in New York, which rendered it necessary to take administration there; after the funds within the latter state had been collected, some of the legatees who had come to reside in that state after the testator's death, claimed that such funds should be there distributed, there being a difference of opinion between the surrogate there and the courts in Connecticut, as to the construction of the will; it was held by the court of appeals in New York, that the surrogate should have remitted the funds in that state to the courts of Connecticut for distribution.1 § 491 c. And in another case in the same court 2 it was held, that whether a deceased person died intestate or not, must be determined by the law of the place where he was domiciled at the time of his death. That is the law which prescribes the requisites to the valid execution of a will of personal estate. Accordingly, where a citizen of South Carolina executed his will, in such a manner as to create a valid bequest of personal estate, by the law of that state, but not according to the law of New York, into which state he subsequently removed and died, having his domicil in that state, it was held that he died intestate as to personal estate within that jurisdiction. § 491 d. The language of an English will is held so completely subject to the construction of the English law, as before stated, that a bequest contained in such a will to the child of A. who resided and was domiciled in France and had there a natural child, which which was, by the law of that country, rendered legitimate by the subsequent marriage of the parents, cannot be claimed by such child, who is, according to the English law, still illegitimate and filius nullius. So also, a bequest to the children of one who cohabited with a woman in England and had children by her in England, and subsequently removed to Holland, where they continued to cohabit, and had children both before and after their marriage, which took place while they were domiciled in Holland, by which all the children became legitimate by the law of that country, will not carry anything to the children born in England, whose illegitimacy is irretrievably fixed by the law of the place of birth.*] 1 Parsons v. Lyman, 20 N. Y. Court of App. 103. 2 Moultrie v. Hunt, 23 N. Y. Court of App. 394. Boyes v. Bedale, 12 Weekly Reporter, 232, before Vice-Chancellor Wood. Goodman v. Goodman, 3 Giff. 643. This case, to be strictly consistent with the preceding one, should have excluded all the children born before marriage. But it admitted all the children born in Holland. Ante, § 93 w.] CHAPTER XIII. FOREIGN GUARDIANSHIPS AND ADMINISTRATIONS. [*§ 492. Foreign guardians and administrations. § 493. English guardians perform the duty of tutors and curators. § 494. Does the authority of guardians extend beyond the place of appointment? § 495-497. Many foreign jurists claim that it extends everywhere, as to the person of the ward. § 498. Others deny that it extends beyond the jurisdiction appointing. § 499. In England the question seems doubtful; in America the authority of guardians is strictly local. § 500 – 502 a. The foreign jurists generally claim that the power of guardians over personalty extends everywhere; but as to the realty, that it is local. § 503. In Scotland it is claimed to be the same. § 504. By the common law the authority of guardians as to realty is local. 504 a. The same rule both in England and America extends to personalty. § 505-505 c. The question is debated among foreign jurists, how far the domicil of the minor follows that of the guardian. § 506. In England and America, minors have the same domicil as the father, and after his death the same as the mother. 507. Definitions affecting succession in the Roman law. § 508. Executors and administrators administer only the personalty. § 509. As to realty the heir must be such according to the law rei sitæ. § 510. The extent of title to personalty by the civil law. 511. Some writers distinguish between the power of executors and administrators. § 512. Their power is limited, strictly, to the place of grant. § 513. The funds must be administered by the local courts. § 513 a. The English ecclesiastical courts claim jurisdiction over all personalty. 514. But strictly an executor or administrator has no such power. § 514 a. And they are not responsible beyond their jurisdiction. 514 b. Not even when they carry the funds of the estate abroad. § 515, 515 a. Doubted if payment to a foreign administrator is good. § 516. The administrator after reducing property to possession has perfect title, and so of a specific legatee. § 517. How far the administrator may transfer negotiable paper. § 517 a. Distribution among legatees may be made in foreign countries. 518. Primary and ancillary administrations and their relations. 519. Property in transitu, to what jurisdiction belongs. $ 520. Such property coming into place of domicil, rightfully administered. 521. Property in mail stages in different states and in transitu. § 522. Judgments in favor of administrators personal. § 523. Real assets only disposable in loco rei sitæ. § 524. Assets marshalled according to the law of the place of administration. § 525. Preferences are local; each state will, therefore, prefer the rule of its own law. 526, 527. The foreign jurists claim they should be allowed by the lex domicilii. 528. Charges on real estate how marshalled in different states. 529. The rule of the Scottish law on the subject. § 529 a. The rights of foreign administrators have been discussed in America. § 529 b. Principal administrator cannot be held to account for goods received in foreign jurisdiction. § 529 c. Judgments in one jurisdiction not conclusive against the estate in another. The true relations of primary and ancillary administrations. § 529 d. § 529 e. § 529 f. The local administrator solely responsible for effects within his jurisdiction. § 529 g. The jurisdiction of the national tribunals in the settlement of estates. § 529 h. § 529 i. Such judgments not barred by not being brought before commissioners. May be enforced in equity. § 529 k. § 529 l. § 529 m. One who sues in his own right need not have administration. This rule will not apply to choses in action belonging to the estate. § 492. THE order of our subject next leads us to the consideration of the operation of foreign laws in relation to persons acting in autre droit, such as guardians, tutors, and curators inter vivos, and executors and administrators post mortem. § 493. And first, in relation to guardians. By the Roman law guardianship was of two sorts, (1.) Tutela, and (2.) Cura. The first lasted in males, until they arrived at fourteen years of age, and in females, until they arrived at twelve years of age, which was called the age of puberty of the sexes respectively. From the time of puberty, until they were twenty-five years of age, which was their full majority, they were deemed minors, and subject to curatorship. During the first period of tutelage, their guardian was called tutor, and they were called pupils; during the second period, their guardian was called curator, and they were called minors.2 In England the guardian performs the offices both of a tutor and a curator under the Roman law. France, the tutorship lasts until the full age of majority. In § 494. In treating of guardianship, two questions naturally arise; (1.) Whether the authority of a guardian over the person of his ward is local, and confined to the place of his domicil, or extends everywhere? (2.) Whether the authority of the guardian over the property of his ward is local, or extends everywhere? 1 See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1001 to 1014. * 1 Domat, Civil Law, B. 2, tit. 1, p. 260; Halifax, Analysis of Civil Law, ch. 9, p. 15, 17, 18; 1 Brown, Civil Law, B. 1, ch. 5, p. 129, 130. See also Ersk. Inst. B. 1, tit. 6, § 1, p. 128. Halifax, Analysis of Civil Law, ch. 9, p. 15, 17, 18; 1 Brown, Civil Law, B. 1, ch. 5, p. 129, 130. 1 Domat, Civil Law, B. 2, tit. 1, p. 261. § 495. In regard to the first point, (the authority of the guardian over the person of his ward,) Boullenois maintains, that the laws, which regulate it, are strictly personal; and therefore that the authority extends to the ward in foreign countries, as well as at home; and is of equal validity and right, according to the law of the domicil, in every other place. "Je mets (says he) au nombre des statuts personnels, ceux qui mettent les enfants sous la puissance de leur père, ou de leur tuteur."1 From this, it would seem to follow, that the tutor is to be recognized, as fully entitled to assert any claims over the movable property of his ward, and to sue for the debts due to his ward in foreign countries, without having any confirmation of the guardianship by the local authorities.2 § 496. Merlin expressly holds the same doctrine, asserting that the foreign guardian, in such a case, is competent to maintain any suit for the debts due to his ward in France and in the Netherlands, without any interposition of the local authorities, to confirm the guardianship.3 "Il est (says he) de principe, que les procurations revêtues de la forme requise par la loi du lieu, où elles se passent, ont leur effet partout. Aussi ne s'est-on jamais avisé de prétendre, que le tuteur nommé à un mineur, ou à un interdit, par le juge de son domicil, ne pût agir dans un pays étranger contre les débiteurs d'un ou de l'autre, qu'après avoir fait déclarer le jugement de sa nomination exécutoire dans ce pays.' "4 § 497. Vattel lays down a similar doctrine in more comprehensive terms. "It belongs, (says he,) to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires, therefore, that such nomination of a tutor or guardian be valid and acknowledged in all countries, where the pupil may have any concerns." This is also the opinion of Huberus, as we have already seen; and it is stoutly maintained by Hertius. After having stated the rule, he 1 1 Boullenois, Observ. 4, p. 51; Id. p. 68; ante, 57; ¡2 Boullenois, Observ. 39, p. 320, 330. "5 6 * 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1002, 1003. Merlin, Répertoire, Absens. ch. 3, art. 3, p. 37; Id. Faillite, § 2, n. 2, art. 9, 10, § 2, p. 412. See also Id. Autorisation Maritale, § 10, art. 2; ante, § 53, 54. * Merlin, Répertoire, Faillite, § 2, n. 2, art. 10, p. 414; ante, § 53, 54. 5 Vattel, B. 2, ch. 9, § 85. 4 • Ante, § 60. adds Ratio hujus regulæ est evidens. Persona enim subditi quâ talis nemini alii est subjecta, quam summo imperanti, cui se submisit. Unde fit, ut leges, quæ persona qualitatem sive characterem impuniunt comitari personam soleant, ubicunque etiam locorum versetur, tametsi in aliam civitatem migraverit, veluti si quis, magis infamis, vel prodigus declaretur.1 Hinc tutor, (says he,) datus in loco domicilii, etiam bona alibi sita administrat. He applies this rule, however, solely to personal rights and personal incapacities, rights of property and power over movables. For in respect to immovables, he adds this important qualification: Quoniam ipsi fatemur, si externa civitas circa bona immobilia aliquid directe disposuit, eam legem servari oportere.2 Stockmaus holds a broader opinion. Tutor etiam pupilli a Prætore authoritatem et administrationem suam extra territoriam Prætoris, et in bona ubicunque locorum sita exercet. Indeed, this same doctrine is commonly asserted by all those foreign jurists, who give to personal laws an ubiquity of operation.* § 498. On the other hand there are jurists, who maintain a different opinion. Paul Voet denies, that laws respecting either 1 1 Hertii, Opera, De Collis. Leg. § 4, n. 8, p. 123, 124, edit. 1737; Id. p. 175, edit. 1716; ante, § 51. 2 Ibid. 3 Stockman. Decis. 125, n. 6, p. 262. Dumoulin is thought to hold the same opinion; but it may well be doubted, if it admits of that interpretation. Post, § 502 a; Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 1, l. 1, Conclus. de Stat. p. 556, edit. 1681. Matthæus, who has also been cited on the same side, certainly does not hold the opinion. His language is: Sed etsi silentio suo quodammodo approbare videatur curatorem a judice domicilii datum, vix tamen est, ut curator illa prædia alibi sita proscribere ac vendere possit, sine speciali permissu ejus judiciis, in cujus territoria sita sunt. Sic enim et Tutor hodie a judice domicilii datur; nec tamen universorum negotiorum et bonorum administrationem consequitur, nisi cesset judex ejus territorii, in quo prædia sita sunt. Matthæus, de Auctionibus, Lib. 1, ch. 7, n. 10, p. 39. See also 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1002, 1003. He says: "The appointment of tutor or guardian, committees or curators, so far as it confers the care and custody of the person of the minor or lunatic, could not consistently with the principles of international jurisprudence be made by any other judicial tribunal but that of the country, to which the minor or lunatic was by his residence subject. According to the opinion of foreign jurists, every judicial tribunal is bound to recognize this appointment. They consider, that the law, which places the minor or lunatic sub tutelâ or sub curâ is a personal law, affecting the status of the person, and that the relation of tutor and ward, which it has constituted, continues to exist notwithstanding the persons may have resorted to any other country." * 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1004, 1005. |