32 Tenn. 232 | Tenn. | 1852
delivered the opinion of the court.
Thomas Layne files this bill us executor of Kobert Layne, to get possession of certain negro slaves now in the possession of defendants, which he alleges belong to the estate of his testator, who bequeathed them to defendant, America, his widow, during her life or widowhood, and after that, to be equally divided between her and his five children. A decree had been made to sell them for division, after the marriage of the widow to defendant,
The defendant, America, claims the said slaves under the laws of Texas, where she was married to testator. She says she married the testator in 1837, when she was a minor, and as one of the distributees of her father, then deceased, she was entitled to these slaves; that the children had all agreed that her mother should ■ keep the slaves until she died, which occurred perhaps in 1841. Soon after that event, her brother sent these slaves to her and her husband in Bedford county, with some kind of paper title made by him to her said husband. This she insists communicated no title, as her said brother had none-, same being vested in her. The negroes remained, however, in the possession of said Eobert Layne, until his death; and after that, passed to Ms executor, and was controlled by him as such. But she places her claim upon the ground that “ by the. laws of Texas, at the time of her marriage, the property, both real and personal, belonging to the wife at the marriage, does not go to the husband, but belongs to the wife as though she were a feme sole.” That Texas was her domicil, and that it was, by agreement between them, to be the future home of both, and that Layne, at the time of the marriage, had no permanent domicil. They came to Tennessee, she says, to visit his relations, intending to return, but remained here on his farm until Ms death in the month of April,
It is every where settled as a principle of international law, that where the parties have different domicils, the law of the husband’s regulates the marital rights as to moveable property, but not as to real; that is governed by the law of the place where it is situated; Story on Con. of Law, § 198; Kneeland vs. Ensley, Meigs 628. But what is real and what personal property, must depend upon the law of the place; and it is clear that every State or country may impress upon all property within its limits, any character it pleases, and no other State can vary or disregard it; McCollum vs. Smith, Meigs 342. In Louisiana, for instance, they have added slaves, mules, horses, &c., intended for implements of husbandry, &c., to the list of immoveables. This character is impressed upon slaves in Arkansas and several other States. These all in their nature moveables, but the law may change it. But in both Texas and Tennessee they are moveable or personal property, and must fall under the rule laid down above, as to the predominance given to the husband’s domicil in controlling the rights of the parties. So, if the fact be that Robert Layne was a citizen of Tennessee in 1837, when this marriage took place, all the personal property then vested in his wife, became his, upon reduction to possession, if there is nothing more in the case. But it is insisted that at the time of his marriage he had no domicil, and promised to settle
The cause will be remanded for further proceedings