페이지 이미지
PDF
ePub
[ocr errors]

will to the first taker, as if an estate be devised to A. to consider other questions argued by counsel. It is in fee, and if he dies possessed of the property with- quite immaterial whether or not Lewis Carusi bad out lawful issue, 'the remainder over the property mental capacity to execute the deed of October 17. which he, dying without heirs, shall leave, or without 1872, or whether he had any title to the property deselling or devising the same; in all such cases the re- scribed therein. If that deed had never been execumainder over is void because of his preceding fee; and ted the fact would not aid the complainant's case. it is void by way of executory devise, because the limi- The result is that the decree of the Supreme Court tation is inconsistent with the absolute estate expressly of the District of Columbia in General Term by which given, or necessarily implied by the will." 4 Kent the decree of the Special Term dismissing the comCom. 271.

plainant's bill was affirmed was right, and must itself If the will of Lewis Carusi had remained unrevoked be affirmed. and had been duly proven and recorded, and Samuel Carusi had died intestate, with all the property devised to him by Lewis Carusi uudisposed of, the com

WHEN WORDS INPUTING CRIME NOT ACTIONplainant would be entitled to no relief, for she would

ABLE, have taken nothing by the will. If the will can be held to designate any beneficiary under the trust deed of

OHIO SUPREME COURT COMMISSION. July 18, 1872, it designated Samuel Carusi and not the

JANUARY TERM, 1883. complainant and her sisters. But by the terms of Lewis Carusi's will, the com

BROWN v. MYERS.* plainant and her sisters were only entitled to so much of the estate of Lewis as Samuel should " not have dis

An action of slander cannot be maintained for words which posed of by devise or sale.” The bill of complaint

impute a crime, where from all that was said at the time charges that Samuel Carusi, by his last will and testa

the words were spoken it appears that the words had re

lation to a transaction that was not criminal, and that ment, had devised to certain persons therein named, they must have been so understood by the hearers. among them the complainant, all the property de- In such case it is error to exclude evidence offered by the devised to him by the last will of Lewis Carusi. There fendant to show what the transaction was to which the was therefore no property of the estate of Lewis Carusi words related. to which the supposed devise to complainant and her CTION for slander. The defendaut was the secresisters could apply.

tary and agent of an insurance company. The The case of complainant receives no support from

plaintiff, before the speaking of the slanderous words, the precatory words of the will of Lewis Carusi. These

had been the agent of the company, and had been dis. words express “the hope and trust that Samuel Carusi

charged from his employment as such agent for an alwill not diminish the same (viz., the property devised

leged dishonest transaction in the business of the comto bim by the will) to a greater extent than may

pany. answer for his comfortable support, and the testator

The defendant, at the time the words were spoken, then devises to complainant and her sisters what

was in conversation with one Curry, between whom Samuel shall not have disposed of by devise or sale.

and the insurance company there was a dispute about The words do not raise any trust in Samuel. He is

the payment of the same assessment twice. The denot made a trustee for any purpose, and no duty in

fendant was explaining to Curry that the assessment respect to the disposition of the estate is imposed upon

had not been twice paid. Curry then stated that him. But even if the will had contained an express

Myers, the plaintiff, had pointed out to him that the request that Samuel should convey to the complainant

assessment had been paid twice. The defendant so much of the estate as he did not dispose of by sale

answered, “Myers told you that." “Myers is a thief, or devise, there would be no trust, for the will, as we and ought to be in the penitentiary long ago. Curry have seen, gives Samuel Carusi the absolute power of in stating what was said at the time, says, “in condisposal

nection with this talk, in which Brown said Myers In Knight v. Knight, 3 Beav. 148, it was said by the

was a thief, he, Brown, also explained about a transMaster of the Rolls (Lord Langdale): “If the giver action of Myers at Smithville, about having an assess accompanies his expression of wish or request by other

ment paid after a fire, and reporting it before the fire words, from which it is to be collected that he did not

to hold the company.” Curry further testified that intend the wish to be imperative, or if it appears from

Brown in the conversation spoke of a printed circular the context that the first taker was to have a discre

about Myers, concerning his action in the Smithville tionary power to withdraw any part of the subject

matter, and that he at the time kuew of the circular from the wish or request, * * it has been held

and had heard of the Smithville transaction. The dethat no trust was created." And see S. C. nom. Knight fendant took a writ of error. . Boughton, 11 Cl. & Fin. 513. The rule is thus stated by Mr. Justice Story in his

A. T. Brewer, for plaintiff in error. Commentaries on Equity Jurisprudence, section 1070: McClure & Smyser, for defendant in error. * Whenever the objects of the supposed recommenda

MCCAULEY, J. The question in this case is, whether tory trust are not certain or definite, whenever the

or not the plaintiff should have had a verdict upon the property to which it is to attach is not certain or de.

evidence offered in support of his petition. It is very finite, whenever a clear discretion or choice to act or

doubtful whether an action can be maintained for not to act is given, whenever the prior dispositions of

such general word as thief, unless it be clearly the property import absolute and uncontrollable

shown that it was intended to impute a felony. Townsownership, in all such cases courts of equity will not

hend on Slavder and Libel, 210. Folkard's Starkie on create a trust from words of this character."

Slander, 75, marg.

page.

Whether a criminal See also Wood v.Co.c, 2 Myln & Craig,684; Wright v.

charge was intended would appear by the matters Atkyns, Turn. & Russ. 157 ; Stead v. Miller, L. R., 5 Ch.

spoken of in the same conversation. In this case the D. 225; Lambe v. Eames, L. R., 10 Eq. 267; S. C., L. R.,

defendant was in conversation with the witness who 6 Ch. 547 ; Hess v. Singler, 114 Mass. 56; Pennock's Es

testified to the speaking of the words about an assesstate, 20 Penn. St. 268; Van Dyne v. Van Dune, 1 Mc

ment that the witness claimed had been paid twice, Carter, 397; 2 Pomeroy's Eq. Jur., SS 1014, 1015, 1016,

the witness informed the defendant that Myers had 1017, and notes. The views we have expressed render it unnecessary

*To appear in 40 Ohio State Reports.

.)

BioFlor relief. On final hearing on pleadings and

told him the assessment had been paid twice. In re- ment of civil rights there ; that his domicil was never sponse to this statement of the witness the defendant changed thereafter, and that consequently his wife was spoke the slanderous words of the plaintiff, and then

entitled, under the law of France, to one-half of his proceeded to speak of the Smitb ville transaction. The

personalty, notwithstanding his will of 1869. witness, Curry, says: “In connection with this talk in which Brown said Myers was a thief, he, Brown, proofs. also explained about a transaction of Myers at Smith

John Linn and F. R. Coudert, for complainant. ville, about having an assessment paid after a fire, and reporting it before the fire to hold the company."

F. McGee, for defendants. The witness further testifies that he had heard of the Runyon, C. This suit is brought by Mrs. Claire Smithville transaction, and it appears from bis knowl. Harrall, of the city of Paris, against the executors and edge of it, that he must have known that it was not a next of kin and legatees of her late husband, Dr. criminal matter.

Frederick F. Harrall, deceased, for the recovery of It is very clear that the words were spoken of the one-half of all his personal property. Dr. Harrall, plaintiff and of his connection with the Smithville who then lived in New York, left this country in matter, and that the words were so understood by the August, 1869, and went to Europe for the purpose of hearers. Where the persons who hear the slanderous perfecting himself in his medical education. He rewords know the transaction referred to, and that it mained in Europe up to the latter part of May, 1878, was not a larceny, no action for slander can be main- when he was brought to this country by his brother, tained. Carmichael v. Shiel, 21. Ind. 66; Williams who went there after him. On bis arrival here, he was V. Mines, 18 Conn. 473; Folkard's Starkie ou Slander, taken to the house of his brother-in-law, in Englewood, 446.

in this State. On the 28th of June following, on the In this case the hearers knew the transaction refer- petition of his brother George, a commission in the red to, and knew that it was not a larceny, but merely nature of a writ de lunatico inquirendo was issued out a fraudulent transaction.

of this court to inquire concerning his sanity, under The charge of the court is not in the record, and which it was found that he was of unsound mind, however applicable to the case and correct it may have without lucid intervals, and had been so for three been, the verdict not supported by sufficient evi- years. The inquisition was confirmed. In the same dence. It is for the jury to determine with what month of June he was taken to a lunatic asylum in meaning the words were spoken and understood; but Philadelphia, where he remained for over three years, where the words with all that was said in the same up to the time of his death, which took place there conversation show no intention to impute a crime, but July 5, 1881. He was then past thirty-nine years of a total absence of such intention, the plaintiff's case age. When he went to Europe he was a bachelor. fails in its proof as a matter of law.

Before going and in the month of July, 1869, he made The defendant offered evidence to show what the bis will, by which he gave all his property to his Smithville transaction was. This evidence was ex- brothers and sister. Since his death the will has been cluded by the court. While the speaking of the words admitted to probate in the prerogative court of this was accompanied with such other and further state- State. From 1872, and perhaps from an earlier period, ment as showed no intention to impute a crime, and to May, 1878, he resided in France, and on the 20th of that in consequence the court might properly have February, 1877, he was married there to the complaindirected a verdict for the defendant, yet this was not ant, with whom he lived as his wife up to the time done, nor was the court asked thus to dispose of the when he returned to this country, as before stated. case; but it went to the jury upon the evidence and They lived in Suresnes, a few miles from Paris, in a charge of the court, and if the evidence had failed to house which he rented and furnished. He took a lease prove that the words were spoken with an innocent of it for two years, and they lived in it for fourteen meaning, then it became proper that the jury should or fifteen months, when be returned to this country. know what the Smithville matter was, to which the He contemplated buying the property, if he could, at words referred, in order to determine with what, it the expiration of the lease. During his entire resiany, malice the words were spoken.

dence abroad he was supported by his income from his Judgment reversed.

property here, and he engaged in no pursuit except the study of medicine for a while. The complainant

followed him to this country, arriving here iu SepDOMICIL OF TESTATOR DETERMINES CON

tember, 1878. She claims that under the law of France STRUCTION OF WILL.

she would, if he had died there, have been entitled to

one-half of his personal property there, notwithstandNEW JERSEY COURT OF CHANCERY, OCTOBER

ing his will, inasmuch as there was no nuptial contract TERM, 1883.*

between them, and that country was the place of HARRALL V. WALLIE.

matrimonial domicil, which was never changed, and

that on principles of International comity, the right A testator, domiciled in New York, made his will there in July, 1869. In August, 1869, he went to Europe for the

will be accorded to her here. On the other hand, the purpose of perfecting his medical education. From 1872

defendants allege that Dr. Harrall was never domito 1878, he resided in France, and was married there to

ciled in France, but was domiciled here, and that he the complainant in February, 1877, and continued to live was not, when the marriage was contracted, nor at any with her there until he was brought to this country by his time afterward, of sound mind, and therefore could brother, in 1878. He abandoned his profession, and rep- neither make a valid contract of marriage uor change resented himself, at the time of his marriage, as a resi- his domicil. It is fully established in the cause, and dent in Paris. He married a French woman, the com

indeed, is admitted in the answer, that if he was capaplainant, and rented a house near that city, in which he and she lived for fifteen months, and he contemplated

ble of entering into the matrimonial contract, he was buying it if he could do so. His habits of intoxication im.

lawfully married to the complainant in the city of paired his mind, and after he was brought here in 1878, Paris, in 1877. There was a civil contract and cerehe was adjudged a lunatic, and confined in an asylum in mony, constituting a lawful marriage, on the 20th of Pennsylvania for about three years, where he died in 1881. February, and a marriage ceremony in the church on Held, that his domicil, at the time of his marriage, was the 1st of March. There is no proof that he was not in France, although he had never petitioned for the enjoy

competent to enter into the contract. It appears, by *To appear in in 10 Stewart's (37 N. J. Eq.) Reports. the certificate of the civil marriage, that he correctly

[graphic]

gave the date of his birth, June 26, 1842 (he was there- notice any marked change. He says he would not fore about thirty-five years old at the time of the mar- have paid his draft unless he had seen him sign it. riage,) and the place of his nativity, Bridgeport, in Some of Dr. Harrall's letter, written in 1877, are put this country, and truly gave the names of his parents, in evidence. While they show a change in him, they Henry K., and Sarah Harrall, and stated that they by no means establish unsoundness of mind. Some were both dead. At the same time he declared that of them were evidently written when he was greatly he resided in Paris. The testimony of Mr. Proximart, under the influence of strong drink. On the other who was one of his witnesses at the civil marriage, hand, there is the testimony of persons who knew him and was present at the wedding breakfast, is that he at Suresnes while he lived there, and saw him daily, was of sound mind. The defendants insist that there and some of them had frequent business transactions is evidence from his letters written in 1877, as well as with him in a small way. He appears to have been from the testimony of living witnesses, that he was competent to transact ordinary affairs. His letter of insane before, at the time of and after the marriage; October 23, 1877, eight months after his marriage, in but all the facts relied upon on this head are easily ac- which he refers to advice given to him by his brother counted for by the fact that he was addicted to in- | Henry to sell the house at Bridgeport, and invest the temperance. George F. Tucker, who was a clerk in proceeds in bonds of some kind, is evidence that at his father's banking-house, in Paris, from 1874 to

that time he was able to understand and transact busiOctober, 1877, testifies that he observed a change in ness. It seems to me quite clear that his loss of mental Dr. Harrall, and first perceived it in the fall of 1876 or vigor was attributable to his indulgence in intoxicatwinter following. He says the chief thing was that ing liquors, which, being continued, at last probably Dr. Harrall did not recollect money matters; that he rendered him mentally incompetent to do business. used to draw money and not remember it, and when I cannot conclude that when he was married he was he came into the office his language was mingled En- mentally incapacitated to contract marriage, or change glish and French, and that when he wanted to draw or establish his domicil. I have not overlooked the on America he would “mix it all up." His father, medical certificate put in evidence by the defendants. who was the head of the banking-house, testifies on It was made by two French physicians in Paris in May, the same subject, but attributes the change to intem- 1878, about fifteen months after the marriage. It is not perance. He says Dr. Harrall was very intemperate, competent evidence, and if it were, it certifies to Dr. and came to his office very often apparently under the Harrall's condition not at the time of the marriage, influence of liquor. He says there were times when but more than a year afterward. And it may be be came in that he was not fit to take his money, and added, while it certifies that he was then in a feeble he, the witness, spoke about it, and Mrs. Harrall was mental condition, it states that he understood what outside and would not let her husband take his money. was said to him, and made appropriate replies, though As to the son, George F. Tucker, it appears from his he answered briefly and slowly. own testimony that he did not regard Dr. Harrall as That Dr. Harrall bad settled himself in France to in anywise of unsound mind, for he says he used to live there and make it his home, is evidenced by the visit Dr. Harrall at his house twice a week up to July fact that when he was married he had already lived or August, 1877, and that he has taken dinner there there for five years and called Paris his place of resiperhaps three times a week. He says he was oftendence; by his marrying a French woman and estabthere over Sunday, and spent the whole day with him, lishing himself in a house in France, on which he took and that he always had a very pleasant time; that Dr. a lease for two years, and which he contemplated buyHarrall always entertained him very nicely, and al. ing, if he could, as a place of permanent residence, and ways wanted to have plenty of drink. He adds that in which he resided with his wife. It appears by his Dr. Harrall was always very generous with the bottle, letter of March 26, 1877, written about a month after and was of a genial, pleasant, sociable temperament. his marriage took place, that he had at that date He also says that at the last it grew tiresome, because already rented the house; so that he must have rented Dr. Harrall was not talkative. Dr. Peet, who was Dr. it soon after his marriage. He went to Europe merely Harrall's cousin, and who saw him in Paris in 1873, to complete his medical education, but he appears to says he noticed a change in him then, that it was "á have abandoned his profession and settled himself kind of daze over his intellect;” and yet he says that down to live in France. In one of his letters, dated Dr. Harrall still took the same interest as formerly in May 18, 1877, about three months after his marriage, affairs at home, talked about politics, about his privi- he says he is married and happy and contented, and lege of voting and his legal residence in this country. in a postscript says he hopes by economy to come home He further says that the dazed condition of which he “in some time;" and he says in another letter of speaks was not continuous, that it would last through September 4th following, that he will "try and make the day and then Dr. Harrall would be out of it; and enough by economy to come to America.” In a posthe says he does not know that it grew any worse script to a letter of April, 1878, he says he "does wish while he was there. He left Paris in the latter part his wife (would] come with him to America." But of January, 1873, and vever saw Dr. Harrall afterward. there is no evidence in these expressions of an intenIt may be added that he says he took what he calls a tion to return to stay. When they were written he "State dinner" with Dr. Harrall on the occasion of was settled at Suresnes, and was living there in a his approaching departure for home. As will have house on which he had a lease for two years. Had he been seen, he speaks of January, 1873. Other persons, been disposed to return to this country, he could at however, who saw Dr. Harrall after that, and as early any time have obtained the money of his own from as 1874 at least, and had abundant opportunity to per- his own agent to do so. We have not the whole of the ceive any change in him, say they first saw the change at correspondence of which these letters form part, and a considerably later day. Young Mr.Tucker says he first therefore do not know to what propositions, suggessaw it in the fall of 1876 or winter following, and that tions or requests the expressions under consideration before that Dr. Harrall seemed to be a man that could are replies. They seem rather to refer to a visit to take care of himself, and showed no signs of careless- America than to be expressions of intention to return ness in his money matters, and was bright and quick here to live. It is entirely clear, from George HarHis father says the loss of memory commenced, he rall's testimony, that Dr. Harrall did not leave France thinks, "exactly a year before February, 1877." He with no intention of returning. It appears from that adds that he should think it was 1875 or 1876, that it testimony that when the witness told Dr. Harrall that was increasing on him all the time, and that he did not he wanted him to go home with him, the latter said

[ocr errors]

that he wanted to go back to Suresnes; and the wit- establish the mode in which a foreigner can become ness says that Mrs. Harrall did not know that her hus- entitled to enjoy the civil rights of a Frenchman, aud band was coming to America, and he also says he, the it does not affect the consideration of the question witness, told her she should not come with him. Dr. now before me. Although Dr. Harrall had not been Harrall, when he left France, took no clothes with admitted to the civil rights of a Frenchman, or in him except what he wore. It seems quite evident that other words, had not, to use our form of speech on the his brother, who took him away, went to Paris for the subject, become naturalized in France, that fact did purpose, and it appears from the testimony of their not prevent himn from obtaining a domicil, in fact, sister, that after he got here Dr. Harrall expected to there. And the rights of the complainant are to be return to France. One of the French witnesses testi- determined, not by the decision of the question fies that when Mrs. Harrall wept, in view of Dr. Har- whether her husband assumed allegiance to the gorrall's going to America, he told her not to cry; that ernment of France, but by the decision of the queshe would return in three months and would have tion whether when the marriage took place, he was plenty of money, and she would be very happy. There domiciled, in fact, in that country. See Dicey Domiis no proof of any intention to change his domicil on cil, 362. Several cases are cited in which the French his return to this country, but the evidence is to the courts have held, that in the absence of any express contrary. It is quite manifest that if he had been left nuptial contract, the husband's mere domicil, in fact, to himself he would not have left France at all. He determined the widow's rights in his personal estate. was attached to his wife, and not only is there ng It is urged that there are decisions of those courts to proof that he meant to abandon her, but he undoubt. the contrary also. edly meant to return to her. All the circumstances of But it is a question not depending for its determinahis leaving France are opposed to the idea that he in- tion merely on the decision of the French courts. It tended to return to this country to stay permanently. is a question of International law, upon which the ad

By the law of France, where there is no contract judications of those courts are indeed of very high between them on the subject, the parties to a marriage importance, but it is to be decided in this case here acare, by what is called le regime de la communauté, en- cording to what may seem to be just views and printitled in common (each to one-ball), by a kind of part-ciples. I conclude from the evidence that Dr. Harnership, to the personal property which belonged to rall, at the time of his marriage, was in fact domiciled either of them at the time of the marriage, or which in France; that he intended to reside there permathey acquired afterward by title of succession or by nently, and did not intend to return to America to gift (unless otherwise provided by the donor) and the reside, and that after that time he never changed his produce thereof, and all the res estate acquired by

domicil. It follows that as the law of France would either during the continuance of the marriage relation, give the complainant one-half of the personal estate except such as is acquired by inheritance or gift. Code of her husband, notwithstanding the will, this court Civil, $ 1401. If the husband, as in the case in hand, should therefore award it to her. Had Dr. Harrall made a will before mariage disposing of his estate been domiciled here, and died intestate, our law to others, it will only, as to the common property, be

would have given to her one-half of his personal estate, operative as to his share. “As a general rule," says Mr. for he had no children, and in this connection it will Parsons,“the rights of the parties as springing from the not be amiss to state, although the fact will not affect relation of marriage, where there is no special nuptial the decision, that in November, 1877, his attorney and contract, must be determined by the place where they agent in New York, who also was his friend and confithen supposed themselves and intended to be domi- dential adviser, wrote to him in regard to the condiciled." 2 Pars. on Cont. 111. “ It is universally al- tion of his business affairs here, giving him advice as lowed," says Mr. Westlake, that when a marriage to what he should do to protect his property against takes place without settlement, the mutual rights of his generous disposition and the temptation to lavish the husband and wife in each other's movable prop- expenditure, and stated to him that perhaps he was erty, whether owned at the time of the marriage or not aware that his marriage had annulled the will afterward acquired, are to be regulated by thé law of which he made before leaving this country, but that the matrimonial domicil, so long as that remains un- such was the fact. This was about nine months after changed." Westlake Priv. Int. Law, 352. Judge Story the marriage. This statement of the law as to the states it as a proposition, which, though not universally revocation of his will by marriage was erroneous, as a established or recognized in America, has much of do- statement of the law of New York where the testator mestic authority for its support and noue in opposi- was domiciled when he left this country. By that tion to it, that “where there is no express contract the statement he undoubtedly was assured that the dislaw of the matrimonial domicil will govern as to all position of his property in case of his death could not the rights of the parties to their present property in

be controlled or affected by that will. He died in that place, and as to all personal property every- Pennsylvania. By the law of that State a testator's where, upon the principle that movables have no marriage is, as to his wife, a revocation of his existing situs, or rather that they accompany the person every- will, and her rights in his property on his death are where, and that as to immovables the law rei sitoe will the same, so far as that will is concerned, as if he had prevail.” Story's Confi. L., $ 186. That domicil, died intestate. But Dr. Harrall was not domiciled in where there is no intention to remove to another State, that State. Nor was he domiciled here. His domicil, is that of the husband at the time of the mariage. It if not in France, was in New York. In my judgment is urged in this case, however, that Dr. Harrall could it was in the former. Though he did not die in this not have obtained a domicil in France at the time of State, and was not domiciled here when he died, his his marriage, because it is alleged the French Code de personal property is here, and his will was proved clares that a foreigner, to obtain a domicil that here. This suit is therefore brougbt here. Had he country, must apply to the government for permission remained in France up to his death, the complainant to do so, and obtain express authority from it to es- would have been entitled to one-half of his personal tablish such domicil, and that Dr. Harrall made no property. She should under the circumstances, be such application. The provision in question is decreed to have the same right here. There will be a L'étranger qui aura été admis par le gouvernement à decree in her favor accordingly. She is entitled to établir son domicile en France y jouira de tous les droits costs, payable out of the estate. civils tant qu'il continuera d'y resider. Code art. 1,

NOTE.—There is no presumption of law that a marchap. 1, $ 13. But the object of that provision is to rige was celebrated at any particular place, nor that property, especially money and other personal prop- domicil by constraint, Weaver v. Norwood, 59 Miss. erty, was acquired in any particular locality, Dye v. 665; Duchess of Orleans' case, 5 Jur. (N. S.) 143; see Dye, il Cal. 163. See Savage v. O'Neil, 44 N. Y. 298. White v. Brown, 1 Wall. Jr. 217; or absence abroad for

It has been held in New York tht to acquire a domi- the purpose of obtaining an education, Von Hoffman cil under the empire in France, the party must obtain v. Ward, 4 Redf. 244; Rice's case, 7 Daly, 22; Kelly v. the authorization prescribed by article 13 of the Code Garrett, 67 Ala. 304; or even the oath of the party as Napoleon, as well as continue to reside there, Depuy to his intention. Wilson y. Wilson, L. R., 2 P. & D. v. Wurtz, 64 Barb. 156; 53 N. Y. 556; Tucker v. Field, 435. 5 Redf. 139; see also, Caulfield v. Sullivan, 85 N. Y. In Snider v. Robertson, 9 Rich. (N. S.) 213, testator, 153; Hood's Estate, 21 Penn. St. 106.

having a brother H., who was an alien, and the chief In Bremer v. Freeman, 10 Moore's P. C. 306, revers- object of his bounty, devised certain real estate to G., ing S. C., 1 Deane & Sw. 192, an English woman resided in trust, and “ for the use and benefit of my brother uninterruptedly in France for a period of fifteen years, H., if alive at my death, the legal title to remain and without any business or occupation in that country, be vested in the said G., until such time as the said H., renting apartments upon lease, and making declara- now an alien, shall become duly qualified, according tions never to return to England, providing, more- to acts of Congress of the United States of America, over, a vault in the cemetery of Pere la Chaise in to take and to hold said real estate. When the said Paris, where she expressed her wish to be buried. In H. becomes so qualified, the said G. is hereby di1812, she made a will in Paris, in the English form, rected to execute to the said H. a valid conveyance in but not in conformity with the French law, bequeath-fee, to said real estate, the rents and profits to go to ing personal property, the bulk of which was in En- the said H., from the time of my decease.” H. never glish funds, to parties resident in England. The de- became naturalized, but after the death of the testator cedent was not, at the time of making her will, nor at he became a denizen under the laws of South Carolina. her death, naturalized in France, nor had she obtained Held, that he was thereby qualified to take the lands any authorization as required by article 13 of the Code devised. Napoleon. Held, that by the jus gentium the decedent A statute providing that all personal property situawas de facto domiciled in France, and that the au- ted in Mississippi should be distributed according to thorization of the French government was not neces- the laws of that State, regardless of marital rights acsary in order to give the right of testacy; and that quired in other States, and notwithstanding the doni. the will, not having been executed in accordance with cil of the decedent and of the parties interested was the requirements of the law of the domicil, was in- in another State, was upheld and applied in Slaughter valid, and probate refused.

v. Garland, 40 Miss. 172; Speed v. Kelly, 59 id. 47. Seo The same principle was recognized in Collier v. Orcutt's Appeal, 97 Pepn. St. 179. Rivaz, 2 Curteis, 855, 857; Bloxam v. Favre, L. R., 8 P. The right of a husband to receive, and of a bank to D. 101, and in a French case Lloyd v. Lloyd, cited in a pay to him dividends declared upon shares of its note to Whicker v. Hume, 13 Beav. 401; but see in an- stock owued by and standing in tbe pame of his wife, other French case, Melizet's case, cited iu Depuy v. was held to be determinable by the law of the country Wurtz, 53 N. Y. 572.

in wbich the bank was located, and not by that of the In Anderson v. Lanenville, 9 Moore's P. C. 325, a country in which the husband and wife were domitestator, who sold his house and furniture and broke ciled. Graham v. First Nat. Bank, 20 Hun, 326; 84 N. up his establishment in England, in 1836, and went to Y. 393; see Hill v. Wright, 129 Mass. 296; Holthaus v. France, where he bought and furnished a house in Farris, 24 Kans. 784; Howell v. Cassopolis, 35 Mich. which he resided permanently (cohabitating with a 471. Freuch woman) until his death in 1849, with the ex- An alien woman, by marrying a citizeu of this counception only of occasional short visits to England for try abroad, is entitled to inherit from him, although business purposes, was held to have fixed his domicil she never resided here, Burton v. Burton, 1 Keyes, in France, which was not affected by his having ex- 359; Kane v. McCarthy, 63 N. C. 299; Headman v. pressed an intention to return to England, in an event Rose, 63 Ga. 458; Labatut v. Schmidt, Spear's Eq. 421; which never happened, nor by his having, on one oc- see Ford v. Husman, 7 Rich. 165; Burnett v. Noble, casion when in England, executed a will according to 8 Rich Eq. 58; Luhrs v. Eimer, 80 N. Y. 171; Potter v. the English form and law, or from the circumstanaes Titcomb, 22 Me. 300; Roth v. Roth, 104 Ill. 35; Polk v. that the bulk of his property was, at his death, in the Ralston, 2 Humph. 537; McDaniel v. Richards, 1 MoEnglish funds.

Cord, 187; Douglas v. Douglas, 25 L. T. (N. S.) 530; In Hamilton v. Dallas, L. R., 1 Ch. Div. 257, the Bate v. Incisa, 59 Miss. 513, and may retain all rights personal property of au intestate domiciled in France of property secured to her under a marriage settlewas held distributable under the French law, although ment made there, even if part of the property be ache bad never obtained the authorization imposed by quired here after the marriage, Besse v. Pellochaux, 73 article 13 of the Code Napoleon. (See especially the Ill. 285; De Couche v. Savetier, 3 Johns. Ch. 190; Young French cases cited in the opinion, pp. 271, 272.)

v. Templeton, 4 La. Ann. 254; see Duncan v. Cannon, A French subject by establishing himself in business 18 Beav. 128; Jamieson v. Fisher, 2 E. & A. (Cau.) 242; in England, marrying and continuing to reside there Astill v. Hallee, 4 Quebec, L. R. 120; Fuss v. Fuss, 24 for more than thirty years, making only occasional Wis. 256; Ordronaux v. Rey, 2 Sandf. Ch. 33; 3 id. business visits to France, was held to have acquired an English domicil, notwithstanding his refusal to The rights of a wife under the laws of a foreign take out letters of naturalization in England, Brunel country, where the marriage was contracted, continue v. Brunel, L. R., 12 Eq. 298; Doucet v. Geoghegan, L. and attach to the property of the husband wbere he R., 9 Ch. Div. 441; see Drevon v. Drevon, 10 Jur. (N. abandons her and dies domiciled here. Bonati v. 8.) 717; Haldane v. Eckford, L. R., 8 Eq. 631; Greene Welsch, 24 N. Y. 157; Kendall v. Coons, 1 Bush, 530; v. Beckwith, 38 Mo. 384; Hicks v. Skinner, 72 N. C. 1, Parrott v. Nimmo, 28 A rk. 351; Craycroff v. Morehead, and even voting in another State is not conclusive, 67 N. C. 422; see Bond v. Cummings, 70 Me. 125; Smith Hayes v. Hayes, 74 Ill. 312; Smith v. Croom, 7 Fla. 81; V. McAtee, 27 Md. 4:20; Sands v. Marbury, 36 Ga. 534. see Shelton v. Tiffln, 6 How. (U. S.) 163, 185; Liver- As to the validity of a will executed by a citizen of more v. Farmington, 74 Me. 154; Kellogg v. Oshkosh, Michigan, iu Iowa, while on his way to another State, 14 Wis. 623: Malone v. Lindley, 1 Phila. 192; Guier v. where he intended to settle, Gibson v. Van Syckle, 47 O‘Daniel, 1 Biun. 349, uote; or leaving an original Mich. 439; see also Bonnell v. Dunn, 4 Dutch. 153; 5

502.

« 이전계속 »