Rights of property of persons married without a settlement.

575. The rights of property in movables, whether owned at the time of marriage or afterwards acquired, as affected by marriage except in respect of succession, are governed by the law of the matrimonial dom. icil. But upon a change of domicil, the right, as to all subsequent acquisitions, is determined by the law of the new domicil,"

Westlake, Private Intern. Law, § 366.
Story, Confl. of L., § 187.

Matrimonial property after change of domicil. 576. After a change by married persons, from the matrimonial domicil, the mutual rights of the husband and wife, acquired subsequently thereto, in each other's movable property, which arise from the marriage relation, and are dependent upon its continuance, are determined by the law applicable to their transactions, or by the law of their new domicil, according to the provisions of this Code, except as otherwise provided by express contract between the parties as to such rights.

This, so far as the law of domicil is concerned, is the American rule. Story, Conf. of L., § 187, (§ 171, b, et seq., Redfield's ed.;) and is supported by Windschied Pankekten, I., § 35, p. 78, note. To the contrary, Westlake, Priv. Intern. Law, § 366, et seq. The supposition of a tacit consent, or submission, of the parties to the law of the matrimonial domicil, is certainly open to the objection that, even assuming the parties to have any intention on the subject, there is nothing to show that it was directed to the law of the matrimonial, rather than to that of the subsequent, domicil. "Matrimonial domicil" defined.

577. The matrimonial domicil is the domicil first 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.

See Story, Confl. of L., § 193.

Abandonment.

578. The matrimonial domicil is not changed by an abandonment of one party by the other.

Bonati v. Welsh, 24 New York Rep., 157.

66

CHAPTER XLII.

TRANSFER.

ARTICLE 579. "Transfer," defined.

580. Voluntary transfer.

581. Validity of transfers.

582. Jurisdiction over movables.
583. Protection of creditors.

Transfer" defined.

579. The term "transfer," as used in this Code, means an act of the parties, or of the law by which the title to property is conveyed from one living person to another.' It includes the creation and the extinguishment, by such act of an interest in movables or immovables.

580. A voluntary transfer is a transfer by act of the parties, without compulsion of law, whether with or without consideration.

Validity of transfers.

581. Subject to the next two articles, and to the provisions of Chapter XLVI., on CONTRACTS, a transfer of movables, whether voluntary or involuntary, if valid by the law of the place where it is made, is valid everywhere.

Where personal property is seized and sold under an attachment, or other writ, issuing from a court of the State where the property lies, the question of the liability of the property to be sold under such writ, must be determined by the law of that State, though the domicil of all the claimants to the property may be in another State. In a suit in any other State growing out of such seizure and sale, the effect of the proceedings by which it was sold, on the title to the property, must be determined by the law of the State where the proceedings were had. Green v. Van Buskirk, 5 Wallace's U. S. Supreme Ct. Rep., 307.

Jurisdiction over movables.

582. A transfer of movables, which is prohibited by

the law of the nation within whose exclusive jurisdiction they are situated, is void everywhere.

See Article 571. It may be thought better in lieu of the words " prohibited by ", to insert " forbidden by an express provision of".

Protection of creditors.

583. A nation may give to any creditors who are subject to its jurisdiction, a lien on movables in possession or in action, situated within its exclusive jurisdiction, in preference to those claiming under a foreign transfer not made in conformity with its own law.

The preceding three Articles are intended to present a simple and uniform rule for determining the validity of foreign transfers of movables. The general rule that the personal statute governs movables, has been discussed under Article 571; and the rule there proposed is in harmony with the above Article 581, which makes the law of the place of the transaction the general rule. This is subject, however, to any prohibition of the positive or customary law of the nation where the movables are situated. Black v. Zacharie, 3 Howard U. S. Supreme Ct. Rep., 483; Warren v. Copelin, 45 Massachusetts Rep., 594; Story's Confl. of Laws, §§ 383-4; Farrington v. Allen, 6 Rhode Island (3 Ames) Rep., 449; Parsons v. Lyman, 30 New York Rep., 103; Caskie v. Webster, 2 Wallace Jr. U. S. Circ. Ct. Rep., 131.

A transfer made at the domicil of the maker, and efficient to transfer his property there, does not transfer his movables situated in another State by the law of which such transfer is regarded as inconsistent with public policy. Varnum v. Camp, 1 Green (New Jersey) Rep., 326.

The rule that personal property shall be transferred according to the law of the domicil of the owner, and not the law of the rei sita, does not apply when the rights of residents in the State where the property is situate will be affected by it. Moore v. Bonnell, 2 Vroom (New Jersey) Rep., 90; Bentley v. Whittemore, 18 New Jersey Chan. Rep., 366.

The exception for the protection of creditors stated in the above Article, turns, not on the validity of the transfer, but on the superior power of a State, acting through its courts, to apply property within its limits to the satisfaction of debts due to its citizens.

The customary law of a State where movables are situated, in reference to the formalities attending a transfer, will not be applied by the tribunals of such State against a transfer valid by the law of the place where the maker was domiciled and all the parties to the controversy are domiciled, if the defect of form does not prejudice the citizens of the State where the movables are situated. Noble v. Smith, 6 Rhode Island (3 Ames) Rep., 446.

A transfer of movables situate in one State, made between persons domiciled in another State, which is valid by the law of the place of domicil, may be treated as valid against other persons domiciled in the same State, although it is defective in point of form according to the

law of the State in which the movables are situate.

See Rhode Island

Central Bank v. Danforth, 80 Massachusetts (14 Gray) Rep., 123.

Where there is a conflict between the laws of different States, all that a debtor can reasonably be required to do is to make his assignment in good faith, and in accordance with the law of the State in which he lives and where the principal part of his property is situated. The courts of such State will give effect to the assignment on all the property within their jurisdiction, though it may be inoperative as to real property in another State. Trink v. Buss, 45 New Hampshire Rep., 325. In Pardo v. Bingham, (Law Rep., 6 Equity Cas., 485,) it was held that the English courts should not give priority over all other creditors, to a claim against an Englishman, secured to a foreign creditor by an instru ment, which, by being registered pursuant to the foreign law, was entitled by that law, to such priority.

In the case of South Boston Iron Company v. Boston Locomotive Works & Trustee, (51 Maine Rep., 585,) this principle was extended to protect the claim of a foreign creditor, who was a citizen of the State where the discharge was granted, but, who, by the law of the State, where the question arose and assets were attached, was entitled to proceed against such assets as well as if he were a citizen.

The enforcement of the lien, given by this Article, is provided for by Part VI., on the ADMINISTRATION OF JUSTICE.

CHAPTER XLIII.

SUCCESSION.

ARTICLE 584. Succession" defined.

585. Law governing succession to movables.

586. Law governing succession to immovables.

587. Rights of succession, when not affected by foreign charac

ter of property.

588. Incidents of local burdens.

589. Failure of heritable blood.

"Succession" defined.

584. The term "succession," as used in this Code, means the coming in of another to take the property of one who dies without disposing of it by will.

The term "descent, "hitherto chiefly used in the law of England and of the United States to denote the devolution of an inheritance, was derived from the ancient principle of the English law that an inheritance could never ascend and pass from son to father, but must descend or pass to descendants.

But as most laws now allow property to pass in both ways, there arises an incongruity which causes practical embarrassment, since the

word "descendants" must still be confined to its strict meaning, and can not embrace all those who may take by the statute of descents, so called, and the word "descend "must often be used in a sense opposite to the devolution of property in the ascending line. The term "succession "is the more appropriate phrase of the civil law. This is, tlierefore, adopted to denote the transmission of property of a. decedent by operation of law. Civil Code, reported for New York, § 637.

Law governing succession to movables.

585. The succession to the movable property of one who dies intestate as to such property, is governed exclusively by the law of the place which was the domicil of the intestate at the time of his death.

Moultrie . Hunt, 23 New York Rep., 394; Wicker v. Hume, 7 House of Lords, 124; Doglioni v. Crespin, House of Lords, 1 Eng. & Irish App. Cas., 301.

"This, says Story, in Harvey v. Richards, (1 Mason's Rep., 381, 408,) "although once a much vexed question, is now so completely settled by a series of well considered decisions that it can not be brought into judicial doubt." (Citing numerous Continental, English and American authorities.) The reason of the rule is to avoid the uncertainty and confusion which would result from applying any other to the case of a person having property in several jurisdictions, or dying away from his domicil. Chancellor Kent states the doctrine thus:

"There has been much discussion as to the rule of distribution of personal property, when the place of the domicil of the intestate and the place of the situation of the property were not the same. But it has become a settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to, and distribution of, personal property wherever situated, is governed by the law of the owner's or intestate's domicil, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. On the other hand, it is equally well settled, in the law of all civilized countries, that real property, as to its tenure, mode of enjoyment, transfer and descent is to be regulated by the lex loci rei sita." 2 Kent's Commentaries, 429.

"Whether personalty in one country becoming the property of a person who is in another country, and who there becomes insolvent, goes to the executor in the former country, or to the assignees in insolvency in the latter, depends upon the question in which country he had his domicil." Re Blithman, Law Rep., 2 Equity, 23.

"The rule that movable property in one jurisdiction, of a person domiciled at the time of death in another jurisdiction, is distributed according to the law of the latter, is subject to the limitation that the question of what is and what is not his property may be determinable by another law;-e. g., that of the matrimonial domicil.". Townes v. Durbin, 3 Metcalfe (Kentucky) Rep., 352.