the effect of the instrument: Locus regit actum. Thus a testament of personal property, if executed according to the formalities required by the law of the place where it is made, and where the party making it was domiciled at the time of its execution, is valid in every other country, and is to be interpreted and given effect to according to the lex loci. This principle, laid down by all the text-writers, was recently recognized in England in a case where a native of Scotland, domiciled in India, but who possessed heritable bonds in Scotland, as well as personal property there, and also in India, having executed a will in India, ineffectual to convey Scottish heritage; and a question having arisen whether his heir-at-law (who claimed the heritable bonds as heir) was also entitled to a share of the moveable property as legatee under the will. It was held by Lord Chancellor Brougham, in delivering the judgment of the House of Lords, affirming that of the Court below, that the construction of the will, and the legal consequences of that construction, must be determined by the law of the land where it was made, and where the testator had his domicile, that is to say, by the law of England prevailing in that country; and this, although the will was made the subject of judicial inquiry in the tribunals of Scotland; for these Courts also are bound to decide according to the law of the place where the will was made (e). $ 83a, The lex domicilii only regulates universal suc cessions. The law of the domicile only regulates universal assignments of moveable property, as on marriage or death, and because this is the only source from which a rule common to property situated in various countries can be derived. But when the title to a particular chattel is concerned, in a case not involving any universal assignment, the law of its situation is absolute (f). In England no change of domicile will avoid or affect a will which was valid by the law of the testator's domicile at the time of its execution (g). Some of the United States have adopted to wills. a different rule. Thus, in New York the law of the testator's last domicile is held to govern the will (h). The payment of succession duty is regulated by the lex domicilii (i). 407. (e) Trotter v. Trotter, 3 Wilson & Shaw, (f) [Cammel v. Sewell, 5 H. & N. 728. See as to powers of appointment respecting property in a foreign country, Tatnall v. Hankey, 2 Moo. P. C. 342]. (g) [24 & 25 Vict. c. 114, s. 3]. (h) [Moultrie v. Hunt, 23 N. Y. 394; Wharton, § 586a]. (i) [Wallace v. Attorney-General, L. R., 1 Ch. 1; Attorney-General v. Campbell, L. R. 5 H. L. 524; In re Cigala's trust, 7 Ch. D. 351]. Change of domicile as § 83b. Testamentary domicile of British subjects abroad and of foreigners in England. § 83c. Wills of British subjects made abroad. Wills made in England. It has been provided by Act of Parliament that whenever Her Majesty shall have entered into a convention with any foreign State for the purpose, no British subject resident at the time of his death in such foreign State, shall be deemed, under any circumstances, to have acquired a domicile there, unless the British subject shall have resided 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 (k). 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 (1). This Act does not apply to foreigners who have been naturalized in British dominions (m). It does not appear that any conventions have been made under this Act, and it has therefore been at present inoperative (n). 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" (0). 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 valid according to the law of the place where it was made (p). The 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 (k) [24 & 25 Vict. c. 121, s. 1]. (7) [Ibid. s. 2]. (m) [Ibid. s. 3]. (n) [Williams on Executors, vol. ii. p. 1524 (7th ed.), note (e)]. (p) [In the goods of Lacroix, 2 P. D. 95]. 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 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 native born as to naturalized British subjects (r). The sovereign power of municipal legislation also extends 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 (8). 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, 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 upon them even when resident in a foreign country. § 84. Personal status. Laws re lating to and capacity of persons may the state extra-terri Such are those universal personal qualities which take effect operate either from birth, such as citizenship, legitimacy, and illegi- torially. timacy; 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 (t). (q) [24 & 25 Vict. c. 114, s. 2]. (r) [In the goods of Gally, 1 P. D. 438]. 66 (s) Leges cujusque imperii vim habent intra terminos ejusdem reipublicæ, omnesque ei subjectos obligant, nec ultra. Pro subjectis imperio habendi sunt omnes, qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur." Huberus, tom. ii. liv. i. tit. 3, de Conflict. Leg. § 2. (t) Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 1. Fælix, Droit International Privé, liv. i. tit. i. § 31. Qualitates personales certo loco alicui jure impressas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum co jure, quo tales personæ alibi gaudent vel subjecti sunt, fruantur et subjiciantur." Huberus, tom. ii, 1. i. tit, 3, de Conflict. Leg. § 12, § 85. This general rule is, however, subject to the following exceptions: 1. To the right of every independent sovereign State to Naturaliza- naturalize foreigners and to confer upon them the privileges of their acquired domicile. tion. § 86. Regulation of property situated in a State. Even supposing a natural-born subject of one country 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 site. 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 (u) Wilson v. Marryatt, 1 Bos. & Pull. 43; 7 T. R. 31. [See further on this subject at the end of the chapter]. certain indelible qualities upon immoveable property, within the territorial jurisdiction (x). As to personal property (mobilia) the lex loci contractûs 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 (2). But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractus (a). The matrimonial domicile has been defined to be the domicile 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 (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 (x) Kent, Comment. vol. ii. pp. 182, 186 n. (5th edit.). (y) "Porro, non tantum ipsi contractus ipsæque nuptiæ, certis locis ritè celebratæ, ubique pro justis et validis habentur; sed etiam jura et effecta contractuum nuptiarumque, in iis locis recepta, ubique vim suam obtinebunt." Huberus, 1. i. tit. 3, de Conflict. Leg. § 9. (z) 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 Sucur, 1 P. D. 139]. (e) [Phillimore, vol. iv. § 445. Watts v. Schrimpton, 21 Beavan, 97; Wright's Trusts, 2 K. & J. 595. Westlake, § 366]. (f) [Anstruther v. Adair, 2 Mylne & K. 513; Este v. Smith, 18 Beavan, 112; Saul v. His Creditors, 5 Martin, N. S. 569; De Lane v. Moore, 14 Howard, 253; Collins v, Hector, L. R. 19 Eq. 334.] § 87. Personal property. § 87a. Matri monial domicile. |