Eyre v. Storer

37 N.H. 114 | N.H. | 1858

Eowlek, J.

The general principle of the common law is, that the right and disposition of movables is to be governed by the law of the domicil of the owner, and not by the law of their local situation; while the laws of the’ place where real property is situate exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them. The title, therefore, to real property can be acquired, passed and lost, only according to the lex rei sitae. Story’s Conflict of Laws, secs. 376, 424, and authorities.

The validity of every disposition of real estate must depend upon the law of the country in which that estate is situate. Curtis v. Hutton, 14 Vezey, Jr., 537, 541; Chapman v. Robertson, 6 Paige 627, 630; Elliot v. Lord Minto, 6 Madd. 16; Birtwhistle v. Vardill, 5 B. & C. 438, [11 Eng. Com. Law 266.]

Vatiel lays it down as a principle of international law, that immovables are to be disposed of according to the laws of the country where they are situate. Vattel, b. 2, ch. 8, secs. 110, 103.

All the authorities, both in England and this country, recognize the principle in its fullest import, that real estate, or immovable property, is exclusively subject to the laws of the government within whose territory it is situate. See a very large collection of them, in Story’s Conflict of Laws, (2d Ed.) 361, sec. 1428.

Among other applications of the general principle, Story says, if a person is incapable of transferring his immovable property by the law of the situs, his transfer will be held invalid, although by the law of his domicil no such personal incapacity exists. He instances, as an illustration, the case of a married woman, who may be authorized, by the law of her domicil, to alienate her land. Yet, if by the law of the situs she could not do so, her attempt to alienate, by deed or otherwise, would be wholly inoperative and ipso facto void. Conflict of Laws, sec. 431. Executory contracts respecting real estate, such as wills, must be in the form prescribed by the law of the situs, in order to pass title thereto, although good and regular according to the law of the domicil; and no conveyance or transfer of land can be made, whether testamentary, or inter vivos, except according to the formalities prescribed by the local law. The title to land in this country can be acquired and lost only in the manner prescribed by the law of the place where the property is situate. Story’s' Conflict of Laws, sec. 435; United States v. Crosby, 7 Cranch 115; Cutter v. Davenport, 1 Pick. 81, 86; Hosford v. Nichols, 1 Paige 220; McCormicks. Sullivan, 10 Wheaton 192; Darby v. Mayer, 11 Wheaton 465.

It is universally agreed that the law rei sites is to prevail in relation to all dispositions of immovable properly, and the nature and extent of the interest to be alienated. If the local law prescribes that no person shall dispose, by deed or will, of more than a half, or a third, or a quarter of his immovable property, or that he shall dispose of only a life estate in that property, such laws are of universal obligation, and no other or further alienation thereof can be made. If the local law prohibits the alienation of certain kinds of immovable property, or takes from the owner the power of charging them with liens or mortgages, that law will exclusively govern in every such case, without regard to the domicil of the owner. Story’s Conflict of Laws, sec. 445.

In regard to wills, the doctrine is clearly established at the common law, that the law of the place where real estate is locally situate, is to govern as to the capacity or incapacity of the testator to devise, the extent of his power to dispose of the property, and the forms and solemnities necessary to give the will or testament its due attestation and effect. Story’s Conflict of Laws, sec. 474, and authorities.

The descent and heirship of real estate are exclusively governed by the law of the country within which it is situate. No person can take except those who are recognized as legitimate hems by the laws of that country, and they take in the proportions and the order which those laws prescribe. This is the indisputable doctrine of the common law. Story’s Conflict of Laws, sec. 483, and authorities.

The foregoing principles have been distinctly recognized in this State. Heydock’s Appeal, 7 N. H. 496 ; Goodall v. Marshall, 11 N. H. 91.

The third section of the act of July 2, 1822j in force in this State at the decease of the plaintiff, Louisa L. Eyre’s father, is in these words:

“ Sec. 3. And be it further enacted, That if there be any child, or any lineal heir of a child, in the descending line, which has no devise or legacy by the will of the deceased father or mother,, and which is not named or referred to in the will in such manner as to show that it was not out of the mind of the testator at the time of the making of the will; or if any child shall happen to be born after the death of the father, and no provision shall have been made in his will for such posthumous child; every such child, or heir, shall inherit and have assigned to it the same portion in the estate of the deceased, as it would be entitled to, if such deceased person had died intestate; and if there be not sufficient personal estate left unbequeathed, or real estate undevised, to satisfy its just share in each, the same shall be made up and satisfied in a just proportion from the estate bequeathed and devised to others — provided that such portion shall be liable to be diminished by advancements made in the same way and manner as is prescribed by law in cases of intestate estates.” Laws of 1880; 355, 356.

Under the provisions of this section, there can be no doubt that the father of Mrs. Eyre, if he had been domiciled in this State, could not, by any will making no provision for her, have deprived her of the right, as his only child and heir at law, to inherit his property. Being born after the death of her father, and in no way named or provided for in his will, she must have inherited all his property, as if he had died intestate ; in other words, the will would have been wholly inoperative. .

So far as the real estate situate in New-Hampshire is concerned, the domicil of the father, and the question whether or not, by the laws of that domicil, the birth of a posthumous child operated to nullify the will, are wholly immaterial. The statute of this State forbids the land being transferred by the devise of the father, to the disinheritance of a child born after his death, and not provided for in the will. By our laws, under the circumstances of the agreed case, Mrs. Eyre only, being the sole child of her father, can legally take and hold his lands situate here.

Nor does it make any difference that the plaintiffs are not citizens of this State. Being citizens of the United States, and having come here to claim their rights to property situate within our limits, they are, under the Constitution of the United States, as fully entitled to the benefit of our laws, as if they were citizens of New-Hampshire. Besides, the principle which governed the decision in Saunders v. Williams, 5 N. H. 213, on which the counsel for the defendants appears to rely, has not, it seems to us, the slightest application to the circumstances of the present case; or, rather, it conflicts directly with the claim of the defendants to the demanded premises. That principle was, that our courts would not give effect to the laws of a foreign country, transferring property situate here, where the operation of such transfer directly militated against our own laws. Applying this doctrine to the claim of the defendants, that, by the laws of the District of Columbia, the will of the testator operated to transfer the title to land here, in violation of the positive enactments of our statute, and it seems quite manifest that our courts could not consistently give effect to those laws of a foreign country in direct conflict with our own local regulations.

According to the provisions of the agreed case, the plaintiffs are entitled to judgment for the undivided half of the demanded premises, as claimed by them in their writ.

Judgment for the plaintiffs.