
    Succession of Alice Packwood—Samuel Packwood, Executor, Appellant.
    Slock in a bank here secured on real estate, acquired before the removal of the spouses from this State, having the same situs with the immoveable on which it is a charge, and being transferrable only on the books of the bank situated here, whether considered as a moveable according to art. 466 of the Civil Code, or an immoveable under art. 463, forms part of the community property.
    Where a husband and wife, married in another State, remove into this, the laws establishing and regulating the matrimonial community of gains will operate upon the property acquired during their residence here: and where they subsequently remove from this State, its laws will cease to operate upon property afterwards acquired here, such acquisitions becoming the property of the party to whom they may belong according to the law of the new domicil of the spouses.
    The executor of the will of one who was domiciliated and died in another State, deriving his powers from a Probate Court of this State, administers only on the property of the deceased situated here ; and that part of the estate of the deceased only, is under the control of the courts of this State.
    The removal of the husband and wife into another State, does not vest in either spouse any distinct or separate title to one individual half of the community property previously acquired here. So long as the marriage continues, the husband retains his power over the property of the community; he has a right to enjoy its fruits ; it is liable for his debts contracted after, as well as before the change of domicil; and he may sell it, if the sale be not fraudulent. On the death of the wife, one half of the property still in existence, acquired during the residence of the spouses here, will vest in the heirs of the wife, subject to the payment of the debts contracted by the husband during the marriage.
    The property found at the dissolution of the marriage, constitutes the body of ac-quests and gains.
    To annul a sale of community property made by a husband, it is not enough, under art. 3373 of the Civil Code, to show that it was simulated; it must be proved to have been fraudulently made, with a view to injure the wife.
    A husband and wife, between whom a community of acquests existed in this State, having acquired a plantation which formed part of the community property, subsequently removed into a State where the common law prevails. After their removal, the husband and wife sold the plantation. After the death of the wife, the husband and the purchaser cancelled the sale ; the notes given for the price were returned to the purchaser, and the plantation re-conveyed to the husband. The husband having qualified in this State as executor of his wife, on an opposition to an account filed by him, made by the heirs of the wife, claiming that the retrocession should enure to the benefit of the community, or that the husband should account to the heirs of the wife for one-half of the price; Held, that on the retrocession, the title vested in the husband alone ; and that if the wife had any interest in the notes, the executor is not hound to account for it here, as both spouses lived in another State at the time, and the fund does not belong to the community.
    Where real estate belonging to a community existing between a husband and wife, is sold by the husband, and the spouses afterwards remove from this State, and the wife dies out of this State, the husband will not be accountable here for the price, if not existing here at the death of the wife. Per Curiam: The husband is no more accountable for that transaction than for the price of any other property sold by him before the dissolution of the community.
    Appeal from the Court of Probates of New Orleans, Ber-mudez, J.
    Samuel Paekwood, and his late wife, Alice, were married in the state of Connecticut, about 1796 or 1797. In 1804, they removed to this State, where they acquired considerable property in plantations, slaves, lots and houses in the city of New Orleans, &c. In 1836, they removed to the city of New York, where they resided until the death of the wife, in 1840. The husband still resides there. Previously to their removal from this State, they sold, in February, 1836, one undivided half of a plantation, and certain slaves, in the parish of Plaquemine, to their son, Theodore J. Paekwood. On the 23d of May, 1840, Samuel Pack-wood and his wife sold the other half of the plantation and slaves to one Stewart, for the sum of $100,000, payable at one, two, three, four, five, and six years, for which the notes of the purchaser were taken, reserving a mortgage to secure their payment. The sale and mortgage were recorded in the parish of Plaquemine on the 12th of November, 1840. On the 27th of July, 1840, Mrs. Paekwood died in New York, having appointed her husband executor of her will, and he qualified as such in the Court of Probates of New Orleans, in December, 1841. On the 27th of July, 1843, Stewart, in consideration of one dollar, and the return of his notes given for the price, conveyed the portion of the plantation and slaves purchased by him to Samuel Pack-wood. The statutes and reports were admitted as evidence of the law of New York.
    The executor having prayed for the homologation of an account presented by him, Eliza Hearn Dorsey and Frances Holly Nevil, two of the heirs of Mrs. Paekwood, opposed the ho-mologation. They allege, that the executor has not accounted for the undivided half of the plantation and slaves pretended to have been sold to Stewart. They allege, that the sale was simulated, and made with the view of depriving them of their rights to said property. They aver, that the property has been since retroceded to Paekwood ; that such rescission or retrocession must enure to the benefit of the community existing between Pack-wood and wife, or to the benefit of the heirs of the wife, even though it should be held that the original sale was a valid one. And though the sale should be maintained, and the retrocession declared not to enure to the benefit of the opponents, they allege that the executor will still be bound to account for the price. They pray, that the executor may also be ordered to account for the crops made on said plantation during the years 1840, 1841, 1842, and 1843.
    The account was also opposed on the ground, that the executor has neither charged himself with, nor in any manner accounted for, a sum of $90,000, the price of the one-half of the plantation and slaves sold to T. J. Paekwood. The opposition alleges, that this amount has been received by the executor since his appointment, or is still due by the purchaser, and that it forms a part of the community property. The homologation was further opposed on the ground, that the executor had not accounted forcer-tain shares of Union Bank stock. The commission paid to an agent for the collection of rents, was also objected to.
    The court of the first instance, declared the sale to Stewart to have been simulated, and the property to belong to the community ; the executor was ordered to account for the crops made on the portion so sold during the years 1840, 1841, 1842, and 1843 ; the bank slock was held to belong to the community ; and the claim for commissions, paid for the collection of rents, rejected. Prom this judgment the executor appealed.
    
      Lockett and Micou, for the appellant.
    The principal ground of opposition rests, First, upon a charge of fraud and simulation in a sale made by Packwood and wife to D. Stewart. Second, upon the assumption that if the sale was valid, the executor is bound to account for the price received for the property as assets of the succession.
    1st. As to the alleged fraud : The opponents are the children of the executor, upon whom their opposition charges the fraud. The la.v will not permit such a charge to be made in court by children against their parents. Civ. Code, art. 233. Caldwell v. Hennen. 3 Robinson, 20. The opposition is in effect an action, by the opponents against the executor, which they hope to bring under the provisions of article 2373 of the Civil Code. That article gives to the wife an action against the heirs of the husband. It does not give to the heirs of the wife, an action against the husband himself. The wife herself could never sue the husband under pretence of fraud in disposing of the community property. Tourné v. His Creditors, 6 La. 463. If her heirs could bring such a suit, they would have greater rights than the author from whom the rights were derived. The action of the wife descends to her heirs; consequently her heirs may sue the heirs of the husband, but not the husband himself. If the law meant to give a right of action against the husband himself, it would have been so expressed. We must conclude that the language was not carelessly adopted, and that the law intends that the husband shall never be subjected to such a charge in reference to the community property. Smallwood v. Pratt, 3 Rob. 132. The clause of art. 2375, which permits this action, is not found in the Napoleon Code. Code Nap. 1421, 1422. It is borrowed from the Spanish law. Code of 180S, p. 336, art. 66. Dixon v. Dixon, 4 La. 192. The Spanish law would not permit such an action against the husband. It had too high a regard to the peace of families. It took too great pains to inculcate respect from children towards their parents, to permit a suit for fraudulent alienation of property, which the father himself may have acquired by his own industry.
    The record contains no proof that any fraud was committed.
    With regard to the sale to Stewart, we simply learn that it was made, without any circumstance being shown to cast suspicion upon its fairness. Fraud is never presumed ; much less can it be so, under article 2373, which requires the wife alleging the fraud satisfactorily to prove it. As to the re-sale by Stewart to Packwood, it is abundantly accounted for. Stewart had fallen in arrears in his payments. He had got into a serious controversy with T. J. Packwood, who refused to continue as manager on joint account, and had sued for a partition. Packwood himself had sued Stewart for the arrears due. Here is abundant reason to show why Stewart should wish to sell, and Packwood to buy, without any suspicion of fraud being thrown upon the original sale.
    2d. The sale being valid, is the executor obliged to include the price as part of the community'? As the same question arises under the third ground of opposition, we will consider them both together. Both sales being made in the lifetime of Mrs. Packwood, and with her concurrence, stand upon the same principle. Of course the heirs can claim no property except that which belonged to the community at the moment of its dissolution. Any part of the price of this property previously paid, no longer remained a debt due to the community. The part of the price unpaid, at the death of their testator, is, therefore, the true subject of controversy. The parties were then and before residents of New York. The credit, or right of action to recover the price of property, has no physical or visible place. It is an incorporeal right, and must be considered as existing at the place at which the law gives it. Civ. Code, art. 466. Story’s Confl. of Laws, § 362. Bonneau v. Poydras-, 2 Rob. 15, 16. Stetson v. Gurney, 17 La. 166. Longbottom’s Executors v. Babcock, 9 La. 44. Hooke v. Hooke, 14 La. 27, The place, or situs which the law assigns to moveables generally, and especially to credits, is the domicil of the owner- Story, § 362. Consequently these credits must be regarded as existing in New York, and net in Louisiana. They must consequently be administered and distributed there, not here. This is the language of international law. 1 H. Blackstone, 131, 132. Harvey v. Richards, 1 Mason, 411. 3 Pick. 128. 2 Kent, 344. Foelix, p. 62, quoting a great number of civil law writers. Livermore, p. 128, § 212. Story’s Confi. of Laws, § 146, 159, 171,177, 178, 184. This court has never adopted the opposite opinion. In the cases of Saul v. His Creditors, Cole v. Cole, and Gale v. Davis, the insolvtnt or intestate resided in Louisiana; consequently there was no law of distribution to govern save that of Louisiana. The question in those cases was, whether certain property acquired while the parties lived in Louisiana, was community property. The principle that the law of the owner’s domicil governs as to all rights of heirs so far as moveables and credits are concerned, has been repeatedly recognized. This court has said, that the laws of Louisiana govern only property found here. Cole’s Wife v. His Heirs, 7 Mart. N. S. 51. Saul v. His Creditors, 5 Mart. N. S. 609. That moveables here, belonging to foreign owners, must follow the law of the owner’s domicil.— See Day and Wife v. Thibodeaux, 5 Mart. N S. 48. Gravillon v. Richards, 13 La. 298. Gamier v. Toy dr as, 13 La. 177. Succession of Marye, 2 Rob. 433. Succession of Robert, 2 Rob. 436. Succession of Packwood, 9 Rob. 43S.
    The credits or debts due by Stewart and T. J. Packwood at the date of Mrs. Packwood’s death, being in contemplation of law in 3New York, do not come within the operation of the community laws of Louisiana. Whatever rights the laws of New York give to the wife, or her heirs, must be demanded and enforced there. The courts of New York will fully protect the rights of the opponents, and it is not necessary for the courts of Louisiana to decide upon any thing save the distribution of the estate administered here. 2 Story’s Equity, § 457, 241. 3 Merivale’s Ch, Rep. 67. Bourcier v. Lanusse, 3 Mart. 584.
    
      A. Hennen, on the same side. The rights in the community of property between S. Packwood and wife, must be determined according to the laws in force, when they removed from Connecticut to Louisiana; that is, the Spanish law, as then in force, prior to the Civil Code of 1808. Dixon v. Dixon, 4 La. 183. By the Spanish law, the wife could sell to her husband, and renounce, before, during, and after the dissolution of the marriage, her ga-nanciales, or rights in the community property. JJAbbé’s Pleirs v. Abat, 2 La. 553. Husband and wife may change their domi-cil, for the purpose of making a valid donation, inter vivos, to each other. Potbier, Donations entre Mari et Femme, Nos. 18, 22. And such donations are not a fraud on the law. lb. Donations of the community properly, may be made by the husband in many ways, during the marriage, so as not to be considered fraudulent against the rights of the wife. Pothier, Communauté, Nos. 480,483, 4S7, 483. Gomez, Law of Toro, 50, No. 73. 1 De-nisart, 621, i; Conquests.”
    The Spanish law is diametrically opposite to the French law, with respect to the effect of the domicil on the marriage contract. By the French law, the domicil governed as to the future acquisitions of the married couple, wherever made, or wherever they might remove. On the contrary, the situation of the property controlled its character, whether community or not, according to the Spanish law. This was the ground of the decision in the case of Saul v. His Creditors, (5 Mart. N. S. 569,) in conformity with anterior decisions of this court, and in perfect concert with the Spanish jurists. If the principles of the French jurisprudence should be applied to this cause, as contended for by the counsel of the heirs, no community would exist, and nothing could be granted to them. The community is unknown to the laws of Connecticut, where S. Packwood was married. The aj> gument of the counsel of the heirs is then suicidal. See 1 Burge, 619, 620. 1 Froland, 314.
    There is nothing in the laws of Spain which prevents the husband from selling the community property, without the consent or approbation ot the wife. 1 Febrero, 239, No. 10. He could convert it into money fairly, and remove with it into any other country, just as he could change his domicil. 3 Merivale’s Rep. 67. 2 Froland, 1401. Foelix, § 67.
    Mrs. Packwood removed voluntarily with her husband, from Louisiana to New York, and could change (he law respecting the community, just as she did by removing from Connecticut to Louisiana, and forming the community in the latter state. 2 Poullain Du Parc, 3, 4, No. 2. Mrs. Packwood voluntarily signed the bill of sale of the property in Louisiana, and thereby precluded her heirs from contending that such sale was a fraud on their rights.
    Mrs. Packwood having died in New York, her domicil, all the moveable property belongingto her estate, must be administered and distributed according to the laws of that state. No account can be here required of the testamentary executor, of the money which came into his hands in the state of New York. See Foelix, on International Law, § 37, who quotes thirty different writers in support of his propositions. To them it would be easy to add thirty more. Among the most striking, see Casarpgis, 4 vol. p. 45, Nos. 63-66, Chopin, on the Customs of Paris, liv. 1, tit. 1. No. 31. 2 Froland, 1294. 1 Bullenois, 340. 2 Kent’s Com. 428, 432. Matienzo, 256, No. 30.
    The community of acquests and gains, was unknown to the Roman law : and though common to all the continental nations of Europe, the laws of Spain introduced many provisions differing from those of France and other nations. See 4th Febrero, 212, chap. 4, § 1, No. 1. 1 Tapia, 96, No. 2. Law of Estilo, No.
    203. 5 Theatro de Legislación, 181. Fuero Juzgo, lib. 4, tit. 2,1. 17. Fuero Real, lib. 3, tit. 3,1. 3. Novissima Rccop. lib. 10, tit. 4,1. 3. Consequently by the laws of Spain only, and by her juridical writers, must this case be decided. These writers and laws, as above quoted, decide the question in favor of S. Pack-wood. See Gomez, on the Laws of Toro, 60 and 50, No. 67. Matienzo, p. 254, No. 60. Partidas, lib. 4, tit. 11,1. 5. Pan-dects, lib. 24, tit. 1,1. 5, § 13. 1 Asso y Manuel, 96, lib. 1, tit. 7. Cervantes, on the Laws of Toro, p. 123, No. 80.
    There is no evidence to support the allegation of fraud against S. Packwood. The allegation of fraud, and the proof of it, cannot be admitted against the plaintiff. The law forbids the children to make the allegation against the father. Partidas, lib. 3, tit. 2,1.3. Pandects, lib. 5, tit. L 1. 4.
    
      It abundantly appears, that the sale of the property in Louisiana by S. Packwood, and the removal of the proceeds to New York, were legal and just; and the heirs of Mrs. Packwood have no right of action against their father.
    ■ Wilde, for the opponents. The sale from Packwood to Stewart was simulated, and being contrary to public policy and a violation of positive law, it is absolutely void. Civ. Code, art. 2373. Such was the Spanish, French and Roman law. Recopil. law 5, tit. 9, book 5. Nuov. Recop. law 5, tit. 4, book 10. Febrero Capitulo 1, 22, No. 24, vol. 1, p. 201, ed. Madrid, 1783. 1
    Toullier, 391, 394. 2 lb. 464. Pothier, Communauté, Nos. 471, 472. Code Nap. arts. 1422, 1423. Maclceldey, Dr. Rom. § 359, (n. 12,) 502. Zach. Dr. Franc, vol. 3, p. 443, n. 4. lb. p. 437, 448, 517. Tourné v. Tourné, 9 La. 450. Smallwood v. Pratt, 3 Rob 133. 3 Partidas, tit. 7, law 15.
    Packwood and his-wife having removed into this State, and acquired property here, their rights are precisely the same as if ihey had married in Louisiana, making previously a marriage settlement in which they expressly agreed to be governed by the regime of legal community. Bryan v. Moore, 11 Mart. 26. Saul v. Creditors, 5 Ib. N. S. 568. Tourné v. Tourné, 9 Rob. 453. Rowley v. Rowley, 19 La. 538. Dixon v. Dixon, 4 La. 190, 191. Murphy v. Murphy, 5 Mart. 83. Cole’s Widow v. His Ex’r, 7 Ib. N. S. 42. According to these authorities it is the law of the State, in which ihe parties were actually domiciled when the property was acquired, that determines whether there shall be a community or not: and when such community arises, as a legal incident, it has the effect of an actual contract as to all acquisitions within that state. Among the continental authors who sustain the doctrine of a tacit contract in such cases having all the effect of an actual marriage settlement, are Du-moulin, Bouhier, Hertius, Pothier, Merlin, and other authorities quoted in Story’s Conflict of Laws, § 146 to 157.
    “ La loi n’impose pas aux fu.tu.rs époux V obligation derégler leurs conventions matrimoniales par un contrat de manage. En l’absence d’un pareil contrat, les époux sont censes avoir voulu adopter com me regles de leurs intérets pécuniers les dispositions du code sur le régime de la communauté légale; et les droits que ce régime attribue a chacun d’eux leur sont ac-quis d’une maniere aussi irrevocable que s’ils les avaient établis par une convention expresse. Zach. Dr. Fr. tom. 3, p. 393, ed. Strasb. 1839, liv. 1, 2d partie, §501. Lorsque les époux ne ré-glentpaspar des stipulations for melles, leur s conventions ma-trimoniales, les dispositions légales en vigeur a, Vépoque oú le 
      
      mariage est celebré, foment a leur égard un veritable contrat fondé sur leur volonté présumée [epr. art. 1387. et § 33.] et les droits qvi en déconlent sont tout aussi irrevocables que sHls. avaient été express&ment. stipules.'” Zach. Dr. Fr. introd. § 30. tom. 1, p. 53, (a. 6,) quoting Sir. Reg. xiv. 1, 132, Sir. xxxiii. 2. 298. Ib. 489, and other authorities. The only difference between the jurists of France and Holland, and the courts of Louisiana on these points is, that the former bold that the implied or tacit contract, establishing a community, follows the parties wherever they go and regulates even their acquisitions in every new domicil; while the latter maintain, that the tacit agreement is to be regarded, as extending only to their acquisitions in the country where the community of property prevails, and that upon a change of domicil, to a country where it does not exist, all future acquisitions are regulated by the law of the new domicil. This is clearly stated in Saul v. His Creditors, and is shown to be the law of Spain, in force here before the Codes.
    The almost universal concurrence of opinion, on the continuance of the community, is concisely stated by Burge : “ According to the general doctrine of jurists, the property of the husband and wife, whether it be acquired before or after the change of of domicil, continues subject to the law of community, notwithstanding they have removed to another country where that law does not exist. The change of the domicil neither divests them of any right which they had acquired under the law of their matrimonial domicil, not confers on them any right which they could not acquire under that law.” “ If the law of community existed in their matrimonial domicil, they will not cease to be in community although they should have acquired another domicil in a country where no law of community was established ; and, on the other hand, if there was no law of community in their matrimonial domicil they will not become subject to the law of community, because they have taken up their domicil in a country where that law does exist.” “ The concurrence,” he continues, “of jurists is so general in this doctrine, that there are few who have dissented from it,” and he quotes a host of authorities at p. 619, 620. 1 vol. “ In the opinion of the greater number of jurists, not only the property which had been acquired by the husband and wife before their removal, but even that acquired in their new domicil, is subject to the law of their matrimonial domicil, and their opinion has been sanctioned even to this extent by the decisions in France.” 1 Burge, 620, 621.
    But it is contended that the matrimonial domicil of these parties was Connecticut, where there is no community. Our answer is the law of Louisiana has established the law of the place of actual domicil during the acquisition, as the one settling the rights to the property acquired. “ Though it was once a question, say this court in Gale v. Davis, it seems now to be a settled principle, that when a married couple emigrate from the country where their marriage was contracted into another, the laws of which are different, the property which they acquire in the place where they have moved is governed by the laws of that place.” 4 Mart. 649. And in Cole’s Widow v. His Heirs, 7 Mart, N. S. 43, 44, the court say: “ We then determined [in Saul’s case] that the law, or, to adopt the language of the jurisprudence of the continent of Europe, the statute which regulated the rights of husband and wife was real and not personal, that it regulated things, and subjected them to the law of the country within which they were found. It follows then as a consequence that property within the limits of this látate must, on the dissolution of the marriage, be distributed according to the laws of Louisiana, no matter where the parties reside: because viewing the statute as real, it is the thing on which it operates that gives its application, not the residence of the person who may profit by the rule it contains.”
    Let us inquire, then, what was the character of the estate thus acquired : in other words, what is the nature and extent of the wife’s interest in community property ? Our adversaries say it is a mere expectancy, a possibility only, not an estate or interest. But the wife and her heirs have an action against the husband for any part of the community property fraudulently alienated in prejudice of her rights. Civ. Code, art. 2373. Tourné v. Tourné, 9 La. 458. Smallwood v. Pratt. 3 Rob. 133. Zacha-rias says — La femme est méme durant le mariage co-proprié-taire actuelle de tout ce qui compose le fonds commun. 121. Néanmoins le mari est tant que dure la comrnunauté réputé propnétaire exclusif de ce fonds au regard de ses créanciers et de ceux de sa femme. — Zach. Dr. Fr. tom. 3, p. 408, ed. Strasb., 1839, liv. 1, 2 partie, § 505. To this is appended a note : “ Duranton 14, 96. Balhur, 1 64. M. Touillier, 12, 75, et suiv. soutiant, en invoquant l’opinion de Dumoulin, Consuetu-dines Parisienses, § 37, No. 1 Nova, Consuet a dines et § 109, No. 3, Yeleres Cons, et de Pothier No. 3, que la femme n’est point, durant la comrnunauté co-propriétaire du fonds comm,un, et qu’elle n’a qulune simple expectative de co-propriétaire, ex-pectative qui s’évanonit on se realise selon qu’elle accepte la com-muríante on quelle y renonce. Mais Dumoulin, et Pothier, qui puraissent d'ailleurs avoir eu principalement en vue les rapports des époux envers les tiers, so?it loin de s’exprim.er stir la question d’une maniere aussi explicite que le fait M. Toullier. La th'ése que soutieni cet auteur est contraire 
      
      au langage de nos anciennes coutumes, et d celui du Code Civil. Áussi s'est il cru oblige de critiquer comme impro-pres ces locutions 1 la communauté commence au jour dn mariuge‘ la communauté se composet activement et passivement, &c.’ et surtout celle-ci la communauté se dissout. D’ail-leurs si la femme rCétait pas pendant la communauté co-pro-priétaire actuelle des Mens qui en dependent, on ne compren-drait pas comment les engagement qu’elle contracterait seule avec la simple autorisation du mari pourrait Her la commu-nauté, mém,e au cas que la femme y ren oncer ait.”
    
    Our antagonists maintain, that the absolute dominion which the husband has during the marriage over the community property, is utterly inconsistent with the idea of any vested interest in the wife. Let us hear Zacharise on that point: “ Dire que le mari est seigneur et maítre de la communauté, ce n’est pas dire que ■la femme r¿ait jusqu’ á la dissolution de la communauté qtúune simple expectaiive de copropriété. La qualification de seigneur et maítre de la communauté rila, en ce qui concerne la femme, d’autre objet, que de marquer Vétendue des pouvoirs qui appar-tíennent au mari en vertu du mandat que la loi lui confére comme chef de Vunion conjúgale. [Chap. 505, ni. 2.] C’est settlement en ce qui concerne les créanciers du mari et de la femme que ceite qualification doit étre entendue dans un sens absolu — Zach. § 509, 2 Pi. Lev. 1, torn. 3, p. 437, (n. 1,) ed. Strasb. 1839. Nor is there any thing so novel or incongruous in the idea of present dominion and the power of disposition in one person, while the proprietary interest reposes in another. It is precisely the Roman law with respect to the dowry. “ D’apres Copinion la plus généralement adoptéc autrefois par lesjuris-Gonsultes, le mari devient vrai propriétaire de la dot si elle lui a été taxée, venditionis causa ; dans tout autre cas, la vraiepro-priété {dominium, naiuralé) est conservée a la femme, mais ceite propriété repose pendant le mariage, et le mari en a Vexercise.” —Mackeldey, Droit. Rom., p. 268, n. 1 to § 520.
    ■ The nature of the wife’s interest in the community came up in the case of Dixon and Dixon, 4 La., 191. Porter, J., in delivering the judgment of the court, says: “We are aware the prin-pies here recognized do not correspond with the doctrines taught by the highest authorities in the French law, by Dumoulin, Po-tliier and Toullier. They hold that the wife has no right whatever, until the marriage is dissolved, or the community otherwise terminates. That she has nothing but a mere hope or expectancy. Their law on this subject, ancient and modern,- and the opinions of their eminent jurists, are collated and examined by Toullier in the 12th volume of his Droit Civil Francois. A reference to him will show what difficulties attend this question, and how embarrassing these jurists find the arguments, which an opposite view of it presents. But it is not for us to deny, or even doubt, the correctness of their conclusions in relation to the law of France. It is sufficient, that it is not the same as ours, and that the difference is marked on this very point. The Napoleon Code does not contain the provision found in the Code of Louisiana, that if the husband alienates during coverture, the ■ acquests and gains with the intention of injuring his wife, she may at his decease bring an action to set aside the alienation. The laws of Spain seem to have furnished that doctrine to the jurisconsults who prepared our Code. And the exercise of such a right does appear to us utterly opposed to the principle, that the wife has no interest in the property until the community is dissolved : for if she has not, how can she maintain an action to set aside the alienation? Who ever heard of a suit, the sole basis of which was that the hopes and expectations of the plaintiff had been disappointed and defeated by the acts of the defendant? But admitting that the wife’s title to the property did not vest until the community was dissolved, still her right to have an equal portion of such property acquired during coverture, as might be found at its dissolution, existed. It grew out of the marriage; was the law at the time the marriage was entered into, and no subsequent legislation could rightfully take it away. There is an able and learned note of Paillette on the 1437th art. Code Nap., in which this question is incidentally treated, and in which the writer thus expresses himself: Du moment oú le manage est contracts, la nommunauté convenue expressement, ou ta-citement acquiert une existence et une forme irrevocable. Les rapports avec les Spouxsont a jamais determines. — Toullier, vol. 12. Febrero, p. 1, cap. I, § 22, No. 240.” The correctness of this doctrine has recently been vindicated, even with regard to the French law, by Zachariae, confessedly its most able modern commentator. Nor can it be contended for a moment, that the Spanish law was different, for we find Judge Derbigny, in delivering the opinion of the court in Gale v. Davis, a case arising •under that law, declaring “The title of the wife to half the ac-quests and gains is that of an owner, not that of a mortgagee.” The article on which the court holds she has a property, is borrowed from the Spanish law.
    It is demonstrated, that Alice Packwood’s interest’in the community property was an actual, vested, legal estate, not a mere expectancy. This interest undoubtedly continued as long as the spouses remained in Louisiana. The next question is — Was it her separate estate, in the common law sense of the term ? This point cannot admit of much doubt. According to the common lawj the existence of the wife is merged in that of the husband during the' coverture; they are one person in law, and she can have no separate property unless it has been secured to her sole use by marriage settlement, ante or post-nuptial, or by articles, or agreements in consideration of marriage. Our law, on the contrary, proceeds on precisely the opposite assumption, that husband and wife are distinct persons, with different interests, and separate property. Now the wife’s interest in the community is by our law so entirely her separate estate, that upon death or separation, she may sue for and recover it. Art. 2404. So entirely separate, that if she dies first her heirs succeed to it. So separate that she cannot even give it to her husband by testament ox-donation, to the prejudice of her heirs. So separate, that even during the coverture the husband cannot alienate it fraudulently to the prejudice of her rights. So separate, that not only she but her heirs or even her creditors may renounce the community after her death, and so acquire the right to recover her effects whether dotal, extra-dotal, hereditary or proper. Arts. 2379, 2380. So entirely separate, that her separate creditors may attack her renunciation as made in fraud of their rights and accept the community themselves. Art. 2390. It is impossible to deny therefore, that Alice Packwood’s interest in the community was not only a vested estate, but also her separate estate, in the full common law sense of the term.
    Was this vested separate estate divested by her change of domicil ? That question has already been incidentally answered in the quotations from Burge, and from the decision of this court in Dixon v. Dixon. The change of domicil must be regarded either as the act of the parties, or the act of the law. Now the parties can make no change in their marriage settlement : and the law of community of the place where the acquests have been made, has been shown to be precisely equivalent to an actual written marriage settlement, in which all the provisions of the law of that country were word for word inserted. Regarded as the act of the parties, change of domicil can have no effect on the rights acquired by marriage contract. “ Les actes par lesquels les epoux ont pendant le mariage modifié leurs conventions matrimoniales sont frappés de nullité.” Zach. Droit Fr. tom. 3, p. 369, 2 pe. liv. 1, § 603. Les époux ne peuvent pendant la durée du mariage ou de la communauté transiger sur leurs conventions matrimoniales, <Spc. Zach. tom. 3, p. 143, § 440. So also is the common law. “ A man cannot grant any thing to his wife, nor she to her husband, nor enter into contract or covenant with him.” Story Confl. Laws, 1st ed. p. 124, § 133.
    “ La prohibition de modifier les conventions matrimoniales apres la célébration du mariage, Vétend aux donations conte-nus dans le centrad de mariage el s’applique nonseulement aux 
      
      changemens que voudraient faire les époux entre eux, máis encore a ceux queferait Vun des époux avec des tiers qui auraient été parties au contrat. Elle est tellement absolue qu’elle exclut mime les modifications qui seraient apportée aux conventions matrimoniales par un acte de derniere volonté, ainsi que les actes par lesquels les parties declareraient vouloir simplement fixer le sens de quelque clause obscure ou ambigue du contrat de mariage. Zach. Dr. Fr. tom. 3, p. 397; and he adds in a note: “ En effet, la prohibition établie par Varticle 1395, est fondée d?une part sur la nature mime du contrat de mariage, qui in-téresse non seulement les époux mais tous ceux quiy onl été parties, ainsi que les enfans a naitre du mariage.” Ib. (n. 12.) Such too is the law of England. Richards v. Chambers, 10 Yes. Jun. 580, 581. Seaman v. Duill, ib.
    Regarded then as the act of the parties, a change of domicil cannot affect the rights vested by the marriage contract. Considered as the act of the law, it is equally without effect. If the marriage were dissolved by the sentence of a court of justice, the rights of property of the parties would not be in the least affected. Zach. Dr. Fr. tom. 3, p. 240. Not only the change, of domicil, whether regarded as with the wife’s consent, and therefore a contract between man and wife, or against her consent, and therefore the act of the law which assigns her the same domicil as her husband, cannot affect rights arising under the marriage contract. But I go further. If on the arrival of the parties in New York, the Legislature of that state had passed a private act, abolishing the community between them as to their past acquisitions, such law would be null. “ Les droits établis expressement,par un titre irrévocable,fondé soit sur la volonté for-melle, de Vhomrne, soit sur sa volonté presumée. restent hors de Vattiente de toute loipostérieure. Zach. Dr. Fr. tom. 1, p. 53. Introd. § 30. 1 conclude, therefore, on this point with the language of Burge. “ The change of domicil neither divests the parties of any right which they had acquired, nor confers on them any they did not before possess and that of this court in Dixon v. Dixon : “ Her rights grew out of the marriage, were the law at the time the marriage was entered into, and no subsequent legislation could rightfully take them away.” This court have already decided that the removal of a married couple from one of the common law States, does not alter the rights of property acquired by the marriage. Slaves belonging to the wife while sole, and as personal property vesting in the husband by the mere act of marriage, according to the law of the matrimonial domicil, are not divested by the removal of the spouses to Louisiana. Perry v. Weston et al. 4 Rob. 107. And why is not the converse of the proposition true ? Why is not the property which belonged to the wife in Louisiana, her’s after she removed to New York ?
    I am now to show that this legal estate of Alice Packwood, vested by contract of marriage, and not divested, by change of domicil, descended to her children and natural heirs, as well by the law of New York as the law of Louisiana; that even if there were a conflict between them, the comity of nations does not apply to such a case, and we are bound to follow our own law by every dictate oí reason, natural justice and public policy. And here let me state clearly the difference between our adversaries and ourselves. They insist upon regarding this as a mere question of inheritance from a person dying in New York, testate or intestate, and holding only personal property. We assert, that it is to be regarded as a question of right and contract under the express provisions of a marriage settlement made in Louisiana, and containing word for word all the terms and clauses which, by the law of Louisiana, might rightfully and lawfully be inserted therein in favor of the husband. In order to ascertain what these clauses are, we must inquire what terms may lawfully be contained in a contract of marriage made in Louisiana, or more briefly, what clauses cannot be allowed; because we concede, that every thing most favorable to the husband shall be regarded as inserted, which the law admits. Every thing, in a word, which the law has not forbidden. Now, neither “ husband or wife can enter into any agreement or make any renunciation, the object of which would be to alter the legal order of descents, either with respect to themselves, in what concerns the inheritance of their children or posterity, or with respect to their children between themselves.” Civ. Code, art. 2306.. Nor derogate from the rights of surviving husband or wife, or the prohi-iory dispositions of this Code. Art. 2307. Nor make any agreement contrary to good morals, Art.2305; or public laws. Art 11.
    The civilians divide law into the Jus Publicum and Jus Pri-vatum. Jus Publicum est quod ad statum rei Romance spec-lat. \ 4, J. 1, 1, p. 1, § 2, D. 1, 1. Jus Privatum est quod ad singulorum utilitatem spectat. Ib. And thence results the maxim, Jus Publicum privatorum pactis mutari non potest. But the question is, to which category do the rights of children as natural heirs, the principles of succession, the distribution of property, majorats, entails, substitutions, and marriage settlements, so far as they affect these objects, belong? Are they Publici or Privati Juris ? Now as it respects substitutions, entails and majorats, most of our State constitutions, regarding equality of property as essential to a republican form of government, have forbidden them. They belong clearly to the Jus Publicum. But it is not only in republics that they are so regarded. Zach. Dr. Pr. tom. 1, p. 23, § 16. As little can it be doubted that on general principles of law, order, and morals, it interests every well regulated state, that children should be well educated, should not be left destitute, and a charge upon the public, &c. Still, the important question recurs, are the laws of inheritance, succession^ marriage, settlement, entail, substitutions, &c., in the nature of public or private laxos ? On the one hand we have the legal maxim, “ Cuilibetjuri pro se introducto renunciare potestand on the other,11 Renuntiaretur juri ob utilitatem publicam intro-ducto, quod fieri non potest.” Zacharies, tom. 3, p. 404, 3 'and 5, p. 2, liv. 1, § 504, in considering what agreements spouses may make under the license accorded them by the law, says:- “ Jls ne peuvent faire aucune stipulation sur des objets qui ne sont pas susceptibles de former la matiere d’une convention quelconque, par example, sur une succession non encore ouverte ; et il leur est defendu, comme a toutes personnes de passer des conventions con-traires a I’ordre public ou aux bonnes moeurs. Art. 6, 1130, 1133, Code Nap. “ Ainsi ils ne peuvent notamment ni repudien une succession qui doit leur echoir-ni changer Vordre des successions soit par rapport á eux memes soit par rapport a leurs enfans entre eux.” In another place, commenting on nullities; he justly remarks : “ Les nullités sont de droit public, ou de droit privé, suivant qu’elles reposent sur une raison d’ordre public ou sur un motif d’intérét privé. Cette division est d’une grande importance dans la pratique.” Tom. 1, p. 69. And in inquiring what are those laws interesting to public order and good morals, which individual contracts cannot derogate from or renounce, he says : 1°. “ Chacun est libre de renoncer et par conséquent, de dé-roger aux dispositions légales qui ne sont introduites qu’en safa-veur, et qui n’interessent que lui seul. 2o. Nul ne peut déroger aux dispositions de la loi ayant pour objet de garantir les intéréts de tiers. 3o. II n’est pas permis de déroger aux lois qui intéres-sent I’ordre public et les bonnes moeurs. Cette proposition éta-blie par Particle 6, est incontestable en théorie, mais son application donne lieu, dans la pratique, a des sérieuses dificultes. Le legislateur en effet, ría point determiné quelles sont les lois qui intér essent l’ordre public et les bonnes moeurs: il s’en est remis pour la solution de cette question aux traditions de la science, et jusqrí a un certain point, au tact individuel des juris-consultes et des magistrals. On chercherait en vain a résoudre ces difficultés á l’aide d’unprincipe général. Le seul point constant et univer-sellement reconnu, c’est qu’ outre les lois constitutionelles, ad-ministrativos pénales et de police, on doit encore considérer comme interessant I’ordre public, les regles concernant l’état des person-nes, et la capacité de contracter et de disposer par actes entre vifs 
      
      ou testamentaires. Zach. tom. 1, p. 64, Introd. § 46. This is the very doctrine laid down by judge Bullard in delivering the opinion of this court, in the much controverted case of G-asquet v. Dimitry, 9 La. 590. “In every well regulated state,” says that Judge, “ those laws which establish the order of hereditary succession, which regulate the capacity to dispose by last will, and particularly those which define the capacities and incapacities of particular classes of persons, and especially of heirs and married women in reference to contracts, would seem to stand first in rank of those rules involving the great interests of public order, and essential to the welfare of society.” Hence the division by Paulus into “ Pacta qua. ad jus et qua ad voluntatem spectant.”. And hence the familiar maxim consecrated by the wisdom of ages: “ Pacta qua contra leges, constitutionesque, vel contra bonos mores fiunt, nullam vim habere indubitati juris est In all such eases, Fortior et potentior est dispositio logis quam hominis.
    
    The old Civil Code allowed parties to contract by marriage settlement in conformity with the law of any of the states. Bour-cier v. Lanusse, 3 Mart. 584. But this provision is not found in the present Civil Code, and such a contract would now undoubtedly be void. The same case.decides, that parties cannot regulate the terms of their marriage contract by reference to a foreign law. If Samuel and Alice Packwood, then, had been married in Louisiana, and had made an express written marriage settlement, stipulating that in the event of their hereafter removing from Louisiana, their acquisitions made while within this state, should be governed by the law of the foreign country to which they should hereafter remove, such agreement would be null. If it would be null as a matter of express compact, can it be good as a mere inference from the change of domicil ? Whatever doubt may rest upon the power of the spouses to derogate in their marriage contracts from the laws interesting to public order and good morals, arising solely from the uncertainty what laxos those are, there is no question whatever, that every stipulation in a marriage settlement, contrary to the prohibitive provisions of the Code, is absolutely null. Civ. Code, art. 2307. In the first place then, regarding, this as a m.arriage settlement made in Louisiana, upon the most favourable terms to the husband, which the Jaw allows: — the contract provided, that if there were no children of the marriage, nor ascendants of the deceased, the survivor should be entitled to the whole of the community property. But if there were children, the wife could leave to the husband by will only the least child’s share or part allowed by laxo. Civ. Code, art. 1739. Now I apprehend it could not be for a moment doubtful, that a married woman removing from any state to New York, possessing personal property secured by such a written marriage settlement, the property would all, upon her death, descend to her children, unless she exercised her power of appointment by disposition in writing, in the nature of a last will or testament, to the extent that the marriage settlement allowed in favor of her husband, i. e. one-tenth in perpetuity, or the usufruct of one-fifth. The whole doctrine, therefore, of an implied marriage contract having precisely the same force as an express written one, must be surrendered ; or, followed up to its consequences, it eads us to the result just stated.
    The separate estate of Alice Packwood, that is to say, her interest in the community property, descended to her natural heirs, both by the law of Louisiana and the law of New York. The law of New York and the common law States, is the aw of England. Vide Toller on Exrs. 224, 225, 226. If any doubt could be raised as to the jurisprudence of New York, it will be solved by a reference to De Cauche v. Savatier, 3 Johns. Ch. R. 190, 211. 2 Kent’s Comm. 129, 2 ed. Methodist Epis. Church v. .Toques and others,■ 1 Johns. Ch. R. 450. Powell v. Murray. 2 Edw. Ch. R. 643 Van Duzer v. Van Duzer, 6 Paige, 366. 17 Johns. R. 548, 577. 5 Wheeler, Abr. 563. See Story’s Confl. of Laws, § 124, 125, 1 ed. as to the general common law doctrine of husband and wife, and Story’s Equity from 614 to 625, for the principles of equity applicable to the subject. Where a married woman has a separate estate, the law, as to that estate, regards her as a feme sole. Powell v. Murray, 2 Edw. Ch. R. 643. Van Duzer v. Van Duzer, 6 Paige, 366. A marriel woman cannot in general make a will in favor of her husband or others. Story’s Confl. of Laws, 1 ed. p. 127, § 138. Fitch v. Braynard, 2 Day’s R. 163. But where she has a separate estate, with power of appointment, in writing, by last will and testament, or instrument in the nature of a last will and testament, she may lawfully dispose of her separate property, in that manner, strictly pursuing the powers granted to her by the marriage contract. 2 Story’s Equity, 614, § 1388; 517, § 1391; 619, § 1393 ; 632, § 1395. If that contract secured any interest to her natural heirs upon her demise she cannot derogate from it. 2 Story’s Equity, 617, § 1391. Morgans. Elam, 4 Merger, 375. It is not necessary that there should be formal words, or the interposition of a trustee ; it is sufficient, if there appear a clear intention to create a separate estate. 3 Johns. Ch. R. 523, 540. 1 Rice’s Eq. R. 315. SYerger, 33. 4 Desau. 458. 3 Gill &. Johns. 504. Marriage articles are considered as the heads or minutes only of an agreement entered into, between the parties upon a valuable consideration, (the marriage,) and being in their nature executory, ought to be construed and modified in equity, according to the intention of the parties at the time of concluding them. Tabb v. Archer, and Randolph v. Randolph, 3 Hen. ■& Mun. 399. They cannot be rescinded after marriage, even by consent of husband and wife, but may be enforced in equity at the suit of the issue, whether in esse or en ventre sa mere, or of any other person for whose benefit such articles were intended. Ib. The husband is neither heir of the wife nor next of kin to the wife, and where, in an informal marriage contract, the words 11 heir of the wife” were used, they shall be taken to mean her blood relations. Tyson v. Tyson, 2 Hawks N. C. 472. And this court recognizes as the law of New York, that a married woman is to be regarded as to her separate estate as a feme sole. Bonneau v. Poydras, 3 Rob. 16.
    If this court refuse to recognize the interest of a wife in the community property acquired in Louisiana, as her separate property after the removal of the parties to New York; not only the disinherison of the children of the deceased wife follows, but other results still more startling. If the wife’s interest in the community is not her vested separate estate, and the husband becomes bankrupt, it passes to his assignee. If our adversaries are right, therefore this court must decide the present ease, precisely as if Packwood had become bankrupt in New York before his wife’s death, and in such a case, according to the New York law, Packwood’s assignee would recover the whole community property, unless it be her separate estate, which our adversaries say it is not. This court, then, which will not allow a foreign bankrupt law to take property from an attaching creditor, will permit it to strip his children of all their mother’s fortune, acquired in Louisiana, locally here, and nominally under the illusive protection of its laws! Such must be the inevitable result of regarding the wifels interest in the community in any other light than as her vested, separate estate.
    
    The next inquiry is, did Alice Packwood execute her power of appointment, by making any disposition of that part of her succession, which, by the terms of her marriage settlement, she had a right to dispose of? I)id she die testate or intestate ? Under any other system of law than the common, this matter would not bear a question. “ Testamenta ex inslitutione lucre-dis vim accipiunt, et veluti caput et fundamentum totius testa-menti intelligiiur hceredis institution § 34. J. 2. 20. Mackel-dey, Dr. R. § 632 n. Testamentum sine hceredis institutio non tenet. Partid. 6, tom. 1.1. 1. (n. 2.) Tout testament doit es~ sentiellement contenir Vinstitution d’unheretier direct, \hceredis 
      
      directi institution Cette institution est tellement necessaire, que si elle venait a manquer entierement ou a etre invalide la disposition de derniere volonté ne pourrait valoir comme testament. Mackeldey, Dr. Rom. § 650. The forced heirs must be either expressly instituted or formally excluded. Mackeldey, Dr. Rom. § 659, n. 2. A testament without institution of heirs or exclusion of forced heirs is invalid. Ib. 673. This then clearly according to our law is no testament. But, say our learned and acute adversaries, this testament was made in New York: it appoints the husband executor : and by the law of New York naming him executory is equivalent to making him heir of her personal estate ; her estate by fiction of law is all personal, and a will valid in New York, is valid in Louisiana by the 1589th art. of our Code. This then we are to understand is a testament in disguise, the institution of an heir under color of appointing an executor. Would the opposite counsel have us believe, that Mrs. Packwood at the time of making this pretended testament understood perfectly, she was not merely naming her husband, executor, but appointing him her sole heir 7 Is it credible that a mother in her last moments, or with the thoughts of death in her mind, should deliberately disinherit her own children, for the purpose of bestowing all her fortune on her husband, and possibly on the children of the woman he was hereafter to marry ?
    But if, as our adversaries contend, the execution by a married woman in New York of a testamentary paper merely appointing her husband executor is, by force of the law of New York, a will in his favor, how then, does the argument stand ? This is not a will by our law. But it is a will by that of New York, and the position of our opponents is, that being a good will oí personal property in the one State, it is by the comity of nations a good will of personal property in all. And they rely on art. 10 of the Code of this State, which declares, “ That the effect of acts passed in one country to have effect in another, is regulated by the law of that country where they are to have effectand the exception in the' next paragraph, which excludes from the operation of this article wills of moveables made by foreigners, or citizens of other States. The interpretation of this part of the 10th art. which would give to foreigners, or citizens of other States, the right to dispose at discretion, of their moveables locally here, by donations mortis causa, cannot be reconciled with art. 483, already quoted, which provides, that “ Persons who reside out of the State, cannot dispose of the property they possess here in a manner contrary to its laws.” If irreconcileable, art. 483, being posterior, repeals so much of art. 10 as is contrary to it. If reconcileable, they are only to be reconciled by giving them together this effect: That the testament made out of the State, according to the forms of a foreign law shall have effect within it, in all matters, and so far forth as it is not contrary to our own fundamental laws and public policy: that is, it is good to pass to Mr. Samuel Packwood whatever his deceased wife, Alice, might bequeath to him by the law of Louisiana — nothing more.
    But however this may be, undoubtedly Alice Packwood can only bequeath according to the terms of the tacit marriage settlement : i. e. that which is hers to give. She can only dispose by testament, therefore, of one-fifth in usvfruct, or one-tenth in perpetuity. Such would be the result, assuming what our learned adversaries assert, that this is a good testament by the law of New York. But is this true 1 For the purposes of this argument, I am willing to consider this testament precisely as if it contained a bequest in terms of all her personal estate to her husband. Would such a testament be valid by the law of New York ? Tire common law prevails there, except in so far as it is altered by statute. What is the common law ? It is said in 4 Co. 61, b., that “ the law of England will not allow of any custom that afeme covert may make a devise, for the presumption that the law has, that it will be made by the constraint of the husband.” So Swinburne on Wills, p. 2, c. 9, n. 5 : “Though the wife do over-live the husband, yet the testament made during the marriage is not good; the reason is yielded before; because she was intes-table at the time of the will making.” And Mr. Just. Lawrence, commenting on this doctrine in »S'cammed v. Wilkinson, 2 East, 557, shows, that it is law in England to this day. After quoting these authorities he says: “ And if this reason be applied to testaments, she can make none, unless it be by consent of the husband and to his prejudice.” The question then is, how far has the common law been altered by the State legislation of New York ? This will be answered by reference to the Revised Code : “ Every male person of the age of 18 years and upwards, and every female not being a married woman, of the age of lfi years or upwards of sound mind and memory, and no other, may give or bequeath his or her personal estate by will in writing.” 2 Revised Stat. of N. Y. p. 4, § 21. “ All persons except idiots, persons of unsound mind, married women, and infants, may devise their real estate by a last will and testament executed according to the provisions of this title.” 2 Rev. Stat. of N. Y. p. 2, § 1. It is clear then, from these prohibitions1 that a married woman cannot by the law of New York make a valid will either of real or personal estate, except, by virtue of a marriage settlement securing property to her separate use, with power of appointment, and then only in the mode and to the extent provided for in such settlement. Here, therefore, it would be necessary to concede what our adversaries contest, namely : 1. That Mrs. Packwood’s interest in the community was her separate property. 2. That the tacit, legal marriage settlement implied by the law of community, as established in Louisiana, did confer on her a power of appointment, or, in other words, enabled her to make a mil, which, by the law of New York, she is forbidden to do. If so, that power of appointment, thus limited, merely authorizes her to make in New York just such a will as she could have made in Louisiana. And this will, which is utterly void by the law of New York, can operate no further, than it zoould do if made in Louisiana.
    If on the other hand, Mrs. Alice Packwood is to be regarded as dying intestate, the case presented to the court is that of a married woman having personal property, secured by marriage settlement to her separate use, remainder to the heirs of her body, with power of appointment as far as one-fifth in usufruct or one-tenth in perpetuity, and having died without appointment, the whole estate descends to her natural heirs, and this is the law of New York, as well as the law of Louisiana, upon the case so stated. But our learned adversaries will not agree that this is a correct statement of the case.
    It has throughout been assumed, that whatever might be the rights of Mrs. Packioood, had she survived her husband, the rights of her natural heirs, she having died first, are not the same. “ Les heritiers de la femme jouissent sous les divers rapports qui viennent d'etre indiques, desmames droits que celle-ci.” Zach. Dr. Fr., tom. 3, p. 456. “A la dissolution de la com-munauté la femme a V option d! accepter la communauté ou d’y renoncer. Cette option lui appartient mime dans le cas oú elle a fait prononcer la separation des Mens.- iSes heritiers ou suc-cesseurs universels en jouissent individuellement chacun dans la proportion de sa partie héréditaire. Toute convention qui aurait pour objet depriver la femme ou ses heritiers de ce droit ou qui tendrait á en rendre Vexercise illusoire serait a considé-rer comme non avenue. — lb. tom. 3, p. 486. ¡80 that not only the heirs of the wife do succeed to all the rights she herself would have had, in case of survivorship, but any stipulation to the contrary inserted in a marriage settlement would be void. The same thing results in Louisiana from arts. 11, 2392, 2305, 2306, and 2307 of the Civil Code, and is recognized as law by numerous decisions. Robin v. Castillo, 7 La. 295. Broussard v. Bernard, 7 La. 222. German v. Gay, 9 La. 583. Hart et al. .v. Foley, 1 Rob. 381.
    With respect to the alleged right of the husband as administrator, to the' chases in action of the wife, the ansioer is twofold. 1. Mr. Packwood has not administered in New York. He has not obtained letters testamentary in New York, and it has already been shown that, by the law of that State, a married woman cannot make a will. 2. The wife's interest in community property cannot by any means be regarded as a chose in action, belonging to the wife before coverture, or accruing to the wife during coverture, and therefore belonging to the husband as her administrator. It is not a chose in action, because it cannot be sued for by the wife or by husband and wife during coverture : and the essential definition of a chose in action is, a thing which exists in action only: a right of suit;—a species of property not in possession, but susceptible of being redtu-ed into possession, by the husband, during coverture. 5 Petersdorf, Ab. 404, note. The wife’s interest in the community, has not the most remote similitude or analogy to a chose in action at the common law. The husband has actual possession, full dominion and power of disposal of the community property during the cover-ture. He can have no action to reduce into his possession that of which he has possession already. The wife has no right of action for her share of the community during the coverture, except in case of separation. How then can that be a chose in action, for which nobody can sue? The interest of the wife in the community resembles rather an absolute estate to take effect after the termination of an usufruct, with this difference, that the usu-fructuary (the husband) has entire power of disposition and even of waste, provided it is not done wantonly or maliciously—malo animo. With respect to the bank stock, that is always regarded to have a locality, and to be governed by the law of the State where the corporation was chartered and exists. See the late decision of the Supreme Court of the United States in Zacharie's case; not yet reported. ,
    It has been urged, that this being a succession of personal property opened in New York, we should be remitted to the foreign forum for the assertion of our rights, if we had any ; and we were informed, that if by mere removal the community ceased and the wife became invested with a separate property, the Court of Chancery in New York would follow it. To this we answer : That it is not the custom of courts to remit their own citizens to a foreign tribunal, when they have in their own hands the power of doing justice. Thus it has been decided, that “ where parties are once in a court whose jurisdiction has attached, they may be required to litigate all their rights there, relating to the property in controversy, although they reside in another State.” Frost et al. v. Bibout, 14 La. 108; and in Gravillon v. Richards Ex’-r. 13 La. 298 ; this court determined, that “ the power of our tribunals to order the remission of funds belonging to a foreign succession, is a matter of sound discretion, and to be exercised according to the comity of nations when no one is injured thereby.” In Harvey v. Richards, 1 Mason, 409, which turned upon this question, Story, J. said: “ The property is here, the parlies are here, and the rule of distribution is fixed. What reason then exists why the court should not proceed to decree according to the rights of the parties 1 Why should it send our own citizens to a foreign tribunal to seek that justice, which it is in its own power to administer without injustice to any other person.” The courts of every country assume jurisdiction, in order to do justice to their own citizens, wherever the defendant can be served either by attaching his property within the State, by distringas, sequestration, or the publication of a ride in chancery. The only exceptions are, where the defendant neither resides within the State, nor has property within the State, and the thing in controversy being also without the State, the court have no means of enforcing its judgment.
    But the great argument of our learned antagonist remains to be answered. We advance now, as we did on a former occasion, to sustain the actual property of the wife in the community, the ease of Dixon v. Dixon, in which this passage occurs : “ It is not the law in force when the marriage is dissolved, but that in force when it is contracted, that determines the rights of the 'parties under the contract.” Granted say they. But in 1804, when these parties removed to Louisiana, the law in force was the Spanish law, and by the Spanish law, the wife could sell or give to her husband, and by consequence change her domicil with intent to transfer her rights to him. On this Spanish law, the legislation of Louisiana could have no effect according to our own doctrine. For in Dixon v. Dixon, it is said, that “ no posterior law can affect the rights vested by the contractand in Saulv. His Creditors, that “ the parties must be presumed to contract with reference to the jurisdiction of the law-giver, namely, that they shall be bound by the community while they remain within his jurisdiction, and shall be free from the community when they remove beyond it.”
    The husband and wife were, by the Spanish law, so far considered separate persons, that they could validly enter into onerous contracts between themselves; but they were prohibited from making donations to each other, during the marriage, of property in possession. The wife, however, could renounce her title to the matrimonial acquests or gains at any time before, during, or after the dissolution of the marriage. HAbbe's Heirs v. Abat, 2.La. 565. Here, may it please the court, is no onerous contract as there was in L'Abbé v. Abat. Here is neither sale, exchange, nor partition. Here is no renunciation of the wife’s rights to the community. Here is no donation mortis causa, unless the appointment of an executor is affirmed to be a testament in disguise. Where then is the title of the husband, even according to the Spanish law, supposing it unaltered by subsequent legislation ? But I am far from admitting it was unaltered and unalterable. We must separate the essence of the contract from its incidents and accessories. The one is permanent, inviolable, unchangeable. The others yield to the legislative power which regulates property while it protects it. This is no contradiction, but an affirmation of the doctrine in Dixon v. Dixon and Saul v. His Creditors, that the parties must be understood to contract with reference to the law of their domicil, and of course with reference to the right of the law-giver, to enlarge or restrict the capacities or incapacities of the parties contracting. By far the strongest instances of affecting by 'posterior legislation, personal abilities and disabilities, have been^given on this very subject of marital rights and the contracts of married women. Thus by the Spanish law, they could renounce their privilege not to be answerable for their husbands’ debts, under the law of Toro, corresponding to the Senatus- consul turn Velleianum. That has been altered. They cannot now become bound for their husbands'1 debts in any way whatever. On the other hand, they could not renounce their dotal or paraphernal rights. This has been allowed by the act of 1835. Are our adversaries prepared to say, that the power to renounce taken away by one of those laws, and given by the other, applies only to women married subsequent to their enactment ? This court have decided the contrary. Pritchard v. The Citizens Bank, 8 La. 133, And in the same case it was determined, that where there was no change of domicil after the period of acquisition, the rights of either spouse in the succession of the other, are to be determined not by the law in force at the time of the marriage, but by.that existing at the time the succession is opened. 8 La. 133." How impracticable or absurd indeed would be any other rule ! These parties came here in 1804; from 1804 to 1808, their acquests must have been a trifle. In 1808 the law was altered, and the bulk of their fortune was acquired between 1808 and 1836, the larger part indeed we may infer from the evidence, between 1825 and. 1836. But, though the law in force at the time and in the place where the succession is opened, is the rule where there has been no change of domicil, I have shown it is not the rule where the domicil has been changed. Burge, 619, 620, 621. Story’s Confl. of Laws, 1st ed. 160, 161.
    A case like the present, arising under the existing law, is now most equitably provided for. By the act of 1842, (Sess. Acts, p. 300, § 1,) personal property within the State can be disposed of only in accordance with its laws. The act of 1842, it is true, was passed after Mrs. Packwood’s death, but we do not regard it as introductory of any new rule. It is a mere repetition of the old, accompanied with more full and extensive directions for carrying it into effect, and improved modes of proceeding in conformity with the legislative will, as previously expressed. To sustain this view of the act of 1842, we have only to go back to the 483d art. of the Civil Code, which declares, that “ persons out of the State cannot dispose of the properly, they possess in it, in a manner contrary to its laws.” The term property, is comprehensive enough to embrace all kinds of things which are susceptible of ownership, and there is nothing in the context or subject matter to restrain it. Therefore, by the English text, persons out of the State can no more dispose of their moveables within the State, contrary to its laws, than they can of their immoveables. But if that text admitted of any doubt, the French text might be used to explain it, and the term there used as equivalent to £ property 5 is biens: and biens is the most comprehensive term known to the law. Zacharise says “ V ensemble de biens d'une personne n’est autre chose a fond que Vutilife collective de tous ses droits civils,” and again “ Vexpression biens designe Vutility qui une per sonne pent retirer des objets sur lesquels elle a des droits This court have adjudicated, that the word £ biens ’ includes both moveables and immoveables. Lowry v. Kline, 6 La. 387. ££ Property comprehends every species of title inchoate or complete. It embraces rights that lie in contract: — executory as well as executed.” Soulard v. United States, 4 Peters, 512.
    Lastly, as to the objection that art. 2373, is derived from the Spanish law, and that that law forbade children to sue their parents. The only restriction on children suing their parents by our Code, is in art. 244 : ££ Children cannot sue father or mother for a marriage settlement.” Therefore, they can sue for anything else. See also art. 257, 258. Plow are articles 243, 250, 256, 257, 258, to be enforced without suit 1 Cases of suits by children against parents : Murphy’s Heirs v. Murphy, 5 Mart. 83. Placentia’s Heirs v. Placentia, 8 La. 577. Caldwell v. Hen-nen, 5 Rob. 20.
    
      Roselius, on the same side.
   Bullard, J.

A branch of this cause was before us at the last term, (9 Rob. 438,) and the decision then rendered, was confined to the question whether a fund of about $ 14,000, which had been deposited in the Commercial Bank, was to be considered as belonging to the community, and applicable in the hands of the executor to the payment of the debts.

The present appeal relates to another part of the opposition made by some of the heirs, to the account rendered by the executor, in which they allege, that the executor ought to account for one undivided half of a plantation and slaves situated in the parish of Plaquemine, and for half the revenues of it during the years 1840, 1841, 1842 and 1843. They allege, that this part of the plantation, not appearing on the inventory, was ostensibly sold, in the year 1840, to David Stewart, for one hundred thousand dollars, on a credit of one, two, three, four, five and six years ; but they allege and charge, that the sale was simulated, and that the said Stewart only held the property for Samuel Packwood, with a view of depriving these opponents of their legal rights to said property and its revenues ; and they further allege, that Stewart has lately retroceded said property to Pack-wood, and that said retrocession ought to enure to the benefit of the community, even if it should be decided that the sale was real ; that, at all events, the executor is bound to account for the $100,000, for which the property was sold to Stewart.

They further insist in their opposition, that the executor ought to have charged himself with $90,000, for which one-half of the plantation and slaves were sold to T. J. Packwood, which sum, or a greater part of it, the executor has received.

They further say, that the executor has not accounted for 505 shares in the Union Bank, belonging to the community.

They object to the commissions allowed to McBride, for collecting rents.

They allege, that the executor has not deposited, any of the funds which he has received, and for which he is' accountable, in an incorporated bank paying interest on deposites, but has applied the funds to his own use, and is therefore bound to pay twenty per cent damages.

These oppositions were sustained, and the executor appealed.

It is proper first to say, that the court did not err in our opinion, in regarding the stock in the Union Bank, secured on real estate, and acquired before the removal of Packwood and his wife from Louisiana, as a part of the community, one-half of which, consequently belongs to the estate of Alice Packwood. Although perhaps moveable, according to art. 466 of the Civil Code, yet it has the same situs with the immoveable upon which it forms a charge; its transfer has to be made on the books of the Bank situated here. But whether it be considered as moveable, or as an incorporeal right, immoveable on account of its relating to real estate, according to art. 462, it belonged to the community here, at the death of Alice Packwood.

But we are of opinion, that the commissions paid by the executor, to the person who was employed by him to collect the rents, ought to have been allowed to him, as charged in his account.

Having disposed of the two last grounds of opposition, we come to consider whether the sale to Stewart, by Packwood and his wife, after they removed from Louisiana, was simulated, and, as alleged, with a view of depriving the children of the vendors, of their just rights; and whether such parts of the price of the other half, which had been sold to Theodore J. Packwood before the removal of his parents from Louisiana, received afterwards by Packwood in New York, must be regarded as a community fund in his hands, to be administered here, and for which he is accountable, as a part of the estate of Alice Packwood in this State.

Nearly the whole ground travelled over in argument, when the other branch of the case was before us, has been again explored; but notwithstanding the ability and learning displayed at the bar, the counsel have failed to convince us, that we were in error in adopting, as we did on that occasion, the following propositions, as well founded in law.

1. On the removal of Packwood with his wife, to reside here, in 1804, the law then in force establishing and regulating the matrimonial community of gains, operated upon the property acquired during their residence here, and it became community property.

2. On their change of domicil, in 1836, by returning to reside in a State where a different law prevails, the community law of Louisiana ceased to operate as to future acquisitions of property, whatever may be the effect of such removal as to property previously acquired, during their residence in this State.

3. That the executor here administers only on the property in Louisiana, belonging to the testatrix; and whatever estate Mrs. Packwood may have left in New York is to descend, and to be administered, according to the law of that State.

4. That on the change of domicil in 1836, the title to the property already acquired here, did not vest in the parties each for one undivided half, separately from the other, but the husband, so long as the marriage existed, retained his power over it; that it was subject to his debts contracted aftei-, as well as before the change of domicil, and that he had a right to enjoy the fruits of the property, and to sell it without fraud, and that no distinct separate interest vested in Mrs. Packwood before the dissolution of the marriage by her death; and that, at that period, one-half of whatever property still existed, which had been acquired during the residence of the parties in this State, vested in her heirs, subject to the payment of one-half of the debts contracted during the marriage.

The degree of interest or title, which the wife hasin the property acquired during the existence of the community before its dissolution, has been much discussed. It is clear, however, that she has a kind of right susceptible of being defeated by a fraudulent alienation by the husband ; a title defeasable by her option not to accept the community, and become liable for one-half of its charges. By the customary law of France, when the husband was guilty of a crime punishable with death and confiscation, the half of the property to which the wife would be entitled on the dissolution of the community, was not confiscated ; on the other hand, when the wife was condemned, her contingent share in the community was not forfeited, according to the better opinion of the jurists, and particularly that of D’Aguesseau. Merlin, Rep. verbo, Communauté, § 5.

The argument of the counsel for the appellees, that the law of community of the place where the acquests have been made, is equivalent to an actual written marriage settlement, in which all the provisions of the law of that country were word for word inserted, and consequently, that the act of the parties changing their domicil can have no effect on the rights acquired by marriage contract, proves too much for his clients • for if that be the case, then the marriage settlement resulting from thelawsof Connecticut, the matrimonial domicil of the parties originally, would continue to operate, as matter of contract, notwithstanding their first change of domicil, and the consequence would be, that the wife would only have her dower in lands acquired here according to the common law. A change of domicil does not appear to us to imply a modification of matrimonial conventions. On the contrary, the law operates upon all persons within the State, and imparts to property acquired by man and wife, while under the operation of those laws, the charac ter of community property according to the definition of the Codes; and the wife acquires in it that species of interest or title of -which we have spoken ; when they cease to reside here, the law ceases to operate as to their future acquisitions, although a change of domicil does not involve a loss of the inchoate rights of the wife in the property acquired, nor does it, in our opinion, operate to vest in the wife irrevocably her share of the acquests, separately from the husband. It is the property found at the dissolution of the marriage, which constitutes the body of acquests and gains.

We have said, that the executor, acting under the authority of the Court of Probates, though named as such in a will written in New York, administers only on the estate of Alice Packwood* situated in Louisiana. What estate she may have left elsewhere, aud what effect the same will may have as to her property situated elsewhere, it does not concern us to inquire. The principal question with us, is, what constituted the estate of Alice Pack-wood in Louisiana, at the time of her decease ? Our own laws are to determine what constitutes her succession here, and that alone is to be administered by her executor. Her succession may be, as has been contended, an entire thing; but that is not inconsistent with the principle that different parts of it, situated in different States, may be administered separately ; and nothing can be more manifest than that Packwood, acting here as executor, cannot be compelled to account for anything which the heirs of his wife may allege, formed a part of the estate not situated here.

This brings us to the principal inquiry in the present case, to wit, whether the sale to Stewart of an undivided half of the plantation and slaves in the parish of Plaquemine, was simulated, and made with a view of depriving the children of their legal rights, or, in other words, fraudulent.

•One-half of the plantation had been previously sold to their son, T. J. Paekwood, and there is no dispute about the title to that part. When the parties moved to New York, in 1836, they still owned the other half. In 1840, Paekwood sold that half to David Stewart, for $100,000, payable in six equal annual instal-ments, for which notes were given secured by mortgage, to bear interest at seven per cent, if not punctually paid. This deed was signed by Alice Paekwood, as well as her hnsband, at New York ; and was duly recorded in the parish of Plaquemine, where the property is situated. Theodore J. Paekwood, one of the heirs, afterwards brought a suit against Stewart for a partition of the property. In 1843, Stewart reconveyed the property to Pack-wood, and the notes were cancelled. It further appears, that in 1834, Paekwood had sued Stewart for a part of the price by attachment, and that Theodore J. Paekwood was garnished and paid over, after judgment, upwards of $9000 to the plaintiff’s attorney.

This part of the case, which relates to the fraudulent character of the sale to Stewart, if it has any legal foundation, is founded on art. 2373 of the Civil Code, which provides, that if it should be proved that the husband has sold the common estate, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the estate, on her satisfactorily proving the fraud.”

The Spanish law puts the action in such a case, upon the same footing with the revocatory action generally to annul fraudulent contracts; and the sale or other disposition of property made by the husband, must be shown to be made “ dolose ut uxor prive-tur sua parte f or, as our Code expresses it, “ by fraud to injure his wife.” Gomez ad Leges Tauri. No. 72 and 74.

Although the Code speaks of such an action being given against the heirs of the husband, as if it did not contemplate an action against him personally by the heirs of the wife, yet conceding, what is by no means clear, that such an action can be maintained during the lifetime of, the husband, by his own children, as heirs of his wife, let us inquire what are the proofs offered in the case before us.

The case does not certainly present the usual indicia of fraud. The wife, with whom the appellant appears to have lived harmoniously, joined in the act and signed the deed. The presumptive heirs of both parties were the same persons — the issue of their marriage. They had lived together nearly forty years. One of the children regarded the sale as bona fide, and not wishing to hold the plantation in partnership with Stewart, sued for a partition. Packwood retained a mortgage on the property, and sued for a part of the price, recovered a judgment, and was paid by his son, as a garnishee, the amount claimed. It is difficult to discover in this an intention on the part of Packwood to defraud his wife, who joined him in the sale. The children who make this allegation liad, at that time, no interest and no right, which could be affected by the transaction. It was only at the death of Alice Packwood that they acquired any right. Suppose the re-trocession had never taken place, and they had sued for the property itself, as in the ordinary revocatory action, could not Stewart have opposed to them the act of Alice Packwood herself, whose heirs they are, and whose contracts they are bound to warrant 1 It is not enough that the sale to Stewart was merely simulated ; it must be shown to have been made to injure the wife, and to deprive her of the share in the common property, to which she would have been otherwise entitled ; nor is it enough, that the contract was made with the full consent of Mrs. Packwood, with a view to favor, ultimately, a part of the children to the prejudice of others; if that should be supposed to be the motive of the parties, the children have no right to complain of that as a fraud. Upon the retrocession of the property, the title vested in Pack-wood alone. If Mrs. Packwood had any interest in the notes which were restored to Stewart, as the consideration for which the sale was cancelled, it is not here that the appellant is to account for it; inasmuch as both parties lived in New York at the time, and the fund does not belong to the community in this State. The retrocession to Packwood took place in July, 1843, several years after the death of his wife, and when they had been both domiciled in New York for many years.

It is further contended, that Packwood is bound to account here, to his children, for the sum of $90,000, the price for which he sold the other half of the plantation to his son during the exis-tenee of the community. It is quite obvious, according to the principles already set forth in this and in the other branch of the ease, that the price of that part of the property did not exist here at the death of Alice Packwood, and does not form a part of the community to be settled here: and that the appellant is no more accountable for that transaction, during the lifetime of his wife, than for the price of any other property which he may have sold before the dissolution of the community.

Personal property has no other situs than the domicil of the owner.

JRoselius, for a re-hearing,

contended, that by the cancelling of the sale to Stewart, the property was re-invested in the original vendor, as if no sale had been made. Power v. Ocem Ins. Co. 19 La. 30. That at the time of the sale, the property belonged to the community, and by the retrocession again became vested in it. That the dissolution of the community by Mrs. Packwood’s death, could not affect the question as to what property belonged tó the community ; and that its effect was limited to preventing .any future acquisitions.

The counsel for the appellees speak of the will of Mrs. Pack-wood as a disinherison of her children in disguise, as if dictated or suggested by her husband, for his benefit. Of this we have no information; but it should not be forgotten, that real estate situated here to a large amount, appears in the inventory, as belonging to the community, which Packwood had a right to sell at any moment before the death of his wife, but which remains, and one-half is admitted to belong to his children in the right of their mother, of the value of more than $>50,000. The share of the wife in that property was not disposed of by her will; and, in fact, the will left whatever property the testatrix may have possessed at her death, in this State, to descend as if she had died intestate. .

It is, therefore, ordered and decreed, that the judgment of the Court of Probates be reversed; and it is further ordered, that the opposition, so far as it relates to the Union Bank stock, be sustained, and that in all other respects it be overruled and rejected : and that the account rendered by the executor, being thus amended, be approved and homologated; that the opponents pay the costs of the appeal, and that all other costs be paid by the community.

Saime Case. — Application for a Re-iiearing.

The community of acquests, is the creature of the law of Louisiana, and the interest of the wife therein, cannot be divested by her removal from this State. To say, that though the community is dissolved, by the removal of the spouses into another State, as to all future acquisitions, but that it continues to exist as to the property acquired during their residence in this State, and that the husband, as the head of the community, retains the right of selling such property, is fallacious. The community, which commenced from the moment that the parties removed into this State, naturally ceased to exist from the time when their removal from it exempted them from the dominion of the laws of Louisiana. From that period, the legal partnership was dissolved, and the property acquired during its continuance, was held by the spouses in common, subject to the payment of the community debts. The power of a husband to sell the community property, is given to him by the laws of this State, as an incident to the community, and it ceases to exist from the moment that the latter is at an end.

Wilde, in support of the application. The community of acquests, and the rights of parties under it, must be considered as springing either from law, or contract. If from the latter, it travels with the parties and follows them to the grave — no law can affect it; if from the former, it must cease to exist, when the parties remove beyond the limits within which it prevails. To declare that the community ceases to exist as to future acquisitions, from the time of the removal of the parties to another State, but that the husband continues to have the power of disposing of the community property, would be to give to the laws of this State not only an extra-territorial, but a partial and imperfect effect.

Bullard, J.

Two principal questions have been discussed by the learned counsel for the appellees, in their petition for a re-hearing.

1. What is the legal effect of the cancelling of the sale, from Samuel Packwood to David Stewart, on the restitution of the notes given for the price of the undivided half of the plantation and slaves, in the parish of Plaquemine ?

2. What was the legal effect of the removal of Packwood and wife from Louisiana, with regard to the property acquired during their residence here?

These questions, and the opinion of the court on them, have been discussed so earnestly, that they merit some further notice from us.

I. It is contended, that on the cancelling of the sale to Stewart by Packwood, the property reverted back to Packwood in the same manner as if it never had been sold. But it must not be forgotten that, at that time, Mrs. Packwood had been dead several years ; that Packwood no longer represented the community, much less the heirs of his wife, and could not without their consent re-invest in them a title to one-half of the property, which they assert belonged to Mrs. Packwood before her death. Hence they have never pretended that one-half of the plantation belongs to the heirs, in virtue of the cancelling of the sale by Packwood alone. It has never been put on any inventory of the estate, nor required to be so. The heirs have contented themselves with claiming one-half of the amount of the notes originally given by Stewart, and which were returned to him on the cancelling of the sale. Now, admitting for the sake of this argument, that one-half of those notes belonged to Mrs. Packwood as her separate property, and that Packwood, by making use of them For his own benefit, became accountable to her representatives, yet they were at that time domiciled in New York ; and it is now well settled, that personal property has no other situs than the domi-cil of the owner. Such a fund, we think, does not form a part of the succession of Alice Packwood, which has been confided to the appellant, to be administered here under the authority of the Court of Probates. If, according to the laws of New York, it was the separate property of the wife,- of which we are not informed, it is clearly to be disposed of as a part of her estate, according to the laws of that State, and not according to those of Louisiana. Let us suppose that those notes, after the death of Mrs. Pack-wood, had been exchanged for stocks in New York, the domicil of Packwood: will it be contended that he, acting as executor in Louisiana, would be bound to'account for them here, where they form no part of her estate? If the same thing had been done in her lifetime, instead of giving up the notes afterwards on the cancelling of the sale, the stocks thus purchased in New York, would clearly not have become a part of the community on the death of Mrs. Packwood. If the fund had been employed in the purchase of other real estate, even in Louisiana, in the lifetime of Mrs. Packwood, it is clear it would not have become community property, after the parties had changed their domicil tp New York, and after the law of this State had ceased to operate, so as to create a community ; the existing law requiring in order to produce such an effect, in relation to marriages contracted abroad, the residence of both the husband and wife in Louisiana.

There is no doubt, that, in cases of retrocession, properly speaking, the effect is, to re-invest the title as if no alienation had taken, place. But that pre-supposes, that the capacities of the contracting parties remain unchanged. Now, according to the pretensions of the heirs of Mrs. Packwood, her right to one-half of the notes, representing the price of the plantation, became on her death irrevocably vested in her heirs ; and we repeat that Pack-wood ceased to represent a community, and the heirs of the wife.

II. Upon the second point, we are by no means satisfied that we erred in relation to the effect which the removal of Packwood and wife from Louisiana, had upon the property acquired here during their residence in Louisiana; and we adhere to the opinion first expressed, that the separate right of the wife to one-half, did not vest, so as to place one-half of the property beyond the control of the husband, by their change of domicil.

Re-hearing refused.  