domicil of choice is that the party should be 
legally and actually free to choose his own place of abode. If 
not, no place of residence can be said to be his domicil of choice. 
Besides the cases of legal disability when a constructive domicil 
is assigned by the law, such as infants, married women, luna- 
tics, etc., there sometimes occur cases in which, though the 
party may be under no legal disability, he is in fact deprived of 
the freedom of volition necessary to the act of choosing his dom- 
icil. He does not choose to be where he is; he resides there 
permanently because he cannot help himself. If he could, he 
would live elsewhere. Under circumstances such as these, a 
question may arise as to the place of his domicil. 

Instances in which these circumstances are apt to appear are 
cases of persons imprisoned, exiles, fugitives, and invalids. In 
all of these cases there is some degree of coercion. They are 
under the duress of physical confinement, the duress of political 
power, or the duress of their own fears. 

The real question in these cases is not what motive has led 
the party to make a choice, but whether he has actually chosen 



§ 57 PAETY FREE TO CHOOSE DOMICIL. Ill 

to reside permanently at the given place. If he has so chosen, 
the motive which induced him to do so is immaterial. It may 
even be immoral or illegal.^ 

In the case of a person imprisoned, it is quite obvious that as 
a general rule his confinement cannot be considered as giving 
him a domicil of choice in the place of his confinement, if he 
had it not before. He must be held to retain the domicil pre- 
viously possessed by him,' unless in fact he becomes so enam- 
ored of his prison-house as to determine to remain permanently 
in that locality.* The application of this latter principle is ap- 
parent in the case of one imprisoned for a term of years only, 
even though he should die while in confinement. And it is be- 
lieved the same general rule will apply where he is imprisoned 
for life. But there should be some positive evidence that he has 
voluntarily made up his mind to live permanently in the place 
of his confinement. Mere resignation to the inevitable, without 
the actual mental operation incident to the formation of inten- 
tion, is not an exercise of choice, and therefore will not suffice.* 

With respect to exiles, a distinction is to be made between 
such as are compelled to permanently abandon their country by 
the command of a superior political power, and those who, be- 
cause of persecutions and restraints upon liberty, abandon it 
without compulsion. In the former case the presumption is 
against a change of domicil, it being never presumed that the 
exile has abandoned all hope of return. This must be shown by 
affirmative evidence.^ 

1 Young V. Pollak, 86 Ala. 439, 5 So. 279, 282 ; H^eman v. Fox, 31 Barb. 
(N, Y.) 475, 483 ; Fosdick v. Fosdick, 15 R. I. 130, 23 Atl. 140 ; State v. 
Ross, 76 N. C. 242, 22 Am. Rep. 678, 679 ; Colburn v. Colbum, 70 Mich. 647, 
38 N. W. 607. See Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 Am. Rep. 
247, 251; Ennis v. Smith, 14 How. 400, 401; Guarantee Co. v. Bank, 95 Va. 
480, 28 S. E. 909, 3 Va. Law Reg. 873. As was said in Chitty v. Chitty, 118 
N. C. 647, 32 L. R. A. 394, 24 S. E. 517, "the question is one of law, not of 
morals, and we could not inquire into the latter. " 

2 Jac. Dom. § 272. 

« Jac. Dom. §§ 272, 273; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909, 
3 Va. Law Reg. 873. 

* Jac. Dom. § 274. But see Whart. Confl. L. § 54. 

6 Jac. Dom. §§ 277 et seq. ; Ennis v. Smith, 14 How. 400 ; White v. Brown, 
1 WalL Jr. 217, 265 ; DeBonneval v. DeBonneval, 1 Curteis, 856. 



112 INVALIDS COMPELLED TO RESIDE ABBOAD. § 58 

In the case of fugitives from justice, as in the case of exiles 
and refugees, there is no presumption indulged of the abandon- 
ment of their former homes. An intention to reside permanently 
in their haven of refuge must be affirmatively shown.* 

§ 58. Same — Invalids compelled to reside Abroad. — The 
determination of the domicil of an invalid, compelled by con- 
siderations of health to leave his home and reside elsewhere, is 
often a matter of great perplexity. The principle here is the 
same as in other cases; the difficulty lies in applying it, in 
ascertaining the invalid's intention. If his intent is to live 
permanently in his new abode, the fact that he is impelled to 
make the choice by reason of fears for his life is immaterial. 
The motive for his decision will not be inquired into. But he 
must intend to live at the place to which he goes in search of 
health. An intention merely to die there is not enough. 

Mr. Dicey, with his usual accuracy of thought, has made this 
matter so plain that it will only be necessary to borrow from 
him. After noting various confused and confusing dicta on the 
subject, he says : ^ 

**The apparent inconsistency between these doctrines may be 
removed or explained, if we dismiss all reference to motive, to 
external necessity, and so forth, avoid the use of the misleading 
terms 'voluntary' and 'involuntary,' and, recurring to the prin- 
ciple that residence combined with the purpose of permanent or 
indefinite residence constitutes domicil, apply it to the different 
cases or circumstances under which a domiciled Englishman 
may take up a foreign residence for the sake of his health." 

He then proceeds to give three cases. His first case is that 
of an Englishman (D) who goes to France for relief from sick- 
ness, with the firm intention of residing there six months and 
no longer. He proceeds : " This case presents no difficulty what- 
ever. D does not acquire a French domicil any more than 
he does if he goes to France for six months on business or 
for pleasure. He has not the animus manendi, but the quite 

« Young V. PoUak, 85 Ala. 439, 5 So. 279, 282; Chitty v. Chitty, 118 
N. C. 647, 24 S. E. 517, 32 L. R. A. 394 ; Reed v. Reed, 52 Mich. 117, 60 
Am. Rep. 247, 248, 17 N. W. 720. 

1 Dicey, Confl. L. 144 et sea. 



§ 58 INVALIDS COMPELLED TO RESIDE ABROAD. 113 

different intention of staying for a determinate time or definite 
purpose." 

His next case: "D, finding that his health suffers from the 
English climate, goes to France and settles there, that is, he 
intends to reside there permanently or indefinitely. D in this 
case acquires a French domicil. Here again there is no devia- 
tion from general principle. D acquires a French domicil be- 
cause he resides in France with the animus manendi." '^ 

His third case: "D goes to France in a dying state, in 
order to alleviate his sufferings, veithout any expectation of 
returning to England. 

" This is the case which has suggested the doctrine that a 
change of residence for the sake of health does not involve a 
change of domicil. The doctrine itself, as applied to this case, 
conforms to common sense. It would be absurd to say that D, 
who goes to Pau to spend there in peace the few remaining 
months of his life, acquires a French domicil. But the doctrine 
in question, as applied to this case, is in conformity not only 
with common sense, but with the general theory of the law of 
domicil. D does not acquire a domicil in France because he 
does not go to France with the intention of permanent or indefi- 
nite residence in the sense in which these words are applied to 
a person settling in another country, but goes there for the 
definite and determinate purpose of passing in France the few 
remaining months of his life. The third case, now under con- 
sideration, is in its essential features like the first, and not like 
the second, of the cases already examined. If D knew for cer- 
tain that he would die precisely at the end of six months from 
the day he left England, it would be apparent that the first and 
third case were identical. That the definite period for which 
he intends to reside is limited, not by a fixed day, or by the 
conclusion of a definite piece of business, but by the expected 
termination of his life, can make no difference in the character 
of the residence. In neither the first nor the third case is the 
residence combined with the proper animtis manendi. . . . The 

« Hoskins r. Matthews, 8 DeG. M. & G. 13, 25 L. J. (Ch.) «89, S5 Eng. L. 
& Eq. 532; Hegeman r. Fox, 31 Barb. (N. Y.) 475. 



114 ELEMENTS OP DOMICIL OP CHOICE. § 69 

dicta of the authorities who lay down that a residence adopted 
for the sake of health does not involve a change of domicil are 
obviously delivered by persons who had before their minds the 
third, not the second, of our supposed cases. These dicta, again, 
embody what, in reference to such a case, is a perfectly sound 
conclusion. Their only defect is that they are expressed in 
terms which are too wide, and which therefore cover circum- 
stances probably not within the contemplation of the authorities 
by whom they were delivered; and further, that, while embody- 
ing a sound conclusion, they introduce an unnecessary and mis- 
guiding reference to the motives which may lead to the adoption 
of a foreign domicil." • 

§ 59. Farther Elements of Domicil of Choice — Actual 
Presence and Animus Manendi. — Supposing that nothing ap- 
pears in the circumstances of a particular case to show a want 
of freedom of choice, two elements must concur to establish a 
domicil of choice, namely, actual presence in the country, and the 
intention to remain there permanently or for an indefinite time 
at least (animus manendi). Indeed, the first essential referred 
to in the preceding sections, freedom of choice, is a necessary 
implication from the requirement of an intention to reside, for 
there can usually be no real or active intention where there is 
no freedom of choice. It has been treated separately however 
for the sake of clearness. In this aspect it may be truly said 
that wherever the two elements of presence and intention com- 
bine, a domicil of choice is created, and all former domicils are 
ipso facto abandoned.^ 

It must be o bserved that neith er presence alon e,' nor inten- 
tion alone, will suflBce to create a domicil of choice! Both mlist 

» See Dicey, Confl. L. 145-146 ; Jac. Dom. §§ 287-296 ; Johnstone v. 
Beattie, 10 CI. & F. 42, 138 ; Moorehouse v. Lord, 10 H. L. Cas. 272, 292 ; 
Anderson v. Laneuville, 9 Moore, P. C. 325 ; Hoskins v. Matthews, 8 DeG. 
M. & G. 13, 28, 25 L. J. (Ch.) 689, 35 Eng. L. & Eq. 532 ; Dupuy v. Wurtz, 
53 N. Y. 556 ; Hegeman v. Fox, 31 Barb. (N. Y.) 475 ; Isham v. Gibbons, 
1 Bradf. (N. Y.) 69; Mayo v. Equitable Assurance Society, 71 Miss. 590, 15 
So. 791 ; Still ». Woodville, 38 Miss. 646. See Udny v. Udny, L. R. 1 Sc. 
App. 441. 

1 Dicey, Confl. L. 104 ; Story, Confl. L. § 46 ; Jac. Dom. §| 125, 126. 

* For a qualification of this statement, see post, § 64. 



§ 60 ACTUAL PRESENCE. 115 

coqcur, and at the very mom ent they do concur the d omicil is 
c reatedT ^ it if^ometimes expressed, the factum, (presence) 
and the animus (intention) must unite.' And thereafter no 
change of locality alone (there being no change of intent) or 
vice versa, no change of intention (there being no change of 
locality), will effect an alteration of the domicil of choice, which 
remains where it was, until the factum and the animus again 
unite.* 

These two essential elements of domicil must now be ex- 
amined a little more fully. 

§ 60. Actued Presence. — It is usually said that the elements 
necessary to the creation of a domicil of choice are residence and 
the animus manendi. The term "residence," as here used, 
means simply the actual bodily presence of the party, if that 
presence is coupled with the intention to remain permanently. 
It but tends to confusion to designate this presence as a "resi- 
dence," though in fact and in law it is a residence if it is 
coupled with the intention to remain. 

The possible confusion incident to the use of the term "resi- 
dence " in this connection is well illustrated by the state of 
facts in White v. Tennant.^ In that case the party abandoned 
his residence in one State, with no intention of resuming it, and 

• Kinggold V. Barley, 5 Md. 186, 59 Am. Dec. 107, 109 ; Hairston v. 
Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Mitchell v. United States, 21 
Wall. 350 ; Allgood v. WUliams, 92 Ala. 551, 8 So. 722 ; Price v. Price, 156 
Penn. St. 617, 27 Atl. 291 ; White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 
597 ; Dupuy v. Wurtz, 53 N. Y. 556 ; De Meli v. De Meli, 120 N. Y. 485, 
491 ; City of Hartford v. Champion, 58 Conu. 268, 20 Atl. 471, 473-474 ; 
Shaw V. Shaw, 98 Mass. 158. 

* Dupuy V. Wurtz, 53 N. Y. 556 ; De Meli v. De MeU, 120 N. Y. 485, 
491 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640; Steer's Succession, 47 La. 
Ann. 1551, 18 So. 503, 504 ; Mayo v. Equitable, etc. Society, 71 Miss. 590, 
15 So. 791 ; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597, 601 ; Lowry 
V. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 143-144, 

1 31 W. Va. 790, 8 S. E. 596, 597. See also HiU v. Hill, 166 111. 54, 
46 N. E. 751. The difficulty, where the term " residence " is used, is that 
there is an implication that the stay must be more or less protracted, and that 
if merely momentary, eren though there exists at the time an intention to 
remain permanently, it will not suffice to create a domicil. The reverse oX 
this is true, however, as shown by the above casen. 



116 ACTUAL PRBSBNCE. § 60 

went with his family to a house in another State where he in- 
tended to reside thereafter. After he and his family arrived at 
their new house, only about one half mile from the State line, 
they deposited their baggage, and returned the same day to 
spend the night with a relative residing across the line in the 
State of their former home, intending to return the following 
morning. But the man was detained there by sickness and sub- 
sequently died there, never having returned to his new home, 
and never having in fact resided there. The court however 
held him domiciled in the State of his new home, because, 
though he had never actually lived there, he had been physically 
present there with the intention forthwith to make it his per- 
manent home.* 

Since physical presence (coupled with the animus manendi) 
is all that is required, it is immaterial to inquire whether the 
party is living in a house of his own, in a rented house, iu a 
hotel, in lodgings, or has no place to lay his head. These may 
be, and often are, of the greatest importance as evidences 
whereby to determine whether he has the proper animus ; but 
if that is established otherwise they become unimportant." 

But it must not be supposed that the physical presence must 
continue in order to the formation of the domicil of choice. At 
the moment when a party, being present in a place, forms the 
definite intention to remain there permanently, from that mo- 
ment a domicil of choice is created, which will in general con- 
tinue until a new domicil is acquired, though the party for a 
long period absents himself, or though he is actually there for 
ever so short a time.* 

3 See also Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 
144. 

' Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. See ante, § 24. 

* Dicey, Confl. L. 107. Mr. Dicey names "residence" as the first essen- 
tial of domicil, defining it as "habitual physical presence in a country," and 
then finds it necessary to define ' ' habitual. " It is submitted that the word 
"habitual" is unnecessary. All such qualifications tend to confound the 
factum with the animus, and also tend to confuse the creation of the domicii 
with its continuance, which latter is presumed generally, until physical pres- 
ence elsewhere coupled with the animus manendi creates a new domicil. See 
Hart V. Lindsey, 17 N. H. 235, 43 Am. Dec. 601 ; Lowry v. Bradley. 1 Speer'a 



§ 61 THE ANIMUS MANENDI. 117 

Physical presence in a country is a tangible fact, and may be 
proved, like other facts of that kind, by the testimony of eye- 
witnesses or by circumstantial evidence. It is susceptible of 
easier proof than the animus, because it is tangible, visible, and 
more or less notorious,' while the intention, being rarely ex- 
pressed, must usually be inferred from the acts of the parties or 
from surrounding circumstances. 

Circumstantial evidence is seldom needed to prove the fact of 
presence. If such evidence is called for, it will usually be by 
reason of uncertainty as to the party's identity. In most cases 
where a question of domicil is raised, the dispute is not with re- 
gard to the party's presence, but with respect to the intention.* 

§ 61. The Animas Manendi. — The last essential of a dom- 
icil of choice is the intention to remain permanentl y or for a n 
ind efinite time. The intention shoum not be to remain for a 
fixed period (however long) and then to move away. There 
must be a fixed and definite purpose to remain permanently, or 
at least for an unlimited or indefinite time, without any definite 
intention of ultimate removal.^ 

But it is not necessary that there should be a fixed intention 
to remain during one's whole life. A mere floating intention 
to return to a former home or to live elsewhere at some future 
period unfixed and contingent upon circumstances, as upon an 
indefinite restoration to health or when one's fortune has been 
made, will not prevent the acquisition of a domicil at the new 

Eq. (S. C.) 1, 39 Am. Dec. 142, 143-144 ; White v. Tennant, 31 W. Va. 790, 
8 S. E. 596, 597 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; 
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hill v. Hill, 166 111. 54, 
46 N. E. 751 ; State v. Palmer, 65 N. H. 9, 17 Atl. 977. 

6 Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502, 508 ; Jac. Dom. § 364. 

6 Jac. Dom. §§ 364, 365. 

1 AUgood V. Williams, 92 Ala. 551, 8 So, 722 ; Young v. Pollak, 85 Ala. 
439, 5 So. 279, 282 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; 
Price V. Price, 156 Penn. St. 617, 27 Atl. 291 ; Hood's Estate, 21 Penn. St. 
106, 116 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917 ; Harral v. Harral, 
39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Hill v. Hill, 166 HI. 54, 46 N. E. 
751, 752 ; Dupuy r. Wurtz, 53 N. Y. 556 ; Vischer v. Vischer, 12 Barb. 
(N. Y.) 640, 643 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am, 
Dec. 258 ; Lowry r. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144 ; 
City of Hartford v. Champion, 58 Conn. 268, 20 All. 471, 473. 



118 COMMENCEMENT OF THE INTENTION. § 62 

abode.' The intention however must be settled and fixed. The 
party must have definitely made up his mind to remain. A mere 
probability, however great, that he will stay, or an intention 
conditional upon a contingency, such as his obtaining employ- 
ment, finding the climate suitable to his health, or liking the 
people of the community, will not suffice.' 

The latter case is to be distinguished from that of one who, 
induced by the probability of finding employment, a suitable 
climate, etc., definitely determines to live permanently in a par- 
ticular spot. In the former case the definite animus has not 
been formed. In the latter, it has been formed, though induced 
by probabilities only.* 

§ 62. Commencement of the Intention. — The animus ma- 
nendLalone is not sufficient t o constitute a d f'^'ifV'T "^ ^^^^a^ 
nor is merepEysical presence enough. Both must unite. The 
moment that both exist at the same time the domicil is created^ 

Hence no formation of an intention is of avail unless and 
until it is accompanied by physical presence. Though one 
breaks up his home in one State, intending to remove to another, 
but in itinere changes his mind before reaching the latter State, 
he cannot be held to have been domiciled there. He retains his 
abandoned domicil until he acquires another /acio et animo.^ 

« Story, Confl. L. § 46 ; Hoskins r. Matthews, 25 L. J. (Oh. ) 689, 8 DeG. 
M. & G. 13, 35 Eng. L. & Eq. 532 ; Brunei v. Brunei, L. R. 12 Eq. 298 ; 
Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 505 ; Larquie v. Larquie, 
40 La. Ann. 457, 4 So. 335, 336-337; Hallett v. Bassett, 100 Ma.ss. 167 ; 
Holmes v. Greene, 7 Gray (Mass.), 299; Whitney v. Sherbom, 12 Allen 
(Mass.), Ill, 114; Williams ». Saunders, 5 Coldw. (Tenn.) 60, 79 ; White u. 
Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Ringgold v. Barley, 5 Md. 186, 
59 Am. Dec. 107, 109 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917 ; 
Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21 ; Hart v. Lindsey, 17 
N. H. 235, 43 Am. Dec. 597, 601. 

8 Ross V. Ross, 103 Mass. 576, 577; Whitney v. Sherbom, 12 Allen (Mass.), 
Ill, 114 ; Mayo ». Equitable, etc. Society, 71 Miss. 590, 15 So. 791, 792 ; 
Smith V. People, 44 El. 23. 

* See Hegeman v. Fox, 31 Barb. (N. Y.) 475, 483-484. 

1 Steer's Succession, 47 La. Ann. 1551, 18 So. 503; Borland v. Boston, 
132 Mass. 89, 42 Am. Rep. 424 ; Shaw v. Shaw, 98 Mass. 158 ; Otis v. Bos- 
ton, 12 Gush. (Mass.) 44; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107, 
109. See White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597. 



§ 62 COMMENCEMENT OF THE INTENTION. 119 

Some question has been raised whether the same principle 
will apply where the emigrant, instead of changing his mind, 
dies in itinere. Some most respectable authority seems to 
favor a change of domicil in such case.'' But it is believed 
there is no sound principle upon which this exception to the 
general rule can be predicated, and the weight of authority is 
against it.' 

Again, an intention, though definitely fixed, to reside in a 
given State at & future time, even though it be in the immediate 
future, and though coupled with actual presence there at the 
time of the formation of the intent, will not suffice to consti- 
tute a domicil of choice. The presence must be coupled with 
the intent to reside there from that moment.* 

Thus, one who contemplates moving from one State to another 

2 White V. Tennant, 31 W. Va. 790, 8 S. K 596, 597. See Story, Confl. 
L. §§ 47, 48 ; Munroe v. Douglas, 5 Madd. 405. Judge Story however here 
applies this principle only in case the party is returning from a foreign dom- 
icil of choice to his original or native domicil, but he does not confine it to 
the case of death in itinere. He admits the doctrine in any case where a party 
leaves a foreign domioil of choice on a final return to his original domicil, 
basing it upon the maxim that the domicil of origin easily reverts. See post, 
§§ 65, 66. 

» Bell V. Kennedy, L. R. 3 H. L. 323 ; Brace v. Brace, 2 Bos. & Pul. 229, 
230, note ; Shaw v. Shaw, 98 Mass. 158 ; Harvard College v. Gore, 5 Pick. 
(Mass.) 370. 

* See Otis v. Boston, 12 Cush. (Mass.) 44. The case of White v. Tennant, 
31 W. Va. 790, 8 S. E. 596, 597, is not opposed to this view, though at first 
sight it appears to be. In that case, the party broke up his establishment in 
West Virginia and removed to a house across the State line in Pennsylvania, 
which he had already rented. Upon leaving his West Virginia honse in the 
morning, he intended to make the Pennsylvania house forthwith his home, 
intending to remain there thenceforward. But after arriving there he decided 
to return for the night to his brother's house in Pennsylvania, where he waa 
taken ill and died, without ever having returned to the Pennsylvania house. 
It was held he was domiciled in Pennsylvania. This decision was clearly cor- 
rect. The physical presence in Pennsylvania united with the intention to re- 
side there permanently from that moment. His subsequent decision to return 
for the night to West Virginia did not aCFect the question. If when he started 
out that day from the West Virginia house he had had the intention not to 
begin his residence in the Pennsylvania house until the following morning, the 
decision would probably have been different. 



120 DURATION OP THE INTENTION. § 63 

and goes thither to select a suitable dwelling before moving, 
will not by that act alone be held to have acquired a domicil 
there. His intention to reside will be regarded as conjectural 
merely, and not definite enough to create a domicil ; nor has he 
in such case as yet finally abandoned his former domicil.* But 
if under like circumstances, before he goes into the new State 
upon his tour of investigation, he breaks up his establishment 
in his former domicil entirely, even though he does not bring 
his family with him but sends them to a third State pending 
his selection of a dwelling-place, so that he does not anticipate 
returning to his former domicil at all, it is said that he will 
acquire a new domicil even before a final settlement, for he has 
definitely abandoned his former domicil.* 

On the other hand, it is not essential to the creation of a 
domicil of choice that the intention should be formed immedi- 
ately upon one's entry into a State. The mere presence there 
will not suffice of itself; there must be an intention also, and 
until both concur no domicil arises. But the intention may 
spring up later, and if the actual presence continues at that 
time the new domicil is at that instant acquired.'' 

§ 63. Duration of the Intention. — A domicil once created 
is retained until another is acquired, which in the case of a 
domicil of choice can in general only be facto et animo. If the 
purpose to remain in a country permanently has once existed, 
and while in existence was coupled with actual physical pres- 

6 Behrensmeyer v. Rreitz, 135 111. 591, 26 N. E. 704 ; Cooper v. Beers, 
143 111. 25, 33 N. E. 61. See Bruce v. Bruce, 2 Bos. & Pul. 229, 230, note ; 
Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. 

« Behrensmeyer v. Kreitz, 135 III. 591, 26 N. E. 704. See Cooper v. 
Beers, 143 111. 25, 33 N. E. 61. In the latter case, it seems from the opinion 
that there had been no actual breaking up of the establishment in St. Louis 
(the parties' former home). The court says : *' No act intended as an act of 
removal or in aid of removal to Illinois is proved." If the proposition men- 
tioned in the text is true, a fortiori would it apply if the party brings his 
family with him to the State of his intended residence. See White v. Tennant, 
31 W. Va. 790, 8 S. E. 596. The whole principle however must be taken in 
gubordination to what has been said ante, § 24. 

7 Udny V. Udny, L. R. 1 Sc. App. 441, 458. See Colbum v. Holland, 
14 Rich. Eq. (S. C.) 176, 233. 



§ 64 EVIDENCE OP ANIMUS MANENDI. 121 

ence there, a domicil of choice arises. And since it can be 
changed thereafter only by the acquisition of a new domicil in 
the same way,^ it follows that no subsequent change of intention 
(alone), though the change take place the next day or the next 
moment, will effect a change of domicil. 

We may even go a step further and lay it down as a corollary 
that though physical absence from the country be united with 
an intention to make that country no longer the party's home, 
the domicil will not in general be thereby destroyed. These 
mere negative propositions will effect no change of domicil. The 
propositions must be affirmative. The party must not only be 
absent from his former home, but must be present in the new ; he 
must not only intend not to make the former home his permanent 
abode hereafter, but must affirmatively intend to make the new 
home his permanent abiding place. And both these affirmative 
propositions must coexist.' 

§ 64. Evidence of Animus Manendi. — As in all questions 
of intention, it is often extremely difficult to arrive at a certain 
conclusion touching the animus manendi in cases of domicil. 
Much of the difficulty in ascertaining the domicil arises from 
this source. The trouble for the most part lies in the fact that 
the intention is rarely expressed, and must be inferred from 
all the surrounding circumstances. 

The question in such cases is not what the party has said, 
but what was his real intention. The fact that one openly 
proclaims a place to be his permanent home does not make it so 
unless in fact the intention to reside there permanently exists. 
In general, however, the declarations of the party are admitted 
in evidence of the intention, as part of the res gestce.^ 

^ A modification of this principle may be noted in the case of a party who 
abandons a foreign domicil of choice, purposing to return to the country ot 
which he is a citizen. See post, § 66. 

2 See City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471 ; Dupuy v. 
Wurtz, 53 N. Y. 556 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am. 
Dec. 258 ; Shaw o. Shaw, 98 Mass. 158 ; Price v. Price, 156 Penn. St. 617, 27 
Atl. 291 ; Cooper v. Beers, 143 111. 25, 33 N. E. 61; Mitchell v. United States, 
21 Wall. 350. 

1 Jac. Dom. §§ 449 et seq., to which the reader is referred for a full 



122 EVIDENCE OF ANIMUS MANENDI. § 64 

Frequently there are no declarations, or they are ambiguous 
or untrustworthy as evidence. In such cases the courts are com- 
pelled to rely upon the acts of the party and the surrounding cir- 
cumstances. In the decision of this question there are no points 
in a man's life, however trifling they may appear, which may not 
be examined. Amongst the acts and circumstances which have 
been considered by the courts in the determination of domicil 
are the exercise of the voting franchise ; " the payment of taxes 
on personalty ; * the ownership of a place of residence or of 
business ; * continued residence in a country ; * attendance upon 
a church, and active participation in its affairs ; ' and various 
other circumstances of themselves trivial but sufficient to turn 

discussion. See Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Wilson v. 
Terry, 11 Allen (Mass.), 206 ; Holmes v. Greene, 7 Gray (Mass.), 299, 300 ; 
Viles V. Waltham, 157 Mass. 542, 32 N. E. 901 ; Thomdike v. Boston, 1 Met. 
(Mass.) 242 ; Mitchell v. United States, 21 Wall. 350 ; Ennis v. Smith, 14 
How. 400, 401 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 580 ; Steer's 
Succession, 47 La. Ann. 1551, 18 So. 503, 506 ; Robert's Will, 8 Pai. Ch. 
(N. Y.) 519; Hegeman v. Fox, 31 Barb. (N. Y.) 475, 478-479; Fulham v. 
Howe, 62 Vt. 386, 20 Atl. 101. But see Wright v. Boston, 126 Mass. 161 ; 
Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108. 

2 Jac. Dom. §§ 435 et seq. ; Mitchell v. United States, 21 Wall. 350; 
Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 506. Voting has even been 
said to be conclusive evidence of the party's intention to remain permanently, 
since there should be no presumption of fraud on the part of the voter. See 
Shelton v. Tiffin, 6 How. 163. But the weight of authority is in favor of its 
being considered only prima facie evidence of the animus manendi, since it 
may result from fraud or from the voter's bona fide mistake as to his legal 
rights. East Livermore v. Farmington, 74 Me. 154 ; Easterly v. Goodwin, 
35 Conn. 279 ; Hayes v. Hayes, 74 111. 312; Folgerw. Slaughter, 19 La. Ann. 
323. 

« Jac. Dom. §§ 442 et seq. ; Mitchell v. United States, 21 Wall. 350 ; Har- 
vard College V. Gore, 5 Pick. (Mass.) 370. Such property is liable to taxation 
generally at the domicil of the owner. 

* Some authorities are inclined to give these last preponderating weight. 
See Story, Confl. L. §§ 46, 47. But though raising strong presumptions, they 
are not conclusive. Jac. Dom. §§ 401, 410 et seq. 

6 Dupuy w. Wurtz, 53 N. Y. 556; Elbers v. Ins. Co. 16 Johns. (N. Y.) 
128 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Ennis v. Smith, 14 How. 
400, 401 ; Shelton v. Tiffin, 6 How. 163. But see Jopp v. Wood, 4 DeG. J. & 
8. 616, 622. 

• Fulham v. Howe, 62 Vt. 386, 20 Atl. 101. 



§ 64 EVIDENCE OF ANIMUS MANENDI. 123 

the scale in a close case, many of which will be found enumer- 
ated in more copious treatises on the subject of Domicil.' 

There is one combination of circumstances which deserves 
special attention in this connection and has given the courts 
much trouble. It is the case of double residence. 

A perft on may h aye two residences between which he divides 
his t ime, ^ince he can have only one domicJL it i s often 
difficult to tell which should be so regarded^__Jf ona-4g his, 
principaT establishment, the other being used only for short 
periods of the year, the first will clearly be the place of his 
doHiicil.* Or if one is his residence and the other his place of 
business, though he actually spends more time at the latter, 
there can be no doubt that the first is his domicil.' But if both 
are residences, and he passes about an equal portion of the year 
in each, with his family and establishment, it often becomes ex- 
tremely difficult to decide which is his domicil. Great weight 
in these doubtful cases should be attached to the presumption of 
the retention of a prior domicil, and unless the evidence clearly 
predominates in favor of the home last acquired, the presump- 
tion should be in favor of the first as the party's domicil." 

In the absence of any circumstances from which the courts 
may infer the animus, they are accustomed to fall back on two 
legal presumptions, without which it would in some cases be 
impossible to arrive at any conclusion as to a party's domicil. 

The first of these is the presumption that the party has re- 
tained the last domicil known to have been possessed by him. 
This follows from the principle that a domicil once acquired is 
retained until another is gained, and from the other principle 
growing out of it that the burden of proof is on him who alleges 
a change of domicil.^^ 

^ See Jac. Dom. eh. xxii et seq. ; Wliart Confl. L. §§ 63 et seq. ; Dicey, 
Confl. L. 134, 135; Story, Confl. L. §§ 46-49. 

8 Thayer v. Boston, 124 Mass. 132. » Ibid. 

10 See Jac. Dom. §§ 422, 423 ; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 
602, 507. In Chenery v. Waltham, 8 Cush. (Mass.) 327, a curious instance 
of double residence occurred, the dividing line between two towns running 
through a man's house. See Jac. Dom. § 425. 
u Dicey, Confl. L. 133 ; ante, §§ 29, 56. 



124 EFFECT OF ABANDONMENT OF DOMICIL. § 65 

The second is the presumption of domicil inferred from mere 
presence in a country, in the absence of evidence to the 
contrary. 

We have already seen that residence in a country may 
je ground to infer the animus manendi, in the absence of 
evidence to the contrary.^'^ This second presumption proceeds 
a step further, and provides for those cases (otherwise not to be 
solved) in which all that is known of the party is that he is 
found in a particular State. A newborn child may be laid at 
some one's door, or a stranger may be found dead, leaving no 
clue to identify him. In these cases, there being no evidence 
upon which to base an opinion, since according to the general 
principle no person can ever be without a domicil, the law must 
rely upon the weak presumption afforded by mere presence there. 
There is no ground upon which to fix his domicil elsewhere.^' 

§ 65. Effect of Abeuidonment of Domicil — Conflicting 
Views. — In the case of the domicil of origin, it is very clear 
that the intention to abandon it permanently, even when coupled 
with an actual abandonment thereof in pursuance of such inten- 
tion, will not cause it to be lost, provided the party does not 
acquire a new domicil, for no person can be without a domicil, 
and there is none other that can be assigned him.^ 

But if the abandoned domicil be not the domicil of origin, it 
is possible for his original domicil to be assigned him. Even 
though no new domicil be acquired, the party will always have 

" Dupuy V. Wurtz, 53 N. Y. 556 ; Elbers v. Ins. Co., 16 Johns. (N. Y.) 
128 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 ; Ennis v. Smith, 14 How. 
400, 401. 

18 Dicey, Confl. L. 132-133 ; Jac. Dom. §§ 375, 376 ; Bempde v. Johnstone, 
3 Ves. Jr. 198 ; Bruce ^. Bruce, 2 Bos. & Pul. 229, 230, note ; Taylor v. 
Sharp, 108 N. C. 377, 13 S. E. 138 ; Guier v. O'Daniel, 1 Binu. (Penn.) 349, 
note. See Flood v. Growney, 126 Mo. 262, 28 S. W. 860. We have seen the 
application of this principle to determine the original domicil of foundlings, 
ante, § 34. 

1 De Meli v. De Meli, 120 N. Y. 485, 491 ; Price v. Price, 156 Penn. St. 
617, 27 Atl. 291; Hallett v. Bassett, 100 Mass. 167 ; Shaw v. Shaw, 98 Mass. 
168 ; Jennison v. Hapgood, 10 Pick. (Mass. ) 77, 98, 19 Am. Dec. 258 ; Har- 
vard College v. Gore, 5 Pick. 370 ; Bell v. Kennedy, L. R. 3 H. L. 307. But 
see In re Rice, 42 Mich. 528, 4 N. W. 284. 



§ 65 EFFECT OF ABANDONMENT OF DOMICIL. 125 

his domicil of origin in reserve, which he may consider his 
home. In such case therefore the question arises, Shall the 
presumption of the retention of the la^t domicil be respected ? 
Shall the party, having voluntarily abandoned a foreign domicil, 
be considered as still residing there, contrary to the notorious 
fact and to his evident desire and intention, merely because he 
has not yet made a home for himself elsewhere ? Or shall he 
be presumed (for the nonce) to have resumed his original and 
native domicil ? 

The English authorities are in favor of the latter view, hold- 
ing one who has abandoned a foreign domicil but has not 
acquired a new one to have resumed ipso facto his domicil 
of origin, though he has no intention of actually returning 
thither. 2 

Mr. Jacobs considers the American doctrine to be that the 
domicil of origin reverts only in the single case where the party, 
upon an abandonment of his foreign domicil, sets out to return 
to his original domicil ; he then acquires as his domicil, even in 
itinere, the domicil of origin.' But it cannot be doubted that 
the great current of American authority lays down the principle 
without qualification tha t a do micil onffo arqniTPrl ]}j on&sui 
juris is retained, even after, a bandon mftnt, — mitil anot her_i8 
acquired ^ac^Q et a nim o, and no hint is given of any e xception.* 

The ca 8_es cited (by no means ^t] ftYTiannfiVft ^^ll ^ctiou) ave 
believed to establish the American doctrine in favor of the reten- 
tion of the former domicil in all cases until another is acquired 
animo et facto. 

2 Dicey, Confl. L. 117, 118 ; Udny v. Udny, L. R. 1 Sc. App. 441, 454 
See also Story, Confl. L, § 48 ; The Venus, 8 Cr. 253. 

8 Jac. Dom. § 201. See also Story, Confl. L. § 47. 

* Mitchell V. United States, 21 "Wall. 350 ; Desmare v. United States, 
93 U. S. 605 ; Allgood v. Williams, 92 Ala. 551, 8 So. 722 ; Lowry v. Bradley, 
1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142 ; Price v. Price, 156 Penn. St. 617, 
27 Atl. 291 ; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471 ; 
Olson's Will, 63 la. 145, 18 N. W. 854 ; Hood's Estate, 21 Penn. St. 106 ; 
Williams r. Saunders, 5 Coldw. (Tenn.) 60, 79, 80; Harvard College v. Gore, 
5 Pick. (Mass.) 370 ; Shaw v. Shaw, 98 Mass. 158 ; Vischer v. Vischer, 
12 Barb. (N. Y.) 640, 643. Indeed, in Harvard College v. Gore, supra, the 
court expressly disapproves such an exception. 



126 ABAJTDONMBNT — SOLUTION SUGGESTED. § 66 

§ 66. Same — A Solution suggested. — Mr. Jacobs has 
pointed out some strong objections to the English view of the 
reverter of the original domicil,* and the English judges have 
denounced the American rule as entirely irrational. "^ Indeed 
objection, more or less pronounced, may be taken to all the 
theories mentioned in the preceding section. 

There is another theory, not specifically adverted to by the 
authorities, which is submitted as being logical and at the same 
time going far to reconcile the conflicting views, lying as it does 
between the extremes. 

A distinction should be taken between those cases where the 
party's ties to the original domicil may be presumed to be close 
and those where they are of a slight character: between those 
cases where the party owes allegiance to, and is a citizen of, the 
country of his origin, whither his thoughts would naturally 
turn, and those cases where he has either never owed such alle- 
giance to that country or else has thrown it off by naturalization 
elsewhere. 

It is manifest that an Englishman, born in England of parents 
domiciled there, who lives there until he is twenty-one, but who 
subsequently changes his domicil to Holland,' would regard him- 
self, if he should abandon his Dutch domicil, still an English- 
man, and his home as in England until he selects another 
(though he does not return thither).* In such case, it is plainly 
reasonable that the law should not compel him to retain his 
Dutch domicil and be governed in many respects by its laws, 
after he has deliberately abandoned it. On the contrary, it 
would be natural and just to infer that he intends to resume liis 
English domicil of origin in the interim, though he does not 
actually return to England and does not intend to do so. The 
question is not whether he intends to live in England, but 
whether he intends to place himself in the same position he 
would have occupied if he had acquired no domicil of choice. 

1 Jac. Dom. § 199. * Udny v. Udny, L. R. 1 Sc. App, 441. 

' This is the case suggested by Lord Westbnry in Udny v. Udny, L. R. 
1 Sc. App. 441. 

* This case is adduced in Udny v. Udny, supra, against the retention 
theory. 



§ 66 ABANDONMENT — SOLUTION SUGGESTED. 127 

Now let us suppose the same Englishman to be born of Eng- 
lish parents, domiciled at the time of his birth in America, who 
shortly afterwards return to England to live, and there bring 
up their son, the other circumstances remaining the same.' He 
has no ties of allegiance or connection with America. There is 
no logical reason here to suppose that, having abandoned his 
Dutch domicil as before, he would look upon America, his acci- 
dental domicil of origin, as his home, rather than England.* 

Or if his domicil of origin be English, but he (or his parents 
for him), having in childhood or after maturity deliberately 
severed the ties of allegiance that bind him to that country, 
becomes a naturalized citizen of the United States, and then 
(as before) acquires and abandons his Dutch domicil, why should 
the law presume that he regards England as his home, whose 
allegiance he has cast off, rather than America, whose citizen he 
is ? In such case, England certainly has the least claim of any 
of the States concerned. 

The true theory (if we do not accept citizenship in all such 
cases as the true basis'), it is submitted, is that, upon an aban- 
donment of a foreign domicil, none being actually acquired else- 
where, the original domicil is resumed, if it be the State whereof 
the party is a citizen (whether native or naturalized), for the 
law may justly presume him when homeless to look upon that 
country as his home. But if he were never a citizen of the 
country wherein is his domicil of origin, or if he has since be- 
come a naturalized citizen of another, the reason ceases for this 
exception to the general rules regulating the acquisition of domi- 
cil, and the doctrine of the retention of the domicil, until a new 
one is acquired yac^o et animo, will apply. 

This is in accord with the great mass of American authority, 
which, as we have seen, pays little heed to the English principle 

* This is in substance the case supposed by Mr. Jacobs to illustrate the 
irrational character of the English doctrine of reverter of original domiciL 
See Jac. Dom. § 199. 

• See Douglas o. Douglas, L. R. 12 Eq. 617, 643. 

^ The most reasonable doctrine is to adopt citizenship in this instance as 
the criterion of domicil, under %X\. circumstances, but as yet none of the au- 
thorities have gone so far. 



128 ABANDONMENT SOLUTION SUGGESTED. § 66 

of the reverter of the original domicil. For with us, a citizen 
of the United States, no matter where his domicil of origin, is a 
"citizen oi the State wherein he resides (or is domiciled).* Hence, 
upon the principle above mentioned, a citizen of the United 
States, whose original domicil is in one State, who acquires a 
domicil of choice in another, which he subsequently abandons 
(acquiring no new domicil elsewhere) should not resume his 
domicil of origin in the interim, but should retain his last 
domicil until he actually acquires another /acio et animo. For, 
when he abandons the State of his original domicil and becomes 
domiciled in another State of the Union, he ipse facto abandons 
his citizenship of the first State also, and there is no ground 
upon which to base a presumption of the reverter of the original 
domicil. The case is thus seen to be similar to that, above ad- 
verted to, of the Englishman who abandons his Dutch domicil 
of choice, after becoming a naturalized American citizen.' 

In Udny v. Udny, ^^ Lord Westbury criticises a doctrine nearly 
approaching this laid down in First Nat. Bank v. Balcom,^^ de- 
claring that to so hold ''is to confound the political and civil 
states of an individual, and to destroy the difference between 
patria and domicilium." 

' U. S. Const. Amendment XIV. 

* It is worthy of remark that some of the American courts seem to have 
taken this view. First Nat. Bank v. Balcom, 35 Conn. 351 ; Steer's Succes- 
sion, 47 La. Ann. 1551, 18 So. 503, 504; In re Rice, 42 Mich. 528, 4 N. W. 
284. But see dictum in Allen v. Thoraason, 11 Humph. (Tenn.) 536, 54 Am. 
Dec. 55, 57, quoting Story, Confl. L. § 47. Story's view, it is believed, is not 
far removed from that above given. He says (§ 48) : "A national character 
acquired in a foreign country by residence changes when the party has left the 
country animo non revertendi, and is on his return to the country where he 
had his antecedent domicil. And especially if he be in itinere to his native 
country with that intent, his native domicil revives while he is yet in tran- 
situ, for the native domicil easily reverts. The moment a foreign domicil is 
abandoned, the native domicil is reacquired." 

w L. R. 1 Sc. App. 441, 460. 

11 35 Conn. 351. In that case the court uses the following language, 
which was the subject of Lord Westbury's animadversion : " The principle 
that a native domicil easily reverts applies only to cases where a native citizen 
of one country goes to reside in a foreign country, and there acquires a domicil 
by residence without renouncinj^ his original allegiance In such cases his 



§ 67 SITUS OF CORPORATIONS. 129 

With all the deference due to such eminent authority, t is 
submitted that to advert to citizenship as a means of deter- 
mining the probable intention and wishes of the party is not 
to confound citizenship with domicil, but, on the contrary, to 
recognize them as distinct, and from the natural influence of 
nationality or citizenship to deduce the probable intention to 
resume the domicil of origin or not to resume it. 

There are other instances in which the probability of an in- 
tention or a desire to consider a particular country as one's 
permanent home supplies a rule whereby to ascertain the con- 
structive domicil, as in the case of infants and married women. 

And the effect of a probability of one's desire to resign his 
domicil of origin on account of citizenship in another country 
is expressly recognized in several cases as entitled to great 
weight.^* 

There seems therefore to be no valid reason why the proba- 
bility of one's desire to resume his domicil of origin, upon the 
abandonment of a domicil of choice, should not in like manner 
be inferred from his citizenship in the former country. And on 
the other hand, in the absence of the probability of such desire, 
there is no reason to imply it. 

§ 67. Situs (or Domicil) of Corporations. — There is, 
strictly speaking, no such thing as the "domicil" of a cor- 
poration, for it can have no permanent home in the ordinary 
and usual meaning of the term. But a corporation, like every 
other thing, act, or circumstance known to the law, may and 
must have a situs. 

The situs of a corporation, like that of a natural person, 

native domicil reverts as soon as he begins to execute an intention of return- 
ing ; that is, from the time he puts himself in motion bona fide to quit the 
country sine animo revertendi, because the foreign domicil was merely adven- 
titious and de /ado, and prevails only while actual and complete. . . . This 
principle has reference to a national domicil in its enlarged sense, and grows 
out of native allegiance or citizenship. It has no application when the ques- 
tion is between ^ native and acquired domicil, where both are under the same 
national jurisdiction." 

12 Sharpe v. Crispin, L. R. 1 P. & D. 611, 621 ; Douglas v. Douglas, L. R. 
12 Eq. 617, 643; Otis v. Boston, 12 Gush. (Mass.) 44; Greene v. Greene, 
11 Pick. (Mass.) 409, 415. 





130 SITUS OP CORPORATIONS. § 67 

may be either actual or legal. It is the legal situs with which 
we now have to do, which is generally styled, inaccurately, the 
domicil of the corporation. It is not such, however, in the full 
sense of the term, and hence the rules for ascertaining the 
so-called domicil of a corporation, though in large measure analo- 
gous to those by which the natural person's domicil is deter- 
mined, are by no means identical with them. 

Thfe^gpueral mle.ig_well settled that ^ corporation j s*^ domi- 
ciled " or has its legal situalnthe State where it is incorporated, 
not where its stockholders reside.^ ^^ it does^ not cFange its 
domicil by merely doing business elsewhere. Its actuaL_situs 
(through its agents) -may_be__in_ the latter ^l.acfi»-lmJLjt8 legal 
situs is unchanged.^ 

But if a corporation is chartered in several States successively, 
as sometimes in the case of railroad companies, it becomes a 
citizen of each of those States, and thus may, unlike an indi- 
vidual, have several domicils at the same time.' 

» B. & 0. R. R. Co. V. Glenn, 28 Md. 287, 92 Am. Dec. 688 ; Boehme r. 
Rail, 51 N. J. Eq. 574, 26 Atl. 832 ; Chafee v. Bank, 71 Me. 514, 36 Am. 
Rep. 345, 351 ; Chamberlain v. Chamberlain, 43 N. Y. 424, 432 ; Bank of 
Augusta V. Earle, 13 Pet. 520, 586, 587 ; B. & 0, R. R. Co. v. Koontz, 104 
U. S. 10, 11 ; Douglas r. Ins. Co., 138 N. Y. 209, 33 N. E. 938; Boston In> 
vestment Co. v. Boston, 158 Mass. 461 ; Railroad Co. v. Barnhill, 91 Tenn. 
395, 19 S. W. 21 ; Memphis, etc. R. Co. v. Alabama, 107 U. S. 581. 

2 Faulkner v. Hyman, 142 Mass. 53, 55 ; Chamberlain v. Chamberlain, 
43 N. Y. 424, 432 ; Chafee v. Bank, 71 Me. 614, 36 Am. Rep. 345, 351 ; Bank 
of Augusta V. Earle, 13 Pet. 520, 586. 

» See Whart. Confl. L. § 48 o ; B. & 0. R. B. Ca ». Glenn, 28 Md. 287, 
92 Am. Dec. 688. 



§ 68 8ITUS OF STATUS. 131 



Jlsu^iJl S^aAl^ 



PAKT m. 

SITUS OF STATUS. 

§ 68. Preliminary — Situs of Status follows the Situs of the 
Person. — The at tributes and qualities attac hed to a person by 
nppnttion nf IfiTTj r^gardlf'Sfi nl. his own wis hes, constitute his 
stat iLS in la w. As ^ well defined in a leading jflnglish cas e : * 
* * Th e status of an indiyidual. used in a le^al sense , is the legal 
rel ation in which that indiv idna|| atanilH to |fh e rest of the coin- 
nmnity." ' 

These legal relations may be various. One who is under age 
does not occupy the same relation to the rest of the community 
as one who is an adult: the relations of a single man differ 
from those of one who is married; one who is competent to 
transact business occupies a different relation from one who is 
not ; a legitimate or adopted child from one who is not ; a ward 
from one who is not under guardianship ; a fiduciary from one 
who is acting for himself, etc. All these and others that need 
not be enumerated are instances of status. 

It is natural and proper that these personal attributes or 
qualities, grouped under the generic term status, should follow 
the person to whom they are attached, and should in the main 
be regulated and governed by the same law that governs him. 
Indeed, for the most part, it is through these qualities and at- 
tributes that a particular law can be said to govern a person at 
all. The law which governs the person is in general the law of 
his situs. Hence the law governing the status of the person is 

1 Niboyet v. Niboyet, 4 P. D, 11. 

' See also Ross v. Ross, 129 Mass. 243, 246, 37 Am. Bep. 321 ; Van Matre 
V. Sankey, 148 111. 356, 36 N. E. 628 ; Freeman's Appeal, 68 Conn. 533, 
37 Atl. 4-20, 421 ; De La Montanya v. De La Montanya, 112 Cal. 101, 32 
L. R. A. 82 , 87, 53 Am. St. Rep. 165 



132 SITUS OF STATUS. § 68 

the law of his situs. The law of the person's situs then is ''the 
proper law " controlling the status. 

But we have seen in a preceding chapter* that when a 
''proper law " comes to be enforced in another State, there are 
certain circumstances, such as the consequent violation of the 
policy of the forum or the perpetration of injustice upon its 
people, that may lead the courts of the forum to substitute the 
lex fori in a given case in the place of the proper law. This is 
exemplified in some whole groups of status, as in the case of 
fiduciaries,* where the application of the lex fori is the rule 
rather than the exception; and sometimes in other cases of 
status where the exceptional circumstances arise. 

But when we say that "the proper law " to determine status 
is the law of the person's situs, we must bear in mind that the 
person's situs may be twofold. He may have an actual situs 
or he may have a distinct legal situs or domicil ; that is, his 
actual situs may be recognized for one purpose, and his legal 
situs for another, and the two need not coincide.' 

We have also seen that the actual situs of a person is looked 
to in those matters which are the result of the person's activity 
and voluntary efforts, for in respect to such matters the recog- 
nition of the sovereignty of the State wherein they arise de- 
mands that its law should govern them, and to the operation of 
that law the party has voluntarily and deliberately submitted 
himself.' On the other hand, if the rights or liabilities in dis- 
pute have been conferred upon the party, not by his own volun- 
tary act, but as a result of the operation of law, if they are 
dependent upon the law of the person's situs at all, it will in 
general be the legal, not the actual, situs of the person, that will 
furnish the applicatory law.' We shall hereafter have occasion 
to apply these principles more than once ; they are at the foun- 
dation of many of the problems that present themselves. 

With respect to the particular instance, now under consider- 
ation, of the application of the law of the person's situs, namely, 
the status of the individual, it may be said that it belongs in the 

« Chapter H. * Post, Chapter IX. 

8 S«e ante, § 18. « See ante, §§ 17, 18. 

T See ante, §§ 17, 18 



§ 68 SITUS OP STATUS. 133 

main to the second class of cases above mentioned, that is, mat- 
ters arising by operation of law without the active intervention 
of the party. Hence, the general rule of private international 
law is that questions of status are to be determined by the law 
of the legal situs or domicil (lex domicilii) of the party whose 
status is in dispute.* 

But this is not universally true, and under some circumstances 
"the proper law " to determine a status may be the law of the 
person's actual situs,' while in other cases the lex fori may be 
substituted for the proper law altogether. 

The status may be considered under four main groups, to each 
of which one or more chapters will be devoted. These are: 
(1) Personal capacity; (2) The marriage status; (3) The status 
of legitimacy and adoption ; and (4) The status of fiduciaries. 

8 Lamar v. Micou, 112 U. S. 452 ; Ross v. Ross, 129 Mass. 243, 246, 37 
Am. Kep. 321 ; Watkins v. Watkins, 135 Mass. 83, 84 ; Adams v. Adams, 
154 Mass. 290 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; Miller v. Campbell, 
140 N. Y. 457, 460, 35 N. E. 651 ; Miller v. Miller, 91 N. Y. 315 ; Moultrie 
17. Hunt, 23 N. Y. 394, 403-404 ; "Woodward v. Woodward, 87 Tenn. 644, 11 
S. W. 892, 893 ; Armstrong w. Best, 112 N. C. 59, 17 S. E. 14 ; State v. Ken- 
nedy, 76 N. G 251, 22 Am. Rep. 683 ; People v. Dawell, 25 Mich. 247, 12 
Am. Rep. 260 ; Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac. 915 ; 
Gray v. Holmes, 57 Kan. 217, 33 L. R. A. 207, 45 Pac. 596 ; Melvin v. Martin, 
18 R. I. 650, 30 Atl. 467; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 
507, 508 ; Jones v. Jones, 67 Miss. 195, 6 So. 712 ; Gregory v. Gregory, 78 
Me. 187, 57 Am. Rep. 792 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 
134 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916 ; Birtwhistle v. Vardill. 
7 CI. & F. 895 ; Skottowe v. Young, L. P^. 11 Eq. 474 ; Price r. Dewhurst, 
S Sim. 279. 

» Post, §§ 72, 78. 



184 SBVEEAL SOBTS OF CAPACITY. § 69 



CHAPTER V. 

STATUS OF PERSONAL CAPACITY. 

§ 69. Capacity in General — Several Sorts of Capacity. ^ 

In general, the capacity or incapacity of a person to take part 
in a particular transaction is not an active but a passive element 
of the transaction, one imposed by law, and independent of the 
will of the parties. 

Theoretically therefore, upon principles just examined, the 
proper law governing the capacity or incapacity of the person 
is the law of the person's legal situs or domicil (lex domicilii), 
not the law of his actual situs. And in general, as we shall see, 
this is the rule.^ 

But when the matter with respect to which the party's capacity 
is questioned is the result of a voluntary and deliberate act on 
the part of the person, for example, the making of a contract in 
a particular State (other than his domicil), a serious question 
arises whether his capacity to enter into such contract is to be 
governed by the law of his legal situs (lex domicilii) or by the 
law of his actual situs (the place where the contract is entered 
into). The point, being one upon which the courts are much 
confused, will be discussed hereafter.^ 

As illustrating this distinction, in respect to capacity, between 
the active participation of a party in a given transaction and 
such participation as is imposed upon him by the law, it will 
not be amiss to quote the language of a leading Massachusetts 
decision : • 

"The capacity or qualification to inherit or succeed to prop- 
erty, which is an incident of the status or condition, requiring 
no action to give it effect, is to be distinguished from the 

» Post, 5§ 70, 71 et seq. 3 Post, §§ 72, 73. 

• Ross V. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321, Gray, J. 



§ 69 SEVERAL SORTS OF CAPACITY. 135 

capacity or competency to enter into contracts that confer rights 
upon others. A capacity to take and to have differs from a 
capacity to do and contract; in short, a capacity of holding, 
from a capacity to act." 

It will be seen that when the actual situs and the legal situs 
(or domicil) of the party coincide, that is, when the act or mat- 
ter in question arises in the domicil, the lex domicilii will, 
under all circumstances, be the proper law to determine the 
party's capacity, no matter where the question may arise. It is 
true that the proper law may be substituted by the lex fori, but 
only in the exceptional cases heretofore discussed.* 

If the act is a voluntary one (e. g. making a contract) per- 
formed in a third State, the question arising in a State other 
thoM the party's domicil, the courts of such State will usually 
hold that the law of the place where the contract is entered into, 
or other act is done, that is, the law of the actual situs of the 
person at that time, will govern his capacity to do the act.* 

But if, though the act be voluntary and performed in a third 
State, the question is raised in the party's domicil with respect 
to his capacity or incapacity to do the act, there is great differ- 
ence of opinion, or at least apparent difference of opinion, as to 
the law which should govern.' 

The status of personal capacity is to be examined, according 
to the character of the transaction, in different aspects. The 
primary distinction is that already noted between cases of 
involuntary transactions (if the expression may be used) and 
those which are the result of voluntary action by the party. 
We will consider two instances of capacity under each of these 
heads. 

The first instance of capacity under the head of involuntary 
transactions is that of the capacity to make a will and to be a 
beneficiary thereunder. At first glance, the making of a will 
would seem to be a voluntary act of the testator, but a moment's 
reflection will show that though the actual writing of a will is a 

< Chapter II. 6 Post, §§ 72, 73. 

• Post, §§ 72, 73. The discrepancy is due for the most part to the diflFer- 
ent conceptions of the various courts as to the importance to be attached to 
the policy of the forum. 



136 TESTAMENTARY CAPACITY. § 70 

voluntary act on the part of the testator, it is dependent for its 
effect upon his death, which is involuntary. It is therefore 
to be classed under this head.' 

The second instance of capacity in involuntary transactions 
may be designated business capacity in general (exclusive of 
contracts and other voluntary acts). Under this head are 
grouped all those cases in which the abstract question arises 
whether the party is a competent agent, but in which he does 
no voluntary and deliberate act.' 

Under the head of voluntary transactions, the first instance 
of capacity will arise in respect to the making of contracts in 
general, and the second with respect to capacity to enter into 
the contract of marriage in particular.' The *' proper law " to 
regulate those instances of capacity belonging to the first class 
is the law of the party's legal situs or domicil; while capacities 
of the second class are controlled by the law of the party's 
actual situs at the time of the transaction, subject to modifica- 
tions which will be discussed hereafter. 

§ 70. Testamentary Capacity. — In respect to the capacity 
to make a will, a distinction, already adverted to, must be made 
between wills of lands and wills of personal property. In re- 
spect of wills of lands, the testamentary capacity of the testator 
is one of the steps in the chain of title, all of which are to be 
regulated by the law of the place where the land is situated. 
Hence, it is well settled that the lex situs of the land governs 
the capacity to devise, as well as the formal and substantial 
validity of the will.^ 

But in the case of a will of personalty the rule is otherwise, 
the legal situs of personal or movable property being with the 
person of the owner. Hence the general rule of private inter- 
national law is that the law of the owner's situs shall deter- 
mine his capacity to bequeath it; and since the will takes effect 

» See post, §§ 70, 142. « Post, § 71. 

» Post, §§ 72, 73. 

1 Ante, § 11 ; Story, Confl. L. § 474 ; Boss r. Ross, 129 Mass. 243, 246, 
37 Am. Rep. 321 ; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 61, 70; Car- 
penter V. Bell, 96 Tenn. 294, 34 S. W. 209 ; Frazier v. Boggs, 37 Fla. 307, 
20 So. 245. 



§ 70 TESTAMENTARY CAPACITY. 137 

by the death of the testator (an involuntary act) it is the law 
of the testator's legal situs (or domicil) at the time of his 
death that will govern. That the lex domicilii of the testator 
is the proper law to govern testamentary capacity in case of 
personalty is settled beyond dispute." 

It is not always easy however to determine when a question 
is really one of testamentary capacity. Because the law of a 
State prohibits its citizens to make particular testamentary dis- 
positions, it does not follow that the prohibition is against their 
testamentary capacity. In order to create a true testamentary 
incapacity, the policy of the prohibiting law must be directed 
against the right of the testator to dispose of his property, not 
against some particular form of disposition he may desire to 
make, nor against the right of his beneficiary to hold the prop- 
erty bequeathed. 

Thus, a law prohibiting a person under legal age to make 
a will creates a testamentary incapacity; or a law prohibiting 
married women from bequeathing their property, whether ap- 
plying to all or only part of their possessions. So also, a law 
providing that no will shall be valid, unless executed a certain 
time before the testator's death ; or a law providing that no will 
creating a charitable trust shall be valid if executed within a 
named time before the death of the testator ; or a provision that 
a testator shall not give more than a certain proportion of his 
estate to charities. The policy of all these provisions is to 
prevent the testator from making indiscreet dispositions, to the 
disinheritance of his family. They are aimed to deprive him of 
a discretion which, if given full sway, might result in injustice 
to those dependent upon him. They create a true testamentary 
incapacity. The policy of such laws is applicable to all persons 
who are subject to them, to all persons domiciled in that State, 

2 Koberts' Will, 8 Pai. Ch. (N. Y.) 519; Chamberlain r. Chamberlain, 
43 N. Y. 424, 432-433 ; Kerr r. Dougherty, 79 N. Y. 327, 341 ; Cross v. Trust 
Co., 131 N. Y. 330, 340 ; Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712 ; 
Ford V. Ford, 70 Wis. 19, 33 N. W, 188, 194 ; Sickles v. New Orleans, 52 
U. S. App. 147, 80 Fed. 868, 873 ; Montgomery v. Millikin, 5 Sm. & M. 
(Miss.) 151, 43 Am. Dec. 507 ; Cameron v. Watson, 40 Miss. 191, 207; Wil- 
liams V. Saunders, 5 Coldw. (Tenn.) 60 



138 TESTAMENTARY CAPACITY. § 70 

regardless of their actual situs, or the actual situs of the prop- 
erty bequeathed. Wherever the latter may be, it must for this 
purpose be regarded as helping to make up the aggregate wealth 
of the State whose citizen the owner is. The strict lex scripta 
of the testator's domicil therefore will govern testamentary 
incapacities of this character.* 

On the other hand, a law is not a restriction upon testamen- 
tary capacity, which avoids a will creating a trust to endure 
longer than lives in being, or other perpetuity; or which avoids 
charitable trusts, or other vague and indefinite dispositions. 
These prohibitions are not for the protection of the testator's 
estate from his improvident dispositions, but for the general 
welfare of the State, or because of the incapacity of the courts 
to enforce the provisions. The State passing such laws is only 
concerned with their enforcement when the property is designed 
under the will to be held in perpetuity within its limits^ or 
where its courts are to enforce the vague and indefinite trusts 
created by the will. This policy is not affected by the resi- 
dence or the non-residence of the testator, but only by the 
presence or non-presence of the property disposed of. If the per- 
petuities or indefinite trusts are to take effect there, the policy 
of these laws is violated, and the domicil of the testator and its 
laws are not of material importance.* 

Another class of these prohibitory laws relate to the capacity 
of the beneficiary to take the property bequeathed. These laws 
also are to be distinguished from those which place a restriction 
upon the capacity of the testator to dispose of his property. 
The purpose of such laws is not to restrain the testator from 
improvident dispositions, but to subserve a general policy, which 
the welfare of the State as a whole requires should be carried 
out. To this class belong prohibitions upon a corporation 
to be a legatee, or to hold more than a certain amount of the 
property bequeathed to it, etc. The purpose is to impose a 
check upon the aggrandizement of the corporation and for the 
protection of the State against its undue influence and power. 

» See Healy v. Reed, 153 Mass. 197, 200 ; Montgomery v. Millikin, 5 Sm. 
k M. (Miss.) 151, 43 Am. Dec. 507. See post, § 144. 
♦ See Healy v. Beed, 163 Mass. 197, 200 ; post, § 144. 



§ 70 TESTAMENTARY CAPACITY. 139 

Such is the policy of statutes of mortmain. In such a case, 
it is evident that the State enacting such law is not interested 
in enforcing it if the corporation or other heneficiary thus pro- 
hibited to take is not within its borders; and on the other 
hand, if such beneficiary is within its limits, the policy of the 
law applies, no matter where the testator's domicil may be or 
what may be its laws. The question here involved is not 
the testamentary capacity of the testator, but the capacity of 
the legatee to take, and that capacity should be regulated by the 
law of the beneficiary^ s domicil, just as much as the testator's 
capacity is to be controlled by the law of his domicil.* 

Thus, in Chamberlain v. Chamberlain,* a leading New York 
case, a testator, domiciled in New York, bequeathed property 
to a Pennsylvania corporation for educational purposes. If the 
legatee had resided in New York and the property was to have 
remained there, the disposition would have contravened the 
New York law placing restrictions upon the capacity of cor- 
porations to take as legatees. But inasmuch as the corporation 
legatee was capable of taking the legacy under the law of Penn- 
sylvania (its situs), the court construed the New York statute 
not to apply. In the course of its opinion the court says : 
" It is no part of the policy of New York to interdict per- 
petuities or gifts in mortmain in Pennsylvania." 

On the other hand, in another New York case,' a testator 
domiciled in New York bequeathed a legacy to a Pennsylvania 
corporation for charitable purposes, and died within a month 
after executing his will. The law of New York provided that 
no devise or bequest to a corporation by one leaving a wife, 
child, or parent should be valid in any will not made and 
executed at least two months before the testator's death. The 
law of Pennsylvania was the same. It was held that the bequest 

' Chamberlain v. Chamberlain, 43 N. Y. 424 ; Kerr r. Dougherty, 79 N. Y. 
327; Healyr. Reed, 153 Mass. 197, 200; Sickles v. New Orleans, 52 U. S. 
App. 147, 80 Fed. 868; Fellows v. Miner, 119 Mass. 541 ; Sohier w. Burr, 
127 Mass. 221 ; Hope r. Brewer, 136 K. Y. 126. See Cameron v. Watson, 
40 Miss. 191. See Vansant v. Roberts, 3 Md. 119; post, § 144. 

« 43 N. Y. 424. 

' Kerr v. Dougherty, 79 N. Y. 327, 341. 



140 TESTAMENTARY CAPACITY. § 70 

was invalid. This decision was clearly correct, but it is sub- 
mitted that the court erred in following the Pennsylvania law 
rather than that of Hew York in reaching its conclusion. The 
result was the same, for the two laws were similar; but the pro- 
hibition of the New York law was directed in this case against 
the capacity of the testator, not against the capacity of the 
legatee, and should therefore have furnished the guide, since 
New York was the testator's domicil. Mr. Wharton's criticism 
upon this decision is well founded.* 

Following the same line of reasoning, it would seem that if 
the question should arise, not in the testator's domicil but in 
the State where the property is or the legatee resides, the courts 
of the forum should be governed by the lex domicilii of the tes- 
tator, it is true, but should construe that law according to the 
policy indicated thereby. K intended as a restriction upon 
testamentary capacity, the strict lex scripta of the testator's 
domicil should be applied. If the lex domicilii is intended to 
lay down rules governing the mode in which property in the 
domicil should be held or enjoyed, as in case of statutes pro- 
hibiting gifts in perpetuity; or rules prescribing what persons 
under its jurisdiction may receive bequests, as in case of statutes 
of mortmain ; or rules governing its courts in the administration 
of trusts, as in case of provisions that vague and indefinite trusts 
shall not be enforced, — in all such 'cases the policy of the lex 
domicilii indicated by such laws is confined to the limits of the 
domicil itself and is not to be construed as applying to property 
to be enjoyed in other States, to legatees domiciled elsewhere, or 
to trusts to be administered by the courts of other States.® 

In those cases in which the law of the testator's domicil is to 
be applied, it must be observed that it is the domicil possessed 
by the testator at the time of his death that furnishes the proper 

* Wbart. Confl. L. § 577. In a similar case in Massachusetts it was held 
that the lex domicilii of the testator, not of the legatee, should govern. Healy 
V. Reed, 153 Mass. 197. See Mollis v. Seminary, 95 N. Y. 166; Curtis r, 
Button, 14 Ves. 537. 

» See Chamberlain v. Chamberlain, 43 N. Y. 424 ; Healy v. Reed, 153 Mass. 
197 ; Dammert v. Oshorn, 140 N. Y. 30 ; Cross v. Trust Co., 131 N. Y. 330 
In the last case the disposition was opposed to the policy of both States. 



§ 71 BUSINESS CAPACITY IN GENERAL. 141 

law. If he makes his will when domiciled in one State, and 
then afterwards removes to another where he dies, it is the law 
of the latter State, not that of the former, which determines his 
testamentary capacity." 

Testamentary capacity under the exercise of a power of ap- 
pointment depends upon different principles, and will be con* 
sidered hereafter.^^ 

§ 71. Business Capacity in general. — By " business ca- 
pacity," as here used, is meant a general capacity for business 
transactions, exclusive of voluntary acts of the party, such 
as entering into contracts, which will be discussed in the fol- 
lowing sections. 

The period of wardship, the age of majority, the effect of 
settlements between guardian and ward, the ability of a mar- 
ried woman to be a trustee, etc., are matters that do not involve 
the idea of a voluntary and deliberate entrance into a transac- 
tion, but are more or less matters of law, rather than of active 
consent or contract. All these and others of a like kind may 
be grouped under the general head of business capacity. 

It is the established general rule that this sort of capacity is 
governed by the law of the legal situs (or domicil) of the party 
whose capacity is in question.* The lex domicilii is the * * proper 
law," but as in other instances the proper law is liable to be 
substituted under certain circumstances by the lex fori in the 
exceptional cases already mentioned in the second chapter. 

Thus, in Woodward v. Woodward,' a ward domiciled in 
Louisiana and being of full age there (fixed at eighteen), though 

W Story, Confl. L. § 473 ; Jac. Dom. § 43 ; Whart. Confl. L. § 570. See 
Moultrie V. Hunt, 23 N. Y. 394 ; White v. Howard, 46 N. Y. 144, This is 
eminently reasonable since a will takes eflfect by the death of the testator, not 
by its execution. 

" See post, § 150. 

1 Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892 ; Hiestaud v. 
Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481 ; Barrera r. Alpuente, 6 Mart. 
N. s. (La.) 69, 17 Am. Dec. 179 ; Schluter r. Bank, 117 N, Y. 125, 22 N. E. 
572 ; Lamar v. Micou, 112 U. S. 452 ; Kohn's Estate, 1 Pars.Eq. Ca«. (Penn.| 
399 •, Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; In re Helleman's Will, 
L. R. 2 Eq. 363 ; In re Da Cunha, 1 Hagg. Eccl. 237. 
» 87 Tenn. 644, 11 S. W. 892. 



142 BUSINESS CAPACITY IN GBNBRAL. § 71 

under age in Tennessee, sued her guardian in Tennessee, where 
he was appointed, to compel him to turn over to her her person- 
alty located there. It was held that she was of age and entitled 
to make this demand, though there was a Tennessee statute pro- 
viding that a ward might make such demand of the guardian 
upon attaining the age of " twenty-one," this phrase being con- 
strued by the court as equivalent to ''full age." 

In Hiestand v. Kuns,' a guardian removed with his ward (a 
niece) nine years old from Ohio, where her parents had lived 
and died, to Indiana. By the law of Ohio she became of age at 
eighteen ; by the law of Indiana at twenty-one. Upon attain- 
ing the age of eighteen she gave her guardian a power of attor- 
ney to sell her property, and he made a settlement with her 
which he alleged was a final one. The Indiana court held that 
her capacity to come to a settlement with her guardian de- 
pended upon the law of her domicil ; that her Ohio domicil was 
unchanged by her removal to Indiana with her guardian ; but 
that when she became eighteen, she became under Ohio law 
competent to select her own domicil; that she did select In- 
diana; and that the law of her new domicil straightway threw 
her back into her old status of minority and dependence until 
she should become twenty-one. The court therefore held her, 
under the law of Indiana (her newly acquired domicil), incom- 
petent to make a final settlement with her guardian. 

In Schluter v. Bank,* a married woman domiciled in New 
York there became a trustee of certain funds deposited there. 
She afterwards became domiciled in New Jersey, by whose law 
a married woman was incompetent to act as trustee. Upon the 
question whether she remained a trustee of the New York funds 
after her removal to New Jerse\'^, it was held by the New York 
court that, capacity being conferred upon her at tlie time of the 
transaction by the law of her domicil (New York), the trans- 
action was a valid one, and continued to be so notwithstanding 
her subsequent removal to New Jersey.* 

8 8 Blackf. (Ind.) 345, 46 Am. Dec. 481. 
* 117 N. Y. 125, 22 N. E. 572. 

6 Here the married woman's former domicil was also the forum. If the 
same question had arisen in New Jersey or in a third State, the result might 



§ 71 BUSINESS CAPACITY IN GENERAL. 143 

With respect to the law governing the age of majority, the 
time at which an infant becomes an adult for legal purposes, all 
the authorities agree that the lex domicilii of the party is the 
proper law to determine the question.* But there is consider- 
able conflict upon the question whether the proper law is the law 
of the party's domicil of origin or that of his domicil at the time 
he is alleged to have attained his majority, supposing him no 
longer to possess his original domicil. 

The weight of American authority, and, it may be added, of 
reason, is in favor of the latter domicil as furnishing the proper 
law.' But many of the continental jurists incline to the domicil 
of origin, on the ground that '' each State or nation is presumed 
to be best capable of judging from the physical circumstances 
of climate or otherwise when the faculties of its citizens are 
morally or civilly perfect for the purposes of society." ^ 

have been different, since a capacity conferred by one State upon a citizen does 
not usually continue after the party becomes domiciled in another State, 
whose law does not confer it, except in cases of permanent status, such as the 
marriage status, legitimation, and others of a similar character. 

6 Story, Confl. L. § 71 ; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 
892 ; Hiestand v. Kuns, 8 Blackf. (lud.) 345, 46 Am. Dec. 481 ; Barrera v. 
Alpuente, 6 Mart. N. s. (La.) 69, 17 Am. Dec. 179. 

7 Woodward i;. Woodward, 87 Tenn. 644, 11 S. W. 892 ; Hiestand v. Kuns, 
8 Blackf. (Ind.) 345, 46 Am. Dec. 481. 

8 Story, CJonfl. L. § 72 ; Barrera v. Alpuente, 6 Mart. N, s. (La.) 69, 
17 Am. Dec. 179. Possibly, when the question arises in the courts of the 
original domicil, they may be governed by their own law, but, except to pre- 
serve their own citizens from injustice, it is difficult to see any adequate reason 
for such a course. See Story, Confl. L. § 73 ; Whart. Confl. L. § 113. In Bar- 
rera V. Alpuente, supra, the plaintiff sued in Louisiana, and was nonsuited, on 
the ground that she was an infant and incapacitated under the laws of Louisi- 
ana from suing in her own name. She was twenty-three years old, and had 
her domicil of origin in Louisiana. In 1802, when she was born, the age of 
majority was fixed in that State at twenty-five. In 1808, the Louisiana law 
was changed so as to make twenty-one the age of majority. The plaintiff had, 
some years prior to the suit (whether before or after 1808 did not appear), 
become domiciled in Spain, whose law was similar to the earlier law of Louisi- 
ana, and she was domiciled in Spain when the suit was brought. Upon her 
appeal, the court held that the time at which she attained her majority was 
to be determined by the law of her domicil of origin (Louisiana), and not by 
the law of her present domicil (Spain), and refused to give her relief because 



144 CAPACITY TO CONTBACT. § 72 

But an important distinction is to be made between the law 
governing the age at which a person reaches maturity and the 
law regulating the capacity or incapacity of one admittedly an 
infant. It is one thing to say that a particular law shall govern 
the question whether one is an infant or not, and a very differ- 
ent thing to say that, admitting him to be an infant, the same 
law must govern his capacity to transact business. The law of 
his domicil is the proper law to determine whether or not he is 
legally an infant, but having determined that he is an infant 
that law withdraws and leaves the effect of his infancy upon 
his capacity to transact business to the law proper for determin- 
ing the effect of his infancy. In the case of business capacity 
in general — involuntary transactions — the lex domicilii is 
still the proper law to govern the effect of infancy; but with 
regard to voluntary transactions, as we shall see in the follow- 
ing sections, the lex domicilii is not the proper law for this 
purpose. 

§ 72. Voluntary Transactions — Capacity to Contract. — 
We now come to the consideration of the law whereby a party's 
capacity is to be determined in those cases in which, by volun- 
tarily entering into a transaction abroad, he deliberately puts 
himself in a position to work an injustice upon others with 
whom he deals, should he set up an incapacity created by the 
law of his legal situs or domicil with which those dealing with 
him at his actual situs in a foreign country cannot be supposed 
to be familiar. Upon the question as to the proper law govern- 
ing the party's capacities or incapacities in such cases, there is 
a great difference of opinion. 

It may be regarded as certain that if the party enters into a 
contract in the State of his domicil, though the contract is to be 
performed elsewhere, the proper law governing his capacity to 
enter into the contract is the lex domicilii, no matter where the 
suit may be brought.^ 

she had not shown whether she left Louisiana before its law had been altered. 
This decision does not, it is believed, lay down the correct rule. 

» Hill t>. Bank, 45 N. H. 300; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 
251, 252 ; Poison v. Stewart, 167 Mass. 211, 45 N. E. 737 ; Armstrong r. 
Best, 112 N. C. 69, 17 S. K 14 ; Wood v. Wheeler, 111 N. C. 231, 16 S. E. 



§ 72 CAPACITY TO CONTEACT. 145 

But if the contract is entered into in a State other than the 
party's domicil, he has not the same right to claim the protec- 
tion of his domiciliary law. He has voluntarily entered into 
another State and has there made an agreement with persons 
who are relying upon the law under which he is acting. To that 
law he has submitted himself when he makes the contract there, 
and a just comity will ordinarily demand that the sovereignty 
of that State over all acts done there should be respected in other 
States. Every element of a contract may have a separate situs 
of its own, whose law will govern the effect of that element. 
The making of the contract may have a situs separate from the 
performance of it and separate from the consideration. The law 
of the place of the making will determine whether a contract 
has been validly entered into ; the law of the place of perform- 
ance will determine whether it can be legally performed there; 
while the law of the situs of the consideration will determine 
the legality and sufficiency of the consideration. These are 
elementary principles governing contracts which will be fully 
discussed hereafter.^ If a party has not the legal capacity, he 
cannot enter into a valid contract ; if he has the capacity, he 
may. This question must be determined at the time he enters 
into the contract, not when he comes to perform it. It pertains 
therefore to the making of the contract, and hence the element 
of capacity must be given the same situs that belongs to the 
making of the contract. 

For these reasons, the general principle of private interna- 
tional law is that the capacity of the party to make a contract, 
whether executory or executed, is governed by the law of the 
actual (not the legal) situs of the contracting party at the time 
he enters into the contract; or, to put it in different form, by 
the law of the place where the contract is entered into. This is 
known as the lex loci celebrationis of the contract, in contra. 

418; Hanover Nat. Bank v. Howell, 118 N. C. 271, 23 S. E. 1005, 1006 ; 
Taylor v. Sharp, 108 N. C. 377, 13 S. E. 138 ; Robinson v. Queen, 87 Tenn. 
445, 11 S. W. 38, 3 L. R. A. 214 ; Kerr v. Urie, 86 Md. 72, 37 Atl. 789 ; 
Union Bank v. Hartwell, 84 Ala. 379, 4 So. 156 ; Freeman's Appeal, 68 Conn. 
533, 37 Atl. 420, See Miller v. Campbell, 140 N. Y. 457, 35 N, E. 651. 
a Post, §§ 167-179. 

10 



146 CAPACITY TO CONTRACT. § 72 

distinction to the lex loci solutionis, or the law of the place 
where the contract is to be performed. The proper law then to 
determine the capacity to contract is the lex celebrationis of the 
contract.^ 

But this general principle is subject to qualification when the 
domicil of the party is the forum. Under these circumstances, 
upon the exceptional ground (already discussed) of protection 
to its citizens as well as of public policy, the lex fori (which will 
also be the lex domicilii) will be sometimes substituted for the 
proper law. It is believed however that even the courts of the 
domicil will follow the lex celebrationis of the contract in de- 
termining the capacity of its citizen to enter into the contract, 
except where the incapacity imposed by the law of the domicil 
is general or total, such as the common law disabilities of cover- 
ture. Only in such pronounced instances of a policy of protec- 
tion towards its citizens who are non sui juris will the courts of 
the domicil enforce their own laws. 

Hence, if the law of the domicil and forum only declares a 
few of a married woman's contracts void, and suit is brought 
there upon a contract made by her in another State and there 
valid, which is one of those declared to be beyond her capacity 
by her domiciliary law, the contract will still be enforced against 

3 See Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Ross v. Ross, 129 
Mass. 243, 246, 37 Am. Rep. 321 ; Bellr. Packard, 69 Me. 105, 31 Am. Rep. 251, 
253 ; Campbell v. Cramptou, 2 Fed. 417, 421, 423 ; Matthews w. Murchison, 17 
Fed. 760 ; Saul v. His Creditors, 5 Mart. N. s. (La.) 569, 16 Am. Dec. 212, 226 ; 
Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721 ; Pearl u. Hansbrough, 
9 Humph. (Tenn.) 426 ; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 
3 L. R. A. 214 ; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14 ; Wood v. 
Wheeler, 111 N. C. 231, 16 S. E. 418, 419 ; Taylor v. Sharp, 108 N. C. 377, 
13 S. E. 138, 139; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Dougherty 
V. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Baum v. Birchall, 150 
Penn. St. 164, 24 Atl. 620. As was said in a well considered case: "Upon 
principle, no reason can be alleged why a contract, void for want of capacity 
of the party at the place where it is made, should be held good because it pro- 
vides that it shall be performed elsewhere, and nothing can be found in any 
adjudicated case or text-book to support such a conclusion. It is a solecism 
to speak of that transaction as a contract, which cannot bo a contract because 
of the inability of the parties to make it such." Campbell i;. Crampton, 2 Fed. 
417, 423. 



§ 72 CAPACITY TO CONTRACT. 147 

her even in her domicil. The protective policy of the domicil 
is partial only, and its enforcement of less importance to the 
community than the general policy of recognizing the binding 
effect of contracts and the sovereignty of another State over all 
matters arising within its jurisdiction.* But if the law of the 
domicil (and forum) imposes a total incapacity to contract on 
the part of its married women, the need for this stringent policy 
of protection cannot he removed by the voluntary act of the 
woman in making her contract in another jurisdiction. It is 
against just these voluntary acts that the policy of such laws is 
directed. In such cases therefore, when it is attempted to en- 
force the woman's contract in the courts of her domicil, the law 
of the forum (and domicil) will he generally substituted for the 
proper law (the lex celebrationis of the contract), upon the 
ground that this policy of protection to the married women of 
the State is too important a policy to be overridden by a foreign 
law, even when that is the " proper law." ® 

In Milliken v. Pratt,® a leading case, a married woman dom- 
iciled in Massachusetts made a contract in Maine as guarantor 
for her husband. The contract was valid in Maine, but void 
in 'Massachusetts, whose law, while permitting a married woman 
to contract generally, prohibited her from entering into con- 
tracts as surety for her husband. Suit being brought against 
her upon the contract in Massachusetts, it was held that the 
contract must be enforced, notwithstanding the domicil iarj' law. 
In the course of its opinion, the court said : "It is possible also 
that in a State where the common law prevailed in full force, by 
which a married woman was deemed incapable of binding her- 
self by any contract whatever, it might be inferred that such 

* Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Bell v. Packard, 69 
Me. 105, 31 Am. Rep. 251, 252. 

6 Armstrong v. Best, 112 N. C. 59, 17 S. C. 14; Hanover Nat. Bank v. 
Howell, 118 N. C. 271, 23 S. E. 1005, 1006 ; Milliken v. Pratt, 125 Mass. 
374, 28 Am. Rep. 241 ; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Case 
V. Dodge, 18 R. I. 661, 29 Atl. 785, 786; Baum v. Birchall, 150 Peun. St. 
164, 24 Atl. 620; Johnston v. Gawtry, 11 Mo. App. 322 ; Bowles v. Field, 
78 Fed. 742, 743 ; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. E. A 
214. 

• 125 Mass. 374, 28 Am. Rep. 241. 



148 CAPACITY TO CONTRACT. § 72 

an utter incapacity, lasting throughout the joint lives of hus- 
band and wife, must be considered as so fixed by the settled 
policy of the State for the protection of its own citizens that it 
could not be held hy the courts of that State to yield to the law 
of another State in which she might undertake to contract." 

In Armstrong v. Best,' a married woman domiciled in North 
Carolina entered into a contract in Maryland which was valid 
there. By the law of North Carolina the married woman was 
under the general common law disabilities, and was totally in- 
competent to enter into contracts. Suit being brought thereon 
in North Carolina, the court held that it must enforce the law 
of North Carolina (the law of the domicil and forum) rather 
than the law of Maryland (the lex celebrationis and the proper 
law). The court, in its opinion, thus refers to Milliken v. Pratt 
in speaking of the necessity for sometimes substituting the law 
of the forum and domicil: **That this qualification is appli- 
cable to cases like the present is manifest, not only by reason 
and necessity, but also by the decisions of other courts. Even 
in Milliken v. Pratt, in which the lex loci contractus is pushed 
to the extreme limit, it is suggested that where the incapacity 
of a married woman is the settled policy of the State * for the 
protection of its own citizens, it could not be held by the courts 
of that State to yield to the law of another State, in which she 
might undertake to contract.' " 

A fortiori^ if the policy of protection to its citizens adopted 
by the law of the domicil and forum is not so pronounced as to 
render the contract void at all, but only voidable, the proper 
law (lex celebrationis) will be enforced even in the domiciliary 
courts. 

Thus it is the well settled rule that the liability of an infant 
upon his contracts is to be determined, even in the courts of his 
domicil, by the lex celebrationis of his contract, not by the law 
of the domicil and forum.' 

7 112 N. C. 59, 17 S. E. 14. 

8 Male V. Roberts, 3 Esp. 163 ; Thompson v. Ketcham, 8 Johns. (N. Y.) 
189; Saul r. His Creditors, 5 Mart. N. s. (La.) 569, 16 Am. Dec. 212, 226 ; 
Wilder's Succession, 22 La. Ann. 219, 2 Am. Rep. 721, 724-725 ; Milliken ». 
Pratt, 125 Mass. 374, 28 Am. Rep. 241. See Campbell v. Crampton, 2 Fed. 



§ 73 CAPACITY TO MARRY. 149 

§ 73. Same — Capacity to Maury. — Notwithstanding some 
strong dicta to the effect that the ''proper law" to determine 
the capacity to marry is the lex domicilii of the parties at the 
time of the marriage/ the contract of marriage is believed to be 
governed, in respect to the parties' capacity to enter into the 
contract, by substantially the same principles as other contracts. 

If at the time of the marriage the actual and legal situs of the 
parties coincide, in other words if the marriage takes place in 
the parties' domicil, the law of the domicil will govern their 
capacity, no matter where the question arises. In such case 
there is no particular foreign element. The domicil of both the 
parties coincide with the place of celebration of the marriage. 
The law of that place will therefore control in all respects, even 
when the marriage is called in question elsewhere as being con- 

417, 422. Indeed, it can hardly be said with accuracy that a matter which 
renders a contract voidable merely is a matter of capacity to make the con- 
tract at all. On the contrary, the capacity (of an infant, for example) to 
enter into the contract is conceded. It is rather in the nature of a privilege 
accorded to him to disaffirm the contract after he has entered into it. In any 
event however the privilege attaches, if at all, at the time he enters into the 
contract, so that the conclusion remains undisturbed that the situs of his 
privilege is the locus celebrationis of his contract, and its "proper law," the 
lex celebrationis. 

So it is also in other cases where the contract is voidable merely, not void. 
Thus causes existing at the time of a marriage which render it voidable only, 
and do not avoid it ipso /ado, can hardly be called cases of incapacity to 
marry, for the marriage is a legal marriage, notwithstanding the existence of 
these defects, unless avoided during the lifetime of the parties. Despite the 
obstacles interposed by the law, the fact remains that the parties are capable 
of entering into a marriage contract that the law may recognize as legal and 
valid. Such matters go to the validity of the contract itself, rather than to 
the capacity of the parties to enter into the contract. See post, § 78. 

1 Brook v. Brook, 9 H. L. Cas. 193 ; Shaw r. Gould, L. R. 3 H. L. 83 ; 
Sottomayor v. De Barros, 3 P. D. 5, 7; Udny v. Udny, 1 H. L. Sc. 441, 457; 
Kinney v. Com., 30 Gratt. (Va.) 858 ; Greenhow v. James, 80 Va. 636 ; State 
V. Ross, 76 N. C. 242, 22 Am. Rep. 678 ; State v. Kennedy, 76 N. C. 251, 
22 Am. Rep. 683 ; Campbell v. Crampton, 2 Fed. 417. See Dicey, Confl. L. 
642 et seq. In most of these cases the domicil was the forum. But see Sotto- 
mayor r. De Barros, supra, where it was held that a marriage in England 
between two first cousins domiciled in Portugal, whose law forbade such mar- 
riages, would be held void in England, though the English law did not pro* 
hibit first cousins from marr3ring. 



150 CAPACITY TO MARRY. § 73 

trary to the law of the forum, unless it be contra honos mores, 
as polygamous, or universally incestuous.^ 

Thus, in State v. Ross,' a white woman residing in North Caro- 
lina left that State and went to South Carolina, with the purpose 
of there marrying and living with a negro man residing in the 
latter State. The marriage was valid in South Carolina, but 
void in North Carolina. Some time after the marriage, the 
parties determined to remove to North Carolina. Being in- 
dicted there for fornication in living and cohabiting together 
without being lawfully married, they pleaded the South Caro- 
lina marriage. The court held it a good defense, since both 
parties were domiciled in South Carolina when the marriage was 
contracted. 

If the parties are domiciled in one State by whose law they 
are prohibited to marry, but the marriage occurs in another 
State where such marriages are permitted, and the validity of 
the marriage is impugned in the latter or any third State, the 
general rule is that the lex celebrationis, not the lex domicilii, 
will govern,* 

But if, under the circumstances last stated, the validity of the 
-narriage is questioned in the courts of the domicil, much con- 
flict has arisen amongst the authorities as to the law which shall 
dominate. 

Many of the decisions hold that the lex celebrationis must 
govern the capacity of the parties to enter into the contract, as 
well as the formal validity of the wedding ceremony,^ no matter 

2 State V. Ross, 76 N. C. 242, 22 Am. Rep. 678 ; Harral v. Harral, 3& 
N. J. Eq. 379, 51 Am. Rep. 17, 25 ; West Cambridge v. Lexington, 1 Pick. 
(Mass.) 506, 11 Am. Dec. 231; Sutton v. Warren, 10 Met. (Mass.) 451. 
Polygamous and incestuous marriages are always void in Christian countries, 
though valid where contracted. Post, § 75. 

8 76 N. C. 242, 22 Am. Rep. 678. 

* Story, Confl. L. §§ 79, 89 ; Ross v. Ross, 129 Mass. 243, 247-248, 37 
Am. Rep. 321; Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 
435 ; Campbell v. Crampton, 2 Fed. 417, 424 ; Dickson v. Dickson, 1 Yerg. 
(Tenn.) 110, 24 Am. Dec. 444; Roth v. Roth, 104 111. 35, 44 Am. Rep. 81, 
82 ; Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831, 841-842. 
But see Sottomayor p. De Barros, 3 P. D. .'^, 7. , 

' It is universally conceded that the forms and solemnities of the wedding 



§ 73 CAPACITY TO MARRY. 151 

how opposed to the policy of the domicil and forum a marriage 
between the parties may be (if not immoral), preferring before 
any special policy of the domicil the general policy which looks 
to the upholding of marriages valid where contracted.* And 
these courts hold to this view even though the parties have con- 
tracted the marriage abroad in order to evade the domiciliary 
law. Under this line of decisions, nothing but a statute of the 
domicil explicitly declaring such a marriage between its citizens 
void, though entered into abroad, will be permitted to outweigh 
the general and important policy of upholding marriages. 

Thus, in a leading Massachusetts case,'' a white person and a 
negro, resident in Massachusetts, went to Rhode Island and 
were there married, intending to evade the law of Massachusetts, 
which invalidated such marriages. They then returned to Mas- 
sachusetts. The validity of the marriage being called in ques- 
tion before the courts of Massachusetts (the domicil and forum), 
the court sustained the marriage, inasmuch as it was valid in 
Rhode Island. In the course of its opinion, the court said : 
"Motives of policy may likewise be admitted into the consid- 
eration of the extent to which this exception is to be allowed to 
operate. If without any restriction, then it might be that 
incestuous marriages might be thus contracted. But it is not 
to be inferred from a toleration of marriages which are pro- 
hibited merely on account of political expediency, that others 
which would tend to outrage principles and feelings of all civil- 
ized nations would be countenanced." ' 

are to be regulated in all cases by the law of the situs of the celebration (lex 
celebrationis). See post, § 77. 

^ Medway V. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Putnam v. Putnam, 
8 Pick. (Mass.) 433 ; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Ross ». 
Ross, 129 Mass. 243, 247-248, 37 Am. Rep. 321 ; Cummington v. Belcher- 
town, 149 Mass. 223, 226, 21 N. E. 435 ; Van Voorhis v. Brintnall, 86 N. Y. 
18, 25, 40 Am. Rep. 505 ; Thorp v. Thorp, 90 N. Y. 602 ; Moore r. Hegeman, 
92 N. Y. 521, 44 Am. Rep. 408; Stevenson v. Gray, 17 B. Mon. (Ky.) 193. 

^ Medway v. Needham, 16 Mass. 157, 6 Am. Dec. 131. 

8 But matters of political expediency may become of as tremendous im- 
portance as matters of moral expediency. It must be remembered that at the 
date of this decision (1819) there were (and still are) comparatively few ne- 
groes in Massachusetts, and the policy which dictated this statute had ceased 
to be of great importance. 



152 CAPACITY TO MARRY. § 73 

In a Kentucky case," a man and the widow of his deceased 
uncle, while domiciled in Kentucky, where they were prohibited 
from marrying, went into Tennessee, where no such prohibition 
existed, and were there married, and then returned to Kentucky. 
The court of the domicil pronounced the marriage good. 

In Van Voorhis v. Brintnall," the law of New York provided 
that, upon a divorce for adultery, the court might decree that 
the guilty party should not marry again during the lifetime of 
the consort. A marriage between E and B was dissolved there 
on the ground of B's adultery, the parties being domiciled in 
New York; and the court ordered that B should not marry 
during E's lifetime. Thereafter B went to Connecticut, E be- 
ing still alive, and there married I, also a resident of New York. 
B and I went to Connecticut for the purpose of evading the New 
York law, and returned to New York on the day of the marriage, 
which was valid under the laws of Connecticut. The New York 
court held that, although the marriage would have been invalid 
if celebrated there, it must be considered as valid in New York 
because valid where it was celebrated, and that the issue of the 
marriage were therefore legitimate in New York, and entitled 
to share with the children of the first marriage under a devise 
"to the issue of B." 

On the other hand, many courts, attaching greater weight to 
the particular domestic policy than to the general policy which 
seeks to uphold marriages bona fide entered into between the 
parties, will be found to have arrayed themselves in favor of 
the enforcement of the law of the domicil and forum, in those 
cases where the domestic policy is so important and pronounced, 
or the evils it aims to avert are so imminent, as to justify such 
a course.^* In the view of this line of decisions, the fact that 
the statutes of the domicil are so framed as explicitly to prohibit 

9 Stevenson v. Gray, 17 B. Mon. (Ky.) 193. 

10 86 N. Y. 18, 40 Am. Rep. 505. 

" Kinney r. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N. C. 251, 
22 Am. Rep. 683 ; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; Williams 
V. Gates, 5 Ired. L. (N. C.) 535 ; Pennegar v. State, 87 Tenn, 244, 10 S. W. 
305, 2 L. R. A. 703 ; Ex parte Kinney, 3 Hughes (U. S.), 1, 20-21 ; State v. 
Tutty, 41 Fed. 753, 759-760 ; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164 ; 
Brook V. Brook, 9 H. L. Gas. 193. 



§ 73 CAPACITY TO MABRY. 153 

such marriages by its citizens, even when entered into abroad, 
is only one evidence of the importance attached to its policy by 
the State of the domicil and forum. But other evidences of the 
importance of the domestic policy, in the absence of such statute, 
are not excluded." 

No finer illustration of the manner in which this divergence 
of view comes about can be found than that presented in the 
comparison of the cases arising upon the validity of marriages 
between white persons and negroes, valid where contracted, but 
prohibited by the law of the domicil and forum. In Mas- 
sachusetts, where negroes are few, it has been held under such 
a state of facts that the law of the domicil and forum (Massa- 
chusetts) could not be invoked to annul a marriage between its 
citizens, validly contracted elsewhere. On the other hand, 
under precisely similar circumstances it has been held by the 
courts of the Southern States, where negroes are numerous and 
marriages between them and the whites are regarded justly as 
most contrary to public policy and expediency, as well as utterly 
repugnant to the sentiment of the people, that marriages of this 
sort will not be sustained in the domicil and forum, though 
validly contracted by its citizens in another jurisdiction, even 
in the absence of a statute embracing such marriages when con- 
tracted abroad.^* 

The true principle is that it is a question of policy, which 
each State must determine for itself according to the conditions 
prevailing there, so far as its own citizens are concerned, and it 
may determine the question as well through its courts as its 
legislature. As the North Carolina court expresses it in State 
V. Kennedy: " "When it is conceded, as it is, that a State may 

" See State r. Tutty, 41 Fed. 753 ; Ex parte Kinney, 3 Hughes (U. S.), 1 ; 
State V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, 684 ; Pennegar v. State, 
87 Tenn. 244, 10 S. W. 305, 2 L, R. A. 703 ; Jackson t;. Jackson, 82 Md. 17, 
33 Atl. 317, 319. 

13 Kinney r. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N, C. 251, 
22 Am. Rep. 683 ; Ex parte Kinney, 3 Hughes, 1 ; State v. Tutty, 41 Fed. 753. 
See also Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Pennegar v. State, 
87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703. 

" 76 N. C. 251, 22 Am. Rep. 683, 684. And the same principle, though 
with the opposite result, was applied in Med way v. Needham, 16 Mass. 157, 
6 Am. Dec. 131. 



154 CAPACITY TO MARRY. § 73 

by legislation extend her law prescribing incapacities for con- 
tracting marriage over her own citizens who contract marriages 
in other countries by whose law no such incapacities exist, as 
Massachusetts did after the decision of Medway v. Needham, 
the main question is conceded, and what remains is of little 
importance. Nothing remains but the question of legislative 
intent, to be collected from the statute." 

Nor has this divergence always been confined to cases of mar- 
riages between white persons and negroes. The same difference 
of opinion appears with respect to the importance to be attached 
to the domestic policy prohibiting certain relatives from marry- 
ing.^^ So also a like difference of opinion has been manifested 
in the effect of a foreign marriage by a guilty party to a divorce 
suit who has been prohibited to marry again." 

It is to be observed that if the parties remove from the State 
of their domicil, with the bona fide intent to become domiciled 
in another State, and having settled there then marry according 
to its laws, the marriage, though prohibited by the law of their 
first domicil, will be deemed valid everywhere, even in the fi,rst 
domicil, should they afterwards return thither either tempo- 
rarily or permanently." 

If the parties to the marriage are domiciled in different States 

15 For example, compare Brook v. Brook, 9 H. L. Gas. 193 (in which a 
marriage contracted in Holland, between a domiciled Englishman and his 
deceased wife's sister, who had met there casually, not by design, was held to 
be void in England, because within degrees of kindred prohibited by English 
law) with Stevenson v. Gray, 17 B. Mon. (Ky.) 193, already quoted, and Com. 
V. Lane, 113 Mass. 458, 18 Am. Rep. 509. The latter case criticises Brook v. 
Brook very severely. And perhaps the enforcement of a domestic policy of that 
nature at the expense of international comity is going a little further than 
sound judgment warrants. In England however the lex domicilii is regarded 
as the "proper law." See Sottomayor v. De Barros, 3 P. D. 5, 7. 

16 Compare Van Voorhis v. Brintnall, 86 N. Y. 18, 25, 40 Am. Rep. 505 
(already quoted), and Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, with 
Pennegar i;. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703. See post, 
§74. 

" State V. Ross, 76 N. C. 242, 22 Am. Rep. 678; West Cambridge v. 
Lexington, 1 Pick. (Mass.) 506, 11 Am. Dec. 231. See Cummington v. 
Belchertown, 149 Mass. 223, 227, 21 N. K 435 ; Sutton v. Warren, 10 Met. 
(Mass.) 451. 



§ 74 PARTICULAR INCAPACITIES TO MARRY. 155 

at the time of the marriage, perplexing questions may arise. 
Suppose the law of the intended husband's domicil prohibits 
the marriage, while that of the intended bride's does not, or 
vice versa, what law shall govern ? The solution of such ques- 
tions will be found in the principles above stated. The mar- 
riage, if valid where contracted, will be valid everywhere, 
except in the State whose policy towards its own citizens has 
been violated. In the latter State the marriage will be annulled 
or sustained according to the view its courts take of the relative 
importance of the policies involved, or their view of the legisla- 
tive intent. But it must not be forgotten that after the mar- 
riage the parties will generally reside in the husband's domicil, 
not in the wife's. Hence the importance to be attached to the 
policy of the wife's prior domicil will not usually be so great 
as that attached to the policy of the husband's domicil. 

§ 74. Particular Incapacities to Marry — Guilty Party to 
Divorce prohibited to Marry again. — In the preceding section 
the general principles regulating matrimonial incapacity have 
been considered, and incidentally the disabilities imposed by 
consanguinity or affinity and by the evils of miscegenation have 
been discussed pretty fully, and the former will be soon ad- 
verted to again. ^ The disability to marry again imposed under 
the laws of many States upon the guilty party in a divorce de- 
serves special attention. 

In many of the States the legislatures have enacted that a 
guilty party shall not remarry during the lifetime of the in- 
nocent consort, or else they have given to the courts the power 
to make such decree. What will be the effect if the party 
does marry again ? 

If no foreign element is introduced into the case, it is not a 
question of international, but strictly of municipal law, with 
which we have no concern. Such will be the case when the 
divorce takes place in the domicil of both the parties, and the 
subsequent marriage occurs in the same State, and the question 
arises there for decision. Here there is no foreign element. 
But if the question arises elsewhere, or if the subsequent mar- 
riage occurs in a State other than the domicil, or if the party 

1 Post. § 75. 



166 PARTICULAR INCAPACITIES TO MARRY. § 74 

prohibited to remarry is not domiciled in the State where the ' 
divorce is granted, a foreign element is introduced which must 
be reckoned with in the final determination of the law which 
should govern the validity of the second marriage. There are 
a number of important distinctions to be noted here, to some of 
which attention will now be directed. 

In all such cases, the first question is : Did the court decree- 
ing the divorce have jurisdiction of the guilty party? The 
essentials to give a court jurisdiction to make a decree of divorce 
which will be binding in other States are considered hereafter 
at large.' A very brief summary is all that will be attempted 
here. 

For the purposes of the divorce itself, if the parties are 
domiciled in the State of divorce, its courts will have juris- 
diction, whether or not the defendant is personally before the 
court. The suit for divorce is a proceeding in rem to dissolve 
the marriage status, and according to the better opinion does 
not require a personal service upon nor appearance by the 
defendant in order to give to the court jurisdiction of the cause 
and to its decree an extra-territorial operation.' But when to 
the decree of divorce is superadded an order that the guilty 
party shall not marry again, the question arises whether this 
part of the order is a decree in rem (like the divorce itself) or a 
decree in personam. If the latter, in order to be exterritorially 
binding upon the defendant, he or she must voluntarily appear 
or be personally served with process within the jurisdiction of 
the court.* Whether it shall be deemed a proceeding in rem or 
in personam, depends upon the question whether the prohi- 
bition to reiparry is looked upon as a denial of relief to the 
guilty party, leaving him (or her) still married, as has been 
sometimes averred,* or whether it is regarded as merely inflict- 
ing a punishment upon him for his wrong-doing, while still 
giving full effect to the divorce itself as to both parties. The 

* See post, §§ 88 et seq. 
» Post, § 89. 
« See post, §§ 85, 95. 

» See Elliott v. Elliott, 88 Md. 358, 363 ; Williams v. Gates, 6 Ired. L 
IN. C.) 635, 638 ; Calloway v. Bryan, 6 Jones L. (N. C.) 570. 



§ 74 PARTICULAR INCAPACITIES TO MARRY. 157 

weight of reason and authority is decidedly in favor of the latter 
view, that it is a mere penalty or punishment.* 

If then it is admitted that such an order merely inflicts a 
penalty upon the guilty defendant, without impairing his status 
as a single person, fixed by the decree of divorce, the decree must 
be regarded as in personam, that is, he must be before the court. 
(It may perhaps be doubted if even a personal service upon 
him within the territorial jurisdiction of the court will suffice, 
if not followed by appearance, for it is in the nature of a sen- 
tence pronounced upon him in a criminal proceeding.) At 
least if the defendant be a non-resident, served with notice by 
order of publication only, and not voluntarily appearing, the 
order of the court that he or she shall not remarry cannot be 
given any exterritorial effect, for lack of jurisdiction.'' 

But even though we suppose the defendant domiciled in the 
State where the order is made, and even though he voluntarily 
appears to defend the suit, so that the court has complete 
jurisdiction to make the order, it will not in general receive 
exterritorial recognition for the reason that it is a penalty. 
Penal disabilities, as we have seen, are never enforced by the 
courts of other States, nor recognized by them as existing,' even 
though such States themselves impose similar disabilities upon 
their own guilty citizens, or though the guilty party seeks to 
evade the law of his domicil by going elsewhere to be married.' 

« Huntington v. Attrill, 146 U. S. 657,663 ; Crawford v. State, 73 Miss. 172, 
35 L. R. A. 224, 225 ; State i>. Weatherby, 43 Me. 248, 69 Am. Dec. 59 ; Van 
Voorhis v. Brintnall, 86 N. Y. 18, 28-29, 40 Am. Rep. 505 ; "Wilson v. Holt, 
83 Ala. 540, 3 So. 321, 328 ; Succession of Hernandez, 46 La. Ann. 962, 24 L. 
R. A. 83 ; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444 ; Cora. v. 
Lane, 113 Mass. 458, 18 Am. Rep. 509 ; West Cambridge v. Lexington, 1 Pick. 
(Mass.) 506, 510, 11 Am. Dec. 231 ; Moore v. Hegeman, 92 N. Y. 521, 524, 
44 Am. Rep. 408. 

^ See Maguire v. Maguire, 7 Dana (Ky.), 181, 187 ; Gamer v. Garner, 56 
Md. 127 ; Van Storch v. Griffin, 71 Penn. St. 240. 

8 Ante, § 10. 

9 Wilson V. Holt, 83 Ala. 528, 540, 3 So. 321, 328 ; Dickson v. Dickson, 
1 Yerg. (Tenn.) 110, 24 Am. Dec. 444. See Succession of Hernandez, 46 La. 
Ann. 962, 24 L. R. A. 831 ; West Cambridge v. Lexington, 1 Pick. (Mass.) 
606, 510, 11 Am. Dec. 231. 



158 PAETICULAR INCAPACITIES TO MARRY. § 74 

A fortiori will the domiciliary prohibitions be disregarded, if 
the party abandons his former domicil, and becoming bona fide 
domiciled anew in another State, marries there.^" 

It is to be observed likewise that a disability imposed upon 
the guilty party, not by a decree of the court, but by the statute 
law itself, operates and is intended to operate only upon citi- 
zens, and not upon strangers, whether the divorce is granted 
there or elsewhere ; and the disability, when thus imposed, is 
penal in its nature, just as where it is imposed by a decree of 
court. It will not therefore be recognized exterritorially even as 
against citizens of the penalizing State. Nor will it be applied 
even in that State to persons other than citizens. ^^ 

Thus, in a recent Louisiana case, ^* a citizen of Louisiana had 
been divorced there for his adultery. The law of Louisiana in 
such case prohibited the guilty party from marrying his para- 
mour during the life of the innocent consort. He went to New 
York, and there married another woman, afterwards returning to 
Louisiana. Had this marriage taken place in Louisiana it would 
have been valid. The New York law prohibited a person di- 
vorced for his own adultery to marry any one during the con- 
sort's lifetime. The Louisiana court held that the New York 
law was not applicable to a citizen of Louisiana, and that the 
marriage was valid. 

But in cases where the disability is imposed by the domicil 
of the guilty party, and the validity of a subsequent foreign 
marriage is questioned there, there is much the same division of 
opinion as in the corresponding case of other incapacities, and 
upon the same distinctions there taken, namely, a comparison of 
the respective importance to be attached to the special policy 
of the domicil and forum ( prohibiting a guilty party to re- 
marry), with the general policy of upholding marriages. It 

w West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 610, 11 Am. Dec. 
231 ; Dickson v. Dickson, 1 Yerg. (Teun.) 110, 24 Am. Dec. 444; Fuller 
V. Fuller, 40 Ala. 301 ; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 328 ; Webb's 
Estate, 1 Tnck. (N. Y.) 372. 

" See cases before cited. See Cra^'ford v. State, 73 Miss. 172, 18 So. 841^ 
35 L. R. A. 224, 225. 

« Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831. 



§ 74 PARTICULAR INCAPACITIES TO MARRY. 159 

is a difficult matter to decide, requiring a wise judicial discre- 
tion. Even the decisions of the same State are not always 
harmonious." 

There are other questions also that arise under decrees and 
statutes creating disabilities of this character. The contention 
often relates not to the validity of the second marriage con- 
tracted elsewhere, but to the criminal aspects of the case, as 
whether the guilty party, upon his return to his domicil and his 
cohabitation there with his second consort, is guilty of lewdness, 
fornication, adultery, or bigamy. It will be observed that the 
first two offences above named are based upon the invalidity of 
the second marriage ; while the last two are based lapon the 
theory that, so far as the accused is concerned, the first mar- 
riage continues in existence. The party accused cannot be 
guilty of lewdness or fornication with a woman who is legally 
married to him; he cannot be guilty of adultery or bigamy with 
a woman if he be not already a married man. 

Since it is settled that the prohibition to remarry does not 
prevent the entire dissolution of the first marriage as to both 
parties (it being inconceivable that there should be a husband 
without a wife, or vice versa) , but merely operates as a penalty 
or punishment imposed upon the guilty party, it follows that 
upon remarriage that party cannot, merely because of such re- 
marriage, be deemed guilty of either adultery or bigamy.^* Of 
course, however, this does not imply that there cannot be a 

1' In probably the majority of the States where the question has arisen, it 
has been held that the special domestic policy in this instance should give 
way to the more general one of upholding marriages wherever practicable. 
The following decisions hold such a marriage valid even in the domicil. Com. 
V. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Putnam v. Putnam, 8 Pick. (Mass.) 
433 ; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505 ; Thorp r. 
Thorp, 90 N. Y. 602 ; Moore v. Hegeman, 92 N. Y. 621, 44 Am. Rep. 408. 
Other decisions give precedence to the domestic policy, and favor the inva- 
lidity of the marriage. West Cambridge v. Lexington, 1 Pick. (Mass.) 506, 
510, 11 Am. Dec. 231 ; Pennegar v. State, 87 Tenn. 244, 10 S. W. 805, 
2 L. R. A. 703 ; Marshall v. Marshall, 4 N. Y. Suppl. 449 ; Williams v. Oates, 
5 Ired. L. (N. C.) 535. 

" Com. V. Putnam, 1 Pick. (Mass.) 136; People v. Hovey, 5 Barb. (N. Y.) 
1J7; State V. Weatherby, 43 Me. 248, 69 Am. Dec. 59 ; Crawford v. State, 
73 Miss. 172, 35 L. R. A. 224, 225, 18 So. 848. 



160 POLYGAMOCrS AND INCESTUOUS MARRIAGES. § 75 

statute providing that a guilty party so remarrying shall be 
punished as if he were guilty of adultery or bigamy. If there 
be such a statute, the effect of a foreign marriage by the guilty 
party must generally depend upon the express or implied intent 
of the statute, the tendency of judicial construction being op- 
posed to the operation of the statute in such a case, unless it 
be specifically embraced therein.^* 

On the other hand, if the offence charged be lewdness or for- 
nication, th« charge is based, not on the continued existence of 
the former marriage status, but upon the invalidity of the sub- 
sequent union. In these cases therefore the guilt or innocence 
of the accused will turn upon the view taken of the validity of 
the second marriage, the principles controlling which question 
have already been discussed." 

In one case, decided in Kew York," the question has arisen 
whether or not such foreign marriage constituted a contempt of 
the courts of the domicil (New York), and it was held that it 
did not. 

§ 75. Same — Polygamous and Incestuous Marriages. — If 
one having a consort living and undivorced marries again, though 
the subsequent marriage should take place in a barbarous State 
where dual marriages are valid, it will not be upheld in any 
civilized country. It is contra honos rriores.^ This is merely an 
instance of the operation of one of the exceptions to the enforce- 
ment of a foreign law discussed in the second chapter of this 
work. 

The same principles apply to marriages contracted between 
relatives so near as to cause the union to be deemed incestuous 
and illegal in all civilized States. Prohibitions of this sort 

w See Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509. 

w See Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703 ; State 
V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. 

" Thorp V. Thorp, 90 N. Y. 602. 

1 Ross V. Ross, 129 Mass. 243, 247, 37 Am. Rep. 321 ; Com. v. Lane, 112 
Mass. 458, 463, 18 Am. Rep. 509 ; Van Voorhis r. Brintnall, 86 N. Y. 18, 
26, 40 Am.Rep. 505 ; Collins v. Collins, 80 N. Y. 1 ; Hatchings v. Kimmell, 
31 Mich. 126, 18 Am. Rep. 164, 168; Jackson v. Jackson, 82 Md. 17, 33 Atl. 
317, 319 ; State r. Ross, 76 N. C. 242, 22 Am. Rep. 678, 680-681 ; Campbell 
V. Crampton, 2 Fed. 417, "424. See True v. Ranney, 21 N. H. 52, 53 Am, 
Dec. 164, 166. 



§ 75 POLYGAMOUS AND INCESTUOUS MARRIAGES. 161 

imposed by the policy of the forum alone, or by the policy of a 
few States merely, will not have the effect necessarily of aroid- 
ing a marriage between relations, valid where contracted.* In 
order that the marriage shall universally be deemed invalid 
(though valid where contracted) the relationship must be so 
close as to condemn the union in all civilized countries, and to 
cause it to be considered in all Christian States as impious and 
contra bonos mores. It is generally agreed that the only mar- 
riages answering this description are those contracted between 
persons related by blood in the lineal ascending or descending 
line, and (in case of collateral relatives) between brother and 
sister.* 

In case of persons related in more distant degree, the ques- 
tion whether their intermarriage is valid will in general depend 
upon the lex celebrationis of the marriage. If valid there, it 
will usually be held valid in every State in which it is called 
in question.* And if it be absolutely void where contracted, 
it will in general be deemed void everywhere. 

But if, where contracted, it is merely voidable by decree of 
court, and not void per se, the fact that the same marriage would 
be absolutely void if contracted in another State will not jus- 
tify the courts of the latter State in pronouncing the parties not 
to be man and wife, even though they have since lived in the 
latter State, much less if they are domiciled in the State of the 
marriage. Such is the rule when the validity of the marriage is 
questioned in a collateral proceeding. 

Thus, in Sutton v. Warren,* a marriage was contracted in 

' See ante, § 73. If the question arises in the domicil, the policy of the 
forum (and domicil) may be held to be paramount to the lex celebrationis of 
the marriage. 

» Story, Coufl. L. § 114 ; Ross v. Ross, 129 Mass. 243, 247-248, 37 Am. 
Rep. 321 ; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509 ; Medway 
V. Needham, 16 Mass. 157, 6 Am. Dec. 131 ; Wightman v. Wightman, 
4 Johns. Ch. (N. Y.) 343, 348-350; Van Voorhis v. Brintnall, 86 N. Y. 18, 
26, 40 Am. Rep. 505 ; Hutchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164, 
168 ; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319 ; State v. Ross, 76 
N. C. 242, 22 Am. Rep. 678, 680-681. 

* Except in certain cases where the domicil is the forum. See ante, § 73. 

' 10 Met. (Mass.) 451. 

11 



162 POLYGAMOUS AND INCESTUOUS MARRIAGES. § 75 

England, the domicil of the parties, between a man and his 
mother's sister. Such marriage was not void by English law 
prior to the statute of 6 Wm. IV. c. 54, but only voidable in 
the Ecclesiastical Court. The marriage took place before the 
statute. The parties removed to Massachusetts, about one year 
after the marriage, by the law of which State a marriage be- 
tween such relatives was absolutely void. The wife, Ann Sut- 
ton, lent money to Warren on his note, which was not paid, 
whereupon the husband sued Warren upon the note; and objec- 
tion being made that he was not the husband of Ann, the court 
held that the marriage, not being void in England but voidable 
only and not avoided, could not be attacked collaterally in 
Massachusetts by reason of the laws of that State.* 

6 See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435 ; 
post, $ 78. 



76 DUAL MATURE OF MABBIAGZ. 168 



CHAPTER VI. 

STATUS OF MARRIAGE. 

§ 76. Dual Nature of Marriage. — There are two senses in 
which the term marriage is familiarly used, both of which 
are essential to a true marriage, the one being preliminary to 
the other. These two essential elements of the legal idea of 
marriage are : (1) The contract of marriage, the agreement of 
the parties, the wedding ceremony; and (2) The state of life 
which is ushered in by that ceremony or agreement, the matri- 
monial union, or the marriage status. These elements, though 
both often denominated "marriage," are separate and distinct, 
and should be so treated. There can be no matrimonial union 
without a marriage contract; there can be no (valid) marriage 
contract without a matrimonial union resulting therefrom. Yet 
they are by no means one and the same. A failure to observe 
the distinction will cause, as it has already often caused, serious 
confusion and error. ^ 

1 See Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 36. 
Thus we find the New York courts holding that a divorce is a proceeding in 
personam, and that it operates to annul the contract of marriage, instead of 
dissolving the status or union created by that contract, in which latter case 
the proceeding would be in rem, as is generally held. See post, §§ 87, 89 et 
seq. In Jones v. Jones, 108 N. Y. 415, 424, — a divorce case, — the New 
York court says : " The Texas court did not acquire jurisdiction of the defend- 
ant by service of citation here. The contract of marriage cannot be annulled 
by judicial sanction any more than any other contract inter partes, without 
jurisdiction of the person of the defendant." The distinction between the 
contract of marriage and the resulting union or status is brought out in many 
of the cases. See Story, Confl. L. § 124 a, note (a) ; Brook r. Brook, 9 H. L. 
Cas, 193 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; State v. Kennedy, 76 N. C. 
251, 22 Am. Rep. 683, 684 ; Campbell v. Crampton, 2 Fed. 417, 424 ; State 
V. Tutty, 41 Fed. 753, 758 ; Adams v. Palmer, 51 Me. 481, 483. 



164 DUAL NATURE OF MARRIAGE. § 76 

So far as the contract of marriage is concerned, it is an exe^ 
cuted agreement between two persons who must be competent to 
contract, and is governed by the same general rules that control 
other executed contracts.^ 

But a marriage, in its complete sense, is much more than a 
contract. It is ushered in by the solemn compact of the parties, 
with the accompaniment of such formalities and ceremonies as 
the law may prescribe. The result of this contract is the im- 
mediate creation of a union for life between the parties. But 
the union itself is no more a contract than the ownership of land 
under a deed of conveyance is a contract. It is a status, a con- 
dition, which by their contract has become fastened upon the 
parties during their lives and in every country whither they 
may go, whether temporarily or permanently. 

The creation, continuation, and dissolution of this relation 
constitute matters of deepest concern not only to the parties in- 
terested but to the State as well. The proper performance of 
the duties it imposes involves not only the highest happiness 
and welfare of the individuals immediately concerned, but also 
that of their offspring and of the countless generations to suc- 
ceed them. To the State it offers the means of protecting its 
>itizens from impurity and immorality, secures them the bless- 
ings of home and family, and creates a noble nursery for the 
commonwealth . 

Nothing can be of greater importance or interest to the State 
than this relation, which, with its incident, — the family, — is 
justly deemed the foundation, corner-stone, and unit of the 
social order. It is not surprising therefore to find the State 
regarded almost as a party to the transaction, both in its incep- 
tion and in its dissolution.' 

2 The proper law governing the contract of marriage will be considered 
post, §§ 77, 78. 

» See Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, 24 ; People v. Dawell, 
25 Mich. 247, 12 Am. Rep. 260, 268 ; Ellis v. Ellis, 55 Minn. 401, 56 N. W. 
1056, 1059 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Gregory 
V. Gregory, 78 Me. 187, 57 Am. Rep. 792 ; Cook v. Cook, 56 Wis. 195, 43 Am. 
Rep 706, 14 N. W. 33, 36 ; Dunham v, Dunham, 162 111. 589, 44 N. E. 418. 
35 L. R. A. 70, 79 ; O'Dea v. O'Dea, 101 N. Y. 23, 39 (dissenting opinion). 



§ 77 THE CONTRACT OP MARBIAQE. 165 

Not only will the State prescribe definitely the persons who 
may enter into the relation and the forms and solemnities with 
which it shall be ushered in, but it will likewise preside over 
its dissolution, not permitting a termination of it during the 
lives of the parties, save with its consent (through its courts) 
and for causes assigned by itself. Many of the peculiarities 
incident to the law regulating marriage and divorce are due to 
the fact that the State is thus a quasi party to the transaction and 
deeply interested in the proper performance of its obligations. 
There is perhaps no other private relation in which the State 
becomes, as it were, a third party.* 

Keeping the contractual element of marriage distinct from 
the status, we will examine (1) The ''proper law " regulating 
contracts of marriage; (2) The ''proper law" governing the 
marriage status or the matrimonial union that results from the 
contract. 

§ 77. The Contract of Marriage — Formal Validity. — By 
the contract of marriage, or marriage contract, is meant the 
solemn agreement of the parties to assume the relation of man 
and wife, — the wedding ceremony, — which constitutes the 
vestibule to the matrimonial union. 

It is of course to be distinguished from a contract to marry, 
at least at the present day, when such contracts, even though 
accompanied by consummation, no longer constitute a marriage. 
The contract to marry is merely an executory contract, to be 
performed thereafter by marriage ; while the marriage contract 
itself is an executed contract, performed at the same time and 
place at which it is entered into. The contract to marry may 
be performed elsewhere than where it is entered into. The con- 
tract to marry may be broken. The contract of marriage cannot 
be, though the rights and obligations springing from the marital 

* Unless the relation of parent and child be excepted, to which the relation 
of marriage has been sometimes likened. See Cook v. Cook, 56 Wis. 195, 43 
Am. Rep. 706, 14 N. W. 33, 36. But the relation of parent and child has its 
origin in the laws of nature and in municipal law, not in contract. Matri- 
mony is more nearly analogous to the statutory relation of adopted parent and 
child, which, like marriage, begins with a quasi contract with the State, re- 
sulting in the creation of a status. See post, § 101 • 



166 THE CONTRACT OF MARRIAGE. § 77 

relation may be violated. There can be no " breach " of a com- 
pletely executed contract. 

Following the general rule touching the "proper law" to 
govern executory contracts,^ i f a contract to T narry \n madf in 
onft R t . atp (locus r.nlphratinnis), n,iifLjt_isa greed th at_the mar- 
riage-iiL-tft-takeqi lace in another (locus solutionis), o r such an in- 
te ntion^ is_tfl _be implied, the law of the place of _ performa nce 
(lex s<°rhrft<» i ni^ ip tn [ j nvrrn th e p er formance ^ fthe contract, 
and to determine whether it has been properly performed, ofj if 
it cannot be legally performed there, to determine the validity 
of the original contract. If the marriage may lawfully be cele- 
brated in the State agreed upon (the locus solutionis of the con- 
tract to marry), the contract to marry will be sustained, though 
made in a State where such marriage (if there celebrated) would 
be invalid; and if the marriage is contrary to the law of the 
place where the executory contract is to be performed, that 
promise will be invalid though it could have been lawfully per- 
formed in the State where the promise of marriage is entered 
into. The lex solutionis of an executory contract governs mat- 
ters relating to its performance, and this applies as well to 
promises of marriage as to other executory contracts. * 

In the discussion of the contract of marriage, which is an 
executed contract, we must anticipate the principles which de- 
termine the ''proper law" governing executed contracts gener- 

1 See post, § 175. 

2 See Haviland v. Halstead, 34 N. Y. 643 ; Van Voorhis v. Brintnall, 86 
N. Y. 18, 26, 40 Am. Rep. 505. But see Campbell v. Cramptoii, 2 Fed. 417, 
421. In the latter case, a man entered into a contract in Alabama, where he 
resi ded, with his aunt, to marry her at a future time in New York, where she 
resided. Such a marriage was invalid in Alabama, but goodin New York. 
The woman sued him in New York for breach of p romise. The court held 
that the contract was invalid, but not on the ground that the contract should be 
governed by the law oflhe place where it was made. On the contrary, it was 
admitted that its validity should be governed by the law of the place of per- 
formance (lex solutionis). But it was decided that the place of performancs 
of the promise of marriage was not the place where the marriage was to taka 
place (New York), but was the domicil of the future husband (Alabama), 
where the parties were to live their married life. This latter ruling can hardly 
be reconciled with reason.* The contract to marry is performed as soon as thfl 
marriage occurs. 



§ 77 THE CONTRACT OP MAERIAQB. 161 

allj, from which the contract of marriage does not materially 
differ. 

We h ave heretofore s fi f in that th n nf> p ni i l j III ( i iiili iw ^ li i iiitLLJiij^M 
is iiL -general to be d ''*-'^\Tn'^rt(>A l^y ^ha Iqw r>f flip plty^ p whfirft tjh ft 

Cnn traflt if^ tn h^ ^j^fprofl infn (In^ 111! i /ml^T^I'jtt.^Tii'a) « 

Another principle applicable to contracts generally, and equally 
applicable to the marriage contract, is that the formal validity 
of the contract (that is, the forms and solemnities with which 
it is to be entered into) is also to be determined by the law of 
the place where the contract is entered into (lex loci celebra- 
tionis).* With respect to the forms and ceremonies of the mar- 
riage, the solemnities with which the parties are required by 
law to enter into the marriage contract, it is universally con- 
ceded by all the authorities, English and American, that the 
lex celebrationis governs, no matter where the question arises. 
So far as these matters are concerned, if the marriage is valid 
in the locus celebrationis, it is valid everywhere; if invalid 
where contracted, it is in general invalid everywhere.* Thus 
the lex celebrationis has been held to govern the effect upon 
the validity of the marriage contract of the omission of banns 
or license;' of the want of consent of parent or guardian;^ of 

« Ante, § 73. 

* See post, § 172. 

* Scrimshire v. Scrimshire, 2 Hagg. Cons. 395 ; Dalrymple v. Dalrjrmple, 
2 Hagg. Cons. 54 ; Compton v. Bearcroft, 2 Hagg. Cons. 444 ; Warrender w. 
Warrender, 2 CI. & F. 488, 530 ; Patterson v. Gaines, 6 How. 560, 587 ; State 
V. Tutty, 41 Fed. 753, 760; Phillips v. Gregg, 10 "Watts (Penn.), 158, 36 
Am. Dec. 167, 168 ; Diimaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368 ; Hutch- 
ings »». Kimmell, 31 Mich. 126, 18 Am. Rep. 164 ; Com. r. Graham, 157 Mass. 
73, 75 ; Loring v. Thorndike, 5 Allen (Mass.), 257, 265; Vischer u. Vischer, 
12 Barb. (N. Y.) 640, 643 ; Kinney v. Com., 30 Gratt. (Va.) 858 ; Clark v. 
Clark, 52 N. J. Eq. 650, 30 Atl. 81, 83 ; Jackson v. Jackson, 82 Md. 17, 33 
Atl. 317, 319 ; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752, 754 ; Pennegar 
V. State, 87 Teun. 244, 10 S. W. 305, 2 L. R. A. 703, 705 ; State v. Kennedy, 
76 N. C. 251, 22 Am. Rep. 683, 684. 

' Compton V. Bearcroft, 2 Hagg. Cons. 444 ; Loring v. Thorndike, 5 Allen 
(Mass.), 267,265. The former was the first case to uphold the validity of 
" Gretna Green " marriages. 

7 Steele v. Braddell, Milw. (Irish), 1 ; Simoniu v. Mallac, 2 Sw. & Tr. «7 ; 
Com. V. Graham, 1 57 Mass. 73. 



168 THE CONTRACT OF MABBIAGE. § 77 

the omission of religions rites, such as a celebrant in holy 
orders,' etc. 

The fact that the parties g o abroad to contract the marr iap^e 
in ordex—j g evaJe^the laws of their domicil with respe ct to 

lir>p nap, Viann p, c elebrants, etc. (wh ^^b nr ^ TTnuilavn nf ^i i> m .), will 

not invalidate the marriaprPi if yftlid ^hffrtt ^ontracfrftd, _pTirh a 



ma rriage will be s ustained even in the courts of the d omicil 
upon the par ties' ret uxn thithpr^ — But if the portioo^ ml^tfaeir 
anxi ^ to evade the law of their domicile go into a ba rbarous 
or unsettled country, subject to no particular law, the law of 
theiraomicil is to be consldfeTtid ma f o ll o wing them and as still 
go vernin g^ the co ntract: — And p e rhap s the same principfe^pplies 
to marriages contracted on board vessels on the high seas, in 
evasion of the domiciliary law, no matter what flag the vessel 
flies."* 

But the general rule that the lex celebrationis regulates the 
forms and ceremonies incident to the contract of marriage, and 
that a marriage invalid in these respects by the law of the 
place where it is celebrated is invalid everywhere, is subject to 

* Dalrymple v. Dairy mple, 2 Hagg. Cons. 54 ; Phillips v. Gregg, 10 Watts 
(Penn.), 158, 36 Am. Dec. 167, 168 ; Dumaresly v. Fishly, 3 A. K. Marsh. 
(Ky.) 368; Hatchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Jackson 
V. Jackson, 80 Md. 176, 30 Atl. 752, 754 ; Clark v. Clark, 62 N. J. Eq. 650, 
30 Atl. 81. 

• "Where the evasion of the domiciliary law is in respect to, not a matter of 
form, but a matter of capacity to marry, the courts of the domicil will some- 
times, as we have seen, substitute the domestic law. See ante, § 73. 

10 Norman v. Norman, 121 Cal. 620, 66 Am. St. Rep, 74. In this case, 
the parties left California, where they were domiciled, in a small boat, reached 
the high seas, and there agreed in the presence of the captain of the boat to 
take each other as man and wife, in evasion of the California law, requiring 
the consent of the parents. It was held that, the high seas being subject 
to the laws of no particular State, the law of California followed the parties, and 
the marriage was invalidated. The decision might, it would seem, have been 
placed upon a safer foundation. The boat was a California boat, and as such 
a part of the territory of California while on the high seas, and therefore sub- 
ject to California law. Should a couple competent to marry elope from their 
domicil and be married on board a foreign oceAU liner, in accordance with the 
law of the flag, but in evasion of the law of their domicil, it could hardly be 
maintained that the law of the domicil should control in formal matters. 



§ 78 VALIDITY OP MABBIAGE CONTRACT. 169 

an exception in the case of marriages celebrated in barbarous 
countries, or in a country whose law requires religious rites op- 
posed to the tenets of the faith prevailing in the country to 
which the parties belong. The exception has its origin in a sort 
of moral or religious necessity. If the parties, in such case, 
conform to the requirements of their own domicil, the marriage 
will generally be valid.*^ 

§ 78. Substantial Validity of Marriage Contract. — The con- 
tract of marriage is an executed, not an executory contract, and 
is fully performed as soon as it is entered into. There can be 
no question of its performance elsewhere.^ For the same reason 
there can be no question of its breach at any other time or place 
than when and where it is entered into. K a "violation of the 
marriage contract " is alleged to have taken place after the mar- 
riage, as in case of desertion, cruelty, adultery, etc., it is an 
inaccurate and misleading use of words. In such cases, it is 
the marriage status or relation whose obligations have been 
broken, not the marriage contract. 

Owing to this misconception, some courts have held that in 

u Story, Confl. L. § 118 ; Whart. Confl. L. §§ 175, 176 ; Ending «. Smith, 
2 Hagg. 390 ; Harford v. Morris, 2 Hagg. 430. 

* Many cases, it is trae, speak of the performance of the marriage contract 
in places other than that where the marriage is solemnized, usually the par- 
ties' domicil. See Warrender v. "Warrender, 2 CI. & F. 488, 536 ; Vischer r. 
Vischer, 12 Barb. (N. Y.) 640, 646 ; Campbell v. Crampton, 2 Fed. 417, 425 ; 
Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. These cases refer for the 
most part to the law governing the personal rights and obligations of the mar- 
ried pair, such as the violations of duty which may be grounds to dissolve the 
marriage. Another group of cases which fall into the same inaccuracy deal 
with the law governing the marital rights of the parties in property of the 
consort, subsequently acquired. See Le Breton v. Miles, 8 Pai. Ch. (N. Y. ) 
261, 265 ; Mason v. Homer, 105 Mass. 116 ; Harral v. Harral, 39 N. J. Eq. 
379, 51 Am. Rep. 17, 23, 24 ; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 
Am. Dec. 168, 169. 

In all questions of this character, arising after the marriage contract is en- 
tered into, the marriage contract itself has no influence. It is the marriage 
status, resulting from the contract, upon which these rights depend, and the 
law which controls that status, not that which governs the contract, is the 
" proper law " to determine such rights. The status may exist or "be per- 
formed " elsewhere, but the marriage contract must in its nature be performed 
where it is entered into. 



170 VALIDITY OP MARRIAGE CONTEACT. § 78 

divorce cases the law of the place where the marriage was con- 
tracted must be looked to in order to determine on what grounds 
the marriage may be dissolved.^ It is now well established how- 
ever that such matters are not violations of the marriage con- 
tract^ but of the marriage relation and its obligations, and as 
such are controlled by the law which governs that status, that 
is, the law of the parties' domicil at the time of the divorce, re- 
gardless of the law of the place where the marriage was cele- 
brated or where the acts complained of occurred.' 

But if the marriage is alleged to be voidable by decree of court 
for a cause existing at the time of the marriage contract, though 
not void per se, quite different considerations present themselves. 
Here the invalidating matter goes to the very root of the con- 
tract itself and renders it voidable. The status in this case 
may be dissolved, if at all, not for any violation of the marriage 
relation, for the parties may have been exemplary in their con- 
duct towards each other, but merely because the contract upon 
which it is dependent may be avoided. This is a very different 
case from that of supervenient causes for divorce. 

The subject is not free from difficulty. If the marriage is 
valid and free from objection in the State where it is solemnized, 
there can be no doubt that it will be held free from objection 
elsewhere, even though the parties should be domiciled in, or 
should afterwards remove to, another State, by whose laws such 
a marriage would be voidable ab initio* 

2 This was substantially the view taken in England by the earlier decisions. 
See Dicey, Confl. L. 270, note (1); Lolley's Case, 2 CI. & F. 567; McCarthy 
V. De Caix, 2 CI. & F. 568 ; Tooey v. Lindsaj-, 1 Dow. 117. See Arrington 
V. Arrington, 102 N. C. 491, 9 S. E. 200, 207. 

* This is now the rule even in England. See Dicey, Confl. L. 270 ; Wilson 
17. Wilson, L. R. 2 P. & D. 435, 442 ; Shaw v. Gould, L. R. 3 H. L. 55, 85. 
And it is so held in America with great unanimity. See Harteau v. Harteau, 
14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Chase v. Chase, 6 Gray (Mass.), 157, 
161; Watkins v. Watkius, 135 Mass. 83; Hunt v. Hunt, 72 N. Y. 217, 228, 
28 Am. Rep. 129; Roth v. Roth, 104 111. 35, 44 Am. Rep. 81, 83; Van 
Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508 ; Felty. Felt, 57 N. J. 
Eq. 101, 40 Atl. 436. But see Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 
132, 134 ; Norris v. Norris, 64 N. H. 523, 15 Atl. 19. The last two cases 
qualify the rule somewhat, — it is believed, erroneously. 

♦ Such would be the case if the marriage were absolutely void in the latter 



§ 78 VALIDITY OF MARRIAGE CONTRACT. 171 

If the marriage is voidable where contracted (but is not there 
annulled), and the parties remove to another State, the question 
becomes more complex. If void or voidable by the laws of the 
latter State also, it would seem reasonable that it should be 
held to be voidable there. * However this may be, it is certainly 
not void in the latter State, so as to be susceptible of collateral 
attack in its courts.' 

Finally, if the marriage is valid by the law of the latter State, 
while voidable (though not annulled) in the State where it was 
contracted, it would seem, upon principle, that it should be 
voidable in the latter, for the invalidity relates to the marriage 
contract, and not to the status merely.'' 

In Cummington v. Belchertown,* a woman residing in Massa- 
chusetts married there, and afterwards be came insane. Her 
Fusband, leaving her in Massachusetts, went to New York, 
where he applied to have the marriage annulled on the ground 
of fraud in its procurement, alleging that his wife had been in- 
sane before her marriage and that this fact had been concealed 
from him. The New York court annulled the marriage for the 
fraud alleged (which was not a ground for annulling the mar- 
riage in Massachusetts), and the validity of the New York decree 
coming in question in Massachusetts, the court held it invalid. 
One of the grounds of its decision was that the validity of the 
marriage contract, entered into in Massachusetts, should have 
been govern ed by Massachusetts, not by New York, law. 

In Sutton V. Warren,^ an Il^nglishman married in England 

State, except, according to some authorities, when it is the actual domicil of 
the parties at the time of the marriage. See ante, § 73. A fortiori should it 
be so (probably without even the exception just adverted to) when the mar- 
riage is voidable only in the latter State. See Cummington v. Belchertown, 
149 Mass. 223, 226, 21 N. E. 435. 

6 Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435. 

* Sutton V. Warren, 10 Met. (Mass.) 451 ; Com. v. Lane, 113 Mass. 458, 
463, 18 Am. Rep. 509. 

■^ See Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435. But 
it is possible that the general favor shown towards marriages would prevent 
this result. 

« 149 Mass. 223, 226, 21 N. E. 435. 

^ 10 Met. (Mass.) 451, already quoted, ante, § 75. 



172 MARRIAGE STATUS OR MATRIMONIAL UNION. § 79 

his mother's sister, the English law at that time rendering 
such a marriage merely voidable. The parties afterwards (the 
marriage not having been annulled meanwhile) removed to 
Massachusetts, where such marriage was absolutely void. The 
husband having brought suit upon a chose in action belonging 
to the wife, it was objected that the marriage was void under 
Massachusetts law, but the court held that it could not be sub- 
jected to collateral attack. 

§ 79. The Marriage Status or Matrimonial Union — Its 
Commencement cind Continuance. — As has been already ob- 
served, the status of marriage, the legal union between man 
and wife, is justly deemed one of the most important, if not the 
most important, of all the relations recognized by the law.^ 

The discussion of the proper law regulating the marriage 
status may be divided into the following heads: (1) The law 
governing the commencement of the status; (2) That govern- 
ing the continuance of the status, with the incidents arising 
therefrom; and (3) The law governing the dissolution of the 
status, or divorce, — a separate chapter being devoted to the 
latter. 

The commencement of the marital relation is to be found, as 
has been already pointed out, in the marriage contract, the 
proper law governing which, both as to the capacity to enter 
into it, and as to the formal and substantial validity thereof, 
has been heretofore sufficiently considered." 

The status once acquired under a marriage contract valid by 
the proper law, the marriage relation is recognized and continues 
to exist in every State whither the parties may wander, until it 
is terminated by the death of one, or the divorce of both. 

The marriage status is essentially a mode of life, and it is 
peculiarly appropriate therefore that it should be governed in 
all particulars by the law of the place where the parties live, 
that is, by the law of their domicil, and that when their dom- 
icil changes the law governing their status should change 
with it.* But this principle, like most others whose object is 

1 Ante, § 76. » Ante, §§ 73, 77, 78. 

» Cook V. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 86 ; CUrk 
9. CUrk. 8 Gush. (Mass) 385. 



§ 80 INCIDENTS OF THE MAERIAGE STATUS. 173 

the determination of the "proper law," is subject to the oper- 
ation of the great exceptions mentioned in the second chapter, 
in which the lex fori will be substituted for a proper foreign 
law, whenever the policy or interest of the forum or its citizens 
demands such a course. 

Hence, the fact that the law of the legal situs or domicil of 
the parties gives the husband extraordinary rights over the per- 
son of the wife, not authorized by the laws of the State where 
they happen to be, such as the right of personal chastisement, 
the right to deprive her of liberty, etc., will not justify the 
husband in resorting to such measures in the latter State. Its 
courts and conservators of the peace will interfere in such cases 
to the same extent as if the parties were residents of the forum. 
For purposes of police, the law of the actual situs of the per- 
son will always govern.* 

§ 80. Incidents of the Marriage Status — Marital Rights in 
Consort's Property — Lands. — The incidents of the marriage 
tie arise by operation of law from the marital relation, not from 
the marriage contract, and are to be determined and controlled 
in general by the same law that controls that relation, the lex 
domicilii, unless the particular case is one of the great excep- 
tions. As has been said by a learned judge : ^ " When the con- 
tracting parties have entered into the married state, they have 
not so much entered into a contract as into a new relation, the 
rights and duties and obligations of which rest, not upon their 
agreement, but upon the general law of the State, statutory or 
common, which defines and prescribes those rights, duties, and 
obligations. They are of law, not of contract." 

Marital rights in the property of the consort are incidents of 
the matrimonial status implied by law^ and in this aspect may 
be regarded as partaking of that status. In another aspect, 
they may be regarded as mutual transfers of interests in prop- 

* Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, 232 ; Maguire v. 
Maguire, 7 Dana (Ky.), 181, 186 ; Prosser v. Warner, 47 Vt. 667, 19 Am. 
Rep. 132, 134; Blackinton v. Blackinton, 141 Mass. 432, 43&-436. Se« 
Whart. Confl, L. §§ 166, 167. 

1 Appleton, J., in Adams v. Palmer, 51 Me. 481, 483. See State v. Tutty, 
41 Fed. 753, 758. 



174 INCIDENTS OF THE MAKKIAGE STATUS. § 80 

erty by operation of law. In either aspect it will be found that 
they are in general to be determined and regulated by the same 
law that regulates the status itself, namely, the law of the parties' 
legal situs or domicil, at least if the property in question is 
■personalty.^ But marital rights may arise not only as incidents 
of the marriage status, but also from marriage settlements or 
contracts entered into between the parties. In such cases the 
rights of the parties are regulated by their contract, not by 
the law. 

In respect to immovable prop ftr^y, i<- ^'° -^^^IT qpftled that in 
th is, as in every other tri ^nsfer or link; in t hr rhain nf t i tlo; the 
lex situs of the property in question will control. Hence, as to 
such property, if there be no nuptial contract the lex situs will 
govern; if there is a nuptial contract, it will operate only so far 
as the lex situs permits. 

Thus, the dower right of ^^^^^_^jffi (^"'^ th*^ /'nrt.ft^j r.f-tlu^ynia. 
band)-tfi thr* Inu'ds nt thti cEs^!!!!!" ^^^^ ^® determined and regu- 
lat ed by the law of the place w here the land lies, not where the 
parties live.* '~~ 

In Lamar v. Scott,* a man domiciled in Georgia died. He 
had been seised during the coverture of land in South Carolina, 
by whose law a seisin at any time during the coverture sufficed 
to give the wife dower. He had aliened the land without join- 
ing his wife in the deed. By the law of Georgia (his domicil) 
the wife was dowable only in the lands of which the husband 
died seised. The South Carolina court held that the lex situs 
should govern, and that the wife must be endowed of the lands 
there situated. 

In Depas v. Mayo,^ Depas of Louisiana married in Pennsyl- 
vania a woman resident in Pennsylvania. They immediately 
proceeded to Louisiana, where they resided for several years. 

» Post, § 81. 

8 Ante, § 12 ; Lamar v. Scott, 3 Strob. L. (S. C. ) 562 ; Newcomer v. Orem, 
2 Md. 297, 56 Am. Dec. 717, 718 ; Moore v. Mayor, etc., 8 N. Y. (4 Selden) 
110, 59 Am. Dec. 473, 474 ; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. 
Dec. 168, 169 ; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88, 90-91. 

* 3 Strob. L. (S. C.) 562. 

'11 Mo. 314, 49 Am. Dec. 88. 



§ 81 RIGHTS IN PERSONALTY OP CONSORT. 175 

Both parties at the time of the marriage were destitute of prop- 
erty, but soon by their joint exertions accumulated a consider- 
able amount. By the laws of Louisiana, one half of all property 
acquired during the coverture belonged to the wife, and could 
not be disposed of by the husband. Afterwards Depas and his 
wife removed to St. Louis, and Depas purchased (with money in 
part belonging to his wife under Louisiana law) a lot in St. 
Louis, taking the title in his own name. The parties were 
afterwards divorced in Louisiana, and the wife claimed one half 
of the St. Louis lot by way of implied trust. The Missouri 
court held that the Louisiana law governed as to the personalty 
acquired while the parties were domiciled there, and that the 
wife was therefore entitled to one half of such property; but 
that, as to the land in Missouri, the lex situs must govern. 
But since, under Missouri law, if one purchased land with the 
funds of another, the conveyance being made to the former, he 
was deemed a mere trustee for the latter, the court adjudged 
that Depas was a trustee for his wife to the extent of one half 
the St. Louis lot. 

So, also, if there be an express ante-nuptial or post-nuptial 
contract touching the marital rights in land, its effect and 
validity must be controlled by the lex situs of the laud, not 
by the law of the place where such contract, or the contract 
of marriage, was entered into, nor by the lex domicilii of the 
parties.* 

§ 81. Marital Rights in Fersoneilty of Consort — In Absence 
of Express Contract. — We have already had, and will hereafter 

« Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974 ; Heine v. Ins. 
Co., 45 La. Ann. 770, 13 So. 1 ; Besse v. Pellochoux, 73 111. 285, 24 Am. 
Rep. 242 ; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180, 181 ; Castro v. lilies, 
22 Tex. 479, 73 Am. Dec. 277, 281. But if the contract is valid and suf- 
ficient under the lex situs, and is capable of specific enforcement there, the 
contract will confer an equitable title to the land, without a deed. See Castro 
V. lilies, 22 Tex. 479, 73 Am. Dec. 277, 281 ; Fuss v. Fuss, 24 Wis. 256, 
1 Am. Rep. 180, 181. In Poison v. Stewart, 167 Mass. 211, 45 N. E. 737, it 
was held that the law of the place of contract, not the lex situs, should con- 
trol in this respect. But this case related to a contract for the relinquishment 
of marital rights, not for the acquisition of them. This case ia discussed 
post. S 174. 



176 



RIGHTS IN PERSONALTY OF CONSORT. 



§81 



still further have, occasion f^ nht^^jf ire an important pr inciple 
generallj^applicable to personal property (excep t in case of 
conve3^anii£S~aS^otheTvol untary tran sactions with respect to it), 
namel^^jthat it has its legal sitits atthe leffa Tli}tn%) nr d o rm rilj 
of ^e owner . ^ Marital rights in the personalty of the consort, 
if regarded M 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, s uch as the 
su ecGscion to a dticwdeuL^s persona lty, are to be tui J t>i? olIje.d by 
the law of the IpgalRrtnn cff t h r o w nrT^ m i l l i j l lin liiwof his 
acfu al situs, nor b jjhue law tyj th6 aclual"'8it afi o ; f^he prop erty.^ 

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 in- 
cidents of the mairiage 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 gov- 
erns 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, j°i t r ri f;h*"f Tiyq^^'Tfj ^ y either in the personal ty of 
the c<>aa ^t upon his or her dea th, ^° ^^"Mh utee or othe rwisej 
the la w of their domicil a t the time o f th^ ^ d^^tll,^'^^^ c:nr\\.Tn\ ^ nnf: 
that nf thp. domir.i) at tbft time of the acquisition of the prop- 
erty, nnr ijiat nf fb ft pinrc M'hftrft tho fjpftth tnnir p lriiro Such 
rights 'donot 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 ix&us' 
fers 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. 

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

» See White v. Tennant, 31 W. Va. 790, 8 S. E. 696, 699 ; Steer's Succe«- 



§ 81 EIGHTS IN PERSONALTY OF CONSORT. 177 

As t o those marital rights in pfiraonalty whirh vp at at oi 
duri ng marriage, such as the husband's fiQinTnnn 1a^ ^^gHl to 
the wife's chattels and choses in action^ the law of ^he domic il 
at the time the right vests will con tror If the consort in whose 
property the right is claimed owned it at the time of the mar- 
riage, 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 con- 
trolled by the law of the "matrimonial domicil," which is de- 
fined to be "the country where the husband is domiciled at the 
time of the marriage, or in which he intends to settle imme- 
diately/ after the maiviage." ^ 

But it is submitted that to hold the country where the hus- 
band intends to settle (the factum not combining with the ani- 
mus) to be his domicil, whether " matrimonial " or otherwise, 
is violative of one of the leading principles governing the ac- 
quisition 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 r. Fox, 31 Barb. (N. Y.) 475. See post, § 139 et seq. 

* Mason v. Homer, 105 Mass. 116 ; Graham v. Bank, 84 N. Y. 393, 400, 
88 Am. Rep. 528 ; Kneeland r. 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. 8. (La.) 574, 
14 Am. Dec. 201, 203 ; Townes v. Durbiu, 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 eflFect of the executed contract of marriage, standing 
alone, is to create the marriage relation or status. See ante, §§ 76 et seq. 

6 Story, Confl. L. § 193 ; Fuss v. Fuss, 24 "Wis. 256, 1 Am. Rep. 180, 181; 
Besse r, Pellochoux, 73 111. 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 ». 
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 r. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; State v. Barrow, 14 
Tex. 179, 65 Am. Dec. 109. 

12 



178 HIGHTS IN PERSONALTY OF CONSORT. § 81 

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

A somewhat similar question has arisen with respect to prop- 
erty 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 prin- 
ciple.^ 

In general.^ with respect to aftf r nrquired prppprtyj the 
marital rights wil l depend U po n the law ff th^ ft ftunl domicil 
of t he part ies at the tim e 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 opera- 
tion 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 ajier 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. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; Fuss v. 
Fuss, 24 Wis. 256, 1 Am. Rep. 180. 

' 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. lilies, 22 Tex. 479, 73 Am. Dec. 277 ; Fuss 
r. 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. 



§ 82 CONTRACT TOUCHING MARITAL RIGHTS. 179 

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

Thus, in Smith v. McAtee," 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 abso- 
lutely 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.^^ 

§ 82. Same — Express Contract touching Marital Rights. 
— If there be a contract T^Q^^^»^oQTlTvMo>>3,pfl ar>A wifp. t,nnr.bipg tho 
mnritTil rightn nf ^nrh itLjLJifi jproperty of the other, and such co n- 
tract embraces only personalty owned at the t i me of t he marriage, 
the c ontract, if valid by the law of the place where it is maC 
will g overn as to the personalty owned at that time, wherever it 
be actually situateHT' But in auoh caco, ao to pui ' auua,lLy Lho'i' e- 
after acquired, Wie contract not embracing it, the marital rights 
will be determined by the same law as if there had been no con- 
tract, that is, by the law of the actual domicil at the time of 
the acquisition.* 

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 i;. lilies, 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. 

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



180 BIGHTS AND DUTIES OP PABENTS. § 83 

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 rela- 
tion 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 chas- 
tisement 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.^ 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. ^ 

But save ^^\_f nrh v '^' ^flpt^''^""^ ', *' ^ '" [ j o^'^^nT pi-^nr.i pia is 

that the law of t he Zeffa?_ sitfllR ^^ iliiinii 11 i'l Ili<" ^^piiipiijm " 
gover ning the relation of pare nj; a"'^ r\\^M\^ j»st as in oth er 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 re- 
fused to hold her liable therefor, on the ground that ''she has 
the status of an English woman, and it is the law of the coun- 
try of her domicil that must determine her obligations now." • 

» Fuss V. Fuss, 24 Wis. 256, 1 Am. Rep. 180 ; Castro r. lilies, 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. HufiF- 
man, 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. Blackiuton, 141 Mass. 432, 435-436. 

2 See Whart. Confl. L. §§ 166, 167. See also De Boimont t>. 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. 



5 53 RIGHTS AND DUTIES OF PARENTS. 181 

The legitimacy of the issue has no necessary connection with 
the status of marriage, since in some States children may be 
legitimate without an intermarriage of the parents, nor is it a 
necessary incident of the relation of parent and child, sinca 
that relation may exist without it. The truth is, legitimacy 
forms a distinct instance of status, and as such will be treated 
separately in a subsequent chapter. 



182 CAUSES FOB DIYORCJE. § 84 



CHAPTER VII. 

DISSOLUTION OF THE MARRIAGE STATUS BY DIVORCE. 

§ 84. Causes for Divorce. — The supreme importance of the 
marriage status to the State as well as to the parties has been 
adverted to. The interest of the State in this relation leads it 
not only to demand that it should not be entered into unad- 
visedly or lightly, and to prescribe with great care who may or 
may not enter into the contract, as well as the ceremonies ac- 
companying its solemnization, but also to prohibit its dissolu- 
tion at the mere will or caprice of the parties. The consent of 
the State thereto must first be obtained through its legislature 
or its courts, and only for the particular causes assigned by the 
]fl,w-making power. 

If the parties abandon their domicil in one State and acquire 
a residence in another, the interest of the first State in the mar- 
riage status ceases; that interest is now transferred to the sec- 
ond State, which will see to the preservation or regulation of the 
relation with the same zeal that inspired the former State so 
long as the parties remained domiciled there. The latter State 
will now permit the status to be dissolved only for causes which 
seem to it proper, and only with its consent (through its courts). 
For the marriage relation is essentially a status, a mode of life, 
and just as the incidents thereof are determined by the law of 
the place where the parties live (lex domicilii), so also the dis- 
solution thereof is to be regulated by the same law. 

TTon^o if jg g wftll established general principle of private 
intrrnati^T^^l ^^^ thfit a dj vorceobtaiuod in a- State other than 
th e domicil is of no bi ading.eff ecnn Other States, as will pres- 
ently appear. ~ ~ ~" 

The^same principle applies to the causes for which a divorce 
Is asked for. If the parties have always resided in the same- 



§ 84 CAUSES FOR DIVORCE. 183 

State, and have never lived elsewhere, no difficulty arises. It 
is manifest that the State where they have always lived (their 
only domicil) should be the State where the divorce is prose- 
cuted, and upon its municipal law must depend the question 
whether or not there is sufficient ground to dissolve the mar- 
riage relation.^ 

But if the parties since the marriage have lived in several 
States, a question may arise as to which law shall determine 
whether there is ground for divorce. So also, if the act on ac- 
count of which the divorce is asked occurs in another State, by 
whose law it is no cause of divorce, though constituting a suffi- 
cient cause in the State of the divorce forum, or vice versa; 
especially if the parties at the time of the act were domiciled 
in the State where it was done, one or both of them removing 
afterwards to the State of the forum. What law should prop- 
erly determine such points has been the subject of considerable 
debate.* 

Upon priacipl* ^, ^^ ^^^n1/l — g oo aa — clear — that — thgouestion 

wTiPfliPiw>7- anf ^ pnrfinnlftr gr>f. or nTy^iaainn ia a grnuSTTrtr 

divorc«. ^ould be determi ned by the rules of the mu pi^ipgl law 
of thft ^fjiynrfft foru m. The iact that the alleged offense occurs 
m another State, or even that the parties were domiciled in the 
latter State when the offense occurs there, should not be suffi- 
cient, in the absence of explicit legislation of the forum to the 

1 Hunt V. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129. 

2 Various theories will be found advocated in the following cases, some 
holding that the law of the place where the marriage contract is entered into 
should regulate the causes for dissolving the status ; others holding that the 
law of the place where the offence is committed should prevail ; others are in 
favor of the law of the domicil of the parties at the time the oflFence was com- 
mitted ; and others in favor of the law of the parties' domicil at the time the 
divorce is sought. See LoUey's Case, 2 CI. & F. 567 ; Arrington f. Arrington, 
102 N. C. 491, 9 S. E. 200, 207 ; Norris v. Norris, 64 N. H. 523, 15 Atl. 19 ; 
Prosser v. "Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Harteau v. Harteau, 
14 Pick. (Mass.) 181, 25 Am. Dec. 372 ; Watkins v. Watkins, 135 Mass. 83 ; 
Colbum V. Colburn, 70 Mich. 647, 38 JT. W. 607 ; Lyon v. Lyon, 2 Gray 
(Mass.), 367; Cook v. Cook, 56 Wis. ]95, 43 Am. Rep. 706, 14 N. W. 33 ; 
Hai-ding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Shreck v. Shreck, 
32 Tex. 578, 5 Am. Rep. 251 ; Jones v. Jones, 67 Miss. 195, 6 So. 712, 713. 



184 PROCEEDINGS IN PERSONAM AND IN REM. § 85 

contrary, to deprive its courts of the full and complete right to 
preserve, regulate, or dissolve the marriage status of the citizens 
of the forum in accordance with its laws.' 

But if the object of a suit i s not to dissolve a- ma rriago status 
valid in thebegmning, but ^ opronounce the union invalid ab 
initio for a cause r enderin pf th^ rnftmagp rnntr-nrt. votdab le, the 
principles by which to determine th e ^^ proper law '^ are differ- 
ent. In~8uch cases the lex celebratioa i s of tl 



tract is the proper law.* 

In Conclusion, it should be observed, that the mere fact that 
the cause of divorce arises in the State where the divorce is ob- 
tained (neither party being domiciled there at the time of the 
divorce), will not suffice to make the decree of divorce binding 
in other States, although by the municipal law of the divorce 
forum jurisdiction is thereby conferred upon its courts inde- 
pendently of the domicil of the parties. Domicil (of one of the 
parties at least) is an essential prerequisite to give a divorce 
exterritorial effect.* 

§ 85. Proceedings in Personam and in Rem distinguished. 
— As preliminary to a discussion of the principles governing 
the effect of foreign divorce, it is necessary to observe the im- 
portant distinctions between judicial proceedings in personam 
and in rem. 

The purpose of a proceeding in personam is to impose, 

» Hunt V. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129 ; Kinnieri;. Kinnier, 
45 N. Y. 535, 539, 6 Am. Rep. 132 ; Pennoyer v. Neff, 95 U. S. 714, 734-735 ; 
People V. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 272 ; Colburn v. Colburn, 
70 Mich. 647, 38 N. W. 607, 608 ; Shreck v. Shreck, 32 Tex. 578, 5 Am. 
Rep. 251 ; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Hood 
V. Hood, 11 Allen (Mass.), 196, 87 Am. Dec. 709 ; Arlington v. Arrington, 
102 N. C. 491, 9 S. E. 200, 207. But see Norris v. Norris, 64 N. H. 523, 
15 Atl. 19 ; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134 ; Harteau 
V. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. In Massachusetts and 
Illinois there are statutes more or less affecting this general rule. See Lyon 
V. Lyon, 2 Gray (Mass.), 367 ; Smith v. Smith, 13 Gray, 209 ; Watkins t;. 
Watkins, 135 Mass. 83 ; Chapman u. Chapman, 129 111. 386, 21 N. E. 806. 

* Ante, § 78. 

' Yan Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508. See po«t 
§§ &9 et seq. 



§ 86 PBOCBEDINGS IN PERSONAM AND IN REM. 185 

through the judgment or decree of the court whose aid is in- 
voked, some responsibility or liability directly upon the person 
of the defendant. Of this character are criminal prosecutions, 
suits to compel a defendant to perform some specific act, or 
actions to fasten a general pecuniary liability upon him. A 
proceeding in rem, on the other hand, is aimed not at the per- 
son of the defendant, but at his property or some other thing 
within the power and jurisdiction of the court. 

Most important consequences flow from the distinction be- 
tween these modus of procedure. The fourteenth amendment 
to the federal constitution provides that no State shall deprive 
any person of life, liberty, or property without due process of 
law ; that is, without notice and a reasonable opportunity to be 
heard in his own behalf. But the notice required under this 
constitutional provision is very different in the two modes of 
procedure. 

In r^or'^'^^'^g" iix ^ersonam, no judgme nt or^d^cree agai nst 
a dr fnndwnt i i yf i lifl nnlftnn h^ has bee n pejao nally oori ted with 
nntifift o f ^h ^ a-^.tj on or suit wij jiin the t erritori al limits of t he 
cour t's jurisd iction, or has volu "*^<»Tlly <ippQ^^o^ This much / 
is always required, and in some instances even more.^ But in 
prr>/>PP^iTigg^t>«-^w i£.jJrt(^ '»'<'s_^ e withju th e court'sjurJ adictiq in' 
duCLprocess of law does J^f)^ ^c|]nanf} fTia± antngr^ iiotirA-ftf the 
suit sho ulaB ^^-6erSe^-Hpoi]_t ^ def endant personall^»_Even 

tboiTg^b^bft^TiQii-rgsTj^ajii: jvMiift fnriTrrTpfeg^^ft^-ipfeSPSX ^ th at 

he keeps in touch with his propertY«j vhereve rit may be sj jaiated, 
and that he will be straightway informed if any peril threatens 
it. Hence in such case the law contents itself with requiring 
a general proclamation or publication of the fact that a suit has 
been instituted with respect to the defendant's property, or with 
a personal notice served upon him outside the limits of the 
court's territorial jurisdiction. 

In either form of procedure, if there has been no such due 
process of law as is demanded under the federal constitution, 
the court is without jurisdiction, and its decree is absolutely 
void within the limits of its own State as well as elsewhere. 

1 As in the trial of felony cases, in which no material step can validlj 
be taken unless the accused is personally present in court 



H.. 



186 EFFECT OF FOREIGN JUDGMENTS. § 86 

The leading case of Pennoyer v. Neff * furnishes an excellent 
illustration of these principles. In that case, an attachment 
was issued in Oregon upon an order of publication against prop- 
erty there belonging to a non-resident defendant. An Oregon 
statute permitted the court in such cases to subject the prop- 
erty/, and if that proved insufficient to satisfy the debt, to make 
a personal decree for the balance against the absent debtor. 
The court pursued this course, and the case was carried on 
appeal to the United States Supreme Court. That court held 
that, so far as the attachment of the property was concerned, 
the proceeding was in rem, and that the presence of the prop- 
erty there gave the court jurisdiction, though the owner was a 
non-resident, had not appeared, and had been notified of the 
pendency of the cause no otherwise than by advertisement in a 
newspaper. But it was also held that the personal decree for 
the balance of the money due by the non-resident defendant 
was beyond the court's jurisdiction, and that the statute au- 
thorizing such a course contravened the federal constitution. 

§ 86- Exterritorial Effect of Foreign Judgments and De- 
crees. — The federal constitution, in its requirement that no 
State shall deprive any person of life, "liberty, or property with- 
out due process of law, is no stricter than are the principles of 
private international law, when those principles begin to oper- 
ate upon judicial proceedings. While the above mentioned 
clause of the federal constitution is a part of the municipal 
law of each State of the Union and operates intra-territorially 
upon domestic proceedings, the rules of private international 
law come into play only when the inquiry extends to the effect 
to be given, in one State or country, to the judicial proceedings 
of another. But the federal constitution and the rules of pri- 
vate international law both unite in declaring that, in order to a 
valid exercise of jurisdiction by a tribunal, there must be given 
to the defendant a reasonable notice and opportunity to defend 
himself; there must be **due process of law." What consti- 
tutes such due process in respect to proceedings in personam as 
well as in rem has already been shown. 

2 95 U. S. 714. See also Alley v. Caspar!, 80 Me. 234, 6 Am. St. Rep. 
185, note. 



§86 



EFFECT OF FOREIGN JUDGMENTS. 



187 



Hence in orderj hat effect may he gi ven abroad to a. judgment 
in rsrnoiin personam, the coart rendering the ju3gment in 
ques tion must h a ve jurisdiction of the cause , and such juriadic- 
tion of the defendant or of the property threatened as "aue 
proc ess of law " demands, i t the judgtti uiil ui dccrco bo in rdn ij^ 
it is only necessary that the res be within the court's jurisdic- 
tion md Llial a general uiiblication ot notice of the snitZ ha 
given. If in personam, it is essential that fhp. rnnrt _^ hfrn^c\ 
have obtained jurisdiction of the defendant's person, either by 
his v oluntary appearance and submission to the court's jurisdic^L 
tion, or by a personal service of proce ss "p"" bim ^fjjvinflio 
territ orial limits of the C " iir^'« Qnfbnrify 

If these conditions are complied with, the foreign judgment 
-will in general be given effect everywhere ; if not complied 
"with, the judgment or decree, even though valid where ren- 
dered, will in general be regarded as void and of no effect out- 
side the jurisdiction where it is rendered. 

But,^suppe»iug the -«aiiiitions complied with, it does not 
necessaril}^ fo llow that the foreign^jtl dgment or dooroo wil l be 
gi-p-Qja-^^^rr^ifofit^^ pfFftf»f: in nt.hf^f States. In case th^ j'ldgm^nt 
or decree be in rem, it is true, the effect given to it is generally 
conclusi ve everywhere, if th e res is within the court's jurisdic- 
tion,Torthe sovereignty of a State over everything within its 
limits is supreme, and will usually be respected in other 
•States.^ "^ ' "^ 

But w ith respe^ tJ;Q,.j«d:gmeuts aTrd^ecrees in personam^axmh. 
as judgments for money, private internati TTrrai-lftw-gogs"^ fur- 
fther tha^n to~declare them a yrima fac ie evide nce of indeb ted- 
ness, permitting the merits of the cause of action to be again 
inquired into, at least where such i s the eiie ct that would b e 

1 This is universally conceded in the case of decrees in admiralty. See 
The Rio Grande, 23 "Wall. 458 ; Williams v. Armroyd, 7 Cr. 423 ; Gelstou t;. 
Hoyt, 3 Wheat. 246 ; China Mat. Ins. Co. v. Force, 142 N. Y. 90 ; Street 
i;. Ins. Co., 12 Rich. (S. C.) 13. And generally also in attachment and other 
proceedings m rem. Freeman v. Alderson, 119 U. S. 185 ; Pennoyerr. NeflF, 
-95 17. S. 714; Green v. Van Buskirk, 7 Wall. 139; Noble v. Oil Co., 79 
Penn. St. 354 ; Amdt v. Amdt, 15 Ohio, 33. But see Hornthall v. Burwell, 
109 N. C. 10, 13 S. E. 721 ; Singer Mfg. Co. v. Fleming, 39 Neb. 679, 42 Am 
St. Rep. 613. 



188 EFFECT OF FOREIGN JUDGMENTS. § 86 

given to foreig n judg ments in the State where the judgment in 
question was'rendereHT' ~~ -— 

Ss between the States of this Union, the comity enjoined by 
private international law touching the effect to be given to for- 
eign judgments is reinforced and supplemented by the clause in 
the federal constitution providing that full faith and credit shall 
be given in each State to the judicial proceedings of every other 
State,* and by the act of Congress, made in pursuance thereof, 
declaring that the judgments of the courts of each State shall 
have the same faith and credit in other States as they have in 
the States where they are rendered.* 

Under these provisions, the judgments and decrees of the 
courts of one State, if valid and conclusive there, are for the 
most part valid and conclusive iu every other State of the Union, 
Without them the judgments of each State would be regarded 
as strictly foreign judgments in every other State.* 

But it is to be observed that it is not the design of these pro- 
visions to confer any new power upon the States, but simply to 
establish a just rule of comity by which may be regulated the 
effect of their admitted jurisdiction over the persons and things 
within their borders. They do not propose to make the judg- 

' Hilton V. Guyot, 159 U. S. 113. It is probably otherwise if foreign 
judgments are given conclusive effect in the State where the particular judg- 
ment in question is rendered. Ritchie v. McMullen, 159 U. S. 235 ; Wunstan 
V. Higgins, 138 N. Y. 70 ; Rankin e. Goddard, 55 Me. 389. But this rule is 
subject to qualification where the foreign judgment is based on matters of 
mere local policy. See Hohner v. Gratz, 50 Fed. 369 ; De Brimont v. Penni- 
man, 10 Blatchf. 436. Upon the effect of foreign judgments, see a learned and 
full discussion in Story, Conil. L. §§ 598 et seq., and notes. 

8 U. S. Const. Art. 4, § 1. 

* U. S. Rev. Stats. § 905. 

6 Slack V. Perrine, 164 U. S. 452; McElmoyle v. Cohen, 13 Pet. 312; 
Carpenter i;. Strange, 141 U. S. 87 ; Guthrie v. Lowry, 84 Penn. SL 533 ; 
Elsasser v. Haines, 52 N. J. L. 10, 18 Atl. 1095 ; Edwards v. Jones, 113 N. C. 
453, 18 S. E. 600 ; Dorsey v. Maury, 10 Sm. & M. (Miss.) 298. These pro- 
visions apply not only to judgments of State courts, but also to the judgments 
of the federal courts, when litigated in the State courts. Pennoyer v. Neff, 
95 U. S. 714 ; Southern Ins. Co. v. Hardware Co. (Tex.) 19 S. W. 615 ; 
Barney v. Patterson, 6 Har. & J. (Md.) 182 ; Niblett v. Scott, 4 La. Ann. 
246L 



§ 86 EFFECT OF FOREIGN JUDGMENTS. 189 

ments of other States domestic judgments to all intents and 
purposes, but merely give a general validity, faith, and credit 
to them as evidence.' No execution is to issue upon such for- 
eign judgment without a new suit in the tribunals of the State 
where it is sought to be enforced. Nor does it enjoy any pri- 
ority, privilege, or lien which may be accorded it in the State 
where it is rendered, but only such as the lex fori gives it in its 
character of a foreign judgment.'' 

Under these provisions, the judgment is to be given the same 
effect in other States as in the State where it is rendered, and 
since it is in general conclusive there upon the rights litigated, 
until reversed, it will also be held to be conclusive in other 
States, as to the original merits of the controversy. 

It is immaterial what the nature of the controversy is. The 
judgment is equally conclusive, whether it be in rem or in per- 
sonam; whether it fastens a personal liability upon the defend- 
ant, or whether it only affects his property or his status. Thus, 
the valid judgment of a competent court determining the dom- 
icil of a testator and probating his will of chattels is conclusive 
in every State in the Union.^ So also the judgment of the 
courts of the domicil declaring a child to have been lawfully 
adopted is in general conclusive.' And so it is with almost 
every kind of judgment ; such as judgments for money, or in 
divorce or attachment proceedings, etc., provided only the 
court pronouncing the judgment has jurisdiction of the cause, 
of the person, and of the res. To this general princi ple ther e 
seems to be only one exceptio n. It does not apply with fuU 
force to foreign judgments tor the enforce ment of a penalty.^" 

It follows from what has been already said that When an 

« Story, Confl. L. § 609 ; McElmoyle v. Cohen, 13 Pet. 312 ; D'Arcy v. 
Ketchuin, 11 How. 165. 

^ "Wood V. Watkinson, 17 Conn. 500 ; McElmoyle v. Cohen, 13 Pet. 312 ; 
Stoty, Confl, L. § 609. 

8 Thomas v. Morissett, 76 Ga. 384 ; In re Gaines, 45 La. Ann. 1237, 14 
So. 233. 

» Van Matre v. Sankey, 148 111. 356, 36 N. E. 628. See Foster v. Water- 
man, 124 Mass. 592. 

10 Huntington ». Attrill, 146 U. S. 657, 672. See ante, § 10. 



190 DIVORCE, PROCEEDING QUASI IN REM. § 8T 

actio nals brought in one of the Stat es of this Union to en force 
a j udgment re ndered in another, o nly such defenses c an be 
inhfle thprf't o in jM^TtMl V^' ! im iv F TTTTrF i n mft rl n in the St atp^vyherp it 

WH*^ p^'^^"""''''^j i" an ' K-tion thft rp on aiiah— jrrrK^rrwnf:. 

Thus in an action in one State of the Union upon a judgment 
rendered in another, the defendant may show that the court 
pronouncing the judgment had not jurisdiction of the cause, of 
the subject-matter, or of the parties; ^^ or that the judgment is 
not responsive to the pleadings — at least, if the defendant does 
not appear at the trial. ^* So the defendant may show matters 
ex post facto that go in release or discharge of the judgment, 
according to the law of the place where the judgment is 
given.^' 

But an exception to this princip le arises where the d efend- 
ant pleads the statute of limitations to the acti on upon the 
judgfljent. The scope and effect of thi s defense isTn^-general 
d etermin e d" by the l&w ot the State where the action~ XrpoH the 
ju dgment i s brought (lex fori)." 

§ 87. Divorce Causes, Proceedings Quasi in Rem. — In 
divorce causes, the actual subject-matter of the litigation is 
the marriage status itself. The design is to affect or dissolve 
the marital relation, not to impose a general personal liability 
upon either party, or to give personal relief. Hence they par- 
take of the nature of proceedings in rem rather than of pro- 
ceedings in personam, the res being the status. And this is 
true whether the suit be for divorce a mensa ^ or divorce 

" Harris v. Hardeman, 14 How. 334; Cheever v. Wilson, 9 Wall. 108; 
Thompson v. Whitman, 18 Wall. 457; Grover & B. M. Co. v. Radcliffe, 137 
U. S. 287. 

" Reynolds v. Stockton, 140 U. S. 254. 

" McElmoyle v. Cohen, 13 Pet. 312 ; D'Arcy ». Ketchum, 11 How. 165. 

1* Jacquetter. Huguiron, 2 McLean, 129; Bauserman v. Charlott, 46 Kan. 
480, 26 Pac. 1051 ; Packer w. Thompson, 25 Neb. 688, 41 N. W. 650. See 
post, § 210. But if the statute of the State where the judgment is rendered 
declares that the judgment shall not he good after a certain period of years, 
that law, not the lex fori, must govern. Bowersox v. Gitt, 12 Penn. Co. 
a. 81. 

1 See De Meli r. De Meli, 120 N. Y. 485 ; Butler v. Washington, 45 1^. 
Ann. 279, 12 So. 356, 19 L. R. A. 814. 



§ 88 THE RES IN DIVORCE CAUSES. 191 

a vinculo.^ At the same time these causes cannot be said to 
be altogether proceedings in rem. There is a personal element 
that enters into them, not found in suits instituted merely to 
subject or affect property. Says one admirably conceived opin- 
ion : *' Accurately speaking, a proceeding in rem is a proceeding 
against tangible property, and actual notice is dispensed with 
on the theory that the owner is bound to know where his prop- 
erty is and whac is being done with it. It is manifest this 
theory cannot be applied to the relation of husband and 
wife." » 

It results therefore that these causes constitute in some 
measure a dividing line between proceedings strictly in rem 
and proceedings strictly in personam, partaking in part of the 
nature of each, the former however predominating. Hence 
they are often very properly denominated proceedings quasi in 
rem. The importance of this line of demarkation will appear 
hereafter when we come to consider the exterritorial effect of 
divorce.* 

But a decree for the costs of a divorce suit, or a decree for 
alimony, is a decree strictly in personam, since the object is to 
fasten upon the defendant a general pecuniary liability, not to 
affect the status.® 

§88. The Res in Divorce Causes. — Divorce causes being 
proceedings quasi in rem, it becomes important and necessary 

« Roth V. Roth, 104 111. 35, 44 Am. Rep. 81, 84 ; Anthony v. Rke, 110 
Mo. 233, 19 S. W. 423, 424 ; Dunham v. Dunham, 162 111. 589, 35 L. R. A. 
70, 77 ; McGill v. Deming, 44 Ohio St. 645, 11 N. E. 118, 122. The New 
York courts are peculiar in holding the view that divorce causes are proceed- 
ings in personam. See Williams v. Williams, 130 N. Y. 193 ; De Meli v. De 
Meli, 120 N. Y. 485; Jones v. Jones, 108 N. Y. 415; O'Dea v. O'Dea, 101 
N. Y. 23 ; People v. Baker, 76 N. Y. 78. See also Prosser v. Warner, 47 Vt. 
667, 19 Am. Rep. 132, 135-136. 

» Doughty r. Doughty, 27 N. J. Eq. 315, 325. 

* Post, 5§ 89 et seq. 

6 Felt V. Felt, 57 N. J. Eq. 101, 40 Atl. 436 ; De La Montanya v. De La 
Montanya, 112 Cal. 101, 32 L. R. A. 82, 85 ; Thurston v. Thurston, 58 Minn. 
279, 59 N. W. 1017, 1018 ; Kline v. Kline, 57 la. 386, 10 N. W. 825, 826 ; 
Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 133, 134. But see Black- 
inton V. Blackinton, 141 Mass. 432. See post, 8 95- 



192 THE RES IN DIVORCE CAUSES. § 86 

to determine what is the res, for the court's jurisdiction i*^ pro- 
ceedings in rem, depends upon its jurisdiction of the res. 

It is generally admitted that the res is the marriage status, 
which includes the status of both consorts, the situs of the 
status of each being his or her domicil. Strictly speaking, 
therefore, the jurisdiction of the status of the husband or 
wife belongs to the courts of his or her domicil, and to no 
other, because those courts alone have jurisdiction of the res. 
But in the case of marriage the status is a double or correla- 
tive status.^ There can be no such thing as a husband without 
a wife, or a wife without a husband. Hence when a court as- 
sumes to pronounce a decree destroying the marriage status of 
one of the consorts, it must necessarily destroy, so far as its de- 
cree has any effect at all, the status of the other consort also. 
If then the consorts are domiciled in different States, it is a 
matter of grave importance to ascertain how far the power of the 
courts of either of these domicils extends in dissolving the mar- 
ital union. 

It must be constantly remembered that the present inquiry 
relates to the extra-territorial, not the intra-territorial, effect of 
a decree of divorce. It is admitted that, within its own borders, 
each State has sovereign control over all persons and property 
there situated either permanently or temporarily, subject only 
to such restrictions as may be placed upon its courts by its own 
laws or constitution, or by the constitution and laws of the 
United States.^ Subject to these restrictions, it is in its power 
to declare, in any form of proceeding it sees fit, that a married 
man resident there, or there temporarily, or even not there at 
all, shall be there deemed no longer married, and that whether 
the wife be within or without the State. This is purely a 

^ So it is also with the status of adoption, and hence the principles govern- 
ing the exterritorial effect of decrees of adoption and the jurisdiction of courts 
to grant such decrees are very similar to those regulating decrees of divorce. 
See Van Matre v. Sankey, 148 111. 356, 36 N. E. 628 ; Foster v. Waterman, 
124 Mass. 592. 

^ The provision of the federal constitution that no State shall deprive any 
person of life, liberty, or property without due process of law does not apply 
to the marriage relation. 



§ 88 THE RES IN DIVORCE CAUSES. 193 

matter of muBicipal law, with which private international law 
has no concern. And the status being a reciprocal one, since, 
in that State, the husband must be considered to be without a 
wife, so in thai State the woman must be deemed to be without 
a husband. 

But it does not follow that either will be regarded as unmar- 
ried in other States. If in any other State the edict is given 
sufficient effect to destroy the status of the husband as a mar- 
ried man, it must also be held in that State that the woman is 
unmarried. If in another State the woman's status is regarded 
as unaffected by the edict, so must the man's. In other words, 
a decree of divorce must, in any State, be valid as to both con- 
sorts, or void as to both. It cannot be valid as to one and void 
as to the other, for that would be to affirm that there might be 
a husband without a wife, or vice versa. 

Hence, in considering the exterritorial effect of decrees of 
divorce the question is whether the court granting the divorce 
has such complete jurisdiction of the entire res (the status of 
both parties), as to justify other States in admitting its sover 
eign right to completely regulate or dissolve the marital union. 

Beyond all doubt, a divorce court has absolute and complete 
jurisdiction of the res if both parties are domiciled within its 
territory. The situs of the status of each party is then the 
State where the divorce is obtained, and there is no ground for 
any other State to complain that its sovereign rights over its 
own citizens have been violated. Generally full effect will be 
given to foreign divorces under such circumstances.' 

On the other hand, if neither husband nor wife is domiciled 
in the State where the divorce is obtained, its courts are com- 
pletely without jurisdiction of the res. Other States, especially 
those wherein the husband and wife are respectively domiciled, 
might and would justly complain that the State of the divorce 
had usurped sovereignty that it should not have exercised. 
Though admitting the validity of the divorce within the bor* 
ders of the divorcing State, it would be given no exterritorial 
effect by the courts of other States.* 

' Post, § 89. * Post, § 90. 

13 



194 THE RES IN DIVORCE CAUSES. § 88 

An intermediate case (and the most difficult) presents itself 
in those instances where one of the parties is domiciled in the 
State granting the divorce, while the other is domiciled else- 
where. Here the divorce court has jurisdiction of part of the 
res (the status of its citizen) hut has no jurisdiction of the 
other part of the res (the status of the non-resident). The 
whole res is the status of both parties^ and owing to the reci- 
procity of the relation it cannot be severed, so as to give the 
court complete jurisdiction of the part within its limits. 

Except for the personal element involved in the dissolution of 
the marriage status and the marital rights and obligations, the 
case is analogous to a proceeding strictly in rem against a ship 
or other chattel (which we may suppose to be indivisihle, like 
the status of the two parties to the marital union). Let us sup- 
pose the ship, at the time of the proceeding in rem, to be partly 
in one State and partly in another. The court would have juris- 
diction (theoretically) of so much of the ship as is within its 
territory, but would have none over that part within the territory 
of another State. But practically (the ship being supposed to 
be inseparable, like the marriage status) the question would 
have to be decided whether the court, by virtue of its jurisdic- 
tion over part of the ship, might draw it all into its power, or 
whether, since it has no jurisdiction (theoretically) over a part, 
it should renounce jurisdiction over so much as is within its 
control. It must do one or the other; it must exercise juris- 
diction over the whole or over none. 

Such for the most part is the situation in which a divorce 
court finds itself in cases where only one of the parties is domi- 
ciled in the State of the divorce. It is not difficult to imagine 
that in general the court would resolve the problem in favor of 
its own jurisdiction, holding that by virtue of its jurisdiction 
over a part it might draw the whole res into its control. So 
the court would probably argue in the case of the ship, and 
accordingly would assume control of it in its entirety. But a 
more serious question would then arise. What effect would be 
given to this action of the court in respect to the ship in the 
other State from which the ship has in part been drawn away? 
Would that State regard its withdrawal from its own territory 



§ 89 DIVORCE IN DOMICIL OF BOTH PARTIES. 195 

as a proper and lawful exercise of power, or would it deem the 
action of the court impertinent, in contravention of its own 
sovereignty, and therefore void within its limits ? • 

Precisely these questions have agitated the courts with respect 
to the effect to be given foreign divorces, where one of the par- 
ties (usually the defendant) is a non-resident of the State of 
divorce. How they have been solved will be seen hereafter.' 

§ 89. Exterritorial Ilffect of Divorce — Both Peu-ties Domi- 
ciled in State of Divorce. — "VKIj ere both consorts are domicile d 
in the State where the divor g A is obtained, t he court has com- 
plete juri§dicti^«--©f--ihajz:fiV-ajidJim:e:S^i_i^^ of 
judgment s in rem, the decree will be binding everywhere, if 
bindin g in the State of the domicil and divorc e.-^ 

From the standpoint of private international law it is imma-. 
terial whether or not the parties be actually present within the 
jurisdiction at the time of the divorce, if only they are there 
domiciled; ^ nor is it material how long the residence has con- 
tinued, even though it be not long enough, under the municipal 
law of the domicil, to give jurisdiction to its courts.' 

Generally speaking, it is the laws and courts of the bona 
fide present domicil of the parties that regulate the divorce, 
not those of the country of residence (merely), nor of citizen- 

5 See Plumraer v. Hatton, 51 Minn. 181, 53 N. W, 460. Bat in this case 
the res was severable, consisting of a wagon in one State, while the tongue 
was in another. See also Thurston v. Thurston, 68 Minn. 279, 59 N. W. 
1017. 

« Post, §§ 89-94. 

1 Clark V. Clark, 8 Cush. (Mass.) 385 ; Barber v. Root, 10 Mass. 260 ; 
Hood r. Hood, 11 Allen (Mass.), 196, 200, 87 Am. Dec. 709 ; Shaw v. Shaw, 
98 Mass. 158 ; Burlen v. Shannon, 115 Mass. 438 ; Loker v. Gerald, 157 
Mass. 42, 31 N. E. 709 ; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227 ; 
Maguire v. Maguire, 7 Dana (Ky.), 181, 185 ; McGill ». Deming, 44 Ohio St. 
645, 11 N. E. 118, 122 ; Hunt v. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129 ; 
Cheely v. Clayton, 110 U. S. 701. 

* Hunt V. Hunt, 72 N. Y. 217, 237, 28 Am. Rep. 129 ; Loker r. Gerald, 
157 Mass. 42, 31 N. E. 709. 

» Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Hill v. Hill, 166 
111. 54, 46 N. E. 751, 752 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 
1017. This is not a jurisdictional defect, but an error of law to be corrected 
OB appeal. 



196 FOREIGN DIVORCE IN DOMICIL OF BOTH. § 89 

ship,* nor of the domicil at the time of the marriage or of 
the offense, nor of the place of marriage, nor of the situs of the 
offense hecause of which the divorce is sought.^ 

As between the States of this Union, the "full faith and 
credit " clause of the federal constitution holds full sway in 
divorce cases, as in other judgments or decrees. Such decrees, 
when rendered by a court possessing competent jurisdiction of 
the subject-matter and of the persons, unless void where ren- 
dered, are conclusive in every other State of the matters they 
decide. It is well settled that this provision does not prevent 
an inquiry into the competency of the divorce court's jurisdiction 
by reason of the non-residence of the parties, or by reason of 
fraud in the procurement of the divorce,® at least where the 
fraud relates io jurisdictional facts.'' 

There is some difference of opinion among the authorities as 
to the effect to be given to the recital in the decree of divorce 
that the parties are domiciled within its territory, when in fact 
they are not.^ Some of the courts have held that such a recital 

* Save as between the States of the Union, where domicil and citizenship 
are synonymous terms. 

6 Dicey, Confl. L. 269 ; Cheever v. Wilson, 9 Wall. 108, 124 ; Cheely v. 
Clayton, 110 U. S.701, 705 ; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 647 ; 
Ellis V. Ellis, 55 Minn. 401, 56 N. W. 1056, 1058 ; Van Fossen v. State, 37 
Ohio St. 317, 41 Am. Rep. 507, 508 ; Cox v. Cox, 19 Ohio St. 502, 2 Am. 
Rep. 415 ; Jones v. Jones, 67 Miss. 195, 6 So. 712 ; Shreck v. Shreck, 32 
Tex, 578, 5 Am. Rep. 251, 252. But see Norris v. Norris, 64 N. H. 523, 
15 Atl. 19. 

« Cheever ». Wilson, 9 Wall. 108, 123 ; Pennoyer v. Neff, 95 U. S. 714, 
734 ; Cummington v. Belchertown, 149 Mass. 223, 225 ; Gregory v. Gregory, 
78 Me. 187, 57 Am. Rep. 792, 793 ; Reed v. Reed, 52 Mich. 117, 50 Am. 
Rep. 247 ; Watkins v. Watkins, 125 Ind. 163, 25 N. E. 175 ; Morgan r. 
Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154. 

7 Hood V. Hood, 11 Allen (Mass.), 196, 200, 87 Am. Dec. 709 ; Hunt v. 
Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; Vischer v. Vischer, 12 Barb. (N. Y.) 
640, 644; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549, 555 ; 
Magowan ». Magowan, 57 N. J. Eq. 195, 39 Atl. 364; People v. Dawell, 25 
Mich. 247, 12 Am. Rep. 260 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 
1017, 1018. In the last case, the plaintiff deceived the divorce court touch- 
ing the period of his residence there. It was held that this was not jurisdio- 
tional and would not avoid the decree exterritorially. 

• Cheever r. Wilson, 9 Wall. 108, 123 ; Magowan v. Magowan, 57 N. J. Eq. 
195, 39 Atl. 364. 



§ 90 FOREIGN DIVORCE — NEITHER DOMICILBD. 197 

in the decree constitutes a finding of fact, and is as binding, 
until reversed in the same jurisdiction, as any other finding of 
fact.' But the correct view, both upon reason and authority, 
is that such a recital is not conclusive, but only prima facie 
evidence of the truth of the recital, susceptible of rebuttal in 
other States by parol testimony to the contrary.^" 

§ 90. Neither Party Domiciled in State of Divorce. — We 
have already seen that the matrimonial union is a status of 
such peculiar importance to the State that it cannot be dissolved 
merely by the mutual consent of the parties, but the assent of 
the State interested (the domicil) must generally be obtained 
in order effectually to dissolve the relation. Though it is 
within the sovereign capacity of a State to enact laws whereby 
parties may obtain a divorce even when neither husband nor 
wife is there domiciled, such a course is condemned by the 
principles of comity and private international law. 

If a divorce is thus given in a State where neither party is 
domiciled, whether it be that the divorcing court has been de- 
ceived as to the domicil of the parties, or whether its own mu- 
nicipal law permits it to divorce non-residents, it is generally 
conceded that the decree is of no force in other States or coun- 
tries, least of all in the State of the parties' domicil, whose 
sovereignty over the permanent status of its citizens has been 

9 Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Fairchild v. Fair- 
child, 53 N. J. Eq. 678, 34 Atl. 10 ; Waldo v. Waldo, 52 Mich. 94, 17 N. W. 
710. See Morey v. Moray, 27 Minn. 265, 6 N. W. 783. 

10 Sewall V. Sewall, 122 Mass. 156 ; Cummington v. Belchertown, 149 Mass. 
223, 225; Adams v. Adams, 154 Mass. 290, 294; HUl v. Hill, 166 111. 54, 
46 N. E. 751, 752; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 250; 
People V. Dawell, 25 Mich. 247, 12 Am. Rep. 260 ; Reed v. Reed, 52 Mich. 
117, 50 Am. Rep. 247, 250; James' Estate, 99 Cal. 374, 33 Pac. 1122, 1123; 
Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364; Starbuck v. Murray, 
5 Wend. (N. Y.) 148 ; HoflFman v. HoflFman, 46 N. Y. 30, 7 Am. Rep. 299; 
Ferguson v. Crawford, 70 N. Y. 253 ; Cross v. Cross, 108 N. Y. 628 ; Gregory 
V. Gregory, 78 Me. 187, 57 Am. Rep. 792, 793 ; Thompson v. Whitman, 18 
Wall. 457 ; Pennoyer v. NefiF, 95 U. S. 714, 730. If the divorcing court has 
tried the question of residence upon conflicting testimony and has decided in 
favor of the jurisdiction, great caution should be exercised elsewhere in over- 
throwing the jurisdiction it has assumed. See Waldo v, Waldo, 52 Mich. 94| 
17 N. W. 710. 



19» FOREIGN DIVORCE — NEITHER DOMICILED. § 90 

outraged.^ In s uch cases ^thp rliv^^rff^ rr urt has no iurisd iction 

of t he res. that^ S^^the gfQ>ngjvf_t^TiP parf^pq (^h^ aifna nf whi^Ti ia at 

th eir domicil). andj ience even tjirm^ hnth ptirtinn nuhmijjjjrir 
cause to the divo rce court, it is wit hout pow^r to nffp.r.t thft r px^ 
save within the limits of its own territo rj. Tho conspnt of t ha 
parties canaSHgt r*^ jurisdiuLiCTn^over their foreign sta tus, for 
that would he to infringe upon the sovereignty of the domicil 
which is interested in the continuation of the relation.' 

These general principles of private international law are now 
so clearly recognized that the municipal laws of the various 
States almost invariahly require that, in order to the granting 
of a divorce, at least one of the parties (generally the plaintiff) 
should be bona fide domiciled within the jurisdiction.' A tem- 

1 Barber v. Root, 10 Mass. 260 ; Hanover v. Turner, 14 Mass. 227, 7 Am. 
Dec. 203 ; Shannon v. Shannon, 4 Allen (Mass.), 134; Sewall v. Sewall, 122 
Mass. 156; Maguire v. Maguire, 7 Dana (Ky.), 181; Harrison v. Harrison, 
20 Ala. 629, 56 Am. Dec. 227; Jackson v. Jackson, 1 Johns. (N. Y.) 424 ; 
Kerr v. Kerr, 41 N. Y. 272 ; Neflf v. Beauchamp, 74 la. 92, 36 N. W. 905 ; 
Hood V. State, 56 Ind. 263, 26 Am. Rep, 21 ; Watkins v. Watkins, 125 Ind. 
163, 25 N. E. 175 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 296 ; Van Fos- 
sen V. State, 37 Ohio St. 317, 41 Am. Rep. 507 ; People v. Dawell, 25 Mich. 
247, 12 Am. Rep. 260, 266 ; Reed v. Reed, 52 Mich. 117, 50 Am. Rep. 247 ; 
Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154 ; Gregory v. Gregory, 
78 Me. 187, 57 Am. Rep. 792 ; Gettys v. Gettys, 3 Lea (Tenn.), 360, 31 Am. 
Rep. 637 ; Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145. 

2 Jackson v. Jackson, 1 Johns. (N. Y.) 424; Pawling r. Bird, 13 Johns. 
(N. Y.) 192 ; Maguire v. Maguire, 7 Dana (Ky.), 181 ; Harrison v. Harrison, 
20 Ala. 629, 56 Am. Dec. 227; Smith v. Smith, 13 Gray (Mass.), 209, 210; 
People r. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 268, 272-273. See Loud 
V. Loud, 129 Mass. 14, 18 ; Chase v. Chase, 6 Gray (Mass.), 157, 161. Some 
of the courts however hold the view that, although the court does not acquire 
jurisdiction over the res, the voluntary submission by the parties to its de- 
cision estops them (but not third parties nor the State of their domicil) from 
afterwards denying the court's jurisdiction elsewhere. See Ellis v. Ellis, 55 
Minn. 401, 56 N. W. 1056, 1059 ; Watkins v. Watkins, 135 Mass. 83, 86 ; 
Loud V. Loud, 129 Mass. 14, 19 ; Hood v. Hood, 110 Mass. 463 ; Ellis i>. 
White, 61 la. 644, 17 N. W. 28 ; Chapman v. Chapman, 48 Kan. 636, 29 Pac. 
1071. And in New York, where the theory prevails that a divorce suit is a 
proceeding in personam, not in rem, the fact that both parties submit them- 
selves to the jurisdiction of an alien court, is regarded as sufficient to render 
its decree binding in New York. See Kinnier v. Kinnier, 45 N. Y. 535. 

* Williamson v. Parisien, 1 Johns. Ch. (N. Y.) 389 ; Hoffman v. Hoffman, 



§90 



FOREIGN DIVORCE — NEITHER DOMICILED. 



199 



porary residence acquired f or the mere pu rpose of instituting 
the suit, the intfint being to remove fromllie Stale M aoon as 
the suit is terminated, will not generally snffi r p "r^/jpr f ^e riilea 
of municipal law, and is never sufficient from the international 
sta ndpo Tnt.* i3ut it the anim us real ly exist s to remain there 
per manently , the fact that the motive of removal iStoprocure a 
divor ce is imm aterial. " 

For the purposes of municipal law, in the absence of statute, 
and always for the purposes of private international law, the 
period during which the party is domiciled is immaterial. He 
acquires a domicil at the moment when actual residence is 
coupled with the animus manendi, and from that moment his 
status should be determined by the law of that country .* 

It will be remembered that in general the wife's domicil fol- 
lows that of the husband, but that for purposes of divorce an 
innocent wife may acquire a domicil apart from her husband, if 
she desires to do so and conforms to the conditions.'' But she 
is not bound to do so. She is still at liberty to treat her hus- 
band's domicil as her own, though she actually resides else- 
where, and may sue for divorce in the State of his domicil, 
though she has never actually resided there. Thus, where the 

46 N. Y. 30 ; St. Sure v. Lindsfelt, 82 Wis. 346, 19 L. R. A. 515 ; McShane 
V. McShane, 45 N. J. Eq. 341, 19 Atl. 465 ; Valk v. Valk, 18 R. I. 639, 29 
Atl. 499 ; Neflf v. Beauchamp, 74 la. 92, 36 N. W. 905. 

* Warrender v. Warreuder, 9 Bligh, 141, 142 ; Dolphin v. Robins, 7 H. L. 
Cas. 390; Dorsey v. Dorsey, 7 Watts (Penn.), 349, 32 Am. Dec. 767; Gettys 
V. Gettys, 3 Lea (Tenn.), 360, 31 Am. Rep. 637, 638 ; Neff v. Beauchamp, 74 
la. 92, 36 N. W. 905 ; Knowlton v. Knowlton, 155 111. 158, 39 N. E. 595 ; 
Dunham v. Dunham, 162 111. 589, 35 L. R. A. 70 ; Magowan v. Magowan, 
57 N. J. Eq. 195, 39 Atl. 364. 

5 Fosdick V. Fosdick, 15 R. I. 130, 23 Atl. 140 ; Albee v. Albee, 141 111. 
550, 31 N. E. 153 ; Colburn v. Colbum, 70 Mich. 647, 38 N. W. 607 ; Hege- 
man v. Fox, 31 Barb. (N. Y.) 475, 479. 

6 Hill V. Hill, 166 111. 54, 46 N. E. 751 ; Magowan v. Magowan, 57 N. J. 
Eq. 195, 39 Atl. 364 ; Kern v. Field, 68 Minn. 317, 71 N. W. 393, 394 ; 
Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017; Watkins v. Watkius, 
135 Mass. 83, 84. But the municipal laws of most States require a person to 
have been domiciled there for a more or less extended period before he or she 
can institute a suit for divorce. 

f Ante, §§ 50, 51. 



200 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 91 

husband deserts the wife and goes to another State to live, 
whither she follows him, it would seem upon principle that she 
need not remain there the statutory time in order to acquire 
such residence as will enable her to sue for divorce.* 

§ 91. Only one of the Parties domiciled in State of Divorce. 
— We have seen in t hB.-f»fgt;g(lin^ sep:ttott9~that^ if both the par- 
ties are domiciled in the State ^ f ^^q ^^-^nr^gjj the dec ree, if 
valid-^ tEere, wij lbe binding evervwherftT whatever the character 



of the proceedings may be, and upo n whnt^Yftr n^tif M ^-ff the de- 
fend ant. On the other hand, if neither party is do miciled in 
th e State of the divorce, the court is without jurisdictio n of the 
res, an d in the absence of a reg, accor d ing t^ thr hpftfr np inionj 
fli p nmiri^ | >a.nTiAf proceed in person rim> by a dnrrpp whi nh will be 
recognize d extcr r i t orially; though la fad the proceedings be 
ever ao -juat q .n(^ fair, and thou gh both tbp. parHfts are personally 
before the court. Altho ugh the divorce proce eding~pz>gtake8 in 
somg jTneaaure o i_ arproce ecting in person am, the personftlg tement 
it is believed is not sufiScient to supersede the necessity for some 
res upon which the decree may operate. On the other hand, if 
the complete res is before the court (as where both parties are 
domiciled in the divorcing State), the personal element sinks out 
of sight altogether, and the proceeding becomes strictly in rem,. 
We now come to consider the intermediate case where one 
of the parties, and only one, is domiciled in the State of the 
divorce. This case has caused the courts very great difficulty, 
owing to the fact that the divorcing court has partial, but not 
complete, jurisdiction of the res. It has control over the status 
of its own domiciled citizen, but not over the status of the 
citizen of another State. Yet, owing to the mutuality of the 
relation between husband and wife, it can make no decree 
affecting the status of one, without simultaneously and equally 
affecting the status of the other. Under such circumstances, 
one of two courses is open to the court. It may either draw to 
itself (usurp, as it were) jurisdiction over the status of the non- 
resident, by virtue of its jurisdiction over the status of the 

8 Kershaw v. Kershaw, 3 Cal. 312; Watkinsw. Watkins, 135 Mass. 83, 87. 
But see Valk v. Valk, 18 R. I. 639, 29 Atl. 499 ; Wood v. Wood, 54 Ark. 
172, 15 S. W. 459. 



§ 91 FOREIGN DIVORCE — ONE A NON-RESIDENT. 201 

resident, or it may renounce jurisdiction over the status of 
the resident because it has not jurisdiction of the status of the 
non-resident. 

The municipal law of each State, being primarily interestfid 
in and devoted to its own citizens, will usually enjoin upon its 
courts the first of these courses, as being most conducive to 
their protection. Accordingly we find provision in the munici- 
pal laws of every State directing how divorces may be obtained 
by citizens against non-resident defendants. In such cases, the 
laws of many Statfia^ lo o ki ng tipoli the div oi ^ puxelji - i n its 
aspect hi a proceeding^»_rfi22V-P*"iiii'' tlmir ■eetitta.io^grant the 
divorce upon no further noticetot he non-r ftaidftnt f}pifftTif }ftnfj_tjia.n 
is afforded by an order oi p j ihli ration; ^ Trh il o o t ibdi u (u j ilijhi liiig 
sight altogether of t he personal element in the d ivorce proceed- 
ing) resort to the juster method of requiring actual notice of~the 
pendency of the suit to be mailed or other wlstj biafel) ! ti ' aiis - 
mitted ^fiJ}}?, ahgpTtf. f^pf^TwliiTit a — Th e uatuic of thio notic e is 
regulated by the municipal law of each State, and if that law 
is complied with the divorce is valid within the limits of that 
State?' 

But when it is sought to give effect in other States to the 
divorce so obtained, it becomes a more difficult question to de- 
termine the consequence of the merely partial jurisdiction pos- 
sessed by the divorce court over the res. 

It would manifestly be impolitic, as well as unjust, to lay 

1 Ditson V. Ditson, 4 R. I. 87; Kline v. Kline, 57 la. 386, 10 N. W. 825 ; 
Cox V. Cox, 19 Ohio St. 502, 2 Am. Rep- 415 ; Anthony v. Rice, 110 Mo. 233, 
19 S. W. 423 ; Butler v. Washington, 45 La. Ann. 279, 12 So. 356. 

2 Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549 ; Loker v. 
Gerald, 157 Mass. 42 ; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248; Cham- 
pon V. Champon, 40 La. Ann. 28, 3 So. 397. In a proceeding in rem, in 
which the personal element does not enter, as in a proceeding against prop- 
erty, the two forms of notice above given are regarded as equivalent. See 
Pennoyer v. NefF, 95 U. S. 714, 727. But in a proceeding quasiin rem, where 
the personal element enters to a certain extent, it cannot be properly said that 
an advertisement is equivalent to actual notice. See Doughty v. Doughty, 
27 N. J. Eq. 315, 325. 

8 Harding v. Alden, 9 Greenl. (Me. ) 140, 23 Am. Dec. 549 ; Smith n 
Smith, 43 La. Ann. 1140, 10 So. 248. 



202 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 91 

down the general principle that a plaintiff shall never obtain a 
universally valid divorce in his own country, because the de- 
fendant happens to be a non-resident. To so hold would force 
the plaintiff to seek out the defendant and to ask for the divorce 
in a State chosen by the latter, perhaps for the very reason that 
its laws are hostile to the plaintiff's cause. 

On the other hand, it must be remembered that a suit for a 
divorce is not a proceeding strictly in rem, but merely quasi in 
rem ; and that while the res in the former proceeding is property 
whose situation and condition the owner, though non-resident, 
must be assumed to be familiar with, in proceedings qxi^asi in 
rem, the res is a personal status, an attack upon which in a dis- 
tant State cannot be justly assumed to be known by the defend- 
ant without an actual notification of some sort. 

Many theories have from time to time been advanced by the 
courts, some of which have been incidentally adverted to in 
prior sections of this work,^ and all of which have now been 
pretty generally discarded, except three leading ones. The first 
of these is entirely favorable to the resident •plaintiff, sacrificing 
to the sovereignty of his domiciliary law all the rights of the 
defendant. The second is entirely favorable to the non-resident 
defendant, sacrificing the rights of the plaintiff to the sover- 
eignty of the defendant's domiciliary law. It forces the plain- 
tiff for the most part to sue for his divorce in the courts of the 
defendant's domicil, and requires him to subject himself to its 
laws. This theory is supported by the courts of New York, and 
may be designated "the New York doctrine." The third strikes 
a happy mean between the first and second, and while giving to 
the plaintiff all the rights conferred by his own law, permitting 
him to sue in the courts of his domicil, yet requires that the 
defendant should receive a more substantial notification of the 
existence of the suit than is afforded merely by a published 
advertisement in a newspaper of the plaintiff's domicil. This 
may be designated " the New Jersey doctrine," and is believed 
to be the soundest. The theories thus briefly outlined will now 
be elaborated more fully. 

* Ante, §§ 76, note 1, 78, notes 2, 3. 



§ 92 FOREIGN DIVORCE — ONE A NON-RESIDENT. 203 

§ 92. First Theory — Jurisdiction over one Party confers 
Jurisdiction over the other also. — According to the first theory, 
in order that the divorce court may have complete jurisdiction 
of the res, so that its decree will receive recognition everywhere 
as dissolving the relation of husband and wife, it is only essen- 
tial that one of the parties should be domiciled there — it is 
immaterial which, though it will usually be the plaintiff. The 
courts of that party's domicil, having jurisdiction over his or 
her status, will draw to themselves, by reason of the mutuality 
of the marriage relation, jurisdiction of the status of the other 
party also, thus acquiring jurisdiction of the status of both. 
The case (under this theory) is practically identical with that 
where both parties are domiciled within the limits of the State 
of the divorce, and the proceeding, as in that case, is regarded 
as one strictly in rem, the personal element of the proceeding 
being disregarded altogether. H ^iice (under this theory) only 
such notice is re qni]-pd tp hp givftu thf* n^n-rpsidf'nt df^ff'ndant i 
as i s required by tb ^ pinmVipcil l^w nf fhp Sf^,tp ^^f divorce in 
order to give its courts jurisdiction — frequently nothing more 
thaii Tan adv erjifi PTrP"^ pnblinhf^d in n^mf^ i^lrnfurn nc w^i p fii p r r ^^ 
that_State.^ 

It will be observed that this doctrine upholds in full measure 
the sovereignty of the plaintiff's domicil with respect to his 
status, but in so doing it oftentimes permits grave (and very 
unnecessary) injustice to be done to the defendant, who fre- 

1 Ditson V. Ditson, 4 R. I. 87; Kline v. Kline, 57 la. 386, 10 N. W. 825, 
826 ; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017, 1018 ; Morey v. 
Morey, 27 Minn. 265, 6 N. W. 783 ; Thompson v. Thompson, 91 Ala. 591, 

8 So. 419; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, 416; Doerr v. 
Forsythe, 50 Ohio St. 726, 35 N. E. 1055 ; Anthony v. Rice, 110 Mo. 233, 
19 S. W. 423, 424 ; Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483 ; Dun- 
ham V. Dunham, 162 111. 589, 35 L. R. A. 70, 77, 78 ; Hilbish t;. Hattel, 145 
Ind. 59, 33 L. R. A. 783 ; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. In 
other cases often cited to support this theory, it appears that there was an 
actual notification of the suit transmitted to the non-resident defendant. Such 
cases are in reality instances of the third theory, presently to be discussed. 
See Van Orsdal v. Van Orsdal, 67 la. 35, 24 N. W. 579 ; Harding v. Alden, 

9 Greenl. (Me.) 140, 23 Am. Dec. 549; Smith v. Smith, 43 La. Ann. 1140, 

10 So. 248 ; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709. 



204 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 93 

quently finds himself or herself divorced, without any previous 
knowledge whatever that proceedings for that purpose were 
pending. The l^ws a nd procedure of J ;h f- plaintifF^a rln minil 
are devised to p r^tp rtt thpi j t lninft'ff^ \ i ii l i i i il ij m il thnm of 
the>.^alien defenda nt. This constitutes the weakng sgnf this 
theo ry. Its tendency is to violate that general principle of 
private international law that no man should he condemned 
unheard. It is a different case from that of a proceeding 
against 'property of the defendant. In that case a general 
publication is deemed sufficient because it is practically certain 
that the owner will be promptly notified of any blow aimed at 
his property. But his status is a more intangible thing, and 
more personal in its nature.'^ 

§ 93. Second Theory — Divorce a Proceeding in Personam. 
— So impressed have the New York courts been by the personal 
element in the suit for divorce, and the dangers threatening the 
non-resident defendant under the first theory that they have 
adopted as extreme (and unjust) a view in the other direction. 
According to this second theory, the personal element above 
mentioned preponderates, and causes a proceeding whose pur- 
pose is to dissolve a status to be regarded in the light of a pro- 
ceeding in personam rather than a proceeding in rem ; and the 
same process is required to bring the defendant before the court 
as is required if the design were to fasten upon him or her a 
general pecuniary liability. The New York courts hold that no 
foreign divorce obtained in a State where the plaintiff alone is 
domiciled will be valid exterritorially, unless the defendant vol- 
untarily/ appears or is personally served with process within the 
territorial jurisdiction of the divorce court} 

This theory gives undue weight to the personal element in- 

2 See Doughty v. Doughty, 27 N. J. Eq. 315, 325. 

1 Matter of Kimball, 155 N. Y. 62 ; Williams v. Williams, 130 N. Y. 193 ; 
Cross w. Cross, 108 N.Y. 628 ; Jones v. Jones, 108 N.Y. 415 ; O'Dea v. G'Dea, 
101 N. Y. 23 ; Collins v. Collins, 80 N. Y. 1 ; People v. Baker, 76 N. Y. 78, 
32 Am. Rep. 274 ; HoflFman v. HoflFman, 46 N. Y. 30. The New York view 
has been adopted by a few other courts. Harris v. Harris, 115 N. 0. 587, 20 
S. E. 187 ; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 38. 
See Elder v. Reel, 62 Penn. St. 308, 1 Am. Rep. 414. 



§ 94 FOREIGN DIVORCE — ONE A NON-RESIDENT. 205 

volved. It magnifies the rights of the defendant, and goes far 
to ensure that no injustice will be done that party ; but it will 
frequently be at the expense of the plaintiff and the sovereignty 
of the plaintiff's domicil. It practically, in many cases, forces 
a plaintiff who desires a divorce, at the very least to seek out 
the defendant, and sue in the State selected by the latter, for the 
very reason perhaps that its laws are more hostile to the plain- 
tiff than his or her own; and, since the municipal laws of most 
States require the plaintiff to be domiciled in the State where 
he seeks a divorce, this theory would often compel him to aban- 
don his own State altogether, and take up his permanent resi- 
dence in the domicil of the defendant, or else forego his right 
to a divorce entirely. It pays no heed to the sovereignty of the 
plaintiff's domicil and its control over his status, which is just 
as pronounced as that of the defendant's domicil over the status 
of the latter. These are serious drawbacks to this theory — so 
serious indeed that it is not surprising that most courts have 
rejected it as unsound.^ 

§ 94. Third Theory — Divorce neither in Rem nor in Per- 
sonam, but Quasi in Rem — Requires Best Notification prac- 
ticable to Non-Resident Defendant. — The third theoi yi 
ado pted by the courts of Ne w Jersey, is the beat Inpoint of 
reason, p^-in^vplo^ ^y^^ imtira tn nil piilii , I llllllliiinn^ ii~il 
dneathp affvaTii-p,gpf| ni KntTi \^(^ other theories, and minim izing 
the dis f^dvaT)tages of both. According to this theory, the per- 
sonal element entering into a divorce suit is neither disregarded 
to the extent of making the divorce a proceeding in rem, nor so 
magnified as to make it a proceeding in personam. It is ac- 
corded its proper weight, and the divorce is regarded as a pro- 
ceeding quasi in rem, that is, it is suflBciently a proceeding in 
rem, to permit a court having jurisdiction of even part of the 
res to adjudicate upon it, without having to bring the person of 
the defendant within its jurisdiction, either by voluntary ap- 
pearance or by service of process within the territorial limits of 
its authority; yet sufficiently in personam to require something 
more than a mere advertisement of the pendency of the suit, if 
more than that is practicable. 

« See Dunham v. Dunham, 162 111. 589, 35 L. R. A. 70, 77-78. 



206 FOREIGN DIVORCE — ONE A NON-RESIDENT. § 94 

Full effect is thus given to the sovereignty of the plaintiff's 
domicil and to his or her rights. The plaintiff is permitted to 
get the full benefit of the divorce laws of his own State, and is 
not required to go to the State of the defendant and subject 
himself to its laws in order to obtain his divorce. The juris- 
diction of the plaintiff's domicil over his status is recognized 
everywhere. The only limitation (and it is surely a most 
reasonable one) is that the non-resident detendalrtrshould be 
actually notified of the pendency of the suit, where that is 
practTcabie, by mail, message, 6Y actual seivlc e o f n otice (not 
by advertisement merely). 

This~affords almost every protection to the defendant which 
is obtained by the New York rule, and at the same time leaves 
the plaintiff's rights and the sovereignty of the plaintiff's 
domicil untrammeled, save by a regulation for the protection of 
the absent defendant, which, while it can do the plaintiff no 
injury, affords a protection against the prostitution of justice, 
which it should be the lofty aim of every system of law to 
prevent. 

This theory does not absolutely demand in all cases, in order 
to an exterritorial recognition of divorce, actual notice to be 
given the defendant, but only that the best notice practicable 
be given him or her. If his address is known, actual notice in 
some form is necessary ; if unknown, only reasonable notice 
and opportunity to be heard is required. Of course, therefore, 
the voluntary appearance of the defendant will supersede the 
necessity for specific notice.^ 

It will be remembered that when the decree directs that the 
guilty party shall not marry again, the better opinion is that 
such part of the decree is in personam^ not in rem, and hence 

1 Doughty V. Doughty, 27 N. J. Eq. 315 ; Felt v. Felt, 57 N, J. Eq. 101, 
40 Atl. 436 ; Magowan v. Magowan, 57 N. J. Eq. 195, 39 Atl. 364 ; Flower 
i>. Flower, 42 N. J. Eq. 152, 7 Atl. 669. See Whart. Confl. L. §§ 236, 237 ; 
Harding r. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec, 549 ; Smith v. Smith, 
43 La. Ann. 1140, 10 So. 248 ; Loker v. Gerald, 157 Mass. 42 ; Burlen v. 
Shannon, 115 Mass. 438 ; Van Orsclal v. Van Orsdal, 67 la. 35, 24 N. W, 
679. 

2 Ante, § 74. 



§ 95 FOREIGN DIVORCE — COSTS AND ALIMONY. 207 

the court is without jurisdiction to make such a decree against 
a non-resident defendant, unless he or she has voluntarily ap- 
peared, or (perhaps) has been personally served with process 
within the territorial jurisdiction of the court. And even then, 
such part of the decree, being in the nature of a penalty, will 
be given no exterritorial effect.* 

§ 95. Exterritorial Effect of Divorce, as respects Costs and 
Alimony. — We have in the preceding sections considered the 
principles regulating the exterritorial effect of a divorce upon 
the status of the parties. We now come to examine its effect, 
as respects the incidents of the divorce, as in the matter of the 
costs of the suit, alimony, or the custody of minor children. 

With_regard to so much of the decree as relates to the c osts 
of the suit an d alimony to the wife it is to be observed that, 
so far as the co urt undertakes to decree against th e defendant 
for a s um of money, the decree is a proceeding in personam. 
It see ks io fas ten up6Ti the defenda nt a general pecuni ary Ita- 
bilitv . Hence? as in the case of o t her pr^i'^^v^lingi i*? jprr trmrmj 
no exter r itnrin i l forftn will ho giv r n thp f^ nnrt^^sdep.ree in this 
respect unless the defendant is wit hin the _ court'a juria dictioTij 

ftitbftr hy vnniTit:a.ry appftaraTipp nr hy poi"in Tini1 iPtvice of p rocess 

there. ^ 

!Kt)r, under the constitutional provision that no State shall 
deprive any person of life, liberty, or property, without due 
process of law, would it be within the bounds even of the mu- 
nicipal law of any State of this Union to give its courts jurisdic- 
tion to make such a personal decree against an absent defendant, 
not served with personal process nor voluntarily appearing.* 
But if a defendant is a non-resident, it is proper, even upon an 

^ Cooper V. Reynolds, 10 Wall. 308 ; De La Montanya v. De La Montauya, 
112 Cal. 101, 32 L. R. A. 82, 87; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 
779 ; Dow v. Blake, 148 lU. 76, 35 N. E. 761, 764 ; Bullock v. Bullock, 51 
N. J. Eq. 444, 27 Atl. 435 ; Stewart v. Stewart, 27 W. Va. 167 ; Kline v. 
Kline, 57 la. 386, 10 N. W. 825, 826 ; Prosser i'. Warner, 47 Vt. 667, 19 
Am. Rep, 132, 134. See Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017 ; 
Blackinton v. Blackinton, 141 Mass. 432, 436 ; Barber v. Barber, 21 How. 
582. 

2 Cooley, Const. Lim. 400 et seq. ; Pennoyer v. NeflF, 95 U. S. 714. But 
see Blackinton v. Blackinton, 141 Mass. 432, 436. 



208 FOREIGN DECREE FOR CUSTODY OF INFANTS. § 96 

order of publication, without personal service or appearance, to 
provide for the seizure and appropriation of the defendant's 
property within the State, to make good the costs or alimony 
decreed; for to the extent of the property thus seized the decree 
would cease to be in personam, and would become a decree in 
rem. But any part of the personal liability imposed by the 
decree in excess of the value of such property would still be in 
personam only, and must conform to the requirements for such 
proceedings, touching the notice to be given the defendant, or 
else it will be void both exterritorially and intra-territorially.' 

§ 96. Exterritorial Effect of Decree for Custody of Minor 
Children. — This is one of the usual incidents of a divorce. 
Being nothing less than a determination of the guardianship of 
the children, it is a question of doitble status, relating no less 
to the status of the children than to that of the respective 
parents. The decree for the children's custody therefore is as 
much a decree in rem as is the divorce itself, but with a more 
extended res. The res in this case is not only the status of the 
parents, but of the children also. But the children being in- 
fants, their domicil is necessarily with one or the other of their 
parents (usually with the father), and the legal situs of their 
status is at their domicil. 

As we shall see however in discussing the status of Guardian- 
ship,* the jurisdiction to appoint guardians of infants is not 
wholly confined to the courts of the ward's domicil. The courts 
of a State where an infant has his actual situs or has property 
will also sometimes assume a like jurisdiction, though due 
weight should always be accorded the domiciliary appointment. 

Until the divorce takes place, and it is established that the 
father is unfit to have the custody of the infant children, their 
domicil must be presumed to follow his. Hence, primarily and 
theoretically the courts of the father's domicil alone should have 
the power to decree the custody of the children to the mother, 
so as to give the decree any exterritorial effect; for they alone 

» Cooley, Const. Lim. 406 ; Pennoyer v. Neff, 95 U. S. 714 ; Thurston v. 
Thurston, 58 Minn. 279, 59 N. W. 1017 ; Van Orsdal ». Van Orsdal, 67 la. 
36, 24 N. W. 579 ; Wesner r. O'Brien, 56 Kan. 724, 32 L. R. A. 289. 

1 Post, §§ 114 et seq. 



§ 96 FOBEIGN DECREE FOR CUSTODY OF INFANTS. 209 

have complete jurisdiction of the entire res, — of the status of 
the father and children by reason of domicil, and of the status 
of the mother (whether resident or not) by reason of the fact 
that her status as wife and mother is inseparable from that of 
her husband and children. Practically, however, the control of 
the courts of the husband's domicil is complete and perfect only 
when the actual, as well as the legal, situs of the infant chil- 
dren is within its territory. If the children are actually else- 
where, the court can exercise no real control over their custody, 
and it may even be doubted whether any exterritorial effect 
should be accorded such a decree.' 

But in the nature of things the guardianship of an infant 
must be of a more or less temporary character. It is not per- 
manent and continuous like the status of marriage. It never 
endures longer than the minority of the ward. And even within 
that period circumstances may frequently arise which demand 
that a new guardian should be appointed. The ward may alter 
his domicil and thus come under a new law and a new set of tri- 
bunals, which may disapprove of the guardian already appointed 
or of the powers conferred upon him; or the ward may be actu- 
ally situated in a State other than his domicil under circum- 
stances demanding that his person or his property rights should 
be safeguarded there also. Thus the status of wardship is one 
which is liable to shift and change with circumstances. In this 
respect it differs from the marriage status or the status result- 
ing from the dissolution thereof. Once validly established the 
latter is permanent until dissolved by death or divorce, and once 
validly dissolved, the dissolution is as permanent as the original 
status, no matter into what country the parties may thereafter 
come. As just shown, this is not true of the status of guardian- 
ship. It is a local and temporary, not a universal and perma- 
nent, status. Hence a change of domicil on the part of the 

3 See Cooley, Const. Lira. 404 ; Kline v. Kline, 57 la. 386, 10 N. W. 825, 
826 ; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 87 ; 
Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. See Pawling v. Bird, 13 
Johns. (N. Y.) 192, 209. Indeed these authorities seem to indicate that it is 
the actual, rather than the legal, situs of the children that confers jurisdic- 
tion to decree concerning their custody. 

14 



210 FOREIGN DECREE FOR CUSTODY OP INFANTS. § 96 

children, or the mere presence of the children in another juris- 
diction under different circumstances, may cause the courts of 
those States to assume jurisdiction to decree their custody to 
another guardian of their own appointment. This does not 
necessarily imply a denial of full exterritorial effect to the 
first decree, for, the status being temporary only, the courts of 
that very State might subsequently change the guardian.* 

* See post, §§ 114 et seq. 



§ 97 LEGITIMACY AND ADOPTION, DOUBLE STATUS. 211 



CHAPTER VIII. 

STATUS OF LEGITIMACY AND ADOPTION. 

§ 97. Legitimacy and Adoption Instances of Double Status. 

— We have seen that in the case of marriage, the status created 
is of a double or correlative character. The status of husband 
cannot exist without the status of wife also. So it is with a 
parent and an infant child. It so happens however that in 
these cases the duality of the status is generally immaterial, 
so long as the relation continues. No conflicts of the ' ' proper 
law " will usually occur, because the domicil of the wife and of 
dhe infant child are in most cases identical with the domicil of 
the husband and parent, and hence the same law will in general 
govern the status of both. 

No questions of the conflict of laws will be ordinarily likely 
to arise in regard to the relation of parent and child, both for 
the reason above given and for the further reason that the laws 
governing that relation are pretty much the same the world over. 
Occasionally, however, cases arise in which this simple relation 
must be subjected to the principles of private international 
law.^ 

Nor with respect to the marital relation and its incidents will 
the duality of the status of husband and wife in general play a 
prominent part, so long as the marriage remains intact, for the 
reason above given. It is only when the matrimonial union is 
sought to be dissolved by divorce, when the interests of husband 
and wife become antagonistic, that they acquire separate dom- 
icils, and the situs of their respective status become distinct. 
Then the duality of the status becomes embarrassing, as has 
been shown in the last chapter. 

^ Inatances of this kind have been already discussed. See ante, §§ 83, 96. 



212 LEGITIMACY AND ADOPTION, DOUBLE STATUS. § 97 

There are still other instances of double status, two of which 
at least deserve special attention. These are the status of legiti- 
macy and of adoption. Whether one is the legitimate child of 
a person involves necessarily the status of the parent as well as 
that of the child. So it is also in the case of a legally adopted 
child. In these cases, it is not only the status of the child 
which is to be determined, but incidentally and necessarily that 
of the parent also. These instances of double status differ from 
the relation of husband and wife and from that of parent and 
child, in the important point that it is not necessarily the case, 
in legitimacy and adoption, that the domicil of the child and 
parent should be identical. This fact complicates the situation 
greatly. In such cases therefore, granting the general principle 
that the law of the legal situs or domicil of the parties governs 
their status, the question may still arise, the law of whose dom- 
icil ? Shall it be the law of the domicil of the parents or one 
of them, or the law of the child's domicil ? The status of all 
is in doubt. In investigating these questions, one or two gen- 
eral principles must be constantly borne in mind. 

B oth leigitimacy and adoption are instances of p ermanent and 
univ ersal stattis (as opposed toth at which is mereFp?g m7?orary 
and local, as in the case of guardia n ghipj ci^r- J It would be in 
the highest degree inconvenient if a status of this sort, once 
established, were liable to fluctuation and change with time, 
place, or circumstance.'' Hence, when these relations are once 
established by "the proper law," they remain in general fixed 
and unchangeable, into whatsoever countries the parties may 
wander, or wheresoever the question may arise, subject only 
(in rare cases) to the exceptions enumerated in the second 
chapter.* 

It is a corollary of this principle that it is the proper law 
at the time of the act or circumstance upon which is based the 
claim of legitimacy or adoption, that is to determine the status. 
For since the claim is based on the act or circumstance in que&- 

* See Miller v. Miller, 91 N. Y. 315, 319, 43 Am. Rep. 669. 

» Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87; Miller v. Miller, 91 N. Y. 
315, 319, 43 Am. Rep. 669 ; Ross v. Ross, 129 Mass. 243, 37 Am. Rep, 321 ; 
A^ams r. Adams, 154 Mass. 290, 293, 28 N. £. 260. 



§ 98 LEGITIMACY — CHILD BORN IN WEDLOCK. 213 

tion, and since, if such act or circumstance does by the proper 
law create the status, that status will be permanent and un- 
changeable, it must follow that the law at that time properly 
applicable must determine finally the effect of the act or circum- 
stance upon the status of the persons concerned.* 

The question still remains, what is the ^^ proper law" in 
these cases ? Is it the lex domicilii of the parents, of the child 
(supposing his domicil to be different from that of his parents 
or of either of them), or of both ? If it is urged that the status 
of the parent is affected, and that the law of his domicil should 
govern, it might be replied that the child's status is as much, if 
not more, affected, and that therefore the law of his domicil should 
control. Very complicated questions sometimes arise in these 
cases. 

§ 98. Legitimacy — Child Born in Wedlock. — Legitimacy 
may exist from birth, or it may arise subsequently from a super- 
venient cause. With respect to the legitimacy of a child born 
in lawful wedlock, of course no question will arise, since every 
system of law that recognizes marriage regards such a child as 
legitimate. Indeed one of the principal designs of the estate of 
matrimony is to secure certainty of parentage and the legitimacy 
of children. 

The only question apt to occur here is with regard to the 
validity of the marriage, and the effect of its invalidity upon 
the legitimacy of the issue.* 

At co mmon law, if the marriage is void pe r se or declared void 
by a compe t ftnf; ^n^iyf^ th n i^guc is baotardia et L -But m ma ny 
States, statutes have been passed abating the rigor of ^^f^ r>r>rp- 
mon l aw in this respec t, and declaring the issue of such mar- 
riages legitimate. It is important tu aauti ' l j a i B what o ff o ct lu ch 
statutes wfil have upon the status of the children of void or void- 
able marriages, when the question arises in a foreign State. 

* See Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87. 

1 The proper law governing the validity of marriage has been already dealt 
with, both with respect to the capacity to marry (ante, §§ 73 et seq.), and 
with regard to the formal and substantial validity of the marriage contract. 
Ante, §§ 77, 78. See Greenhow v. James, 80 Va. 636 ; Adams v. Adams, 154 
Mass. 290, 292, 28 N. E. 260. 



214 LEGITIMACY — CHILD BORN IN WEDLOCK. § 98 

The g &nftral riilft )>ft in g that the law of the domi cil regulates 
the st atus, if th e father, mother, and child are all domicil ed at 
the t ime of the child's hirth in the same State^ the law of that 
State wH -iiT thfi stat.^is. Tf ig ihp. law nf flip donijfi^"^^ ^^^ tim© 
of the child's hiirth which controls, for the claim of M s legitimacy 

is haggj^iipnn thft riirr^nmatnnrf^ of l^i° hirth in onprllru^^\^r,n^ 

unlawful). 

A much more difficult question might ari se, if the mother's 
domicil ^s differen t from that of the fa ther at the~Rmg of the 
child's hirth, should there be a conflict in tiie - law s]^^~the two 
domicils upon this point.' The first questio n would be as to the 
child's domicil in such case. Will it follow the~3oHrrcil of the 
father or that ■rvf^hg jri^thpr '-^ 'Vo hr'ld that it t a kes \he father' f^ 
domicil^^ould be ^ to n^ ^ nm n thn t it '^<^ ft If [i ritiTnatR_chi1fi, the 
very point in dispute. It would seem that the child's domicil 
must be h'^IH t'^ t""""wJibHi t "^^ t ^f ^ motfi^r , M^^t^! it JsjT^?^T7tpf| by 
the proper law to be legitimate. 

The next question is, what is the proper law to determine 
whether the child be legitimate ? The child is legally domi- 
ciled with its mother, and the State of their domicil will control 
their status, while the status of the father, as being a legal or 
only a putative father, must be regulated by the law of his dom- 
icil. !No law of one State affecting the status of those domiciled 
there can run into another State and affect the status of the lat- 
ter's citizens. The embarrassment of the situation is easily rec- 
ognized. There are no authorities to guide us upon the point, 
and any conclusions drawn must be largely speculative. 

The true solution would seem to depend upon the locality of 
the forum and the nature of the particular question involved. 
If the case arises in the father's domicil, the courts of his domi- 
cil will probably follow their own law in passing upon the status, 
especially if it is the relation the child bears to the father which 
is in controversy. If the mother's domicil is the forum, its 
courts also will probably follow the domestic law, especially if 

2 If a marriage is void per se, or avoided ab initio by a competeut court, it 
might well Iiappen that the woman's domicil at the date of the child's birth is 
distinct from the man's, if they actually reside in different States. See ante, 
§63, 



§ 99 SUBSEQUENT LEGITIMATION. 215 

the child's relation to the mother is in issue. Should the ques- 
tion come up in the courts of a third State where none of the 
parties are domiciled, it is probable, upon principles mentioned 
in the succeeding sections, that the courts, out of tenderness to 
the child, will recognize his legitimacy, adopting the law of the 
father's domicil or that of the mother and child, according as 
one or the other advances this benevolent purpose.' 

§ 99. Subsequent Legitimation — Intermarriage of Parents 
of Infant Bastard. — The laws "of different States vary touch- 
ing the subsequent legitimation of bastards. At common_law 
no sitjpewi ^nient act could legitimate one not born in wedlock. 
But the cjjlL- oi' Eoman law pormittod ii7" a n^ now in jjmist of 

f>io^ gfSf^ ^f fTiiq TTninn t\nn\\ lofirjf imntiny i Ja^allrtwpH by Statute. 

Even amongst those States which permit it, howevci, difftJreuces- 
exist with respect to the mode of accomplishing it. By the 
municipal law of some States a subsequent intermarriage of the 
parents standing alone will effect this result ; in other States, 
the father's acknowledgment alone suffices ; and in others there 
must be both an intermarriage and an acknowledgment by the 
father. 

In all cases where the intermarriage of the parents precedes 
or accompanies the alleged legitimation of an infant bastard, 
there is no difficulty in ascertaining the domicil of the parties. 
For as soon as the father marries the mother, his domicil be- 
comes hers also, and the domicil of the infant bastard changes 
with hers and also becomes that of the husband.^ Whether the 
intermarriage alone or the intermarriage followed by acknowl- 
edgment is necessary to legitimate the issue, the result is the 
same ; all the domicils coincide and are identical with that of 
the father. We K n , vn ;t.l Ti -.Ti - 1y aAori \-\\^\. ^ <the proper law " to 
determine legitima tion is the law of the domicil of the parties at 
the tim e^ot tne actupon whi c h i fl h^nflfl thn niaim o t legitima cy.' 
In this case this act is the intermarriage of the parents (or the 

' For the principles applicable to cases of this sort the reader is referred to 
the discussion, post, § 100. 

^ See ante, § 42. If the bastard is an adult, his domicil is of coarse iiiuif' 
fected by the intermarriage of his parents. 

« Ante, § 97. 



216 SUBSEQUENT LEGITIMATION. § 99 

intermarriage followed by the father's acknowledgment), and 
this intermarriage gives all the parties the same domicil, — that 
of the father. 

It must necessarily follow, therefore, that the lex domicilii of 
the father at that time is '*the proper law" to determine the 
child's status, as bastard or legitimated, in all cases where an 
intermarriage of the parents precedes or forms a component part 
of the steps required for legitimation. If by that law he is 
thereby rendered legitimate, he will be regarded as legitimated 
everywhere, even in States whose laws do not recognize subse- 
quent legitimation. If by that law he is not rendered legitimate, 
neither will he be so regarded anywhere, even where such legiti- 
mation is recognized, and though by the law of the infant's (and 
mother's) domicil before the marriage the acts done would suffice 
to legitimate him.' 

The English courts seem to have adopted a principle with 
regard to this matter, for which it is difficult to assign any 
sufficient reason. They hold that it is the law of the father's 
domicil at the time of the birth of the child which should 
determine the effect of a subsequent marriage of the parents, 
not the law of the father's domicil at the time of the act upon 
which is based the claim of legitimation.* The English 

» See Whart. Confl. L. § 241 ; Sheddon v. Patrick, 5 Paton, 194 ; s. c. 
1 Macq. 535, 622 ; Strathmore Peerage, 4 Wils. & Shaw, Appendix, 89-91, 93, 
94 ; 8. c. 6 Paton, 645 ; Monro v. Saunders, 6 Bligh, N. R 468 ; Birtwhistle 
V. Vardill, 2 CI. & F. 571, 587, 592, 595, 600; Munro v. Monro, 7 CI. & F. 842, 
885 ; Dalhousie v. M'Dooall, 7 CI. & F. 817 ; Aikman v. Aikman, 3 Macq. 854; 
Don's Estate, 4 Drewry, 194 ; In re Grove, 40 Ch. Div. 216 ; Shaw v. Gould, 
L. R. 3 H. L. 55, 70 ; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669 ; 
Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87 ; Ross v. Ross, 129 Mass. 243, 
249, 37 Am. Rep. 321 ; Loring v. Thorndike, 5 Allen (Mass.), 257 ; Smith v. 
Derr, 34 Penn. St. 126, 75 Am. Dec. 641; Wolf's Appeal (Penn.), 13 Atl. 
760 ; Woodward r. Woodward, 87 Tenn. 644, 11 S. W. 892, 895. See Blythe 
V. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. 

♦ Dicey, Confl. L. 497 et seq. ; Jac. Dom. § 30 ; Udny v. Udny, L. R. 
1 Sc. App. 441, 447 ; Wright's Trosts, 2 K. & J. 595 ; Goodman's Trusts, 
L. R. 17 Ch. D. 266 ; Goodman v. Goodman, 3 Giflf. 643. See also Miller r. 
Miller, 91 N. Y. 315, 43 Am. Rep. 669. But some of the English decisions 
faTor the law of the father's domicil at the time of the marriage. See 
Aikman v. Aikman, 3 Macq. (H. L.) 854 ; Munro v. Munro, 7 CI. & F. 842 ; 
Dalhousie v. M'Douall. 7 CI. & F. 817 ; Whart. Confl. L. § 241. 



§ 99 SUBSEQUENT LEGITIMATION. 217 

decisions seem to rest upon the theory that the subsequent 
marriage, in order to legitimate a bastard, must by relation be 
considered as taking effect at the time of the child's birth, so 
that he may be held to have been born in wedlock.' This is a 
very unnecessary fiction, contrary both to truth and reason. 
Two prominent causes may be assigned for the rule of law pro- 
hibiting bastards to assume the status of legitimate children. 
One is the encouragement which would otherwise be given to 
illicit amours. The other is the practical difficulty of ascer- 
taining with certainty who is the father of the child. Both of 
these objections are in large measure removed or remedied by 
a subsequent intermarriage of the parents, and it is surely 
needless to go further back than the ipse dixit of the law itself 
in order to pronounce the issue legitimate. The fiction that 
the law in such cases '♦ assumes that what is equivalent to mar- 
riage took place before the birth or conception of the child " • 
is not only unnecessary, but, if it came from a less distin- 
guished source, might be characterized as fantastic. 

The true rule, if the legitimation is based upon the inter- 
marriage of the parents as the final act necessary to complete it, 
is that the law of the father's domicil at the time of the mar' 
riage (which will also be that of the mother and child) should 
determine the status of both father and child. But if the 
marriage of the parents does not of itself complete the legiti- 
mation, there being still requisite after the marriage some 
other act, such as the father's acknowledgment of the child, 
the law of the father's (and minor's) domicil at the time of the 
last act essential to complete the legitimation should control.^ 

It should be observed also that since the status of legitima- 
tion, once created or denied under the proper law at the time of 
the act by virtue of which it is alleged to have arisen, is z. per- 
manent and universal status, a subsequent removal of the par* 

« See Munro v. Munro, 7 CI. & F. 842, 872. 

• See Lord Chancellor Cottenham's opinion in Munro v. Munro, 7 CI. & 
F. 842, 872. 

^ See Ross v. Ross, 129 Mass. 243, 256, 37 Am. Rep. 321 ; Aikman n 
Aikman, 3 Macq. (H. L.) 854 ; Munro v. Munro, 7 CI. & F, (H. L.) 848f 
Dalhousie v. M'Douall, 7 CI. & F. 817 ; Whart. Confl. L. § 241. 



218 SUBSEQUENT LEGITIMATION. § 100 

ties' domicil to another State, by whose law the act in question 
(if performed there) would have caused a different result, will 
not alter the status. There must be some new act done in the 
latter State under its law to legitimate a child not legitimated 
by the former act. And if the child be legitimated under the 
law of the first State, its status becomes a beneficial one which 
no subsequent act of the father under any law should be per- 
mitted to destroy.* 

§ 100. Bastard an Adiilt vrhen Parents Marry — No Inter- 
marriage of Parents. — In the preceding section we have sup- 
posed the case of an intermarriage of the parents while the 
bastard is an infant. If the bastard is an adult at the time of 
his parents' marriage, or if no marriage occurs, a different 
state of facts is presented from those appearing in the former 
case. In the former case, the infant bastard's domicil becomes 
by virtue of the marriage that of the father, and hence the 
status of both will be governed by the same law. 

But if the bastard is an adult at the time of the marriage, 
or if there be no marriage between the parents (the act re- 
lied upon to establish the legitimation being some act other 
than the parents' marriage, such as a mere acknowledgment 
by the father, or an act of the legislature), the circumstances 
may be different. In such case the domicil of the bastard is 
not necessarily identical with that of his father at the time of 
the legitimating act, and their status may thus be subject to 
different laws. Under such circumstances, shall the law of the 
father's domicil govern the status of both? If so, the status 
of the bastard will be permanently fixed by the law of a State 
of which he is not a citizen, and which has no claim of jurisdic- 
tion over him. Shall the law of the bastard's domicil govern ? 
If so, the father's status will equally be fixed by a law which 
has properly no control over him. It is a more difficult task to 
ascertain the proper law in a case of this sort than in one like 
that mentioned in the preceding section. 

Two points should be noticed in this connection, which will 
aid US- to determine the proper law in this case. The first ia 

• Smith V. Kelly, 23 Miss. 167, 55 Am. Dec. 87. 



§ 100 SUBSEQUENT LEGITIMATION. 219 

that the legitimation of a bastard is the creation of a status 
which is beneficial to him, and it should be presumed in his 
favor whenever adequate reason exists for such a course. The 
second is that this beneficial status cannot be accorded the in- 
fant at the expense of a change of status on the part of the 
father not warranted by his domiciliary law.^ 

A jjl^lying these two principleSt-lt-follaffi&JhaLjh e law of the 
father' s-do micil at the time o f tbft iR jjitimating a nt w ill bo tTT o 
prope r law to det firF'T"*^ ^"br' 'nfntnn ni hn^h parties. If by that 
law the act in question legitimates the bastard, the beneficial 
status thus created will in general be recognized everywhere, 
including the bastard's domicil, though by the law of the lat- 
ter State the act would not suffice to create a legitimation.* On 
the other hand, if by the law of the father's domicil legitima- 
tion is not the result of the act claimed to have that effect, 
though under the bastard's domiciliary law legitimation would 
result therefrom, the status of legitimation should not be con- 
ferred upon the bastard, for that would be to subject the status 
of the father to a law to which it is not properly subject. 

These principles are as yet but scantily exemplified by de- 
cided cases, most of the decisions being instances of legitima- 
tion by intermarriage, where the bastard was an infant. Such 
as have arisen, however, have been decided in accordance with 
the foregoing views. 

In Scott V. Key,' a father and his illegitimate son were both 
domiciled in Arkansas. The legislature of that State passed an 
act legitimating the child, and it was held in Louisiana that 
this legitimation should be recognized there to the same extent 
as in Arkansas. The legitimated bastard was permitted to in- 

1 Except perhaps that the courts of the bastard's domicil, when the ques- 
tion arises there, might enforce the lex fori and legitimate him, especially 
should the father do the act (upon which is based the claim of legitimation) 
in the State of the bastard's domicil, thereby voluntarily submitting himself 
to the operation of its law. 

' Under exceptional circumstances, if the question should arise in tha 
ba.stard's domicil, and the interests of the forum or of its citizens demand it, 
the lex fori might still be substituted for "the proper law." 

« 11 La. Ann. 232. 



220 SUBSEQUENT LEGITIMATION. § 100 

herit the father's land in Louisiana to the exclusion of the 
father's brothers and sisters. 

In Lingen w. Lingen,* the domicil of the father was not the 
same as that of the bastard. The case arose in the father's 
domicil (Alabama). The child's mother was a Frenchwoman, and 
the child was born in France, where the father acknowledged 
him to be his son, but did not marry the woman. By the law 
of France, the mere acknowledgment by the father sufficed to 
render the child legitimate. It was otherwise in Alabama. 
Upon the death of the father, the bastard claimed a share of 
his estate as his legitimate child. But the court held that his 
legitimation was to be governed by the law of the father's, not 
the hastard^s, domicil. 

Just the opposite case arose in the recent case of Blythe v. 
Ayres.^ Here too the question arose in the father's domicil 
(California) upon a claim by his bastard daughter, domiciled in 
England, to a share of his property in California. Her father 
had acknowledged her to be his daughter, which under the law 
of California sufficed to legitimate her. By the law of her own 
domicil (England), no subsequent act could have legitimated 
her. It was held that the daughter's status was to be deter- 
mined by the law of California, her father's domicil, that she 
was legitimated, and entitled to inherit her father's estate. In 
this case, the status was purely a beneficial one so far as the 
daughter was concerned, and even if the case had come before 
the English courts instead of those of California, it is believed 
the result would have been the same. But if the question had 
been, not as to the right of the daughter to inherit from the 
father, but the right of the father (domiciled in California) to 
inherit the property of the daughter (domiciled in England), 
and the case had arisen in England, the English courts might 
well refuse to enforce the law of the father's domicil, when to 
do so would no longer benefit the bastard and might deprive her 
English relatives of the inheritance. This might be a case for 
the operation of one of the exceptions to the enforcement of the 
proper law, and for the substitution of the lex fori. 

« 45 Ala. 410. 

6 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. 



§ 101 ADOPTION. 221 

If, however, the bastard's domicil is in fact the same as the 
father's at the time of the legitimating act, there is no doubt 
that the child, though an adult, becomes legitimated.* 

§ 101. Legal Status of Adoption. — Thestatus of ad<;>jtir>n, 
lik e that of subsequen t-l ogitimation io unknown to th o- c amnion 
law. JhouE^h fam iliar in the jurisprudence of the Roman law, 
from which it has been introduced by statute into maTiyio#-4he 
States of the Union. Like subsequent legitimation also, adop- 
tion presents the peculiarity of a plural status. Indeed this 
may be more pronounced in the case of adoption than in that of 
legitimation, since the relations of more persons are involved 
therein. This plurality of the status may cause very serious 
embarrassment in the solution of some of the questions which 
present themselves under this head. 

The result of adoption under the statutes is usually that the 
adopted child ceases in law to be the child of its natural parents, 
so far as their rights and obligations are concerned, and becomes 
the child of the adopting parents to all intents and purposes, 
with the rights and obligations incident thereto. The statutes 
usually provide that the adoption shall originate in a judicial 
proceeding instituted in the court of the child's residence, upon 
petition filed by the party desiring to adopt it, and that the 
natural parent or the guardian shall be a party to the proceeding.^ 

Thus it will be seen that adoption involves an alteration, 
not only in the status of the person adopted and in that of the 
adopting parent or parents, but in that of the natural parents 
also. Here are, or may be, three sets of domicils, whose laws 
may each claim some share in regulating the status of the 
parties concerned. But practically these will generally be re- 
duced to two, since the person adopted is usually an infant, and 
hence will have the domicil of its parents.* 

e Ives V. McNicoll, 59 Ohio St. 402, 43 L. R. A. 772; Scott v. Key, 11 
La. Ann. 232. 

1 For examples of such statutes, see Van Matre v. Sankey, 148 III. 356, 36 
N. E. 628 ; Foster v. Waterman, 124 Mass. 592 ; Furgeson v. Jones, 17 Or. 
204, 11 Am. St. Rep. 808. 

* At the same time it is conceivable that he may be an adult, with a domi- 
cil of his own apart from his parents. But in such case the domicil of the 



222 ADOPTION. § 101 

If the adopting parents, the natural parents (if any), and the 
child are all domiciled in the State where the adoption pro- 
ceedings take place, and the status is there validly created, no 
doubt will arise. The status is a permanent and universal one, 
and once created will continue and will be recognized as exist- 
ing everywhere, until dissolved according to the law of the 
parties' domicil, or so long as the recognition of the relation 
does not work an injustice to the residents of the State where 
the question arises (forum) or contravene its established policy.' 

If thr drmrriril nf thr, Hidnp^'Tig p^r^nf is not id entical w ith 
that of the ad opted child, it is believed that the law of the 
child' s domicil will determin e the status, if the adoptio n takes 
pl ace there (as it usually will), while if the adoption a hmilrl 
o ccur in the domicil of the ad optin g poronf| tho l o w nt -^Jiis 
do7rtieU-Jiu\l govern. The case is analogous to that of divorce. 
In both, a decree of court is required, and, upon principles 
already noticed in discussing the exterritorial force of a decree 
of divorce, a court has no jurisdiction over a matter of status 
unless one of the parties at least is domiciled in its territory. 
It can give no decree, which will have exterritorial effect, 
touching the status of non-residents. But it is not necessary 
that both parties should be domiciled there.* 

natural parents will only be of importance when some question of their 
status, rights, or duties arises. No cases of the kind have as yet been passed 
upon. All the decided cases relate entirely to the status as it exists between 
the child and the adopting parent. See Furgeson v. Jones, 17 Or. 204, 11 Am. 
St. Rep. 808. 

« Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321 ; Melvin v. Martin, 18 E. I. 
650, 30 Atl. 467 ; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 
207; Van Matre v. Saukey, 148 111. 356, 36 N. E. 628, 23 L. R. A. 665; Kee- 
gan V. Geraghty, 101 111. 26. See Woodward v. Woodward, 87 Tenn. 644, 
11 S. W. 892. In most if not all these cases there were statutes in the State of 
the forum permitting adoption, differing only in detail from the statutes under 
which the adoption actually occurred. 

* Ante §§ 88 et seq. In Van Matre v. Sankey, 148 111. 356, 36 N. E. 
628, 23 L. R. A. 665, the adopting parent was domiciled in California, the 
adopted child in Pennsylvania, and the adoption took place under decree of 
a Pennsylvania court, in accordance with Pennsylvania law. The Illinois 
court did not even inquire into the law of California (the adopter's domicil) 
upon the subject of adoption, but looked only to the law of Pennsylvania. 



§ 101 ADOPTION. 22a 

The proper law to determine whether a particular person is 
the legitimated or adopted child of another being ascertained in 
accordance with the principles discussed in this and the preced- 
ing sections, it still becomes necessary to consider the effect of 
the legitimation or adoption in other States. In general the 
status thus created under the proper law will be recognized 
everywhere, unless the policy of the forum or the interests of its 
inhabitants forbid its enforcement and demand the substitution 
of the lex fori. Instances of this have been already seen. Thus, 
the domicil of a legitimated or adopted infant at once com- 
mences to follow the domicil of the father or adopting parent, as 
though the child were born to the parent in wedlock.^ We 
have also seen that in general he will inherit the parent's prop- 
erty, whether personal or real, regardless of the law of its situs 
touching adoption.' 

In Foster v. Watennan, 124 Mass. 592, the Massachusetts court held that an 
adopting parent there domiciled could not adopt a child domiciled in New 
Hampshire under the decree of court and the statutes of the latter State, so as 
to be effective in Massachusetts. But this case turns itither upon the con- 
Btruction of the New Hampshire statute, which was held to be applicable 
only where the adopting parent as well as the adopted child were domiciled in 
New Hampshire. See Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808. 
6 Ante, §§ 43, 44. • Ante, § 12. 



224 DUAL NATURE OF FIDUCIARY STATUS. S 102 



CHAPTER IX. 

STATUS OF FIDUCIARIES. 

§ 102. Dual Nature of Fiduciary Status. — Under the head 
of ** Fiduciary Status " will be grouped the principles regulat- 
ing the law properly applicable to fiduciaries, not only with 
respect to their appointment and qualification, but with regard 
also to their title to property, their rights, powers, and liabili- 
ties, as between them and the beneficiaries on the one hand, 
and as between them and third persons on the other. 

It must be carefully observed that every fiduciary occupies 
two relations : one towards the beneficial owner of the trust es- 
tate, and quite a different one towards third persons interested 
in the administration of the trust fund, — for example, creditors. 

Thus an executor, administrator, guardian, or trustee is ap- 
pointed not only for the benefit of his legatee, distributee, ward, 
or cestui que trust, but also in order to manage and control the 
property committed to him, to collect and pay debts, to prose- 
cute and defend suits, n sell and invest property, etc. Third 
persons, as well as the bei. ficiaries., may be interested in the 
trust. And these creditors, debtors, or other third persons 
may be citizens of other States than that wherein the fiduciary 
and beneficiaries reside. 

It might work a serious injury to the citizens of the forum 
if a foreign fiduciary were allowed to administer upon property 
there situated except in accordance with its own laws (lex fori 
et situs). The fact that the fiduciary is a resident of, and ap- 
pointed in, another State, and that the beneficiaries also reside 
abroad, is immaterial. No State can be expected to permit prop- 
erty within its borders to be taken away, sold, or dealt with in 
any manner by a fiduciary, a mere quasi-legal official appointed 
in another State and subject to other laws, when to do so might 
jeopardize the interests of some of her own citizens who might 



§ 103 DUAL NATURE OF FIDUCIARY STATUS. 225 

justly claim that the property should be administered by theit 
own law, the law of the forum and situs of the property. 

Upon these principles it ia now universally admitted that, in 
the absence of statute, in any case in which third persons are 
interested, the status of the foreign fiduciary is only local and 
temporary. He must in general be reappointed and must qualify 
in every State wherein he desires to administer the property or 
rights of action committed to his charge. Third persons are 
entitled to and may demand all the security and protection af- 
forded by the laws of the State where the property is situated. 
The general rul e in th rge emr^ii in tJiat^ the law of the forum and 
situs of the property will rcgulAle the appuiu t mcnt, qualifica - 
tion, ri ghts, title, and li abi^^^^'" ' "'^ ^^^'' f i >T '> i'' <- j ' y^ « ' f^r w ^ n- 

But so far as the relations between the fi.duciary and the bene- 
ficiaries of the trust are concerned (third persons not being 
interested), even when the question arises in third States, the 
law of the domicil of the owner or beneficiary (the legal situs of 
the owner's person and personal property) will control, both in 
respect to personal rights ' and rights relating to the personal 
property.* 

Thus it will brjirrri thttt frith ^f^prrt tf> f]^nr>in»'ioo jtha gen- 
eral rulfijsto apply the " proper litw^ ^s bfttwaftn fTi^^^ rlnpiary 

and the beneHciary, whllti, as between the fiduciary and third 
parties, theTei Wi iy aubsLiLuted for the piupcr lurWr 

§ 103. nitistraiiOl m ■■ ■ Vail ous Classes of Fiduciaries. — 
The general principles noticed in the preceding section may be 
better understood with the aid of one or two examples. 

1 Burbank v. Payne, 17 La. Ann. 15, 87 Am. Dec. 513 ; Speed v. May, 17 
Penn. St. 91, 94, 55 Am. Dec. 540; Dawes v. Head, 3 Pick. (Mass.) 128, 
145 ; Fay v. Haven, 3 Met. (Mass.) 109 ; Dial v. Gary, 14 S. C. 573, 37 Am, 
Rep. 737, 738-739 ; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534 ; 
Mayo V. Equitable, etc. Society, 71 Miss. 590, 1 5 So. 791 ; Smith v. Bank, 
5 Pet. 518, 525 ; Vaughn v. Northup, 15 Pet. 1 ; McLean v. Meek, 18 How. 
16, 18 ; Mackey v. Coxe, 18 How. 100, 104 ; Wilkins v. Ellett, 9 Wall. 740, 
742. 

' See Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534. 

* Mayo V. Equitable, etc. Society, 71 Miss. 590, 15 So. 791 ; Lamar » 
Micou, 112 U. 3. 452. 

16 



226 DUAL NATURE OP FIDUCIARY STATUS. § 103 

Let us suppose a man to die, leaving personalty situated in 
several States. By his will he leaves his property to his chil- 
dren and appoints an executor. The appointment of the execu- 
tor is not solely for the purpose of preserving the estate for the 
legatees and distributing it among them, but also to pay and col- 
lect debts, etc. A relation is established between the legatees and 
executor, and also a relation between the executor and the cred- 
itors, debtors, and claimants of the estate. These creditors, debt- 
ors, or claimants may reside, not only in the State where the 
owner of the property (the testator) was domiciled, but in other 
States as well, including those where the personalty of the dece- 
dent is situated. 

When the executor comes into those latter States to obtain 
possession of and administer the property there situated, those 
States will not usually permit him to act merely b}-- virtue of 
the privileges accorded him by the law of the testator's domicil. 
The creditors, debtors, and claimants of the estate, if any, who 
are residents of those States, are entitled to demand that every 
precaution required by their law to protect their interests shall 
be taken, regardless of the law of the testator's domicil.^ They 
have the right to demand that the rules of the situs and forum 
shall be followed, touching the qualification of the executor, 
the security to be given, the time within which claims may be 
filed, etc. Hence the executor will be required to show his 
authority by proving the will again by means of a certified copy 
of the domiciliary probate : he will be called upon to qualify and 
to give security in accordance with the law of the situs and 
forum; and until he has taken all the steps required of home 
executors, he will not generally be permitted to assume control 
of the property there situated. The j;eneral princ iple of law 
that the legal situs of personalty is at the d omic il of~~the owner 
and is sxtfajgeno "itFTa w has uu app lication here~rf6r, as has 



1 Though the primary object of the substitution of the lex fori in these 
cases is to protect citizens of the forum, yet it is conceded that a decedent's 
funds in any State are liable to all creditors who may there apply for settle- 
ment, regardless of citizenship or domicil. De Sobry v. De Laistre, 2 Har. & 
J. (Md.) 191, 3 Am. Dec. 535, 536 ; Goodall v. Marshall, 11 N. H. 88, 35 Am. 
Dec. 472, 477-479, and note. 



§ 103 DUAL NATURE OF FIDUCIARY STATUS. 227 

Koon , oTiAwn , flia 7fignJ ^ sJtus of persopalty yields to the dctuai 
situs,,.wherever any of the great exceptions to the enJorcement 
of t he jproper law cOme ilito play." Mere the substitution Sf 
the lex fori anfl IftY situs tor the le^c <l(tihl<'.il ii of the b e sU tOTls 



justified as a protection to the interests of the peopTe^~Xhe 
forum.* 

If i t turns ont that nft^^ ^^^ f^^^^ ?^ft n" 21^^11^^° or other 
third pe rsons who are intereste d in the administration, the r ea- 
8on for the substitution of the lex fori ceases . The foreign execu- 
tor will then be allowe3~to assume full contro T'gf- tho prope rty: 
the l aw of the forum and situs ceases to operate upon it, "and it 
becomes subjeciLt o_the lex domicilii of the testator! H none of 
the legatees are citizens of the forum, it wiTTuSlially be sent on 
to the domicil of the testator, to be there administered and 
distributed by the executor, under the direction of the domi- 
ciliary courts and in accordance with the lex domicilii.* If 
there are citizens of the situs and forum who are legatees (there 
being no creditors) the property will still be subject, in its dis- 
tribution among the legatees, to the lex domicilii of the testator, 
though it need not necessarily be sent there for distribution.* 

What has been said above of executors may be repeated in 
almost the same language with respect to administrators, as will 
more fully appear hereafter. 

Another instance of this double relationship of fiduciaries is 
to be found in the relation of Guardian and Ward, though not 

2 Ante, § 14 ; post, §§ 120, 121 et seq. 

» See Atchison v. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153; Dawes 
». Head, 3 Pick. (Mass.) 128 ; Fay v. Haven, 3 Met. (Mass.) 109, 114 ; Dial 
r. Gary, 14 S. C. 573, 37 Am. Rep. 737 ; Vroom v. Van Home, 10 Pai. Ch. 
(N. Y.) 549, 555; Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec. 
298 ; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117 ; Smith v. Bank, 
5 Pet. 518 ; Wilkins v. EUett, 9 "Wall. 740, 742 ; s. c; 108 U. S. 256, 258. 
The same principle has in some cases even been extended to resident legatees 
where the assets are more than suflScient to pay all the creditors of the estate, 
foreign and domestic. See Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 
478. 

* Post, § 113. 

6 Harvey v. Richards, 1 Mason, C. C. 381 ; Graveley v. Graveley, 25 S. 0. 1, 
60 Am. Rep. 478. See post, § 113. 



228 EXECUTORS AND ADMINISTRATORS. § 104 

to so marked an extent." This double relationship of guardians, 
and indeed of fiduciaries generally, requires that they too should 
be governed as to creditors and other third persons by the lex 
fori et situs. 

The several fiduciaries whose status, in respect to the crea- 
tion, incidents, and termination thereof, we will now consider, 
are: (1) Executors and Administrators; (2) Guardians; and 
(3) Receivers. 

§ 104. Executors and Administrators — Outline of Dis- 
cussion. — A primary distinction is to be noted between the 
administration of a decedent's estate and the distribution thereof, 
the effect of which has already been alluded to in the preceding 
section. The administration of a decedent's estate involves the 
dealings and relations of the executor or administrator with 
third persuos ; while the distribution of the estate involves 
their relations and dealings with the beneficiaries^ the legatees 
or distributees. 

It wil l be re memberedtjiat- thia cnt niln n cnr rrf UK rndirig dis- 
tinct ion as to^ the law properly applicable. SolQjig-fts-the in- 
fprpg fs^ g na.rf ]pfl a .rp t.hna ft nnly of itxe ob^ec tsof the dec edent's 
bounty (hi^ grantftftS; i\° it wftr^'] !, the lex domicilii of the~de- 
ce dent will in general d etermine all their rights, fio" matter 
where the beneficia ries or~lB3Ticia.ri«s reside, or the question 
arises.* 

THr E if it ia a matter of adm inistration, t he rights of third 
parties int ervening^ ^jli hpff^^mftsi a najje jor the subst itution of the 
lex fori for the proper larW-(the lex domicilii of the decedent). 
And since administration proceedings are to a cert ain extent in 
the nature of proceedings in rem,^ th e courts willnoF~generally 
itsH^ i mft to admini ster upon property not wtttrinHfebeir jurisdic- 
tion.* Hence it comes about that ttie forum and the situs of 

• See post, §§ 114 et aeq. 

1 See post, §§ 139 et seq. 

» See Reynolds V. Stockton, 140 U. S. 255, 272; Rockwell v. Bradshaw, 
67 Conn. 9, 34 Atl. 758, 761. 

» Stacy V. Thrasher, 6 How. 44, 58 ; Hooker v. Olmstead, 6 Pick. (Mass.) 
481. Or if it ia within the jurisdiction of another court. See Byers w. Mc- 
Auley, 149 U. S. 608. 



§ 105 QUALIFICATION OF BEPRESENTATIVES. 229 

the property administered will always coincide, and the lex fori 
et situs becomes the law by which the administration of estates 
is governed. 

We shall develop this topic under the following general 
heads : (1) The law controlling the creation of the status of 
executor or administrator; (2) The law controlling the incidents 
of the status ; including the powers, rights, duties, and liabili- 
ties of executors and administrators in general, the order in 
which the decedent's debts are to be paid, the order in which 
the decedent's property is to be subjected to the payment of his 
debts, and (incidentally) the rights of creditors against the real 
estate of the decedent, the right of the decedent's heir or devisee 
to claim exoneration out of the decedent's personal estate, and 
the right of one heir or devisee paying the decedent's debts to 
claim contribution from the others ; and (3) The law controlling 
the termination of the fiduciary status ; including the settle- 
ment of the accounts, the distribution of the residuum after the 
collection and satisfaction of all claims, and the rules governing 
ancillary administrations. 

§ 105. Appointment and Qualification of Administrators 
and Executors. — An ad ministrator of a decedent's estate ia an 

officer o f the law. a p pniTl^f'fi by fhr nrilpr nt g. ^nmpPj^^P ^^^w^nl^rf^ 

in a p roceeding in the nature of a proceeding in rem} The 
jurisdiction of the court is local, extending no further than to 
embrace the property within the limits of its control. For this 
reason, as well as for the reasons given in the preceding sec- 
tions, the appointment is in general of no effect outside the 
jurisdiction where he is appointed; and if the personalty of the 
decedent is situated in several States, he must be reappointed 
or a new administrator must be nominated in each State before 
the property there situated can be administered.' 

1 See Reynolds v. Stockton, 140 U. S. 255, 272 ; Rockwell ». Bradshaw, 
67 Conn. 9, 34 Atl. 758, 761. 

2 Dial V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 739 ; Graveley v. Graveley, 
25 S. C. 1, 60 Am. Rep. 478, 482; Stevens v. Gaylord, 11 Mass. 256, 262 ; 
Merrill v. Ins. Co., 103 Mass. 245, 248, 4 Am. Rep. 548 ; Campbell v. Tousey, 
7 Cow. (N. Y.) 64 ; Shultz v. Pulver, 3 Pai. Ch. (N. Y.) 182; s. c. 11 Wend. 
361 ; Vroom v. Van Home, 10 Pai. Ch. (N. Y.) 549, 556, 42 Am. Dec. 94 ; 



230 QUALIFICATION OF EEPRESENTATIVES. § 105 

The p rimary nflminintrn i tnr; in m i nh i ii j i ' ll i ii ii ajljwntofl 
by the rtoiirfg nf iho. fJf.r>PflpTif*s domicil^ and to him wil l ulti- 
matel y be remitted all the funds o f the decedent in other States, 
after administration there has been accomplished and the "cfed- 
itors^there have been satisfied.^ in the meantime, however, 
these ancillary or~alts41iary administrators are not to be consid- 
ered as identical or in privity with the domiciliary administra- 
tor, but as independent of him. Hence, a judgment rendered 
against an administrator, and unsatisfied, will not be evidence 
of the claim against another administrator of the same decedent 
appointed in another State.* But if a judgment is rendered hi 
favor of one administrator, it will bar an action for the same 
claim brought by another administrator of the decedent in an- 
other State, at least if the debtor is a citizen of the latter 
State."* 

The same general principles apply to administrators de bonis 
non, administrators with the will annexed, curators, etc., all 
of whom are appointed not by the decedent, but by the State 
itself, acting through its courts.® 

So also the qualification of an administrator must take place 
in accordance with the law of the State where he is to act, and 
if the same party has been appointed in several States, he must 
qualify in each according to its laws. His proper qualification, 
by taking the prescribed oath and conforming to the regulations 
touching the giving of bond and security, is a very important 
safeguard afforded by the law to the creditors of the decedent's 
estate within the limits of each State. The notoriety afforded 
by the administrator's appointment and qualification in each 

Parsons v. Lyman, 20 N. Y. 103; Smith v. Bank, 5 Pet. 518, 525 ; Wilkins 
V. Ellett, 9 Wall. 740, 742. 
8 Post, § 113. 

* Johnson v. Powers, 139 U. S. 156, 159, 160 ; McLean v. Meek, 18 How. 
16 ; Stacy v. Thrasher, 6 How. 44 ; Merrill v. Ins. Co., 103 Mass. 245, 249 ; 
Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482. As to executors, s«e 
Hill V. Tucker, 13 How. 458 ; post, § 107. 

6 Stevens v. Gaylord, 11 Mass. 256, 265. See Talmage v. Chapel, 16 
Mass. 71. 

• Harvey v. Richards, 1 Mason, C. C. 380 ; Shannon v. White, 109 Maas. 
146 ; Selectmen of Boston v. Boylston, 2 Mass. 384. 



§ 105 QUALIFICATION OF REPRESENTATIVES. 231 

State is also a protection to third parties there. For these and 
other reasons of like kind it is now the established rule that 
an administrator, in order to act within any State, must qualify 
there, though he has already qualified elsewhere.'' 

With respect to the qualification of foreign executors, the 
same principles apply. The executor, though he has qualified 
in the State of the testator's last domicil, must qualify anew in 
every State where he desires to act, or if action is desired in 
his absence an administrator with the will annexed must be 
appointed in his stead. Here also each State will insist that 
the safeguards of the interests of its own citizens shall be 
observed. ' 

But so far as relates to the (ipj ^jnfmp.nf. of tbp. p-^pr^ntnr, \h 
differs from that of a n administrator in that th e former is the 
act of t hft tftatainy him self^ and is th ^ ref"^" "^^"pft"dqnt "f j'ln's- 
dictioa ^r the locality of the prop erty, while the latter is the act 
of the court of prnba.tP!, anri js Qot generally recu^ul^itjd otrt ytde 
of th at court^irurja diction.' Important consequences may flow 
from this distinction under certain circumstances. Thus, it has 
been held in some States that a foreign executor, in the absence 
of statute, without a new qualification, may deal with assets of 
the testator in any State as if he were a domestic executor, save 
only that he must qualify before he can sue or be sued as such, 
while an administrator appointed in one State can do no act in 

"> See Flannery's Will, 24Penn. St. 502 ; Dawes v. Head, 3 Pick. (Mass.) 
128, 144; Ex parte Picquet, 5 Pick. (Mass.) 65 ; Fayw. Haven, 3 Met. (Mass.) 
109, 116 ; Sheldon v. Rice, 30 Mich. 296, 18 Am. Rep. 136 ; Dial v. Gary, 14 
S. C. 573, 37 Am. Rep. 737; Morrell v. Dickey, 1 Johns. Ch. (N, Y.) 153 ; 
Petersen i'. Chemical Bank, 32 N. Y. 21, 42-43, 88 Am. Dec. 298 ; Vaughn 
V. Northup, 15 Pet. 1 ; Johnson v. Powers, 139 U. S. 156. 

8 Armstrong v. Lear, 12 Wheat. 169 ; Dial v. Gary, 14 S. C. 573, 37 Am. 
Rep. 737, 739 ; Campbell v. Tousey, 7 Cow. (N. Y.) 64 ; Vroom v. Van Home, 
10 Pai. Ch. (N. Y.) 549, 555, 42 Am. Dec. 94; Petersen v. Chemical Bank, 
32 N. Y. 21, 45, 88 Am. Dec. 298; Fay v. Haven, 3 Met. (Mass.) 109 ; 
Richards v. Dutch, 8 Mass. 506 ; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 
19 Am. Dec. 258 ; Welch v. Adams, 152 Mass. 74, 25 N. E. 34. 

» Vroom V. Van Home, 10 Pai. Ch. (N. Y.) 549, 555-556, 42 Am. Dec. 
94 ; Dial «. Gary, 14 S. C. 573, 37 Am. Rep. 737, 739 ; Hill v. Tucker, 13 
How. 458. 



232 FOREIGN ADMINISTRATORS. § 106 

another until he has been reappointed there.^® But other courts 
make no distinction between foreign executors and administra- 
tors in this respect, requiring new letters of administration in 
each State before any act can be done there. The latter would 
seem to be the sounder view.^^ 

§ 106. Incidents of Status of Personal Representatives — 
Their Rights and Liabilities in general. — As a general rule, 
the powers and rights of an executor or administrator, as well 
as his liabilities and duties, are confined to the State where he 
is appointed and qualifies as such, and do not extend to other 
States or countries where assets of the decedent are situated, 
unless he also qualifies there according to the law of the latter 
place (lex situs et fori).^ 

Thus an administrator, appointed in one State, cannot sell or 
possess himself by legal process of any assets of his intestate in 
another State, without appointment there also. Any such action 
on his part is tortious, and he may be held responsible therefor 
in the latter State as executor de son tort or otherwise." Nor 
can he convey a valid title to chattels situated in a State where 

10 See Harper v. Butler, 2 Pet. 239 ; Rand v. Hubbard, 4 Met. (Mass.) 252 ; 
Merrill v. Ins. Co., 103 Mass. 245, 248 ; Vroom v. Van Home, 10 Pai. Ch. 
(N. Y.) 549, 555, 42 Am. Dec. 9 ; Campbell v. Tousey, 7 Cow. (N. Y.) 64 ; 
Vermilya v. Beatty, 6 Barb. (N. Y.) 429 ; Petersen v. Chemical Bank, 32 
N. Y. 21, 43, 88 Am. Dec. 298. 

" See Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Glenn v. 
Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455 ; Packwood's Succession, 
9 Rob. (La.) 438, 41 Am. Dec. 341, 344. See Dial v. Gary, 14 S. C. 573, 37 
Am. Rep. 737, 739 ; post, § 124. 

1 Vaughn v. Northup, 15 Pet. 1 ; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 
737 ; Gi-aveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Cutter v. 
Davenport, 1 Pick. (Mass.) 81 ; Sheldon v. Rice, 30 Mich. 296, 18 Am. Rep. 
136; Flannery's Will, 24 Penn. St. 502; Morrell v. Dickey, 1 Johns. Ch. 
(N. Y.) 153 ; Packwood's Succession, 9 Rob. (La.) 438, 41 Am. Dec. 341, 344. 
According to the better opinion, the distinction between the modes of appoint- 
ment of executor and administrator does not create any difference in the law 
controlling their rights and obligations in the administration of the estate. 
See ante, § 105. 

2 Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455 ; Camp- 
bell r. Tousey, 7 Cow. (N. Y.) 64. See Andrews r. Avory, 14 Gratt. (Va.) 



§ 106 FOBBIGN ADMINISTBATOBS. 233 

he has not been appointed administrator; * nor (it is said) caa 
he validly release a foreign debtor of his decedent.* 

But with respect to the assets situated, or even transiently 
found, in the State of his appointment, he can convey a title 
to them, which will be upheld everywhere.' 

K the goods are situated in the State of appointment and are 
afterwards removed by the administrator to another State, it is 
said that he may administer them, and be held liable to cred- 
itors and others, in the latter State without a new appointment 
there.' But if he should thus be held responsible, it seems that 
the nature and extent of his liability would depend upon the 
laws of the State or country from which he derived his authority 
to administer the decedent's assets, not upon the law of the 
State whither he has removed.' 

If an executor or administrator, without a new appointment, 
goes into a foreign State, collecting assets there and bringing 
them back into the State of his appointment, they are to be 
deemed home assets, and are to be administered and accounted 
for as such, at least if there are no creditors or claimants resi- 
dent in the State from which the assets have been withdrawn.' 

» Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452, 455; Dial v. 
Gary, 14 S. 0. 573, 37 Am. Rep. 737 ; Burbank v. Payne, 17 La. Ann. 15, 87 
Am. Dec. 513, 515-516. See Russell v. Hooker, 67 Conn. 24, 34 Atl. 711, 712. 

* Vaughn v. Barret, 5 Vt. 333, 26 Am. Dec. 306. This proposition is open 
to doubt. The case is closely analogous to that of a yoluntary payment by a 
debtor to a foreign representative, which it is generallj' conceded is a satisfaction 
of the debt. Post, § 109. See also note to Vaughn v. Barret, 26 Am. Dec. 306. 

s Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec. 298 ; Dial 
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 740 ; Merrill v. Ins. Co., 103 Mass. 
245, 248. 

6 Gulick V. Gulick, 33 Barb. (N. Y.) 92 ; McNamara v. Dwyer, 7 Pai. Ch. 
(N. Y.) 239, 32 Am. Dec. 627; Johnson v. Jackson, 56 Ga. 326, 21 Am. Rep. 
285 ; Embry v. Millar, 1 A. K. Marsh. (Ky.) 300, 10 Am. Dec. 732. But 
see Fay v. Haven, 3 Met. (Mass.) 109, 115-116 ; Jackson v. Johnson, 34 Ga. 
511, 89 Am. Dec. 263, 268 ; Hedenberg v. Hedenberg, 46 Conn. 30, 33 Am. 
Rep. 10 ; Tunstall v. Pollard, 11 Leigh (Va.), 1. 

7 McNamara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627 ; Evans 
V. Tatem, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 718. 

8 Evans v. Tatem, 9 Serg. St. R. (Penn.) 252, 259, 11 Am. Dec. 717 ; An* 
drews r. Arory, 14 Gratt. (Va.) 229. 



284 FOBEIGN ADMINISTRATORS. § 106 

It may be added that it is the duty of an administrator, who 
has obtained the legal control of notes payable to his intestate, 
to take the necessary steps to collect them of the debtor under 
the laws of the debtor's domicil (that is, he should qualify there 
himself or by agent, and sue the debtor). Otherwise he will 
be held answerable as for assets received in the State of his 
appointment.* 

When the assets consist of choses in action, the question may 
arise — where is their situs ? — in cases where the creditor and 
debtor reside in different States. If the choses in action should 
be held to be located at the domicil of the creditor, upon princi- 
ples above adverted to the administrator of the creditor there ap- 
pointed may pass a good title to them which will be recognized 
everywhere. On the other hand, if the situs of the chose in 
action is to be deemed the domicil of the debtor, the creditor's 
administrator appointed in the creditor's domicil will have no 
power to convey a good title, without having been appointed 
also in the State where the debt is located. This is one phase 
of the difficult question of the *' situs of debt," and will be con- 
sidered at large under that head hereafter.^" 

T he exec utor at common law has no control, as such, over the 
decern t's land at E ome or a15roa3[ r3ln tTiose cases where he 
is giv £n""TFe power to sell^pr controltEe r eal estate-, h« .acts 
as trustee und er the wil l, _not_ as executor. But even as trustee 
appoijite d"'and qualified in on e State, hp yi\'\'\ nnf. bp pprmlt^*^*^ 
to make title to lands situated, in another, without proof of the 



genuineness and ViilidiLy uf hly a.Ulhoi'izatlonTn the latter "State. 
He must p robat e the will and qualify as executor under the 
laws of the situsoTTKe land.^^ 

' Independently of statute, the administrator, being the ap- 
pointee of the court, not of the decedent, has no authority what- 

9 Shultz V. Pulver, 11 Wend. (N. Y.) 361. 

10 Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. pec. 298 ; Dial v. 
Gary, 14 S. C. 573, 37 Am. Rep. 737, 740. See Wilkins v. Ellett, 108 U. S. 
256, 259. The first of these cases supports the first view, while the second 
advocates the other view. Probably both are partly right and partly wrong. 
See post, §§ 121, 124. 

" Williams v. Mans, 6 Watta (Penn.), 278; Bingham's Appeal, 64 Penn. St 
d45 ; Whart. Confl. L. § 289. 



§ 107 SUITS BY AND AGAINST REPRESENTATIVES. 235 

ever to deal with the lands of his intestate. But by statute iu 
some States such an authority is granted him. In these cases 
also the rule is strictly applied that the lex situs is to govern 
the conveyance of the land, and hence, if the lex situ^ does 
not permit the administrator to deal with land, a deed by a 
foreign administrator will not be given effect merely because 
the law of the State of his appointment gives him control over 
such property." On the other hand, if the lex situs permits an 
administrator to control realty, it means an administrator ap- 
pointed by the courts of the situs. A foreign administrator 
can convey no title to land.^^ 

When a foreign executor or administrator has qualified in 
another State than that of his original appointment, he may do 
all acts in connection with the property there situated (and none 
others) which are permitted to home executors or administra- 
tors under the lex situs et fori. Thus, an executor of one dying 
domiciled abroad, who has duly qualified in England, has been 
allowed to sell leasehold property in England, though not per- 
mitted to do so by the law of the decedent's last domicil.** 

§ 107. Suits by and against Personal Representatives. — 
In accordance with principles already adverted to, it is the 
general doctrine both in England and America that no suit can 
be brought by or against an executor or administrator iu his 
official capacity in the courts of any country save that from 
which he has derived an authority to act by virtue of the 
letters of probate or of administration there granted him. 

Should he desire to institute a suit in a foreign country, he 
must first obtain new letters and qualify there anew in accord- 
ance with the rules there prescribed.^ But if the executor or 

" Watkins v. Holman, 16 Pet. 26. 

13 Cutter V. Davenport, 1 Pick. (Mass.) 81, 11 Am. Dec. 149 ; Sheldon v. 
Rice, 30 Mich. 296, 18 Am. Rep. 136. 

" Hood V. Bamngton, L. R. 6 Eq. 218. 

1 See Kerr v. Moon, 9 Wheat. 565 ; Vaughn v. Northup, 15 Pet. 1 ; Smith »• 
Bank, 5 Pet. 518, 527 ; Johnson v. Powers, 139 U. S. 156 ; Cutter v. Daven- 
port, 1 Pick. (Mass.) 81, 85-86, 11 Am. Dec, 149 ; Ex parte Picquet, 5 Pick. 
(Mass.) 65 ; Goodwin v. Jones, 3 Mass. 514, 3 Am. Dec. 173 ; Merrill v. Ins. 
Co., 103 Mass. 245, 248 ; Judy v. Kelley, 11 fll. 211, 50 Am. Dec. 455 ; Mc- 
Namara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627 ; Vroom v. Van 



236 SUITS BY AND AGAINST REPRESENTATIVES. § 107 

administrator has already obtained a judgment in the State of 
his appointment, he may bring an action upon such judgment 
in another State without a new qualification there, for he is 
then responsible to the estate as if the debt had been collected, 
and thus the judgment becomes his own property upon which he 
may sue in his own right.'' 

If a creditor of a decedent wishes to sue in a foreign State to 
reach assets situated there, he must have letters of administra- 
tion taken out there, before the suit can be instituted. He can- 
not in general sue a domestic administrator in a foreign court or 
a foreign administrator in a domestic court.' 

If an administrator, appointed in one State, removes with the 
assets of the estate into another State, the courts are divided 
upon the question whether or not the decedent's creditors may 
sue the administrator in the latter State without a reappoint- 
ment, the weight of authority seeming to favor the right of the 
creditors to sue.* But if the administrator should only come 
into the State transiently or temporarily, the better opinion 
would seem to be that no action will lie against him there 
without a new appointment.® 

It should be observed that if the creditor desires to subject the 
land of the decedent, instead of suing his personal representa- 

Home, 10 Pai. Ch. 549, 42 Am. Dec. 94 ; Petersen v. Chemical Bank, 32 
N. Y. 21, 40-41, 88 Am. Dec. 298. 

* Talmage v. Chapel, 16 Mass. 71, 73 ; Lewis v. Adams, 70 Cal. 403, 59 
Am. Rep. 423. See Moore i;. Jordan, 36 Kan. 271, 59 Am. Rep. 550 ; Hall v. 
Harrison, 21 Mo. 227, 64 Am. Dec. 225, 228. 

« Story, Confl. L. § 513 ; Vaughn v. Northup, 15 Pet. 1; Reynolds v. 
Stockton, 140 IT. S. 255 ; Vermilya v. Beatty, 6 Barb. (N. Y.) 429 ; Richards 
V. Dutch, 8 Mass. 506 ; Hooker v. Olmstead, 6 Pick. (Mass.) 481. 

* Evans v, Tateni, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 718 ; Atch- 
ison V. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153 ; Embry v. Millar, 
1 A. K, Marsh. (Ky.) 300, 10 Am. Dec. 732 ; Johnson v. Jackson, 56 Ga. 326, 
21 Am. Rep. 285; Gulick v. Gulick, 33 Barb. (N. Y.) 92; McNamara ». 
Dwyer, 7 Pai. Ch. (N. Y.) 239, 32 Am. Dec. 627. But see Fay v. Haven, 
3 Met. (Mass.) 109, 115-116 ; Hedenberg v. Hedenberg, 46 Conn. 30,33 Am. 
Rep. 10 ; Jackson v. Johnson, 34 Ga. 511, 89 Am. Dec. 263, 268. 

6 Evans v. Tatem, 9 Serg. & R. (Penn.) 252, 11 Am. Dec. 717, 719. Sea 
Jackson v. Johnson, 34 Ga. 511, 89 Am. Dec. 263 ; Johnson v. Jackson, 56 
6a. 326. 21 Am. Rep. 285. 



§ 107 SUITS BY AND AGAINST REPRESENTATIVES. 231 

tive, his rights against the real estate are, in accordance with 
the general rule, to be determined by the lex situs of the 
land.« 

If there a re two or more adm inistrators of a decedent, 
appoi nteoTn'^lSerent States, there is no privity betw een them, 
and hence no action wil l lie against one of the m ^ upon a judg- ^ 
ment oBtamea against another in the State o f his appointment, ^^"^V 
at least so far as concerns assets received by the former i n thit ""^^^ 
course of his own administration and not remitted to him by 
the adea4»istrator~against whom the judgment is obtained.' 
Upon the same principle, a judgment against an administrator 
of the deceased in one State will not be received in another in a 
suit brought by the same plaintiff against third persons, citi- 
zens of the latter State, having assets of the deceased, real or 
personal, in their possession.' 

But __with respect to exec utors the rule is different. Th^ 
interest of an administrator inhis intestate's estate is only that 
whip.h~ Thp! law of the Sla te u£ hla appointment authorizes, while 
the in terest of an executor in the es tate Of his te'statp r if? thnt ^. 
which the testator gives iiim. Hence where there ar e several >v 
executors, though citizens of^ and qua lifying in, differen t ^ 
Stat es, they are m privity aa to the debts of the testat^ a ll 
bearin g towards the creditors the same responsibility as if 
ther e were only pne exegn t/^r. It follows theref ore, m s uch 
case, that a judgment obtained against one executor in one 
Staf e^iii be ev^ ^°^rP 'n a ouit nrgftwtst-aQo ther executor o f the 
same testator in another State.® 

The same distinctions run through the cases where judg- 
ments are obtained by administrators and executors instead of 
against them. An administrator cannot sue upon a judgment 
obtained in another State by another administrator of the same 

6 See Story, Confl. L. § 489 h. 

7 Stacy V. Thrasher, 6 How. 44, 58 ; McLean v. Meek, 18 How. 16, 18 ; 
Merrill v. Ins. Co., 103 Mass. 245, 249. 

8 Johnson v. Powers, 139 U. S. 156, 160. The " full faith and credit " clause 
of the federal constitution does not affect these principles, as between the 
several States of the Union. Stacy v. Thrasher, 6 How. 44, f 9» 

» Hill V. Tucker, 13 How. 458, 466, 467. 



238 SUIT FOE TORTIOUS DEATH. § 108 

intestate.^" The doctrine is believed to be otherwise with 
respect to executors. 

In conclusion, notwithstanding the general rule that adminis< 
trators and executors must qualify in a State before they can 
sue or be sued there, if the representative misapplies the 
funds in his hands in a State where he has not qualified, it 
must be observed that the courts of equity of that State may 
assume jurisdiction of a suit against him instituted by persons 
injured by the misapplication. In such cases the administra- 
tor or executor is sued in his personal, not his representative, 
capacity, and the suit may be brought in any court having 
jurisdiction of his person and of his fraud. ^^ But the nature 
and extent of his liability is still Ho be fixed by the law of the 
country whence he derived his powers and authority.** 

§ 108. Right of Foreign Representative to Sue for Dece- 
dent's Death by "Wrongful Act. — The reader will recall the 
common law rule that "personal actions die with the person." 
This rule has been altered by statute in England and in most 
of these States, so as to permit suit to be instituted for the 
tortious killing of a person. But the various statutes differ 
greatly in detail, and perhaps upon no point more than as to 
who shall be authorized to sue in such cases. Some of the 
statutes provide that the suit shall be brought by the personal 
representative of the deceased for the benefit of his or her con- 
sort, children, family, or next of kin (exclusive of creditors), 
or for the benefit of his general estate; other statutes give the 
right to sue only to the consort or children ; others to the next 
of kin, etc. If a foreign element enters into the transaction, 
such as that the death occurs in one State while the action 
therefor is brought in another, questions of considerable diffi- 
culty sometimes arise. 

The main discussion of this subject, a fruitful source of con- 
flicts of laws as well as of decisions, will be postponed to a 

1" Talmage v. Chapel, 16 Mass. 71, 73. See ante, § 105. 

11 Montalvan v. Clover, 32 Barb. (N. Y.) 190, 192-193 ; McNamara v. 
Dwyer, 7 Pal. Ch. (N. Y.) 239, 32 Am. Dec. 627; Leach v. Buckner, 19 
W. Va. 36. 

M McNamara v. Dwyer, 7 Pai. Ch. (N, Y.) 239, 32 Am. Dec. 627. 



§ 108 SUIT FOE TORTIOUS DEATH. 239 

later period, when the proper law governing toHs in general 
will be examined.^ We shall here consider the subject only as 
it relates to the right of the personal representative to bring 
such an action. A few general principles however must be pre- 
mised, for the substantiation of which the reader is referred to 
the subsequent fuller discussion already alluded to. 

The gener al rule is that the law of the place where the tort 
resulting in death is committed (lex lnp-i~deH r:ri > will determin e 
whether an act ion can be brought th erefor, and t hg-^iacty^who 
is to bring ^t^ ^^ wrII ap ^^^ ^^^ma ^]t;|^ m wh ich the suit is to 

be bro ught, the limit of da ipa^gftSj ^^f^ ^^^'^() pgrsnnT-frrr- wbnaft 

benefi t the damages are to be given. These rights are the 
creatures of statute, and the lex T(3Tji>-delicti must be strictly 
followed. The only qualification is that the lex delicti will 
not be enforced in other States whose laws or policy would be 
thereby seriously violated.' 

In general, therefore, if the lex loci delicti gives the adminis- 
trator or executor of the decedent the right to sue in such 
cases, he and he alone will have the right to sue in a foreign 
State, though the lex fori gives that right to some person other 
than the representative, for instance, the widow, the heirs, etc' 
But the statutes give this right to the representative in his 
official capacity, not as a personal right. It is only as the 
duly qualified executor or administrator of the decedent that 
he can sue for the latter's death. This much is generally con- 
ceded, and at this point the difficulties of the subject begin. 

As we have seen, in order that the authority of a represent- 
ative may be recognized in other States, the general princi- 
ple is that he must qualify in each State where he desires to 
act or to sue; and on the other hand, if he has qualified in 
the State where he desires to act or to sue, he need not qualify 
elsewhere.* 

But this principle cannot perhaps be accepted so freely in 

1 See post, §§ 200-202. 

2 Post, §§ 200-202. 

» Usher v. R. R. Co., 126 Penn. St. 207, 17 Atl. 597 ; Wooden w. B. R. Co, 
126 N. Y. 10. But see Stewart v. R. R. Co., 168 U. S. 445. 
* Ante, §§ 105 et seq. 



240 SUIT FOR TORTIOUS DEATH. § 108 

these cases of death by wrongful act. Since the lex delicti de- 
termines who is to sue, and since we have supposed that law to 
confer the right upon the personal representative of the deceased, 
must this not be the personal representative appointed by the 
lex loci delicti itself ? Could the legislature of the locus de- 
licti have had in mind representatives appointed or qualifying 
abroad ? If not, since the lex delicti is to be strictly followed, 
can any person other than the one named by the statute of tlie 
locus delicti sue for the tort committed there, even though the 
action be instituted in another State ? Will it be necessary for 
the representative, having qualified in the locus delicti, to 
qualify anew in the State of the forum before instituting his 
action ? Or is it needful for a representative, who has qualified 
in the forum, to have also qualified in the locus delicti in order 
that he may sue for the death in the forum ? If required to 
qualify in the State of the forum, can he qualify there if there 
is no property of the deceased located there ? Can the repre- 
sentative's right to sue for his decedent's death be regarded as 
property belonging to the decedent f 

These are some of the questions that present themselves in the 
solution of this problem, and it must be confessed that the an- 
swers are rather dimly shadowed in the decisions of the courts. 
The adjudged cases present many conflicts of opinion and some- 
times confusion of thought, so that it is hardly possible to 
formulate a general rule that can be safely followed in all 
cases. 

In the leading case of Dennick v. R. E,. Co.^ the question was 
squarely presented whether it is the representative of the locus 
delicti or the representative of the forum who should bring the 
action. In that case, the death by wrongful act occurred in 
New Jersey, and the action therefor was instituted in New York, 
by a New York administrator, the laws of both States conferring 
upon the personal representative the right to sue. It was con- 
tended that the New Jersey statute included only personal rep- 
resentatives there appointed, and that it did not contemplate 
conferring the right upon foreign representatives. But the Su- 

* 103 U. S. 11. The doctrine of this case has since been followed and ex- 
tended in Stewart ». R. R. Co., 168 U. S. 445. 



§ 108 SUIT FOR TORTIOUS DEATH. 241 

preme Court of the United States took the opposite view and 
sustained the right of the New York administrator to sue in the 
courts of New York. This case (and those succeeding it) must 
probably be taken as settling the first questions above mentioned, 
at least in those cases where both the lex delicti and the lex fori 
give the representative the right to sue.* 

It must be admitted that the weight of recent authority, 
whether or' not it can be entirely justified in principle, is in 
favor of the right of the personal representative of the forum 
to sue (though he has not been appointed in the locus delicti) 
wherever the lex delicti confers that right upon " the personal 
representative " of the deceased, though the dead man has no 
property in the forum, and the only purpose of the appointment 
of the administrator is to sue for the damages for his death.'' 

The fact that the lex fori permits the administrator to sue is im- 
material, if the lex loci delicti gives the power to another, as the 
widow, children, heirs, etc. The last named persons are then 

* And the later case of Stewart v. R. R. Co., 168 U. S. 445, carries this 
doctrine still further, laying down the proposition that an administrator ap- 
pointed in the State of the forum, whose law confers upon him the right to 
sue for the death of his decedent, may sue there for such death occurring in 
another jurisdiction, whose law does not give the right to sue to the personal 
representative of the deceased, but to the State for the benefit of the dead man's 
family. 

7 See Mo. Pac. R. R. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401 ; Leonard v. 
N»v. Co., 84 N. Y. 48, 38 Am. Rep. 491 ; Bums v. R. R. Co., 113 Ind. 169, 15 
N. E. 230 ; Morris v. R. R. Co., 65 la. 727, 23 N. W. 143 ; Nelson v. R. R. 
Co., 88 Va. 971, 14 S. E. 838. In Limekiller r. R. R. Co., 33 Kan. 83, 52 Am. 
Rep. 523, an administrator appointed in Missouri sued in Kansas for the death 
of his intestate occurring in Kansas. The Kansas statute authorized " the 
personal representative " to sue in such cases, but the Missouri statute did not. 
It was held that the action would not lie. If the Missouri statute had author- 
ized the representative to sue, it would still be exceedingly doubtful whether 
the representative of the locus delicti would have been permitted to sue in the 
forum without a new appointment there. See Perry v. R. R. Co., 29 Kan. 420 ; 
Kansas Pac. R. R. Co. v. Cutter, 16 Kan. 568. Some of the earlier cases have 
refused on one ground or another to permit the representative of the forum to 
sue. Vawter v. R. R. Co., 84 Mo. 679, 54 Am. Rep. 105 ; Ash v. R. R. Co., 
72 Md. 144, 19 Atl. 643 ; Richardson v. R. R. Co., 98 Mass. 85 ; Taylor v. 
Penn. Co., 78 Ky. 348, 39 Am. Rep. 244. But see Bruce r. R. R. Co., 83 
Ky. 174. 

16 



242 PAYMENTS TO FOREIGN iiEPKESENTATIVE. § 109 

the proper plaintiffs wherever the forum may be.' Thus, in a 
leading New York case, Wooden v. R. R. Co.,' the death oc- 
curred in Pennsylvania, whose law authorized the widow to sue, 
and suit was brought by the widow in New York, whose law re- 
quired suit to be brought by the executor or administrator. It 
was held that the widow was entitled to sue in New York, with- 
out being appointed administrator there. 

The very converse of this case was decided in Usher v. R. R. 
Co.^* The New Jersey statute provided that the personal repre- 
sentative should sue for death by wrongful act. The Penn- 
sylvania statute called for suit by the widow. Upon a death 
occurring in New Jersey, the widow sued in Pennsylvania, with- 
out appointment as administrator. It was held that the suit 
could not be maintained. 

§ 109. Voluntary Payment of Debts to Foreign Represent- 
ative. — In England it is held that, since the administrator has 
no authority to act outside of the jurisdiction from which his 
powers are derived, the payment of a debt to a foreign adminis- 
trator will be no bar to a suit by an ancillary administrator in 
the debtor's domicil, unless the debt be made payable in the 
country of such foreign administrator.^ 

But in the United States the general rule is that if there is 
no need of an ancillary administration in the domicil of the 
debtor, and if the foreign administrator may lawfully receive 
the payment under the laws of his appointment, a payment to 
him in another State will operate as a discharge of the debt.' 
Not only is such a payment, though made to a foreign executor 
or administrator, a discharge of the debt, so far as the debtor ia 

8 But if the plaintiff named by the lex delicti is merely a nominal plaintiff, 
— as the State itself, — the party named by the lex fori, it seems, may bring 
the suit. Stewart v. R. R. Co., 168 U. S. 445. 

» 126 N. Y. 10. 

10 126 Penn. St. 207, 17 Atl. 597. 

1 Preston v. Melville, 8 CI. & F. (H. L.) 12, 14. 

2 Doolittle V. Lewis, 7 Johns. Oh. (N. Y.) 45, 11 Am. Dec. 389, 392; 
Williams v. Storrs, 6 Johns. Ch. (N. Y.) 353, 10 Am. Dec. 340, 341-342 ; Dial 
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741-742 ; Hall i;. Harrison, 21 Mo. 
227, 64 Am. Dec. 225, 227; Wilkins v. Ellett, 9 Wall, 740 ; a. c. 108 T7. S. 
256 ; Mackey v. Coxe, 18 How. 100. 



§ 110 ORDER OF PAYMENT OF DEBTS. 243 

concerned, but it also operates to charge the fiduciary with the 
same. He may even be charged as executor de son tort in the 
State where the payment was made, at the instance of creditors 
there.* And if no attempt is made there to hold him answer- 
able, he will at least be accountable therefor in the State of his 
appointment.* 

§ 110. Order of Payment of Decedent's Debts — Marshall- 
ing of Assets. — In some countries, all debts are of equal rank 
in the settlement of a decedent's estate, and are to be paid pari 
passu. In other countries, certain debts are privileged and 
take priority over others, and the laws of such countries will 
differ among themselves as to the debts which shall be 
privileged. 

In general, the lex fori, which, if property is sought to be 
subjected, will also be the lex situs, will govern the order in 
which creditors are to be paid. This is essentially a question 
of administration, to be controlled by the local law. Credit- 
ors attempting to subject property in the decedent's domicil 
will be governed as to their relative priorities by the law of the 
domicil, for that is the forum and situs of the fund to be dis- 
tributed. If an ancillary administrator is to pay the debts, 
then their order will be determined by the law of the State 
where he is administering the fund (the situs and forum), not 
by that of the decedent's domicil.^ 

Thus in Smith v. Bank,^ R was domiciled in Norfolk, Va., 

» Campbell v. Tousey, 7 Cow. (N. Y.) 64; Glenn v. Smith, 2 Gill & J. 
(Md.) 493, 20 Am. Dec. 452, 455 ; Story, Confl. L. § 514. 

* Parsons v. Lyman, 20 N. Y. 103 ; Fay v. Haven, 3 Met. (Mass.) 109, 115, 
116. See Story, Confl. L. § 514 o. 

1 Story, Confl. L. §§ 524, 525 ; Whart. Confl. L. § 624 ; Harrison v. 
Sterry, 5 Cr. 289 ; Smith v. Bank, 5 Pet. 518, 526-527 ; Dawes v. Head, 
3 Pick. (Mass.) 128 ; Miller's Estate, 3 Eawle (Penn.), 312, 24 Am. Dec. 345, 
350 ; De Sobry v. De Laistre, 2 Harr. & J. (Md.) 191, 3 Am. Dec. 535, 542: 
Holmes v. Remsen, 20 Johns. (N. Y.) 229, 11 Am. Dec. 269, 280 ; Derringer 
V. Derringer, 5 Hous. (Del.) 416, 1 Am. St. Eep. 150. The same principle is 
applicable even to judgments rendered in a State other than that of adminis- 
tration, and that, too, despite the ' ' full faith and credit " clause of the federal 
constitution. McElmoyle v. Cohen, 13 Pet. 312. 

2 5 Pet. 518. 



244 OBDER OF PAYMENT OF DEBTS. § 110 

and there contracted a debt on bond to T. He was also in- 
debted to the Union Bank of Georgetown, D. C., on simple 
contract. He died intestate, leaving personalty in Washing- 
ton, of which administration was there granted. By the law 
governing the District of Columbia, all debts were of equal 
dignity in administration, but by the law of Virginia, where 
R was domiciled, debts on bond were preferred. The assets in 
the hands of the administrator were insufficient to discharge 
both debts. It was held that the law of the District (the situs 
and forum) should prevail, and that the two claimants should 
share part ^assM. In the course of its opinion the court said: 
" Every sovereign has his own code of administration, varying 
to infinity as to the order of paying debts ; and almost without 
exception asserting the right to be himself first paid out of the 
assets. And the obligation in the administrator to conform to 
such laws is very generally enforced, not only by a bond but 
on oath. On what principle shall we insert into all those laws 
an amendment in favor of foreign creditors ? " 

The same principles govern the marshalling of the decedent's 
assets (that is, the arrangement of them in such a way as to 
make them go as far as possible towards the payment of all his 
debts and charges). 

The rules regulating this subject, in common with all the 
other incidents attending the administration of a decedent's 
estate, are those prescribed by the law of the place where the 
assets administered are situated (lex fori et situs).* But no 
attempt should ever be made by a court, in the course of admin- 
istration, to marshal assets in whole or in part outside of its 
jurisdiction. The injustice which may result from such a 
course (leaving out of consideration the court's lack of jurisdic- 
tion in the premises) is most forcibly illustrated by the case of 
Bice V. Harbeson.* 

8 Story, Confl. L. § 524. See Harvey v. Richards, 1 Mason, C. C. 380, 
422. 

♦ 63 N. Y. 493. In that case, M, an Irishman domiciled in New York, 
died there possessed of personalty in New York, and also of certain land in 
South Carolina, upon which he had placed a mortgage. By his will he left 
all his property, after payment of his debts, to be divided into seven shares, 



§ 111 creditor's rights against the heir. 245 

Pari ratione, the lex fori et situs will determine the nature 
of the assets there situated, as whether they are to be deemed 
real or personal, legal or equitable. Indeed this is in the main 
but an application of a familiar rule, presently to be discussed, 
that the lex fori controls matters of procedure, pertaining 
merely to the remedy.* 

§ 111. Right of Creditor to Subject Decedent's Laud in 
Hands of the Heir. — Questions of this character, though not 

one to go to the children of his deceased sister, J, and the other six shares to 
go to other relatives, all of whom except the children of J were aliens. The 
will was probated in New York as a will of personalty and realty, but was 
void in South Carolina as a will of lands, because the South Carolina law 
required three witnesses to such wills, there being only two in this case. 
Moreover, the law of South Carolina not permitting aliens to inherit land, all 
the relatives of M were cut off from inheriting the South Carolina land as 
heirs, except the children of J. They therefore brought suit against the ex- 
ecutor to recover the land as the sole heirs of M. The South Carolina court 
gave judgment for J's children, and ordered the executor to pay the mortgage 
out of M's personal estate (which was in New York). Upon a final account- 
ing by the executor in Neio York, the mortgagee presented his claim, which 
was allowed by the surrogate and ordered to be paid out of the personal 
estate. This was reversed by the General Term, and its decision was con- 
firmed by the Court of Appeals, upon the ground that the testator intended 
that his whole estate should bear the burden of his debts, not the personalty 
only, which latter view would deprive the foreign legatees of their portions, 
since they were cut out of all participation in the South Carolina land. The 
New York court therefore decreed that the assets should be marshalled, and 
that the mortgagee, having two funds for his security, must select that one 
which would least impair the testator's intent. The result was, that, while 
protecting the foreign legatees, the court deprived the mortgagee by its action 
of all recourse, notwithstanding the established principle that the marshal- 
liug of assets, as well as exoneration, is subsidiary to the payment of debts, 
which is the first of all the duties of administration. 

The mere statement of this conclusion suflBces to show that either the South 
Carolina or the New York court was guilty of error. 

It is respectfully submitted that both courts acted in part beyond their 
jurisdiction. The South Carolina court had no authority to decree exonera- 
tion of South Carolina land out of New York personalty, and the New York 
court had no authority to marshal assets which were in South Carolina and 
outside its own jurisdiction. It could lawfully enforce the testator's inten- 
tion only so far as the property in New York was concerned. 

6 Post, §§ 205-207. See Dickinson v. Hoomes, 8 Gratt. (Va.) 353, 410; 
post, § 111. 



246 creditor's rights against the heir. § 111 

strictly a part of the administration of a decedent's estate, are 
so closely connected with it that they may very appropriately 
be discussed in this connection. 

It is the better opinion that the rights of a creditor against a 
decedent's land are to be determined by the lex situs of the 
land sought to be subjected, or in respect to which the right is 
claimed, not by the law of the place of contract, nor by the lex 
domicilii of the decedent or creditor. 

The very question whether a party claiming the right to sub- 
ject the decedent's land is a creditor at all, so far as the realty 
is concerned, is to be determined by the lex situs of the land. 
Thus, in a Kentucky case,^ an Ohio probate court, under the 
law of that State, gave a widow an allowance of $4,000 for her 
support for one year, declaring it a lien on her deceased hus- 
band's lands. Upon her seeking to enforce the lien so created 
upon some of her husband's land in Kentucky, the court held 
that, according to Kentucky law (the lex situs), the allowance 
was not a debt of the estate, and would not be enforced there 
against the lands in the hands of the heir. 

In Dickinson v. Hoomes,* land in Virginia had been conveyed 
with a covenant of general warranty on the part of the grantors 
and their heirs. Subsequently the heirs set up title to the land 
under a prior will, and sued to recover part thereof from an as- 
signee of the original grantee. The defendant set up by way of 
lebutter certain lands in Kentucky descended upon the plain- 
tiffs from their ancestor, the grantor. It was held that the 
question whether or not the Kentucky lands were assets for the 
payment of what might be due upon breach of the covenant, 
was to be determined in accordance with the law of Kentucky 
(lex situs). 

Conflicts too sometimes arise between the lex domicilii of a 
deceased debtor, or the lex loci contractus of a debt or contract, 
and the lex situs of the decedent's lands, as to whether certain 
lands are to be applied to the payment of his debts before 
others; or where by one law the heirs are liable to the ances- 
tor's debts in proportion to their shares only, while by the other 

» Short V. Galway, 83 Ky. 501. ^ g Gf^tt. {Va. ) 353, 410. 



§ 112 EXONERATION AND CONTRIBUTION. 247 

each heir is liable for the whole debt to the extent of the land 
descended upon him. In all such cases, it would seem that the 
lex situs of the particular land in question should govern, since 
the question is one of charging the land with the debt. All 
liens, transfers, and charges upon real estate, it is believed, are 
governed by the lex situs of the land.' 

§ 112. Exoneration of Realty out of Personalty, and vice 
▼ersa — Contribution bet'ween Heirs or Devisees. — Cases 
sometimes occur in which a decedent dies, possessed of lands in 
one country and personalty in another, the heirs or devisees 
succeeding to the land and the personal representative to the 
personalty. The laws of one of these countries may make the 
personalty primarily liable for certain debts, while the laws of 
the other may make the land primarily liable for them. 

If under these circumstances the creditors of the decedent 
subject his lands in one State (in the hands of his devisees or 
heirs), perplexing questions will arise as to the right of the 
heirs or devisees to exoneration and reimbursement out of the 
personalty situated in another State for the loss imposed iipon 

» Whart. Confl. L. § 291 ; Story, Confl. L. §§ 489 a, 489 b ; La Selle v. 
Woolery, 14 Wash. 70, 32 L. R. A. 75. But see Story, Confl. L. § 268 ; Brown 
V. Richardson, 1 Mart. N. s. (La.) 202. These last references relate to a case 
of a somewhat different character, where the question is not as to the manner 
in which the land shall be subjected, but whether it can be subjected to the 
decedent's debt at all. In Brown v. Richardson, supra, the decedent, owning 
lands in Louisiana, contracted a debt in another State by whose law (the com- 
mon law) heirs were not bound by the simple contracts of their ancestor. By 
the law of Louisiana, the heirs were bound by such contracts. In a suit by 
the creditor in Louisiana to subject the lands in the hands of the heir, it was 
held that this pertained to the obligation of the contract, and was to be deter- 
mined by the law governing the contract itself (lex loci contractus). This 
decision receives the approval of Judge Story ; but its soundness is doubtful, 
since a charge is thereby established upon the land, contrary to the lex situs. 
It is closely analogous to the case of the charge created by a married woman's 
contract upon her equitable separate estate in land, which, according to the 
better opinion, is governed by the lex situs, not by the lex loci contractus. 
La Selle v. Woolery, 14 Wash. 70, 32 L. R. A. 75 ; Wick v. Dawson, 42 
W. Va. 43, 24 S. E. 587; Johnston v. Gawtry, 11 Mo. App. 322 ; Bank v. 
Williams, 46 Miss. 618, 12 Am. Rep. 319 ; Cochran v. Benton, 126 Ind. 58, 
25 N. E. 870. But see Spearman v. Ward, 114 Penn. St. 634, 8 Atl. 430 ; 
Story, Confl. L. § 267. 



248 EXONERATION AND CONTRIBUTION. § 112 

them ; and on the other hand, if the personalty is first subjected, 
a similar question will arise touching the rights of the parties 
succeeding thereto to exoneration out of the realty.^ 

Let us suppose, for instance, that A, domiciled in Virginia, 
mortgages land owned by him in Scotland, and dies possessed 
of the Scotch land and Virginia personalty. By the law of Vir- 
ginia (lex domicilii) the personal estate is primarily bound to 
pay the mortgage debt, while under the Scotch law (we will 
suppose) land mortgaged is primarily liable to pay the mortgage. 
Under these circumstances, the heirs in Scotland pay off the 
mortgage and release the land. Are they entitled to relief in 
Virginia out of the decedent's personalty ? ^ 

In solving this problem, and others similar to it, it must be 
observed first of all that the general creditors of the decedent 
are not interested; the decedent's debts have been paid, and it 
is purely a contest between the successors to the land and the 
successors to the personalty of the decedent, as to who shall 
ultimately bear the burden of the debt. But the very fact that 
one of the decedent's representatives is claiming exoneration 
out of the estate in the hands of the other constitutes the first a 
quasi-creditor of the latter estate, in equity, should his claim 
be valid. 

An heir or devisee claiming exoneration out of the person- 
alty cannot claim to be such a quasi-creditor of the personalty, 
unless the lex situs of the land makes the real estate only sub- 
sidiarily liable.' In the latter event he can in that State 
doubtless claim exoneration out of the personalty, and should 
there be any personal estate actually situated there the courts 
of that country (the situs of the land) will probably administer 

1 In such cases (all creditors being paid) the personalty of the decedent, 
wherever it may be actually situated, must be deemed in law to be situated 
at the domicil of the owner (the decedent). The law of his last domicil there- 
fore will furnish the law governing the primary liability of the personalty. 

* This case nearly resembles the case of Drummond v. Drummond, 6 Bro. 
P. C. 601, quoted by Sir "William Grant in Brodie v. liarry, 2 Ves. & B. 127, 
132 ; infra, note 11. 

' Drummond v. Drummond, 6 Bro. P. C. 601, cited in Brodie r. Barry, 
2 Ves. & B. 127, 132 ; Elliott v. Lord Minto, 6 Madd. 16 ; Earl of "Win. 
ehelsea v. Garetty, 2 Keen, 293, 308-309. 



? 112 EXONEBATION AND CONTRIBUTION. 249 

it in accordance with its own laws, whether or not the same 
right he given hy the lex domicilii of the decedent. Here the 
situs of the realty is identical with the actual situs of the per- 
sonalty, and the lex situs will prevail. 

But if there should be no personalty in the situs of the land, 
or not enough to exonerate the heir or devisee, the two sorts of 
property may be subject to different laws. Yet if by the lex 
domicilii of the decedent, as well as by the lex situs of the land, 
the heir or devisee under such circumstances is entitled to ex- 
oneration out of the personal estate, the courts of the decedent's 
domici!, or of any third State where the personalty may be 
found, will recognize his status as a quasi-creditor of the per- 
sonalty created by the lex situs of the land, and exoneration 
will be decreed him.* 

If, however, the lex domicilii of the decedent does not recog- 
nize, under such circumstances, the heir's or devisee's right to 
exoneration, the mere fact that the lex situs of the realty gives 
him that right will not be sufficient. ^ 

In other words, the true rule would seem to be that both laws 
must concur in making it a case for exoneration, before exoner- 
ation will be decreed the heir or devisee out of the personalty 
(situated elsewhere than in the situs of the land). 

The same result must also be reached in cases where the per- 
sonalty is first subjected, and the successor to the personalty 
thereupon claims exoneration out of the realty situated else- 
where. If under the lex domicilii of the decedent and the lex 
situs of the land also the land is primarily responsible, exoner- 
ation will be decreed ; but if by either law the personalty ia 
primarily liable, it must bear the loss, and no exoneration will 
be permitted.® 

E converso, it was held in New York that if a debt of a dece- 
dent domiciled in New York is not permitted to be made out of 
land in South Carolina, because the personalty in New York is 
by the law of South Carolina primarily liable therefor, neither 

* Anonymous, 9 Mod. 66 ; Earl of Winchelsea r. Garetty, 2 Keen, 293. 
6 Rice V. Harbeson, 63 N. Y. 493. 

* Earl of WincheLsea v. Garetty, 2 Keen, 293, 308-310. See Story, Confl, 
L. § 26«o, But see In re Hewit, 3 Ch. 568. 



250 EXONERATION AND CONTRIBUTION. § 112 

can the debt be made out of the personalty in New York, which 
is there made subsidiarily liable only. The result was that the 
creditor lost his debt entirely. The mere mention of this con- 
sequence is to state that there must have been some error in the 
conclusion.'^ 

Several illustrations may be given of the general principle 
regulating these cases; namely, that, in order for the doctrine 
of exoneration to apply, the lex situs of both the realty and the 
personalty must permit it. 

In an English case,^ a testator domiciled in Holland owned 
land there and personalty in England. He devised all his real 
estate to one person and all his personalty to another, whom 
he appointed his executor. The testator owed some specialty 
debts and some simple contract debts to persons in Holland, to 
satisfy which he had no property in Holland but the land. By 
the laws of Holland, if decedent had no other assets, his land 
might be subjected to the payment of his debts, both by spe- 
cialty and simple contract, and the land in Holland was sub- 
jected accordingly. The devisee then sued the executor and 
legated of the personalty in England for exoneration out of the 
personalty. The law of both countries made the personalty 
primarily responsible, and exoneration was accordingly decreed 
out of the English personalty.* 

In Earl of Winchelsea v. Garetty,^" one domiciled in Eng- 
land and possessed of personalty there, owned real estate in 

' Rice V. Harbeson, 63 N. Y. 493. The facts of this case have already 
been given, and what is believed to have been the error of the court pointed 
out. Ante, § 110, note 4. It is to be observed that this case was not strictly 
one of exoneration. The question there did not arise between the successors 
to the land and the successors to the personalty, but the creditor was a party. 
It was he who bore the loss. 

8 Anonymous, 9 Mod. 66. 

9 In this case, it is to be noted that the domicil of the testator was in Hol- 
land, where the land was situated. The legal situs of the personalty was 
therefore in Holland also, except for purposes of administration. It is prob- 
able that even if the law of England had not made the personalty ultimately 
liable for the debts, the law of Holland would have prevailed, at least unless 
the legatee of the personalty were domiciled in England. 

w 2 Keen. 293. 308-310. 



§ 112 EXONERATION AND CONTRIBUTION. 251 

Scotland. He contracted certain debts and died. The cred- 
itors went against the land in Scotland and subjected it, and 
the heirs sought exoneration out of the English personalty. 
The Scotch law distinguished between "heritable bonds" and 
"movable debts," making the former primarily chargeable on 
the land, and the latter on the personal estate. The decedent's 
debts belonged to the latter class. The English law made the 
personalty primarily liable for all debts. The English court 
held that exoneration should be decreed on the ground that the 
heir was made a quasi-creditor of the personal estate by the law 
of Scotland (the situs of the land), and the English law coin- 
ciding, there was no reason why exoneration should be denied. 

On the other hand, in Drummond v. Drummond," a person 
domiciled in England owned real estate in Scotland, upon which 
he granted a "heritable bond" to secure a debt contracted in 
England. He died intestate; and the question was whether 
this debt was ultimately to be borne by the real or personal 
estate. By English law the personal estate was the primary 
fund for the payment of all debts. By the law of Scotland, the 
real estate was the primary fund for the payment of " heritable 
bonds." It was said for the heir that the personal estate must 
be distributed according to the law of England (the decedent's 
domicil), and must bear all the burdens to which it is by that 
law subject. But in answer to th^p it was said that the land 
must go to the heir in accordance with the law of Scotland, 
bearing all the burdens to which it is by that law subject. The 
•court refused to decree exoneration. In this case the laws of the 
situs of the two funds were in conflict. 

In Staigg V. Atkinson, ^^ a testator, after charging his lands 
with the payment of his debts, provided for his widow, without 
expressing an intention to bar her of her dower. He owned 
lands in Minnesota and certain mortgaged lands in Massa- 
chusetts. The executor, under a power in the will, sold the 
Minnesota land and brought the proceeds to Massachusetts. By 

" 6 Bro. P. C. 601, cited in Brodie ». Barry, 2 Ves. & B. 127, 132, and ia 
Story, Conft. L. § 487. 

13 144 Maas. 564, 12 N. £. 854. 



262 EXONERATION AND CONTRIBUTION. § 112 

the Minnesota law, the provision for the wife in the will did 
not har her dower in the land there in the absence of an ex- 
pressed intention to that effect in the will. That law also pro- 
vided that her dower should be subject, in its just proportion 
with the other real estate, to such debts of the deceased as were 
not paid out of his personal estate. By Massachusetts law her 
dower was free from the debts of her husband. By the common 
law of both States, when mortgaged land and other land of a 
decedent were both charged together with debts, they were 
bound to contribute ratably to the payment. The widow sued 
the executor in Massachusetts for her dower share in the pro- 
ceeds of the Minnesota lands, claiming that she was entitled 
thereto free from any duty to contribute to pay off the mortgage 
on the Massachusetts land. But the Massachusetts court held 
that she must contribute, since under the lex situs of the Min- 
nesota land she was bound to contribute, in the absence of per- 
sonalty sufficient to pay the husband's debts, and since by the 
laws of both States mortgaged land was entitled to exoneration 
pro rata out of the other lands of the decedent." 

The equitable principle of contribution between heirs or devi- 
sees in the administration of their deceased ancestor's estate 
is closely assimilated to that of exoneration, and in the main 
would seem to be governed by similar rules, when the lands 
in possession of the several heirs or devisees are in different 
States, whose laws are conflicting touching the order in which 
the lands are to be primarily liable for the debts. Indeed, con- 
tribution in these cases is but a partial exoneration. 

The same general principles are applicable here. If the heir 
'^f land in one State, subjected to a debt of his ancestor, claims 
exoneration or contribution from the heir of the lands in an- 
other State, not only must he show himself entitled to such 
relief by the law of the place where his own land is situated, 
whereby he is constituted a quasi-creditor of the other heir, 
but the same relief must also be open to him under the law of 
the State where the land in the hands of the second heir is 
situated.^* 

18 See also Maxwell v. Hyslop, L. R. 4 Eq. 407. 

M See Staigg v. Atkinson, 144 Mass. 564, 12 N. E..354. 



§ 113 ANCILLARY ADMINISTRATIONS. 253 

§ 113. Termination of Status of Executors or Administra* 
tors — Auxiliary or Ancillary Administrations. — It has already 
been observed that the fiduciary status is peculiar, being recog- 
nized by the law, not for the benefit of the fiduciary himself, 
nor chiefly for the benefit of the legatees or other beneficiaries, 
but mainly for the purpose of dealing with third persons, cred- 
itors, debtors, or claimants of the estate. Such third persona 
may be residents of the decedent's domicil or of other States, 
and the decedent's personalty may have its actual situs in his 
domicil or elsewhere. 

The primary or principal administration is that conducted at 
the domicil of the decedent, for there is the legal situs of his 
personal property. But the legal situs of the personalty yields 
to the actual situs wherever, under the general exceptions to 
the ''proper law," the lex fori may be substituted for the lex 
domicilii. Administration proceedings constitute one of these 
exceptions, for the protection of residents of the forum. 

Hence, as we have seen, the domiciliary or principal admin- 
istrator will not ordinarily be permitted to administer assets iu 
another State, merely by virtue of his domiciliary appointment 
and qualification, but there must be a fresh appointment and 
qualification in every State where there are assets. 

These are known as ancillary administrations because they 
are subordinate and auxiliary to the principal or primary or 
domiciliary administration, and after their purposes are served 
by satisfying all creditors and claimants in the State of their 
creation, they are ultimately responsible to the principal ad- 
ministration for the balance of the assets unadministered, and 
are generally bound to remit such balance to the domicil for 
distribution. Such is the general theory of ancillary adminis- 
trations.^ 

1 Wilkins v. Ellett, 9 Wall. 740, 742 ; Harvey v. Richards, 1 Mason, C. C. 
380, 409 ; Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 N. Y. 
192, 200; Cross r. Trust Co., 131 N. Y. 330, 346; Graveley r. Graveley, 
25 S. C. 1, 60 Am. Rep. 478, 482 ; Stevens v. Gaylord, 11 Mass. 256 ; Dawes 
V. Head, 3 Pick. (Mass.) 128, 145, 147 ; Davis v. Estey, 8 Pick. 475 ; Jenni- 
son V. Hapgood, 10 Pick. 77, 19 Am. Dec. 258 ; Fay v. Haven, 3 Met. (Maas.) 
109, 114 ; Merrill v. Ina. Co., 103 Mass. 245, 248; Welles' Estate, 161 Pena 
St 218, 28 Atl. 1116. 



254 ANCILLARY ADMINISTRATIONS. § 113 

The rights, duties, and liabilities of the principal and ancil- 
lary administrators, while administering the funds in their 
hands, have already been considered in preceding sections,^ and 
will not be here repeated. It may be observed however in this 
connection that although it is often assumed that ancillary ad- 
ministrations are created solely for the benefit of such claimants 
as are residents of the forum,* and although that in truth is 
the real basis upon which they rest, yet such administrations 
being once created, both convenience, comity, and justice re- 
quire that the courts of the forum should be open to all claim- 
ants who choose to prove their claims there, provided such 
liberality would not work an injury to those who are actually 
citizens of the forum, as by exhausting the assets and forcing 
the citizens themselves to resort to the domiciliary forum.* 

But it is especially to the relations between the ancillary and 
domiciliary administrations that attention will now be directed. 

Generally speaking, it is the duty of the ancillary adminis- 
tration to collect and pay all debts and claims by or against the 
estate, arising in the State of such administration, and then to 
make a settlement before the courts of that State pursuant to 
its laws,* finally remitting any balance found to exist to the 

» Ante, §§ 105 et seq. 

« See Despard v. Churchill, 53 N. Y. 192, 199-200 ; Graveley v. Grareley, 
26 S. C. 1, 60 Am. Rep. 478, 483 ; "Welles" Estate, 161 Penn. St. 218, 28 Atl. 
1116, 1117 ; Stevens v. Gaylord, 11 Mass. 256, 269. 

4 De Sobry v. De Laiatre, 2 Har. & J. (Md.) 191, 3 Am. Dec. 535, 536; 
Goodall V. Marshall, 11 N. H. 88, 35 Am. Dec. 472, 477-479 and note; 
Dawes r. Head, 3 Pick. (Mass.) 128, 145 ; Harvey v. Richards, 1 Mason, C. C. 
880, 407. See Bank v. Lacombe, 84 N. Y. 267 ; Atherton Co. v. Ives, 20 
Fed. 894 ; Sturtevant v. Armsby Co., m N. H. 557, 23 Atl. 368. In the last 
case a distinction is taken between citizens of one of the States of the Union 
and citizens of foreign countries. This question or one closely analogous is 
discussed hereafter. Post, § 138. 

s Lamar v. Micou, 112 U. S. 452 ; Vaughn v. Northup, 15 Pet. 1 ; McLean 
V. Meek, 18 How. 16, 18 ; Harvey v. Richards, 1 Mason, C. C. 380, 414 ; Ste- 
vens V. Gaylord, 11 Mass. 256, 269 ; Dawes v. Head, 3 Pick. (Mass.) 128, 144 ; 
Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 N. Y. 192, 199 ; 
Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478, 482 ; Russell v. Hooker, 67 
Conn. 24, 34 Atl. 711, 712. The cases show that in general the accountability 
cf an ancillary administrator is solely to the courts of his own State. See 



§ 113 ANCILLARY ADMINISTRATIONS. 265 

domiciliary administration, there to be administered and dis- 
tributed as the lex domicilii of the decedent directs. 

But it must not be supposed that the courts of the State of 
ancillary administration are always bound to remit, that they 
have no jurisdiction to retain and themselves distribute the 
balance. It seems to have been supposed at one time that there 
was no other step save to remit the balance to the courts of the 
domicil, and that legatees or distributees, though residing in 
the State of ancillary administration, must apply to the domi- 
ciliary courts for the distribution.® But the modern and more 
reasonable doctrine is that it is not a matter of jurisdiction, but 
lies within the sound judicial discretion of the court adminis- 
tering the fund, whether after administration it shall proceed 
to assign their shares to resident legatees or distributees, oi 
remit the fund to the domicil of the decedent, and thus force 
these parties to resort thither. Though the usual rule is to 
remit, circumstances may justify the other course.' The dis- 
cretion will usually be exercised in favor of the local distribu- 
tion of the balance only in those cases where the legatees or 
distributees are citizens of the forum, where the funds are not 
needed by the domiciliary administration for the payment of 
debts, and where to remit them would cause inconvenience, 
trouble, and perhaps loss to the legatees or distributees resident 
in the forum. 

Vaughn v. Northup, 15 Pet. 1 ; Fay v. Haven, 3 Met. (Mass.) 109, 116. 
And until he has satisfied all the creditors in his own jurisdiction, no other 
administrator, not even the domiciliary administrator, can oust him of hi« 
authority or lay claim to any property situated there, or recover there of any 
debtor of the estate. Merrill v. Ins. Co., 103 Mass. 245. But if the ancil- 
lary administrator has been guilty of fraud so that he may be sued upon his 
personal responsibility, as for a breach of trust, he may be held accountable 
therefor in any forum acquiring jurisdiction over him. In such case the 
accountability is in the court of chancery for breach of the trust. Leach v. 
Buckner, 19 "W. Va. 36 ; McNamara v. Dwyer, 7 Pai. Ch. (N. Y.) 239, 
32 Am. Dec. 627 ; Powell r. Stratton, 11 Gratt. (Va.) 792, 797. 

6 Richards v. Dutch, 8 Mass. 506 ; Dawes v. Boylston, 9 Mass. 337. 

' Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116, 1117 ; Graveley ». 
Graveley, 25 S. C. 1, 60 Am. Rep. 478 ; Harvey v. Richards, 1 Mason, C. C. 
380, 409 ; Despard v. Churchill, 53 N. Y. 192, 200 ; Parsons v. Lyman, 20 
N. Y. 103. 



256 ANCILLARY ADMINISTRATIONS. § 118 

In Graveley v. Graveley,' a testator domiciled in England 
bequeathed a legacy to a resident of South Carolina, to be paid 
when he became twenty-one, with interest. The fund was in- 
yested by the English executor in British consols, bearing three 
per cent interest. The South Carolina rate of interest was seven 
per cent. The executor qualified also in South Carolina, where 
there were sufficient assets to pay the legacy. All debts and 
other legacies had been paid. The legatee sued the executor 
in the South Carolina courts for his legacy with South Carolina 
interest. It was held to be a case for the exercise of the court's 
discretion, and the court decreed in favor of the legatee, giving 
him seven per cent interest.' 

If in a case of this kind there should be serious doubt aa to 
wh&t is the lex domicilii, it will generally be the duty of the 
court of ancillary administration to remit to the domicil for 
distribution, so that the domiciliary courts may interpret their 
own law." 

Even with respect to creditors of the estate, though residents 
of the State of ancillary administration, the importance of the 
domiciliary administration, as affording a broader view of the 
total assets and liabilities of the decedent, is recognized by 
some of the decisions to the extent that, if the estate is reported 
insolvent by the domiciliary administration, the creditors in 
the States of ancillary administration will only be allowed their 
debts pro rata with all other creditors. They will not be paid 
in full at the expense of other creditors who have filed their 
claims in the domiciliary courts. ^^ This is certainly a liberal 

» 25 S. C. 1, 60 Am. Rep. 478. 

' It is submitted that in the matter of interest the court erred. For it 
is generally conceded that the distribution, even if it occurs in the State of 
ancillary administration, should be made in accordance with the law of the 
domicil. See cases supra. The interest the legacy was to bear was not a 
question of administration, but of distribution. Or if it be taken as a ques- 
tion of the interpretation of the will, it is well settled that ambiguous phrases 
in a will ("interest") should be interpreted in accordance with the law of 
the testator's domicil. Post, § 145. 

w Rockwell V. Bradshaw, 67 Conn. 9, 34 Atl. 758, 761 ; Parsons v. Lyman, 
20 N. Y. 103. 

u Dawes v. Head, 3 Pick. (Mass.) 128; Davis v. Estej', 8 Pick. 475. 



§ 114 STATUS OP QUABDIAN8. 257 

doctrine, but it would seem rather to overlook the real basis of 
all ancillary administration, the protection of home creditors.^'^ 

After the completion of the administration of the decedent's 
estate, both ancillary and domiciliary, follows the distribution 
of the residuum. The proper law governing this distribution, 
whether it is made in the State of ancillary administration or 
in the domicil, is the lex domicilii of the decedent, as will more 
fully appear hereafter." 

§ 114. Status of Guardians. — These fiduciaries, like ad- 
ministrators, are quasi-officers of the law, even when appointed 
by the individual, as in the case of testamentary guardians. 
They are also clothed in some measure with a like dual char- 
acter, being created partly for the protection of the ward and 
partly for the protection of third persons in their dealings with 
the ward. Again, the status of guardianship, like that of ad- 
ministration, is a local and temporary status, not a permanent 
and universal one, and hence the powers and liabilities of the 
guardian are for the most part local to the place of his appoint- 
ment and qualification. 

There are however several important distinctions between the 
two classes of fiduciaries. In the first place, the relation of 
guardianship applies as well to the custody and control of the 
person of the ward, as of his property, while the status of ad- 
ministration is applicable only to property. In the second 
place, while the status of administration is created chiefly for 
the benefit and protection of creditors of the decedent, and other 
third persons, the main purpose of the guardian is to protect 
the infant, and the relation towards third persons, though ex- 
istent and recognized, is only incidental. In the third place, 
as respects property rights, there is a distinction between the 
two classes of fiduciaries with regard to the title to the property 
held by them. As it has been expressed by the Supreme Court 
of the United States in a leading case on this subject: ^ '' The 
case of a guardian differs from that of an executor or trustee 

12 The United States Supreme Court has taken the opposite view, giving 
resident creditors precedence in such cases. Smith v. Bank, 5 Pet. 518, 527. 
» Post, §§ 139 et seq. 
1 Lamar r. Micou, 112 TJ. S, 451. 

17 



258 STATUS OP GUARDIAN — WAKD'S PERSON. § 115 

under a will. In the one case the title in the property is in 
the executor or the trustee; in the other the title in the prop- 
erty is in the ward, and the guardian has only the custody and 
management of it, with power to change its investment. The 
executor or trustee is appointed at the domicil of the testator, 
the guardian is most fitly appointed at the domicil of the ward, 
and may be appointed in any State in which the person or prop- 
erty of the ward is found. The general rule which governs the 
administration of the property in the one case may be the law 
of the testator's domicil, in the other case it is the lex domicilii 
of the ward." 

Whether the guardian be viewed as the custodian of the 
ward's person or of his property, it is unquestionably true that 
he is "most fitly appointed at the domicil of the ward," for 
that is the legal situs both of the ward and of his personalty. 
The guardian there appointed is regarded generally as the prin- 
cipal guardian, to whom other guardians appointed elsewhere 
are answerable and ultimatelj' accountable with respect to the 
ward's property.^ 

Since the guardian, in the absence of a parent, is intrusted 
with the custody of the ward's person and the care of his edu- 
cation, as well as with his property, the proper law governing 
the relation may best be examined with reference to (1) The 
care of the ward's person; (2) The care of his estate. 

§ 115. Status of Guardian with respect to Ward's Person. 
— The legal situs of the ward being his domicil, the guardian 
appointed there is regarded as having peculiar powers with re- 
spect to the ward's person. Although the status is not a per- 
manent one, and other guardians, upon occasion, may be 
appointed in other States where the ward may happen to have 
his actual situs, even when his property is not in question, or 
though he have no property there, yet the authority of such 
a guardian is always local only. He has no general authority 
over the ward's person which will be recognized in other States.^ 

But the authority of the domiciliary guardian over the ward's 

2 Lamar v. Micou, 112 U. S. 452; Earl v. Dresser, 30 Ind. 11, 95 Am. Dec. 
660, 665. See Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. &Q, 71. 
1 Johnstone v. Beattie, 10 CI. & F. (H. L.) 42 ; Woodworth v. Spring, 



§ 115 STATUS OF GUARDIAN — WARD's PERSON. 259 

person, even when the latter is actually in another State, is to a 
certain extent recognized everywhere. Though a local guar- 
dian has been appointed in the State of the ward's actual situs, 
it is believed to be the better view that the authority of the 
domiciliary guardian over the ward's person is paramount, un- 
less the welfare of the child or some other very grave reason 
intervenes.' , 

The English case of Nugent v. Vetzera * strongly illustrates 
the respect shown to the authority of the domiciliary guardian 
even when the ward is in a foreign country. An Austrian 
subject of wealth and position married an Englishwoman, and 
had ten children. The husband died, and the mother sent 
some of the children to England to be educated. One of the 
daughters married an Englishman. The mother died, and a 
guardian was appointed by an Austrian court, which ordered 
that the children should be brought back to Austria to be edu- 
cated. The married daughter caused herself to be appointed 
the guardian of the children in England, and resisted the at- 
tempt to take them back to Austria. Both guardians were fit 
and suitable persons, and the children desired to remain in 
England. But the English court held that it would be con- 
trary to comity as well as to policy to refuse the domiliciary 
guardian leave to remove them, as it would tend to check inter- 
course between the nations, and would react harshly upon Eng- 
lish infants abroad. 

4 Allen (Mass.), 321 ; People v. Baker, 76 N. Y. 78, 85, 32 Am. Rep. 274. See 
Kelsey v. Green, 69 Conn. 291, 37 Atl. 679 ; Rogers v. McLean, 31 Barb. 
(N. Y.) 304. 

2 Kraft V. "Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. r)69, .571 ; Towus- 
end V. Kendall, 4 Minn. 412, 77 Am. Dec. 534, 537 ; Woodwoith v. Spring, 
4 Allen (Mass.), 321 ; Wood v. Wood, 5 Pai. Gh. (N. Y.) 596, 28 Am. Dec. 
451 ; Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66, 71 ; In re 
Rice, 42 Mich. 528, 4 N. W. 284, 285 ; Kelsey v. Green, 69 Conn. 291, 87 
Atl. 679 ; Nugent v. Vetzera, L. R. 2 Eq. 704 ; Dawson v. Jay, 3 DeG. M. & 
G. 764. This is denied outright by some of the decisions, which hold that no 
foreign guardian has any control whatever over the person or property of his 
ward in another State, and that he must be first reappointed there as guardian. 
Story, Confl. L. § 499 ; Johnstone v. Beattie, 10 CI. & F. 42 ; Rogers v. 
McLean, 31 Barb. (N. Y.) 304. See Hoyt v. Sprague, 103 U. S. 613, 631. 

» L. R. 2 Eq. 704. 



260 STATUS OF GUARDIAN — WARD's PERSON. § 115 

In Woodworth v. Spring,* a child domiciled in Illinois, and 
there under guardianship, was brought to Massachusetts with 
the consent of his guardian, by an aunt who there caused 
herself to be appointed his guardian, without the knowledge 
or consent of the domiciliary guardian. The latter after- 
wards sought to recover possession of the child by a habeas 
corpus proceeding. The court, while denying the petition on 
the ground that such a course was best for the child, remarked : 
"But it by no means follows that the foreign guardian's claim 
to the care of the child and the control of his person and the 
privilege of removing him from this State is to be absolutely 
denied. On the contrary, it is the duty of the courts of this 
State, in the exercise of that comity which recognizes the laws 
of other States when they are consistent with our own, to con- 
sider the status of guardian, which the petitioner holds under 
the laws of another State, as an important element in determin- 
ing with whom the child is to continue. It would not do to 
say that a foreign guardian has no claim to his ward in this 
State. If such were the rule, a child domiciled out of the State, 
sent hither for purposes of education, or brought here by force 
or fraud, or coming by stealth, might be emancipated from the 
control of his rightful guardian. Kor does the appointment of a 
guardian in this State operate to bar any decree of the court in 
favor of the foreign guardian." 

Kelsey v. Green ® was a contest between a New York and a 
Connecticut guardian over the custody of a child actually located 
in Connecticut. The child had lived there several years with 
its mother (now dead). The father and the family had lived in 
New York, where he was convicted of felony and confined in 
the penitentiary. Upon his release he caused a man in New 
York to be appointed there the guardian of the child. This 
man, claiming that he was the domiciliary guardian, petitioned 
the Connecticut court for a habeas corpus to recover the posses- 
sion of the child from the Connecticut guardian. The court 
denied the petition in the interests of the child. 

In conclusion, it may be not amiss to state that, however 
confined the authority of a domiciliary guardian may be ovei 

* 4 AUen (Mass.), 321. » 69 Conn. 291, 37 Atl. 679. 



§116 STATUS OP GUARDIAN — WARD'S PROPERTY. 26:| 

the person of his ward in another State, the parents (natural 
guardians) have no such restricted authority. It is universally 
conceded that they have in general the same control over their 
children when abroad that they have at home.® 

§ 116. Status of Guardian with respect to "Ward's Prop- 
erty. — So far as concerns the ward's property, the appointment 
of a guardian, though primarily, is not solely for the protection 
and benefit of the ward. He may be brought into business re- 
lations with third persons, whose rights the law must protect. 
It follows therefore, as in the case of executors and adminis- 
trators, nowithstanding the general legal fiction that person- 
alty has its legal situs at the domicil of the owner, that if the 
ward should own personalty in other States, before any one can 
deal with the property there as guardian of the ward, he must 
be appointed guardian with all the formalities and securities 
required by the law of the actual situs of the property. It is 
generally admitted that the appointment of a guardian, whether 
in the ward's domicil or elsewhere, gives him no exterritorial 
authority over the ward's personal property.^ 

And if such is the rule with respect to personal property, 
a fortiori is it the rule where the ward's property is immovable. 
Here it is well settled that the lex situs of the land governs, 
and that law usually requires a guardian to qualify there before 
he can act with respect to land.'' 

6 Johnstone v. Beattie, 10 CI. & F. 42 ; Townsend v. Kendall, 4 Minn. 412, 
77 Am. Dec. 534. But see ante, § 83. 

1 Kraft V. Wickey, 4 Gill & J. (Md. ) 332, 23 Am. Dec. 569, 571 ; Rogers 
V. McLean, 31 Barb. (N. Y.) 304 ; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 
153, 156 ; Lamar v. Micou, 112 U. S. 452 ; Hoyt v. Sprague, 103 U. S. 613, 
631. There is some tendency to give effect to the domiciliary guardianship 
in cases where citizens of the situs are not interested. See Lamar v. Micou, 
112 U. S. 452 ; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534 ; Grim'- 
mett V. Witherington, 16 Ark. 377, 63 Am. Dec. 66 ; Earl v. Dresser, 30 Ind. 
11, 95 Am. Dec. 660, 664-665. 

2 Whart. Confl. L. § 268 ; Hoyt v. Sprague, 103 U. S. 613, 631 ; Grim- 
mett i;. Witherington, 16 Ark. 377, 63 Am. Dec. 66, 69 ; Rogers v. McLean, 
31 Barb. (N. Y.) 304. It is said that a guardian appointed in one State haa 
no right even to receive the profits of the ward's real estate located elsewhere, 
unless he has been duly appointed guardian in the State where the land lies, 
Story, Confl. L. § 504. See Smith v. Wiley, 22 Ala. 396, 58 Am. Dec. 262. 



262 STATUS OF GUARDIAN — WARD's PROPERTY. § 116 

But after the claims of all third persons are disposed of, or if 
none arise, the general principle, as between guardian and ward, 
is the same that regulates the accountability of the executor or 
administrator to the legatees or distributees. The law of the 
legal situs of the personalty controls questions arising solely 
between guardian and ward; that is, the lex domicilii of the 
owner (the ward). 

Thus, in Lamar v. Micou,' the guardian was appointed in New 
York, while the wards were domiciled in another State. He 
invested the wards' money in a manner that was lawful under 
the New York law, but rendered him responsible for its safety 
under the law of the wards' domicil. The court held that he was 
accountable according to the latter law. In the course of the 
opinion, Mr. Justice Gray says : ' ' The form of accounting, so 
far as concerns the remedy only, must indeed be according to 
the law of the court in which relief is sought; but the general 
rule by which the guardian is to be held responsible for the in- 
vestment of the ward's property is the lex domicilii of the 
ward." 

If the ward has property in his domicil, it is generally the 
duty of the domiciliary, rather than of an ancillary, guardian 
to maintain him, even though he be actually in another State, 
and a fortiori, if he is in the State of his domicil.* But if he 
has no property in the State of his domicil, so that the principal 
guardian is unable to maintain him, an ancillary guardian will 
then be permitted to give or send him funds for his mainten- 
ance, subject to a strict accountability.® 

The principles regulating the powers, duties, and liabilities 
of the committees or guardians of idiots, insane persons, con- 
victs, etc., are closely analogous to those controlling the ordi- 
nary relation of guardian and ward. In general, however, only 
the property interests of the ward, not his person, are intrusted 
to this class of fiduciary.* 

» 112 U. S. 452. 

< Kraft V. Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. 569. 
' Stephens v. James, 1 Mylne & Keene, 627. 

• See Rogers v. McLean, 31 Barb. (N. Y.)304; Glaser v. Priest, 29 Mo. 
App. 1 ; Schneller v. Vance, 8 La. 506, 28 Am. Dec. 140. 



§ 117 STATUS OP BBCEIVERS. 263 

§117. Status of Receivers — In General. — Receivers are 
fiduciaries appointed by a competent court to take charge of and 
control property litigated, pending the litigation. The appoint- 
ment of such a fiduciary is usually incidental to the winding 
up of insolvent partnerships and corporations. Through the ap- 
pointment of a receiver the court obtains possession and control 
of the litigated property, preserves it from waste and destruc- 
tion, secures and collects the proceeds and profits, and ulti- 
mately distributes it according to the rights and priorities of 
those entitled. 

A receiver is nothing more than an officer or creature of the 
court that appoints him. His acts are the acts of the court, 
whose jurisdiction may be aided, but not in general enlarged or 
extended, by his appointment. His powers are for the most part 
only coextensive with the authority of the court conferring 
upon him his official character.^ 

It will be observed that the status of a receiver is to a certain 
extent assimilated to that of the fiduciaries already discussed. 
But the dual character of the status is in this instance mini- 
mized, if not altogether lost. His appointment is principally, 
if not exclusively, for the benefit and protection of creditors; 
only in a very slight degree, if at all, do the original owners 
of the property profit by his appointment. 

It follows therefore that the receiver's status is more strictly 
local than that of either administrator or guardian. Even here, 
however, there is the distinction between primary or principal 
and ancillary receiverships. The first court which assumes 
jurisdiction and appoints a receiver is the court of " principal " 
administration, while the courts of other States may appoint 
"ancillary receivers" of the property there situated.^ The 
position of a receiver may be likened to that of an assignee in 
involuntary bankruptcy, rather than to that of an administrator 
or guardian.' 

Receivers, being mere officers of the court appointing them, 
it will be readily seen that, inherently and as a matter of right, 

1 Catlin V. Wilcox Silver Plate Co., 123 Ind. 477, 8 L. R. A. 62. 

2 Reynolds v. Stockton, 140 U. S. 255. 

» See Booth w. Clark, 17 How. 32S2 ; post, §§ 137, 138. 



264 STATUS OP BBCEIVERS. § 117 

they can have no title, power, or authority beyond the limits of 
that court's jurisdiction.* 

But upon principles of comity, always recognized and in 
general acted upon, receivers appointed in one jurisdiction are 
permitted elsewhere to protect interests and enforce claims of 
which they are the custodians.* But the title of the foreign re- 
ceiver to property in a State whose residents are creditors of the 
insolvent concern will not be recognized there as against them, 
at least if they are not parties to the foreign litigation out of 
which the receivership grew,* In order to give him such rights 
against citizens of the State where the property in question is 
located, he must be appointed a receiver by its courts.' 

So, if the recognition of the foreign receivership would con- 
travene the policy of another State, it will not be recognized 
there.* Nor will it be recognized, even as against non-resident 
creditors who have attached or otherwise secured a lien upon the 
property before it was actually vested in the receiver,* unless 
perhaps where the lien creditor is a citizen of the same State 
whose court has appointed the receiver.^" 

Property situated in the State of his appointment becomes 
vested in the receiver by the very fact of his appointment, with- 
out possession thereof actually taken by him ; but as to property 
outside of that State, in those cases where the authority of a for- 



* Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62 ; Boulware r. 
Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ; Booth v. Clark, 17 
How. 334. 

6 Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ; 
Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 397; Pond v. Cooke, 45 Conn. 
126, 29 Am. Rep. 668; Willetts r. Waite, 25 N. Y. 577; Chicago, etc. R. R. 
Co. V. Packet Co., 108 111. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 

8 Baxt. (Tenn.) 580, 35 Am. Rep. 716. 

« Catlin r. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62; Humphreys 
V. Hopkins, 81 Cal. 551, 6 L. R. A. 792 ; Boulware v. Davis, 90 Ala. 207^ 

9 L. R. A. 602, 6 Am. St. Rep. 189 ; Willetts v. Waite, 25 N. Y. 577. 

' See Farmers' Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 31 L. R. A. 403, 
42 N. E. 707. 

» Boulware v. Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189. 

» Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62. 

" Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395. See post, § 138. 



§ 117 STATUS OF BECEIVBBS. 265 

eign receiver will be recognized, he will not be regarded as hav- 
ing acquired title until he has actually gained control over the 
property. ^^ 

If, being vested with the title to the property in the State of 
his appointment, the receiver should afterwards remove it to 
another State, where it is attached by creditors, whether resi- 
dent or non-resident, his title having already fully vested is 
superior.^' 

In the absence of conflicting claims of creditors in other juris- 
dictions, it is generally conceded that a foreign receiver may deal 
with the insolvent's property as if it were in the State of his ap- 
pointment.^' As between two courts of concurrent jurisdiction, 
such as a Federal court and a State court in the same State, both 
having jurisdiction of the cause, the settled rule now is that the 
court first obtaining jurisdiction of the res is entitled to retain 
it until the litigation is terminated, whether or not a receiver 
actually has possession of the property.^* Indeed the same prin- 
ciple applies in other cases also where a conflict of jurisdiction 
between the two classes of courts is threatened. ^^ 

While these general powers are usually recognized as conferred 
upon foreign receivers, it will sometimes be convenient, and 
even necessary, to appoint ancillary receivers in other jurisdic- 

" As against citizens of the State of his appointment, he stands vested with 
the title to all the property, even that which is outside the court's jurisdiction. 
See Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 395 ; Osgood v. Maguire, 61 
N. Y. 524 ; Bagby t;. R. R. Co., 86 Penn. St. 291. 

12 Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Cagill v. Wooldridge, 
8Baxt. (Tenn.) 580, 35 Am. Rep. 716; Chicago, etc. R. R. Co. v. Packet 
Co., 108 111. 317, 48 Am. Rep. 557. See Humphreys v. Hopkins, 81 Cal. 551, 
6 L. R. A. 792 ; Alley v. Caspari, 80 Me. 234, 6 Am. St. Rep. 185, note. 

18 Willetts V. Waite, 25 N Y. 577, 584. 

1* Shields v. Coleman, 157 U. S. 168 ; Hamilton v. Chouteau, 6 Fed. 339. 
But where the State receivership ceases before the new cause of action arises, 
the federal courts may then assume jurisdiction. Andrews v. Smith, 5 Fed. 
833. And where a receiver of a State court acts unlawfully he maybe sued in 
tort in a federal court. Curran v. Craig, 22 Fed. 101. 

16 Thus, in Byers v. McAuley, 149 U. S. 608, it was held that property in 
the hands of an administrator appointed by a State court could not be di» 
tarbed by process issued from a federal court. 



266 SUITS BY AND AGAINST RECEIVERS. § 118 

tions where there is property of the insolvent.^* In such case, 
as in the corresponding case of administrators, the two receivers 
are not in privity, and a judgment obtained against one in the 
State of his appointment will not be binding upon the other." 
The ancillary receiver, after settling with the creditors within 
his jurisdiction, is accountable to the principal receiver for the 
balance, as in other cases of administration. 

§ 118. Suits by and against Receivers. — A receiver, strictly 
speaking, has no more right to sue in a foreign State than to do 
any other act. But if a suit instituted by a foreign receiver will 
not work a detriment or an injustice to the citizens of the forum, 
he will generally, upon principles of comity, be permitted to ap- 
peal to its courts.^ 

And upon going into a foreign jurisdiction, or sending the 
trust property thither, he will be protected by the courts of that 
State in his right to the property which, in the performance 
of his duty, he has carried or sent thither. In such cases the 
courts, while protecting their own citizens from wrong, will not 
permit them to infringe the comity of nations and themselves 
perpetrate a wrong upon the receiver and the court that has 
appointed him.* 

In respect to suits instituted against receivers, it is a general 
rule that these officials cannot be sued without the leave of the 
appointing court. A suit instituted without such leave is a 
contempt of the appointing court, which, if it can reach the 
plaintiff's person, may restrain him by an injunction or attach 

M Farmers' Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 325, 31 L. R. A. 403, 
42 N. E. 707; Reynolds v. Stockton, 140 U. S. 255. 
" Reynolds v. Stockton, 140 U. S. 255. 

1 Booth V. Clark, 17 How. 322 ; Oilman v. Ketcham, 84 Wis. 60, 54 N. W. 
395, 397; Boulwarer. Davis, 90 Ala. 207, 9 L. R. A 602, 6 Am. St. Rep. 189; 
Petersen v. Chemical Bank, 32 N. Y. 21, 43, 88 Am. Dec. 298 ; Toronto, etc. 
Trust Co. V. R. R. Co., 123 N. Y. 37, 47, 25 N. E. 198 ; Woodward v. Brooks, 
128 111. 222, 20 N. E. 685 ; Humphreys v. Hopkins, 81 Cal. 551, 6 L. R. A. 
792 ; Catlin r. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62. 

2 Pond V. Cooke, 45 Conn. 126, 29 Am. Rep. 668 ; Chicago, etc. R. R. Co. 
V. Packet Co., 108 111. 317, 48 Am. Rep. 557; Cagill v. Wooldridge, 8 Baxt. 
(Teun.) 580, 35 Am. Rep. 716. But see Humphreys v. Hopkins, 81 Cal. 551, 
6 L. R. A. 792. 



§ 118 SUITS BY AND AGAINST BBCEIVERS. 267 

him for contempt, or both, or may render the proceedings insti- 
tuted by the plaintiff of no effect within its jurisdiction.' Such 
is the view taken by the courts of the State where the receiver 
is appointed. 

Whether or not a foreign court will take the same view if a 
creditor attempts to seize the property of the insolvent in its 
jurisdiction without leave of the court appointing the receiver, 
is a matter about which there is some conflict of opinion. It 
would seem quite clear that such foreign court would not regard 
the appointment of the receiver in cases where its own citizens 
attach the property within its jurisdiction.* 

But opinion is divided upon the question whether citizens 
of the State where the receiver is appointed shall be per- 
mitted to disregard the orders and jurisdiction of their own 
home courts, and without their leave sue the receiver in another 
State. Some of the courts take the view that want of leave to 
sue the receiver is not a jurisdictional defect; but that such 
suit may be maintained, the plaintiff taking the risk of the 
appointing court being able to reach him effectively by injunc- 
tion or contempt proceedings.^ But the more recent and the 
better opinion is in favor of denying to foreign courts all juris- 
diction of suits by home creditors against a home receiver ap- 
pointed by the home courts, without the latter's leave first 
obtained.® 

• Winswall v. Sampson, 14 How. 65; Peale v. Phipps, 14 How. 368; 
Davis V. Gray, 16 Wall. 203 ; Barton v. Barbour, 104 U. S. 126 ; Farmers' 
Loan & T. Co. v. Tel. Co., 148 N. Y. 315, 31 L. R. A. 403, 42 N. E. 707. 

* Catlin V. Wilcox Plate Co., 123 Ind. 477, 8 L. R. A. 62 ; Boulware v. 
Davis, 90 Ala. 207, 9 L. R. A. 602, 6 Am. St. Rep. 189 ; Booth v. Clark, 17 
How. 322; Reynolds v. Adden, 136 U. S. 353, 354. It is believed also that 
the same rule will prevail where the attaching creditors are citizens of States 
other than that where the receiver is appointed. Cole v. Cunningham, 133 
U. S. 107, 127. See post, § 138. 

' Kinney v. Crocker, 18 Wis. 74 ; St. Joseph, etc. R. R. Co. v. Smith, 19 
Kan. 225 ; Allen v. Central R.R. Co., 42 la. 683. 

6 Barton v. Barbour, 104 U. S. 126, 128 ; Peale v. Phipps, 14 How. 368 ; 
Kennedy v. R. R. Co., 3 Fed. 97; Melendy v. Barbour, 78 Va. 544, 558 ; Gil- 
Dun V. ketcham, 84 Wis. 60, 54 N. W. 395. See post, § 138. 



268 SITUS OF PERSONALTY. § 119 



PART IV. 

SITUS OF PERSONAL PROPEBTT. 

§119. Preliminary — Outline of Discussion. — It has al- 
ready been observed that the legal and the actual situs of land 
or immovable property, by reason of the quality of immova- 
bility, are one and the same. By no fiction of law nor theory 
of public policy can land be regarded as constructively located 
at any other place than its actual situs. It naturally follows 
that every question affecting the title to land must be governed 
by the law of the place where the land is situated.^ 

But with that class of property known as personal property 
it is otherwise. Tangible chattels are movable, and may be 
carried or sent from one State to another, and therefore may 
at different times be subjected to different laws at the will or 
caprice of the owner. By reason of its movability, personal 
property cannot be said to have any fixed and definite locality 
like lands. And if this is true of tangible chattels, how much 
more true is it of those intangible interests known as choses in 
action, or debts. These cannot be said in strictness to have 
any situs at all. 

Yet it is essential, for the purposes of business, that some 
situs should be assigned to all these classes of property. They 
are as susceptible of being dealt with in the ordinary transac- 
tions of life as real property; in fact transactions with respect 
to them are much more frequent. Such transactions must be 
Pleasured by some law, and that law can only be furnished by 
the situs of the property and of the transactions relating to it. 

We shall devote the next chapter to a* consideration of the 
rules by which to determine the situs of tangible chattels and 

1 Ante, §§ 11, 12. 



§ 119 SITUS OP PERSONALTY. 269 

debts, and in the succeeding chapters we will inquire into "the 
proper law " governing the various transactions that may arise 
with regard to personal property, including (1) voluntary trans- 
fers of personalty inter vivos ; (2) involuntary transfers of per- 
sonalty inter vivos ; (3) transfers by succession to an intestate's 
personal estate; (4) transfers by will. 



270 SITUS OF TANGIBLE CHATTELS. § 120 



CHAPTER X. 

SITUS OF CHATTELS AND OF DEBTS. 

§ 120. Legal and Actual Situs of Tangible Chattels. — Be* 

cause of their characteristic of movability, it has been a time- 
honored maxim both of the common and the Roman law, arising 
from considerations of general convenience, that chattels are to 
be presumed in legal contemplation to follow the situs of the 
owner, since it is always in his power to carry or have them 
sent thither. This maxim is expressed in the phrase, "Mobilia 
personam sequuntury 

As was said by an eminent English judge, ^ ''It is a clear 
proposition, not only of the law of England, but of every 
country in the world where the law has the resemblance of 
science, that personal property has no locality. The meaning 
of that is, not that personal property has no visible locality, but 
that it is subject to that law which governs the person of the 
owner. With respect to the disposition of it, with respect to 
the transmission of it, either by succession or act of the party, 
it follows the law of the person." 

The legal situs of chattels then is the situs of the owner. 
But, as has been shown in a previous section,^ the owner may 
possess, for different purposes, two different localities at the 
same time. For some purposes, the actual situs of the person 
at a given time will furnish the applicatory law (though he re- 
sides in another State). For other purposes, the legal situs 
(or domicil) of the party will furnish the proper law. 

It will be remembered also that the actual situs of the person 
is looked to whenever the transaction to whicli the law of his 
situs is applied is voluntarily and deliberately entered into bjf 

1 Lord Loughborough, in Sill v. Worswick, 1 H. Bl. 690. 
« Ante, § 18. 



§ 120 SITUS OF TANGIBLE CHATTELS. 271 

him, because he thereby deliberately submits himself to the 
sovereignty of that State, which is complete within its own 
territory, and which a just and proper comity demands should 
be respected in other States. But if the matter in question is 
the result, not of his own voluntary and deliberate act, but of 
some act of the law, if his participation in the transaction is 
involuntary, it is his legal situs or domicil that provides the 
governing law, not his actual situs ; for without his deliberate 
and voluntary submission to the temporary sovereignty of an- 
other State, his domiciliary law follows him, whithersoever he 
may go.' 

It follows, therefore, since the legal situs of chattels is the 
situs of the owner, that the legal situs of the chattels will be 
either the actual situs of the owner or his legal situs (or domicil), 
according as the particular transaction affecting the chattels is a 
voluntary or an involuntary transaction, that is, according as 
his participation therein is active, deliberate and voluntary, or 
passive and involuntary. 

Thus where the owner of chattels, being domiciled in one 
State, goes into another State and there voluntarily enters into 
a transaction disposing of them to another, the chattels, for the 
purposes of that transaction, are to be regarded in general as 
legally situated in the State where the transaction takes place, 
whose law accordingly will govern its validity and effect.* But 

8 Ante, § 18. 

* Crapo V. Kelly, 16 Wall. 610, 622 ; Barnett v. Kinney, 147 U. S. 476, 
481 ; Langworthy •». Little, 12 Cush. (Mass.) 109, 111 ; Frank v. Bobbitt, 155 
Mass. 112, 29 N. E. 209 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 
1148, 1150 ; Emery v. Clough, 63 N. H. 552, 4 Atl. 796 ; Hornthall v. Bur- 
well, 109 N. C. 10, 13 S. E. 721, 722; Long v. Girdwood, 150 Penn. St. 413, 
24 Atl. 711, 23 L. R. A. 33 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl. 
431 ; Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636 ; Guillander v. 
Howell, 35 N. Y. 657, 663 ; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 
462 ; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472 ; Weinstein v. Freyer, 
93 Ala. 257, 9 So. 285 ; Marvin Safe Co. v. Norton, 48 N. J. L. 412, 57 Am. 
Rep. 566, 568, 7 Atl. 418 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119 ; Dial 
V. Gary, 14 S. C. 573, 37 Am. Rep. 737, 738 ; State v. O'Neil, 58 Vt. 140, 5« 
Am. Rep. 557 ; Ames Iron Works v. Warren, 76 Ind. 512, 40 Am. Rep. 258. 
Many of these are cases where the owner was in his domicil at the time of the 



272 SITUS OP TANGIBLE CHATTBLS. § 120 

for the purposes of involuntary transactions touching the chat- 
tels, matters arising by operation of law, without the consent or 
against the will of the owner, as transfers by marriage, by in- 
voluntary assignments in bankruptcy, by succession to a dece- 
dent, etc., the legal situs of the chattels is the legal situs of the 
owner (his domicil), regardless of his actual situs, and hence 
the law of his domicil, not of his actual situs at the time the 
transfer occurs, is the ** proper law" to regulate the validity 
and effect of such transfer.' 

But although the legal situs of the chattels will furnish the 
"proper law" to regulate all kinds of transactions relating 
thereto, yet there are occasions when the lex fori will be substi- 
tuted for the proper law, in the cases where the general excep- 
tions to the enforcement of a foreign law apply. In such cases 
the forum and the actual situs of the chattels will usually be 
identical, and hence it comes about in these exceptional cases 
that the transaction may after all be governed by the law of the 
actual situs of the chattels, which may be entirely distinct both 
from the legal and from the actual situs of the owner. Indeed, 
these exceptional cases arise so frequently as almost in some 
cases to obscure the operation of the law of the legal situs of the 
chattels altogether,' leading a few authorities to aver that the 

transaction, so that his legal and actnal situs coincide, while others are cases 
in which the owner was abroad when he dealt with the chattels. 

^ Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530 ; Williams v. Saun- 
ders, 5 Coldw. (Tenn.) 60, 76-77 ; Union Bank v. Hartwell, 84 Ala. 379, 
4 So. 156 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442 ; Russell v. 
Hooker, 67 Conn. 24, 34 Atl. 711, 712 ; Ames Iron Works y. Warren, 76 Ind. 
512, 40 Am. Rep. 258, 259 ; Graham v. Bank, 84 N. Y, 393, 399, 38 Am. 
Rep. 528 ; Cross v. Trust Co., 131 N. Y. 330, 339 ; Guillander v. Howell, 35 
N. Y. 657, 658 ; Petersen v. Chemical Bank, 32 N. Y. 21, 46, 88 Am. Dec. 
298 ; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Milne v. Moreton, 
6 Binn. (Penn.) 353, 361, 6 Am. Dec. 466 ; Black v. Zacharie, 3 How. 483, 
514 ; Sickles w. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 874. 

« Green v. Van Buskirk, 5 Wall, 307, 312 ; Smith v. Bank, 5 Pet. 518, 
524 ; Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722 ; Speed v. May, IJ" 
Penn. St. 91, 94, 55 Am. Dec. 540 ; Paine v. Lester, 44 Conn. 1P6, 26 Am. 
Rep. 442, 444 ; Edgerly v. Bush, 81 N. Y. 199, 203 ; Barth v. Backus, 140 
N. Y. 230, 29 N. E. 209 ; May v. Wanuemacher, 111 Mass. 202, 209 ; Ames 
Iron Works r. Warren, 76 Ind. 512, 40 Am. Rep. 258 ; Toof v. Miller, 78 



§ 120 SITUS OF TANGIBLE CHATTELS. 273 

law of the actual situs of chattels is the " proper law " to govern 
transactions relating to them.' 

But cases may arise in which it becomes impossible to assign 
an actual situs to chattels, that is, a situs subject to any par- 
ticular law. In such cases, the chattel is relegated to its legal 
situs at the actual or legal situs of the owner. Thus a ship 
upon the high seas, though actually situated upon the seas, can- 
not be said to have an actual situs there or elsewhere, in the 
sense here used, because the high seas are subject to no particu- 
lar law.* 

With respect to chattels aboard a ship on the high seas, they 
are generally deemed to be actually located in the country to 
which the ship belongs, and whose flag she flies, upon the well 
known principle of international law, that while upon the high 
seas even a merchant vessel is a floating part of the territory to 
which she belongs.' 

But as to the vessel itself, when upon the high seas, though 
for purposes of international law it is to be regarded as part of 
the territory of the State to which it belongs, yet from the 
standpoint of a mere chattel, property owned by an individual, 
it is believed that it must be regarded as located at the actual 
situs or at the legal situs (or domicil) of the owner, according 
as the ^transaction respecting it is voluntary or involuntary, 
even though the owner's situs be a State other than that wherein 
the vessel is registered." But after the ship, if it be a mer- 

Miss. 756, 19 So. 577; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119; In re 
Dalpay, 41 Minn. 532, 43 N. W. 564. 

7 Whart. Confl. L. §§ 345, 346 ; Guillander v. Howell, 35 N. Y. 657. See 
ante, § 14. 

8 The same may probably be affirmed of chattels situated in a barbarous or 
unpopulated territory, subject to no civilized law. See Thuret v. Jenkins, 
7 Mart. (La.) 318, 353, 12 Am. Dec. 508. 

» Whart. Confl. L. § 356 ; Crapo v. Kelly, 16 Wall. 610, 625. In the 
United States, whose flag covers many States, the State where the vessel is 
registered seems to be the one to which she legally belongs. Whart. Confl. L, 
§357. 

w Crapo V. Kelly, 16 Wall. 610, 622 ; Thuret r. Jenkins, 7 Mart. (La.j 
318, 353, 12 Am. Dec. 508; Moore v. Willett, 35 Barb. (N. Y.) 663, 665. 
But see Whart. Confl. L. § 357. 

18 



274 SITUS OP DEBTS. § 121 

chant vessel, has arrived in a port, or within marginal waters, 
it (and probably its cargo also) will be deemed to have its actual 
situs in the country in whose territory it is.^^ 

In conclusion, it must be observed that the actual situs of 
chattels will always be looked to, where the question is one of 
jurisdiction of a court over a 7'es. It is the actual, not the legal, 
situs of property that gives a court jurisdiction to pronounce 
a judgment or decree concerning it. Thus the court of the 
owner's domicil or of his actual situs will not assume jurisdic- 
tion, in a proceeding in rem, over chattels actually situated in 
another jurisdiction; nor will a court of a State where a chattel 
is actually situated refuse jurisdiction of such a proceeding with 
respect thereto, merely because the actual or legal situs of the 

owner is elsewhere, and the chattel has its legal situs in another 
State.i2 

§ 121. Iiegal and ActUcil Situs of Debts. — As has been 
shown in the preceding section, there is usually no difficulty in 
ascertaining the actual situs of tangible chattels, whenever it 
becomes necessary to discriminate between the actual and legal 
situs thereof. A tangible chattel occupies space, and may have 
a definite locality of its own. 

But with respect to intangible chattels and choses in action, 
such as bonds, notes, bills of exchange, accounts, and debts of 
all sorts, certificates of stock, etc., different principles must be 
applied. Of course, the material evidence of the right, that is, 
the paper on which the promise to pay is written, may have an 
actual locality : it may occupy space. But this is merelj' the 
evidence of the right, the value of which lies in the fact that it 
will suffice to entitle the owner to the valuable property it rep- 
resents. The value of the property itself lies in the right of 
the creditor to enforce the obligation of the debtor to pay the 
debt. Such intangible rights can of course have no real situs, 
since they exist only in the mind's eye, but it frequently be- 

" Crapo V. Kelly, 16 Wall. 610, 622 ; Olivier v. Townes, 14 Mart. (La.) 98. 

I'* This proposition scarcely needs authority for its support. See Rock- 
well V. Bradshaw, 67 Conn. 9, 34 Atl. 758, 761 ; Cronan v. Fox, 50 N. J. 417, 
14 Atl. 119 ; Reynolds v. Stockton, 140 U. S. 255, 272 ; Byers v. McAuley, 
149 U. S. 608 ; Stacy v. Thrasher, 6 How. 44, 68. See ante, § 14. 



§ 121 SITUS OF DEBTS. 275 

comes necessary to assign them a situs somewhere, in order to 
ascertain the law properly applicable to them. 

Before laying down any rules for the determination of the 
situs of debts, it will repay us to notice briefly the dual mean- 
ing of the term ''debt." The phrases "chose in action" and 
"debt" are often used as synonymous. But they are rather 
correlative than synonymous. They represent the same tiling, 
but viewed from opposite sides. The "chose in action " is the 
right of the creditor to be paid, while the " debt " is the obli- 
gation of the debtor to pay. This distinction is brought out in 
the common phrase, "the choses in action and debts of a part- 
nership, upon the death of one of the partners, survive." Here 
both terms are used in the same sentence, but with opposite 
meanings: the former term signifying the firm's right to be 
paid certain sums of money, the latter signifying the firm's 
obligation to pay certain sums of money. Yet the term "debt" 
is often used indiscriminately to convey both these ideas. ^ 
Much confusion has resulted from the failure to observe this 
distinction, and perhaps still more from the failure to notice 
carefully the essential characteristics of these several con- 
ceptions. 

The chose in action, or right of the creditor, is a personal 
right which adheres to him wherever his situs may be. It may 
for some purposes be his legal situs (or domicil), for others his 
actual situs. Just as, in the case of tangible chattels, though 
the title thereto follows the owner, and its transfer will be 
regulated by the law of the owner's situs, yet his or his trans- 
feree's ability to enforce that title may be in the exceptional 
cases determinable by a different system of law should the chat- 
tels be actually situated elsewhere; so also in the case of debts, 
though the right to enforce them follows the owner (the creditor), 
and his transfer is therefore to be governed by the law of his 
situs, actual or legal, yet his or his transferee's ability to en- 
force that right may depend upon another jurisdiction and sys- 
tem of law, if he has to resort to another State to sue the 
debtor. In other words, though the situs of the creditor's right 

1 See Dial v. Gary, 14 a C. 573, 37 Am. Rep. 737. 740. 



276 SITUS OP DEBTS. § 121 

follows the creditor, the situs of the debtor's obligation follows 
the debtor, in the sense that the debtor's legal obligation exists 
only in the State where it can be enforced against him. 

The debtor's obligation may be enforced in a proceeding in 
rem in any State where he has property, though he be absent 
or a non-resident ; or if in a proceeding in personam, the debtor 
must have been actually found within the court's jurisdiction 
and process served upon him there, or else he must have volun- 
tarily appeared. It is not essential that the debtor's obligation 
should be enforced where he resides, though that will ordinarily 
be the place of its enforcement. 

It will be seen therefore that, while the situs of the creditor's 
right (chose in action) follows the creditor and corresponds to 
the legal situs of tangible chattels, the situs of the debtor's 
obligation follows the actual situs of the debtor, or of his prop- 
erty (in case of a proceeding in rem to enforce it), and corre- 
sponds to the actual situs of tangible chattels. 

If these principles be kept clearly in mind there will be no 
difficulty in solving most of the problems that present them- 
selves involving the situs of debt, a subject upon which the 
decisions of the courts present the utmost confusion. The 
analogy between the situs of tangible chattels and the situs 
of debts is complete at every point. The legal situs of a debt, 
as in case of chattels^ is the actual or legal situs of the own er 
(t he credit or) according as the particular t ransaction in questi on 
involves the c reditor's voluntary or tnvoluntary participation 
thSrerilT The actual situs of the debt at a particular moment 



is_ the place _J8ghere payment there of mayat that moi 
e nf nrcedj uwhetbe r^by proceeding in rem ov hj proceedig,g_jn^ggr^ 
(sonam. If the former procedure is used, the actual situs of the 
debt will be the actual situs of the res subjected to its payment ; 
if the latter, it will be the domicil of the debtor or some other 
State, according as he is sued in his own State or in the courts 
of another which have acquired jurisdiction over him by due 
process of law. 

And, as in the case of tangible chattels, the legal situs of the 
debt will furnish the "proper law" governing transactions 
touching the transfer of the creditor's right, while, in the ex- 



§ 121 SITUS OF DEBTS. 277 

ceptional cases mentioned in the second chapter, the actual 
situs of the debt (and the forum) will be substituted therefor. 
The actual situs of the debt will be looked to also, as in the 
case of chattels, when the debt is the res in a proceeding in rem, 
the question being whether or not the court has jurisdiction of 
the res. 

These points will all be brought out more fully in the fol- 
lowing sections. 

It will be observed that the fact that the debt is contracted or is 
made payable by the debtor in a particular State, other than that 
of his domicil, though regarded as a circumstance of importance 
by some of the decisions,* in reality has nothing to do with the 
question, save only in so far as the law of that place may deter- 
mine whether or not the debt is valid. It has no bearing upon 
the situs of a valid debt. That is independent of the place of 
contract.' 

Nor does the mere fact that the debt is secured upon land or 
chattels by mortgage, deed of trust, or otherwise affect its situs, 
save only where the debt is sought to be recovered by proceed- 
ing in rem against the debtor's property, and not by personal 
proceeding against the debtor; in which case the situs of the 
debtor's obligation (which is the actical situs of the debt) will 
be the actual situs of his property.* 

« See Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741 ; Osgood v. Ma- 
guire, 61 N. Y. 524, 529 ; 111. Cent. R. R. Co. v. Smith, 70 Miss. 347, 12 So. 
461 ; American Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711 ; Smith v. 
Taber, 16 Tex. Civ. App. 154, 40 S. W. 156 ; Reimers v. Seatico Mfg. Co., 
70 Fed. 573. 

8 Hardware Mfg. Co. v. Lang, 127 Mo. 244 ; Cross v. Brown, 19 R. 1. 220 ; 
33 Atl. 147; Mashassuck Felt Mill v. Blanding, 17 R. I. 297, 21 Atl. 538 ; 
Wyman v. Halstead, 109 U. S. 656 ; Union Pac. R. R. Co. v. Baker, 5 Kan. 
App. 253, 47 Pac. 563 ; Neufelder v. Ins. Co., 6 Wash. 341, 33 Pac. 870 ; 
Owen V. Miller, 10 Ohio St. 136, 75 Am. Dec. 507 ; East Tenn. R. R. Co. v. 
Kennedy, 83 Ala. 462 ; Pomeroy v. Rand, 157 111. 185, 41 N. E. 636 ; Berry 
V. Davis, 77 Tex. 191, 13 S. W. 978 ; Ins. Co. v. Portsmouth, 3 Met. (Mass.) 
420 ; Sturtevant v. Robinson, 18 Pick. (Mass.) 175 ; Harwell v. Sharp, 85 6a. 
124 ; Rowland v. R. R. Co., 134 Mo. 474, 36 S. W. 29 ; Ins. Co. v. Chambers, 
53 N. J. Eq. 468, 32 Atl. 663. 

* Vroom V. Van Home, 10 Pai. Ch. (N. Y.) 549, 555, 42 Am. Dec. 94 ; 
Doolittle V. Lewis, 7 Johns. Ch. 46, 11 Am. Dec. 389 ; Hoyt v. Thompson, 19 



278 SITUS OF DEBT — VOLUNTARY TRANSFER. § 122 

§ 122. Situs of Debt for Purposes of Voluntary Transfer. 

— The term "voluntary" transfer is here used to indicate a 
transfer by the act and agreement of the creditor himself, by 
indorsement, assignment, or otherwise, in contradistinction to 
the " involuntary " transfer which takes place by act of the law, as 
in the case of the succession to the property of a decedent, trans- 
fers of the wife's personalty to the husband upon marriage (as 
under the common law), and compulsory assignments for the 
benefit of creditors under bankrupt and insolvent laws. 

It is also to be observed that the voluntary transfer or assign- 
ment of a debt, which passes title to the claim, is an executed 
contract, and must be distinguished carefully from the execu- 
tory contract which usually accompanies it, whereby the assignor 
engages to make good the debt to the assignee upon the failure 
of the original debtor. This executory contract is governed by 
different principles, which will be considered when we come to 
investigate the proper law controlling executory contracts. At 
present we shall confine our attention to the law regulating the 
executed transfer of the creditor's chose in action. 

The "voluntary" transfer of choses in action includes not 
only the transfer of the legal title to negotiable paper by indorse- 
ment, but also the assignment thereof without indorsement, 
the assignment of choses in action not negotiable, with or with- 
out indorsement, and the voluntary assignments of choses in 
action for the benefit of creditors. 

In these cases there is no dispute as to the general principle 
that the law of the legal situs of the chose in action is the 
" proper law " to govern its transfer. We have seen that the legal 
situs of the chose in action is the situs of the creditor. But is 
it the actual or the legal situs (or domicil) of the creditor ? 

Many of the decisions will be found to state it as a general 
proposition that the lex domicilii of the creditor (that is the law 
of his legal situs) controls voluntary transfers or assignments of 
choses in action.^ 

N. Y. 207, 224 ; Dial v. Gary, 14 S. C. 673, 37 Am. Rep. 737 ; Van Wyck v. 
Read, 43 Fed. 716. 

1 Speed V. May, 17 Penn. St. 91, 94, 55 Am. Dec. 540 ; Black r. Zacharie, 
3 How. 483 ; Van Wyck r. Read, 43 Fed. 716 ; Catlin v. Wilcox Plate Co., 12JJ 



§ 122 SITUS OF DEBT — VOLUNTARY TRANSFER. 279 

But it must be remembered that the transfer is effected by the 
voluntary and deliberate act of the owner; and in choosing to 
enter into the transaction at a particular place, he chooses to 
submit himself to the sovereignty and laws of that place. He 
may, and usually will, make the transfer in his domicil, and in 
such case the law of his domicil will control, not because it is 
the law of his domicil however, but because it is the law of the 
place where the transfer is made (lex loci contractus).^ But he 
may choose to enter into the transaction in a State other than 
his domicil, under a law different from that of his domicil. 
There can be little doubt that freedom of locomotion and of ac- 
tion, as well as the demands of trade and commerce, require 
that the chose should, for purposes of voluntary assignment 
under the contract of the owner, be generally deemed to be at the 
actual situs of the creditor at the time of the assignment, and 
that the transfer should be regulated by the law of the place 
where he deals, to which the parties must be regarded as sub- 
mitting themselves for that purpose. The true rule therefore is 
that the lex loci contractus (which may or may not be identical 
with the lex domicilii of the creditor) should control voluntary 
transfers.' 

Ind. 477, 8 L. R. A. 62 ; Clark v. Peat Co., 35 Conn. 303 ; Paine v. Lester, 
44 Conn. 196, 26 Am. Rep. 442 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl. 
431 ; Long v. Girdwood, 150 Penn. St. 413, 24 Atl. 711, 23 L. R. A. 33 ; 
Butler V. Wendell, 57 Mich. 62, 58 Am. Rep. 329 ; Woodward v. Brooks, 128 
111. 222, 20 N. E. 685 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ; Birds- 
eye V. Underhill, 82 Ga. 142, 7 S. E. 863 ; Fuller v. Steiglitz, 27 Ohio St. 
355, 22 Am. Rep. 312. But in all these cases, as well as in others laying 
down the same rule, the assignment was made by the creditor in the State of 
his domicil. Hence the legal situs and the actual situs of the assignor are 
identical, and these cases prove nothing. This is an instance of the looseness 
of phraseology which has tended so much to add to the intrinsic difficulties of 
this branch of the law. 

^ See cases cited supra, note 1. 

8 Dial V. Gary, 14 S. C, 573, 37 Am. Rep. 737, 738 ; Hoyt v. Thompson, 
19 N. Y. 207, 224 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 369, 6 Am. Dec. 
466 ; Tyler v. Strang, 21 Barb. (N. Y.) 198 ; Butler v. Wendell, 57 Mich. 62, 
58 Am. Rep. 329 ; Woodward v. Brooks, 128 111. 222, 20 N. E. 685, 686 ; 
First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696 ; Egbert v. Baker, 58 
Conn. 319, 20 Atl. 466; May v. Wannemacher, 111 Mass. 202. In the last 



280 8ITU8 OF DEBT — VOLUNTABY TRANSFER. § 122 

But in ascertaining the "proper law" regulating voluntary 
transfers and assignments of choses in action, and in fixing it 
as the lex loci contractus, the reader must not overlook the ex- 
ceptions to the enforcement of the proper law, already so fre- 
quently referred to.* In these cases, it will be remembered, the 
lex fori will be substituted; and since the question will always 
arise upon an attempt to enforce the debtor's obligation to pay, 
the lex fori and the actual situs of the debt will coincide. 

The most usual instances of these exceptions are those which 
arise from danger to the interests of the forum or its citizens, 
should the proper law be enforced. Hence, if the assignment of 
the chose in action, though valid where made, would injuriously 
affect the interests of the State where the debt is sought to be 
enforced (forum and actual situs of the debt),* or the interests of 
its citizens,* or would contravene its settled policy or express 
statutory provisions,' or would be contra bonos mores,^ or if such 
assignment is rendered invalid where made, as a penalty for 
wrong-doing;' in all these cases, the law of the actual situs of 
the debt, that is, the actual situs of the debtor when sued (in a 
proceeding in personam), being also the forum, will be substi- 
tuted for the "proper law." If the debt be sought to be recovered 

three of these cases the transfer occuiTed in a State where the owneas (or some 
of them) were not domiciled. The situs of the debts assigned was held to be 
at the place of transfer. In the last two cases the creditors assigning the debts 
were partners living in different States. Much difficulty might be experienced 
in such cases if the debt were placed at the creditor's domicil. It will be re- 
membered also that the cases cited supra, note 1, are not against this position ; 
the domicil and the locus contractus were in those cases identical. 

* Ante, Chapter IL 

* Harrison v. Sterry, 5 Cr. 289, 299 ; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 
460, 488, 8 Am. Dec. 581. 

« Blake r. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372 ; Milne v. More- 
ton, 6 Binn. (Penn.) 353, 361,6 Am. Dec. 466; Speed v. May, 17 Penn. St. 
91, 94, 55 Am. Dec. 540 ; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737, 741. 

7 Savings Bank v. Nat. Bank, 38 Fed. 800 ; Black v. Zacharie, 3 How. 483, 
614 ; Atty. Gen. v. Dimond, 1 C. & J, 356 ; Atty. Gen. v. Hope, 1 C. M. & R. 
530, 8 Bligh, 44 ; Atty. Gen. v. Bouwens, 4 M. & "W. 171. See Story, Confl. 
L. § 383. 

8 See Savings Bank v. Nat. Bank, 38 Fed. 800. 

» See Scoville v. Canfield, 14 Johns. (N. Y.) 338. 



§ 123 SITUS OP DEBT — TAXATION. 281 

by a proceeding in rem, the actual situs of the res (and the 
forum) will be the actual situs of the debt. 

§ 123. Situs of Debt for Purpose of Taxation. — It may 
perhaps be said to be contrary to the general practice for a State 
to tax the tangible chattels of a non-resident situated within its 
limits, such taxation being left to be imposed by the State of the 
owner's domicil, upon the theory that the property has its legal 
(though not its acttial) situs at the owner's domicil.* But tax- 
ation is emphatically an instance where a State has the right to 
throw aside all fictions and look at things as they are. Accord- 
ingly States frequently tax the tangible personalty of non-resi- 
dents when actually situated within their borders. In such cases, 
however, the State of the actual situs only imposes the tax bur- 
den upon the property within its jurisdiction. It cannot con- 
stitutionally impose a personal liability upon the non-resident 
owner.* 

But where the property is intangible, such as debts, more dif- 
ficulty is experienced in ascertaining the situs where it may be 
taxed. The general practice is to treat debts as located, for pur- 
poses of taxation, at the creditor's domicil, and there is no doubt 
that they may have their situs there for that purpose.* On the 
other hand, it would seem that, if the creditor were domiciled in 
one State and the debtor in another, there should be no reason 
why the latter State (which is the situs of the obligation and 

1 Coolcy, Taxation (2(1 ed.) 372 ; People v. Com're, 23 N. Y. 224, 240 ; 
Com, r. B. R. Co., 27 Gratt. (Va.) 344 ; Buck v. Miller, 147 Ind. 586, 45 N. E. 
647, 648 ; Thoradike v. Boston, 1 Met. (Mass. ) 242. See Borland r. Boston, 
132 Mass. 89, 42 Am. Rep. 424. 

2 Mills r. Thornton, 26 111. 300, 79 Am. Dec. 377; Com. r. Gaines, 80 Ky. 
489 ; Leonard v. New Bedford, 16 Gray (Mass.), 292 ; Dow v. Sudbury, 5 Met. 
(Mass.) 73 ; Buck v. Miller, 147 Ind. 586, 45 N. E. 647, 648 ; People v. Com'rs, 
23 N. Y. 224, 240. 

8 Hunt V. Perry, 165 Mass. 287, 43 N. E. 103 ; Dykes v. Lockwood, 2 Kan. 
App. 217, 43 Pac. 268 ; Bradley v. Bander, 36 Ohio St. 28, 3 Am. St. Rep. 547; 
Com. V. R. R. Co., 27 Gratt (Va.) 344 ; Herron v. Keran, 59 Ind. 472 ; Ins. 
Co. V. Assessors, 47 La. Ann. 1544, 18 So. 519 ; Wilcox i;. Ellis, 14 Kan. 589, 
19 Am. Rep. 107; Baltimore v. Hussey, 67 Md. 112 ; Ferris v. Kimble, 75 Tex. 
476 ; State Bank v. Richmond, 79 Va, 113 ; Tax on Foreign Held Bonds, Ifi 
Wall. 300. 



282 SITUS OF DEBT — TAXATION. § 123 

the actual situs of the debt) cannot lay a tax upon the creditor's 
property actually situated there, namely, the debtor's obligation 
to pay, provided in so doing it does not impair the obligation of 
contracts. And some courts have upheld such taxation.* But, 
strangely enough, the general trend of judicial opinion seems to 
be in the direction of regarding such taxation as unlawful, upon 
the ground that the debtor has no property in the debt which can 
be taxed.* This idea would certainly seem to be founded on a 
misapprehension. It is conceded that the debtor hdis no property 
in the debt belonging to the creditor, but his obligation to pay 
is itself valuable property belonging to the creditor, at least after 
the debt becomes due and enforceable, and no reason is perceived 
why the State could not compel the debtor to pay a tax thereon, 
crediting him with the amount so paid on his debt. But, at best, 
this form of taxation is cumbersome, and has been but little 
used, most States leaving debts of all sorts to be taxed at the 
domicil of the creditor. 

Thus shares of stock in a corporation are usually taxable at 
the domicil of the owner, not of the corporation ; ^ but the right 
of the State of the corporation's domicil also to lay a tax upon 
such stock is admitted.'' 

In States whose policy is to tax choses in action at the dom- 
icil of the creditor, a question has sometimes arisen whether this 
includes negotiable instruments. Some courts, regarding them 
as actual currency, have sustained taxation upon them where 

* Bridges «;. Griffin, 33 Ga. 113 ; Railroad Co. v. Collector, 100 U. S. 595 ; 
United States v. R. R. Co., 106 U. S. 327 ; Finch v. York County, 19 Neb. 50, 

6 Cooley, Taxation (2d ed.), 22 ; citing State Tax on Foreign Held Bonds, 
15 Wall. 300, 319, 320 ; Oliver v. Washington, 11 Allen (Mass.), 268 ; Com. 
». R. R. Co., 27 Gi-att. (Va.) 344 ; and other cases. 

6 Bradley u. Bander, 36 Ohio St. 28, 38 Am. Rep. 547; Nashville v. Thomas, 
5 Coldw. (Tenn. ) 600 ; Worth v. Ashe Co., 90 N. C. 409. And this, even though 
a tax has already been paid on the stock in the domicil of the corporation. See 
McKeen v. Northampton Co., 49 Penn. St. 519, 88 Am. Dec. 515 ; Dwight 
V. Boston, 12 Allen (Mass.), 316 ; Dyer v. Osborne, 11 R. I. 321, 23 Am. Rep. 
460 ; Seward v. Rising Sun, 79 Ind. 351. 

^ Tappan v. Bank, 19 Wall. 490 ; Faxton v. McCosh, 12 la. 527; American 
Coal Co. V. Allegheny County, 59 Md. 185. But see Union Bank v. Stat«, 
9 Yerg. (Tenn.) 490. 



§ 124 SITUS OF DEBT — ADMINISTRATION. 283 

the paper evidences of indebtedness happen to be, regardless of 
the locality of the creditor's residence.' But this view is incon- 
sistent with the real facts and with general principles, and 
the better opinion is that they should be taxed at the cred- 
itor's domicil." 

§ 124. Situs of Debt for Purpose of Administration. — In 
connection with the subject of executors and administrators, we 
have seen that wherever a decedent's assets are actually situated 
in a State other than his domicil, it is a general principle that 
such assets must be first of all administered in conformity to the 
lex fori and lex situs of the property, in the interest of the citi- 
zens of the forum and actual situs of the property, before it is 
to be regarded as subject to the lex domicilii of the decedent. 
It will be remembered that the executor or administrator must 
qualify anew in every jurisdiction where the deceased has left 
assets, and that until such qualification no act of the domiciliary 
administrator will be of any effect, as to property situated in 
another State, at least if there are any citizens of that State 
who may be injured by such action.^ 

Little diflSculty is experienced in applying these principles 
when the assets are tangible chattels, capable of occupying 
space, and therefore possessing an actual situs of their own. 
But the ascertainment of the situs of a debt for these purposes 
has given the courts some trouble, which has arisen in large 
measure from the failure to observe the distinction between the 
legal and the actual situs of debts, already adverted to.* 

Thus we find the courts divided in opinion upon the question 
whether an executor or administrator appointed in the State 
of a deceased creditor's domicil can there assign the debt to a 
third person so as to enable him to sue the debtor in another 
State. 

8 Redmond v. Rutherford, 87 N. C. 133; Wilcox v. Ellis, 14 Kan. 588, 19 
Am. Rep. 107 ; Poppleton v. Yamhill County, 18 Oregon, 377. 

9 State Tax on Foreign Held Bonds, 15 Wall. 300 ; Boyd v. Selma, 96 Ala. 
144, 11 So. 393 ; State Bank v. Richmond, 79 Va. 113; New Orleans v. Ins. 
Co., 30 La. Ann. 876, 31 Am. Rep. 232 ; Lanesborough v. Berkshire County, 
131 Mass. 424. 

1 Ante, §§ 105 et seq. 

a See Wyman v. Halstead, 109 U. S. 656. 



284 SITUS OP DBBT — ADMINISTRATION. § 124 

In Dial v. Gary,' it was held that the assignee could not sue, 
since that would he practically to permit a foreign administrator 
to administer upon the decedent's property in South Carolina, 
without having qualified therein or administered there, whereby 
its own citizens might be injured. 

On the other hand, in Petersen v. Chemical Bank,* the debtor 
was sued in his domicil (New York) by the assignee of an ad- 
ministrator appointed in Connecticut, the creditor's domicil, and 
it was held he was entitled to recover. In this case, however, 
the court states that there were no creditors of the deceased in 
New York, and that there was no motive for forbidding the 
withdrawal of the assets.* 

Upon principles already noted, the law of the actual situs of 
the debt (and the forum) will govern the administration, so long 
as the enforcement of that law is necessary to the protection of 
its citizens. And the actual situs of the debt in the cases given 
above was the domicil of the debtor, for that was where his obli- 
gation to pay was sought to be enforced. No assignment of the 
debt therefore in its legal situs (the creditor's domicil) could 
operate to pass title to a debt actually situated in another State 
(the debtor's domicil) any more than the transfer of a tangible 
chattel under similar circumstances. To this extent therefore 
the South Carolina decision was clearly correct." But if there 
are no creditors of the decedent in the forum and actual situs, 
the reason for looking to the actual situs of the debt ceases, and 
the proper law (lex domicilii) will once more be applicable.' 
In this aspect of the case, the New York decision was also 
correct. 

It has been said that the first branch of the rule does not 
apply to negotiable instruments, and that an administrator may 

« 14 S. C. 573, 37 Am. Rep. 737. 

* 82 N. Y. 21, 88 Am. Dec. 298. 

' 32 N. Y. 48. The court seemed to consider that fact of little importance, 
but it is submitted that it is the point upon which the decision should turn. 

• See also Stearns ». Bumham, 5 Greenl. (Me.) 261 ; Vroom v. Van Home, 
10 Pai. Ch. 549, 42 Am. Dec. 94 ; Hall v. Harrison, 21 Mo. 227, 64 Am. 
Dec. 225. But see Harper v. Butler, 2 Pet. 239. 

T Petersen v. Chemical Bank, 32 N. Y. 21, 48, 88 Am. Dec. 298 ; Harvey 
V. Richards, 1 Mason, C. C. 380, 413. 



§ 125 SITUS OF DEBT — GARNISHMENT. 28& 

freely dispose of them, though the debtor lives in another State, 
since to refuse the assignee the right to sue the debtor upon 
such a note would put a stop to its negotiability.* 

Another point, upon which the courts are divided, the solu- 
tion of which is dependent upon the actual situs of a debt, is 
whether an administrator may sue a debtor of the estate domi- 
ciled elsewhere, but whom he finds transiently in the State of 
his appointment." Since, as we have seen, the actual situs of a 
debt is any State where the obligation to pay may be enforced 
by suit, and since in this case the debtor has come within the 
jurisdiction of the administrator, there is no doubt that, stricto 
jure, he is entitled to sue him there. The case is analogous to 
that of a tangible chattel of a decedent, to which one admin- 
istrator of the deceased is entitled, transiently passing through 
the State of another administrator of the same decedent. There 
can be no doubt that the administrator of the latter State may 
lay hold of such property for the benefit of its own resident 
creditors. But such action would appear to be closer akin to 
robbery than to justice, and would hardly comport with the 
comity that should regulate the relations of States to each 
other." 

If there are no creditors of the deceased, or the administration 
has been completed, the creditors paid off, and the only thinr* 
remaining is to distribute the residuum, the actual situs of the 
debt ceases to furnish the applicatory law, and its legal situs (in 
this case the legal situs, or domicil, of the creditor) resumes its 
sway." 

§ 125. Situs of Debt for Purpose of Attachment and Qar- 
nishment.^ — Perhaps on no one point has there been a greater 

» Story, Confl. L. §§ 258, 259 ; Petersen v. Chemical Bank, 32 N. Y. 21, 
42, 88 Am. Dec. 298. Here there is a conflict of policies, the relative impor* 
tance of which the courts of the forum must decide. 

' See Merrill v. Ins. Co., 103 Mass. 245 ; Stevens v. Gaylord, 11 Mass. 
256 ; Hall v. Harrison, 21 Mo. 227, 64 Am. Dec. 225, 227. 
w See Crouch v. Dabney, 2 Gratt. (Va.) 415. 

" Mayo V. Equitable Society, 71 Miss. 590, 15 So. 791 ; Petersen v. Chem. 
ical Bank, 32 N. Y. 21, 88 Am. Dec. 298 ; Harvey v. Richards, 1 Mason, 
C. C. 380, 413. See Dawes v. Boylston, 9 Mass. 337. 

* In the preparation of this section, the writer has been much aided by 



286 SITUS OF DEBT — OABNISHMENT. § 125 

variety of judicial opinion than upon the topic now to be exam» 
ined. Briefly, the question may be thus stated: A of New York 
owes B of Massachusetts $1000. B owes C of New York or 
Virginia a like sum. B has no property save A's debt. C de- 
sires to sue out an attachment against B in New York, and to 
summon A before the New York courts upon process of garnish- 
ment. Have the New York courts jurisdiction of the proceeding, 
B being a non-resident and not personally before the court ? 

The attachment proceeding being in rem, and not in per- 
sonam, if the res is before the New York courts, it is not neces- 
sary that the owner of the property seized should be within their 
jurisdiction. The fact that he is a non-resident is immaterial.' 
Hence in these cases the sole question to be determined is this : 
Is the res within the jurisdiction of the attaching court ? The 
res is the debt due to B by A, and hence we are confronted 
with the pregnant question, what is the situs of A's debt to 
B? Has it its situs with the creditor (B) at his domicil, or at 
the domicil of the debtor (A), or at the actual sihis of B or A, 
respectively ? If the debt is to be regarded as with the creditor 
(B), the fact that A is within the jurisdiction of the court will 
be of no avail. But if the debt is with the debtor, then the 
presence of A within the jurisdiction is all important, and the 
locality of B is immaterial. 

Owing to the great confusion that has existed in respect to 
this subject, it has frequently happened that a debtor, who in 
one jurisdiction has been garnished in attachment proceedings 
and been compelled to pay his debt to his creditor's creditor, 
has been subsequently compelled in another jurisdiction to pay 
the same debt over again to another creditor of his creditor, on 
the ground that the first court had no jurisdiction of the res. 
Such a state of affairs is a disgrace to the law, calling for a 
speedy recognition of some principle upon which the question 
of jurisdiction may be determined once for all. 

Many theories have been advanced by the various courts as to 

reference to an able thesis on the subject by J. L. Templeman, Esq., formerly 
a student of the University of Virginia, now a practitioner in Butte, Montana 
For the assistance thus given, grateful acknowledgment is here made, 
a Ante, §§ 85, 86 ; Pennoyer v. Neff, 96 U. S 714. 



§ 125 SITUS OP DBBT — GAENISHMENT. 287 

tiLe situs of debts under circumstances like these, some of the 
more important of which will now be examined briefly. In 
considering the merits of these various theories, one important 
principle, already discussed, must be constantly borne in mind: 
that principle is, that, for purposes of ascertaining the jurisdic- 
tion of a court over a res, the actual situs of the res is re- 
garded, not its legal or constructive situs.* 

^irst Theory. — Many of the courts have declared in favor of 
the extreme view that the situs of a debt is at the domicil of 
the creditor, and that it cannot be attached in another State for 
want of jurisdiction over the res. In the example above given, 
these courts would hold that A's debt to B could only be at- 
tached by C in Massachusetts (B's domicil).* This view dis- 
regards altogether the dual nature of debt, which, while placing 
the creditor's Hffht to sue (or chose in action) with the creditor, 
places the debtor's obligation to pay and the creditor's abiUtij to 
exact payment with the debtor. In other words, though the 
question is one of jurisdiction over a res, these courts dis- 
regard the actual situs of the property, and look only to its 
legal or constructive situs. This view would clearly seem to be 
erroneous. 

Second Theory — Legislative Fiat. — Another line of cases, 
while recognizing the same general principle as those holding 
the first theory, yet for purposes of garnishment, in order to do 
effectual justice, find it necessary to resort to phraseology which, 
if interpreted literally, seems wholly unjustifiable. These cases 
hold that a debt for most purposes has its situs at the creditor's 
domicile but for purposes of garnishment a State may hy legisla- 
tive fiat fix its situs at the debtor's domicil.* 

« Ante, §§ 14, 120. 

4 Railroad Co. v. Nash, 118 Ala. 477, 23 So. 825; Railroad Co. v. Chum- 
ley, 92 Ala. 317, 9 So. 286; Bucy v. R. R. Co. (Miss.), 22 So. 296; 
Railroad Co, v. Smith, 70 Miss. 344, 12 So. 461 ; Railroad Co. v. Sharritt, 48 
Kan. 375, 23 Pac. 430; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; 
Smith V. Eaton, 36 Me. 298, 58 Am. Dec. 746; Central Trust Co. v. R. R. 
Co., 68 Fed. 685 ; Mason v. Beebee, 44 Fed. 556. See also Railroad Co. v. 
Maggard, 6 Colo. App. 85, 39 Pac. 985 ; Caledonia Ins. Co. v. Wenar (Tex. 
Civ. App.), 34 S. W. 385. 

* Williams v. IngersoU, 89 N. Y. 523 ; Douglas v. Ins. Co., 138 N. Y. 208 : 



288 SITUS OF DEBT — GARNISHMENT. § 125 

It can hardly be supposed, however, that the courts mean to 
say that a legislature, by mere decree, can cause a thing to be 
situated where in fact it is not. All that is meant probably is 
that, though ordinarily the law will adopt the fiction that debts 
are located at the situs of the creditor, this fiction may be disre- 
garded, and the actual situs of the obligation substituted there- 
for, whenever policy may require it. Under this view, the 
rules governing the situs of debts are assimilated to those gov- 
erning the situs of tangible chattels, and the theory becomes 
identical with the fourth theory hereafter mentioned.' 

Third Theory — Another theory (which may be denomi- 
nated the fund theory) distinguishes between the chose in action 
(following the creditor) and the money owing (in the hands of 
the debtor), which constitutes a fund held by the debtor but be- 
longing to the creditor, which fund is the res in the attachment 
proceeding; holding that, since the debtor's funds are to be pre- 
sumed to be at his domicil, the attachment can only issue there. 
This theory rests upon the idea that the creditor has the right 
to recover of the debtor a certain specific sum of money, and 
that by his attachment the attaching creditor becomes subro- 
gated to this right, and may proceed to recover the debt in the 
place of the original creditor, and in the same jurisdiction.' 
It is submitted, however, that this view is fallacious, in that it 
requires as a basis one of two suppositions (or both) : (1) That 
there is specific property belonging to the original creditor 
now in the debtor's hands ; (2) That the court, which seizes the 
right of the original creditor to sue and turns it over to the 
attaching creditor, has jurisdiction of that right, for otherwise 
it could not attach it. But it is admitted by all the authorities 

Swedish-American Bank v. Bleeker, 72 Minn. 383, 75 N. W. 740, 71 Am. St. 
Rep. 492 ; Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919 ; Morawetz v. Sun 
Ins. Office, 96 Wis. 175, 71 N. W. 109; Renier r. Huilbut, 81 Wis. 24, 50 
N. W. 783 ; Reimers v. Mfg. Co., 70 Fed. 673. 

« See Mooney v. Buford, 72 Fed. 38 ; Railroad Co. v. Nash, 118 Ala. 477, 
23 So. 325 ; National Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663 ; 
Lancashire Ins. Co. v. Corbett, 165 111. 592, 46 N. E. 631. 

'' This seems to be in part the theory upon which Mr. Waples bases his in- 
teresting treatise on the Situs of Debt. Waples, Debtor and Creditor. See 
Berry v. Davis, 77 Tex. 191, 13 S. W. 978. 



§ 125 SITUS OP DEBT — GARNISHMENT. 289 

that the right of the original creditor to sue is with the creditor 
(who is not within the jurisdiction of the courts of the debtor's 
domicil). And it must be conceded also that there is with the 
debtor no specific fund or money belonging to the creditor, but 
only a general liability or obligation to pay. 

Fourth Theory. — Another theory, which has been accepted 
and adopted by many of the courts, is that the legal situs of the 
creditor's right is to be distinguished from the actual situs of 
the debtor's obligation ; that as the former is located with the 
creditor at his domicil, so the latter is situated at the debtor's 
domicil ; and that, for purposes of jurisdiction in rem, the court 
must regard the actual situs of the debt,^ 

The fallacy of this theory is that it treats the obligation of 
the debtor as local instead of transitory, as fixed at his domicil, 
instead of following his person whithersoever he may go. In 
other words, this view regards the actual situs of the debt as at 
the legal rather than the actual situs of the debtor. This is 
fallacious. The creditor is not confined to the debtor's domicil 
for the purpose of enforcing the obligation to pay, but may 
proceed against him wherever he finds him, unless the municipal 
law forbids. All that is necessary is that the court should have 
jurisdiction of the debtor's person, by his voluntary appearance 
or by process served upon him within the territorial limits of 
the court's jurisdiction. 

Fifth and True Theory. — The fourth theory, as we have 
just seen, is erroneous simply because of the narrow limits it 
allows to the actual situs of a debt, confining it to the debtor's 
domicil. The true theory is that the situs of a debt, for pur - 
po ses of garnishment, i s not only at the domicil ofT;he debtor, 

mishee may be found, providecl 
tlie municipal law ot t hat State permi ts the debtor to oe gar- 
msKed, Uiid ptoviaea ilie court acquires jurisdiction over tna" 

8 Bragg V. Gaynor, 85 Wis. 468, 55 N. W. 924 ; Cross v. Brown, 19 R. I. 
220, 33 Atl. 147 ; Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183 ; Ting- 
ley V. Bateman, 10 Mass. 343 ; Lerkin v. Wilson, 106 Mass. 120 ; Craig v. 
Gunn, 67 Vt. 92, 30 Atl. 860 ; Newland v. Reilly, 85 Mich. 151, 48 N. W. 
544. See Chicago, etc. R. R. Co. v. Sturm, 174 U. S, 710 ; King v. Croas, 
175 U. S. 396. 

to 



290 EXEMPTIONS. § 126 

garnishee, through his voluntary appearance or actual serrice 
""ofpTocess upon him within the State. Of course in most cases 
the question will arise in the garnishee's domicil." 

Sixth Theory. — A few cases will be found, which regard the 
place where the debt is payable as important in fixing its situs 
for the purpose of garnishment.^*' But these have no basis of 
principle upon which to rest, and may be disregarded, as founded 
upon a misapprehension of the question involved. ^^ 

§ 126. Same — Exemptions. — A question incidental to gar- 
nishment proceedings sometimes arises as to the law which 
•hould govern the legal exemptions to be claimed by the attach- 
ment defendant. The question has usually arisen with respect 
to the wages of laborers, exempt by law from their debts, in 
cases where the law of the attachment defendant's domicil en- 
titles him to exemption of wages, while the law of the forum 
(the place of the attachment and garnishment) does not, or not 
to the same extent; or where there is a difference on this point 
between the law of the place where the defendant entered into 
his contract of service and the law of the forum. In such cases, 

» Morgan v. Neville, 74 Penn. St. 52, 57-58 ; Neufelder v. Ins. Co. , 6 Wash. 
341, 33 Pac. 870 ; Mooney «;, R. R. Co., 60 la. 346, 14 N. W. 343 ; Harvey ». 
R. R Co., 50 Minn. 405, 52 N. W. 905 ; National Ins. Co. v. Chambers, 53 
N. J. Eq. 468, 32 Atl. 663 ; Howland v. R. R. Co., 134 Mo. 474, 36 S. W. 29; 
Manufacturing Co. v. Lang, 127 Mo. 242, 29 S. W. 1010 ; Burlington, etc. 
R. R. Co. V. Thompson, 31 Kan. 180, 47 Am. Rep. 497 ; Railroad Co. ». 
Crane, 102 111. 249, 40 Am. Rep. 581. See also Chicago, etc. R. R. Co. p. 
Sturm, 174 IT. S. 710 ; Mooney ». Mfg. Co., 72 Fed. 32. In the last case 
the court announces the doctrine that a garnishmei^: is a proceeding *» per- 
sonam. This is contrary to the usually accepted idea, but it is believed the 
court is correct. The attachment is a proceeding in rem, the res being the 
general liability of the debtor, which general liability upon its seizure by 
the attaching creditor can be rendered fixed and definite only by a proceeding 
in personam against the debtor, that is, by garnishment. See Fithian v. R. R. 
Co., 31 Penn. St. 114. 

1° See Manufacturing Co. v. Lang, 127 Mo. 242, 29 S. W. 1010 ; Lawrence 
V. Smith, 45 N. H. 533, 86 Am. Dec. 183 ; Tuller v. Arnold, 93 Cal. 166, 28 
Pac. 863 ; American Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711 ; McBee 
V. Purcell Bank (Ind. Ter.), 37 N. W. 65 ; Mo. Pac. R. R. Co. v. Sharritt, 
43 Kan. 375, 387, 23 Pac. 430. 

" Chicago, etc. R. R. Co. v. Sturm, 174 U. S. 710, 716-717. 



§ 126 EXEMPTIONS. 291 

the decisions of the courts as to what law shall govern the 
exemption to be accorded have not been uniform. 

If the court where the attachment issues has jurisdiction of 
the res (that is, of the garnishee), following the rule that ex- 
emptions usually pertain to the remedy, and that the lex fori 
therefore ordinarily regulates them,^ the general principle is 
that the law of the forum will usually determine what exemp- 
tion the attachment-defendant is entitled to. This subject is 
fully treated hereafter, and its consideration had better be 
postponed until then.' 

1 Post, § 209. 3 PoBt, % 209. 



V 



. ■/ 



n/ 






292 VARIOUS KINDS OF TRANSFER. § 127 



CHAPTER XI. 

VOLUNTARY TRANSFERS OF PERSONALTY INTER VIVOS. 

§ 127. Preliminary — Various Kinds of Transfer. — We 
have seen that the legal situs of personalty will usually furnish 
the ** proper law" to govern transfers thereof, while the law of 
the actual situs of the property or the lex fori will be substi- 
tuted for the proper law whenever the interests of the forum or 
its citizens demand such a course, and indeed in all cases 
where the exceptions to the operation of the proper foreign law 
come into play. 

It will also be remembered that the legal situs of personalty 
follows the actual or the legal situs of the owner, according as 
the personalty is dealt with in a transaction in which the owner 
"Voluntarily participates or in a transaction in which his par- 
ticipation is involuntary or compulsory, a transaction resulting 
merely by operation of law. In case of voluntary transactions, 
the actual situs of the owner furnishes the proper law. In case 
of involuntary transactions, the law of the legal situs of the 
owner prevails. But both are liable to be substituted by the 
law of the actual situs of the property under the circumstances 
mentioned. 

Voluntary transfers are always the result of the owner's 
agreement, made in the exercise of his jus disponendi, such as 
absolute conveyances, executed sales, chattel mortgages and 
deeds of trust, conditional sales with reservation of title, deeds 
of assignment for the benefit of creditors, etc. 

Involuntary transfers are those resulting not from the volun- 
tary agreement of the owner, but from the mere operation of 
law, independently of the parties' will. Some of these trans- 
fers are effected by the law solely in the interests of creditors 
and other third persons, as in the case of involuntary assign- 
ments in bankruptcy and insolvency. Others are effected upon 



§ 128 CONVEYANCES AND SALES OF PERSONALTY. 293 

grounds of public policy, entirely irrespective of the rights of 
creditors and third persons, as in the case of the husband's 
common law title to the wife's personalty upon marriage. And 
still others are based upon both grounds, as in case of the suc- 
cession to a decedent's estate, in which case the title of the ad- 
ministrator belongs in the main to the first head, while the title 
of the distributees to the residuum belongs to the second. 

If the purpose of the involuntary transfer is the protection 
of creditors, each State wherein any of the property is located 
looks first of all to the protection of its own citizens, and a 
transfer of the owner's property in another State for such pur- 
pose, even in the State of the owner's domicil, will be given in 
general no effect in any other State as to property actually 
situated there, so long as there are creditors there unsatisfied. 
The law of the actual situs of the personalty, not of its legal 
situs (lex domicilii), is applied so regularly in such cases as 
to obscure and almost wipe out the general principle that in 
all cases of involuntary transfer the lex domicilii of the owner 
furnishes the "proper law." 

But the latter principle again clearly shines forth when we 
come to deal with the second class of involuntary transfers, re- 
sulting from general motives of policy, not for the protection of 
creditors. In such cases the substitution of the lex fori et situs 
for the proper law (lex domicilii) is comparatively rare. 

§ 128. Absolute Conveyances and Executed Sales of Per- 
sonalty. — An unbroken line of authority sustains the general 
proposition that, as between the parties, the law of the actual 
situs of the owner at the time of the transfer, that is, the law 
of the place where the transfer is made (lex loci contractus), 
governs the validity and effect of absolute conveyances of per- 
sonalty, including assignments of choses in action and executed 
sales. The conveyance, assignment, or sale, if valid where 
made, will be upheld, as between the parties, in every juris- 
diction in which it may be called in question; if invalid where 
made, it will not be sustained elsewhere.* 

1 Black V. Zacharie, 3 How. 483, 514 ; Kerr v. Urie, 86 Md. 72, 37 Atl. 
789 ; Fowler's Appeal, 125 Penn. St. 388, 17 Atl. 431 ; Marvin Safe Co. v. 
Norton, 45 N. J, L. 412, 57 Am. Rep. 566, 7 Atl. 418 ; Weinstein v. Freyer, 



294 CONVEYANCES AND SALES OP PERSONALTY. § 128 

It must be observed however that while the validity of the 
substantial provisions and of the formalities of the transfer, as 
between the parties, is to be tested by the lex loci contractus, 
its validity, so far as it depends upon the legality of the con- 
sideratioUf may be governed by a different law, in cases where 
the situs of the consideration is a State other than the locus 
contractus. 

Hence, although in case of articles prohibited to be sold in 
one State, a sale thereof made in another State and valid there 
will not be held invalid even in the prohibiting State, and even 
though the goods were purchased to be resold in the forum and 
the vendor knew that fact,* yet if the vendor not only knew that 
the goods were to be resold in the forum, but knew also that such 
sale was contrary to the law of that State, the vendor will not be 
allowed, according to the better opinion, to recover the price in 
the courts of the State whose laws he has deliberately helped to 
violate.* A fortiori, he would not be entitled to recover there, 
if he should take any active steps to aid the vendee in disposing 
of the articles in the prohibiting State, in conscious violation of 
its law.* Nor indeed should he be permitted to sue in any State 
upon a contract the deliberate purpose of which is to violate the 
laws of a sister State.* 

Difficulty is sometimes experienced in ascertaining the locus 
contractus in case of sales. This topic will be fully developed 

93 Ala. 257, 9 So. 285 ; In re Dalpay, 41 Minn. 532, 43 N. W. 564. So ex- 
ecuted sales of personalty, as between the parties, are governed by the lex loci 
contractus as to their validity and effect. Suit v. Woodhall, 113 Mass. 391 ; 
Tarbox v. Childs, 165 Mass. 408, 43 N. E. 124 ; Erman v. Lehman, 47 La. Ann. 
1651, 18 So. 650 ; Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139; Sullivan v. 
Sullivan, 70 Mich. 583, 38 N. W. 472 ; Webber v. Howe, 36 Mich. 150, 24 
Am. Rep. 590 ; Fred Miller Brewing Co. v. De France, 90 la. 395, 57 N. W. 
959 ; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140 ; Beverwyck Brew- 
ing Co. V. Oliver, 69 Vt. 323, 37 Atl. 1110. 
' Merchants' Bank v. Spalding, 9 N. Y. 53. 

• Webster v. Munger, 8 Gray (Mass.), 584 ; Graves v. Johnson, 156 Mass. 
211, 30 N. E. 818, 32 Am. St. Rep. 446, 450, note. But see Hill v. Spear, 5(i 
N. H. 253, 9 Am. Rep. 205 ; Mclntyre v. Parks, 3 Met. (Mass.) 207. 

• Pratt V. Adams, 7 Pai. Ch. (N. Y. ) 615, 632 ; Knowlton v. Doherty, 87 
Me. 518, 47 Am. St. Rep. 349 ; Hill v. Spear, 50 N. H. 253, 9 Am, Rep. 205. 

• Weil ». Golden, 141 Mass. 364. 



§ 128 CONVEYANCES AND SALES OF PERSONALTY. 296 

hereafter in examining the locus contractus of executory con. 
tracts. Only a few general principles will here be mentioned.* 

The locus contractus of a sale is the place where the sale is 
finally completed. Until that time the contract is in fieri, the 
title has not passed. It is not until the vendor has done every- 
thing in connection with the transfer necessary to pass title that 
the sale is completed. The place where the final act essential to 
this result is performed is the locus contractus. The place at 
which the order is given, or from which the order is sent to the 
vendor, however important to the determination of the locus 
contractus of an executory contract, furnishes no safe guide in 
fixing the place of an executed sale.' /^ 

In Dolan v. Green,^ ihe plaintiff purchased intoxicating 
liquors from the defendant, paying him for them, and then 
sought under the Massachusetts statute to recover the price he 
had paid, the sale being invalid by the law of Massachusetts. 
It appeared that the defendant, who resided in Khode_ I'sland, 
agreed with the plaintiff in Massachusetts to sell the liquors; 
from time to time he 'selected them from his stock in Rhode 
Island and delivered them there on board the cars, the plaintiff 
paying the freight. It was held that the sale was made in 
Rhode Island, and being valid there was to be deemed valid in 
Massachusetts. The plaintiff was not permitted to recover. 

On the other hand, in Weil v. Golden,® it appeared that an 
order was taken from Golden in Rhode Island by an agent of a 
liquor house in Philadelphia. The liquors were delivered at the 
vendee's place of residence in Rhode Island, the agent paying 
the freight to the place of delivery. It was held that Rhode 
Island was the place of the sale, the vendor's last act in com- 

6 See post, §§ 157, 158. 

7 See Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472; Suit v. Woodhall, 
113 Mass. 391; State v. O'Neil, 58 Vt. 140, 56 Am. Rep. 557; Beverwyck 
Brewing Co. v. Oliver, 69 Vt. 323, 37 Atl. 1110 ; Boothby i;. Plaisted, 51 N. H 
436, 12 Am. Rep. 140; Tegler v. Shipman, 33 la. 194, 11 Am. Rep. 118: 
Abberger v. Marrin, 102 Mass. 70 ; Erman v. Lehman, 47 La. Ann. 1651, U 
So. 650 ; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439 ; Claflin i;. Meye^ 
41 La. Ann. 1048, 7 So. 139. 

8 110 Mass. 322. 
* 141 Mass. 364. 



296 CONVEYANCES AND SALES OP PERSONALTY. § 128 

pletion of the sale being the carriage of the goods to Rhode 
Island. 

In State v. O'Neil," a resident of Vermont purchased liquor 
of dealers in New York, upon an order by mail, the goods to be 
shipped by express, C. 0. D. It was held that the sale took 
place in Vermont, since the shipment C. 0. D. indicated an in- 
tention to make the payment of charges a condition precedent 
to the vesting of title in the vendee.-'^ 

In sales, as in other transactions, the acts of an agent within 
the scope of his authority are the acts of his principal. If the 
agent has authority to sell, and does so, the sale takes place at 
the place where the agent acts, not where the principal lives or 
does business. But if the agent has no authority to pass the 
title, but only to forward orders, which are subject to the prin- 
cipal's approval, the contract is not completed until such ap- 
proval; and the place of the contract must be referred to the 
place where the approval is given. ^'^ 

It is to be observed furthermore, in connection with convey- 
ances and sales of personalty, that not only does the lex loci 
contractus govern the substantial validity of the transfer as 
between the parties, but it also determines the effect of the 
contract, and in general the interpretation to be placed upon 
the terms used, when an ambiguity arises touching the legal 
signification to be attached to them." 

10 58 Vt. 140, 56 Am. Rep. 557. 

" But see State v. Carl, 43 Ark. 353, 51 Am, Rep. 565. 

1* Ennan v. Lehman, 47 La. Ann. 1651, 18 So. 650; Newman v. Cannon, 
43 La. Ann. 712, 9 So. 439. In these cases the agent had absolute authority 
to sell. Compare with these Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139, 
where the agent had only authority to forward orders. See also Tegler v. Ship- 
man, 33 la. 194, 11 Am. Rep. 118. 

13 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650 ; Newman v. Cannon, 
43 La. Ann. 712, 9 So. 439; Claflin r. Meyer, 41 La. Ann. 1048, 7 So. 139. 
In all of these cases the question involved was the vendor's right to a lien or 
"vendor's privilege " under the law of Louisiana. The vendor's right to the 
privilege was held dependent upon the law of the place of sale. In Codman v. 
Krell, 152 Mass. 214, 218, it was held that the lex loci contractus should deter- 
mine the legal interpretation of the phrase " heirs at law," used in a deed con- 
veying personalty. See also Meyer v. Richards, 163 U. S. 385, where it was 



§ 129 TRANSFERS OF CHATTELS — CREDITORS. 297 

§ 129. Same — As to Third Persons. — Notwithstanding 
the general rule that the lex loci contractus regulates absolute 
conveyances and sales of personalty, there are some cases in 
which the ''proper law " for this purpose will be substituted by 
the law of the forum and actual situs of the property. These 
cases are the exceptional cases mentioned in the second chapter 
of this work. 

But only two of the exceptions there mentioned have much 
practical bearing in this particular instance. It is in general 
only where the enforcement of the proper law would work an 
injury, loss, or injustice to the citizens of the forum, or would 
contravene its policy, that the law of the actual situs of the 
property will prevail over the lex loci contractus ; though it is 
conceivable that a transfer valid by the latter law might be 
refused recognition in another State because the consideration 
therefor is contra honos mores,^ or that a transfer, invalid where 
made because of a penal disability imposed upon the assignor, 
might still be enforced in other States.^ In the main, however, 
the operation of the lex fori et situs will be confined to the two 
cases first mentioned. 

Instances of the application of the lex fori et situs (instead 
of the lex loci contractus), though numerous enough in cases of 
chattel mortgages and assignments for the benefit of creditors,' 
are much more infrequent with respect to absolute conveyances 
and executed sales of personalty, for the reason that there are 
comparatively few differences of policy between the various 
States respecting the latter transactions, and therefore conflicts 
of laws are not so apt to arise. The few cases that have been 
decided, however, indicate that the lex fori et situs will be 
applied in these cases in the same way and to the same extent 
as in the case of chattel mortgages and voluntary assignments 

held that the law of the place of transfer should govern the question whether 
the vendor of certain bonds warranted their validity. For similar questions 
touching warranties implied in sales of chattels, see Mcllvaine u. Legare, 36 
La. Ann. 359 ; Maillard v. Nihoul, 21 La. Ann. 412. 

1 See Savings Bank v. National Bank, 38 Fed. 800. 

a See Scoville v. Caufield, 14 Johns. (N. Y.) 338. 
' 8 Post, §§ 132-134. 



298 TRANSFERS OF CHATTELS — CREDITORS. § 12^ 

for the benefit of creditors, whenever the circumstances call for 
the substitution of the lex fori for the proper law. 

The mere fact that the property conveyed or sold is in another 
jurisdiction than the locus contractus, and that citizens of the 
actual situs may incur loss by reason of the transfer, is not in 
itself sufficient to call for the overthrow of the transfer, where 
it is voluntary and contractual.* In order that the lex loci con- 
tractus and the transfer validly made thereunder should be set 
aside, the transfer must be positively invalid as to third per- 
sons under the law of the actual situs of the property. The 
courts of the latter State must be able, by substituting their 
own law, to pronounce the transfer invalid there. There must 
be an actual substitution of the lex fori for the proper law, as 
well as a setting aside of the lex loci contractus. 

A leading case, in which the lex fori et situs was applied to 
an absolute conveyance of personal property, arose in Louisiana.* 
In that case, a transfer of part of a ship was made in Virginia, 
where the owner resided, the ship at the time of the sale being 
at the New Orleans port. Before delivery to the vendee she 
was attached by creditors of the vendor resident in Louisiana. 
By the common law (prevailing in Virginia), it was argued, 
a sale of goods is, or may be, complete without delivery, if de- 
livery is impossible at the time and is made within a reasonable 
time after it becomes possible. On the other hand, by the civil 
law (prevailing in Louisiana), delivery is absolutely essential to 
a valid title in the purchaser. The vendor's creditors, attaching 
the ship before any delivery to the vendee, claimed that the 
title was still in the vendor (under the Louisiana law), and that 
they took priority over the vendee. The vendee claimed that he 
had already, before the attachment, acquired a good title under 
the law of Virginia (lex loci contractus). There being thus 
a conflict between the "proper law " on the one side and the lex 
fori et situs on the other, the court held that since the attaching 
creditors were citizens of Louisiana and would be injured by the 

* It is otherwise where the transfer is compulsory, as in involuntary assign- 
ments in bankruptcy. See post, §§ 137, 138. 

' Olivier v. Townes, 14 Mart. (La.) 93. See also Union Bank v. Hartwell, 
84 Ala. 379, 4 So. 156, 157. 



§ 129 TRANSFERS OF CHATTELS — CREDITORS. 299 

enforcement of the Virginia law, the law of the forum must be 
substituted, and the attachment was accordingly sustained. 

In contrast with this another Louisiana case may be pre- 
sented. In Thuret v. Jenkins,' the circumstances were similar 
to those above given, except that the ship was at sea at the time 
of the transfer. It was attached by the vendor's creditors upon 
reaching port in Louisiana. The court, dismissing the attach- 
ment and upholding the "proper law," said: "In transferring 
the ship, it did not work any injury to the rights of the people 
of another country; it did not transfer the property of a thing 
within the jurisdiction of another government. If two persons 
in any country choose to bargain as to the property which one 
of them has in a chattel, not within the jurisdiction of the place, 
they cannot expect that the rights of persons in the country in 
which the chattel is will be permitted to be affected by their 
contract. But if the chattel be at sea, or in any other place, if 
any there be, in which the law of no particular country prevails, 
the bargain will have its full effect eo instanti, as to the whole 
world. And the circumstance of the chattel being afterwards 
brought into a country, according to the laws of which the sale 
would be invalid, would not affect it." 

A fortiori would this be true if the chattel were in the locus 
contractus at the time of the transfer (which is valid there), and 
were afterwards brought by the vendee into another State, ac- 
cording to whose law the sale, if made there, would be invalid. 
In such case the lex loci contractus should clearly prevail over 
the lex fori.' 

So also cases may be found holding that where the policy of 
the forum and situs would be contravened by the enforcement 
of the lex loci contractus, the latter must give way to the 
former law.' 

Upon principle, it would seem, in these cases, if the suit 
should be instituted in the locus contractus and not in the State 

« 7 Mart. (La.) 318, 12 Am. Dec. 508. 

7 Davis V. Williams, 73 Miss. 708, 19 So. 352 ; Walker v. Marseilles, 70 
Miss. 284, 12 So. 211 ; Bank v. Lee, 13 Pet. 107. 

8 Matthews r. Lloyd, 89 Ky. 625, 13 S. W. 106. See Hoyt v. Thompson, 
19 N. Y. 207. 



300 CHATTELS — RESERVATIONS OF TITLE. § 130 

where the chattel is situated (such cases would be rare), that 
the court should follow the lex loci contractus, the lex situs of 
the property usually governing only because it is also the forum. 
Hence when, instead of the forum and the situs at the time of 
the transfer being identical, it is the locus contractus and the 
forum that are identical, the exceptional operation of the law of 
the actual situs of the property at the time of the transfer should 
cease, and the lex loci contractus should reign supreme.* And 
so, if the forum is a third State, neither the situs nor the locus 
contractus. 

§ 130. Sale of Personalty, with Reservation of Title in 
Vendor. — At common law a reservation of title in the vendor 
of a chattel until the purchase price is paid is sustained even 
as against a purchaser from the vendee for value and without 
notice of such reservation. But in many States by statute 
the reservation is void as against third persons unless it is 
recorded. 

If therefore we suppose a chattel sold with such reservation 
in one State while the chattel is actually situated in another 
State subject to a different law, or is subsequently removed 
thither by the vendee, where it is afterwards sold by the vendee 
to a purchaser for value and without notice of the reservation, 
which law is to govern the title of the vendee's purchaser ? 

The policy of the laws which set at nought the contract for 
the reservation of the title in favor of creditors of and purchasers 
from the vendee, must be kept in mind in the solution of this 
question. Some avoid the reservation of title absolutely as 

» See Martin v. Hill, 12 Barb. (N. Y.) 631, 633 ; Edgerly v. Bush, 81 
N. Y. 199 ; Homthall v. Burwell, 109 N. C. 10, 13 S. E. 721 ; Boehme v. 
Rail, 51 N. J. Eq. 574, 26 Atl. 832. This result however is denied in one 
New York case, in which it was held that even though the suit was brought 
in the locus contractus, the transfer being valid there, it would not be sus- 
tained if invalid by the law of the actual situs of the chattels at the time of 
the transfer. This case would seem to go too far in support of the lex situs. 
Guillander v. Howell, 35 N. Y. 657. Mr. Wharton also goes to great lengths 
in giving eflfect to the lex situs, claiming that it is the " proper law." Whart. 
Confi. L. §§ 297 et seq. The true rule is that the law of the actual situs is 
effective only when it is also the lex fori, the lex loci contractus, or the lex 
domicilii. Standing alone, it is of no significance. 



§ 130 CHATTELS — RESERVATIONS OP TITLE. 801 

against such creditors and purchasers ; * while others avoid it 
as to such third persons, unless the reservation is in writing and 
recorded.'^ The purpose of these laws is to protect persons within 
the State where they are in force in advancing money to the 
vendee on the faith of an apparently complete title which is in 
reality defective, or in their purchasing the chattel from the ven- 
dee upon the faith of his title. It is not the purpose of such a 
law to protect third persons dealing with the property beyond 
the limits of the State, for with respect to such dealings that 
State has no authority to legislate. On the other hand it would 
seem to be the policy of these laws to embrace all dealings by 
third persons with the property situated within the limits of 
their authority, regardless of the law of the place where the 
vendee obtained the property and regardless of the question 
whether or not by that law the reservation of title in the ven- 
dor is valid as against third persons. 

Thus it will be seen that the real scope of these laws when 
they exist in a particular State is to embrace all personalty 
within that State^ whether the vendor's reservation of title was 
created there or elsewhere; and they do not apply to personalty 
elsewhere, or to dealings therewith elsewhere by third parties, 
even though the original sale and reservation of title took place 
in the former State. 

It follows from what has been said and from the policy of 
these laws invalidating reservations of title in the vendor as 
against creditors of and purchasers from the vendee, that it is 
usually the law of the State where the purchaser buys from th^ 
vendee or where his creditors seek to subject his interest that^"^ 
will determine the validity of the vendor's reservation of title, 
the law of the place of the vendor's contract of sale being im- 
material. And this is true whether the chattel sold is situated 
at the time of the transfer in, or is subsequently removed by the 
vendee into, the State where the subsequent dealings occur. 
Ordinarily, therefore, in such cases, it is safe to follow the rule 

1 See Marvin Safe Co. v. Norton, 48 N. J. L. 412, 57 Am, Rep. 566, 7 Atl. 
418. 

3 See Public Parks Amnsement Co. v. Carriage Co., 64 Ark. 29, 40 S. W. 
»82. 



302 CHATTELS — RESERVATIONS OF TITLE. S 130 

that the law of the place where the subsequent dealings occur 
will govern.' 

Thus, in Hervey v. Locomotive Works,* a Rhode Island com- 
pany delivered a locomotive in Rhode Island to a contractor on 
a railroad in Illinois, reserving the title until the payment of 
the price. By the law of Rhode Island the reservation of title 
was valid as against subsequent creditors of the vendee. By 
'.he law of Illinois it was invalid as against them until recorded. 
The engine was attached in Illinois by subsequent creditors of 
the vendee, and sold to Hervey. In a contest between Hervey 
and the vendor, it was held that the law of Illinois must gov- 
ern. Here the reservation of title was valid by the lex loci 
contractus, but invalid by the law of the place where the sub- 
sequent dealings therewith were had. 

On the other hand, in Weinstein v. Freyer,* the circumstances 
were just reversed, but the same law was held to govern. In 
that case the vendor sold the vendee a piano in Georgia, reserv- 
ing title. By the law of Georgia, such a reservation was in- 
valid as to purchasers from the vendee, unless recorded. In 
this case there was no recordation. Then the vendee removed 
the chattel to Alabama, and there sold it to a bona fide pur- 
chaser. The common law, prevailing in Alabama, held such res- 
ervation valid, without recordation. It was held that the rights 
of the vendee's purchaser were to be determined by the law of 
Alabama; that the contract reserving the title in the vendor 
gave the vendee a defective title in Georgia, as between the 
parties ; that when the vendee brought the piano into Alabama, 
he came with a defective title under the Georgia law ; that when 
he sold the piano in Alabama, that defect had not been cured 
by the Alabama law, which recognized the vendor's rights ; and 
that the vendee could convey the purchaser no better title than 
he himself possessed.' 

• Hervey v. Locomotive Works, 93 17. S. 664 ; Marvin Safe Co. v. Norton, 
48 N. J. L. 412, 57 Am. Rep. 566, 7 Atl. 418 ; Weinstein v. Freyer, 98 Ala. 
257, 9 So. 285 ; Public Parks Amusement Co. v. Carriage Co., 64 Ark. 29, 40 
S. W. 582 ; The Marina, 19 Fed. 760. 

• 93 U. S. 664. » 93 Ala. 257, 9 So. 285. 

• See also Marvin Safe Co. p. Norton, 48 N. J. L. 412. 57 Am. Rep. 566, 



§ 181 DONATIONS MORTIS CAUSA. 303 

§ 131. Donations Mortis Causa. — If property, trangferred by 
donation mortis causa, is situated apart from the dying owner in 
another State, in determining the "proper law " to govern the 
validity of the donation, it becomes necessary to consider whether 
it shall be deemed a transfer inter vivos or a testamentary dispo- 
sition. In truth, it is neither the one nor the other, though 
partaking of the nature of both. The title of the donee is not, 
strictly speaking, contractual, since the transfer is conditional 
and revocable, nor is it, in strictness, testamentary. 

But in ascertaining the ''proper law " to govern such a trans- 
fer it is not so necessary to observe whether the transfer is con- 
tractual or not, as to observe whether it is the result of the 
voluntary act of the owner. If it is, the *' proper law " will be 
the law of the actual situs of the owner at the time of the trans- 
fer. On the other hand if the transfer result without the active 
participation of the owner, it is involuntary, and the " proper 
law" is the law of the legal situs (or domicil) of the owner. 
Thus a title arising under the will of a testator, though at first 
glance it appears to be the result of the testator's voluntary act, 
in reality takes effect only by his death (an involuntary act), 
and is therefore classed with involuntary transfers, to be regu- 
lated by the lex domicilii of the testator.^ 

Whether a donation mortis causa is to be considered a volun- 
tary transaction, like a conveyance, to be regulated by the law 
of the actual situs of the owner (lex loci contractus), or whether 
it is to be deemed an involuntary transfer, like a will, because 
not taking effect until the donor's death, and therefore to be reg- 
ulated by the lex domicilii, is still a doubtful matter. Only one 
case has been found which deals with the question, in which the 
view was taken that the vendee's title vests immediately upon 
the donation," but that the title is defeasible by reclamation, de- 
liverance from the peril, etc. 

In that case, the decedent was domiciled in New Hampshire. 
While temporarily in Vermont, he was taken ill, and before his 
death delivered certain personalty to the defendant mortis causa. 

7 Atl. 418 ; Public Parks Amusement Co. v. Carriage Co., 64 Ark. 29, 40 S. W. 
582 ; The Marina, 19 Fed. 760. 
1 Post, § 142. 



S04 CHATTEL MOKTGAGBS — LIENS. § 132 

The donation was valid by the law of Vermont where it was 
made, but the law of New Hampshire, the donor's domicil, re- 
quired that such donations should be proved by the testimony of 
two indifferent witnesses, upon petition by the donee to the pro- 
bate court to establish the gift, filed within sixty days after the 
owner's decease. These conditions were not complied with, and 
the question arose in New Hampshire as to the validity of the 
gift, and the ''proper law" governing it. The court held that 
the donation was a voluntary and contractual, rather than a tes- 
tamentary, disposition, and that the lex loci contractus, not the 
lex domicilii, was the proper law.'^ 

§ 132. Chattel Mortgages — Liens upon Personalty. — Chat- 
tel mortgages are voluntary, though qualified, transfers, and 
being the result of contract are governed as between the parties 
thereto, like other contractual transfers, by the lex loci contrac- 
tus, not by the lex domicilii of the owner, nor the lex situs of 
the chattels unless that happens to be identical with the forum, 
as will usually be the case.^ 

But with respect to creditors of and purchasers from the mort- 
gagor, if the chattels are situated in a State other than the locus 
contractus at the time of the mortgage, and by the law of the 
actual situs and forum the chattel is void as to creditors and 
purchasers, the lex fori et situs will usually be substituted for 
the proper law, upon the ground that the enforcement of the 

* Emery v. Clough, 63 N. H. 652, 4 Atl. 796. 

1 In many of the cases, the language of the opinions would seem to indicate 
that the lex domicilii is to govern as between the parties, but it will be found 
in these cases that the transfer was made in the domicil of the owner, and 
hence the lex loci contractus and lex domicilii are identical. See Green v. Van 
Buskirk, 5 Wall. 307, 311, 312 ; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 
62 ; Nichols v. Mase, 94 N. Y. 160 ; Martin v. Hill, 12 Barb. (N. Y.) 631, 
633 ; Langworthy v. Little, 12 Gush. (Mass.) 109 ; Edgerly v. Bush, 81 N. Y. 
199 ; Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721, 722; Boehme v. Ball, 
51 N. J. Eq. 674, 26 Atl. 832 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl. 119 ; 
Barker v. Stacy, 25 Miss. 477 ; Ames Iron Works v. Warren, 76 Ind. 512, 40 
Am. Rep. 258, 259 ; Fowler v. Bell, 90 Tex. 150, 85 S. W. 822 ; Richardson 
V. Shelby, 3 Okl. 68, 41 Pac. 378 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349 ; 
Mackey v. Pettijohn, 6 Kan. App. 57, 49 Pac. 636 ; Handley v. Harris, 48 
Kan. 606, 29 Pac. 1145 ; Miles v. Oden, 8 Mart. n. s. (La.) 214, 19 Am. Dec. 
177. See Stirk v. Hamilton, 83 Me. 624, 22 Atl. 391. 



§ 132 CHATTEL MOETGAGES — LIENS. 305 

proper law would contravene the policy of the forum or would 
work a detriment to its citizens.'^ 

In Green u. Van Buskirk,' a leading case, Bates, the owner of 
certain iron safes, situated in Chicago, executed and delivered 
in New York to Van Buskirk a chattel mortgage upon them. 
Afterwards and before recordation of the mortgage as the law of 
Illinois required, Green attached the safes in Illinois as the 
property of Bates. The mortgage was valid by the law of 'New 
York as to Green, who was a citizen of that State, but by the 
law of Illinois it was invalid as to him until recorded. The 
Illinois courts sustained the attachment and ordered the safes to 
be sold and the proceeds paid to Green, which was done. Van 
Buskirk afterwards sued Green in the courts of New York for 
the value of the safes upon the ground that the property belonged 
to him and not to Bates, under the law of New York. The court 
held that by the law of New York the property was Van Bus- 
kirk's and permitted him to recover against Green.* From this 
decision an appeal was taken to the Supreme Court of the United 
States upon the constitutional ground that full faith and credit 
had not been shown by the New York courts to the Illinois judg- 
ment, and upon this ground the decision was reversed. The Su- 
preme Court held that Van Buskirk possessed a title under the 
law of New York eqital but not superior to that of Green under 
the law of Illinois; and that, although Van Buskirk was not a 
party to the attachment in Illinois, that fact did not permit him 
to set up anywhere a title which was not superior to that of the 
attaching creditor. In this case, it will be observed. Green was 
a citizen of New York, not of Illinois. The court of Illinois 
proceeded upon the supposition that the intent and policy of the 

2 See Green v. Van Buskirk, 5 Wall. 307; Smith v. Smith, 19 Gratt. (Va.) 
545 ; Ghillingworth v. Eastern Tinware Co., 66 Conn. 306, 33 Atl. 1009 ; Miles 
V. Oden, 8 Mart. N. s. (La.) 214, 19 Am. Dec. 177. If the ground of the ex- 
ception is the upholding of a general policy of the forum, the citizenship of the 
third parties is immaterial. The operation of the lex situs is just as extensive 
as the legislature intended it should be, no more and no less. See Green v. 
Van Buskirk, 5 Wall. 307; Miles v. Oden, 8 Mart n. s. (La.) 214, 19 Am. 
Pec. 177. 

» 5 Wall. 307; s. c. 7 Wall. 139. 

* Van Buskirk v. Warren, 2 Keyes (N. Y.), 119. 

20 



306 CHATTEL MORTGAGH6 — LIENS. § 132 

Illinois statutes of registry was not merely to protect its own 
citizens against secret liens, but to prohibit such liens altogether 
in that State. And the Supreme Court affirmed the sovereign 
right of the State of Illinois to deal with property within its 
limits in whatever manner it should see fit, though the owner 
lived and contracted elsewhere with reference to the property, at 
the same time admitting the equally sovereign right of the State 
of New York to make such regulations as it should deem proper 
touching the persons, transactions, or property within its limits. 
But the right of New York was only equal to that of Illinois, 
not superior to it. 

On the other hand, where a transfer of chattels in one State is 
alleged as the result of a contract made in another, the fact 
that the transfer is valid under the law of the actual situs of the 
chattels cannot make it a valid agreement, if invalid by the lex 
loci contractus. In other words, the lex situs cannot make that 
a valid executed contract which is no contract at the time and 
place it is entered into. 

Thus, in Wattson v. Campbell,^ a chattel mortgage was ex- 
ecuted in Pennsylvania upon a ship situated in New York. By 
the law of Pennsylvania such a mortgage was invalid as to 
creditors if unaccompanied by actual change of possession. Be- 
fore the mortgagee obtained possession the vessel was attached 
in New York by a Pennsylvania creditor. The court held that 
the lex loci contractus, not the lex situs, should govern. 

Most of the cases however present the question as to the law 
to be applied in cases where the property mortgaged was at the 
time of tKe mortgage in the locus contractus, but was subse- 
quently removed to another State without the consent of the 
mortgagee, the mortgage being valid as to the whole world by 
the lex loci contractus, but invalid'as to third persons by the 
law of the State to which the chattels have been removed, which 
will also in most instances be the forum. It will be observed 

' 38 N. Y. 153. But if the invalidity is created by a statute of the locus 
contractus, which has no exterritorial force, such as an insolvent or a penal 
law, it has been held that the invalidity will not be regarded in other States. 
Hoyt V. Thompson, 19 N. Y. 207 ; Scoville •. Caufield, 14 Johns. (N. Y.) 
338. 



§ 132 CHATTEL MORTGAGES — LIENS. 307 

that we now have on the side of the validity of the mortgage aa 
against third persons the lex loci contractus and the lex situs of 
the chattels at the time of the transfer, while on the side of its 
invalidity as to third persons we have the law of the actual 
situs at" the time the mortgagor's creditors subject the property 
or the property is purchased from him and (usually) the lex 
fori. 

The decided weight of authority is in favor of the view that 
since the actual situs of the chattels at the time of the transfer 
coincides with the lex loci contractus, and since by those united 
laws the mortgagee takes a title valid as against the whole 
world, no subsequent removal of the chattel without the mort- 
gagee's consent into the dominion of a different law will divest, 
in whole or in part, the mortgagee's title once vested thus as 
against the world under the law of the only State which at the 
time of the transfer could possibly have exercised any sover- 
eignty over the transaction. Under such circumstances, the lex 
loci contractus should prevail over every other law.' 

Especially has this view been taken where the question arises 
in the locus contractus, so that the locus contractus, the former 
situs of the property, and the forum all coincide.' 

Thus, in Edgerly v. Bush,' a mortgage of horses situated in 

« Barker v. Stacy, 25 Miss. 476, 477 ; Ames Iron Works v. Warreu, 76 
Ind. 512, 40 Am. Rep. 258, 259 ; Nichols v. Mase, 94 N. Y. 160 ; Langworthy 
V. Little, 12 Cush. (Mass.) 109 ; Bank v. Hill, 99 Tenn. 42, 41 S. W. 349 ; 
Richardson v. Shelby, 3 Okl. 68, 41 Pac. 378 ; Handley v. Harris, 48 Kan. 
606, 29 Pac. 1145 ; Kaoaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62 ; Mum- 
ford V. Canty, 50 111. 370, 99 Am. Dec. 525, 529 ; Craig v. Williams, 90 Va. 
500, 505 ; Bank v. Lee, 13 Pet. 107. But there are a few cases which regard 
a chattel mortgage as a mere li^n, not as a transfer of title. These cases hold 
that the lien given by the lex loci contractus, though valid, as between the 
parties, in other States whither the chattels are removed, will not be given 
priority over the claims of third parties recognized by the law of the last situs 
of the chattels and of the forum. See Corbett v. Littlefield, 84 Mich. 30, 4/ 
N. W. 581, 22 Am. St. Rep. 681 ; Cronan v. Fox, 50 N. J. L. 417, 14 Atl 
1 19. See Hervey v. Locomotive Works, 93 U. S. 664 ; Walworth v. Harris 
129 U. S. 355. 

T Edgerly v. Bush, 81 N. Y. 199 ; Martin v. HUl, 12 Barb. (N. Y.) 631 J 
, Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721. 

8 81 N. Y. 199. 



808 CHATTEL MOBTOAGBS — LIENS. § 132 

New York was there executed, which was valid under the laws 
of New York against the world. The mortgagor subsequently 
carried the horses to Canada and had them sold there in 
■market overt by a horse trader. They were sold to a party in 
Canada, who there sold them to the defendant, a resident of 
New York. The mortgagee sued the defendant in New York 
for the conversion of the horses. By the law of Canada a sale 
in market overt passed an unimpeachable title. The court held 
that the New York law should govern, and that the action 
might be maintained. 

The case of Hornthall v. Burwell,' though somewhat similar 
to Edgerly v. Bush, presents one important variation from it. 
In the North Carolina case, a mortgage was executed and duly 
recorded in North Carolina upon certain horses there situated. 
The mortgagor subsequently took the horses into Virginia, 
where they were seized and sold under an attachment sued out 
by creditors of the mortgagor. The mortgagee thereupon sued 
the attaching creditors in North Carolina to recover the debt 
secured by the mortgage, and the court held that he was enti- 
tled to recover. This case is more complicated than Edgerly 
V. Bush, in that the element of a judicial proceeding in an- 
other State is here presented, which, under the "full faith and 
credit " clause of the federal constitution, must be given the 
same effect in other States as in the State in which it is ren- 
dered. The court, in Hornthall v. Burwell, notices these prin- 
ciples, but holds that they did not apply, because the judgment 
in the attachment proceeding would have been deemed void 
even in Virginia, since the mortgagee was not a party, and 
his title had been perfected in North Carolina as against the 
world, and could not be divested by the act of a third per- 
son. ^° This case differs from Green v. Van Buskirk, above 
cited, in that here the North Carolina title was not only equal, 

» 109 N. C. 10, 13 S. E. 721. The case of Martin v. Hill, 12 Barb. (N. Y.) 
631, exhibits a similar state of facts, except that in the latter case the oflScer 
levying the attachment was the defendant, instead of the attaching creditor. 
The same result was reached in both cases. 

1" See Mumford v. Canty, 50 111. 370, 99 Am. Dec. 525 ; Craig ». Williams, 
»0 Va. 500. 



§ 133 VOLUNTARY ASSIGNMENTS FOR CREDITORS. 309 

but superior, to the claim of the attaching creditor under the 
Virginia law. 

A distinction is to be observed between a transfer of title and 
a mere lien. With respect to liens on personalty, whether ac- 
quired by the contract of the parties, "or by implication of law," 
it may be laid down as a general proposition that while the lex 
(oci contractus will regulate them as between the parties, regard- 
less of the lex situs of the chattels, as part of the effect or obli- 
gation of the transfer, " yet when the question is whether the 
lien shall take priority over the claims of other persons, the lex 
loci contractus must yield to the law of the situs and the 
forum." 

§ 133. Voluntary Assignments for Benefit of Creditors — 
General Principles. — Assignments for the benefit of creditors 
may be divided into two classes, — those which result from the 
voluntary/ transfer by contract of the insolvent debtor, and those 
which result from an involuntary or compulsory transfer by the 
act and operation of law to persons named by the law, as in the 

11 Corbett V. Littlefield, 84 Mich. 30, 47 N. W. 581, 22 Am. St. Rep. 681. 

12 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650. 

1* Erman o. Lehman, 47 La. Ann. 1651, 18 So. 650 ; Newman v. Cannon, 
43 La. Ann. 712, 9 So. 439 (cases of "vendor's privilege"). 

1* See Harrison v. Sterry, 5 Cr. 289, 298 ; Hervey v. Locomotive Works, 
93 U. S. 664 ; Corbett v. Littlefield, 84 Mich. 30, 47 N. W. 581, 22 Am. St. 
Rep. 681. But see Walworth v. Harris, 129 U. S. 355. In the last case, the 
lien did not arise by contract but by a statute of Arkansas. It was a lien upon 
crops for rent. The crops were in Arkansas when the lien for rent attached, 
and Arkansas loas the forxi.m. The lessee consigned the crop to a creditor of 
his in Louisiana, to whom he had given a deed of trust upon his crops to se- 
cure advances, the creditor having no notice of the lien for rent. The lessor 
sought in Arkansas to enjoin the trustee in the deed of trust from selling the 
crops, but the Supreme Court held that the title obtained by the Louisiana 
consignees was superior to the lien for rent conferred by the Arkansas statutes. 
If Louisiana had been the forum, the rationale of this decision would be easily 
discernible. But with the suit brought in an Arkansas court (a federal court, 
it is true, but none the less sitting to enforce the municipal law of Arkansas), 
and the chattels situated there at the time the lien attached, it is difficult to 
discern the principle upon which the decision was reached. The fact that the 
lien was statutory and not contractual might be a good reason for not giving 
it an exterritorial effect ; but why should it not have been recognized is 
Arkansas ? 



310 VOLUNTARY ASSIGNMENTS FOR CREDITORS. § 133 

case of statutory assignments to assignees in bankruptcy and 
insolvency. It is our purpose here to examine the law regu- 
lating the former class only. The latter subject will be dis- 
cussed hereafter.^ Suffice it to say that the distinction between 
the two is clearly recognized by most of the decisions.* 

For the very reason that these assignments are voluntary and 
contractual, they are subject to principles analogous to those 
controlling absolute conveyances and transfers of personalty, 
save only that, since they are primarily made for the benefit of 
creditors, questions as to the rights of the grantor's creditors 
are much more likely to arise than in cases of absolute transfer. 
But here, as there, the general leading principle is that the lex 
loci contractus is the "proper law" to regulate the transfer, 
though the property conveyed thereby is situated elsewhere, 
except when the enforcement of the lex loci contractus would 
contravene the established policy of the actual situs and forum, 
or would result in injury or injustice to its citizens.* It is also 
true here, as there, that many of the decisions use language 
indicating that it is the lex domicilii, not the lex loci con- 
tractus, that is the "proper law." But it is believed that in 

1 See post, §§ 137, 138. 

2 Crapor. Kelly, 16 Wall. 610, 622; Barnett r. Kinney, 147 U. S. 476, 
481 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1150, 1151 ;. 
Frank v. Bobbitt, 155 Mass. 112, 115 ; May v. Wannemacher, 111 Mass. 202, 
208 ; May v. Bank, 122 111. 551, 13 N. E. 806, 807 ; Barth v. Backus, 140 
N. Y. 230, 235 ; Moore v. Willett, 35 Barb. (N. Y.) 663 ; Long v. Girdwood, 
150 Penn. St. 413, 24 Atl. 711, 23 L. R. A. 33, note; Speed v. May, 17 
Penn. St. 91, 94, 55 Am. Dec. 540 ; Milne v. Moreton, 6 Binn. (Penn.) 353,. 
361, 369, 6 Am. Dec. 466; Butler w. Wendell, 57 Mich. 62, 23 N.W. 460, 
462, 58 Am. Rep. 329 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466, 467 ; 
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309 ; Walters v. Whitlock, 9 Fla. 
86, 76 Am. Dec. 607, 608. 

8 Barnett v. Kinney, 147 U. S. 476; Frank v. Bobbitt, 155 Mass. 112, 
115 ; May v. Wannemacher, 111 Mass. 202, 208 ; Williams v. Dry Goods Co., 
4 Okl. 145, 43 Pa«. 1148, 1150 ; Butler v. Wendell, 57 Mich. 62, 58 Am. 
Rep. 329, 23 N. W. 460, 462; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466; 
In re Dalpay, 41 Minn. 532, 43 N. W. 564 ; Law v. Mills, 18 Penn. St. 185 ; 
Speed V. May, 17 Penn. St. 91, 94, 55 Am. Dec. 540 ; Fuller v. Steiglitz, 27 
Ohio St. 355, 22 Am. Rep. 312 ; Walters v. Whitlock, 9 Fla. 86, 76 Am. Dec. 
607; Schuler v. Israel, 27 Fed. 851 ; Atherton Co. v. Ives, 20 Fed. 894. 



§ 133 VOLUNTARY ASSIGNMENTS FOB CREDITORS. 31] 

b11 these cases the assignment was made at the domicil, or else 
the statement is a mere dictum,* 

Furthermore, if land situated abroad is the subject of the 
assignment, notwithstanding the general principle that the lex 
situs governs the validity and effect of all transfers of real 
estate, the better opinion is that, so far as the mere effect of the 
assignment as such is concerned, it is to be governed also by 
the lex loci contractus. The lex situs of the land, it is true, 
will govern so far as to determine the effect of the assignment 
in operating to pass the title to the assignee : it must be such a 
conveyance, in respect to the parties, the form, and the sub- 
stance, as would operate to transfer the title to land under the 
lex situs. But these points being settled, it does not necessarily 
follow, because the deed would fail as an assignment for the 
benefit of creditors, if executed in the situs of the land, that it 
will there be considered invalid if valid by the lex loci con- 
tractus. In other words, its validity as a conveyance to pass 
title must be determined by the lex situs, but its effect as an 
assignment is to be determined by the lex loci contractus, unless 
the enforcement of the lex loci contractus would contravene the 
policy of the situs (and forum), or would injure its citizens.® 

* See Cole v. Cunningham, 133 U. S. 107, 128 ; Speed v. May, 17 Penn. 
St. 91, 55 Am. Dec. 540 ; Barth v. Backus, 140 N. Y. 230, 234, 235 ; Ocker- 
man v. Cross, 54 N. Y. 29, 32 ; Guillander v. Howell, 35 N. Y. 657, 658 ; 
Moore v. Land Co., 82 Md. 288, 33 Atl. 641, 642; Fuller v. Steiglitz, 27 
Ohio St. 355, 22 Am. Rep. 312. 

6 Ante, § 11 ; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671» 
675 ; "Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1151 ; May v. 
Bank, 122 111. 551, 13 N. E. 806 ; Juilliard v. May, 130 111. 87, 22 N. E. 
477; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ; Thurston v. Rosenfield, 42 
Mo. 474, 97 Am, Dec. 351 ; Chafee r. Bank, 71 Me. 514, 36 Am. Rep. 345. 
But some of the decisions are uncompromising in holding that the lex situs of 
the realty is to control under all circumstances. See Loving v. Pairo, 10 la. 
282, 77 Am. Dec. 108; Moore v. Church, 70 la. 208, 59 Am. Rep. 439 ; Bank 
V. Stelling, 31 S. C. 360, 9 S. E. 1028. So far as principle is concerned, the 
diCFerence between these two lines of decision is more apparent than real. It 
is in reality a question of the construction of the statutes of the situs, and of 
the importance to be attached to their policy. Both lines of decision agree 
that the lex situs is the final arbiter, but they diverge upon the question as 
to what are the requirements of the lex situs in respect to foreign assign* 



312 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 134 

The same general rule is also applicable where the subject of 
the assignment is a chose in action. Subject to the exceptions 
already mentioned, the lex loci contractus is the ''proper law," 
and will control.® 

If at the time of the transfer the property passing under the 
assignment is situated in the locus contractus, the assignment 
being good there, the subsequent removal of the property into 
another State, by whose law the assignment is invalid, will not 
affect the operation of the lex loci contractus ; and it seems that 
this is true, whether or not the assignee has actually acquired 
possession of the property prior to the removal. The union 
of the lex loci contractus and the lex situs at the time of the 
assignment bestows upon the assignee a title unimpeachable even 
in the courts of the State whither the property is removed.'' 

In the following sections we will consider the cases in which 
the ''proper law " will be substituted by the lex fori et situs. 

§ 134. What Creditors may Attack a Voluntary Assign- 
ment. — The mere fact that an assignment, valid where made, 
would have been invalid if the assignment had been mad« in 
the situs, does not of itself necessarily lead the courts of the 
situs to pronounce it invalid. The lex loci contractus is the 
proper law, and will prevail, unless one of two states of facts 
exists. The lex fori et situs may be substituted for the proper 
law, and may invalidate an assignment valid where made 
(though it will not validate an assignment invalid where 
made) in the following cases : (1) Where the creditors attack- 
ing the assignment are citizens of the forum, and rely upon 

merits. Is the iex situs to be applied literally in the case of assignments 
made in another State as well as in the case of domestic assignments, or is 
the lex situs intended to apply only to assignments made in the situs ? See 
Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 675 ; Chafee v. 
Bank, 71 Me. 514, 36 Am. Rep. 345, 351. 

6 Black V. Zacharie, 3 How. 483, 511 ; Butler v. "Wendell, 57 Mich. 62, 23 
N. "W. 460, 58 Am. Rep. 329 ; Ingraham v. Geyer, 13 Mass. 146 ; Speed v. 
May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Woodward v. Brooks, 128 111. 222, 
20 N. E. 685 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Askew v. Bank, 
83 Mo. 366, 53 Am. Rep. 590 ; In re Dalpay, 41 Minn. 532, 43 N. W. 564. 

T May V. Wannemacher, 111 Mass. 202, 209; Moore v. Willett, 35 Barb. 
(N.Y.) 663, 665; Vamum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476. 



§ 134 WHAT CBEDITORS MAY ATTACK ASSIGNMENT. 318 

the lex fori as applicable to the transfer; (2) Where the enforce* 
ment of the lex loci contractus would contravene a pronounced 
policy of the forum. The first case is but one instance of the 
second, and they frequently merge into each other; but for the 
purposes of discussion here, they will be treated separately. 

With respect to the first of these cases, it may be said that if 
the lex fori et situs invalidates an assignment valid where made, 
the policy of the law of the situs is at the very least to protect 
creditors who are its own citizens. It may or it may not intend 
to extend this protection to citizens of other States also, but it 
always goes to the former extent. Otherwise there would be no 
object in invalidating the assignment. Hence there will be 
found but few cases which, as against resident creditors, sup- 
port a voluntary assignment declared invalid by the lex fori et 
situs, though valid by the lex loci contractus.^ The overwhelm- 
ing current of authority is to the effect that resident creditors 
may always take advantage of the invalidity (under the lex fori 
et situs) of an assignment validly executed elsewhere.' 

1 See Speed v. Maj, 17 Penn. St. 91, 55 Am. Dec. 540 ; Law v. Mills, 18 
Fenn. St. 185 ; Train v. Kendall, 137 Mass. 366 ; which seem to go to this 
extreme in favor of the lex loci contractus. In the following cases the lex 
loci contractus and the lex fori et situs, despite minor differences, were re- 
garded as substantially similar, and hence resident creditors were denied 
relief, though some of them contain dicta to the effect that resident and non- 
resident creditors should always be placed upon the same footing. Atherton 
Co. V. Ives, 20 Fed. 894 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ; 
Fuller V. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312 ; Law v. Mills, 18 Penn. 
St. 185 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 At]. 696. The last 
case did not involve conflicting titles under different laws, but merely superi- 
ority or priority of title. The point in that case was whether a creditor domi- 
ciled in Connecticut, having notice of an assignment made in New York, could 
attach goods in Connecticut embraced in the assignment. It was held that he 
could not. 

2 Bamett v. Kinney, 147 U. S. 476, 481 ; Frank v. Bobbitt, 155 Mass. 112 ; 
Faulkner v. Hyman, 142 Mass. 53, 54, 55 ; Zipcey t'. Thompson, 1 Gray (Mass.), 
243 ; May v. Bank, 122 111. 551, 13 N. E. 806 ; Woodward v. Brooks, 128 111. 
222, 20 N. E. 685 ; Juilliard v. May, 130 111. 87, 22 N. E. 477 ; Vamum v. 
Camp, 1 Gr. L. (N. J.) 326, 25 Am, Dec. 476 ; Bentley v. Whittemore, 19 
N. J. Eq. 462, 97 Am. Dec. 671, 677 ; Green v. Iron Works, 49 N. J. Eq. 48, 
23 Atl. 498 ; Walters r. Whitlock, 9 Fla. 86, 76 Am. Dec. 607 ; Egbert v. 
Baker, 58 Conn. 319, 20 Atl. 466, 467 ; Williams v. Dry Goods Co., 4 OkL 



314 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 134 

Whether or not non-resident creditors will be accorded the 
same privilege is to be determined, in the absence of express 
legislative provision, by the policy of the statutes of the forum 
in the particular case. It is impossible to lay down any general 
rules by which this can be decided. The statute, its language, 
provisions, purposes, scope, etc., are all elements which must be 
reckoned with in determining the policy of the forum. More 
usually, perhaps, the policy of such statutes is held to be con- 
fined to the protection of domestic creditors only. But many 
cases treat the policy indicated by the statutes of the forum 
with such respect, when markedly opposed to the lex loci con- 
tractus, as to substitute the lex fori et situs for the lex loci 
contractus in all cases, regardless of the citizenship of the 
attacking creditors.* 

Some of the courts also distinguish between cases where the 
attacking creditors are citizens of the loctis contractus and where 
they are citizens of the forum or of third States. These cases, 
though giving the benefit of the lex fori et situs to creditors 
generally, whether resident in the forum or not, refuse it to the 
citizens of the locus contractus, and require that their rights 
should be determined by their own law.* It is difficult to see 
any sound basis for this rule save perhaps some general princi- 

145, 43 Pac. 1148, 1151 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309; 
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345 ; Bacon v. Home, 123 Penn. 
St. 452, 16 Atl. 794 ; Thurston v. Eosenfield, 42 Mo. 474, 97 Am. Dec. 351 ; 
Sheldon v. Wheeler, 32 Fed. 773 ; Schuler v. Israel, 27 Fed. 85. 

' Instances of this view taken of the supreme importance of the domestic 
policy may be found in the following cases : Atherton Co. v. Ives, 20 Fed. 
894 ; Barth v. Backus, 140 N. Y. 230; Woodward v. Brooks, 128 111. 222, 20 
N. E. 685, 686 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696 ; 
Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345 ; Ramsey v. Stevenson, 5 Mart 
(La.) 23, 12 Am. Dec. 468 ; Ex parte Dickinson, 29 S. C. 453, 7 S. E. 593; 
Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028. 

* See Barnett v. Kinney, 147 U. S. 476, 481 ; Cole v. Cunningham, 133 
U. S. 107, 128, 129 ; Halsted v. Straus, 32 Fed. 279 ; Williams v. Diy Goods 
Co., 4 Okl. 145, 43 Pac. 1148, 1150 ; Woodward v. Brooks, 128 111. 222, 20 
N. E. 685 ; Richardson v. Leavitt, 1 La. Ann. 430, 45 Am. Dec. 90 ; Faulkner 
V. Hyman, 142 Mass. 53, 55 ; May v. Wannemacher, 111 Mass. 202, 209 ; 
Whipple V. Thayer, 16 Pick. (Mass.) 25, 2« Am. Dec. 626 ; In re Dalpay, 41 
Minn. 532, 43 N. W. 564, 566. 



I 134 WHAT CREDITORS MAY ATTACK ASSIGNMENT. 315 

pie of estoppel.* But such an explanation loses sight of the 
fact that it is the policy of the forum which is to he enforced 
by its courts. That policy, it would seem clear, would gener- 
ally be intended to apply to the protection either of residents of 
the forum only, or of all creditors, regardless of citizenship. 
It would be highly improbable that the legislature, in enacting 
the statute, intended to create a shifting rule, applicable to some 
non-resident creditors and not to others ; and no such presump- 
tion should be made, without plain evidence that such is the 
legislative intent. The better view is that all non-resident 
creditors should be placed upon the same footing, whether they 
reside in the locus contractus or in third States, to be either all 
included in, or all excluded from, the operation of the lex fori 
et situs, according as the circumstances point to one or the other 
•course as that contemplated by the policy of the forum.' 

The above principles are applicable to assignments valid 
where made, but which, if executed in the forum, would be in- 
valid as against creditors. But some of the courts have gone 
further, holding that, although the assignment is not incon- 
sistent either with the lex fori et situs or the lex loci contractus, 
the mere fact that it is a. foreign assignment will be sufficient to 
entitle creditors resident in the forum to attach the property 
thereby transferred, on the ground that resident creditors are 
entitled to payment out of property in the forum, before it can 
be taken out of the State to be distributed according to a foreign 
law.'' But the great weight of authority is in favor of the rule 
that the title, once validly vested by the lex loci contractus in 

' See Faulkner v. Hyman, 1 42 Mass. 53, 55. 

6 See Green v. Van Buskirk, 5 Wall. 307 ; s. c. 7 Wall. 139 ; Barth v. 
Backus, 140 N. Y. 230, 238 ; Warner v. Jaffray, 96 N. Y. 248 ; Moore v. 
Church, 70 la. 208, 59 Am. Rep. 439 ; Chafee v. Bank, 71 Me. 514, 36 Am. 
Rep. 345, 349 ; Vamum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dee. 476, 
487 ; Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468 ; Atherton Co. 
V. Ives, 20 Fed. 894. See Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. It 
is probably otherwise, if the transfer is by operation of law. See post, § 138 ; 
ante, § 118. 

T Fox r. Adams, 5 Me. 245 ; Woodward v. Brooks, 128 111. 222, 20 N. E. 
685, 686 ; Holmes v. Remsen, 20 Johns. (N. Y.) 255, 265, 11 Am. Dec. 269 .• 
Ingraham v. (Jeyer, 13 Mass. 146. 



316 ASSIGNMENTS — PREFERENCES, ETC. § 135 

the assignee by the voluntary and contractual act of the owner 
(it is otherwise in the case of involuntary assignments in bank- 
ruptcy '), and not invalidated by the lex fori et situs, is not 
subject to impeachment by creditors resident in the forum or 
elsewhere, merely because the contract is made abroad. The 
assignment is here made in the exercise of the owner's jus dis- 
ponendi, which should receive exterritorial recognition, save 
when the disposition is prohibited by the lex fori.^ 

§ 135. Policy of the Forum. — Although the invalidity of 
a foreign assignment under the lex fori et situs will suffice in 
general to defeat the assignment, so far as residents of the forum 
are concerned, it does not necessarily follow that the lex fori et 
situs will be substituted in behalf of non-resident creditors also. 
Whether or not this result will follow will depend upon the con- 
struction placed by the courts of the forum upon the policy of 
its laws. And this in turn will depend in large measure upon 
the language and scope of the domestic statutes. 

Perhaps the most usual objection that has been taken under 
the lex fori to voluntary assignments valid in the locus con- 
tractus is upon the ground of preferences of creditors. 

Under these circumstances, the lex fori et situs will generally 
be substituted for the proper law, as respects resident creditors, 
and the assignment will be regarded as ineffectual as to them.^ 
But even as to resident creditors, if the lex fori does not render 
the assignment void because of preferences, but merely provides 
in such case that the assignment shall be regarded as made for 
the benefit of all creditors equally or pro rata, it has been 

8 See post, §§ 137, 138. 

9 Crapo V. Kelly, 16 Wall. 610, 622 ; Walters v. Whitlock, 9 Fla. 86, 76 
Am. Dec. 607, 612 ; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590 ; Train v. 
Kendall, 137 Mass. 366 ; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 
312 ; Atherton Co. v. Ives, 20 Fed. 894 ; Law v. Mills, 18 Penn. St. 185 ; 
Ockerman v. Cross, 54 N. Y. 29 ; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 
893 ; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696. 

1 Varnum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476 ; Bentley v. 
Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 674 ; Green v. Iron Works, 
49 N. J. Eq. 48, 23 Atl. 498 ; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 
1148 ; Zipcey v. Thompson, 1 Gray (Mass.), 243 ; Bryan v. Brisbin, 26 Mo. 
423, 72 Am. Dec. 219 



§ 135 ASSIGNMENTS — PREFERENCES, ETC. 317 

sometimes held that the lex loci contractus should prevail.' 
The reason is that the policy of the forum in such cases is not 
sufficiently pronounced to justify the courts of the forum iu 
substituting the lex fori for the proper law. But it seems that 
if the property conveyed is real estate, any material departure 
from the lex situs in this respect will, as against resident cred- 
itors, invalidate the assignment.^ 

With respect to non-resident creditors, much more latitude 
is shown in enforcing the assignment according to the lex loci 
contractus. Indeed the lex fori must very clearly include 
within its protecting scope all creditors and all transactions 
wherever executed relating to the property situated within its 
jurisdiction, in order for it to override the lex loci contractus 
with respect to others than residents. The presumption is that 
it is intended to apply only to assignments made within its own 
limits or for the protection of its own citizens.* 

These principles apply to other regulations of the forum as 
well as to those relating to preferences of creditors. Thus where 

2 Atherton Co. v. Ives, 20 Fed. 394 ; Law v. Mills, 18 Penn. St. 185 ; 
Ockerman v. Cross, 54 N. Y. 29. See Bamett r. Kinney, 147 U. S. 476 ; 
Varnum v. Camp, 1 Gr. L. (N. J. ) 326, 25 Am. Dec. 476. 

3 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Bentley v. "Whit- 
temore, 19 N. J. Eq. 462, 97 Am. Dec. 671 ; Chafee v. Bank, 71 Me. 514, 
36 Am. Rep. 345 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306. See Moore 
V. Church, 70 la. 208, 59 Am. Rep. 439 ; Loving v. Pairo, 10 la. 282, 77 Am. 
Dec. 108 ; Bank r. Stelling, 31 S. C. 360, 9 S. E. 1028. 

* Bamett v. Kinney, 147 U. S. 476 ; Williams v. Dry Goods Co., 4 OkL 
145, 43 Pac. 1148 ; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 
671, 677 ; Frank v. Bobbitt, 155 Mass. 112 ; May v. Bank, 122 111. 551, 13 
N. E. 806 ; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Thurston v. Rosen- 
field, 42 Mo. 474, 97 Am. Dec. 351 ; Law v. Mills, 18 Penn. St. 185 ; Speed 
V. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Chafee v. Bank, 71 Me. 514, 36 
Am. Rep. 345. An example of a domestic policy so pronounced as to override 
the lex loci contractus altogether will be found in Ex parte Dickinson, 29 S. C. 
453, 7 S. E. 593, in which a foreign assignment of personalty was avoided 
as to non-resident creditors under the lex fori which provided that any as- 
signment by an insolvent debtor containing preferences should be absolutely 
void. See also Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874. Other exam- 
ples may be found in some of the cases involving real estate. Bank v. Stell- 
ing, 31 S. C. 360, 9 S. E. 1028 ; Moore v. Church, 70 la. 208, 59 Am. Rep. 439. 
But see Atherton Co. u. Ives, 20 Fed. 894. 



318 ASSIGNMENTS — PREFERENCES, ETC. § 135 

the lex fori prescribes that assignments must be recorded, un- 
recorded foreign assignments, valid and effectual to pass title 
to the assignee where made, have been sustained or set aside 
according to the view of the particular court touching the scope 
of the domestic policy. The tendency is in favor of upholding 
the assignment, where non-resident creditors are concerned.^ 

So the question whether an assignment is invalid as fraudu- 
lent per se, because of reservations and conditions contained in 
the deed, is to be decided by the same principles.' And so with 
respect to the effect upon the validity of the assignment of a 
failure of creditors to consent thereto.^ 

6 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148 ; Warner r. JafiFray, 
96 N. Y. 248 ; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540 ; Birdseye v. 
Underhill, 82 Ga. 142, 7 S. E. 863 ; Butler v. Wendell, 57 Mich. 62, 23 N. W. 
460, 58 Am. Rep. 329 ; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 893. See 
Douglas V. Bank, 97 Tenn. 133, 36 S. W. 874 ; Rice v. Courtis, 32 Vt. 460, 
78 Am. Dec. 597. 

« Woodward v. Brooks, 128 111. 222, 20 N. E. 685 ; Livermore v. Jenckes, 
21 How. 126 ; Rice v. Courtis, 32 Vt. 460, 78 Am. Dec. 597 ; Moore v. Wil- 
lett, 35 Barb. (N. Y.) 663 ; Graves «;. Roy, 13 La. 454, 33 Am. Dec. 568 ; 
Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468 ; Railroad Co. v. 
Glenn, 28 Md. 287, 92 Am. Dec. 688. See Wattson v. Campbell, 35 N. Y. 
153; Gardner v. Lewis, 7 GiU (Md.), 378, 393, 398. 

' Frank r. Bobbitt, 155 Mass. 112 ; Faulkner v. Hyman, 142 Mass. (3 ; 
May r Wannemacher, 111 Mass. 203. 



§136 INVOLUNTARY TRANSFERS -MARRIAGE. 319 



CHAPTER XII. 

INVOLUNTARY TRANSFERS OF PERSONALTY INTER VIVOS 

§ 136. Transfers by Marriage. — We have already observed 
time and again the distinction between voluntary and involun- 
tary transfers. In the former case, except where the actual 
situs of the property is the forum and there is ground to substi- 
tute the lex fori, the legal situs of the chattels is to be referred 
to the actual situs of the owner at the time of the transfer, and 
the lex loci contractus becomes the "proper law." In the case 
of involuntary transfers by operation of law, on the other hand, 
the legal situs of the chattels is to be referred to the legal situs 
(or domicil) of the owner at the time of the transfer, and the lex 
domicilii becomes the "proper law; " subject to be substituted 
by the lex fori et situs of the chattels, wherever the policy of 
the forum requires it. 

To this class of involuntary transfers by operation of law 
belong those transfers, which take place under some laws, of the 
personal property of one consort to the other upon marriage. 
Thus the common law conferred upon the husband an absolute 
title to the chattels of the wife immediately upon the marriage, 
and a similar title to her choses in action, provided he reduced 
them into possession during the coverture. By the Roman law 
the property of the consorts was held in community. Numerous 
variations of these rules, as well as some entirely distinct, exist 
in the various States, and it becomes important to observe the 
law which properly governs the rights of the consorts in the 
personalty of each other. 

These transfers, and the law properly governing them, have 
already been discussed in preceding sections, where they were 
regarded in the aspect of incidents of the marriage status, and 
we there saw that the lex domicilii of the parties at the time the 



320 INVOLUNTARY TRANSFERS IN BANKRUPTCY. § 13T 

property was acquired is (independently of nuptial agreement) 
the '* proper law" to control the rights of the parties.^ Re- 
garding them now in the aspect of involuntary transfers by opera- 
tion of law, exactly the same result is reached. The discussion 
of the principles involved need not be repeated here. 

§ 137. Involuntary Assignments in Bankruptcy or Insol- 
vency. — In cases of bankruptcy, where bankrupt or insolvent 
laws prevail, the property of the insolvent is transferred by 
order of court or by operation of law, for the benefit of all the 
creditors, to an assignee, who stands to a certain extent in the 
shoes of the insolvent debtor. 

The primary object of such laws is the protection of cred- 
itors, and it is only where the assignment takes place at their 
instance that it can be termed ''involuntary." In this respect, 
such transfers differ from ordinary transfers in invitum, like 
transfers upon marriage, the primary purpose of which is not 
the protection of creditors or third persons. 

Whether the voluntary feature which appears in some bank- 
rupt laws is to be referred to this head or to that of voluntary 
transfers of personalty, is not entirely settled,^ and in the suc- 
ceeding discussion it will be left out of consideration. 

The question now to be examined is the effect to be given in 
other States to an involuntary assignment in bankruptcy or in- 
solvency in the State of the insolvent's domicil; whether or not 
it is to be deemed of universal obligation, so as to transfer to 
the assignee the insolvent's movable property wherever situated, 
and thus withdraw it from the reach of creditors in the courts 
of the actual situs. 

1 Ante, §§ 80-82. 

1 See Egbert v. Baker, 58 Conn. 319, 20 Atl. 466 ; Barth v. Backus, 140 
N. Y. 230 ; May v. Wannemacher, 111 Mass. 202, 209; Harvey v. Edens, 66 
Tex. 420, 6 S. W. 306, 309 ; Butler v. Wendell, 57 Mich. 62, 58 Am, Rep. 
329, 23 "N". W. 460, 462 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442. 
It would seem upon principle, since the bankruptcy proceeding even when 
voluntary is in the nature of a judicial adjudication, and, as &ach, a proceeding 
in rem, it could only be effectual as to such property as is within the jurisdic- 
tion. Nor can such a proceeding be said to be contractual, since it is done 
without the assent of the creditors whose debts are thereby released. See 
Barth ». Backus, supra. 



§ 137 INVOLUNTARY TRANSFERS IN BANKRUPTCY. 321 

Upon this point the English decisions are directly opposed 
to the overwhelming weight of American authority. In Eng- 
land, it is the established doctrine that for the purposes of a 
transfer of this kind the owner's chattels wherever situated 
must be presumed to have their legal situs at his domicil, and 
therefore the disposition of them must be governed by the lex 
domicilii. If by that law the title of the assignee is valid, it 
must be so held everywhere, even as against creditors resident 
in the actual situs and forum. ^ 

It is impossible to defend the position of the English courts 
upon any principle of private international law. They admit 
that upon the transfer of personalty by operation of law to the 
administrator of a decedent, so far as creditors are concerned, 
the lex situs et fori is to govern the administration of the assets, 
and not the lex domicilii. Yet the assignment in bankruptcy 
is perhaps even a stronger case, for in the former case there 
may be no creditors at all, whereas, in the latter, the very pur- 
pose and the only purpose of the assignment is the protection 
of creditors. The principle therefore which induces the rule, 
for the protection of creditors, that the transfer of personalty to 
an administrator by the lex domicilii has no exterritorial effect, 
so long as creditors in the situs and forum remain unsatisfied, 
would seem to apply with even greater force to involuntary 
assignments in bankruptcy. 

Such at least has been the reasoning of the American courts. 
Although the great weight of Chancellor Kent's opinion was 
given, in a masterly decision, in support of the English doc- 

» Story, Confl. L. § 409 ; Booth v. Clark, 17 How. 322, 336 ; Holmes v. 
Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581; Paine v. Lester, 44 
Conn. 196, 26 Am. Rep. 442, 443. With respect to land however, even in 
England, it seems to be admitted that an assignment in bankruptcy will have 
no effect. See Oakley v. Bennett, 11 How. 33 ; Williams v. Dry Goods Co., 
4 Okl. 145, 43 Pac. 1148, 1151 ; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306 ; 
Chipman r. Peabody, 159 Mass. 420, 34 N. E. 563. In support of the Eng- 
lish view it is claimed that the assignment in bankruptcy is after all a voltin- 
tary assignment, since every citizen is supposed to consent to the laws of his 
country. See Holmes v. Remsen, 4 Johns. Ch. 460, 8 Am. Dec. 581 ; Milne v. 
Moreton, 6 Binn. (Penn.) 353, 361, 6 Am. Dec. 466. Pari ratione, an 
assault or other tort is a breach of contract ! 

21 



322 INVOLUNTARY TBANSFERS IN BANKRUPTCY. § 187 

trine,* his view has been overruled in this country. It is now 
thoroughly established in the United States, that assignments 
in bankruptcy or insolvency of personal property are to be given 
no exterritorial force ex proprio vigore.* The same general 
principles are to be applied here as in the case of receivers,^ 
and administrators.® 

But it does not follow, because ex proprio vigore the assign- 
ment has no exterritorial effect, that no such effect is under any 
circumstances to be accorded it. On the contrary, except with 
respect to land, the general rule of comity is to recognize the 
title conferred by the lex domicilii upon the assignee in every 
State where the insolvent's property may be located, save only 
where the interests of the forum or of creditors require that it 
shall be disregarded. Hence, if the case does not affect cred- 
itors in the forum, but merely relates to the title of the assignee 
and his right to collect and sue for debts due the insolvent, the 
transfer to the assignee under the lex domicilii is sustained.'' 

In Holmes v. Remsen,* the question was whether a voluntary 

8 Holmes v. Remsen, 4 Johns. Ch. 460, 8 Am. Dec. 581. See Blake v. 
Williams, 6 Pick. (Mass.) 286, 309, 17 Am. Dec. 372 ; Paine v. Lester, 44 
Conn. 196, 26 Am. Rep. 442, 443. 

* Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 466 ; Blake v. "Wil- 
liams, 6 Pick. (Mass.) 286, 308, 17 Am. Dec. 372 ; Crapo v. Kelly, 16 Wall. 
610 ; Booth v. Clark, 17 How. 322 ; Harrison v. Sterry, 5 Cr. 289 ; Paine v. 
Lester, 44 Conn. 196, 26 Am. Rep. 442 ; Willetts v. Waite, 25 N. Y. 577, 
584, 586 ; Barth v. Backus, 140 N. Y. 230, 235 ; McClure v. Campbell, 71 
Wis. 350, 37 N. W. 343 ; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367 ; 
Hervey v. Edens, 66 Tex. 420, 6 S. W. 306; Sturtevant v. Armsby Co., 66 
N. H. 557, 23 Atl. 368. 

6 Ante, §§ 117, 118. See Booth v. Clark, 17 How. 822. 

6 Ante, §§ 106, 107. 

^ Milne v. Moreton, 6 Binn. (Penn.) 353, 363, 365, 6 Am. Dec. 466 ; 
Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444 ; Willetts v. Waite, 25 
N. Y. 577, 583, 584 ; Kirkland v. Lowe, 33 Miss. 423, 69 Am. Dec. 355, 
356. But if the property assigned is a non-negotiable chose in action, the 
assignee takes only an equitable title, and cannot sue thereon in his own 
name unless the lex fori permits it. Kirkland v. Lowe, 33 Miss. 423, 69 Am. 
Dec. 355, 356 ; Milne v. Moreton, 6 Binn. (Penn.) 353, 6 Am. Dec. 466. This 
is in conformity to the general principle that the lex fori controls the remedy. 
See post, § 206. 

• 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581. 



§ 137 INVOLUNTARY TRANSFERS IN BANKRUPTCY. 323 

payment in England by a New York debtor to the Englisli as- 
signee of an English bankrupt was a good defence to a New 
York attachment and garnishment by an American creditor of 
the bankrupt. Chanceller Kent decided that it was. Keason- 
ing from analogy to the case of the payment of debts to a for- 
eign administrator," it would seem that this decision was correct, 
even supposing (as proved to be the case here) that there were 
creditors to claim the debt in the New York courts. The pay- 
ment was made in England, the situs of the assignee's author- 
ity. This decision has been frequently disapproved in the later 
American cases, in respect to its general views as to involuntary 
assignments. 

It w^ill be observed that the great practical difference between 
voluntary assignments for the benefit of creditors and involun- 
tary assignments in bankruptcy, so far as their exterritorial e:ffect 
is concerned, is that the former, being contractual and an exercise 
of the owner's jus disponendi, takes effect in other States ex 
propria vigore, according to the terms of the disposition, unless 
it is invalid and prohibited by the lex situs et fori ; while the 
latter, being the result merely of an act of the law for the pro- 
tection of creditors, has no more inherent exterritorial effect than 
has the law creating it. Any such effect accorded to it is due 
merely to comity and policy, and neither of these call for its 
recognition in other States whose interests or policy dictate a 
contrary course, as will be the case wherever there are creditors 
there. And this is true, though there be nothing in the lex 
situs et fori to invalidate such a transfer, or even though the 
latter law be identical in terms with the lex domicilii. The 
mere fact that there are creditors in the forum is sufficient to 
induce the courts of the forum to disregard the foreign assign- 
ment, until the creditors are satisfied." 

But as in the case of receivers,^^ if the property is in the State 
of the assignment and the assignee in bankruptcy takes posses- 

9 Ante, § 109. 

1° So, if there are in the forum purchasers of the insolvent's property, with- 
out notice of the assignment. See Willetts v, Waite, 25 N. Y. 577, 684 j 
Johnson v. Hunt, 23 Wend. (N. Y.) 88. 

" Ante, §§ 117, 118. 



324 WHAT CREDITORS MAY ATTACK ASSIGNMENT. § 138 

sion, the fact that it is subsequently found in another State will 
not deprive the assignee of his title conferred by the lex dom- 
icilii and the lex situs also." 

Difficulty is sometimes experienced in determining whether 
a particular assignment under the insolvent laws of a State is 
to be deemed voluntary or involuntary. It has been said in 
some cases that if the assignment is ''statutory," it comes 
within the principles above laid down.^* But this term is 
likely to mislead, since it is not true that every assignment 
regulated by statute is involuntary. In Barth v. Backus," it 
is said that the test to determine whether an assignment shall 
be given exterritorial effect is found in the query whether or 
not the insolvent is thereby discharged of all further liability 
for his debts. And this is believed to be the true test; for 
even though the assignment in such a case is a voluntary act 
on his part it is not voluntary on the part of the creditors, who 
are thereby compelled to release their debts. The assignment 
is not contractual, for only one party enters into it willingly. 
And of course if the act is not that of the owner, but through 
the intervention of a court or officer appointed by law, it is an 
involuntary assignment.^^ 

§ 138. Creditors for -whose Benefit Assignment disregarded. 
— Nothing in connection with this subject is better settled than 
that transfers in bankruptcy or insolvency have no exterritorial 
force, so far as concerns debts due the State of the situs and 
forum in the shape of taxes, etc.,^ or due to residents of that 

w Crapo V. Kelly, 16 Wall. 610, 622. 627; Cole v. Cunningham, 133 U. S. 
107, 128; May v. Wannemacher, 111 Mass. 202, 209 ; Willetts v. Waite, 25 
N. Y. 577, 584 ; Plestorou. Abraham, 1 Pai. Ch. (N. Y.) 236 ; Smith v. Eaton, 
36 Me. 298, 58 Am. Dec. 746, 749. 

18 Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309 ; Frank v. Bobbitt, 155 
Mass. 112; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 445 ; Butler v. 
Wendell, 57 Mich. 62, 58 Am. Rep. 329, 23 N. W. 460, 462. 

" 140 N. Y. 230, 237. 

» See May v. Bank, 122 111. 551, 13 N. E. 806, 807 ; Kirkland v. Lowe, 
33 Miss. 423, 69 Am. Dec. 355 ; Butler v. Wendell, 57 Mich. 62, 58 Am. 
Bep. 329; Willetts v. Waite, 25 N. Y. 577, 587; Egbert v. Baker, 58 Conn. 
319, 20 Atl. 466 ; May v. Wannemacher, 111 Mass. 202, 208, 209. 

1 Harrison v. Sterry, 5 Cr. 289 ; Willetts v. Waite, 25 N. Y. 577, 586. 



§ 138 WHAT CREDITORS MAY ATTACK ASSIGNMENT. 325 

State.' Nor do the American courts stop there. The current 
of authority is in favor of extending the same privileges to 
creditors who are residents of third States and who desire to 
take advantage of the remedies afforded by the situs.* 

Indeed, some of the courts have gone so far as to say that to 
hold a foreign assignment invalid as to the residents of the 
forum, but valid as to residents of other States of this Union, 
would be in contravention of the federal constitution.* Although 
this position cannot be sustained, it tends to show how fixed with 
us in such cases is the policy of the open door to creditors gener- 
ally. No good reason can be assigned for not extending this 
liberal policy to creditors resident in foreign countries as well 
as in other States of this Union than the forum ; but though 
some of the decisions contain statements sufficiently general to 
cover alien creditors, there seem to be no direct decisions to 
that effect. On the contrary, there are several cases taking 
the opposite view.* 

2 May V. Bank, 122 111. 551, 13 N. E. 806, 807; Cole v. Cunningham, 133 
U. S. 107, 127, 128 ; Reynolds v. Adden, 136 U. S. 348 ; Crapo r. KeUy, 16 
Wall. 610, 622; Blake v. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372 ; 
Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444; Speed v. May, 17 Penn. 
St. 91, 94, 55 Am. Dec. 540 ; Long v. Girdwood, 150 Penn. St. 413, 24 AtL 
711, 23 L. R. A. 33 ; Willetts v. Waite, 25 N. Y. 577, 586, 587 ; Sturtevant 
V. Armsby Co., 66 N. H. 557, 23 Atl. 368. 

« Cole V. Cunningham, 133 U. S. 107, 127; Crapo v. Kelly, 16 Wall. 610, 
628 ; Harrison v. Sterry, 5 Cr. 289 ; Hibemia Nat. Bank v. Lacombe, 84 
N. Y. 367 ; Willetts v. Waite, 25 N. Y. 577, 586 ; Milne v. Moreton, 6 Binn. 
(Penn.) 353, 6 Am. Dec. 466; Blake r. Williams, 6 Pick. (Mass.) 286, 308, 
17 Am. Dec. 372 ; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442, 444, 445 ; 
Barth v. Backus, 140 N. Y. 230 ; Sturtevant v. Armsby Co., 66 N. H. 557, 
23 Atl. 368. 

* Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368 ; Paine r. Lester, 
44 Conn. 196, 26 Am. Rep. 442, 445. But see Chafee v. Bank, 71 Me. 514, 
36 Am. Rep. 345. 

6 Sturtevant u. Armsby Co., 66 N. H. 557, 23 Atl. 368 ; Long v. Gird- 
wood, 150 Penn. St. 413, 24 AtL 711, 23 L. R. A. 33. The last case may 
possibly be explained in some measure by the fact that the assignment oc- 
curred in Scotland, and the attaching creditors were citizens of Canada, both 
parts of the British Empire ; or perhaps by the fact that the Pennsylvania 
court considered (as it apparently did) that the foreign assignment could only 
be invalidated by Pennsylvania creditors — a position logical at least, if no^ 
liberal. 



826 WHAT CREDITORS MAY ATTACK ASSIGNMENT- § 138 

But with respect to the rights of creditors who are residents 
of the State in which the assignment takes place, the courts are 
divided. Some of the decisions hold that they should be bound 
by the laws of their own State, and that they cannot, by going 
into another State, set at naught the work of their own law.® 

Although this would seem to be the juster and the wiser 
view,^ many decisions will be found extending the same privileges 
to these as to other creditors.* However this may be, it is cer- 
tain that the courts of the State where the assignment occurs 
may peremptorily enjoin its own citizens from going abroad to 
attach the property of the insolvent.^ 

6 Cole V. Cunningham, 133 U. S. 107, 128 ; Livennore v. Jenckes, 21 
How. 126 ; Long v. Girdwood, 150 Penn. St. 413, 24 Atl. 711, 28 L. R. A. 
33 ; Plestoro v. Abraham, 1 Pai. Ch. (N. Y.) 236; Mayu. Wannemacher, 111 
Mass. 202, 209; Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 369. 

7 In speaking of a similar question arising with respect to voluntary as- 
signments (ante, § 134, note 6), it was said that the better opinion was that 
the citizens of the place of assignment should be put on the same footing as 
the residents of other States outside the forum. There the question was one 
of the construction of the lex situs et fori. Here the question is not at all a 
question of statutory construction, but of jurisdiction and submission to a 
personal law. 

8 Cole r. Cunningham, 133 U. S. 107, 128 ; May t>. Bank, 122 111 551, 13 
N. E. 806 ; Rhawn v. Peters, 110 111. 350 ; Hibernia Nat. Bank v. Lacombe, 
84 N. Y. 367 ; Willetts v. Waite, 25 N. Y. 577, 583 ; Taylor v. Badonx, 92 
Tenn. 249, 21 S. W. 522 ; Commercial Bank v. Motherwell Co., 95 Tenn.l72, 
31 S. W. 1002. See Sturtevant v. Armsby Co., 66 N. H. 557, 23 Atl. 368, 
369. 

» Cole r. Cunningham, 133 U. S. 107 ; Dehon v. Foster, 4 Allen (IMaas.), 
545. It is otherwise, if the assignment is wlv/ntary. Warner v. Jafbny, 96 
N. Y. 248. 



§ 139 TRANSFER BY SUCCESSION. 327 



CHAPTER XIII. 

TRANSFER BY SUCCESSION. 

§ 139. Titles of Administrator and Distributee distinguished. 

■^ It is a general rule, upon the death intestate of an owner of 
property, that his personalty is to be committed to an adminis- 
trator, whose first duty is to pay the decedent's debts, and after 
they are paid to turn over the residuum of the estate to those 
appointed by law as his successors in the ownership of the prop- 
erty, known as his "distributees" or " next of kin." 

The title vested in the administrator, and subsequently in 
the distributees, results not from any voluntary act on the part 
of the owner, but from the act of the law. Furthermore, so far 
as the administrator is concerned, his title is vested in him 
primarily for the protection of creditors, incidentally only for 
the distribution of the estate amongst the next of kin. With 
respect to its primary purpose, therefore, the title of an adminis- 
trator is in many respects analogous to that of an assignee ia 
involuntary bankruptcy.^ Like such assignee, the administra- 
tor is a quasi-officer of the law; his authority and title, origi- 
nating in an act of the law, is ex propria vigore of no exterritorial 
force, and will not, as to creditors, extend to personalty situated 
elsewhere than in the State of his appointment. 

The principles regulating the administration of a decedent's 
estate, including the law governing his appointment, title, 
powers, duties, and liabilities, have been already discussed in 
detail at another place, to which reference is now made.* 

But if we suppose that there are no debts, or that they have 
all been paid, the administration of the estate ceases, and its 
distribution commences. It is the law governing this distribu- 
tion into which we are now to inquire. 

> Ante, §§ 137 et seq. ' Ante, §§ 105 et seq. 



328 WHO DISTRIBUTEES — CAPACITY TO SUCCEED. § 140 

It is the well established general rule that the law of the last 
domicil of the deceased owner is the " proper law " to govern 
the distribution of his personalty, not the lex situs of the prop- 
erty (though that law may perhaps be applied in certain excep- 
tional cases, where the situs and the forum coincide) ; nor the 
law of the owner's domicil at the time he acquired the property 
in question; nor the law of the decedent's actual situs at the 
time of his death. The transfer is involuntary and by act of 
the law, and therefore it is the owner's legal situs or domicil 
that furnishes the proper law; and the transfer being effected at 
the time of his death, it is his domicil at that time that is to be 
looked to. Hence the general rule that the law of the last 
domicil of the decedent is the proper law.* 

§ 140. Persons to Take as Distributees — Capacity of Dis- 
tributees to Take. — From what has been said in the preceding 
section it will be seen that the classes of persons who are to 
succeed to a decedent's personalty as his distributees or next of 
kin will be determined by the law of the decedent's domicil at 
the time of his death.^ 

* Sharpe v. Crispiu, L. R. 1 P. & D. 611 ; Somerville v. Somerville, 5 Ves. 
750 ; Ennis v. Smith, 14 How. 400, 424 ; Wilkins v. EUett, 9 Wall. 740, 
742 ; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 874 ; Guier v. 
O'Daniel, 1 Binn. (Penn.) 349, note ; Welles' Estate, 161 Penn. St. 218, 28 
Atl. 1116 ; Shultz V. Pulver, 3 Pai. Ch. (N. Y.) 182 ; s. c. 11 Wend. 361 ; Vroom 
V. Van Home, 10 Pai. Ch. 549, 42 Am. Dec. 94 ; Hegeman v. Fox, 31 Barb. 
(N. Y. ) 475 ; Parsons v. Lyman, 20 N. Y. 103 ; Petersen v. Chemical Bank, 

32 N. Y, 21, 44, 88 Am. Dec. 298 ; Despard v. Churchill, 53 N. Y. 192, 199; 
White V. Tennant, 31 W. Va. 790, 8 S. E. 596 ; Mayo v. Equitable, etc. So- 
ciety, 71 Miss. 590, 15 So. 791 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 
Am. Dec. 41, 57 ; Atchison v. Lindsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 
153, 156 ; Shannon v. White, 109 Mass. 146 ; Cooper v. Beers, 143 111. 25, 

33 N. E. 61. If there are no creditors of the decedent, either local or domi- 
ciliary, it is usually considered unnecessary to remit the personalty to the 
owner's domicil for distribution. The local courts may distribute it, but in 
accordance with the provisions of the lex domicilii. Welles' Estate, 161 
Penn. St. 218, 28 Atl. 1116; Gravillon v. Richards, 13 La. 293, 33 Am. Dec. 
563, 565 ; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472. But see Suc- 
cession of Petit, 49 La. Ann. 625, 21 So. 717. It will also be remembered 
that the succession to land is always to be governed by the lex situs of the 
Und, Ante, § 12. 

1 Story, Coufl. L. § 481 a ; Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Bruce 



§ 140 WHO DISTRIBUTEKS — CAPACITY TO SUCCEED. 329 

Thus, in Mayo v. Equitable, etc. Society,' a young man, 
born in Virginia, went to Tennessee to seek employment, where 
he remained for a year ; he then went to Mississippi, where he 
remained about a year ; returned to Tennessee, where he stayed 
a month; and then, on account of constant ill-health, returned 
to Virginia, where he shortly afterwards died. While in Mis- 
sissippi he had insured his life in the Equitable Assurance So- 
ciety, and on his return to Virginia left the policy in Mississippi 
for safe-keeping. The question arose in Mississippi as to the 
persons entitled to the proceeds of the policy. By the law of 
Virginia, where the court held the decedent to have been domi- 
ciled at his death, the father (who was heavily indebted) was 
the sole distributee. By the law of Mississippi other members 
of his family would have shared in the distribution. Notwith- 
standing the hardship of the case (which evoked much sympa- 
thy from the court) it found itself constrained to hold that the 
lex domicilii at the time of the death must govern; that the 
youth's estate belonged to the father under the law of Virginia; 
and that the impoverished family could receive only what was 
left after paying the father's creditors. 

So where the question is not what classes of the kin shall 
succeed to the property, but whether or not a particular member 
of the class named by the law of the decedent's domicil, to whom 
some personal disability is attached, can succeed to the property 
along with other members of the same class, the "proper law" to 
determine his capacity of succession, it is believed, is the law of 
the decedent's domicil, not the law of the domicil of the par- 
ticular distributee whose capacity is in question. In Bruce v. 
Bruce,' the inquiry was whether the decedent's half-brother was 
entitled to succeed to his estate along with a whole brother. 
The case was held to turn entirely upon the domicil of the de- 
cedent, no mention being made of the half-brother's domicil. 
By the English law, the half-brother was entitled to a share; 

V. Bruce, 2 Bos. & Pul. 229 ; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 
321 ; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791 ; Welles' E» 
tate, 161 Penn. St. 218, 28 Atl. 1116 ; Ennis v. Smith, 14 How. 400, 425. 

* 71 Miss. 590, 15 So. 791. 

» 2 Bos. & Pul. 229. 



830 WHO DISTRIBUTEES — CAPACITY TO SUCCEED. § 140 

by the law of Scotland, he was not. It was held that the 
decedent's last domicil was England, and that its law must 
control. 

The instance in which this point has most frequently arisen 
is the case of bastards claiming the right to succeed to a rela- 
tive's estate. If both the decedent and the bastard are domiciled 
in the same State at the time of the former's death, no question 
will arise as to what is the "proper law." The two domicils 
coincide, and the lex domicilii will govern.* But if the natural 
child is domiciled in a State different from the deceased rela- 
tive, and by the law of one State the capacity to succeed with 
the other next of kin is given, while denied by the law of the 
other State, the solution is not so simple. It would seem to 
be clear that if the lex domicilii of the decedent should forbid 
succession by the bastard, he could not inherit, because the 
decedent's property is legally situated at the domicil of the 
owner, and the prohibitions of that law should be conclusive.' 
On the other hand, if the law of the decedent's domicil permits 
the bastard's succession, while the law of the bastard's domicil 
does not, a moment's reflection will show that the policy of the 
latter law cannot be directed towards injuring the bastard, but 
towards protecting the estates of its citizens who die intestate 
from such doubtful claims. It cannot be supposed that the law 
of the bastard's domicil was intended to prevent one of its own 
citizens (even though he be a bastard) from being enriched by 
sharing in the estate of a foreigner, since the good fortune of 
the bastard can in no way impair in any way the policy of his 
domicil. In other words, it would seem manifest that the in- 
capacity to succeed imposed upon the bastard by the law of his 
domicil, was only an incapacity to succeed to the property of 
residents of his domicil.' 

But in these cases of involuntary transfer, as in other cases, 
there may be occasions, where the law of the actual situs and 
forum may be substituted for the law of the legal situs of the 

♦ Doglioni v. Crispin, L. R. 1 H. L. 301. 
6 Sharpe v. Crispin, L. R. 1 P. & D. 611. 

' Quite a different question arises where the bastard has been legitimated, 
or in case of adopted persons. See ante, § 12. 



§ 141 SHAKES OF DISTRIBUTEES. 331 

personalty (lex domicilii). At least it has been so held in one 
late Louisiana case, though the wisdom of the decision is, to 
say the least, doubtful. In Succession of Petit,'' a father 
and his natural son were both domiciled in France, by whose 
law the bastard was entitled to succeed to a share of the 
father's estate. The father, upon his death, left personalty in 
Louisiana, by whose law the bastard was not entitled to inherit. 
Some of the next of kin were residents of Louisiana, and in 
their interests the Louisiana court declined to enforce the law 
of France. 

§ 141. Shares of Distributees. — The law of the decedent's 
last domicil controls also the shares into which the personal 
estate is to be divided, and the proportion that shall belong to 
each distributee. So, whether primogeniture gives an exclusive 
right to the succession, or a larger proportion thereof, or is to 
be entirely disregarded ; whether the distributees are to take 
per capita or per stirpes ; the nature and extent of the appli- 
cation of the principle of representation ; the shares of a hus- 
band, a widow, collaterals of the half-blood, etc., — are all ques- 
tions properly to be determined by the law of the decedent's 
last domicil.^ 

For example, in England and in some of the United States, 
there is no right of representation beyond that of brother's and 
sister's children in the distribution of personalty. Hence if 
one domiciled in England should die, leaving a brother and the 
grandchildren of a deceased brother, the latter would not take 
the decedent's personalty in virtue of their representation of 
the deceased brother, even though the personalty were actually 
situated in a country' by whose law such representation was 
admissible.* 

■? 49 La. Ann. 625, 21 So. 717. 

1 Story, Confl. L. § 481 a ; Bruce v. Brace, 2 Bos. & Pul. 229 ; White ». 
Tennant, 31 W. Va. 790, 8 S. E. 596 ; Lawrence v. Kitteridge, 21 Conn. 577, 
56 Am. Dec. 385 ; Welles' Estate, 161 Penn. St. 218, 28 Atl. 1116 ; DeCouche 
V. Savetier, 3 Johns. Ch. (N. Y.) 190, 8 Am. Dec. 478, 480; Hegeman v. 
Pox, 31 Barb. (N. Y.) 475 ; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 
630 ; Williamson v. Smart, Conference Rep. (N. C.) 146, 2 Am. Dec. 638 j 
Ennis r. Smith, 14 How. 400, 425. 

« Story, Confl. L. § 481 o. 



332 TRANSFER BY WILL, INVOLUNTARY. § 142 



CHAPTER XIV. 

TRANSFERS OF PERSONALTY BY WILL. 

§ 142. Transfer by "Will, Involuntary. — From the stand* 
point of private international law, a will is to be viewed in 
the light of an involuntary, rather than a voluntary, transfer 
of property, and therefore the " proper law " is the law of the 
legal, not the actual, situs of the testator. Though the act of 
executing a will is a voluntary act, that act ex propria vigore 
has no effect in transferring the title. Effect is given to it 
only by and upon the subsequent death of the owner, without 
revocation of the will. The real act which gives the will effect 
as a transfer is the testator's death, and that is involuntary. 
The fact that he is in a particular country when death over- 
takes him is no indication that he has voluntarily submitted 
himself or his property to its laws. So the fact that he is 
in a particular State when he executes the will is no necessary 
indication that he submits himself or his property to the laws 
of that State, for he knows that the will is not to take effect 
until his death, at which time he may have severed all connec- 
tion with that State. 

In its influence upon the operation of the will as a transfer 
of property, the death of the testator preponderates over the 
making of the will to the extent that it is in general the con- 
dition of affairs at the time of the death, not that at the time 
of the making of the will, which furnishes the law of the case ; 
for wills of personalty speak as at the testator's death. But it 
is not necessarily the State where the death occurs that fur- 
nishes the law. Since the death is involuntary, there is no 
reason to presume the owner's personalty to be legally situate 
elsewhere than at the legal situs (domicil) of the owner. The 
law of his actual situs at the time of death, as such, will not 



§ 143 FORMAL VALIDITY OF WILL. 333 

control, nor (except for purposes of administration) will the la\» 
of the actual situs of the property have any influence. 

But it does not necessarily follow that the strict letter of the 
lex domicilii is always to be enforced in regard to wills. It is 
indeed, as in other cases, the policy of the domicil rather than 
its law which is to control. The law may be couched in such 
general terms as to cover cases it was manifestly not intended 
to cover, cases not at all within the scope of its policy. In 
such cases the strict letter of the domiciliary law is not appli- 
cable, and it may be supposed that that law intends that its 
provisions may then be substituted by the law of some other 
State more interested in the matter. 

Instances of this have already been seen in our examination 
of the proper law governing testamentary capacity,^ and other 
instances will be seen in the course of the following discussion. 

But this applies only to wills of personalty. With respect 
to lands, it is perfectly well settled that the strict letter of the 
lex situs of the land will control the validity of the devise in 
all respects.^ 

It is to be observed that, although the will consists of dis- 
positions of both real and personal estate, situated in different 
States, and even though they are given in the same clause of 
the will and upon the same trusts, the dispositions will in gen- 
eral be severable, and the validity of one will not usually de 
pend upon the validity of the other. One may be valid by the 
lex situs, while the other is invalid by the lex domicilii, and 
vice versa.* 

§ 143. Formal Validity of Wills of Personalty. — The pol- 
icy of laws controlling the formal validity of wills is directed 

1 Ante, § 70. 

2 Carpenter v. Bell, 96 Tenn. 294, 34 S. W. 209 ; Williams v. Saunders, 
6 Coldw. (Tenn.) 60, 72; Frazier v. Boggs, 37 Fla. 307, 20 So. 245 ; Wynne 
V. Wynne, 23 Miss. 251, 57 Am. Dec. 139 ; Ross v. Ross, 129 Mass. 243, 245, 
37 Am. Rep. 321 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188 ; Penfield v 
Tower, 1 N. D. 216, 46 N. W. 413 ; Darby v. Mayer, 10 Wheat. 465 ; Ken 
V. Moon, 9 Wheat. 565 ; Ware v. Wisner, 50 Fed. 310. It is otherwise as to 
the interpretation of the devise. Post, § 145. 

8 Knox V. Jones, 47 N. Y. 389, 395. See Cross v. Trust Co., 131 N. Y. 
830, 339. 



834 FORMAL VALIDITY OP WILL. § 143 

towards all wills which owe their effect to those laws, and em- 
braces therefore all wills of personalty executed by persons do7n- 
iciled in that State, without regard to the actual locality of the 
property disposed of or the place where the will may happen to 
have been actually executed. For this purpose the strict letter 
of the lex domicilii of the testator at the time of his death will 
control, and no foreign law can be incorporated into it for the 
purpose of any particular case. ^ 

The result is the same if the testator makes his will in his 
domicil according to the forms and ceremonies prescribed by 
its laws, and subsequently removes to another State to live, by 
the law of which the ceremonies accompanying the execution of 
the will are not sufficient. And so, if we suppose the will in- 
valid in the first State and valid in the second. It is in all 
cases the law of the testator's domicil at the date of his death, 
not at the time of the execution of the will, that must deter' 
mine its formal validity. This is true, not only because the 
will speaks as at the death of the testator, being revocable and 
ambulatory up to that time, but also because the matter of 
testacy or intestacy is a status fixed by his death, and as such 
is to be determined by the lex domicilii at that time.'^ 

Thus, in Moultrie v. Hunt,' the testator domiciled in South 

1 Desesbats v. Berquier, 1 Binn. (Penn.) 349, 2 Am. Dec. 448 ; Flannery's 
Will, 24 Penn. St. 502; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 69; 
McCune v. House, 8 Ohio, 144, 31 Am, Dec. 438 ; Burlington University v. 
Barrett, 22 la. 60, 92 Am. Dec. 376 ; Moultrie v. Hunt, 23 N. Y. 394 ; 
Chamberlain v. Chamberlain, 43 N. Y. 424, 432 ; Kerr v. Dougherty, 79 N. Y. 
327, 342 ; Hope v. Brewer, 136 N. Y. 126, 138 ; Ford v. Ford, 70 Wis. 19, 
33 N. W. 188 ; Cameron v. Watson, 40 Miss. 191, 207 ; Sickles v. New Or- 

eans, 52 U. S. App. 147, 80 Fed. 868 ; Yates v. Thompson, 3 CI. & F. 544, 
577. In a few cases, expressions will be found to the effect that a will of per- 
sonalty, if formally valid according to the law of the place where it is exe- 
cuted, will be sustained everywhere. See Roberts' Will, 8 Pai. Ch. (N. Y.) 
519 ; Sevier v, Douglass, 44 La. Ann. 605, 10 So. 804. But an examination 
of these cases will show that the court was regarding the will as made at the 
testator's domicil. 

2 Moultrie v. Hunt, 23 N. Y. 394 ; Dupuy v. Wurtz, 53 N. Y. 556 ; White 
V. Howard, 46 N. Y. 144 ; McCune v. House, 8 Ohio, 144, 31 Am. Dec. 438 , 
Nat V. Coons, 10 Mo. 543. 

• SSH. Y,3»4. 



§ 144 SUBSTANTIAL VALIDITY OF WILL. 335 

Carolina there executed his will, declaring before the attesting 
witnesses that it was his signature and seal. This was sufficient 
in South Carolina to make it a valid will. The testator subse- 
quently removed to New York, where he died. By the law of 
New York, it was required that the testator should declare in 
the presence of two attesting witnesses that it was his last will 
and testament. It was held that the formal validity of the will 
was to be determined by the law of the testator's domicil at 
the time of his death, not at the date of the execution of the 
will. 

§ 144. Substantial Validity of the Provisions of the Will. 
— In determining the substantial validity of a will of person- 
alty, the general principle is unquestionably the same as in the 
case of its formal validity. The law of the testator's last dom- 
icil is the proper law. But elements are present here which are 
absent where the investigation relates to matters of form only, 
and which give rise to apparent exceptions to the operation of 
the lex domicilii. But these exceptions are apparent only, 
since in reality it is the temporary adoption by the lex domicilii 
of another law in the particular case, which gives such other 
law its effect. It has none inherently. The general rule is 
still that the law of the testator's domicil at the time of his 
death will regulate the validity of the testamentary provisions.^ 

But difficulty is often experienced in these cases in ascertain- 
ing what is the law of the domicil in regard to a particular set 
of circumstances. In order to determine this, the policy of the 
particular statute or law of the domicil must be looked to. 
Such laws may be divided into four distinct classes. 

One class of these provisions may be created for purposes of 
convenience and certainty in the administration of estates, 
such, for example, as that vague and indefinite trusts contained 
in a will are void. The main purpose of such provisions is to 
relieve the courts of the domicil of the difficult task of enforcing 

* Williams v. Saunders, 5 Coldw. (Tenn. ) 60, 76 ; Chamberlain v. Cham- 
berlain, 43 N. Y. 424 ; Cross v. Trust Co., 131 N. Y. 330 ; Dammert v. Os- 
bom, 140 N. Y. 30 ; Fellows v. Miner, 119 Mass. 541 ; Bible Society v, 
Pendleton, 7 W. Va. 79 ; Ford v. Ford, 70 Wis. 19, 33 N. W. 188 ; Penfield 
V. Tower, 1 N. D. 216, 46 N. W. 413. 



336 SUBSTANTIAL VALIDITY OP WILL. § 144 

the testator's wishes when vaguely expressed. It is ohvious that 
if the will provides that these vague dispositions are to be en- 
forced in the courts of some other State than the domicil, and 
the courts of that State are authorized by its law to enforce 
such dispositions, the strict letter of the domiciliary law is not 
applicable. 

Another class relates to the management and control of the 
pr*>perty bequeathed, such, for example, as prohibitions against 
perpetuities or accumulations, etc. Here also, if the provisions 
of the will are such that these perpetuities or accumulations 
relate only to property outside the domicil, the strict letter of 
the lex domicilii is not applicable. The purpose of such laws 
is to prevent property actually situated in the State from being 
tied up and not subject to alienation. If therefore the will 
thus disposes of property in another State than the domicil, the 
intention being that it should remain there, the domiciliary 
provisions against perpetuities, etc., are not intended to embrace 
such a case. That is a question to be dealt with by the law of 
the place which is the proposed situs of the property. 

A third class embraces those cases wherein the policy of the 
domicil is directed against the holding by certain classes of 
persons of property under a will, such as corporations under 
the statutes of mortmain. Here again, if the legatees live else- 
where the policy of the domicil does not apply. 

The last class embraces those cases wherein the domiciliary 
policy is directed towards the protection of the testator or his 
family from improvident dispositions, such as limitations upon 
the testator's capacity to bequeath his property to charitable 
purposes, except to a limited amount, or unless the will be 
executed a certain period before his death; restrictions upon 
the capacity of an infant, or a married woman, to make a 
will, etc. The policy of this class of laws is to protect the 
citizens of the State where they are enacted. They are directed 
towards those testators who are resident there, and constitute 
restrictions upon testamentary capacity. Their application is 
entirely independent of the locality of the property transferred. 
Here the lex domicilii governs in full force, without the aid of 
any foreign law whatever. 



§ 144 SUBSTANTIAL VALIDITY OF WILL. 387 

This fourth class of laws controlling testamentary validity, 
involving the capacity to make a will of personalty, and the 
third class, involving the capacity of the legatee to take, have 
been already discussed in connection with the law governing 
personal capacities.'' 

With regard to the first two classes, though the older rule was 
that the letter of the lex domicilii should govern in all cases, 
even though the property disposed of was, under the will, to be 
enjoyed in another State,* the modern tendency is distinctly in 
the direction of enforcing the policy rather than the letter of the 
lex domicilii, and if the property is to have its final situs in 
another State, to make the law of that State a part of the lex 
domicilii for the purpose of regulating that disposition.* 

In Hope V. Brewer,^ a testator domiciled in New York be- 
queathed property to trustees in Scotland, to establish a charity 
in that country. The bequest under the law of New York was 
too vague and indefinite, but was valid and capable of enforce- 
ment under the laws of Scotland. The New York court decided 
in favor of the validity of the bequest. 

2 Ante, § 70. 

» Wood V. Wood, 5 Pai. Ch. (N. Y.) 596, 28 Am. Dec. 451 ; Sorrey v. 
Bright, 1 Dev. & B. Eq. (N. C.) 113, 28 Am. Dec. 584 ; Montgomery v. Mil- 
liken, 5 Sm. & M. (Miss.) 151, 43 Am. Dec. 507 ; Lowry v. Bradley, 1 Speer's 
Eq. (S. C), 1, 39 Am. Dec. 142. 

* Chamberlain v. Chamberlain, 43 N. Y. 424 ; Hope v. Brewer, 136 N. Y. 
126 ; Fellows v. Miner, 119 Mass. 541 ; Healy v. Reed, 153 Mass. 197 ; Sohier 
V. Burr, 127 Mass. 221 ; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057. But 
see Cross v. Trust Co., 131 N. Y. 330 ; Doty v. Hendrix, 16 N. Y. Supp. 284 ; 
Dammert v. Osborn, 140 N. Y. 30 ; Bible Society i». Pendleton, 7 W. Va. 79. 
In Dammert v. Osborn, supra, a testator domiciled in Peru bequeathed per- 
sonalty to charitable uses in New York, invalid under the laws of New York, 
prohibiting the suspension of the power of alienation for a longer period than 
two lives in being at the death of the testator, but valid under the law of Peru 
(lex domicilii). This bequest was sustained in New York, after a special 
enactment by the New York legislatiu-e validating the charity. In the ab- 
sence of this special enactment, it would seem that the general laws of New 
York would have governed ; unless perhaps the policy of those laws should be 
deemed so unimportant as to be superseded by the advantages accruing from 
a valuable charity donated by foreigners. But the courts could hardly con- 
sider such matters in reaching a decision. 

6 136 N. Y. 126, 134, 135. See Bible Society v. Pendleton, 7 W. Va. 7a 

22 



388 INTERPRETATION OF WILL. § 145 

In Chamberlain v. Chamberlain,* a N^ew York testator be- 
queathed a legacy to a Pennsylvania corporation for charitable 
purposes, which was violative of the New York statutes against 
perpetuities. It was held by the New York court that the valid- 
ity of the bequest in that respect should depend upon the law of 
Pennsylvania, whither the property was to be sent for use. In 
the course of its opinion the court says: "It is no part of the 
policy of New York to interdict perpetuities or gifts in mort- 
main in Pennsylvania. Each State determines those matters 
according to its own views of policy and right, and no other 
State has any interest in the question. There is no reason why 
the New York courts should follow the funds bequeathed to this 
Pennsylvania corporation to see whether they will be there ad- 
ministered in all respects in strict harmony with our policy and 
laws." 

In Despard v. Churchill,^ it was held that the New York 
courts would not themselves directly enforce the provisions of a 
Californian's will, valid in California, disposing of personalty 
in New York, the will creating perpetuities invalid under New 
York law, but that the New York assets, after paying certain 
legacies which were valid under the law of New York, should be 
remitted to California to be there distributed. If it had been 
directed by the will that this property was to go to New York 
legatees and to remain there, doubtless the court would have de- 
clared the disposition invalid, as not being within the purview 
of the California law, but embraced in the policy of the State of 
New York. As it was, however, the property was to go out of 
New York, and therefore it would seem, the New York policy 
not being applicable to the case, there was no particular reason 
why the court should have refused to itself enforce the provisions 
of the will. 

§ 145. Interpretation of the Will. — In the case of any docu- 
ment, whether it be a contract, a conveyance, or a will, the pri- 
mary rule for the interpretation of ambiguous language is that the 

^ 43 N. Y. 424. It seems impossible to reconcile with this the case of 
Cross V. Trust Co., 131 N. Y. 330. But the former would seem to lay down 
the correct rule. 

» 53 N. Y. 192. 



§ 145 INTERPRETATION OF WILL. 339 

intention of the person using the language must be ascertained 
and followed. The question is, what does the party mean by 
the phrases or words he has used ? This will often be ascer- 
tained by merely considering the context of the document itself, 
but sometimes the words are such as may be given a technical 
or customary meaning in one State different from that attached 
to the same words by the law or custom of another State. Thus, 
the technical legal words "heirs" or "next of kin," or the 
words of the vernacular, such as ''dollars," ** pounds," etc., are 
instances of phrases which may have different meanings in dif- 
ferent countries. So the mere silence of the testator upon cer- 
tain points may create different interpretations of his intention 
in different States, as where the testator makes a provision for 
his wife, without stating whether it is intended in lieu of her 
dower, or where he makes no provision in his will for the case 
of the legatee dying before himself, etc. 

In such cases the question will arise, which meaning did the 
grantor or testator intend should be attached to his words or to 
his silence ? The answer cannot always be given with absolute 
assurance of truth, and in the absence of direct evidence resort 
must be had here, as in other cases, to presumptions of law. The 
general proposition may be laid down that the interpretation of 
such ambiguous phrases should be determined in accordance with 
the laws and customs of that State most probably in the mind 
of the grantor or testator when he used the words, and with 
which he is to be presumed to be most familiar. 

If the country whose phrases he adopts is expressly desig- 
nated by the testator, or is given by implication from the 
language of the will, there would then be no doubt as to his in- 
tention to give his words the same meaning attached to them 
in that country.* 

Thus, if one domiciled in New York directs that his estate 

1 Dicey, Confl. L. 696; Enohin r. Wylie, 10 H. L. Gas. 1 ; s. c. 1 DeG. F. 
& J. 470 ; Anstruther v. Chalmer, 2 Sim. 1 ; Yates v. Thompson, 3 CI. & F. 
544, 588 ; Harrison r. Nixon, 9 Pet. 483, 504 ; Ford v. Ford, 80 Mich. 42, 44 
N. W. 1057, 1059, 1060; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 196 ; s. c. 
72 "Wis. 621, 40 N. W. 502 ; Lincoln v. Perry, 149 Mass. 368 ; Merrill v. 
Preston, 135 Mass. 451 ; Codman v. Krell. 152 Mass. 214. 



340 INTERPRETATION OF WILL. § 145 

shall be distributed among those persons who would answer the 
description of his "next of kin" or ''heirs at law" under the 
laws of France, the New York courts or the courts of any other 
State would find no difficulty in applying the French law to 
the case, and in selecting the beneficiaries in accordance with 
that law. Their obvious duty would be to follow the intention 
expressed by the testator. 

Again, though the country whose law or usage the testator 
has in mind when he uses the ambiguous phrases be not ex- 
pressly designated in the will, yet where, on the face of the 
instrument, it is apparent that the testator has a particular 
country in mind, the law and usage of that country, wherever 
it be, will control the interpretation of the ambiguous phrase. 
Thus, a testator domiciled in England executes a will in 
France, in the French language, expressed in all the technical 
terms of French law. Such a will would generally be inter- 
preted, in respect to ambiguous phrases, etc., in accordance 
with French law or custom, rather than English.^ 

But as a general rule nothing will appear to indicate the 
country whose laws and usages the testator had in mind. In 
such event, if the ambiguity occurs with respect to the disposi- 
tion of personalty by will, the presumption of law, in the ab- 
sence of contrary evidence, is that the testator had in view the 
laws and usages of his domicil, as being those with which he is 
supposed to be most familiar. The actual situs of the property 
disposed of, or the domicil of the legatees, will generally be 
immaterial.' 

* Dicey, Confl. L. 696 ; Chamberlain v. Napier, 15 Ch. D. 614 ; Enohin v. 
Wylie, 10 H. L. Cas. 1 ; s. c. 1 DeG. F. & J. 470. But see Anstmther v. 
Chalmer, 2 Sim. 1 ; Caulfield v. SuUivran, 85 N. Y. 153. 

* Maxwell v. Maxwell, 3 DeG. M. & G. 705 ; Harrison v. Nixon, 9 Pet. 
483, 504; Sickles v. New Orleans, 52 U. S. App. 147, 80 Fed. 868, 873 ; Oil- 
man V. Gilman, 52 Me. 165, 83 Am. Dec. 502 ; Parsons r. Lyman, 20 N. Y. 
103 ; Caulfield v. Sullivan, 85 N. Y. 153 ; Dammert v. Osbom, 140 N. Y. 30, 
45 ; Bowditch v. Saltyk, 99 Mass. 136 ; Sewall r. Wilmer, 132 Mass. 131, 
136 ; Merrill v. Preston, 135 Mass. 451 ; Lincoln v. Perry, 149 Mass. 368 ; 
Welch V. Adams, 152 Mass. 74 ; Codman v. Erell, 152 Mass. 314 ; Adams v. 
Adams, 154 Mass. 290 ; Mullen v. Reed, 64 Conn. 240, 29 AtL 478 ; Rockwell 
9. Bradshaw, 67 Conn. 9, 34 Atl. 758, 759 ; Fordr. Ford, 70 Wis. 19, 33 N. W, 
188, 195 ; Knights Templars Association v. Greene, 79 Fed. 461, 465. 



§146 INTERPRETATION OF WILL. 341 

If the property disposed of be land situated in a State othei 
than the testator's domicil, some question has been made whether 
the interpretation of the testator's language should be controlled 
by the law and usage of the domicil or of the situs of the prop- 
erty. A few cases may be found holding that the interpretation 
of the devise must depend upon the lex situs.* But here too the 
weight of reason and authority is in favor of the rule that the 
interpretation of a devise is to be governed by the law or usage 
with which the testator is supposed to be most familiar, namely, 
that of his domicil ; and hence when he uses words he must be 
presumed to have intended that they should be used in the sense 
given them in his domicil, unless the contrary appears.* So, 
also, if it becomes necessary to fill in some hiatus in the ex- 
pressed intention of the testator, resulting from his failure to 
provide for all contingencies, as in the case of a lapse, or the 
obligation of a devisee to elect whether or not to take under the 
wilL« 

§ 146. Same — Beneficiaries — Property Disposed of. — If 
a will gives property, real or personal, to a devisee or legatee, 
not by name but describing him as one of a class, such as 
"heirs at law," ''next of kin," " children," etc., these or the 

* Yates V. Thompson, 3 01. & F. 544, 588 ; Jennings v. Jennings, 21 Ohio 
St. 56 ; Applegate v. Smith, 31 Mo. 166 ; Richardson v. DeGiverville, 107 Mo. 
422, 17 S. W. 974, 977 ; McCartney v. Osborn, 118 111. 403, 9 N. E. 210 ; 
Wynne v. "Wynne, 23 Miss. 251, 57 Am. Dec. 139. It is evident that this 
rule could not be applied if the testator possessed lands in several States, with 
different interpretations of the words used, should the testator dispose of them 
all by the same language ; for it could not be supposed that the testator 
would intend the same clause to have dififerent meanings with respect to dif- 
ferent tracts of land. See Crusoe v. Butler, 36 Miss. 150 ; Wilson v. Cox, 49 
Miss. 538, 545. This reductio ad absurdum would seem to suffice to throw 
discredit upon a rule which might produce such results. 

5 Ford V. Ford, 80 Mich. 42, 44 N. W. 1057, 1059 ; Ford v. Ford, 70 Wis. 
19, 33 N. W. 188, 195 ; s. c. 72 Wis. 621, 40 N. W. 502 ; Proctor v. Clark, 
154 Mass. 45, 27 N. E. 673 ; Lincoln v. Perry, 149 Mass. 368. 

6 Trotter v. Trotter, 4 Bligh, N. s. 502 ; s. c. 3 Wils. & Sh. 407 ; Maxwell 
V. Maxwell, 2 DeG. M. & G. 705 ; Maxwell v. Hyslop, L. R. 4 Eq. 407 ; Caul- 
field V. Sullivan, 85 jST. Y. 153 ; Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 
354 ; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324 ; Van Steenwyk 
V. Washburn, 59 Wis. 483, 17 N. W. 289. 



342 INTERPRETATION OP WILL. § 146 

like terms, in the absence of evidence of a contrary intention, 
are to be construed according to the meaning given such terms 
in the testator's domicil, as shown in the preceding section.^ 

So where such terms as "estate," **real estate," "movable 
property," "dollars," ''pounds," etc., are used in a will, they 
are to be construed in accordance with the same law. Thus, in 
Enohin v. Wylie,* an Englishman, domiciled in Russia, and 
possessed of large real and personal estate, including a consider- 
able amount in the English funds, made a will in the Russian 
language and form, disposing of all his "movable and immov- 
able property," but without any other language excluding or 
including his English property. In England, the phrase " mov- 
able property " was usually applied to tangible chattels, while 
in Russia it was the designation by which all personal property, 
whether tangible or intangible, was known. The question was 
whether the will passed the money in the English funds. The 
court held that the meaning given to the words in Russia, the 
testator's domicil, should prevail. 

So also the law of the testator's domicil will determine the 
meaning of ambiguous words used by him to describe the estate 
or interest intended to be vested in the legatee or devisee. In 
Brown v. Brown," an English case, a testator domiciled in Vir- 
ginia, devised to his sister, Mary Brown, "the remaining one- 
fourth share of the balance of my estate, at her death to be 
equally divided among her children." The question was whether 
Mary Brown took a life estate or a fee-simple. It appearing 
that the Virginia courts had construed the will to give her an 
absolute estate, the House of Lords followed that construction. 

So whether a party takes an estate by implication of law un- 
der a will ; or whether a precatory trust is raised by expressions 
of hope or confidence, etc., are questions of construction to be 
determined by the law of the testator's domicil.* 

1 Merrill v. Preston, 135 Mass. 451 ; Proctor v. Clark, 154 Mass. 45, 27 
N. E. 673 ; Lincoln v. Peny, 149 Mass. 368 ; Harrison v. Nixon, 9 Pet. 488^ 
504 ; Stoi7, Confl. L. §§ 479 e, 479 h. 

2 10 H. L. Cas. 1 ; s. c. 1 DeG. F. & J. 470. 
« 4 Wils. & Sh. 28. 

* Story, Confl. L. §§ 479 b, 479 c. 



§147 INTEEPRETATIONOFWILL — LAPSE — ELECTION. 343 

An important corollary of the rule that the law of the tes- 
tator's domicil governs the interpretation of his will should be 
noted. The interpretation imposed by the lex domicilii will 
carry with it in the forum all the incidents which would have 
followed if the same construction would have been placed upon 
the will by the lex fori itself.* Thus, in Trotter v. Trotter," 
an English case, a Scotchman, domiciled in India (by construc- 
tion of English law, in England), made his will in India, being 
possessed of Scotch heritable bonds,'' as well as of personal prop- 
erty in Scotland. The Scotch law required an heir claiming 
also personal property under the will, either to throw his heri- 
tage into the common fund and take his legacy, or to elect be- 
tween the two (in accordance with the presumed intention of 
the testator). The will in this case was ineffectual to carry the 
Scotch heritage according to the law of Scotland, and the ques- 
tion thereupon arose whether the Scotch heir, claiming the heri- 
table bonds as heir, was also entitled to share in the personalty 
as legatee under the English will, without throwing the heri- 
table bonds into hotchpot or being put to his election. It was 
held that the terms of the will must be construed according to 
the laws of England (lex domicilii), and that by the law of 
England the terms used were not such as to import an intention 
to transfer any real estate of the testator; that the law of Eng- 
land did not require a legatee who was also heir to throw his 
inherited lands into hotchpot or else to elect; and therefore that 
the heir was entitled both to the heritable bonds and also to his 
share of the personalty under the will. In this case the forum 
was the domicil, but it is apprehended the same result would 
have been reached had the question arisen before the Scotch 
courts. 

§147. Seune — Lapse — Election. — In accordance with the 
general principles already alluded to, the law of the testa- 
tor's domicil will determine the effect of a lapse by the death 

s See Slaughter v. Garland, 40 Miss. 172, 180. 

« 4 Bligh, N. s. 502 ; s. c. 3 Wils. & Sh. 407. 

^ Heritable bonds, under the law of Scotland, are bonds chargeable pri- 
marily on the real estate of a decedent, and descend to the heir of the creditor, 
not to his uersonal representative. 



344 INTKBPBETATION OF WILL — LAPSE — KLBCTION. §147 

of a legatee or devisee ; that is, whether his share is to descend 
to his children, heirs, or distributees, or whether as to it the 
testator shall be regarded as having died intestate, or whether 
it shall be added to the residuary devise or bequest, if any. It 
is a contingency which the testator has not provided for, and 
his silence should be interpreted in accordance with the law of 
his domicil.^ 

Another frequent instance of the application of these prin- 
ciples arises in case of provisions made for a widow by way of 
jointure, in lieu of dower. This subject is largely regulated 
by statute in most of the States, but the statutes vary consider- 
ably with respect to the effect to be given such provisions as a 
bar to the widow's dower or distributive share. If the husband 
in his will provides for the wife, but the will is silent as to its 
being a substitute for her ordinary marital rights, the question 
whether the testamentary provision shall be so taken is a matter 
of the interpretation of the will, and as such is to be determined 
in general by the law of the testator's domicil. So far as her 
distributive share in his personalty is concerned, the law of the 
testator's domicil is supreme, wherever the property may be. 
Hence, whether the widow shall be given both funds, or whether 
she will be allowed only the testamentary provision, or whether 
she will be required or entitled to elect between the two, is to 
be determined by the lex domicilii of the testator.* 

As between the testamentary provision made for her and 
her dower in lands situated abroad, though the wife cannot 
be barred of her dower by such a provision, unless it is per- 
mitted by the lex situs of the land (since that would be to affect 
the title to the land),' yet upon ordinary principles of election, 
if the lex domicilii of the testator forbids the wife to take both 

1 Rockwell V. Bradshaw, 67 Conn. 9, 34 Atl. 758 ; Anstruther v. Ckalmer, 
2 Sim. 1 ; Thornton v. Curling, 8 Sim. 310. The hx domicilii of the legatee 
or devisee, or the lex situs of the property, has no part in the solution of this 
question. 

3 Slaughter v. Garland, 40 Miss. 172. 

* See Jennings v. Jennings, 21 Ohio St. 56 ; Staigg v. Atkinson, 144 Masi 
564, 12 N. E. 354 ; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 
824 ; Van Steenwyk v. Washburn, 59 Wis. 483, 17 N. W. 289. ' 



§ 147 INTERPRETATION OF WILL — LAPSE — ELECTION. 345 

her dower and the testamentary provision, the courts of the situa 
of the land will require the wife to elect, though under the lej 
situs, if the will were to be interpreted by that law, the widow 
would be allowed both provisions.* 

Furthermore, it seems to be settled that the proper course to 
be pursued by the widow in such cases, in the event that the 
law of the testator's domicil requires her to elect between the 
testamentary provision and her marital rights, is to make her 
election in the courts of the testator's domicil. Such an election 
will definitely establish her status with respect to her husband's 
property everywhere once for all. K on the other hand she 
should be permitted to elect in the courts of another State, it 
might result that she has renounced the will in one jurisdiction 
and elected to hold under it in another, according as her interest 
dictates. This would be both inconvenient and in direct con- 
travention of the testamentary intention, as construed by the 
lex domicilii. The safer rule would seem to be always to require 
the widow to make her election in the courts of the testator's 
domicil in the first instance.^ 

And if the widow is under disabilities, such as lunacy, so as 
to be incapable of making an election for herself, it seems the 
courts of the domicil have the sole jurisdiction to make the elec- 
tion for her. At least, if the election is made by the domiciliary 
courts, the decree is in the nature of a decree in rem, which will 
be conclusive in the courts of all other States.' 

In Slaughter v. Garland,'' a testator domiciled in Virginia, 
possessed of certain personalty in Mississippi, provided for his 
wife in his will. She renounced the testamentary provision 
made for her in the Virginia court of probate. By the law of 
Virginia she was entitled to one third of her husband's person- 
alty as his distributee. The Mississippi law gave the widow 

* Washburn ». Van Steenwyk, 32 Minn. 336, 20 N. W. 324. 

6 Slaughter v. Garland, 40 Miss. 172 ; Washburn v. Van Steenwyk, 32 
Minn. 336, 20 N. W. 324. 

« Slaughter r. Garland, 40 Miss. 172 ; Washburn v. Van Steenwyk, 33 
Minn. 336, 20 N. W. 324 ; Van Steenwyk v. Washburn, 59 Wis. 483, 17 N.W. 
K9. 

1 40 Miss. 172. 



346 INTEBPRETATIONOF WILL — LAPSE — ELECTION. §147 

one half the personalty as her intestate husband's distributee, 
and made this applicable to all property situated in that State, 
regardless of marital rights which might have accrued in other 
States. The question was whether the widow's renunciation in 
the Virginia courts operated to make the husband intestate in 
Mississippi, and therefore made the law of that State applicable 
so as to entitle her to one half instead of one third of her hus- 
band's personalty. The Mississippi court held that the Virginia 
court was the proper place for the wife's renunciation to be 
made ; that that renunciation did not render the husband 
"intestate" in the sense used by the Mississippi statutes ap- 
plicable to all property of intestates within its limits, regard- 
less of the owner's residence; that the general rule that the lex 
domicilii of the deceased owner governs the distribution of his 
personalty would therefore apply; and that the widow's share in 
the husband's Mississippi personalty should be determined by 
the Virginia law. 

Cases of election may also arise where the testator, possessed 
of real and personal property, makes a will disposing of it all, 
the will being valid by the law of his domicil (as respects the 
personalty) or by the lex situs of some of the realty, but invalid 
as to the rest of the land by its lex situs, a beneficiary under 
the will being also an heir to the property as to which the will 
is invalid. In such cases the beneficiary (and heir) is generally 
required to elect between the valid benefit conferred upon him 
and the property to which he succeeds as heir.* 

In Brodie v. Barry,' a testator domiciled in England left all 
his real and personal property upon trusts for the benefit of 
his nephews and nieces. The land was in Scotland, and the 
will was insufficient under the Scotch law to pass the realty. 
Only one of the beneficiaries could under the law of Scotland 
succeed as heir to the land there. The others sought to make 
her elect in the English court of chancery, and Sir William 
Grant compelled her to do so. 

8 Brodie v. Barry, 2 Ves. & B. 127 ; Balfonr v. Scott, 6 Bro. P. C. 550, 
cited in Brodie v. Barry ; Washburn v. Van Steenwyk, 32 Minn. 336, 20 
N. W. 324. See Rice v. Harbeson, 63 N. Y. 493. But see Maxwell v. Max* 
irell, 3 DeG. M. & G. 705 ; Maxwell i;. Hyslop, L. R. 4 Eq. 407. 

• a Ves. & B. 127. 



§ 148 INTERPRETATION OF WILL — DOMICIL CHANGED. 347 

§ 148. Same — Change of Domicil eifter Execution of Will 
— We have heretofore supposed that the testator's domicil at 
the time of the execution of the will has remained unchanged 
up to the time of his death. In such case, in the absence of 
contrary evidence, we have seen that he will be presumed to 
have in mind, when he uses certain ambiguous words or phrases, 
the meaning attached to such terms by the law or vernacular of 
his domicil. 

But it may be that the testator, though domiciled in one 
State when he executes the will, has subsequently at some time 
before his death removed permanently to another State, where 
he dies, without revoking his will executed in the first domicil, 
and without executing a new one in his last domicil. And the 
meaning attached to the terms he has used in the will in the 
last domicil may differ from that attached to the same terms in 
his first abode. 

Under such circumstances, it becomes a matter of extreme 
difficulty to determine by which law (or usage) the ambiguous 
phrases shall be interpreted, whether by the law of the domicil 
at the time of the execution of the will or at the time of the 
testator's death. Weighty arguments may be advanced to up- 
hold either position.^ The point was raised in Harrison v. 

1 Thus, in favor of the law of the last domicil, it may be said : (1 ) That 
the whole subject of wills of personalty is thus made to depend upon the 
same law, the law of the testator's last domicil being the law upon which de- 
pends the validity of the will so far as concerns either the capacity of the tes- 
tator, the formal validity of the will, or its substantial validity ; and that to 
allow a different law to govern its interpretation or construction would be in- 
congnious and inharmonious. See Cross v. Trust Co., 131 N. Y. 330, 349. 
But this argument overlooks the fact that the interpretation of a will rests 
upou a very different foundation from matters of validity. The former is 
based upon the intention of the testator, while the latter is independent of 
intention, and rests upon the policy of the law. Logically therefore there is 
no reason why the same law should govern. (2) A second and more powerful 
argument in favor of the law of the last domicil is to be found in the rule 
that wills speak as of the death of the testator, not as of the time of their 
execution. See Moultrie v. Hunt, 23 N. Y. 394 ; Wynne r. Wynne, 23 Miss. 
251, 57 Am. Dec. 139 ; Lincoln v. Perry, 149 Mass. 368, 374. It may be 
argued that although the testator may have attached to his words when ha 
wrote them the meaning given them by the law of his then domicil, yof 



348 INTERPRETATION OF WILL — DOMICIL CHANGED. § 148 

Nixon/ but was left undecided. Notwithstanding some dicta 
to the contrary,' the better view is believed to be that the law 
of the domicil at the execution of the will is to govern its in- 
terpretation and construction.* 

when he changes his domicil to a State whose law gives a dififerent meaning 
to the words used, it must be supposed that he is as familiar with the latter 
law as with the first, and that if he had desired the words to have retained 
their first meaning, he would have altered the language so as to convey that 
meaning under the law of his new domicil. See Moultrie v. Hunt, 23 N. Y. 
394, 400. 

On the other hand, it may be urged in favor of the domicil at the time 
the will is executed, that since the law (and usage) of that State certainly 
determines primarily the meaning to be given to the words used, the will 
as the testator wrote it is to be construed in accordance therewith ; that 
such was the meaning intended by the testator, and such was his will ; that 
he can only alter that will by revoking it, or by executing a new will or a 
codicil, without which no subsequent change of intention on his part would 
be of any effect ; that the will is made up, not only of the words the testator 
has used, but also of the meaning to be attached to those words ; that the 
words, as first written, with the meaning then attached to them, constitute 
his will ; and that it cannot be revoked and a new will substituted for it, 
except by the ceremonies required by law for the revocation of a will and 
the execution of a new one. See Staigg v. Atkinson, 144 Mass. 564, 569, 
12 N. E. 354 ; Holmes v. Holmes, 1 Russ. & Myl. 660, 662, 663. 

It is tnie that a will speaks as at the death of the testator, not as at its 
execution, so far as relates to the property owned by the testator, which may 
pass under the terms of his will ; but this is not so much a question of the 
intention of the testator — of what property he intends shall pass under the 
will. It is in larger measure a question of testamentary capacity ; that is, 
even supposing his intention fixed to dispose of all his property now or 
hereafter owned, it is a question whether he has the capacity to dispose of 
such as he acquires after the execution of the will. See Wynne p. Wynne, 
23 Miss. 251, 57 Am. Dec. 139, 142. This question of testamentary capacity, 
and incidentally the question of the testator's intention with respect to the 
disposition of after acquired property, is settled by the rule that the will 
speaks as at the death of the testator. But it leaves untouched the inten- 
tion of the testator in other respects and the interpretation of language used 
in other connections. 

« 9 Pet, 483. 

8 Ford 17. Ford, 70 Wis. 19, 33 N. W. 188, 195. See Merrill v. Preston, 
135 Mass. 451 ; Story, Confl. L. § 479 g. 

* Staigg V. Atkinson, 144 Mass. 564, 569, 12 N. E. 354 ; Holmes v. Holmes, 
1 Russ, & Myl. 660, 662, 663. See Merrill v. Preston, 135 Mass. 451. 



§ 149 REVOCATION OF WILLS. 34U 

It may at least be asserted positively that the law ct usaga 
of a domicil possessed prior to the execution of the will i# 
not generally to be regarded, if at the time of its executior 
the testator was domiciled in another State.* 

§ 149. Revocation of 'Wills. — With respect to wills of reo^ 
estate, the effect of an act of revocation will in general be de- 
termined by the lex situs, whether the revocation be express o» 
implied.^ Thus, in Ware v. Wisner,* a foreign testator deviseft 
certain lands situated in Iowa. Afterwards an heir was born t^ 
the testator. It was held that the effect of the subsequent birtfc 
of the heir as a revocation of the will should depend upon thf< 
lex situs of the land, and the will was declared revoked. 

With respect to wills of personalty, on the other hand, th* 
effect of an act of revocation will depend upon the law of the 
testator's domicil, whether the revocation be express, as bv 
the execution of a new will, or the destruction of the old, animc 
revocandi, etc., or whether it arises by implication of law, as 
by the testator's marriage, the birth of pretermitted children^ 
etc.* 

It should be specially observed that the revocation of a will, 
whether express or by implication, is not a continuing act, but 
once validly accomplished the revocation is complete and final; 
the will at once and forever loses its efficacy as a will, unless 
afterwards republished or re-executed. It follows therefore that 
no subsequent subjection of the testator to the law of a new dom- 
icil will alter the effect of a revocation once validly completed 
and perfected. Hence no subsequent change of domicil by the 

5 Anstruther v. Chalmer, 2 Sim. 1 ; Lincoln v. Perry, 149 Mass. 368, 374. 

1 Ware v. Wisner, 50 Fed. 310 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 
22 Am. Dec. 41, 53, 55 ; Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139. 
An exception will probably arise if the revocation is dependent upon the in- 
terpretation of ambiguous words in a subsequent wilL As shown in the 
preceding section, the interpretation of such words will depend upon the law 
of the testator's domicil at the execution of the subsequent wilL 

2 50 Fed. 310. 

3 Price V. Dewhurst, 8 Sim. 437 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky. ) 
460, 22 Am. Dec. 41, 55 ; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. 
Dec. 341, 347 ; Senac's Will, 2 Rob. (La.) 258. See Bloomer v. Bloomer, 
2 Bradf. (N. Y. ) 339. 



350 BEVOCATION OF WILLS. § 149 

testator to a country by whose law a prior act of revocation, 
effectual in a former domicil, would cease to have that effect, 
will of itself suffice to revivify the will, which once legally killed 
is dead forever, unless resurrected by the act of the testator him- 
self, as by a re-execution of the will. It is always therefore the 
testator's domicil at the time of the occurrence of the act relied 
upon as a revocation, which will determine its effect. 

Thus if the alleged revocation be by tearing or burning the 
will, animo revocandi, the law of the testator's domicil at the 
time of the acts in question will determine whether they operate 
as a revocation. If the prior will be alleged to be revoked by a 
subsequent will, the effect of the latter in revoking the former 
would seem to depend in the first instance upon whether the 
subsequent will operates immediately to revoke the first will 
completely and finally, or only so operates after the testator's 
death, when it has itself ceased to be revocable. If it operates 
immediately, the law of the testator's domicil at the time of the 
execution of the subsequent will would govern; if only after the 
testator's death, the law of his Uxst domicil will control. And 
whether the revoking wiU is to operate an immediate revocation 
of the former, or is to operate only post mortem, must be deter- 
mined by the law of the testator's domicil at the time of the 
execution of the last will ; for if the first is thereby revoked 
immediately, no subsequent change of domicil will revive it.* 

In Price v. Dewhurst,® A and his wife, domiciled in the 
Danish island of St. Croix, made a joint will (which under the 
Danish law could only be revoked jointly), by which they be- 
queathed certain legacies. They afterwards became domiciled 
in England, and the husband made a new will bequeathing his 
share of their joint property to his wife. After his death, the 
wife also made a new will bequeathing her property to other 
legatees than those named in the joint will. The question was 
whether the testators could, under the law of a subsequent dom- 
icil (England), make separate wills which would operate to re- 

* All these results flow from the one principle that a revocation is not a 
continuing act, but takes effect once and for alL See Cottrell ». Cottrell, L. K 
2 P. fc M. 397. 

» 8 Sim. 437. 



§ 150 WILLS UNDER POWER OF APPOINTMENT. 351 

yoke the joint will executed when they were domiciled in St. 
Croix, and which, under Danish law, could only be revoked by 
their joint act. It was held that the law of their domicil at the 
iate of the execution of the revoking wills and at the time of 
their deaths should determine the effect of those wills in revok- 
ing the joint will. 

The same principle applies to revocations implied from the 
subsequent marriage of the testator, the subsequent birth of pre- 
termitted children, etc. It is the testator's domicil at the time 
of the circumstance relied upon to show a revocation that will 
furnish the "proper law" to determine its effect. 

Thus, in the case of an alleged revocation by reason of a sub- 
sequent marriage, the law of the testator's domicil at the time 
of the marriage will determine whether it has revoked the will. 
The fact that the testator afterwards changed his domicil to a 
State whose law would have given a different effect to the act of 
marriage is immaterial, and so is the fact that the law of the 
place of marriage is different.* 

So, in the case of a pretermitted child, if it is the hirth of the 
child which by the law of the testator's domicil at that time con- 
stitutes a revocation of his will, it stands revoked, and is not 
revived by removal to a new domicil whose law is different. If, 
by the law of the testator's domicil at the time of the birth of 
the pretermitted child, it is not the hirth of the child which re- 
vokes the will, but the death of the testator, leaving the child 
unprovided for (or if the child be born after the testator's death), 
it is the law of the testator's last domicil that is to govern the 
question.' 

§ 150. Wills in the Exercise of a Power of Appointment. — 
It is a peculiar characteristic of a transfer of property made in 
the exercise of a power of appointment that the law overlooks 
the intermediate instrument through which the appointment is 
made, and regards the appointee as in possession by virtue of 
a direct transfer from the original owner (by the deed or will he 

« See Goods of Reid, L. R. 1 P. & D. 74. 

' See Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41 ; Succe* 
eion of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341, 347. 



362 WILLS UNDER POWER OF APPOINTMENT. § 150 

has used to create the power), and not under the instrument 
through which the appointment is made. 

The original owner of the property is styled the donor of the 
power; the person upon whom is bestowed the power to appoint 
is the donee of the power ; and the person appointed by the donee 
to take the property is the appointee. Thus, if A (the donor of 
the power) by will leaves his property to B (the donee of the 
power) for life, and after B's death, to whomsoever B by last 
will shall appoint, and B wills it to C (the appointee under the 
power), C is considered as holding the property under A's will, 
and not under B's. B is merely the channel through which 
A's will operates. The property given to C belongs to A, not 
to B.^ 

Since it is the will of the donor of the power which really 
operates to transfer the estate to the appointee, the law govern- 
ing the donor's will, not that controlling the donee's, should 
determine most of the questions that arise. 

If the property disposed of be real estate, difficulties are not 
likely to arise, though the donor of the power and the donee re- 
side in different States ; for the lex situs of the land will usually 
govern under any circumstances.^ But if it be personalty, the 
lex domicilii, not the lex situs, is to be looked to. The diffi- 
culty in such case is to" determine whether the proper law appli- 
cable to the particular question is the lex domicilii of the donor 
of the power or of the donee, if they reside in different States. 

With respect to the capacity of the donee to make a will in 
the exercise of the power, the better opinion seems to be that 
this is not really a testamentary capacity at all, as nothing 
passes under the donee's will, but is rather to be viewed as the 
execution of an authority conferred upon an agent. Whether 
such an authority can legally be conferred upon the donee de- 

1 See Sewall v. Wilmer, 132 Mass. 131 ; Bingham's Appeal, 64 Penii. St. 
345 ; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530. 

a Poison V. Stewart, 167 Mass. 211, 218, 45 N. E. 737. See Sewall v. Wil- 
mer, 132 Mass. 131, 138. Except perhaps with regard to the interpretation 
of the donee's will, which is not dependent upon the lex situs, and is probably 
governed by the s«me principles as if the property wei-e personalty. Ante. 
1145. 



§ 150 WILLS UNDER POWER OF APPOINTMENT. 363 

pends (it is said) upon the law governing the validity of the 
donor's will.' 

So since the real disposition to be looked to is that of the 
donor of the power, the substantial or essential validity of the 
provisions of the donee's will in the exercise of the power must 
be regulated by the law and policy of the donor's domicil, not 
the donee's.* 

But with regard to the proper law governing the formal valid- 
ity of the donee's will in the exercise of the power, it would 
seem upon principle that the donee's will in that respect should 
be controlled by the lex domicilii of the donee, — at least if the 
donor's will only provides for an appointment "by the donee's 
will," without more. In such event, the instrument of appoint- 
ment must be the donee's "will." It is difficult to see how 
this provision is complied with, if the instrument is not a will; 
and it would seem that the fact that it would have been a will, 
if executed by one resident in the donor's domicil, does not 
make it a " will " of the donee resident in another State, where 
it is no will.^ 

With regard, lastly, to the proper law controlling the inter- 
pretation of the language used in the donee's will, the question 
is simply as to the meaning and intention of the donee — at 
least in those cases where he has a discretion as to the estate to 
be disposed of or as to the appointees ? Who are intended by 
the donee to be the appointees ? What property or interest does 
he intend them to take ? To what extent has the donee in- 
tended to execute the power? 

Upon principle it would seem that these questions should be 
answered as similar ones are answered respecting the meaning 

» Dicey, Confl. L. 701, 702. See Cotting v. De Sartiges, 17 R. I. 668, 24 
Atl. 530. It might be otherwise in cases where, in default of appointment, 
the property is to remain in the family of the donee. 

* See Sewall v. Wilmer, 132 Mass. 131, 137. 

6 But see Story, Confl. L. § 473 a ; Whart. Confl. L. § 590. In Sewall v. 
Wilmer, 132 Mass. 131, 137, it is said that the law of the donor's domicil should 
control the formal validity of the donee's will. But in that case the power 
conferred was to transfer the property as the donee " should, by deed in writ- 
ing, or by last will, or hy any writing purporting to be h&r last wUl, appoint.' 
The court based its decision on the last clause. 

28 



354 WILLS UNDBK POWER OF APPOtNTMBNT. § 150 

and intention of an ordinary testator, namely, by an appeal to 
the law and usage of the donee's domicil, with the language of 
which he is supposed to be more intimately acquainted.' And 
it is probably true that the law of the donee's domicil will 
furnish the answers to such questions as the first two above 
mentioned. 

Nor is it easy to see why the same rule should not apply to 
the third question also. It is admitted that the donee, by 
choice or by accident, may fail to execute the power. Whether 
he executes it or not is a matter of choice, or if there is a doubt 
as to his having done so, is a matter of Ms intention, not the 
donor's. Yet the few cases that have passed upon the question 
have held that in the event of an ambiguity or a doubt as to 
whether the donee has intended by his will to include the prop- 
erty over which he has the power of appointment, that doubt is 
to be resolved by an appeal to the law of the donor's domicil, not 
to that of the donee's.'' 

Thus in Sewall v. Wilmer," the donor of the power resided in 
Massachusetts, while the donee, his daughter, was domiciled 
with her husband in Maryland. The donee died, and by her 
will left all her property to her husband, without expressly 
mentioning the property over which she had a power of appoint- 
ment. Under the law of Massachusetts, it passed without ex- 
press mention; under the law of Maryland, it only passed where 
the intent to make an appointment was manifest. The court 
held that the law of Massachusetts (the donor's domicil) should 
govern, upon the ground that the property was the donor's, not 
the donee's, and that the lex domicilii of the former should de- 
termine whether or not the power had been executed, and the 
property disposed of.' 

« Ante, §§ 145 et seq. 

T Sewall V. Wilmer, 132 Mass. 131 ; Getting v. De Sartiges, 17 R. I. 668, 
24 Atl. 530 ; Bingham's Appeal, 64 Penn. St. 345. 

• 132 Mass. 131. 

'In this case and the others holding the same way, it is to be noticed that 
the property was actually situated in the donor's domicil, which was also the 
forum. 



§ 161 EXISTENCE OF CONTRACT. 355 



PART V. 

SITUS OF CONTRACTS. 

§ 151. Contractual Liabilities Transitory — Proper Law to 
determine Existence of Contract. — Before entering into a de- 
tail^jd investigation of the "proper law" governing the various 
questions that may arise with respect to foreign contracts, some 
preliminary observations must be made. 

Contracts are either executed or executory. An executed 
contract is performed as soon as entered into, and being a vol- 
untary act of the contracting party, the ** proper law" is always 
the law of the actual situs of the party at the time of the trans- 
action. We have touched upon the proper law governing such 
contracts in our discussion of the contract of marriage,* and 
have dealt with them much more fully in the discussion of vol- 
untary transfers of property.^ The explanations there given 
will suffice ; and in the future discussion we will confine our at- 
tention to contracts executory. These differ from contracts exe- 
cuted in that they are to be performed at another time and often 
at another place than the time and place when and where they 
are entered" into. This characteristic of executory contracts 
raises difficulties and doubts with regard to the "proper law" 
to regulate the various phases of the contract, that do not arise 
at all in the case of executed contracts. 

It has never been doubted that liabilities based upon a valid 
contract executory are, generally speaking, transitory in their 
nature, and enforceable in the courts of any country obtaining 
jurisdiction of the promisor's person.' But often the effect given 

1 Ante, §§ 77, 78. 

* As to transfers of real property, ante, §§ 11, 12. As to transfers of per 
sonalty, ante, §§ 122, 128 et aeq. 

« See W. U. Tel. Co. v. Phillips, 2 Tex. Civ. App. 608, 21 S. W. 638. 



356 EXISTENCE OF CONTRACT. § 151 

to a contract in one State differs very materially from that given 
to it in another. In such cases it becomes necessary to deter- 
mine by what law the contract is to be governed in respect to 
the particular question at issue. This frequently presents seri- 
ous difficulties. Indeed it may be truly said that there is no 
subject in the law with regard to which so much doubt, uncer- 
tainty, and confusion exists. The mixed array of decisions on 
the subject has been well described as " a trackless forest of 
cases." * 

To this confusion the decisions of the courts have contributed 
no little by the vague and general expressions often used in 
cases where precise and accurate language and a careful analysis 
of the circumstances are essential to a correct conclusion, or at 
least would render invaluable aid in dissipating the obscurity 
enveloping the subject. In no branch of the law have ill-con- 
sidered and conflicting dicta and decisions played such havoc 
with principle. It is of the utmost importance to correct con- 
clusions with regard to this subject that absolute precision of 
thought and language be used. 

A question which presents itself at the very outset arises 
with respect to the proper law by which to determine whether 
any agreement at all has been entered into between the parties. 
A foreign contract is alleged by one party to have been made, 
but it is denied by the other that he ever assented to it. By 
the law of one State there may be a presumption that he has 
assented to it, while no such presumption may arise in the other. 
In such a case, the question is held to be merely a matter of 
evidence (pertaining to the remedy), and as such is to be gov- 
erned by the lex situs of the remedy (lex fori).^ 

Thus, in Hoadley v. Transportation Co.,* an engine had been 
delivered to the defendant at Chicago for transportation to 
Lawrence, Mass., but was destroyed at Chicago in the great fire 
of 1871, without the defendant's fault. The defendant had 
given a receipt, excepting liability for loss by fire while in 

♦ Gross V. Jordan, 83 Me. 380, 22 Atl. 250. 

* Hoadley i;. Transportation Co., 115 Mass. 304 ; The Brantford City, 29 
Fed. 373, 393. See Hartmann v. R. R. Co., 39 Mo. App. 88. 

• 115 Mass. 304. 



§ 152 EXCEPTIONS TO LAW OF CONTEACT. 357 

depot or in transit. By the law of Illinois, where the receipt 
was given, the mere acceptance of a receipt did not import as- 
sent to its conditions without additional proof; while by the 
law of Massachusetts (forum) the acceptance of the receipt 
without dissent was sufficient proof of the contract and of as- 
sent to all its exceptions from losses not arising through negli- 
gence. At the trial, the receipt was put in evidence without 
further proof than its delivery to the shipper. The plaintiff 
recovered in the lower court, on the ground that the law of Illi- 
nois governed. But, on appeal, the lower court was reversed, on 
the ground that the question concerned only the mode of proof 
of the contract set up in the receipt, and that as a matter of 
evidence the case was governed by the lex fori. 

So, evidence of an oral contract may be introduced under the 
lex fori, though the statute of Frauds of the State where the 
contract is made provides that no action shall he brought upon 
such a contract unless in writing. It is a mere matter of 
remedy.' 

But if a contract is alleged to be implied from the circum- 
stances of the case, as an implied contract to pay for services 
rendered, etc., this is not a matter of evidence, and is not to be 
controlled by the lex fori. The law of the place where the ser- 
vices are rendered, and the implied agreement, if any to pay 
therefor springs up, determines the existence or non-existence 
of the contract. Thus, in Crumlish v. Improvement Co.,® an 
officer of a Pennsylvania corporation rendered it certain services 
there, and afterwards sued the corporation in West Virginia on 
a quantum meruit. By the law of Pennsylvania no contract 
for payment was implied in the case of services rendered by an 
officer of a corporation. By the law of West Virginia a con- 
tract for compensation was implied. The West Virginia court 
held that the Pennsylvania law should govern. 

§ 152. Applications of General Ezceptions to Foreign Law 
somewhat restricted in Case of Executory Contracts. — The 
second chapter of this work has been devoted to a consideration 

7 Post, §§ 173, 174, 210. 

8 38 W. Va. 390, 18 S. K 466. See also Carnegie v. Morrison, 2 Met 
(Mass.) 381, 897 et seq. 



368 EXCEPTIONS TO LAW OF CONTRACT. § 152 

of the exceptions to the application of a proper foreign law. 
Omitting here any mention of the last of those exceptions (trans- 
actions affecting title to land), it will be recalled that four gen- 
eral exceptions were there enumerated : (1) Where the enforce- 
ment of the foreign law would contravene the policy of the 
forum ; (2) Where it would work injustice to the people of 
the forum ; (3) Where it would violate the canons of morality ; 
(4) Where the foreign law is penal. 

Theoretically, these exceptions apply as fully in the case of 
foreign executory contracts as in other cases. But, practically, 
the effect of some of them is much circumscribed by the fact 
that questions in connection with executory contracts usually 
arise as between the parties only, third persons generally hav- 
ing no interest therein ; and by the fact that such contracts are 
voluntarily entered into, and are therefore controlled in large 
measure by the law of the actual situs of the parties. It would 
come in general with bad grace from one of the parties to after- 
wards seek the protection of his own law, merely because the 
performance of the contract had become burdensome. 

There are instances however in which these exceptions will 
be applied to contracts as well as to other matters. Indeed, the 
third exception, namely, that the transaction is contra bonos 
mores, has its main application in the case of executory con- 
tracts.^ So the fact that the enforcement of a foreign contract 
is contrary to the interests or policy of the forum will be suffi- 
cient ground for substituting the lex fori, and declaring the 
contract invalid, though valid by its proper law.* 

The second exception, injustice or detriment to the citizens 
of the forum, is of less frequent application. Indeed some of 
the courts deny its existence altogether as applied to executory 
contracts. Such transactions having been voluntarily entered 
into abroad, and the parties having deliberately submitted 
themselves to a foreign law, they will not be permitted to claim 
(according to this view) in the courts of their own State that 
the enforcement of their contract will work a hardship or a 
detriment to them. This exception applies to executory con- 

1 Ante, § 9. • Ante, § 6. 



§ 152 EXCEPTIONS TO LAW OF CONTRACT. 359 

tracts (and even this is denied by many coarts) only in cases of 
incapacity to contract, where the law of the party's domicil has 
afforded him protection, because of some legal disability, there 
deemed sufficient to incapacitate him from contracting. Under 
such circumstances, the protection afforded by the lex domi- 
cilii against the party's domestic contracts will sometimes, 
when his foreign contract is sought to be enforced in the domi- 
cil (forum), be held to protect him against the effect of his for- 
eign contracts also. This matter of capacity is the only one in 
respect of which the second exception can be said to apply to 
executory contracts. Capacity is a passive quality, not an ac- 
tive step in the making of a contract.' 

The fourth exception (where the foreign law is penal) also 
has an occasional application to contracts, in cases where, by 
way of punishment, or as the result of punishment, a person is 
incapacitated to enter into particular contracts. Such is the 
case of a guilty party to a divorce suit who is prohibited to 
marry again.* 

' This has been folly discussed in connection with the law governing capa- 
city. See ante, §§ 72, 73. 

* This however is a case of an executed contract. An instance of the ap- 
plication of this exception to executory contracts would be difficult to find, 
since punishments do not usually take the turn of prohibiting the party to 
contract. Penal disabilities in general have been discussed. See ante, 
§§ 10, 74. 



360 SITUS OF OONTBACT — CONFLICTING VIEWS. §153 



CHAPTER XV. 

LOCUS CONTRACTUS. 

§ 153. Conflicting Views as to Situs of Contract. — (1) If 
we suppose a contract made in England, to be performed there, 
in consideration of an act done there by the promisee, and an 
action to be brought there for its breach, we have, from the 
standpoint of the English courts, a purely domestic contract. 
No foreign element whatever enters into it, and therefore there 
is no room for the application of the principles of private inter- 
national law. 

(2) The other circumstances remaining the same, if we sup- 
pose that suit is brought upon the above contract in New York, 
the situs of the remedy has been shifted to New York, but the 
situs of the contract remains unquestionably in England. The 
most ordinary comity and sense of justice demands in such a 
case that the mere accident of suit being brought in New York 
should not constitute any ground for giving the parties a differ- 
ent measure of justice than would be meted out to them in Eng- 
land. The law of England should govern the contract in every 
respect, as before, while the law of New York would now gov- 
ern the remedy, and only the remedy. 

(3) The other circumstances remaining as in the last case, let 
us now suppose that the contract by its terms was to have been 
performed in Massachusetts. Another element is thus removed 
from the operation of the English law, the element oi perform- 
ance, and has been given a situs in Massachusetts. 

(4) If we now go a step further, and suppose the contract to 
have been entered into in Scotland, yet another element has lost 
its English situs. The making of the contract now has its situs 
in Scotland. The only element retaining its English situs 
is the consideration of the contract. 



§ 153 SITUS OP CONTRACT — CONFLICTING VIEWS. 361 

Thus, by this process of elimination, we have before us a 
contract made in Scotland, in consideration of an act done in 
England by the promisee, the contract to be performed in Massa- 
chusetts, and suit brought thereon for its breach in New York. 
Here the situs of the making of the contract is Scotland; the 
situs of the consideration is England; the situs of the p&rformr 
ance is Massachusetts; and the situs of the remedy is New 
York. The only one of these which, at this stage of the dis- 
cussion, we may discard as having no bearing upon the proper 
law governing the contract, is the law of New York, which is 
only the situs of the remedy. 

In the first case mentioned the English courts would have no 
difficulty whatever in declaring that the situs of the contract 
was England, and that it should be governed by English law. 
Most of the cases that arise in the courts are of this character. 

In the second case, the New York courts would have scarcely 
less difficulty in declaring the situs of the contract to be Eng- 
land, and the situs of the remedy to be New York ; and that every 
question pertaining to the substance of the contract, whether 
relating to the making of the contract, its performance, or its 
consideration, should be governed by English law, while every- 
thing pertaining to the remedy should be governed by New 
York law. As long as the three essential elements that go to 
make up an 3xe«utory contract, the making, the performancBj 
and the consideration, all have the same situs, there is no diffi- 
culty in ascribing that situs to the contract as a whole. 

But as soon as we begin to dissociate these elements, we meet 
with difficulties that are insurmountable if we continue to view 
the situs of the contract as single and indivisible. For example, 
if we take the third case above mentioned, and suppose the New 
York court to attempt to ascertain the situs of the contract, or 
the locus contractus as the courts are fond of designating it, it is 
evident that it would meet with grave difficulties. Indeed it 
would be impossible upon any logical ground to fix it at any 
one spot. Any attempt to do so would be mere guess-work, a 
dictum ex cathedra. And still more would this be so in the 
fourth case stated above. Shall the locus contractus be Scot- 
land, where the parties entered into the contract ? Or in Eng' 



362 SITUS OF CONTRACT — CONFLICTING VIEWS. § 153 

land, the situs of the consideration ? Or in Massachusetts, the 
situs of the performance ? Clearly, it is not in New York, 
which is merely the situs of the remedy. In other words, if 
the locus contractus is single and indivisible, is this to be con- 
sidered a Scotch contract, an English contract, or a Massa- 
chusetts contract ? 

The courts have piled the Ossa of confusion upon the Pelion 
of uncertainty in their attempts to answer these questions, in 
cases where the situs of these three elements of a contract are 
not identical. 

Many of the courts define the lex loci contractus and its 
effect in the following terms (substantially): "The validity, 
the nature, the interpretation, and the obligation of contracts 
are to be governed by the lex loci contractus ; that is, by the 
law of the place where the contract is made," — thus holding 
the situs of the making of the contract to be the locus con- 
tractus, though the contract is to be performed elsewhere.^ 

Other courts, with equal looseness and inaccuracy, define the 
"lex loci contractus" substantially as "the law of the place 
where the contract is made, if to be performed there ; but if to 
be performed in another State, then the law of the latter place," 
— thus making the situs of performance the locus contractus, 
though the contract is entered irito elsewhere.* 

Still other courts define the "lex loci contractus" as "the 

1 Lindsay v. Hill, 66 Me. 212, 22 Am. Rep. 564, 566 ; Milliken v. Pratt, 
125 Mass. 374, 28 Am. Rep. 241 ; Ivey v. LoUand, 42 Miss. 444, 2 Am. Rep. 
606; Commercial Bank i;. Davidson, 18 Or. 57, 22 Pac. 517, 521 ; Taylor v. 
Sharp, 108 N. C. 377, 13 8. E. 138, 139 ; Thomson-Houston Electric Co. v. 
Palmer, 52 Minn. 174, 53 N. W. 1137, 1138. These are but a few samples of 
cases using language of this character. Some of them are cases in which 
the situs of the making and performance are identical, but reference is fre- 
quently not made to the fact in the opinion. If this is not intended as a uni- 
Tei-sal definition of the " lex loci contractus," the use of such general terms is 
objectionable, because of the tendency to confuse and mislead. 

2 Examples of decisions thus defining the locus contractus are : Pope v. 
Nickerson, 3 Story, 465, 474 ; Curtis v. R. R. Co., 74 N..Y. 116, 120, 30 Am. 
Rep. 271 ; The Brantford City, 29 Fed. 373, 386 ; Dickinson v. Edwards, 77 
N. Y. 573, 578, 33 Am. Rep. 671 ; Chapman v. Robertson, 6 Pai. Ch. 627, 
630, 31 Am. Dec. 264 ; Lewis v. Headley, 36 111. 433, 87 Am. Dec. 227. See 
Scudder v. Bank, 91 U. S. 406, 411. 



§ 154 SITUS OP CONTRACT — TRUE VIEW. 363 

law with reference to which the parties contracted ; '* or as 
"the law which the parties had in mind at the time they con- 
tracted;" or as "the law which the parties intended should 
govern the contract."* 

All these definitions are defective for the reason that they 
attempt to define the locus contractus or the situs of a contract, 
as if it were a single and indivisible unit, to be determined in 
every case by the application of a single general rule. 

§ 154. True View — Locus Contractus not necessarily a 
Single Place, but may consist of One Place for One Purpose, 
and Another Place for Another Purpose. — The truth is that 
a contract in its entirety is made up of many different elements, 
each of which may be the subject of separate judicial investiga- 
tion. Some of these maybe express, others implied; some may 
depend for their effect solely upon the intention of the parties, 
while the effect of others is to be determined by law and policy, 
without regard to the parties' intention. 

If the particular element in dispute is one which is dependent 
entirely upon the parties' intention, the law which the parties 
have in mind at the time they enter into the contract may well 

• This is a favorite definition of the later English decisions and of the de- 
cisions of the United States Supreme Court. See Peninsular, etc. Co. v. 
Shand, 3 Moore, P. C. N. s. 272 ; Lloyd v. Guibert, L. R. 1 Q. B. 122, 123 ; 
Chartered Bank of India v. Nav. Co., 9 Q. B. D. 118 ; s. c. 10 Q. B. D. 521, 
529, 536, 544 ; Jacobs v. Credit Lyonnais, 12 Q. B. D. 589 ; Robinson v. 
Bland, 2 Burr. 1077, 1078 ; Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 
448 ; Coghlan v. R. R. Co., 142 U. S. 101, 109 ; Hall v. Cordell, 142 U. S. 116, 
120 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 253 ; New England 
Mortg. Co. V. McLaughlin, 87 Ga. 1, 13 S. E. 81, 82 ; Dickinson v. Edwards, 
77 N. Y. 573, 578, 33 Am. Rep. 671 ; Chapman v. Robertson, 6 Pai. Ch. 
(N. Y.) 627, 31 Am. Dec. 264; Thornton v. Dean, 19 S. C. 583, 45 Am. Rep. 
796, 800. But see contra, American Mortg. Co. v. Sewell, 92 Ala. 163, 9 So. 
143, 147. In the last case the court says : "The general rule is that the va- 
lidity of the contract is determined by the place of the contract ; the intention 
of the parties is only looked to in construing the contract ; or as forcibly put in 
the brief of counsel, ' the venue of the agreement determines its validity, and 
not the venue of the intention.'" This statement, it is believed, is much 
nearer the truth than the statement found in the cases above cited. See Brauer 
r. Compania, 57 Fed. 403, 411 ; The Glenmavis, 69 Fed. 472, 476 ; post, 
§154. 



364 SITUS OF CONTRACT — TRUE VIEW. § 154 

be a potent factor in ascertaining that intention. In such cases 
the last definition of the ''lex loci contractus" mentioned in 
the preceding section will be applicable. 

But in many instances the particular element in dispute will 
not depend altogether upon the intent of the parties, but in 
part at least upon rules of law and public policy, which the 
intent of the parties will not be permitted to overcome. There 
are many cases to which the maxim '^ Modus et conventio legem 
vincunt " is not applicable. Instances of such elements are not 
difficult to find in purely domestic contracts. 

Thus, a Virginia married woman contracting in Virginia, 
whose law prohibits her to make the particular contract, will 
not be held liable in Virginia upon such contract merely be- 
cause she intended to enter into a valid contract. So an oral 
contract made and to be performed in a State whose law renders 
the contract void if not in writing will not be enforced there 
merely because the parties intended the contract to be good. 
Or if one should agree to do something prohibited by the law 
of the State, its courts will not enforce the contract because of 
the good intention of the parties, except where the gist of the 
invalidity is the intentional disregard of the law. Or if one 
makes a contract, the consideration of which is condemned by 
the law as immoral or illegal, the parties' intention to bind 
themselves is immaterial. 

These principles are axiomatic, and apply to all contracts 
which the law declares to be contrary to public policy and void, 
whether the invalidity arises, as in the above examples, in 
respect to the capacity of the parties, the formal validity of 
the contract, the performance of the contract, or its considera- 
tion. The proposition would never for one moment be enter- 
tained in any of these cases of a domestic contract, that the 
intention of the parties may validate a contract declared by the 
law to be contrary to public policy and void. 

It seems manifest that the same principles should govern con- 
tracts possessing a foreign element. If the contract is declared 
void in some particular element (such as the mode of entering 
into it, the act to be done in performance of it, or the act done 
as a consideration for the promise) by the law properly govern* 



§ 164 SITUS OF CONTRACT — TBUE VIEW. 365 

ing that element, comity and justice unite in demanding that 
the courts of every State should uphold the law and policy of 
the State where the particular element in question arises or has 
its situs. The fact that the parties had in view a different law 
as governing the element in question should have no more in- 
fluence in this case than in the case of the purely domestic 
contracts above considered.^ 

Thus, let us suppose a man to enter into a contract in Vir- 
ginia to do an act in Virginia prohibited by its laws. Of course 
the fact that he intended his performance of the contract to be 
governed by the law of another State would not influence the 
Virginia courts to permit him to perform the prohibited act in 
Virginia, nor to validate the contract otherwise void. It is 
the act to be performed in Virginia which the law of Virginia 
prohibits, the invalidity of which avoids the contract. If the 
performance is still to take place in Virginia, can it be supposed 
that the Virginia courts would less rigorously condemn the per- 
formance of the contract on Virginia soil because the agreement 
was entered into in another State, and the parties had in mind 
the law of the latter State or of no State at all ? So far as the 
Virginia policy is concerned, the contract is as contrary thereto 
when entered into in another State as when entered into in Vir- 
ginia. The policy is directed against the perfoirmance, and that 
is to take place in Virginia in either event. The Virginia law 
therefore would surely govern the Virginia courts. 

This being the reasonable and necessary conclusion of the 
Virginia courts, does not comity as surely demand, if the above 
contract should come to be enforced in the courts of another 
State, that those courts should respect the policy of Virginia 
and should not enforce a contract the purpose of which is the 
performance of an act in Virginia prohibited by the laws and 
policy of Virginia, no matter where the contract is entered into, 
nor what law the parties ''had in mind," if any ? 

And what is true of the element of performance is true of the 
making of the contract also, and of the consideration to support 
it, as will appear hereafter. 

1 See The Brantford City, 29 Fed. 373, 395 ; The Hugo, 57 Fed. 403 ; Bot- 
any Worsted Mills v. Knott, 76 Fed. 582. But see Brown v. Finance Co., 31 
Fed. 516, 520. 



366 SITUS OF CONTRACT — TRUE VIEW. § 154 

From what has been said it will be seen that, so far as the 
validity of the contract is concerned, the third definition of the 
"lex loci contractus" given in the preceding section is erro- 
neous and misleading.^ 

If the question is not one of the validity of the contract, but 
merely relates to the interpretation to be given its terms, as, in 
ascertaining the nature of the contract, or what the promisor has 
obligated himself to do (obligation of the contract), since these 
matters generally depend primarily upon the intention of the par- 
ties at the time of the contract (the law being invoked, in such 
caseg, if at all, only where the parties have not manifested their 
intention fully), if the parties have not fully expressed their 
meaning, the law the parties actually or presumably had in mind 
when they contracted is the proper law to look to in order to 
ascertain that intention, and this is as true of domestic as of 
foreign contracts. Indeed, it may be laid down as a general 
proposition that wherever the maxim ''modus et conventio 
legem vincunt " is applicable to the particular element of a 
contract under investigation, the proper law is ''the law in the 
minds of the parties " at the time of the contract, whether that 
law is the law of the place where the contract is made, or the 
law of the place of performance, or the lex fori, or the law of 
some other State. 

In such cases, however, it is manifest that unless there is 
evidence that the law of some other State is in the minds of 
the parties, the general presumption will be that the parties 
contracted with reference either to the law of the place where 
the contract is made or to that of the place of performance, 
these being the places where the acts of the parties in con- 
nection with the contract have been, or are to be, done. 

In point of fact, the parties to a contract will usually have 
no special law in view, or at least will make no mention of any, 

2 It may be observed however, even in respect to the validity of a contract 
that cases may arise in which the gist of the illegality of a particular act may 
be the inteviion with which it is done. An act may sometimes be illegal, if 
the ijUent be to violate the law, which will be regarded as legal and valid if 
the intention is innocent. In such cases, the law which the parties " have in 
mind " may be of importance. 



§ 155 SITUS OF ELEMENTS OF CONTRACT. 367 

and hence no direct evidence will be forthcoming of any par- 
ticular law intended by the parties to govern the case. The 
courts therefore must resort to presumptions. Naturally, the 
law which parties are to be presumed to have in mind when 
they do an act is the law of the situs of the act in question. 

The final result of the reasoning advanced above is that, in 
general at least, whether the question concerns an element of 
the contract dependent upon the parties' intention or one that 
is independent of their intention, the *' proper law" to regulate 
it is the law of the situs of the particular element, circum- 
stance, or act in dispute. 

These conclusions will be amply vindicated and exemplified 
in the following discussion. 

§ 155. Three Leading Elements in every Contract — Eaob 
may have a Separate Situs. — There are three leading ele- 
ments or acts or circumstances in connection with every execu- 
tory contract, all other elements or incidents being mere 
resultants of these combined or of one or the other of them. 
Indeed, without them, there could no more be a contract than 
there can be a material substance without beginning and with- 
out end. 

The essential elements or circumstances, around which all 
the incidents of contracts revolve, are (1) The Making of the 
contract; (2) The Consideration supporting the contract ; and 
(3) The Performance of the contract. 

Each of these may have a different situs, or two of them may 
have a situs different from the third, or all three of them may 
have the same situs.^ All the incidents or qualities of the con- 
tract (apart from those dependent solely upon its expressed 
terms) relate to or flow from one or the other of these three 
elements, and will depend upon the effect to be given by its 
proper law, the law of its situs, to the leading element upon 
which it depends. 

Hence it comes about that, in every inquiry relating to any 
incident or quality of a contract, the first step is to ascertain 
whether the particular incident relates to or is dependent upon 
or results from the making of the contract, or from its consider- 

1 Ante, § 153. 



SITUS OF ELEMENTS OF CONTRAO*. § 165 

ation, or from its performance. When this is ascertained, the 
law of the situs of the making or of the consideration or of 
the performance, as the case may be, will regulate the par- 
ticular incident. 

More generally the rule may be thus stated: Everything 
relating to the making of the contract is to be governed by the 
law of the place where it is made ; everything relating to the 
performance of the contract is to be controlled by the law of 
the place of performance ; and wherever the legality or the 
sufficiency of the consideration is the subject of the inquiry, 
the law of the situs of the consideration is to govern.' 

Sufficient has been said to show that each of the definitions 
of the *' lex loci contractus, " mentioned in a previous section, 
is incomplete and imperfect. The fault of each is that it as- 
sumes the ** locus contractus " or situs of the contract to be 
always one definite fixed locality for all purposes, regardless of 
the nature of the particular inquiry. It is true that for some 
purposes, in investigatiug certain incidents or qualities of the 
contract, we must look to the law of the place where the corw 
tract is made ; for others, we must look to the law of the place 
where the contract is to be performed ; and for others, we must 
look to the law " in the minds of the parties." It cannot be 
said that the law of one of these places more than another is the 
"lex loci contractus." What is the "proper law" for one pur- 
pose connected with the contract may not be the "proper law" 
for another purpose. This has been recognized in a New York 
case,* where the court said: "The law of the place of contract 
is not necessarily one place. It is the law of all the places to 

2 See Scudder v. Bank, 91 U. S. 406, 412, 413 ; Akera v. Demond, 103 Mass. 
318, 324. This general rule is subject to the qualification mentioned in the 
preceding section, that is, if the particular incident is one to which the maxim 
*' modus et conventio legem vincurU'^ is applicable, and the parties clearly con- 
tract with reference to the law of a particular State, that law will govern as 
carrying out the " conventio " of the parties. It will rarely happen however 
that the parties can be shown by direct evidence to have had any particular 
law in mind, in which latter event the general rule mentioned above in the 
text will furnish the law which they presuiruibly had reference to. 

» Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367, 378. See also Seamana 
r. Knapp, 89 Wis. 171, 27 L. R. A. 362, 365. 



§ 156 INCIDENTS OR QUALITIES OP CONTRACTS. 369 

which and for the purposes for which it has reference. A bill 
of exchange therefore is to be construed according to the law of 
each place at which the contract contemplated that something 
is to be done by either of the parties." 

Considering therefore the double or triple meaning that may 
be attached to the phrase " lex loci contractus " in connection 
with executory contracts, and the inextricable confusion into 
which it is apt to lead us, the wiser and safer course will be to 
discard the term altogether in the discussion of contracts execu- 
tory. The locus contractus should be analyzed into its con- 
stituent parts, as we have done already, and to each of these 
parts a distinct name should be given. In the future discussion 
we will designate the place where the contract is entered iiito as 
the " locus celebrationis," and the law of that place as the *' lex 
loci celebrationis " or the '* lex celebrationis.^^ The place where 
the contract is to be performed will be known as the " Iocils 
solutionis," and its law as the " lex loci solutionis " or the *' lex 
solutionis.'^ The situs of the consideration may be designated 
the " locus considerationis," and its law the ''lex loci conside- 
rationis." 

§ 156. The Various Incidents or Qualities of Contracts. — 
Upon a careful analysis, it will be found that every inquiry re- 
lating to an executory contract must be directed towards one or 
the other of the following circumstances or qualities : (1) The 
validity of the contract ; (2) Its obligation or effect ; (3) Its 
interpretation ; or (4) Its discharge.^ 

Some of these incidents or qualities relate to or spring from 
the making of the contract, others relate to or spring from its 
performance, and others are connected with the consideration. 
Some depend upon the intention of the parties, express or im- 
plied; others are fixed by the law and are independent of the 
intention. The proper law governing each of these incidents 
will be fully discussed hereafter. 

1 To these may be added, (5) The remedies for its breach. But since all 
questions pertaining to the remedy are governed by the law of the situs of the 
remedy (lex fori), this incident may be omitted from a discussion of the " lex 
loci contractus." It will be considered hereafter in connection with the Situs 
of the Remedy. Post, §§ 205 et seq. 

24 



370 INCIDENTS OR QUALITIES OP CONTRACTS. § 156 

To illustrate the dependence of these incidents upon the mak- 
ing, performance, or consideration of the contract, let us examine 
a little more closely the first one above mentioned, namely, the 
validity of the contract. 

We will suppose A and B to enter into a contract in Virginia 
(locus celebrationis), by which A agrees to do a particular act 
for B in New York (locus solutionis) in consideration of an act 
done or to be done by B for A in Massachusetts (locus conside- 
rationis). Assuming the capacity of the parties to contract, the 
validity of this contract might be questioned in four distinct 
ways : (1) By alleging that the making of the contract was pro- 
hibited by law; for example, that it was entered into on Sunday; 

(2) By alleging that it was not entered into with such formali- 
ties as the law peremptorily required; for example, in case of 
some contracts, that it was not in writing and was therefore void; ' 

(3) By alleging that the act to be done by A in New York in 
performance of the contract was contrary to law; or (4) By 
alleging that the act done or to be done in Massachusetts (the 
consideration for A's promise) was contrary to law. 

It will be seen that the first two objections to the validity of 
the contract relate to the making of the contract ; the third to 
its performance ; and the fourth to the consideration. We must 
therefore look to Virginia (locus celebrationis) to furnish the 
law governing the first two points of attack ; to New York (locus 
solutionis) to furnish the law governing the third question ; 
and to Massachusetts (locus considerationis) to furnish the law 
governing the fourth ground of objection to the validity of the 
contract. 

Before considering more fully the various incidents of con- 
tracts set forth at the beginning of this section, and the law 
properly governing each of them, it is expedient and necessary 
to examine more particularly the situs of the contract in its vari- 
ous aspects, as represented by the locus celebrationis, the locus 
solutionis, and the locus considerationis. To this inquiry the 
next chapter will be devoted. 

» See Wolf V. Burke, 18 Colo. 264, 32 Pac. 427 ; Hunt v. Jones, 12 R. I. 
a«6, 34 Am. Rep. 635. 



§ 157 LOCUS CELBBKATIONIS — FINAL ACT. 371 



CHAPTER XVI. 

LOCUS CELEBRATIONIS; LOCUS SOLUTIONIS; AND LOCUS 
CONSmERATIONIS. 

§ 157. Locus Celebrationis — Place where Contract be- 
comes finally Binding. — In most cases, the locus celebrationis 
of an executory contract is perfectly plain. There is nothing to 
complicate the situation when the parties meet together in a 
given State, and then and there enter into a binding agreement. 
The place where the binding contract is thus entered into will 
be the locus celebrationis. 

But frequently cases arise in which overtures are made or the 
preliminaries are discussed in one State, while the contract be- 
comes finally binding only after some other act is done elsewhere; 
or cases may arise where the parties to the contract are widely 
separated from each other, the contract being entered into by 
correspondence or telegram, or through an agent. In cases of 
this sort more difficulty is experienced in ascertaining the locus 
celebrationis of the contract. 

It may be laid down as a general proposition that a contract 
is not "made " until it becomes complete and binding upon the 
promisor. As soon as the final act is done, and the minds of the 
parties meet, the promisor becomes irretrievably bound, and 
the contract is inade. The situs of that final act necessary to 
bind the promisor is the locus celebrationis of the contract.^ 

1 Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Hill v. Chase, 143 
Mass. 129, 9 N. E. 30 ; Shoe & Leather Bank v. Wood, 142 Mass. 563, 567, 
8 N. E. 753 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 252 ; Western 
Transportation Co. v. Kilderhouse, 87 N. Y. 430, 438 ; Wayne Co. Bank v. 
Low, 81 N. Y. 566, 572, 37 Am. Rep. 533 ; Wood v. Ins. Co., 8 Wash. 427, 
36 Pac. 267 ; Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Keiwert v. Meyer, 
62 Ind. 587, 30 Am. Rep. 206, 208 ; Hart v. Wills, 52 la. 56, 2 N. W. 619, 
«21 ; Voorheis v. Society, 91 Mich. 469, 51 N. W. 1109 ; State Mut. Ins. Co, 
V. Brinkley Co., 61 Ark. 1, 29 L. R. A. 712 ; Mut. Ben. Ins. Co. v. Robison, 



372 LOCUS CELEBRATIONIS — PINAL ACT. § 157 

In Waldron v. Ritchings,^ the plaintiff, who was at the time 
in New York, agreed with the defendant, the manager of an 
opera in Philadelphia, to go there and make her dehut. She 
was assured, if she did not fail in the estimation of the public 
and the press, of an engagement upon terms specified in the 
negotiation between the parties. It was held that the contract 
was not made in New York, but in Philadelphia, upon the ful- 
filling the test of success. 

Notes, deeds, and other contracts of that character do not be- 
come completed and binding contracts merely by the fact of the 
promisor's signing them. They must also be delivered. Hence, 
if the signing occurs in one State, while the delivery takes place 
in another, the latter State, not the former, is the locus celebra- 
tionis.' Thus, where a bond for the purchase price of land in 
Delaware was signed and sealed in Pennsylvania by a mar- 
ried woman, but was delivered to the payee in Delaware, the 
locus celebrationis of the bond was held to be Delaware, not 
Pennsylvania.* 

So, the place where an offer is accepted (until which accept- 
ance it is not binding) is the locus celebrationis of the contract, 
being the place where the minds of the parties meet.* Hence, if 

54 Fed. 580 ; Knights, etc. Indemnity Co. v. Berry, 1 C. C. A. 561, 50 Fed. 
511, 513 ; Hicks v. Ins. Co., 9 C, C. A. 215, 60 Fed. 690, 692 ; Tilden v. 
Blair, 21 Wall. 241, 246. But see Beverwyck Brewing Co. v. Oliver, 69 Vt. 
323, 37 Atl. 1110. 

« 9 Abb. Pr. N. s. (N. Y.) 359 ; s. c. 3 Daly, 388. 

« Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 ; Akers v. Demond, 103 
Mass, 318, 324 ; Hubbell v. Land Co., 95 Tenn. 585, 32 S. W. 965 ; Watson 
r. Lane, 52 N. J. L. 550, 20 Atl. 894, 895 ; Sheldon v. Haxtun, 91 N. Y. 124 ; 
Cook V. Litchfield, 9 N. Y. 279 ; Buchanan v. Bank, 5 C. C. A, 83, 55 Fed. 
223. See Suit v. Woodhall, 113 Mass. 391, 394. 

* Baum V. Birchall, 150 Penn. St. 164, 24 Atl. 620. See also Phipps v. 
Harding, 17 C. C. A. 203, 70 Fed. 468, 471 ; Carnegie Steel Co. v. Construction 
Co. (Tenn, ), 38 S. W. 102 ; Bell r. Packard, 69 Me. 105, 31 Am. Rep. 251, 
252 ; Lawrence v. Bassett, 5 Allen (Mass.), 140. 

6 Armstrong v. Best, 112 N. C. 59, 17 S. E. 14 ; Hydew. Goodnow, 3 N. Y. 
266, 270 ; Vassar v. Camp, 11 N. Y. 441 ; Trevor v. Wood, 36 N. Y, 309 ; 
Suit V. Woodhall, 113 Mass. 391, 394 ; Whiston v. Stodder, 8 Mart. (La.) 95, 
13 Am. Dec. 281 ; Dord v. BonafiFee, 6 La. Ann. 563, 54 Am, Dec, 573 ; 
Claflin V. Meyer, 4i La. Ann. 1048, 7 So, 139. 



§ 157 LOCUS CELEBRATIONIS — FINAL ACT. 373 

a person in one State sends to a person in another a letter or 
telegram, containing an offer or proposal, which the latter there 
accepts by letter or telegram, the contract is complete when the 
letter of assent is deposited in the post ofl&ce, properly addressed, 
or when the reply message is delivered to the telegraph company 
for transmission. The locus celebrationis is thus definitely fixed 
at the place where the letter of acceptance is mailed or the mes- 
sage delivered for transmission, and not the place where it is 
received or addressed, or where the offer was first made." 

By parity of reason, the question whether goods shipped in 
one State upon an order from another constitutes a sale in the 
former State depends upon the further question whether the 
parties have done every act necessary to make a binding sale 
before the goods leave the former State. Thus if the consignor 
there delivers the goods to a carrier as the agent of the con- 
signee, the sale is complete there; if the carrier is the agent 
of the consignor, the sale only becomes complete upon the de- 
livery by the carrier to the consignee or his agent, and the place 
where that occurs is the locus celebrationis.''^ So also, if the 
goods are sent C. 0. D., the locus celebrationis of the contract 
of sale is the place where the assignee accepts them.* 

Upon the same reasoning, it would seem clear that a contract, 
intended to create a joint obligation, made by one promisor in 
one State, and by him sent to another promisor in another State 
to be signed by him there, should be regarded as made in the 
latter State, for only upon the signing of the contract by the 
second promisor does the contract become binding upon either.' 

• Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Vassar v. Camp, 11 
N. Y. 441 ; "Wayne Co. Bank v. Low, 81 N. Y. 566, 572 ; Sheldon v. Haxtun, 
91 N. Y. 124, 131 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 252 ; 
Baum V. Birchall. 150 Penn. St. 164, 24 Atl. 620; Perry v. Iron Co., 15 R. L 
380, 5 Atl. 632 ; Atlantic Phosphate Co. v. Ely, 82 Ga. 438, 9 S. E. 170 ; Gar- 
rettson v. Bankj 47 Fed. 867, 869 ; Kellogg v. Miller, 13 Fed. 198, 200. 

T Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590 ; Dolan v. Green, 110 
Mass. 322. See ante, § 128. 

« State V. O'Neil, 58 Vt. 140, 56 Am. Rep. 557. But see State v. Carl, 43 
Ark. 353, 51 Am. Rep. 565. 

9 In Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472, it was said, under cir- 
'cumstances of this kind, that the locus celebrationis of the contract is tht 



374 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. § 158 

On the other hand, if the contract is not joint, but several, or 
joint and several, the locus celebrationis of the contract is sever- 
able, each party's contract having its locus celebrationis at the 
place where it is entered into.^** 

§ 158. Same — Contracts of Agents. — Questions also fre- 
quently arise as to the locus celebrationis of contracts made by 
agents. It is to be noted, in the first place, that an implied 
authority of an agent to enter into a contract binding upon his 
principal depends upon the law of the place where the general 
authority is given or the agency is created, not that of the place 
where the alleged contract is entered into.^ In Pope v. Nicker- 
son,* the question arose as to the authority of the master of a 
ship to bind the owner by certain bottomry bonds valid by the 
law of the port, but not by the law of the principal's country. 
The court held that the law of the latter State must govern the 
extent of the agent's authority. In the course of his opinion. 
Judge Story said: ''Any other rule would subject the principal 
to the most alarming responsibility, and be inconsistent with 
that just comity and public convenience, which lies at the 
foundation of private international law. . . . The authority 
confided by the principal is in all such cases measured, as to 
the interpretation and extent of that authority, by or according 
to the law of the place where it is given — by the lex loci — 
and not by the laws of a foreign country, of which the principal 
is or may be wholly ignorant, and by whose regulations he is 
not bound." 

But if a person acts as an agent in one State for a person in 
another, which act is unauthorized, but is afterwards ratified, or 
the principal becomes otherwise estopped to deny the agent's 

State where the contract is first signed. But in that case the real inquiry 
was not as to the locus celebrationis, but as to the locus solutionis, which is 
always a question of the partus' intention. See post, § 159. 

w Glenny Glass Co. v. Taylor, 99 Ky. 24, 34 S. W. 711. See Pugh v. Cam- 
eron, 11 W. Va. 523, 532 ; Findley v. Hall, 12 Ohio, 610. 

1 Pope V. Nickerson, 3 Story, 465, 476 ; Freeman's Appeal, 68 Conn. 533> 
37 Atl. 420, 421. See Arayo v. Currell, 1 La. 528, 20 Am. Dec. 286, note. 
And so it is also with an express authority, where the question is as to tbc 
principal's capacity to give the authority. Freeman's Appeal, supra. 
» 3 Story, 465, 476. 



§ 158 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. 376 

authority, it would seem that the scope of the authority in such 
case should depend upon the law of the State where the agent's 
act is done. Thus, in McMaster v. Ins. Co.,' a statute of Iowa 
provided that "any person who shall hereafter solicit insurance 
. . . shall he held to be the soliciting agent of the insurance 
company, anything in the application or policy to the contrary 
notwithstanding." It was held that a foreign insurance com- 
pany should be bound by the acts in Iowa of the person ** so- 
liciting " the insurance, though it was expressly stipulated in 
the policy that the party who brought the insurer and insured 
together was the agent of the insured, and that the company 
should not be held responsible for his acts or declarations. 

In Brooke v. R. R. Co.,* a shipping clerk of a railroad com- 
pany, in collusion with a consignor, issued in New York a ficti- 
tious bill of lading, with the consignor's draft upon the consignee 
attached, without the actual receipt of the goods therein speci- 
fied. The consignee lived in Philadelphia. He paid the draft 
and then sued the railroad company because of the fraudulent 
act of its agent. It was held by the Pennsylvania court that 
the liability of the principal for the agent's act was to be deter- 
mined in accordance with the law of New York, the place where 
the agent's fraud was committed. 

The same principles apply also with respect to the liability of 
a firm for the acts or contracts of a partner. If by the law 
under which the partnership is created the liability of a member 
of the firm is limited, this limited liability will not be increased 
merely because the act or contract of another of the partners or 
of the firm itself is done or made in another State, under whose 
laws the members of the firm would be liable to the fullest 
extent. 

Thus, in King v. Sarria,^ the defendant, Sarria, resided in 
Cuba, and was a special partner of a firm organized and doing 
business there. The Spanish law (prevailing in Cuba) touch- 
ing limited partnerships had been complied with so as to limit 

3 78 Fed. 33, 37. See also Mut., etc. Ins. Co. v. Robison, 54 Fed. 680 ; 
N. Y. Life Ins. Co. v. Russell, 23 C. C. A. 43, 77 Fed. 94. 

* 108 Penn. St. 530, 1 Atl. 206, 208. 
■ « 69 N. Y. 24, 25 Am. Rep. 128. See Baldwin v. Gray, 4 Mart. N.s. 192. 



376 LOCUS CELEBRATIONIS — AGENTS' CONTRACTS. § 158 

his liability to the amount of capital he had contributed. The 
firm became indebted to the plaintiffs, citizens of New York, by 
transactions in New York with which Sarria had no personal 
connection. The New York court held that the contract of 
partnership was to be interpreted and regulated by the laws 
of Spain ; that the authority of the acting partner and Sarria's 
liability were to be determined by those laws; and that the 
defendant was entitled to set up his limited liability as a 
defence.' 

It is an entirely different matter when the question does not 
relate to the agent's authority to make the contract, but to the 
contract itself when made. Here the maxim, *' qui facit per 
aliumfacitper se," applies with full force. If the agent, fully 
authorized, makes a contract in a foreign State, it is the same 
as if the principal were there in person, and had himself entered 
into it. As was said in Milliken v. Pratt : ^ '* If the contract is 
completed in another State, it makes no difference in principle 
whether the citizen of this State goes in person or sends an 
agent, or writes a letter, across the boundary line between the 
two States. As was laid down by Lord Lyndhurst in Pattison 
V.Mills, 1 Dow & C. 342, 363: 'If I, residing in England, 
send down my agent to Scotland, and he makes contracts for me 
there, it is the same as if I myself went there and made them.' " 

In determining in such cases the principal's liability upon 
the contract made by the agent, the locus celebrationis of the 
contract is the place where the principal, through his agent, 
enters into the contract.* 

« It is to be observed in this case that the law of New York (forum) also 
authorized limited partnerships. It would seem however that this is imma- 
terial. But where the question is not of an intrinsic restriction upon the 
liability of the part;ners, but the law of the situs of the partnership merely 
provides that the limited partnership shall not be liable upon a contract unless 
certain formalities are complied with, as that the contract shall be signed by 
at least two managers, etc., it becomes then a question of the formal validity 
of the contract. See post, § 172. In such case the validity of the contract 
will be governed by the law of the place where it is entered into. Park v, 
Kelly Axe Co., 1 C. C. A. 395, 49 Fed. 618, 627. 

T 125 Mass. 374, 375, 28 Am. Rep. 241. 

« Milliken v. Pratt, 125 Mass. 374, 375, 28 Am. Rep. 241 ; Carnegie n 



§ 169 LOCUS SOLUTIONIS — NONE NAMED. 377 

In many cases, however, the agent is not fully authorized to 
enter at once into a complete and binding contract, but must 
refer the negotiations to his principal for approval, before finally 
closing the bargain; it is understood that he is authorized to 
make the contract, subject to the principal's approval or ratifica- 
tion. In such cases the contract does not become binding upon 
the principal until the approval or ratification has taken place, 
and hence the locus celebrationis is the place where such ap- 
proval or ratification occurs.' 

But if the other party to the contract is ignorant that the 
agent has not plenary authority and believes that he is entering 
into a binding contract, though it is still true that the exist- 
ence of the contract will depend upon the approval or subse- 
quent ratification of the principal, the ratification when given 
relates back to the time of the execution of the contract, and 
the place where that execution occurs is the locus celebrationis.^" 

§ 159. Locus Solutionis — Optional -with the Parties — No 
Place of Performance named. — In the case of executed con- 
tracts (so called for the very reason that they are performed as 
soon as made), the place of performance must necessarily coin- 
cide with the locus celebrationis.^ But in the case of contracts 

Morrison, 2 Met. (Mass.) 381 ; Baum r. Birchall, 150 Penn. St. 164, 24 Atl. 
620 ; Jackson v. Mortg. Co., 88 Ga. 756, 15 S. E. 812, 813 ; Merchants' Bank 
V. Griswold, 72 N. Y. 472, 481, 28 Am. Rep. 159 ; Newman v. Cannon, 43 
La. Ann. 712, 9 So. 439; Arayo v. Currell, 1 La. 528, 20 Am. Dec. 286; 
Hausman v. Nye, 62 Ind. 485, 30 Am. Rep. 199, 200 ; Webber v. Howe, 36 
Mich. 150, 24 Am. Rep. 590 ; Hicks v. Ins. Co., 9 C. C. A. 215, 60 Fed. 690. 
See Suit v. Woodhall, 113 Mass. 391, 

9 Tegler r. Shipman, 33 la. 194, 11 Am. Rep. 118 ; Kling v. Fries, 33 
Mich. 275 ; Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206, 209 ; State, 
etc. Ins. Co. v. Brinkley Co., 61 Ark. 1, 29 L. R. A 712, 713 ; Dord v. 
BonafiFee, 6 La. Ann. 563, 54 Am. Dec. 573 ; Claflin v. Meyer, 41 La. Ann. 
1048, 7 So. 139 ; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439 ; Shuen- 
feldt V. Junkermann, 20 Fed. 357. 

M Golson V. Ebert, 52 Mo. 260. See Findley v. Hall, 12 Ohio, 610 ; Pugh 
V. Cameron, 11 W. Va. 523. 

1 Scudder v. Bank, 91 U. S. 406, 413 ; Bethell v. Bethell, 54 Ind. 428, 23 
Am. Rep. 650, 654. Hence, as we have seen, the "proper law "governing 
voluntary transfers of personal property is always the law of the place whpre 
the transfer is made (lex loci contractus). Ante, §§ 127 et seq. 



378 IX)CUS SOLUTIONIS — NONE NAMED. § 159 

executory, since they are to be performed infuturo, opportu- 
nity is given the parties to change their situs before the time of 
performance, and to perform it elsewhere, if the contract so 
requires. 

The locus solutionis of a contract primarily depends upon the 
intention of the parties. It is a part of the principle of freedom 
of contract to choose the place where a contract shall be per- 
formed. This choice may be expressed in the contract itself; 
if not, it may be inferred from the surrounding circumstances. 

If no place of performance is named by the parties, a very 
strong presumption arises that the parties intend that it shall be 
performed where it is made.^ But though this presumption is 
strong, it is not conclusive, and may be rebutted by evidence, 
or by clear inference from the surrounding circumstances, that 
the parties intended that the contract should be performed else- 
where.* Thus, if the parties are only transiently in the place 
where the contract is entered into, with no intention of stop- 
ping there, and the contract is to be performed at a time when, 
under the circumstances of the case, the parties did not contem- 
plate being within the State, this would be sufficient to rebut 
the presumption that the contract was intended to be per- 
formed where made.* 

* Pritchard v. Norton, 106 IT. S. 124, 137 ; Clark v. Seaiight, 135 Penn. 
St. 173, 19 Atl. 941 ; Tenant v. Tenant, 110 Penn. St. 478, 1 Atl. 532 ; Bar- 
rett V. Dodge, 16 R. I. 740, 19 Atl. 530 ; Bell v. Packard, 69 Me. 105, 31 
Am. Rep. 251 ; Lewis r. Headley, 36 111. 433, 87 Am. Dec. 227 ; Parsons v. 
Trask, 7 Gray (Mass.), 473, 66 Am. Dec. 502 ; Young v. Harris, 14 B, Mon. 
(Ky.) 556, 61 Am. Dec. 170 ; Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472; 
Chapman v. Robertson, 6 Pai. Ch. (N. Y.) 627, 31 Am. Dec. 264 ; Malpicaw. 
McKown, 1 La. 248, 20 Am. Dec. 279 ; Thompson v. Eetcham, 8 Johns. 
(N. Y.) 189, 5 Am. Dec. 332. 

8 Pritchard v. Norton, 106 U. S. 124, 137. 

4 Dan. Neg. Insts. § 876 ; Briggs v. Latham, 36 Kan. 255, 13 Pac. 393, 59 
Am. Rep. 546, 548 ; Curtis v. Leavitt, 15 N. Y. 9, 88. See Story, Confl. L. 
§ 273. But the inference should be very clear in order to change the general 
rule. See Curtis v. Leavitt, supra. It is to be observed that such circum- 
stances do not affect the locus celebrationis of the contract. The parties have 
their choice before entering into their contract as to the State where they shall 
make it, but once entered into, their choice is irrevocably laid upon the State 
vhere, as a matter of fact, the contract is made. The parties, when they 



§ 159 LOCUS SOLUTIONIS — NONE NAMED. 379 

Paradoxical as it may seem, there is often more diflficulty in 
determining the locus solutionis of a contract which expressly 
designates a place of performance, than where none is named. 
The reason is that the parties sometimes attempt to cover their 
real intentions touching the place of performance by falsely 
naming a place which they do not really intend to be the true 
locus solutionis. This is done in order to evade the law of the 
real place of performance, when it would condemn the contract. 
In such cases, where the locus solutionis is of importance, it is 
the duty of the court to disregard the false witness of the parties' 
•contract, and to ascertain the place of performance really in- 
tended. For though the parties have the right to choose bona 
fide the place where their contract is to be performed, they have 
not the right, in order to evade the law of the place they have 
really chosen, to pretend that they have selected a different 
place.® Thus it has been held by courts which take the view 
that the validity of usurious contracts is dependent upon the 
lex solutionis ' that a debt falsely pretended to be made or 
payable in a particular State, so that usurious interest may be 
exacted under its law, will not be enforced.'' 

But the mere fact that the motive for selecting a particular 
place as the locus celebrationis or locus solutionis of a contract 
is to evade the law of another State is immaterial, if the choice 
is bona fide. The important point is that the parties have the 
right to select the locus. That being conceded, the reasons 

have entered into a contract in one State, cannot, merely hy intending so to do, 
make it a contract entered into in another. 

» Akers v. Demond, 103 Mass. 318, 324 ; U. S. Sav. & L. Ass. v. Scott, 98 
Ky. 695, 34 S. W. 235. The same principle applies to the locus celebrationis 
of the contract, as mentioned in the preceding note. See MuL Ben. L. Ins. 
Co. V. Robison, 54 Fed. 580 ; Wall v. Equitable, etc. Society, 32 Fed. 273, 
275 ; Fletcher v. Ins. Co., 13 Fed. 526 ; American Mortg. Co. v. JeflFerson, 69 
Miss. 770, 12 So. 464. But see Strawbridge v. Robinson, 5 Gilm. (111.) 470, 
50 Am. Dec. 420 ; Morris v. Hockaday, 94 N. C. 286, 55 Am. Rep. 607 and 
note. 

^ The law governing usurious contracts will be discussed hereafter. See 
post, § 179. 

7 U. S. Sav. & L. Ass'n v. Scott, 98 Ky. 695, 34 S. W. 235 ; American 
Mortg. Co. V. Jeflferson, 69 Miss. 770, 12 So. 464. See The Energia, 56 Fed. 
124, 127. 



380 SEVERAL PLACES OF PERFOEMANCB. § 160 

which induce them to make a particular choice are not open to 
inquiry. 

Some of the authorities seem to point to the conclusion that 
where the contract itself designates no place of performance, 
and where therefore the locus solutionis may be said to be in 
doubt, a presumption will arise that the parties intended to enter 
into a valid agreement, and hence, upon the principle that that 
construction will be placed upon ambiguous terms which will up- 
hold rather than nullify a contract, the presumption that the 
locus solutionis is identical with the locus celebrationis (by 
whose law the contract would be invalid) will yield to the pre- 
sumption that the parties intended to perform their contract in 
a State whose law would permit of its performance, provided 
the circumstances point to any such State as reasonably within 
the view of the parties at the time.' 

§ 160. Same — Several Places of Performance. — It some- 
times happens that a contract may be intended by the parties to 
be performed, as to different parts thereof, in several places. If 
the contract relates to several distinct and divisible acts, there 
is no difficulty in perceiving that as to each of these several 
acts in performance of the contract the contract may have a 
separate locus solutionis. In reality, they are several contracts 
in one.^ 

8 Pritchard v. Norton, 106 U. S. 124, 137; Bell v. Packard, 69 Me. 105, 31 
Am. Rep. 251, 253 ; Dickinson v. Edwards, 77 N. Y. 573, 578, 33 Am. Rep. 
671 ; American Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 465 ; Scott 
V. Perlee, 39 Ohio St. 63, 48 Am. Rep. 421, 423 ; Kellogg v. Miller, 13 Fed. 
198, 199. This presumption can only arise in cases where there is no clear 
evidence or inference as to the place intended by the parties as the locus solu- 
tionis. It does not (as many of the above cases strongly imply) furnish evi- 
dence of what law the parties intend to govern their contract (for in that 
respect, where the validity of the contract is in question, the parties' inten- 
tions are immaterial). It merely furnishes evidence of what place the parties 
intend as the locus solutionis of the contract. It is of value therefore only 
in cases where the particular element of the contract urged as being contrary 
to law relates to the performance of the contract, for the locus solutionis is of 
no importance, where the invalidity alleged relates to the making of the con- 
tract or its consideration. 

1 Pope V. Nickerson, 3 Story, 465, 484 ; Curtis r. R. R. Co., 74 N. Y. 116, 
30 A.m. Rep. 271; Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 454. 



§ 160 SEVERAL PLACES OF PERFORMANCE. 381 

But where the act contracted to be done is a continuous act, 
the performance of which may run through several States, such 
as a contract of through transportation, the weight of authority 
seems to be to the effect that this constitutes an entire contract, 
not divisible, and can only have one fixed place of performance, 
namely, the terminus of the journey.* 

Some of the decisions however take the view that, although 
the final place of performance is the terminus of the journey, 
yet there is a complete performance of part of the contract long 
before the journey is ended. As each mile is covered, so much 
of the contract is performed: the performance is by stages, so 
to speak; and the locus solutionis of the contract of carriage 
shifts from one State to another, as the goods or passengers 
themselves are transferred from one State to the other.' 

The latter view would seem, upon principle, to be the better; 
otherwise the carrier might sometimes be subject to different 
liabilities, according as he is sued in contract or in tort. The 
New York case of Dike v. K. R. Co.* affords an excellent illus- 
tration of the inconvenience that may result from the first view. 
In that case, the plaintiff had purchased a ticket on the defend- 
ant's road from Attica, N. Y., to the city of New York. In 
order to reach New York, the road ran through a part of Penn- 
sylvania and New Jersey. Thus the contract of carriage was 
made and was to be finally performed in the State of New York. 
While passing through Pennsylvania, an accident occurred and 
the plaintiff was injured. A statute of Pennsylvania provided 
that in such cases the amount of the recovery should be limited 
to $3,000. There was no such limitation in New York. Action 
was brought in New York for the breach of the contract to carry 

2 Liverpool Steam Co. v. Ins. Co., 129 U. S. 397, 454 et seq. ; Dike v. R. R. 
Co., 45 N. Y. 113, 117; Curtis v. R. R. Co., 74 N. Y. 116, 30 Am. Rep. 271 ; 
Brown v. R. R. Co., 83 Penn. St. 316. See Phinney v. Ins. Co., 67 Fed. 493, 
498 ; Hale v. Nav. Co., 15 Conn. 539, 39 Am. Dec. 398. 

3 Barter v. Wheeler, 49 N. H. 9, 29, 6 Am. Rep. 434 ; Pope v. Nickerson, 
3 Story, 465, 485; Curtis v. R. R. Co., 74 N. Y. 116, 30 Am. Rep. 271; 
Talbott V. Transportation Co., 41 la. 247, 20 Am. Rep. 589 ; Burnett v. R. R. 
Co., 176 Penn. St. 45, 34 Atl. 972 ; Baetjer v. La Compagnie, 59 Fed. 789. 

* 45 N. Y. 113. See Burnett v. R. R. Co., 176 Penn. St. 45, 34 Atl. 972. 



382 CONTRACTS — LOCUS CONSIDERATIONIS. § 161 

the plaintiff safely, and the court held that the New York law 
applied on the ground that New York was the locus solutionis 
of the contract, and that the amount of damages recoverable 
was not merely a matter of remedy. If the action had been 
ex delicto instead of ex contractu, the lex loci delicti (Pennsyl- 
vania law) would have controlled,* and a different result would 
have been reached. This would be unfortunate. The New 
York court attempts to evade this conclusion, but with doubtful 
success. Under the second view above given the measure of 
liability would have been the same whether the action was ex 
contractu or ex delicto. The locus solutionis of the contract 
would have shifted with the defendant's cars, and at the time 
of the breach would have been in Pennsylvania. 

Another question may arise as to the locus solutionis, wheix 
the contract is to be performed, in the option of the promisor, 
either in one State or in another. Here an alternative is given 
the promisor, and it would seem upon principle that the locus 
solutionis would remain undetermined until he exercises his elec- 
tion. Then the place where he actually performs the contract 
is the locus solutionis.* But there are difficulties in the way 
of this theory, especially if the promisor never performs his 
contract at either place. ^ 

§ 161. Locus ConsiderationiB. — The consideration of a con- 
tract is a matter collateral to, not part of, the promise. It 
need not appear on the face of the promise, but is in general 
essential to its validity. A promise without a consideration is 
a mere nudum pactum, and usually creates no legal obligation. 
So a promise upon a consideration, which is itself prohibited by 
law or contrary to public policy, creates no legal obligation. 

Certain acts or matters may be deemed in one country to 
be considerations sufficient to support a promise, though not 
sufficient in another; and considerations regarded as legal in 

6 See post, § 198, 

« See Porter v. Price, 49 U, S. App. 295, 80 Fed. 655. 

"> See Hale v. Nav. Co., 15 Conn. 538, 546, 39 Am. Dec. 398. In this 
caae, the court was forced to fall back on the locus celebrationis as the locus 
solutionis also. A carrier had agreed in New York to deliver the goods 
sither at Boston, Massachusetts, or at Providence, R. I. 



§161 CONTRACTS — LOCUS CONSIDER ATIONIS. 383 

one State may be held illegal or contrary to public policy in 
another. 

Thus, in Pritchardv. Norton,* Norton executed and delivered 
to Pritchard in New York a bond of indemnity, conditioned to 
fully indemnify him against all loss arising from his liability 
on an appeal bond which the latter had signed in Louisiana as 
surety on behalf of a certain defendant in a judgment in the 
Louisiana courts, and which he was compelled to pay. The 
bond of indemnity was executed in New York, but named no 
place of performance or payment. By the law of New York, 
a contract under seal was only prima facie evidence of a con- 
sideration, and past services constituted no consideration. In 
Louisiana the law was otherwise. The question was whether 
the New York bond of indemnity, the only consideration of 
which was the past service of Pritchard in going upon the 
appeal bond in Louisiana (no contemporaneous promise of in- 
demnity having been made), was to be deemed nudum pactum. 
The United States Supreme Court held that the question was to 
be decided by the law of Louisiana {lex loci consider ationis).'^ 

Again, if the question relates to the legality of the considera- 
tion, it is the lex loci considerationis, not the lex celebrationis 
nor lex solutionis, which is to determine the effect and conse- 
quences of the act set forth as the consideration. Except in 
cases of considerations which are mala in se, or universally 
deemed contra bonos mores,* the policy of a State is not usually 
concerned with acts done elsewhere, and neither encourages nor 
discourages them : it leaves their effect to be determined by the 
law of the State where the act in question is done. 

Thus, let us suppose that a note is made in Vermont and 
payable there, being given in consideration of liquor sold and 

1 106 U. S. 124. 

* The court's decision, however, was not based upon this ground, but upon 
the ground that Louisiana was the locus solutionis of the contract, though the 
bond was executed in New York and named no other place for payment or 
performance. It is respectfully submitted that the law of Louisiana deter- 
mined the sufficiency of the consideration, not because that State was the 
locus solutionis of the contract, but because it was the locus considerationis. 
The question was one of consideration, not of performance. 

« Ante, § 9. . 



384 CONTRACTS — LOCUS CONSIDERATIONIS. § 161 

delivered to the maker in New York; that the sale of liquor is 
prohibited by the law of Vermont, and all notes and securities 
in payment therefor are declared void ; but that by the law of 
New York the sale of the liquor is valid. It is obvious that the 
validity of this note is to be determined, not by the law of Ver- 
mont, though that is both the locus celebrationis and the locus 
solutionis of the note, but by the law of New York, the situs 
of the consideration; for the law of Vermont was manifestly 
applicable only to sales of liquor in Vermont. The note would 
therefore be valid.* On the other hand, if the above note had 
been executed and made payable in New York, the sale of the 
liquor taking place in Vermont, the law of Vermont (lex con- 
siderationis) would govern, not the law of New York (lex cele- 
brationis et solutionis), and the note would be void.' 

Wagers, gaming, lotteries, etc., are not universally con- 
demned as immoral, and therefore should not be classed as 
considerations mala in se.® Hence, if a contract is made, the 
consideration for which is a gaming debt, or the sale of lottery 
tickets, or the conduct of a lottery, the validity of the con- 
tract in this respect will depend upon the law of the situs of the 
consideration, which may or may not be the place where the 
contract is made or to be performed.'' 

These examples suffice to show that the lex loci considera- 
tionis plays no small part in governing the validity of a con- 
tract, 80 that the rules by which the locus considerationis 
or situs of the consideration is ascertained deserve attention. 

* "Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590 ; Boothby v. Plaisted. 
51 N. H. 436, 12 Am. Rep. 140 ; Tegler v. Shipman, 33 la. 194, 11 Am. 
Rep. 118. 

* Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206 ; Webber v. Howe, 36 
Mich. 150, 24 Am. Rep. 590 ; Suit v. Woodhall, 113 Mass. 391 ; Weil v. 
Golden, 141 Mass. 364. 

' The general rule is to consider these matters as subject to their " proper 
law," though some of the decisions treat them as inimical to morals and contra 
bonos mores, no matter what the law of their situs. See Flagg v. Baldwin, 38 
N. J. Eq. 219, 48 Am. Rep. 308. 

T Thatcher v. Morris, 11 N. Y. 437; Mclntyre v. Parks, 3 Met. (Mass.) 
207; Feet v. Hatcher, 112 Ala. 514, 21 So. 711. See Sondheim v. Gilbert, 
117 Ind. 71, 18 N. E. 687. But see Robinson v. Bland, 2 Burr. 1077. 



§ 162 CONSIDERATIONS EXECUTED AND EXECUTORY. 385 

For the most part they are simple enough if we recur to first 
principles.' 

§ 162. Same — Ck>iiaiderations Executed cind Executory. 

— A consideration to support an executory contract may consist 
either in an act done hy the promisee or in an agreement made 
by him, and such agreement may itself be either executed or 
executory; or finally it may consist in some antecedent promise 
or liability of the promisor. 

If the consideration be an act done by the promisee, the 
maxim, ^^ locus regit actum," applies. The validity and effect 
of the consideration will depend upon the lex loci considera- 
tionis, and the locus considerationis in such case is a mere ques- 
tion of fact. Indeed if the consideration is an act done at the 
time of making the contract, the locus considerationis and the 
locus celebrationis of the contract will always coincide. 

If the consideration is itself an agreement on the part of the 
promisee, its situs will be the situs of the promisee's contract, 
and will be determined in accordance with the principles which 
govern the situs of contracts generally, — the same principles 
which are now being discussed in this chapter. If the consid- 
eration (the promisee's agreement) is an executed contract, its 
validity and the corresponding validity of the promisor's con- 
tract will depend upon the law of the place where the promisee's 
agreement is entered into (its lex celebrationis). If the con- 
sideration (the promisee's agreement) is executory, its validity 
and the consequent validity of the promisor's contract will 
depend upon the lex celebrationis or the lex solutionis of the 
promisee's agreement, according to the particular element at- 
tacked as invalid.^ 

It is to be observed, in the cases above mentioned, that in 
strictness the act done or the agreement made by the promisee, 
if they are to form the direct consideration for the promisor's 
promise, must be done or entered into at the moment when, and 
therefore at the place where, the promisor's contract is entered 
into. If the promisee's act or agreement is done or made after 

8 Post, §§ 176 et seq. 

1 See post, §§ 168-175, where the law governing the different cases of in- 
validity is fully considered. 

25 



3b6 CONSIDERATIONS EXECUTED AND EXECUTORY. § 162 

the promisor's, there is no consideration to support the promisor's 
contract; if done or made before the promisor's, the considera- 
tion is a past consideration, which is generally held to be equiva- 
lent to none at all. 

When a past act or agreement by the promisee is said to 
constitute a consideration for a promise, it is an inaccurate 
mode of expression. The past act or agreement may raise a 
liability in the promisor, — an implied promise on his part, — 
arising at the moment of the act done or the agreement made, 
which implied promise may subsequently be changed into an 
express promise. In such case, the consideration for the ex- 
press promise is not the act or agreement of the promisee at all, 
but the liability of the promisor arising contemporaneously with 
that act or agreement and springing out of it. Whether such 
liability legally arises from the act or agreement of the promisee 
depends upon the law of the place where the act is done or the 
agreement is made. If by that law it does arise, it continues a 
burden upon the promisor wherever he may be, and constitutes a 
valid consideration to support his express promise wherever made. 
If no such liability arises in the first instance under the law of 
the State where the promisee's act is done, or his agreement ia 
made, there is no liability upon the promisor anywhere. In 
the latter case therefore an express promise made by the prom- 
isor is only for a past consideration (which is no consideration), 
there being no implied liability legally resting upon him. 

Hence when we spoke, in the preceding section, of a note made 
in Vermont in consideration of a sale of liquor in New York, it 
will be seen that, strictly speaking, such language is inaccurate. 
The consideration for the note in such a case is not in reality the 
sale of the liquor : that would be a past consideration. The real 
consideration for the note is the promise to pay for the liquor 
purchased, which promise was implied by the law of New York 
(or validly agreed upon there expressly by the parties). But the 
inaccuracy is immaterial, since the law of the place of the prom- 
isee's act or agreement controls the validity of the liability, and 
the validity of the note would depend upon the validity of the 
promisor's antecedent liability, which is the consideration for 
the note. 



§ 162 CONSIDERATIONS EXECUTED AND EXECUTORY. 387 

The result of this reasoning is that, for our purposes, we may 
disregard those considerations which consist of liabilities merely 
created by the law; for they will always arise, if at all, imme- 
diately upon some act of the parties, and the validity of the con- 
tracts for which they are the consideration will always in the 
end depend upon the law governing the act out of which they 
arise. We need look therefore only to the locus of the act itself, 
whose law will govern the validity of the consideration. And, 
to simplify matters, we may regard the act itself as the consid- 
eration, though the act be done before the promise is entered 
into. 

Thus viewed, there will be no difficulty in ascertaining the 
locus considerationis if the consideration is a mere act done by 
the promisee, whether it be done in the State where the prom- 
isor's contract is made or elsewhere. The validity of the prom- 
isee's act, judged by the lex considerationis, will determine the 
validity of the promisor's contract. And the same may be said 
where the consideration consists in an executed agreement of the 
promisee. But where the consideration is an executory contract 
of the promisee, it may have a distinct locus celebrationis and 
locus solutionis of its own, and both of these may be different 
from the locus celebrationis and the locus solutionis of the 
promisor's contract. In some respects the validity of the 
promisee's contract may be controlled by its lex celebrationis, 
in some respects by its lex solutionis. And neither of these 
are necessarily coincident with the locus celebrationis or the 
locus solutionis of the promisor's contract. Illustrations of 
these principles will be given hereafter.^ 

' See post, § 176. It would be rarely the case however that the locus 
celebrationis of the promisee's contract (consideration) would not be identical 
with the locus celebrationis of the promisor's contract, as the two promises 
will generally be made contemporaneously. But, bearing in mind the ex- 
planation above given touching the eflFect of the promisor's antecedent liability 
as a consideration, and our agreement to disregard it, substituting therefor the 
act out of which that liability arose, we may easily conceive of a case like the 
following : A promises B in Maryland to do an act for B in Pennsylvania, in 
consideration of B's doing an act for A in New York. So far both contracts 
have the same locus celebrationis, though diflferent loci solutionis. Now sup- 
pose A, in consideration of his existing promise to B, enters into another 



388 SITUS OF CONTRACTS TO PAY MONEY. § 163 

§ 163. Situ* of Particular Contracts — Contracts to Pay 
Money. — Having noted the general principles by which the 
locus celebrationis or the locus solutionis of a contract will be 
ascertained, we will now turn our attention to some particular 
instances of contracts, which present more or less difficulty in 
the solution of these questions. It will repay us to examine 
more closely into the cases of contracts to pay money and con- 
tracts of insurance. 

With regard to contracts to pay money generally, there is 
usually little difficulty in applying the principles heretofore 
noted in determining the locus celebrationis. This will always 
be the place where the last act is done necessary to bind the 
promisor.-^ If the contract is oral, it will be the place where 
the words of assent or promise are spoken j if written, the mere 
signing or sealing will not usually be sufficient to bind the 
promisor. There must be a delivery and acceptance of the in- 
strument also, which is the final token of the promisor's assent. 
Hence the place of delivery, not the place of signing, is the 
place where the minds of the parties meet, and is the locus 
celebrationis of the contract.* But if the note or bond is drawn 
up by the payees, and sent by them to the maker in another 
State for his signature, without instructions as to how it shall 
be returned, the maker's acceptance of the payee's offer is com- 
plete upon his signing the note and depositing it in the post 

agreement with B in Ohio, by which A agrees to do the same act, before 
agreed upon, in Virginia, instead of in Pennsylvania as the terms of the first 
agreement demanded. Here we would have A's promise made in Ohio to be 
performed in Virginia. The consideration of A's promise would be B's promisa 
made in Maryland, to be performed in New York. There is no need to da 
more than merely point out that such a case may arise. As a general rule the 
loci celebrationis of the two mutual promises will coincide. It might easily 
be otherwise, however, with the loci solutionis. 

1 Ante, § 157. 

2 Baum V. Birchall, 150 Penn. St. 164, 24 Atl. 620 ; Fant v. Miller, 17 
Gratt. (Va.) 47, 59 ; Akers v. Demond, 103 Mass. 318, 324 ; Lawrence v. Bas- 
sett, 5 Allen (Mass.), 140 ; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251, 
252 ; Hart v. Wills, 52 la. 56, 2 N. W. 619, 35 Am. Rep. 255 ; Carnegie 
Steel Co. V. Construction Co. (Tenn.), 38 S. W. 102 ; Phipps v. Harding, 17 
C. C. A. 203, 70 Fed. 468, 471. 



S 163 SITUS OF CONTRACTS TO PAY MONEY. 389 

c 

office, properly addressed to the payees, and the place of the 
signature is the locus celebrationis of the contract.' 

The locus solutionis of a bond or note will be the place where 
the parties intend it to be paid at maturity. If the place where 
it is payable is designated on the face of the instrument, that 
is the locus solutionis,* unless the parties have really a different 
intention as to the place of performance from that expressed on 
the face of the note. It is the real intent, not the expressions 
of the parties, that is looked to.' 

If no place of payment is named on the face of the instru- 
ment, the strong presumption is that it was intended to be pay- 
able at the locus celebrationis, ' though this may be rebutted by 
clear evidence or inference that the parties looked to some other 
place as the locus solutionis, as where the maker executes the 
note while in transit through the State.^ In such case, if the 
bond or note be payable at a future day, it is reasonable to pre- 
sume that the parties look to the creditor's or the debtor's domicil 
• as the place of payment, rather than the State which is by mere 
accident the locus celebrationis ; and since it is the duty of the 
debtor to resort to the creditor's place of business on the ap- 
pointed day to pay him, it would seem that the locus solutionis 
should be the creditor's domicil rather than that of the debtor.* 

8 Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Wayne Co. Bank v. Low, 
81 N. Y. 566, 572, 37 Am. Rep. 533. See Sheldon v. Haxtun, 91 N. Y. 124, 
131. But see Staples v. Nott, 128 N. Y, 403, 28 N. E. 515. 

* Bryant v. Edson, 8 Vt. 325, 30 Am. Dec. 472. 

6 Ante, § 159. See New England Mortg. Co. v. Vaden, 28 Fed. 265. 

6 Barrett v. Dodge, 16 R. I. 740, 19 Atl. 530 ; Hart v. "Wills, 52 la. 56, 
35 Am. Rep. 255, 2 N. W. 619 ; Lewis v. Headley, 36 El. 433, 87 Am. Dec. 
227 ; Wilson v. Lazier, 11 Gratt. (Va.) 477. 

^ Ante, § 159, note 4. Even here, if the note is payable on demand, since 
it falls due immediately, it would seem that the locus celebrationis and the 
locus solutionis must generally be regarded as identical. Smith v. Mead, 
3 Conn. 253, 8 Am. Dec. 183. 

8 See Pritchard v. Norton, 106 U. S. 124, 138 ; De Wolf v. Johnson, 10 
Wheat. 367, 383 ; Lanusse v. Barker, 3 Wheat. 101 ; Boyle v. Zacharie, 6 Pet. 
635 ; Hickox v. Elliott, 27 Fed. 830, 839 ; Chapman v. Robertson, 6 Pai. Ch. 
(N. Y.) 627, 630, 31 Am. Dec. 264. If the bond or note is given in pur- 
suance of an order of court, no place of payment being designated, it seems 
that it is to be regarded as payable at the situs of the court. Irvine v. Bar- 



390 SITUS OF CONTRACTS TO PAY MONET. § 163 

So, the fact that the bond or note, though executed in one 
country, is payable in the currency of another, may be evi- 
dence of the intention of the parties to make the latter State 
the place of payment; or the fact that accruing interest is ex- 
pressly made payable in another State may afford reasonable 
ground for the presumption that the principal was intended to 
be paid there.' 

Some difficulty is found in ascertaining the locus solutionis 
of a bond or note, naming no place of payment, made in one 
State and secured by mortgage on property in another. Here 
as in other cases the question is one of intent. Do the parties 
intend that the bond or note shall be payable at the place where 
the mortgaged property is situated ? It is not at all a neces- 
sary inference that they do. The mortgage is merely a col- 
lateral agreement, the object of which is to secure payment at 
the time and place agreed upon, which may or may not be the 
situs of the mortgaged property. Unless other circumstances 
point to that place as the intended place of payment, the mere 
existence of the mortgage cannot logically give rise to an infer- 
ence of such an intention; and the better opinion is believed 
to be that it does not.^** 

If the promise to pay is not express, but implied from the ac- 
ceptance of goods sold, work done, services rendered, money 
loaned, account stated, etc., the indebtedness is created at the 
place where the goods are sold, the services rendered, etc.; for 

rett, 2 Grant's Cas, (Penn.) 73 ; Pritchard v. Norton, 106 U. S. 124, 138. In 
case of the bond of a public officer, conditioned to perform public duties faith- 
fully, the place of payment is the seat of government. Cox v. United States, 
6 Pet. 172 ; Duncan v. United States, 7 Pet. 435; Pritchard v. Norton, 106 
U. S. 124, 139. 

9 Curtis V. Leavltt, 15 N. Y. 9, 86, 87. See Coghlan v. R. R. Co., 142 
U. S. 101. 

w De Wolf V. Johnson, 10 Wheat. 367, 383 ; Hickox v. Elliott, 27 Fed. 830, 
839 ; Central Trust Co. v. Burton, 74 Wis. 329, 43 N. W. 141, 142 ; Odom v. 
Mortg. Co., 91 Ga. 505, 18 S. E. 131 ; New England Mortg. Co. v. McLaugh- 
lin, 87 Ga. 1, 13 S. E. 81 ; Martin v. Johnson, 84 Ga. 481, 8 L. R. A. 170, 10 
S. E. 1092 ; American Mortg. Co. v. Sewell, 92 Ala. 163, 9 So. 143; Fessenden 
V. Taft, 65 N. H. 39, 17 Atl. 713 ; Chapman v. Robertson, 6 Pai. Ch. (N. Y.) 
•27, 633, 634, 31 Am. Dec. 264. See Kellogg v. Miller, 13 Fed. 198 



§ 164 SITUS OF maker's or acceptor's contract. 391 

the indebtedness, if it arises at all, must arise at the moment 
the benefit is conferred, or the act done which is alleged to 
create it. And the locus solutionis of the implied promise will 
of course be identical with the locus celebrationis.^^ 

§ 164. Negotiable InstrumentB — Contract of Meiker or 
Acceptor. — The situs of negotiable paper deserves special 
notice. So far as the maker of a negotiable note is concerned, 
the locus celebrationis and the locus solutionis of his contract 
are to be ascertained in accordance with the principles men- 
tioned in the preceding sections.^ There is no difference in 
this respect between the maker of a negotiable note and the 
maker of any other contract to pay money. 

The locus celebrationis of the contract of an acceptor of a bill 
of exchange is of course the place where his acceptance becomes 
complete and finally binding upon him. This will usually be 
the place where the acceptance is given. But if the acceptance 
is for the purpose of negotiation in another State, the bill being 
subsequently sent thither for that purpose, the locus celebra- 
tionis of the contract of acceptance is the State where such 
negotiation takes place, for only upon its delivery to the holder 
does the acceptance become obligatory.^ And if the acceptance 
be made through an agent, the place where the agent acts (if 
he has plenary authority) will be the locus celebrationis of the 
principal's contract.' 

The locus solutionis of an acceptor's contract depends prima- 
rily, as in other cases, upon the intention. If the acceptor 
names in his acceptance the place where he proposes to pay, or 
if, in the event of his silence, the bill designates a place of pay- 
ment, that place will be the locus solutionis of his contract. 

11 Crumlish v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. 456; Grant v. 
Healy, 3 Sumner (U. S.), 523. See Porter v. Price, 49 U. S. App. 295, 80 
Fed. 655 ; Lanusse v. Barker, 3 Wheat. 101 ; Merchants' Bank v. Griswold, 
72 N. Y. 472, 28 Am. Rep. 159. 

1 Ante, §§ 157, 158, 163. 

2 TUden v. Blair, 21 Wall. 241, 247 ; Hall v. Cordell, 142 U. S. 118 ; 
Farmers* Nat. Bank v. Sutton, 3 C. C. A. 1, 52 Fed. 191 ; Merchants' Bank v. 
Griswold, 72 N. Y. 472, 481, 28 Am. Rep. 159 ; Lennig v. Ralston, 23 Peim. 
St. 137. This applies also to the contract of the maker of a note. 

» Scudder v. Bank, 91 17. S. 406 ; ante, § 158. 



392 SITUS OF indorsee's or drawer's contract. § 165 

But in the absence of such controlling circumstances, the gen- 
eral rule is that the locus solutionis of the acceptor's contract 
will be his place of residence or business, or his address on the 
face of the bill.* 

A contract to accept a bill or draft is usually regarded as an 
actual acceptance thereof, as against a bona fide holder, unless a 
specific place for the future acceptance of the bill is designated.* 
But as between the original parties, it is an ordinary contract, 
and governed by the same rules.* 

§ 165. Indorser'B or Drawer's Contract. — Upon the iudorse- 
ment of a bill or note, the indorser enters into a new contract, col- 
lateral to and distinct from the original contract of the maker or 
acceptor.* Indeed the contract of indorsement (unless it be merely 
for accommodation) comprises two distinct contracts, one of which 
is an executed assignment, operating to transfer to the indorsee 
such title to the chose in action as the indorser possesses, and 
such rights as he has against prior parties to the note or bill, 
and the other an executory contract, by which the indorser under- 
takes that the bill or note shall be paid at maturity. 

So far as concerns the executed transfer represented by the 
indorsement, it is