It is only necessary to state a few familiar and well settled principles of law to show that the judgment of the court below is erroneous, and should be reversed.
The universal doctrine now recognized by the common law is, that the succession to the personal property is governed exclusively by the law of the actual domicil of the intestate at the time of his death. (Bempde v. Johnstone, 3 Ves., 198; Story's Conflict of Laws, § 481; Harvey v. Richards, 1 Mas., 418; Holmes v. Remsen, 4 Johns. Ch., 460; 20 J.R., *Page 164 229; De Couch v. Savatier, 3 Johns. Ch., 190, 211; Shultz v. Pulver, 3 Paige, p. 182; DeGobry v. DeLastin, 2 Harr. Johns., 193; Hunt v. Moultrie, 23 N.Y., 394.) The general rule also is, that the law of the testator's domicil, at the time of his death, controls the testamentary disposition of all his personal property, and of all his real property situated within the jurisdiction of the State of his domicil. This is the rule both in England and this country. (Stanley v. Bernes, 3 Hagg. Ecc., 373-465; Moore v. Darrel, 4th id., 346, 352; Price v.Dewhurst, 4 Mil. Craig, 76, 80, 81; 3 Curt., 468; 2 Sim., p. 7, n. 2; Matter of Easton's will, 6 Paige, 187; Matter ofRoberts' will, 8 Paige, 446, 519; Thornton v. Curling, 8 Sim., 310; Story's Conflict of Laws, § 467; Countess ofFerraris v. Marquis of Hertford, Eng Jur., April 1st, 1843, p. 262; 3 Curt., 468; Desebats v. Berquier, 1 Binn., 336.) This doctrine has been repeatedly recognized in the American courts. (Holmes v. Remsen, 4 Johns. Ch., 460-469; Harvey v.Richards, 1 Mason, 381, 408, n; Dixon's Exec'rs v. Ramsey'sExec'rs, 3 Cranch, 319; 2 Johns. Harr., 193; 12 Wheat., 169; 2 Doug., 522; 9 Peters, 483, 504, 505; Story's Conflict of Laws, 468.) The doctrine of the courts is, that there is no difference between the case of succession by testament and intestacy; that they are both governed by the law of the testator or intestate.
There can be no doubt but, from the evidence in the case, the testator's domicil, at the time of his death, was in the State of New York. He quitted France in 1837, and came to this State; was naturalized, under our laws, became a citizen, embarked in business, and resided here until he died, in the year 1849. All the legal requisites necessary to constitute a domicil here, existed in his case — actual residence, naturalization, and the intention to make a permanent residence here. (Laneurville v.Anderson, 22 Eng. Law and Eq., 59; Hoskins v. Matthews, 35 id., 532; Story's Conflict of Laws, § 44.) Naturalization alone constitutes a most solemn declaration of the intention of the party to abandon his native State and to make the adopted country his domicil and future home, and *Page 165 the French law makes this simple fact conclusive evidence of the acquisition of a new domicil. (Code, art. 17.) The fact that the testator actually remained in France up to the death of her husband, and still continues, cannot, in the least, affect the case before us; for the domicil of the husband is the domicil of the wife, and she can have no other or separate one. There can be but one matrimonial domicil at the same time. (Warrender v.Warrender, 9 Bligh, N.R., 103, 104; Greene v. Greene, 11 Pick., 411; Story's Conflict of Laws, § 41, ch. 55; 2 Parsons on Contracts, 94, 112.) The rule upon this subject is, that woman, on marrying, acquires the domicil of her husband, and changes it with him. (2 Parsons on Contracts, 93, 112; 9 Bligh, 89, 103, 104.)
It seems to me very clear, therefore, that the laws of New York, and not of France, must control in the administration of this property under the will of the testator, as his domicil and his property was here at the time of his death. The laws of France can have no application in such a case as this, which depends solely upon the marital rights, governed, as they all necessarily must be, by the matrimonial domicil at the time of the death of the testator. The court below fell into an error, in following a class of cases which held that ante-nuptial contacts in relation to the settlement of property and the like, are to be determined and sustained by the law of the place where they were made, notwithstanding a change of the matrimonial domicil. The cases referred to by the learned judge, who delivered the opinion of the court below, are all of this character. These cases rest upon express contract and the rules in such cases is that thelex loci contractus governs. Such are the cases of Decouche v. Savatier (3 Johns. Ch. R., 190); Crosby v. Berger (3 Ed. Ch. R., 538); and De Barante v. Gott (4 Barb., 492), cited by the court below. The case is very different where the wife's right of property arises by operation of law as a mere incident to the marital relation. In the latter case the right does not rest upon any contract, express or implied, between the parties, but arises solely by the operation of law. It is the silent effect of the relation entered *Page 166 into by them, not as in itself implied and fixed in and of the marriage contract, but merely as that contract calls into operation the positive institution of the municipal law (Lawrence v. Miller, 1 Sand. S.C.R., 516), and consequently the wife's right of property in such cases is controlled by the domicil of the husband at the time of his death. The French law of community as applicable to the case, does treat the wife as a creditor and the husband as a debtor for what he spends from time to time; but the community continues until the death of the party and the French law steps in and fixes the rules of succession peculiar to itself. Bonati cannot, upon any principle known to our laws, be regarded as a debtor to his wife, and she be allowed to recover as a creditor. There is no evidence in the case that he brought any of the property of the community with him when he came to this country. On the contrary when the defendant was going into proof to rebut any such inference, the plaintiff admitted that she had failed to make any such proof.
It is fair to infer, therefore, that he had spent this money in France, and never held any of it either in trust or otherwise under our laws. I am of opinion for the reasons stated, without considering the other questions in the case, that this judgment should be reversed and the complaint dismissed.
SELDEN and LOTT, JS., did not sit in the case.
Judgment affirmed.