Opinion
(December Term, 1851.)
1. Where a man, domiciled in another State, dies intestate, leaving personal property in this State, this property shall be distributed according to the law of the State, in which the intestate had his domicile.
2. But, if a citizen of another country dies, indebted to citizens of this State, and owns personal property here, it will be appropriated to the payment of his creditors, in the order prescribed by our law, and not by that of his domicil; but the surplus will be disposed of according to the law of his domicile.
3. The distinction is this: Our citizens, as creditors, have rights which we are bound to protect; we will not sacrifice justice to comity. But, as kinsmen, they have no right. Consequently, it depends, not on the laws of this country, but on the laws of his country, how his property shall be disposed of; and, although it happens to be in our own State, yet, by the comity of nations, it is considered the same as if it had been at home.
CAUSE removed from the Court of Equity of PITT, at Fall Term, 1851.
Moore, Rodman and Donnell for the plaintiffs.
Biggs for the defendant.
The case is stated in the opinion delivered in this Court.
The Hon. Jesse Speight and the plaintiff Louisa, both native citizens, intermarried in this State in 1827, and continued to reside here until 1837, when they removed to the State of Mississippi. Speight died intestate in 1847, since which time the plaintiff Louisa has continued to reside in that State, and afterwards intermarried with the other plaintiff.
In 1826 Mrs. May, a citizen of this State, died intestate, leaving the defendant, Louisa, a daughter, and one of her next of kin. John May took out letters of administration in the county of Pitt, and (132) soon afterwards delivered to the next of kin residing here several slaves of the estate of his intestate for the purpose of partition. A petition was filed, to which Speight and wife were made defendants, and such proceedings were had that in the spring of 1847 a division was made and the slave sued for was allotted to Speight and wife, and he being in this State at the time of the division, took the slave into his possession and made arrangements to have him sent to the State of Mississippi, to which State he returned, and soon afterwards died. In consequence of his death the slave was not taken from this State. Letters of administration on the estate of Speight were granted to the defendant by the county court of Pitt, and he took the slave into possession as of the estate of his intestate.
In 1839 a statute was passed in the State of Mississippi which provides: "Hereafter, when any woman possessed of a property in slaves shall marry her property in such slaves and their natural increase shall continue to her, notwithstanding her coverture, and she shall have and possess the same as her separate property, exempt from any liability for the debts or contracts of her husband. And when any woman during coverture shall become possessed of slaves by conveyance, gift, inheritance, distribution, or otherwise, such slaves and their increase shall inure and belong to the wife in like manner as is above provided as to the slaves which she may possess at the time of her marriage."
In 1846 this statute was amended by securing to the wife "the proceeds of the labor of such slaves."
The bill alleges that under this statute the plaintiff Louisa was entitled to the slave, and it is insisted that the effect of the division and of the act of Speight in taking the slave into (133) possession was to vest the legal title in him in trust for her. The prayer is that the defendant be declared a trustee and be required to deliver the slave to the plaintiffs and account for hire.
The defendant alleges that Speight was indebted to him, and also to Patsy May, who are citizens of this State, in large sums, which debts were of long standing; that Speight was insolvent; that his debts in Mississippi much exceed the value of his property there, and if the value of the slave is appropriated to the payment of the debt due to him and Patsy May they will, nevertheless, lose the greater part of their debts, as the property of Speight in this State besides the slave does not exceed $200.
General Speight and his wife had abandoned their "matrimonial domicile" and acquired an "actual domicile" in Mississippi, and the statute of that State was passed several years prior to the time when his wife acquired this slave. By the law of this State the slave became the property of the husband when he reduced it into possession. By the law of Mississippi he had no such marital right, and the slave "inured and belonged to the wife as her separate property, exempt from any liability for his debts." Which law is to govern the case?
"When there is a change of domicile the law of the actual domicile and of the matrimonial domicile will govern as to all future acquisitions of movable property, and as to all movable property the law rei sitae. Story Conflict of Laws, 187.
This is the conclusion of Judge Story after a full and learned discussion of the authorities and the reasoning. We concur in it. And unless there be some peculiar circumstance to take this case out of the operation of that conclusion the plaintiffs are entitled to a decree.
(134) Movable property attends the person, and is therefore called "personal," as distinguished from fixed or real property; and the general principle is that, no matter where it may happen to be, it is subject to the law of the domicile, and although it may be in a foreign country it is governed by the same rules and laws of transfer and succession as if the owner had it in possession at home. This is the principle from which the learned commentator derives the above conclusion.
This exception to the general principle is admitted. If a citizen of another country dies indebted to citizens of this county and owns personal property here we appropriate it to the payment of his creditors in the order required by our law and not that of his domicile. But the surplus will be disposed of according to the law of his domicile; and if by that law the widow of an intestate be entitled to his whole estate she will receive such surplus, although he left him surviving mother and sisters or children citizens of this State. The distinction is this: our citizens, as creditors, have rights which we are bound to protect. We will not sacrifice justice to comity. But as kinsmen they have no rights; consequently, it depends not on the laws of this country, but on the laws of his country how his property shall be disposed of; and although it happens to be in our State, by the comity of nations it is considered the same as if he had it at home.
Our case does not come under this instance, but we think it does come under the principle of this exception.
By the laws of this State a man before marriage may make a settlement on his wife with certain restrictions in favor, of creditors, but after marriage any settlement or relinquishment of his marital rights in property which she would thereafter acquire would be deemed fraudulent and void as to creditors; and if he proved to be insolvent the property to which but for the relinquishment he would have been (135) entitled will be taken from her and applied in satisfaction of the debts. If, therefore, General Speight had in 1839 executed a deed relinquishing his marital rights or conveying to a trustee for the separate use of his wife all the slaves which she might thereafter acquire by "conveyance, gift, inheritance, distribution, or otherwise," such deed would have been deemed fraudulent and void as to creditors. And this slave, when it came to the question, Who shall suffer loss? would be taken from her rather than permit honest creditors to be unpaid. Allen v. Allen; 41 N.C. 293.
General Speight did not execute such a deed, but in 1839 his adopted State made a statute which has precisely the same effect. Can that be done indirectly for him which he could not do directly? Is there any principle in the comity of nations by which this State is called upon to stand by and see her citizens deprived of the right to collect their debts out of property within her jurisdiction by an act which, if done by the debtor, would be deemed fraudulent and void? Nay, more by which she is called upon to set aside her own laws for the purpose of carrying into operation a statute of another State having this effect. We think not. And we challenge the production of any authority or any fair reasoning by which such a principle can be established. This is a "conflict of law," and we must be governed by our own law. Oliver v. Townes, 14 Martin, 97. A ship was sold in Virginia; the ship at the time of the sale was in New Orleans; before delivery she was attached by a creditor of the vendor. By the law of Virginia no delivery was necessary to give effect to the sale. By the law of Louisiana it was necessary. In this conflict of law the Court of Louisiana decided according to the law of that State and gave judgment for the attaching creditor. (136)
This case is not as strong as the one under our consideration, and the circumstances did not as clearly bring it within the admitted exception to the general principle, but the reasoning of the learned judge who delivered the opinion fortifies our conclusion, and it is evident that Court would not have hesitate an instant in deciding the case as we do. Lanfear v. Sumner, 11 Mass. 110; Thurst v. Jenkins, 7 Martin, 318, tend to the same conclusion.
We have no right to object to the policy of the law of the State of Mississippi, and we feel bound by the comity of nations to carry it into operation in all cases, except when, as in the present case, a citizen of our State removed and died insolvent and indebted to other citizens of our State, or when, hereafter, a citizen shall remove and is so indebted at the time of his removal.
PER CURIAM. Bill dismissed with costs. Cited: Drewry v. Phillips, 44 N.C. 85; Moye v. May, 54 N.C. 84; Alvany v. Powell, id., 56; McLean v. Hardin, 56 N.C. 295; Carson v. Oates, 64 N.C. 116; Medley v. Dunlap, 90 N.C. 528; Hornthal v. Burwell, 109 N.C. 13; Holshouser v. Copper Co., 138 N.C. 258; Jones v. Layne, 144 N.C. 602, 612.
(137)