| La. | Apr 15, 1839
delivered the opinion of the court.
On the 22d of June, 1837, a person calling himself Etienne Richard, died in the city of New-Orleans, leaving a will, in which he appointed N. B. Le Breton his executor, and instituted as his universal legatee, Charles Francois David Richard Chamberet, of St. Chamond, department of the Loire, in the kingdom of France. On receiving information of this testamentary disposition, the legatee, by a. declaration at the greffe of the tribunal of the first instance, sitting at Tournon, in the department of L’Ardeche, acknowledged the deceased to have been his brother; that in his life time he had been in trade at Aunonay, and had left France in 1837; that he, the legatee, refused to avail himself of the provisions of the will, as the property of his deceased brother rightly belonged to his creditors, whose debts, the property left by him in France was insufficient to satisfy. The legacy was renounced in due form.
By a judgment of the tribunal of commerce sitting at Annonay, department of L’Ardeche, rendered on the 3d February, 1837, the deceased had been declared to be in a state of bankruptcy, and provisional syndics were, in March afterwards, appointed to his estate. On the 7th of August, definitive syndics were appointed. At the instance of the definitive syndics, Jacques Chapius, notary at Annonay, was appointed by the court of the first instance at Tournon, curator of the vacant succession of the deceased. The syndics, and the curator of the succession, under the sanction of the tribunal of commerce, gave a power of attorney to Jean Claude Gravillon, of the city of New-York, with the usual
The judge of the Court of Probates considered, that he was bound to distribute the estate according to our laws, and determined that the funds could not be remitted to the syn-dics and curator. He gave judgment for the defendant, and the case comes before us on an appeal.
It appears, that the deceased absconded from his creditors in France, early in the year 1837, and came to the United States, for the purpose of bettering his condition : he was some time in New-York; he arrived in the month of April in New-Orleans, and finally sunk under the load of disappointment and remorse which his conduct brought upon him.
The year of the executorship having expired, the executor rendered his account, which has been homologated ; all the claims on the estate which have been presented, or known to the executor, have been provided for in the account, and a balance of about thirty-five thousand dollars remains in his hands subject to the order of the Court of Probates.
From the evidence, we cannot assign any domicil to the deceased other than his original domicil. He does not appear to have bad any idea of establishing himself in Louisiana ; he acquired no real property here, his principal investments of money were in New-York, and there is no act from which such an intention is to be inferred.
The fact of a person remaining in a foreign country, without any intention of establishing himself there, does not operate a change of his domicil; but as soon as the will of making a permanent establishment in the country is combined with the fact of his residence, the residence even for a
The President Bouhier, (chapter 22, number 207,) says, that though exiles have two domicils, in one sense, yet as to their successions, the domicil they had at the time of their condemnation is only to be regarded, as the other domicil is occasional and involuntary.
The judge of the Court of Probates considered the question of domicil very doubtful. The solution of questions of this kind is often attended with great difficulty. Merlin, on this subject, says that in questions of doubt the original domicil is to be considered as the true domicil. Merlin’s Repertoire clu Jurisprudence, verbo Domicile.
For all the purposes of this inquiry, we must consider the domicil of the deceased to have been in France at the time of his death.
None of the creditors of the deceased in France have resorted to the tribunals of this state for the enforcement of their debts. There are no creditors here to be satisfied out of the funds of the estate. The creditors in France have addressed themselves to the tribunals of that country for the distribution of the funds, which must necessarily be made according to the laws of France. They have virtually repudiated a distribution under our laws. There can be no doubt as to the existence of debts of the deceased to a,large amount in France. His letters establish that fact beyond controversy, independently of the judicial proceedings of the ’ 1 , . J 1 , creditors in France, and the action of the tribunals on them. There is no motive of public policy, under these circumstances a(jverse to the transmission of the funds to France for 7 distribution. The power of courts to order the remission of the funds belonging to a foreign succession to the representa-tj 0f ^|:je succession authorized to receive them by the ^ •' courts of the domicil of the deceased, we consider undoubted, Its exercise is necessarily a matter of discretion, depending on tbe circumstances of each case, and is a consequence of that comity which prevails between nations in amity with each ^ 1 * other. The interests of commerce and of civilization require
We therefore determine, that as the interests of no one will be injured’thereby, that the Court of Probates ought to have placed the funds of the estate at the disposal of the' syndics and curator of the vacant estate, for the purpose of their being transmitted to the place of domicil of the deceased, for distribution.
The power of attorney to Gravillon, sanctioned by the tribunal of commerce sitting at Annonay, contains a clause of substitution. The transmission of funds abroad in a case of this kind is a matter of comity, and not assimilated in any manner to a payment, which could be made to an attorney at law. We cannot order these funds to be .sent to New-York, and they can be handed over to no one but a person authorized by proper authority to receive them. They must be paid to the attorney in fact, recognized as such by the Court of Probates, and to no one else. Gravillon has by an authentic act substituted Joseph Albert, of the city of New-Orleans, to his powers, under the power of attorney to him—
It is, therefore, ordered, that the executor deliver to Joseph Albert, of New-Orleans, the funds in his hands belonging to the succession of the late Etienne Richard, (so called,) as the attorney in fact of the syndics and curator of the vacant succession of the late Ennemond Richard Lioud, otherwise called Etienne Richard, to be by him the said attorney in