Desesbats v. Berquier ( 1808 )

Tilghman C.. J.

This case was very well argued. Every thing that ingenuity and industry could produce was brought before the court. If the case had been entirely new, it would have been extremely difficult to decide. But although no authority directly in point has been produced, yet some principles have been established by adjudged cases, which bear strongly on the question before us. It seems to have been formerly taken for daw in Scotland, that the goods found there of a person who died "intestate in England, should be distributed according to the Scotch law. But since the cases of Bruce v. Bruce, Ommaney v. Bingham, and Somerville v. Lord Somerville, it must be considered as settled that “ the succession to the “ personal estate of an intestate is to be regulated according to “ the law of the country of which he was a domiciliated inhabi- “ tant at the time of his death.” If this is the rule in case of intestacy, why should not the same rule prevail with respect to last willsP It is only with the view to promote the general convenience and happiness of mankind, that any country allows the laws of a foreign nation to operate in any instance on property within its territory. It is supposed that every man is best acquainted with the law of his own country, and that when he dies intestate, it is his desire and expectation that his personal property wherever situated, should be distributed according to that law; and to gratify this reasonable desire, it is the practice of civilized nations to extend their courtesy towards each other so far as to permit the law of the domicil of the intestate to prevail. This the counsel for the plaintiff candidly admit. But they contend that the establishment of the will of Jean Theil will answer the purpose which should always be kept in view, that is to say, it will carry the wishes of the foreigner into effect. It is very true that in this instance it will; but we must take care how we establish a principle, which at the same time that it carries the will of one man into effect, may tend to destroy the will of one hundred others. If we say that the will shall stand good because it is agreeable to our law, although contrary to the law of the testator’s domicil, then we establish the principle that with regard to last wills, the law of Pennsylvania, and not the law of the domicil, shall prevail. It will follow that •the wills of foreigners, made according to the law of their own country, are to have no effect on moveable property found here," unless they are agreeable to our lawr. This may produce very mischievous consequences, not only to foreigners who have property here, but to our own citizens who may have property abroad. For we must expect that other nations will pay no greater regard to us, than we pay to them. We are a commercial people, and should be forward in reciprocating- those acts of courtesy which the nations of Europe are in the habit of practising. Indeed we have always been sensible of the importance of' paying a high regard to the law of nations. It is considered as incorporated with, and forming a part of, our common law. (1 Dall. 114. Respub. v. De Longchamp.) Where a debt due from one Englishman to another has been discharged by a commission of bankrupt in England,, we recognise such discharge here. England pays the same regard to the bankrupt laws of other nations, as appears by the case of Potter & c. v. Brown, 5 East. 124., where Lord C.-J. Ellcnborough in delivering his opinion says “ it is every day’s experience to recognise the laws of fo- “ reign nations as binding on personal property; as on the sale “ of ships condemned as prize by the sentence of foreign courts-, “ and the succession to personal property by zuill or intestacy, of “ the subjects of foreign countries.” Let us now examine what is the conduct of France (for Theil was a subject of France) in cases of this kind. France recognises the bankrupt laws of other countries. We find that the dutchess of Kingston’s will, made in France according to the law of England, was held good, for the disposition of her moveable property in France. Collect, yurid. 242. 26th Oct. 1786. And the case from 4 Denizart Testament 515. asserts the principle that the will must be according to the law of the domicil. No cases were cited to shew that any respectable nation held different sentiments; and I think it may be concluded from a full view of the subject, that to regulate the disposition of the moveable property of deceased persons according to the law of their domicil, whether they die testate or intestate, is best calculated to promote the general convenience of the world, and most agreeable to those principies which have been established by judicial decisions among the most enlightened nations. I am therefore of opinion that the paper set up for the will of yean Theil is not a valid will, and that judgment be entered for the defendant.

Yeates J.

It has been remarked by Lord Chancellor Lough-borough (a) that if the question whether the domicil of the party deceased should decide upon the succession to his personal property, was quite new and open, the point appeared to him susceptible of a great deal of argument. Numerous decisions in the Court of Session in Scotland, with one single exception, asserted the negative of that proposition. The different authorities on this head are collected in a note subjoined to Bruce v. Bruce reported in 2 Bos. and Pul. 129. But the point is now settled by cases (¿) determined in the British House of Peers.

The master of the rolls, Sir Richard Pepper Arden ^(c) in 1801 has deduced the three following rules, as the result of the different authorities on the subject. 1st, That the succession to the personal estate of an intestate is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death, without any regard whatever to the place either of the birth or the death, or the situation of the property at that time. 2dlv, That though a man may have two domicils for some purposes, he can have only one for the purpose of succession; and 3dly, that the forum originis is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil.

The domicil by the civil law is there described “ ubi quis la- “ rem rerumque ac fortunarían suarum sianmam constituitP But Sir Richard censured this definition as too vague and difficult of application; and thought Bynkershoek was very wise in not hazarding a definition of the term.

The counsel for the plaintiff in this case in the course of their arguments have not denied the authority of these rules; but they have contended that they apply only to cases of persons dying intestate, where according to 2 Erskine 697 the law of the domicil is considered as the presumed will of the party, and declaratory of his intention; and that the same ought not and cannot possibly control the solemn intention of the party declared by his last will to take effect after his death. I have no hesitation in asserting that the ingenious observations those gentlemen struck me forcibly at the time; and my ideas of the justice and equity of the plaintiff’s claim powerfully increased the effect of those first impressions. But on a fuller research of the books and more mature deliberation, I felt myself constrained to abandon my private opinion of the supposed honesty of the plaintiff’s demand. This part of the ¿ex gentium is founded on the mutual courtesy of independent governments, looking forward to the common advantages and good harmony of civilized nations. The principle equally applies, whether the individual makes a will or not in a foreign country. The goods of individuals in their totality ought to be considered as the goods of the nation in regard to other states. They in some sort really belong to it, from the right it has over the goods its citizens; because they make a part of the sum total of its riches and augment its power; and because a nation has an interest in the protection it owes to its members. The foreign jurists, Vattel ^(a), Huberus ^(b), Wolfe ^(c), Denizart ^(d), Target ^(e), and Lord Kaimes ^(f), severally assert that the law of the domicil shall govern as to the regulation of the moveable property of a subject or citizen dying in a foreign country; and that the validity of his testament as to its form can only be decided by the judge of the domicil, whose sentence delivered form ought to be every where acknowledged. It has been said that Sir fames Marriott has spoken lightly of the preelections Huber; but it is well known that Lord Mansfield has cited his work with approbation; and Mr. Hargrave ^(g) has declared that his writings on the civil law are much esteemed. According to Lord Chancellor Thurlowe in Bruce v. Bruce ^(h) decided in the British House of Lords in April 1790, ⁽ⁱ⁾ personal property follows the person of the owner, and in case of his decease, must go according to the law of the couuüy where he had his domicil; for the actual situs of the goods has no influence. Lord Chief Justice Kenyon in 1/91 has said ^(a) generally speaking it must be admitted that personal property must be governed by the laws of that country where the owner is domiciled. Lord Chancellor Loughborough in 1/96 has declared ^(b) tjjat jt jg novvi gxt jaw tiiat the law of the country where the domicil is decides, wherever the personal property is situated. According to Sir Richard Pepper Arden in 1801, ^(c) there is not a single dictum, from which it can be supposed that the place of the death shall make any difference. It is evident therefore that by the law of nations as well as by the British decisions the general rule at least is clearly established to be in favour of the defendant; and it was incumbent on the plaintiff to shew that the making of a will under the circumstances of this case formed an exception. This has not been done; and it cannot be said with propriety that when the word succession is made use of without a particular reference to an intestacy, that it necessarily excludes the taking under a will. But we have more; we have an authority in point. In ^(d) Sill v. Worswick determined in 1/91, we find that Lord Chief Justice Loughborough expresses himself in these strong terms: “ It 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 proper- “ ty has no locality; with respect to the disposition of it, with “ respect to the transmission of it, either by succession or by “ the act of the party, it follows the law of the person.” Of the signification of the words, act of the party, there can be no doubt. The transmission of a man’s property to others arises from civil institutions, and is the subject matter of positive law. My former feelings on the justice and equity of the plaintiff’s claim have been repressed by considerations of the imperious necessity of our strict adherence to uniform established rules. In Bempde v. Johnson already cited, Lord Loughborough declared the case of Sir Charles Douglas came before the House of Lords under circumstances that affected the feelings of every one; for the consequences of the judgment which the House of Lords found themselves obliged to give, were both harsh and cruel; and if the particular circumstances raising very just .sentiments in every mind, could prevail against the unifonnity of the rule it is so much the duty of courts of justice to establish, there could be no case in which the feelings would have ed one further. • '

On the whole matter I find myself constrained to deliver my opinion, that judgment should be entered for the defendant.

Smith J. concurred.

Brackenridge J.

Subsequent to the argument in this case

I examined the authorities cited, and the civilians generally on the subject. An abstract of the investigation with my conclusion has been mislaid, and cannot now be recurred to. But it will suffice to say, at this time, that my conclusion was decisively against the will, and in favour of the successor ab intestato. ^(a)

Judgment for defendant.

(a) 3 Vez. jr. 200.

(b) 3 Vez. jr. 200. 2 Bos. and Pul. 220. 1 H. Bl. 690. 5 Vez. jr. 786. 4 T. R 184. where all the authorities in the civil law are cited.

(c) 5 Vez. jr. 786.

(a) Vattel, 154. s. 85.

(b) Huberus, Vol. 2. lib. 1. tit. 3.

(c) 2 Wolfe, 201.

(d) Denizart, 4 Tit. Testament. 515.

(e) Collect, Furid. 242. (324.)

(f) J) Princ. Equ. 356. lib. 3. c. 8. sec. 3.

(g) Co. Pitt. 80. b. Hargrave's note.

(h) 2 Bos. & Pul. 229. in notis.

(i) 2 Bos. & Pul. 230, 231.

(a) 4 T. R. 192.

(b) 3 Vez. jr. 200.

(c) 5 Vez. jr. 788.

(d) 1 H. Bl. 690.

(a) The case of Desesbats v. Berquier, which decides the effect of domicil upon a will of moveables, and the following case of Guier and O’Daniel, which contains a very full exposition of the principles by which domicil is ascertained, are the only cases in Pennsylvania in which these questions have been solemnly discussed and settled. The reporter is therefore induced to connect them in this manner.

The case arose in the Orphan’s Court for the city and county of Philadelphia, between

Stephen Guier, claiming as the father of Thomas Guier deceased intestate, and Francis O’Daniel and William Young, claiming on behalf of the brothers and, sisters of the intestate.

THE sum of 1400 dollars was in dispute under the following circumstances. Thomas Guier, the intestate, was the captain of a vessel, and was murdered in the West Indies in 1801. The money in controversy was part of the proceeds of certain coffee which came to Philadelphia, and was sold on his account after his death. O’Daniel and Toung claimed it for his brother and sisters by the law of Delaware; the father claimed it for himself by the law of Pennsylvania; and the question for the Court was, by which law the distribution should be directed.

The facts were these: Stephen Guier the father, and his family, including the intestate at that time a minor, removed from the state of Connecticut to Delaware in March 1795; where they settled on a farm belonging to his son Gideon, who was already resident there. In the same year Thomas sailed from Wilmington in Delaware, as a sailor in a vessel commanded by Gideon; and constantly afterwards followed the sea. In a second voyage with Gideon from Wilmington, he was cast away, and returned, to Wilmington. In the winter of 1796 he lived in Gideon’s house in Wilmington, and there went to school to learn navigation. In March 1797, he took a protection from the Collector of Philadelphia and sailed from that port. From 1796 to 1798, during some part of which period he was of age, he always boarded when ashore with Gideon’s widow in Wilmington, where he kept his trunks, clothes, hooks, and papers; and from 1798 to 1800 he boarded when ashore at an inn in the same town. In 1800 he became a member of a Freemason’s Lodge at Wilmington, and contributed his proportion of the room-rent. In the summer of 1801 he went to Connecticut on a visit, to his relations; but, except in 1797 when he sailed from Philadelphia, and once when he sailed from New-Yorh, all his voyages from 1795 to 1801 began at Wilmington, during which period he was successively seaman, mate, and captain. Alibis owners resided at Wilmington. The protection from the Collector at Philadelphia stated him to be twenty three years of ag'e; but several witnesses swore to his being under age when he first went to Delaware. The bank of Wilmington required two indorsers on his notes, as they did on the notes of all non-residents; and he never owned or rented a house, had never been assessed or paid a tax, nor ever voted at an election in the state of Delaware, though he once offered his vote and it was rejected. In 1801 he sailed and never returned. The sum in dispute had never been in Delaware, the coffee from which it proceeded having come direct from the West Indies to Philadelphia.

C. J. Ingersoll for the father, argued it upon three points. 1. That Thomas Guier had no domicil any where. 2. That where there is no domicil of preference, custom and the law of Pennsylvania establish the lex loci rei sites as the rule of succession to personal as well as to real property. 3. That the locus rei sitie being Pennsylvania, and no domicil of preference being shewn elsewhere, by the law of Pennsylvania the father was entitled to the succession.

PCophinson and Rodney for the Delaware claimants.

On the 7th July 1806, the opinion of the Court was delivered by

Hush President. The case is embarrassed with little or no difficulty, whether considered on legal principles or matters of fact. The question is, where was he domiciled at the time of his death? and by what law shall the personal estate be distrbuted?

It is necessary to state both the law and the facts briefly. The position .is too clear to be controverted, that personal estate must go according to the laws of the country in which a man is domiciled at the time of his death. There can be but one domicil for the purpose of distributing personal estate; and when that is ascertained, all such property wherever dispersed, will go in succession according to the laws of the country in which the intestate was last domiciled. Debts, having no situs, follow the person of the creditor; and the lex loci rei sites is with great propriety totally disregarded.

A man is prima facie domiciled at the place where he is resident at the time of his death; and it is incumbent on those who deny it, to repel this presumption of law, which may he done in several ways. Itmay be shewn that the intestate was there as a traveller, or on some particular business, or on a visit, or for the sake of health; any of which circumstances will remove the presumption that he was domiciled at the place of his death. 1. Bos. and Pul. 280.

On a question of domicil the mode of living is not material, whether on rent, at lodgings, or in the house of a friend. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil.

Minute circumstances in inquiries of this sort are taken into consideration, the immediate employment of the intestate, his general pursuits and habits in life, his friends and connexions, are circumstances which, thrown into the scale, may give it a decisive preponderance.

There is no fixed period of time necessary to create a domicil. It may be acquired after the shortest residence under certain circumstances; and under others, the longest residence may be .insufficient for the purpose,

Bynkershoek, we are told, would not venture to define a domicil. Vattel says, it is a fixed residence, with an intention of always staying there. It may be defined, in our opinion, to be a residence at a particular place accompanied with positive or presumptive proof of continuing it an unlimited time; and is the conclusion of law on an extended view of facts and circumstances. The determination in the case of Major Bruce in the House of Lords does not militate with any part of this definition. Bruce left Scotland when very voting, and became completely domiciled in the East Indies, in word and in deed, by a residence of sixteen or seventeen years. Towards the close of his life, and after making a fortune, he expressed a resolution of spending the remainder of his days in his native country, and accordingly took measures to send his property before him, when he suddenly died. It was held that he was clearly domiciled in the East Indies in the first instance, and that the intention to change could have no effect. Though declarations are good evidence that a person has changed his domicil, no fixed views of that sort can be supposed equivalent to the actual abandonment of one don^icil, and the acquisition of another.

The domicil of origin arises from birth and connexions. A minor during pupillage cannot acquire a domicil of his own. Sis domicil therefore follows that of his father, and remains until he acquires another, which he cannot do until he becomes a person sui juris.

With respect to the facts in the case before us, Thomas Guier left Connecticut in the year 1795, under age, in company with his father Stephen, who, quitting his native country, migrated to Delaware, and became a resident of that state by acts of the most unequivocal nature. There cannot be. the least <!oubt that tbe father became domiciled there. His son Gideon was tlie harbinger of the family, and was actually a resident in Delaware in the year 1792, when he was a married man, a housekeeper, and the commander of a vessel. Induced probably by the establishment of his sonin that part of the world, the old man followed his fortunes, and settling under his immediate auspices, became a farmer; a mode of life in itself more indicative than any other of views of permanent residence. The father being thus domiciled in Delaware, his minor son Thomas was domiciled there also, who while under age never acquired or could acquire a domicil sui juris. If it were a point of doubtful decision whether Thomas was ever domiciled by any action of his own, Delaware would of course he his domicilium originis, and the country whose law would regulate the succession to his personal estate.

But we do not rest his domicil in Delaware on this ground: he acquired one of his own. From the time old Guier and family, with his son Thomas, arrived in Delaware, they seem to have been connected with Gideon Guier, and to have been both in some degree dependent upon him. He settled his father on a plantation, and Thomas became his apprentice in the seafaring business. Having served out bis time, he received wages from his brother. About the year 1797 Thomas was shipwrecked, and returning by tbe way of New Tori, be proceeded not to Connecticut but to Wilmington. He studied navigation after he was of age in the borough of Wilmington. His diligence and good conduct recommended him to notice. In a year or two he became a mate, then a captain and part owner of a vessel, in which character he sailed in 1801, when he was murdered by the blacks in the island of St. Domingo. During this whole period we hear nothingfrom him of the animus remertendi. So far from it, that after paying a visit to his friends in Connecticut in 1800 or 1801, he hastened back to Wilmington as the place of his employment, and the residence of bis friends. Not a single witness of the great number who have been examined in Connecticut and Delaware, ever heard a ■word escape his lips of his intention to return; or that Wilmington was only the of his residence. Thomas Guier entered the world an adventurer, and in a few years acquired a good deal of property. It is therefore reasonable to believe he felt the full force of this irresistible cement to locality and situation. This consideration founded on interest, furnishes the strongest proof tbat he had fixed on Wilmington as the place of his domicil. A remark of the unerring observer of human nature, that “ where the treasure “ is the heart will be also,” may be here applied with strict propriety.

Several witnesses say they believe he had fixed his residence at Wilmington; others say they believe be had not fixed it there. This appears to be mere opinion. Not a word from Guier himself has been given in evidence; hut his silence on the subject is an argument to shew his views were permanently fixed on that country, in which his affairs wore the most promising aspect. When he proposed to settle his affairs, lie does not think of Connecticut, but of sending to Judge Booth at Hen-Castle, to draw Iris will in favour of that part of his family who were resident there.

It is I think extremely doubtful whether voting and paying taxes are in any case necessary to constitute a domicil, which being a question of general law, cannot depend on the municipal regulations of any state or nation. Voting is confined to a few countries, and taxes may not always be demanded. Guier was a seafaring man; and One of the witnesses says that between the 14th January 1800 and the 15th October 1801, he sailed six or seven times. Is it any wonder a single man thus engaged in trade should escape taxation! It frequently happens that young men who never go abroad, are not discovered to be objects of taxation till they have reached the age of five or six and twenty. If Guier escaped taxation through the neglect of the officers of government, it is impossible to conceive how their neglect can have any effect on the question of domicil. The almost, constant absence of a sailor from home, actually effaces from his mind voting at elections; yet it appears Guier was present at one election and offered his ticket, which, though not. received, is a striking fact to shew he considered himself in the light of a citizen. The ticket not being received does not alter the nature of the transaction on the part of Guier; the evidence resulting from it, of intention to settle and reside, is the same as if it had. been actually received.

As to his sailing one voyage from Philadelphia, at which time it is probable he obtained a certificate of his being a native of Connecticut and a citizen of the United States, they appear to be accidental circumstances, such as may be looked for in the life of a sailor, and no wise incompatible with his residence in another place.

Employments of the most opposite character and description may have the same effect to produce a domicil. A man may be alike domiciled, whether he supports himself by ploughing the fields of his farm, or the waters of the ocean. It is not exclusively by any particular act that a domicil, generally speaking, is acquired; but by a train of conduct manifesting that the country in which he died was the place of his choice, and to all appearance, of his intended residence. The sailor who spends whole years in combating the winds and waves, and the contented husbandman whose devious steps seldom pass the limits of 1ns farm, may in their different walks of life, exhibit equal evidence of being domiciled in a country. Every circumstance in the conduct of old Guier and his son Thomas, taking into view the unsettled mode of life of the latter, affords the fullest proof that they were both domiciled in Delaware. If the proof be stronger in either case, it is in the case of Thomas, who, though employed in traversing the globe from clime to clime, constantly returned to Wilmington, the source and centre of his business, the seat and abode of his friends and connexions. His “ heart “ untravelled” appears to have been immoveably fixed on the spot, to which he was attached by the powerful tie of interest, and the strongest obligations of social duty; and never for a moment to have pointed a wish to any other country.

We are of opinion Thomas Guier was domiciled in the state of Delaware, during pupillage; and that he was also domiciled there after he became sui juris; and do decree that his personal property be distributed according to the laws of the state qe Delaware.