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Mere residence not

§ 280. Although the statutes of some states provide that persons who have been residents for a specified period shall be entitled to sue for divorce, yet " residence" sufficient. in such statutes should be treated as convertible with "domicil," and no residence should be held to be sufficient, unless there be an intention to remain permanently. But whatever is thought of this position, it is clear that a divorce granted on mere residence, without domicil, will have no extraterritorial effect.1

Judicial

merevolun

tary sepa

§ 281. A judicial separation-i. e., a divorce from but not bed and board-gives the wife the right to acquire an independent domicil for divorce as well as for other purposes. It is otherwise as to a separation voluntarily agreed on by the parties, or a separation which the wife exacts without due cause.2

ration can give the wife independent domicil.

Place of marriage and of

§ 282. It is immaterial, on this view, so far as concerns jurisdiction, where the marriage was solemnized and where the offence on which the proceedings are based was committed. It is sufficient to give juris diction that the petitioner is domiciled in the state to whose court the application is made.3

offence immaterial.

Extraterritorial

283. Wherever extra-territorial service is in other cases permitted by the lex fori, there is no reason why it should not be good in cases of divorce. By the service may laws of most states service by publication is sufficient, though such service ought not to be considered sufficient to sustain a divorce in cases where personal notice could be given, but has been withheld."

be ade

quate, and so of ser

vice by publication.

1 Whart. Conf. of Laws, § 228 et Jersey, by statute, one of the parties

seq.

2 Ibid. §§ 225-6.

3 That this is now the English rule, see Harvey v. Farnie, 5 P. D. 153, cited Wh. Conf. of Laws, 2d ed., § 218, and subsequently affirmed by the court of appeals, 43 L. T. R. (N. S.) 737, and by the house of lords, 48 L. T. N. S. 273; and see Hearn v. Glanville, 48 L. T. N. S. 356; S. P., Roth v. Roth, 104 Ill. 35. In New

must have been an inhabitant at the time of the offence. A. B. v. C. D., 34 N. J. Eq. 43.

4 Whart. Conf. of Laws, § 236; see as to such service, infra, §§ 344, 539; Cook v. Cook, 56 Wis. 195. An article on extra-territorial service in such cases will be found in 26 Alb. Law J., 447; and see Pettiford v. Zoellner, 45 Mich. 358.

must aver facts neces

284. The record must aver the facts necessary to jurisdiction-e. g., domicil-and such facts may be collaterally disputed. The party disputing the divorce, if Record domiciled in another state, may show that the averments in the record, either as to domicil or service, are false. But if both parties are domiciled in the jurisdiction, they are both bound by the record, so far as concerns foreign courts. The only remedy for error is then to apply to the courts of the state of their common domicil.1

VI. PARENTAL RELATIONS.

sary to jurisdiction and such

facts may be collaterally dis

puted.

Legitima

tion by subsequent determined domicil of parent and

marriage

by laws of

child.

§ 288. In most continental European states, and in several states in this country, legitimation of children is effected by the marriage of their parents after their birth. By the English common law, as in force in most of our states, no such legitimation is effected. The question, therefore, sometimes arises whether a child so legitimated will be regarded as legitimate in states where the common law in this respect prevails. And the answer given by the English courts is that where the father's domicil, at the time of the child's birth and at the time of the marriage, was in the legitimating state, then the legitimation is to be regarded as extra-territorially effective. But this cannot be so extended as to effect the legitimation of children not domiciled at the time in the legitimating state.2

estate,

$289. When the policy of the law is to exclude all children not born in wedlock from the inheritance of real estate, and when this policy is embodied in As to real peremptory statutes, then, to entitle an alleged heir territorial policy to take by descent, it is necessary that he should be prevails. born in wedlock. It will not be enough for him, if illegitimate when born, to have been subsequently legitimized by a foreign state.3

1 Whart. Conf. of Laws, § 230.

2 Whart. Conf. of Laws, §§ 240 et seq.

England (Goodman's Trusts, 17 Ch. D. 266; Ct. of App. reversing ruling of Jessel, M. R., in S. C., 43 L. T. N.

3 Ibid. § 242. It is now settled in S. 14, 14 Ch. D. 619) that the law of

§ 290. The same rule applies generally to legitimation by So as to le- legislation or by executive decree. Such legitimagitimation tion, to be extra-territorially operative, must have generally. emanated, in accordance with the laws of such state, from the sovereign of the state in which were domiciled both parent and child.1

So as to adoption.

§ 291. Adoption, though a recognized institution of the Roman law, and sanctioned by the jurisprudence of all states accepting that law, is not regarded by the English common law as establishing in a legal sense a filial relationship between the adopted and the adoptor. An adopted child, therefore, cannot as such, inherit at common law as his father's heir. To give adoption extra-territorial force, it is necessary that it should be perfected in conformity with the laws of the state in which both adopting parent and adopted child are domiciled. And even an adoption so perfected will not be regarded as entitling the adopted child to take real estate as heir in a state which limits the right to take real estate by inheritance to children born in wedlock. When, however, adoption is recognized as part of the system of the state in which the suit is brought, then such state will regard as valid an adoption sanctioned by the laws of a state in which both the adoptor and the adopted were domiciled.2 § 292. Whether a parent is entitled to the custody of a child is to be governed by local law, so far as such custody is a matter of police care. Such, also, is and power the rule with regard to the father's physical power over the child. Such power must be regulated by the law of the state in which the attempt is made to exercise it; nor will any chastisement be sustained beyond the limits which such law permits. A father's power over the child's movables is, as a rule, determined by the law of their common domicil.3

Parental custody

determined

by local

the parents' domicil at marriage and birth determines, as to personal property, the question of the legitimacy under a marriage subsequent to the child's birth.

1 Ibid. §§ 249 et seq.

2 Whart. Conf. of Laws, § 250.
3 Ibid. §§ 253 et seq.

VII. GUARDIANSHIP.

Domicil of mines as to his personalty. Foreign guar

ward deter

dian must act under

295. The lex domicilii of a ward, whether infant or lunatic, determines as to the custody and management of his personal property; his real property being governed by the lex rei sitae. But a foreign guardian will not be permitted to take possession, even of personalty belonging to his ward, without the authority of the local courts, and under such limitations as they impose. Nor can a foreign guardian take and enforce control of his ward, except in subordination to local law. The decrees of the judex domicilii in this respect are only prima facie authoritative.1

local law.

guardian of

quires local

§ 296. To entitle a foreign domiciliary guardian of a lunatic to place him in custody, or to take possession of his goods, it is necessary for such guardian to obtain Foreign the sanction of the court of the place where the lunatic may happen to be, or where the goods may be situate, as the case may be. Decrees, however, declaring a person, not actually deranged, to be incapable of business as a spendthrift, have no extraterritorial force.2

VIII. LAW OF THINGS.

§ 298. Whether a particular thing, found in a particular place, is property, and hence whether it may be owned by a person, is determined by the law of such place.3

1st. Immovables.

lunatic resanction, but decrees thrifts not ritorial.

as to spend

extra-ter

Lex rei sitae whether a thing is

determines

property.

Immova

bles govthe lex rei

erned by

299. By both the English common law and the Roman law as held by the several states adopting that law on the continent of Europe, immovables are governed by the lex rei sitae. Sometimes reasons drawn from the feudal system are given for this rule. But the rule, so far from being distinctively feudal, is one based on the necessities of the case. Not merely is land so essential

1 Ibid. §§ 259 et seq. See Sprague v. Hoyt, 103 U. S. 613.

sitae.

2 Whart. Conf. of Laws, §§ 259-269. 3 Ibid. § 272.

to the existence of a state that for a state to part with its control of its land would be to part with its sovereignty, but it is by the lex rei sitae alone that title to land can be made and can be enforced. The tenure of land, also, is a matter of national policy, and by such policy alone can such questions as those of mortmain, of perpetuity, of homestead exemptions, of squatter privileges, and of tenants' rights, be settled. No other arbiter, also, than the judex rei sitae is possible, since it is a petitio principii to declare that in such cases the lex domi cilii of the owner is to prevail, the question at issue being as to who the owner actually is. Hence, in all countries it is now agreed that the lex rei sitae governs immovables; and this rule applies to bankrupt and insolvent assignments, and to testamentary dispositions, as well as to dispositions inter vivos. Liens in land, therefore, are governed by the lex rei sitae, and so is money when representing land. Immovables, it should be remembered, in this sense, include not only land, and the houses and fixtures thereon, but leases and other interest flowing continuously from land.'

Chancellor

$300. A chancellor, however, may make a decree compel ling a trustee, guardian, or executor to convey may compel foreign real estate when this is necessary to a due settlement of accounts, or to other performance of duty by a party duly brought within the jurisdiction of the court.2

trustee to make con

veyance of

foreign land.

Forms of

determined

§ 301. The forms of conveyance of real estate are necessarily determined by the lex rei sitae, and no conveyance conveyance is good that is not good according to such law. The same rule applies to registry. When a registry is made essential to the transfer of title, or as notice to other vendees or encumbrancers, then the prescriptions of the lex rei sitae must be followed.3

by lex rei sitae.

Whart. Conf. of Laws, §§ 273, et seq.; Hawthorne, in re, Graham v. Massey, 48 L. T., N. S. 701. See, also, Fisher v. Parry, 68 Ind. 465; Keegan v. Geraghty, 101 I11. 26.

382

2 Whart. Conf. of Laws, § 288. 3 Ibid. § 295; see Elwood v. Flannigan, 104 U. S. 562.

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