Turner v. Fenner

19 Ala. 355 | Ala. | 1851

PARSONS, J.

This case has been argued upon our statute .of frauds. The counsel for the plaintiff in error does not contend that there is any difference under that statute, between wills and deeds, in respect to the necessity of registration in this ¡State. But he contends that if the property be brought into this State by a tenant for life holding under a deed, or a will, made beyond this State, the same must be recorded here according to tho statute, as if the will or the deed had been made here, and the property conveyed had been here. The substance •of his argument is, that the statute operates upon the possession merely, while held in this State, and its effect after three years possession here by the tenant for life, without any registration of the deed or will, is merely to postpone the remainderman to the creditors of tho tenant for life, or .to create a preference .over the remainderman, in favor of .a bona fide purchaser from tho tenant for life — to hold otherwise, that is to exempt foreign deeds .and wills from the operation of tho statute, which acts upon the possession in this State alone, without violating tho original title or rights ox tho remainderman, to the prejudice of our own citizens, and therefore not required by considerations of justice or comity. For several years I have been .aware of some of the authorities upon which the counsel relies, and I have occasionally felt tho force of the reasoning stated.

The reasoning is, however, not all on one side. The court of appeals of Kentucky appears, from the cases cited by the counsel for the plaintiff in error, to have held different opinions at different periods, upon the general question with respect to foreign wills. But here the proposition as a general proposition, has been repeatedly and uniformly held, that our statute does not 'exteftd to a deed executed beyond this State, although the property may afterwards be brought and held here.—Catterlin v. Hardy, 10 Ala. 511; Inge v. Murphy, ib. 885; Adams v. Broughton, 13 Ala. 731-747 & 748; Lyde et al. v. Taylor, et al. 17 Ala. 270. In some of the cases it is suggested that there might be exceptions to the general rule, but those suggestions can have no application to this -case, and therefore, we do not dwell upon them. If the general rule, which is so fully settled here, Le wrong, it is better to adhere to it notwithstanding, than to violate rights which have grown up under it, as it has become a rule of property. Although the testator made his will in North Carolina, and resided and held 'the .property there-which is nowin controversy, and his will was .proved and established there, (and it may be added that his executor resided and assented to this legacy' there, and also, that -this property was allotted on a division under a judicial proceeding there to Robert Fenner, as the tenant for life,) yet it is contended, that as Robert Fenner, the tenant for life, and his children, the remain-dermen, resided and continued to reside in this State, the case should form an exception to the general rule. But such an exception, we think, would be inconsistent with the rule itself, and therefore inadmissible. The particular estate, as well as the remainder, had its inception, and was completed there. The will, the assent of the executor, &c., had complete effect there, under the laws of that State, without the slightest aid or influence of our laws. There, as has been said, the .property was-, and the testator lived and died. Lord Loughborough said, “If. •is a clear proposition, not only of the law of England, but of every country _,in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality-, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, either by succession or the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country out of which he was a subject, that will regulate the succession. For instance, if a foreigner having property in the funds here, dies, that property is claimed according to the right of representation given by the law of his otyn country. In the case of Pipon v. Pipon, Ambl. 25, a party bad5 possessed himself of a debt which was due to the intestate, a subject of Jersey, and whoso personal property-was therefore governed by the law of Jersey- Lord Hardwicke was applied 'to by his other relations, resident in England, stating that they should'be excluded from a share according to the distribution of Jersey, but that they should'be entitled'to a share according to the distribution of England j- and they therefore prayed by their bill, that the administratrix might be restrained from taking the property, io Jersey.. Lord Hhrdwiclce very wisely and justly determined that he would not restrain the administratrix, he would not direct in what manner she was to dispose of the property, or to distribute it. Having acquired the right to it, she was to dis-iribute it according to 'the law which guided the succession to tiro personal' estate of the intestate.”—Sill v. Worswick, 1 H. Black, 690. As to personal property, the law of the owner’s ■iomicil is in all cases to determine the validity of every trans-n-r, or other disposition made by the owner, whether it be inter •dvos or post mortem, unless there is some positive or customary law of the country where it is situate, providing for special «•ases, or from the nature of the particular property, it has a necessarily implied locality, as contracts respecting the public funds, stocks, &e. — Story’s Conflict of Laws, § 888. There is •m exception to the general rule, of contracts made in view cf the laws of another country, but that is not material here. If the property in question had been in this State when the will took effect, or if the will had required it to be brought here, the ease would have been varied in its facts,, but it is not necessary now •*.> determine their effect. This ease is clearly within the decisions of this court heretofore made»

The judgment is affirmed.