
    Samuel Garland, Executor of John A. Rowan, deceased, vs. Susan A. Rowan.
    It is well settled, that in the distribution of the personal estate of deceased persons the law of the domicil of the decedent is to regulate.
    The widow is entitled to be endowed of the personal estate of her deceased husband, according to the law of the place, of the domicil of the husband.
    Slaves, like other personalty "are distributed and widows endowed thereof, according to the law of the domicil of the decedent. -
    Whether the same rule would apply, if the domicil was in a state where slavery is not permitted by law ! Qucere ?'
    
    This court is not precluded, by the decisions of its predecessors, but will decide according to its own convictions of the law.
    ' On appeal from the probate court of Washington county.
    The record presents these facts : John A. Rowan being a citizen of the state of Virginia, and domiciled therein, departed this life in the year 1843, having previously made his will. That Samuel Garland, (the plaintiff in error,) was appointed one of his executors; that said will has been duly proven, and recorded in the state of Virginia, and said Garland alone has in said state, qualified as executor of the will; that said Rowan owned considerable real and personal estate, at the time of his death, in the states of both Virginia and Mississippi. The personal estate consisting of slaves, &c.; that Mrs. Rowan had renounced the provision made for her by the will of her husband, and he having left no child or children, claimed as her share of her husband’s estate, in the state of Mississippi, one half the personal property, including the slaves, as hers absolutely. The executor contended that her distributive share of the personal estate was governed by the laws of Virginia, the husband’s dom-icil and place of residence at the time of his death. Mrs. Rowan filed her. petition in the probate court of Washington county, to recover her share of the personal estate. The executor appeared and answered, setting up the above defence.
    -The court decided ‘that the laws of Virginia did not fix the right of the widow, or affect it. And although it was agreed that by the laws of Virginia, she was entitled to only one third of the slaves during her life, the judge decreed to her one half of the slaves that were in the state of Mississippi, at the time of her husband’s death, absolutely; and decreed also that she was entitled to one half of the personal property, including the slaves, regardless of the debts that were owing by the testator in Mississippi, inasmuch as it was ¿nade to appear to him, that after allotting to the widow one half the personal estate, there would still be left more than enough to pay all those debts. From the decree of the probate court the executor appealed to this court, and assigns for error, the decree of the court below, in allotting dower according to the law of Mississippi, instead of that of Virginia.
    
      W. Thompson, for appellant.
    It is contended for appellant that the law of the domicil is to govern in this case, and that the widow is entitled to one third of the slaves only, and that only during her life.
    Story, in his Conflict of Laws, (Boston edition, 1841,) page 403. sec. 481, says, “ The universal doctrine, now recognized by the common law, although formerly much contested, is that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate, at the time of his death. It is of no consequence what is the country of the birth of the intestate, or of his former domicil, or what is the actual situs of the personal property at the time of his death : it devolves upon those, who are entitled to take it, as heirs or distri-butees, according to the law of his actual domicil at the time of his death.
    “ Hence, if a Frenchman dies in America, intestate, all his personal property, whether it be in America, or in France, is distributable according to the statute of distribution of the state where he then resided, notwithstanding it may differ essentially from the distribution prescribed by the law of France.” See the authorities cited in the note at the above page, 403.
    At page 403, sec. 481, b, the same author says, “this same doctrine is maintained with equal broadness by foreign jurists. Ii is founded in a great measure on the doctrine, that movables have no situs, and accompany the person of the owner, so that in fictions juris, they are always presumed to be in the place of his, domicil.”
    In Harvy v. Richards, 1 Mason’s Reports, 381, the court, in their opinion, say, If the law rei sites were generally to prevail, it would be utterly impossible for any such person to know in what manner his property would be distributed, at his death, not only from the uncertainty of its situation from its own transitory nature, but from the impracticability of knowing, with minute accuracy, the law of succession of every country, in which it might then happen to be. He would be under the same embarrassment if he attempted to dispose of his property by a testament; for he could never foresee where it would be at his death. Nay more, it would be in the power of his debtor, by a mere change of his own domicil, to destroy the best digested will; and the accident of a moment, might destroy all the anxious provisions of an excellent parent for his whole family. Nor is this all, the nation itself, to which the deceased belonged, might be seriously affected by the loss of his wealth, from a momentary absence, although his true home was in the centré of its own territory.
    “These are great and serious evils, pervading every class of the community, and equally affecting every civilized nation. But in a maritime nation, depending upon its commerce for its glory and its revenue, the mischief would be incalculable. The common and spontaneous consent of nations, therefore, established this rule from the noblest policy, the promotion of general convenience and happiness, and the avoiding of distressing difficulties, equally subversive of the public safety and private enterprize of all.” /
    There is nothing peculiar in the phraseology of the statute of Mississippi, giving, or securing to the widow her distributive share in the estate of her deceased husband. Its language is similar to that of the English statute of Charles II. and like unto that of the different statutes of the American states.
    The laws of free governments, as a general rule, make, or at least should make, the good of their citizens, their primary object.
    
      Was not, the statute of the state of Mississippi giving to the widow one half of the personal estate of her husband, in case he died without children, intended for the benefit of our own citizens ?
    In legislating for the citizens of Mississippi, have not the legislature declared, that the most just and equitable rule, and the one most conducive to the happiness and good of the community would be, that giving to the widow half the personal’ estate?
    It is not important to the state of Mississippi, what portion of the personal estate the law of the foreign domicil shall assign to the widow, if it happen to be in Mississippi, she withdraws with it to the state of her domicil, and this state and its citizens have no interest in the matter.
    But reverse the facts of the present case; suppose Mr. Rowan had been domiciled in Mississippi, owning a large slave property in Virginia, and, on his dying without children, Mrs. Rowan had set up her claim, not for a third of the slaves, during life, but for one half of them absolutely. Would not we of Mississippi at once see' the justice of her claim, and contend that the law of distribution was made for the good of our own citizens, and that as a citizen of Mississippi she should have the right to withdraw from Virginia one half the personal property, and bring it home to the law of the domicil ?
    When we have passed what we consider a just and equitable law, securing to the widow her share of the personal estate, in case of intestacy, and, indeed, in despite of the husband’s will, would we agree that a citizen of Mississippi, whose fortune consisted in money in a foreign country, should be allowed, barely because the laws of that country tolerated him in so doing, to will it all away from his wife, and leave her a beggar in our state? Or that, in case of intestacy, she should have no share in that fortune, barely because the laws of the foreign state, in making distribution, allotted her no share?
    It may seem in some cases hard upon the widow, to enforce the law as we contend for it, and verily believe it to be; still she cannot complain when we allow the law of her domicil, and that of her husband, the l^ws of that government under which they chose to live, to prevail.
    And we should ever bear in mind, that while thus enforcing the law, we are securing to our citizens, in all parts of the civilized world, right and justice, in cases of intestacy, succesr sion, distribution, &c. &c., according to our own notions of right and justice, regulated and governed by laws which we have enacted, or adopted as most conducive to their happiness.
    The law, as we contend for it, we conceive to confer a most invaluable right, and one which every government, whose object is the welfare of its citizens, should be extremely loth to surrender.
    The maxim, “ Mobilia sequiintur personam, et ejus ossibus ad-hcerenl,” though a little quaint, is nevertheless sound and correct.
    We cite for the consideration of the court, Story’s Conflict of Laws, (Boston edition, 1841) pages 314, 15, 16, 17, 19,20; 337, 8, 9 ; 355, 6; 395, 6, 7; 403, 9 ; 423 and 424, and the cases cited in the note. See Harvy v. Richard, 1 Mason’s R. 381, from which the above extract was made.
    See 1 Kinne’s Compendium, 322, title Distribution, and the very full citation of adjudged cases, both English and American, showing that the succession to personal property is governed exclusively by the law of the domicil of the intestate, at the time of his death. And that it matters not where the property might happen to be at that time.
    In Story’s Conflict of Laws, (samé edition) under the heads “Marriage,” “Marriage incidents to,” from page 100 to 159, will be found much interesting learning on the subject submitted for the decision of the court, but more diffuse, and not so directly in point to the matter in controyersy, as the pages first above cited. See also, Story, from page 70 to 100.
    I also cite 2 Kent’s Com. from page 420 to 432, (New York edition, 1836.) At page 429, the author says; “But it has become a settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the distribution of personal property, wherever situated, is governed by the law of the country of the intestate's domicil, at the time of his death, and not by the conflicting laws of the various places where the goods happen to be situated.” See 2 Devereux’s Reports, 77, Leake v. Gilchrist.
    
    Whether the right of the widow is derived from an implied nuptial contract, was known to the ancient common law, or has its origin in mere gratuitous statutory enactment, we conceive to be immaterial, as regards the question under consideration. One thing, however, is certain, in most civilized states, if not in all, it is subject to be restricted, or enlarged, regulated and governed by legislative enactment.
    To what portion of her husband’s personal estate, she shall on his death succeed, in either hypothesis, is to be determined by the lex domicilii, as we believe is most satisfactorily shown by the authorities we have cited.
    There is nothing in the fact of the property being slaves, for they are expressly mad,e personal property by our statutes. Slaves are also ,property by the laws of Yirginia.
    Neither is there anything in the law of the domicil in relation to the widow’s distributive share, which contravenes the public policy of our laws. It is only in cases of that character that the courts of one state refuse to extend its comity in recognizing or enforcing the laws of another state. If the courts of this state refuse to execute the law of the domicil, when there is nothing in the statute intimating such an intention, the courts of other states, we must of course expect to decide in like manner in similar cases. And will not the question resolve itself into this, would we prefer that our citizens should have their rights determined, and secured by our own laws, or by the uncertain, unknown, changing laws of the various civilized communities ?
    We cite also, for the consideration of the court, Story’s Conflict of Laws, p. 311, sec. 379, and note at the end of the sec. containing the opinion of Mr. Justice Bayley, and cases cited by him. Also, see p. 311, sec. 3S0.
    Suppose the testator, or intestate, should be a citizen of one of the free states, Massachusetts, for instance; and at his death he owned slaves in Mississippi, what difficulty could there be in settling the widow’s right by the'law of the domicil 1 The question would not be, whether slaves were property by the laws of Massachusetts. But that species of property being in Mississippi, and made personal property by the laws of Mississippi, belonging to the testator or intestate at the time of his death, the question would be, how does the law of Massachusetts, the domicil, provide for the succession, or distribution, of personal property, in relation to the rights of the widow? There is nothing in the law, as we contend for it, which we think could involve the courts of the respective states or communities, in any difficulty.
    Suppose a citizen of Massachusetts, owning slaves in Mississippi, should set them free, or attempt to do so by his will; would the law of the domicil operate 1 Certainly not, for it would be against the policy of our laws. And the will being to that extent inoperative, the slaves would be distributed here as the law of Massachusetts directed personal property to be distributed.
    It will be seen in the cases (some of them treat on that subject) that I have cited, that the courts, in cases of ancillary administration, either require, after the debts shall have been paid to the citizens of the state in which the ancillary administration was granted, the personal property to be handed over to the executor or administrator of the domicil, to be by him taken home and distributed ; or (if from the situation of the parties, and circumstances of the case deemed proper) make distribution of it themselves, according to the law of the domicil.
    So, if by the laws of Massachusetts, the widow is entitled to half the personal property, this'court, in a case like the one supposed above, would allot to her one half the slaves, to be owned and used under the laws of this state, where they are property. It is not the species, but the character of the thing that is to be considered. Is it personal property, where situated (as here) 1 then the law of the doinicil gives the rule for distribution. Suppose, by the laws of a state, certain things, acknowledged to be property in all other communities, are prohibited to be owned in that state, not because there was anything malum in se in it, (ardent spirits, for instance, or, if a questionable case as to the malum, something perfectly innocent in its nature,) but purely for reasons of public policy; if a citizen died intestate in the state where this species of property was forbidden to be owned, but owned that species of property in this state, where it was lawful to own it, would not the courts here distribute it according to the law regulating the distribution of personal property there 1 ,
    All the above reasoning, the court will, we believe, consider uncalled for, because of the sameness of the laws of Mississippi and Virginia, on the subject of slavery.
    In regard to the case of Duncan v. Dick, Walker’s R. 288, we do not consider the decision of the court to be sustained by authority; and from our high estimate of the present learning ' and ability of the gentleman who delivered that opinion, we verily believe if he was now on the'bench he would be the first to overrule it. It seems to me to be extending courtesy to strangers, at the expense of the rights of our own citizens.
    For once repeal the rule that the law of the domicil is to govern, and we have given up our own laws that we know, and trust to others that we know not: and in the very nature of things, cannot know. If that opinion is not correct, this court, we believe, will not be governed by it, in expressing their opinion, of the law.
    It is a solitary case, and one, to which, as many of the authorities I have cited show, a citizen of another state, owning personal property in this state, is not presumed to have looked, indeed, not to have known, inasmuch as he had been taught to look to the code of his own domicil alone for a knowledge of the law regulating, in case of his death, the succession, distribution, &c., of his personal estate, however widely it might be separated in the various parts of the civilized world.
    The respect paid to a lone decision in favor of strangers, which they are presumed never to have heard of, at least not heard of except by the party in that suit, is very different from the respect that would be paid to a decision settling the law between our own citizens, with an eye, to which they might be presumed to have acted, contracted, lived and died.
    We submit, that the probate court erred in allotting to the widow her share of the personal estate, without regard to the debts, the decree assigning as the reason for it, that after the allotment of her share, there would be enough left of the personal estate for the payment of the debts.
    We think the burden of the debts is to be borne alike by the widow and the other distributees.
    The probate judge, however, has decided otherwise, exonerating the widow’s share entirely, and casting the burden of the debts upon the other distributees 'alone.
    It is the wish of both parties in this case to have the main question in the cause settled by the decision of the supreme court; hence it will be seen I have steered clear of technical objections to the proceedings in the probate court.
    
      Wilkinson and Miles on the same side, for appellant.
    
      Guión and Prentiss, for appellee.
    This is an appeal from the decision of the probate court of Washington county, ordering an allotment of dower. -By consent the cause comes up to the present term, and the record is filed nunc pro tunc, and both parties solicit an immediate decision.
    The only question involved is, whether the appellee be entitled to dower, in the personal estate of. her deceased husband, (consisting of negro slaves,) according to the laws of Mississippi, or according to the laws of Virginia, the place of the husband’s domicil.
    By the laws of Mississippi, the widow’s dower would be one half in fee simple; by the laws of Virginia, one third for life only. The widow claims under the Mississippi law ; the executor insists that the Virginia law must prevail.
    We do not deny that in regard to the distribution of an intestate’s estate among distributees, the general rule is that the law of the domicil of the decedent governs in relation to personal property. This, however, is a mere law of comity. It cannot be doubted that the legislature may make the distribution of personal property subject to the same rule which governs the descent of real property^ Indeed, the Mississippi law may make all property real, or subject to the rules whether of contract or descent, which govern real property, as in Louisiana. They have made slaves immovable; in other words, real property.
    The right of dower is wholly distinct from the right of heirs to distribution. It forms a distinct ^subject, both of legislation and of public policy. All states have the right to prescribe the rules of property, whether real or personal, within their jurisdiction.
    The best evidence of the rule, is the decision of the highest judicial tribunal in the state. When such a decision is made, upon a public statute, it forms the only safe and sure foundation upon which the rights of property can rest.
    A judicial decision of a legislative act by the court of the last resort, constitutes an exposition of the true meaning and force of a statute, which will not be lightly disturbed. Under such a decision, people act with confidence, and after a considerable lapse of time, courts will not readily change the judicial construction of statutes, but will rather leave it to the legislature to change the statute, if the judicial construction has been wrong.
    Such is the principle which now governs our courts in relation to the liens of judgments, under the act of 1824. No respectable lawyer doubts, that if it were “ res integra,” the effect of that statute would be confined to cases of “confession judgments,” to which in terms it alone applies. But the courts construed the statute otherwise, and now the law is well settled by the judicial construction.
    The law of dower, as it now stands, has obtained since the formation of the state. No decision, as to its bearing upon personal property, appears in the reported cases, until 1827. The law of dower gives the widow one third the real estate for life, and if.there be no children, or descendants, &c. &c., one half. The next section, in the same language, gives her, in case there are no children, or but one child, one half the personal estate, in fee simple. See How. & Hutch. 351, 352.
    The supreme court of this state, at the December term, 1827, gave to this law a judicial construction, and decided unanimously, that the widow'was entitled to her dower in the personalty, according to the law of this state, and not according to •the law of the domicil of the decedent. Duncan v. Dick, Walker’s Rep. 281. The cause was elaborately argued, and decided by a most able court. Their decision has ever since stood as law, and we may presume, large amounts of property are held in accordance with it. It has been acquiesced in for sixteen years, and we are now asked to change it; to change the solemn judicial construction of our own statute, out of comity for the state of Virginia.
    We have not thought it necessary to go into the question de novo, to inquire whether the right of the widow to dower, in the personalty, has been properly settled. We think it enough to show that it has been settled, and has, for many years, constituted a rule of property, to which persons in other states had a right to look, and probably have looked, in their contracts of marriage.
    But even as a new question, we should not hesitate in sustaining the proposition, that slave property in this state, cannot, from its very nature, be subject even to distribution, according to the law of the domicil, and of course, not to allotment of dower. -
    Why does personal property follow in its distribution, the law of the domicil 1 Because being movable by a fiction of law, it is supposed to follow the owner, and to be in his possession, at his domicil. Being thus supposed in his possession, at his domicil, when he dies, it is considered within the jurisdiction of the laws of the state where his domicil is situated, and therefore subject to distributidn, according to those laws. But this string of fictions cannot apply to slaves which are held as property only by virtue of the laws of the state in which they remain.
    A man dies in Massachusetts, owning a plantation and slaves in Mississippi, can the fiction, of personal property following the person, obtain in such a easel If the slaves follow the owner to Massachusetts, they are no longer property; they are subject neither to distribution nor dower. How then could a claim to distribution, or dower in the slaves, be set up under the laws of Massachusetts'? If set up at all, it must be under the laws of Mississippi. The laws of one country, or the other, must govern, not the laws of both.
    Why should the law of Louisiana, declaring slaves immova-bles, relieve them from the operation of the laws of other states, in relation to the question of the domicil of a decedent, any more than the judicial construction of our own statute, on the subject of dower 7
    But we will not go further into this view of the subject. We consider the question already settled, and even if it were not, we believe the court will perceive obstacles in the way of allowing slaves to be alloted as dower, according to the laws of any other government than our own, wholly insurmountable, both in principle and practice.
   Mr. Justice Clayton

delivered the opinion of the court.

This is the case of a will made by a citizen of Virginia, domi-ciliated in that state at the time of his death, which occurred there, but owning lands and slaves in this state. The will was admitted to probate in Virginia, and subsequently in this state. The appellee, who is the widow of the testator, renounced the provisions of the will made in her favor, and claimed her dower in the realty and her share of the personalty according to law. That renunciation was made and recorded in Virginia, and in this state, as appears from the record. The point presented for determination, is, whether, as to the property in this state, the widow is entitled to participate according to our own laws, or according to the laws of Virginia, the place of domicil of herself and her late husband. It is admitted that by the laws of Virginia, the wife is entitled to only one third of the personalty for her life, whilst by the laws of this state, when as in this instance there are no children, she is entitled to one half in fee simple. To the parties therefore, the decision is of much importance.

It may be as well to remark in the commencement, that as to the real estate, there is no diversity of opinion ; it is universally conceded, that such estate is governed, in its transmission and descent, by the laws of the country in which it is situated. In relation to the distribution of personalty, the law, though formerly the subject of much controversy, appears to be well settled, that the law of the domicil of the decedent is in general to give the rule. It is not universal in its application, nor without some exception, yet as a general rule it has been established with great unanimity. The courts of England and America, the commentators upon their law, and the foreign continental jurists unite in propounding the rule as we have cited it. Story’s Conflict Laws, 403. Toller Ex. 387. 2 Kent Com. 2 Lomax on Exec. 222, and the numerous cases which they quote. The supreme court of the United States, and the highest tribunals of Massachusetts, New York, Pennsylvania, Maryland, Yirginia, Kentucky, Tennessee, Louisiana, North and South Carolina, have all either decided it, or referred to it as án indisputable maxim, which is incorporated into the law as one of its fundamental principles. In scarcely one has it been questioned. A rule, which has met with such general approbation, must have its foundations laid deep in the sense of natural justice of mankind, or address'itself with peculiar force to their feelings of propriety.

Indeed the counsel for the appellee does not contend against the rule, when applied to the distribution of personalty, but they attempt to draw a distinction between a claim for dower, and for a distributive share, and they rely upon the case of Duncan v. Dick, Walker’s Rep. 281, to sustain the distinction, ajad as having settled the principle in this state. They also endeavor to make slaves constitute an exception to the rule.

No authority is cited in support of the attempted distinction between a claim on a share of the personal estate made by the wife, or by a distributee. We have not been able to find any, unless it be the case in Walker, which - will presently be adverted to. The various statutes of distribution seem to place the rights of the two classes on the same footing, and the elementary writers regard them in the same light, so far as the nature and character of their respective interests are concerned. The extent of the interest is another matter. Toller, 370. 2 Lomax on Exec. 201. We find one case, in a court of high character for learning and ability, in which the law of the domi-cil was applied to the share of a widow in the personal estate of her husband. Smith v. Monroe, 1 Iredell, 346. This too was a case in which slaves formed a part of the estate, and the law of Mississippi, in which state the husbandffiad his residence, governed the disposition.

The case of Stegall v. Stegall, 2 Brock. 256, places the right of the wife to a distributive share of the personalty, on a ground totally distinct from dower, holding that by adultery and elopement, her right to dower is forfeited, but that her right to a distributive share is not thereby affected. We see no reason to draw a line between the widow and the distributee, in this respect, and we cannot lend it our sanction.

Neither do we find any authority which, in states where slaves are deemed and treated as personalty, justifies the attempted distinction as to them. Wheeler’s Law of Slavery, 184. We find various cases in which they have been subjected to the rule, in North and South Carolina, and in Kentucky. 1 Iredell, 346. Latimer v. Elgin, 4 Dy. 26. Sneed v. Ewing, 5 J. J. Marshall, 460, a very elaborate case. We shall not lead the way in the introduction of an exception in this particular.

We come next to the consideration of the case in Walker’s reports. If taken in the broad sense in which it is pressed upon us, by the counsel for the appellee, it stands alone in its exposition of the law upon this subject among the modern authorities, unsustained by any other court. We are fully sensible that the stability of jurisprudence requires an adherence to the decisions of our courts. If solemn judgments, once made, are lightly departed from, it shakes the public confidence in the law, and throws doubt and distrust upon its administration. Yet even this backwardness to interfere with previous adjudications, does not require ns to shut our eyes upon all the improvements in the science of law, or require us to be stationary when all around us is in progression.

When a single case stands unsupported, and rests upon an unsound basis or an erroneous application of principles, it is better, in the language of an eminent judge, “ to abandon it, than attempt to build upon it.” This court has heretofore felt constrained to depart from former decisions of its predecessors. Perhaps no genenal rule can be laid down on the subject. The circumstances of each particular case, the extent of influence upon contracts and interests which the decision may have had, whether it be only doubtful or clearly against principle, whether sustained by some authority, or opposed to all; these are all matters to be judged of, whenever the court is called on to depart from a prior determination. When all this has been done, if no particular mischief is likely to ensue, we believe it to be our duty to decide according to our own convictions of the law.

- With feelings of this kind, and with high respect for the judges who made the decision referred to, we have given it a very careful examination.

Questions upon the conflict of laws, were but a few years ago, comparatively little understood. Cases seldom arose, and whén they did, they were not examined with the benefit of those lights, which the researches and labors of modern jurists have thrown upon them. The first work on this subject in the English language, was written since this case in Walker was decided. Of late years, from the enlarged and easy intercourse among the communities which constitute the great family of civilized nations, they have greatly increased. But nowhere has this increase been greater than in the United States, because of the nature of our confederacy, the enterprising character of our citizens, and the general diffusion of wealth through the community. A fine writer has said, that the attention of our courts should now often be drawn to cases of this character, results from the political confederacy of the states, which while it supports among them close and extensive connections in business and policy, yet holds them sufficiently distinct and independent to call into continual exercise that rule which expounds and gives effect to contracts and other transactions, according to the state law, under which they are made to take place, but stops there and carefully distinguishes between construction and right on the one hand, and remedy on the other.” 4 Cowen, 510, n. It is not strange that the frequent discussions of this point, of late, should have rendered the doctrine more familiar than it was at the time that decision was made, or that the court should have mistaken a rule, then but rarely called into exercise, and having but little reference to the ordinary transactions of business.

We have seen with what general assent the rule has been adopted; it may not be out of place to give some examples of the estimate placed upon a refusal to adopt it. Lord Lough-borough said, 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 property is subject to the law which governs the person of the owner, both with respect to the disposition of it, and its transmission either by succession or by the act of the party.” Sill v. Worswich, 1 H. Blk. 690. The supreme court of North Carolina, in a recent case said, no country having a just regard for its own character, or the comity due to other countries, can refuse its authority to collect and apply the goods within her jurisdiction in the proper course of administration.” 1 Iredell, 346. The law of the domicil was declared to give the rule, and in the case of a widow whose husband’s domicil was Mississippi, and whose claim was for her share of her late husband’s slaves. The supreme court of Tennessee, in overruling one of their own decisions upon a kindred subject, lately said, but to this decision we cannot assent. The contrary doctrine is supported by a weight of authority altogether overwhelming, and it is based upon grounds of just reason and international convenience, to disregard which, would almost place a state without the pale of civilized communities.” Alsop v. Alsop, 10 Yer. 286. This doctrine commends itself to our sanction so forcibly that we cannot resist it, and we must of necessity, give up the case in Walker, if it is to be understood in the latitude contended for. But in one point of view the case is supported by other authorities, and limited to that extent, and to the actual state of facts then before the court, we have on this occasion no necessity to speak of it. The parties in that case resided in Louisiania, and in that state slaves are regarded as realty, or as immovable property. The counsel for the party who prevailed in that cause, no.w one of our senators in congress, and a most distinguished jurist, rested his argument in a great degree upon the want of reciprocity in the rule between the two states, where one regarded slaves as immovable, and the other as movable property. Under the law of either state, if the law of the domicil gave the rule, the citizens of Louisiana were to be the gainers. Mutual courtesy and international comity lay at the foundation of the rule. This principle is often acted oil in the intercourse of nations, and may be ■no more than just. Story Con. 357. But with this limitation the rule does not avail the appellee in this case, because in the state of her domicil, slaves are deemed, to be personalty.

In the same argument the distinction is drawn between the right of dower^and the right of distribution, but the cases cited arose under the custom of London. That custom adheres to the persons of its freemen, into' whatever part of the kingdom they go, and it furnishes no rule for the construction of the statute of distributions, because it is excepted from the operation of - the English statute. See Pipon v. Pipon, Ambler, 25.

The decision in Walker carries the rule beyond the point of reciprocity. It rests upon a distinction drawn between the claim of the widow op the personalty, and the claim of the distributee. 'We have already stated that we could find no authority for this distinction in the general common or statute law, as contradis-tinguished from the civil law, and the custom of London. The statutes of distribution, ours among the number, treat her claim as a claim to distribution, and it is so treated by the writers on this branch of the law. 2 Lomax on Ex. 201. The only point of difference in the succession to personalty is, that the wife cannot be excluded by the will 'of her husband from all share in it. But tliis is not a question of exclusion, it is only a question as to the law by which the succession is to be regulated.

The court in that case says “ that the statute is not confined to the widows of persons resident in this state at the time of their death,” and that they cannot make an exception. To do so “ would be rather altering the law, and making it conform to principles of national policy and international comity, the proper province of the legislature, than giving a judicial construction to the statute, according to its true intent and meaning.” This view though in the general correct, we think, was carried too far in this instance. The state has no doubt the right to govern and regulate all the property within its limits, without regard to the residence of the owner. It has the right to prohibit and exclude the operation of the lex domicilii, if it chooses to do so. But when no such prohibitory laws exist either express in their terms, or of most manifest intent, the law of the domicil governs both as to transfers inter vivos and testamentary. Story’s Conf. 397. 5 J. J. Marshall, 477. Milne v. Morton, 6 Binney, 361. The reason of this, according to Chief Justice Abbott is, “not that the law of England gives way to the law of the foreign country; but that it is part of the law of England, that personal property should be distributed according to the jus domicilii.” Birtwhistle v. Vardell, 6 Barn. & Cres. 438. 11 Eng. Com. Law Rep. 275. According to another eminent jurist, “the law of England furnishes this principle, and then withdraws altogether, leaving the legal question to the exclusive judgment of the foreign law.” Sir William Scott, in Gordon v. Dalrymple, cited 4 Johns. Ch. 472. But be the reason what it may, the doctrine is firmly established. Were we to refuse to follow it, other states might justly refuse to allow the benefit of it to ns, because of the want of reciprocity. With all our respect for the court which decided the case in Walker, we feel constrained to abandon it, and adopt in this instance a different rule.

It is insisted in the argument that if the rule is applied to slaves, in this country much mischief may result from it. That if a person having his domicil in a non-slaveholding state, and owning slaves here, should die, the slaves would have to be ■emancipated despite our own laws. We do not think this consequence would follow. An exception to the general rule, as firmly settled as the rule itself, is that the international law or law of comity, is not permitted to ■'operate within a state to the prejudice of the government in opposition to its settled policy, or to the interest of its citizens. Story, 30. This consequence could be avoided too, if necessary, by limiting the rule by the principle of reciprocity, and by giving force to it, as to this species of property, only in reference to the slave states. As Virginia is one of that number, the question in this respect, cannot arise in the present case, and we may safely leave it to be determined, when the exigency shall arise. That precise question, however, has been before the courts of Kentucky, in the case of a person who died in Indiana. The court gave effect to the laws of Indiana, saying that the representative might sell the slaves, and distribute the proceeds according to the laws of that'state. Sneed, v. Ewing, 5 Marshall, 482.

There is a case in 5 Peters, 518, of Smith v. Union Bank of Georgetown, which produced some difficulty in our minds. It relates not to the distribution-of an estate, but to its administration in the payment of debts, but the expressions used were so broad and so strong, that they'were calculated to throw doubt over the application of the law of the domicil to the distribution of an intestate’s personalty. Bat upon a careful search we could find no other case in that high tribunal holding similar language, and the cases both going before, and coming after it, adopt the law of the domicil, in reference to distribution. 3 Cranch, 323. Harrison v. Nixon, 9 Peters. The doctrine in the case in 5 Peters, when confined to the facts of the case before the court, creates no embarrassment, and the question may be considered at rest in that court.

Any other rule than this, giving effect to the law of the domi-cil, 'would sometimes work injustice, and prove the source of difficulty in its practical operation. A widow, like a distributee, is only entitled to her share of personalty, after the payment of the debts. In this case, the estate is found in four different states. It would not be easy to,adjust the share in each state, af^er the payment of debts, for in some of the states the debts' might exceed the effects therein. The administration in the state of the domicil is regarded as the principal one, in the others only as ancillary. Before distribution can be rightfully made, all the debts everywhere must be paid. Creditors in each state have a right to be paid, before the funds are withdrawn therefrom, and to be paid according to the priorities and preferences existing by the laws of such state, so far as the assets in that state go. See Hanry v. Richards, 1 Mason, 381. Davis v. Head, 3 Pick. 128. 6 Peters, 518. Now suppose we give effect in favor of the widow, to the laws of this state. Suppose farther, that the debts in Kentucky largely exceed the effects there, and that the unpaid Kentucky creditors sue the executor in "Virginia, and throw the burden upon the estate there, then manifestly the widow is benefited at the expense of the other distributees, who have obtained no preferences here. She would get a share not reduced by the payment of any debts out of this state. Wé might go farther, and suppose the Virginia estate to be exhausted by the payment of the debts, and the injustice would then become more glaring.

We think, therefore, the rule adopting the law of the domicil as the right one to govern distribution, to be more just and equitable. By that rule, after the payment of all the debts, wherever found, the surplus of the whole personalty, wherever existing, is subjected to one uniform law, and all claimants by succession satisfied according to that law. This brings about equality, which in the absence of prior rights is equity. There is one harmonious and consistent rule, instead of rules as numerous as the states, in which the property is found.

All the parties have urged us to give our opinion upon the general principle involved, without regard to any technical objections ; this we have done with confidence, because after a careful examination, we have found the rule to be clearly settled.

The decree of the probate court of Washington county, having been founded on different principles, we hereby reverse the same. And we declare ilie petitioner to be entitled to a share in the personal estate of her deceased husband, according to the laws of Virginia. By the agreement of counsel, filed in the cause, it is admitted that she is entitled by those laws to one third of the slaves for life, and to one half of. the other personalty absolutely, in both instances subject to the payment of debts. The cause is remanded for farther proceedings to be had in pursuance of the terms of this order.

In the order regarding the real estate, there is no error, and the same to that extent is affirmed.

The rule of law in this case having been involved in uncertainty, and this contest having been to some extent for the benefit of all the parties interested, the court directs that the costs incurred in the probate court be paid by the executor, out of the assets, but the costs of this court by the appellee.

Decree reversed.  