§ 83c. Wills of British subjects made abroad. there for one year immediately preceding his death, and shall have made and deposited in a public office of such foreign country a declaration in writing of his intention to become domiciled in such foreign country. Without this declaration he shall be deemed, for all purposes of testate or intestate succession as to moveables, to retain the domicile he possessed at the time of going to reside in the foreign country (7). The converse case of foreigners, with whose country England has a convention, dying in England is provided for in the same way; that is, they are not to be deemed to have acquired a British domicile for testamentary purposes, except under the conditions stated (m). This Act does not apply to foreigners who have been naturalized in British dominions (n). It does not appear that any conventions have been made under this Act, and it has therefore been at present inoperative. Another statute of the same year provides that, Every will or other testamentary disposition made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be deemed to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the forms required, either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin" (o). In 1874, Lacroix, a Frenchman by birth, but naturalized in England, made a will in Paris in the English form, relating to his property in England only. By the law of France, the will of a naturalized British subject made in France according to the forms required by the law of England, is valid in France, whatever may be the domicile of the testator at the time of his death, or at the time of making the will. The will of Lacroix was therefore admitted to probate under this statute, as being Wills made in valid according to the law of the place where it was made (p). The England. same statute provides that " Every will or other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his or her death), shall, as regards personal estate, be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made" (q). Under this section the will of an Italian who was naturalized in England, who made his will in England, and then returned to (1) [24 & 25 Vict. c. 121, s. 1.] (m) [Ibid. s. 2.] (n) [Ibid. s. 3.] (0) [24 & 25 Vict. c. 114, s. 1.] (p) [In the goods of Lacroix, 2 P. D. 95.] (2) [24 & 25 Vict. c. 114, s. 2.] and was domiciled in Italy at the time of his death, was admitted to probate in England. The section was held to apply equally to nativeborn as to naturalized British subjects (r). $ 84. status. The sovereign power of municipal legislation also ex- Personal tends to the regulation of the personal rights of the citizens of the State, and to everything affecting their civil state and condition. It extends (with certain exceptions) to the supreme police over all persons within the territory, whether citizens or not, and to all criminal offences committed by them within the same (s). Some of these exceptions arise from the positive law of nations, others are the effect of special compact. There are also certain cases where the municipal laws of the State, civil and criminal, operate beyond its territorial jurisdiction. These are, Laws relating and capacity to the state of persons extra I. Laws relating to the state and capacity of persons. In general, the laws of the State, applicable to the civil condition and personal capacity of its citizens, operate may operate upon them even when resident in a foreign country. territorially. Such are those universal personal qualities which take effect either from birth, such as citizenship, legitimacy, and illegitimacy; at a fixed time after birth, as minority and majority; or at an indeterminate time after birth, as idiocy and lunacy, bankruptcy, marriage, and divorce, ascertained by the judgment of a competent tribunal. The laws of the State affecting all these personal qualities of its subjects travel with them wherever they go, and attach to them in whatever country they are resident (†). This general rule is, however, subject to the following exceptions: tion. § 85. 1. To the right of every independent sovereign State Naturalizato naturalize foreigners and to confer upon them the privileges of their acquired domicile. Even supposing a natural-born subject of one country (r) [In the goods of Gally, 1 P. D. 438.] (s) Huberus, tom. ii. liv. i. tit. 3, de Conflict. Leg. § 2. (t) Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 1, Fœlix, Droit In ternational Privé, liv. i. tit. i. § 31. $ 86. Regulation of property situated in a State. cannot throw off his primitive allegiance, so as to cease to be responsible for criminal acts against his native country, it has been determined, both in Great Britain and the United States, that he may become by residence and naturalization in a foreign State entitled to all the commercial privileges of his acquired domicile and citizenship. Thus, by the treaty of 1794, between the United States and Great Britain, the trade to the countries beyond the Cape of Good Hope, within the limits of the East India Company's Charter, was opened to American citizens, whilst it still continued prohibited to British subjects: it was held by the Court of King's Bench that a natural-born British subject might become a citizen of the United States, and be entitled to all the advantages of trade conceded between his native country and that foreign country; and that the circumstance of his returning to his native country for a mere temporary purpose would not deprive him of those advantages (u). 2. The sovereign right of every independent State to regulate the property within its territory constitutes another exception to the rule. Thus, the personal capacity to contract a marriage, as to age, consent of parents, &c., is regulated by the law of the State of which the party is a subject; but the effects of a nuptial contract upon real property (immobilia) in another State are determined by the lex loci rei sitæ. Huberus, indeed, lays down the contrary doctrine, upon the ground that the foreign law, in this case, does not affect the territory immediately, but only in an incidental manner, and that by the implied consent of the sovereign, for the benefit of his subjects, without prejudicing his or their rights. But the practice of nations is certainly different, and therefore no such consent can be implied to waive the local law which has impressed certain indelible qualities upon immoveable property within the territorial jurisdiction (x). (u) Wilson v. Marryatt, 1 Bos. & Pull. 43; 7 T. R. 31. [See further on this subject at the end of the chapter.] (x) Kent, Comment. vol. ii. pp. 182, 186, n. (5th edit.). $87. property. As to personal property (mobilia) the lex loci contractús, Personal or lex domicilii, may, in certain cases, prevail over that of the place where the property is situated. Huberus holds that not only the marriage contract itself, duly celebrated in a given place, is valid in all other places, but that the rights and effects of the contract, as depending upon the lex loci, are to be equally in force everywhere (y). If this rule be confined to personal property, it may be considered as confirmed by the unanimous authority of the public jurists, who unite in maintaining the doctrine that the incidents and effects of the marriage upon the property of the parties, wherever situated, are to be governed by the law of the matrimonial domicile, in the absence of any other positive nuptial contract (≈). But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractûs (a). $ 87a. The matrimonial domicile has been defined to be the domicile first Matrimonial domicile. established by the husband and wife together; or, if none such be established, it is that of the husband at the time of the marriage (b). "The marriage contract," said Lord Brougham, "is emphatically one which parties make with an immediate view to the usual place of their residence" (c). The matrimonial domicile is not changed by an abandonment of one party by the other (d). It seems firmly established that the law of the matrimonial domicile will always govern personal property acquired before marriage (e); and instruments relating to it, such as marriage settlements, are to be construed according to that law (f). But when the matrimonial domicile is changed after marriage, there is a difference of opinion as to what effect this will have upon personal property acquired after such change of domicile. Story lays it down that when there has been a change, the law of the actual, and not of the matrimonial, domicile will govern as to all future acquisi (y) Huberus, 1. i. tit. 3, de Conflict. Leg. § 9. (*) Fœlix, § 66. [Westlake, § 366. Field, International Code, § 575.] (a) De Couche v. Savetier, 3 Johnson, Ch. Rep. 211. (b) [Field, International Code, § 577 (2nd ed.). Story, Conflict of Laws, § 193. Wharton, § 190.] (c) [Warrender v. Warrender, 2 Cl. & Fin. 488.] (d) [Bonati v. Welsh, 24 New York, 157. See Le Sueur v. Le Sueur, 1 P. D. Watts (e) [Phillimore, vol. iv. § 445. (f) [Anstruther v. Adair, 2 Mylne & § 88. Effect of tions of personal property, if the laws of the place where the rights are sought to be enforced do not prohibit such arrangements, and this is, apparently, the law of England (g). On the other hand, the French Court of Cassation decided, in 1854, that the rights of the parties were, in such a case, governed by the law of the original matrimonial domicile (h). By the general international law of Europe and discharge and America, a certificate of discharge obtained by a bank bankrupt title of assignees in another country. rupt in the country of which he is a subject, and where the contract was made and the parties domiciled, is valid to discharge the debtor in every other country; but the opinions of jurists and the practice of nations have been much divided upon the question, how far the title of his assignees or syndics will control his personal property situated in a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is commenced in the country of the bankrupt's domicile draws to itself the exclusive right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or moveable) property is, by a legal fiction, considered as situated in the country where the bankrupt had his domicile. But the principles of jurisprudence, as adopted in the United States, consider the lex loci rei sita as prevailing over the lex domicilii in respect to creditors, and that the laws of other States. cannot be permitted to have an extra-territorial operation to the prejudice of the authority, rights, and interests of the State where the property lies. The Supreme Court of the United States has therefore determined, that both the government under its prerogative priority, and private creditors attaching under the local laws, are to be preferred to the claim of the assignees for the (9) [Conflict of Laws, § 187. Burge, Col. and For. Laws, pt. i. ch. 7, § 8. Wharton, 198. Harvey v. Farnie, 8 App. Cas. 43, 47; Re Marsland, ubi supra; Re Lett's Trusts, L. R. 7 Ir. Ch. 132.] (h) Fœlix, p. 91. This is approved of by Sir R. Phillimore, vol. iv. § 447, and accords with the opinion of Savigny. Guthrie, p. 293. |