Newcomer v. Orem
2 Md. 297
Md.
1852
Check Treatment
Tuck, J.,

delivered the opinion of this court.

It is a material fact in this cause, that the appellee and his wife were married, and always resided in Maryland, as his rights, in a great degree,-depend on the law of their domicil. A statement of the principles applicable to such questions, will *305serve to guide us ia tracing and defining the interest of Mrs. Orem in William Blunt’s estate, down to the commencement of this suit. “Where there is no express marriage contract, the law of the matrimonial domicil will govern, as to all the rights of the parties to their present property in that place, and as to all personal property every where, upon the principle, that moveables have no situs, and, that they accompany thé' person. As to immoveable property, the law, rei sita, will prevail. Where there is no charge of domicil, the same rule will apply to future acquisitions, as to present property.” Story’s Gonfl. of Laws, secs. 186, 187. And it is, also, a well established principle, that the right and succession to personalty, must depend on the law of the domicil. But the' law of the place where the property is found must be appealed to, in determining whether the estate in question is moveable or immoveable. That being settled, the former passes according to the law of domicil, and the latter according to the lex rei sita. Ditto, secs. 447, 481,482, 483.

If, therefore, any part, of the fund in controversy was personal at the death of Mrs. Orem, and was not affected by any real law of the State of Louisiana, that is to say, by any law operating upon property, which is the distinction there made, (whether the property be real or personal,) the plaintiff below must recover in respect to such portion.

It is unnecessary to inquire, whether the direction in the will of William Blunt, for the sale of the property, effected a conversion or not; because in our opinion, that change took place by the sales in 1837, and the division of the notes of the purchasers among the parties entitled, if not before. The counsel for the appellant relies on the case of Hooke vs. Hooke, 14 Louisiana, 22, to show, that such eifect was not produced by these proceedings in the present case. The cases are parallel down to the receipt of the notes, by the officer making the sale. But in the one cited, either the notes or the money was brought into court, and at the time the question arose were undivided. And the court said: “The licitation to effect a partition, although it vested the title in the purchaser, was not a sale as between the heirs; it was merely one of the acts of *306partition. That act did not change the nature of the property to be divided; and as the children- of the'first marriage died while that property still remained in a state of indivisión, the rights of the defendants were the same as if no licitation had taken place.” The question there was, whether the shares of two of the heirs who had died in another State pending the proceedings, should- descend according to the law of their domicil, or according to that of the place where the real estate was located. The latter law was allowed to prevail, because the fund was immoveable, not having been divided. But this case is different. The statement shows that the heirs and devisees of William Blunt,.by their agent, were present at, and became parties vendors to, the sale, and that the heirs of James R. Blunt received, by their agent, their shares of the proceeds of sale, in the notes of the purchasers, which were secured by mortgages on the estates. This sale and receipt of notes, changed the legacies into personal demands against the purchasers. It was decided in the case of State vs. Krebs, 6 Har. & Johns., 31, that under a commissioners’ sale in this State, “the mutation from realty to personalty may be determined to be complete, when the sale is ratified and the purchaser has complied with the terms of it by paying the money, if for cash, or by giving bonds to the representatives if the sale is on credit;” and that such bond, passed to a wife, is a chose in action. The notes in this case were made “payable to the heirs of the succession of William Blunt,” and the heirs of James R. Blunt taking per stirpes-, received notes to the amount of their interest. We suppose that a ratification of the sale can.not be necessary, when the sale is made by the parish judge himself, and not by commissioners or a trustee, as in this State.

. The property having undergone this change, we are of ■opinion, that the interest of Mrs. Orem ceased to be governed by the laws of Louisiana, and became subject to those of their domicil, by virtue of which, the husband is the owner of the wife’s chases in action, subject to the rights- of survivorship. This appears to be co'nsistent with the decision in the case of Packwood’s Succession, 9 Robinson, 438, where a wife re*307moved to New York, after having acquired an interest in the community of acquests and gains during her residence in Louisiana. She died in New York, and the court held that the price or value of her share of the community, which her husband had sold during her lifetime, was a debt due from the husband to her estate: but that it was due to her in New York and not in Louisiana, and could not be administered as part of her estate in Louisiana, because it attached itself to her, at her domicil, and was distributable according t-o the laws of New York. It had been merged in a debt which was subject to the controlling influence of the laws of their common domicil. In contemplation of law, it was not in Louisiana at the time of Mrs. P’s death. If a crop raised on the property belonging to the community had been on the place unsold, it may have been likewise common; but its proceeds in money could not be put down as part of her estate to be administered in Louisiana. It must be remembered, that by the laws of that State, those which govern and regulate the community of acquests and gains, are considered real laws. And yet, in the case quoted, the proceeds of the crop were not considered as real or immoveable, because the moment their identity was merged in a debt, the right to the debt was governed by the law of the State where the creditor resided. And so in the case of Hicks’ AArn'r vs. Pope, 8 La., 554, where a married woman, residing in Louisiana, became entitled to a negro in Alabama by the death of her father, it was held, that the question of property as between the husband and wife, was to be settled by the laws of their domicil. This was said to be a necessary consequence of the doctrine, ‘-'that in domicilii loco mobilia intelliguntur cxistere. ’ ’

We do not find any thing in the code that regulates the conversion of estates; but it would seem by Art. 466, that obligations for the payment of money, though accompanied by mortgage, are moveable. No distinction appears to have been drawn between obligations arising from transactions in regard to moveables and immoveables; nor any provision introduced, by which debts, originating in any source, are made the subject of real laws. Justice Story says, sec. 399, Conjl. *308Laws: “In fact, a debt is not a corpus, capable of local position, but purely a jus incorporate.” And he quotes, with approbation, front Livermore’s Dissertations a passage, illustrative of these principles: “It was formerly doubted by some, whether personal actions should be considered as moveable, and whether they should not be considered to have a location in the domicil of the debtor. But the common opinion seems to be well settled, that considered actively and with respect to the interest of the creditor and his representatives, they must be considered as attached to the person of the creditor; and this although the payment of the debt is secured by an hypothecation upon an immov.eable property.”

Having shown, as we think, that th.e interest of Mrs. Orem in William Blunt’s estate became a debt against the purchasers, and that that debt immediately attached itself to the person of her husband, as an incident of the marriage, let us next inquire how it stood at the commencement of this suit. In 1841, the mortgage on the .Catahoula estate was foreclosed, and the property bought in the name and for the heirs of William Blunt, including Mrs. Orem. It nowhere appears, that the plaintiff took any interest or estate in the property so purchased. In this condition it has remained, as far as we are informed, until this time; the parties entitled, including Mr. and Mrs. Orem, receiving their respective shares of the rents and income, up to the period of her death in 18.44. This properly being real, and having been purchased in the names of the heirs, including Mrs. Orem, in her lifetime, we are of opinion, that the rents and income since her death must go to her brothers and sisters, and not to the plaintiff as surviving husband, Art. 908, 918.

The statement of facts, however, leaves the other estate, or rather the notes received on the sale of the Concordia estate, in a different predicament. Mrs. Orem died in 1844. The mortgage on this estate was foreclosed in 1846, and the property purchased in the name and for the heirs, and afterwards resold for $30,000; fifteen thousand of which were invested in another estate. If this debt belonged to the plaintiff in right of his wife, as we suppose, he was entitled to the proceeds of *309sale when the claim was realized by a sale of the property, and, the money or proceeds being his, the investment of part thereof in other estate, must, also, enure to his benefit. The plaintiff is, therefore, entitled to judgment for $533.41, for proceeds of sales of this estate made to Sanderson. We do not award him any part of the sum said to be in hand for rents and income; because that amount must have accrued from the land that was sold to Lyle, and afterwards purchased for the heirs, in 1841. The Concordia estate was not sold until January 1846; this suit was commenced in May of that year, and it is not probable that any rents or income had then been received from the land that was purchased by a part of the proceeds of said sales.

The disposition of the sum of $200, said to have “arisen from the same sources,” would depend on the principles heretofore stated, if we could determine how much was received from the sales of the Wakefield property, and what amount on account of rents and income of the Hope estate. In the absence of distinct averments on these points, we do not embrace that sum in our judgment.

In the examination of this case we have considered it as unaffected by the argument of the counsel., in reference to the regulations of the code upon paraphernal and community property. The cases referred to by the appellee’s counsel, do not apply to one like the present. Saul vs. His Creditors, 3 Cond. Rep., 663, and Coles’ Widow, vs. His Executor, 4 Do., 146, were decided upon marriages contracted while the Fuero Real—a law of Spain—was in force. Under this law it was immaterial where the parties to the marriage resided. Hut it was repealed in 1828, since which there is no community of acquests and gains, between husband and wife, as to property found in that State, at the dissolution of the marriage, unless the parties reside there. Dixon vs. Dixon, 4 La., 188. Note to 4 Cond. Rep., 148.

And, as to paraphernal estate, we do not find any article in the code, or decision, which declares that the law regulating such property is real, or exempts it from the general rule of public law, to which we have referred, which subjects person*310alty to the control of the law of the domicil. If the parties to the marriage had resided in Louisiana, the case, probably, would have been subject to a different conclusion; but in a case like the present, her laws cannot have any extra-territorial influence over personal estate.'

The discussion of the principles involved in the cause was attended with great embarrassment, in consequence of the difficulty of expounding the laws of another State, so different from our own. But we think that the conclusions to which we have arrived, are warranted by the code, and adjudged cases of that State, and the acknowledged rules of public law applicable to such questions.

Judgment reversed, and judgment for the appellee for $>533.41, and interest from May 16th, 1846, and costs, to the appellant in this court.