
    Lozier v. Lozier et al.
    
      Trust estates — Assignment of interest authorized, when — Conflict of laws — Will executed and trustees reside in New York — Testatrix dies and will probated in Ohio — Law of Ohio governs, when.
    
    (No. 15977
    Decided March 11, 1919.)
    Error to the Court of Appeals of Cuyahoga county.
    This action was brought in the court of common pleas of Cuyahoga county, Ohio, to determine whether or not a certain trust interest under the will of Mary M. Lozier, of Cleveland, Ohio, was governed by the laws of New York, which admittedly made said interest unassignable, or by the laws of Ohio, which admittedly left said interest assignable.
    The court of common pleas held that said testamentary trust interest was controlled by the laws of New York, and, therefore, was unassignable. Upon error the court of appeals reversed on the ground that said testamentary trust interest was governed by the laws of Ohio, and was, therefore, assignable.
    Error is now prosecuted to this court to reverse the judgment of the court of appeals and affirm the judgment of the court of common pleas.
    The essential and controlling facts are not in dispute. Mrs. Mary M. Lozier on the 12th of December, 1905, was a resident of Cleveland, Ohio. She was then temporarily in the city and state of New York, where and when she made a will creating a trust in favor of her son, Edwin R. Lozier, and his wife, Eva Davies Lozier, through certain trustees, who were then resident of New York. Thereafter said Mary M. Lozier, while in the state of New York, made a codicil to this will, touching the same trust, modifying certain paragraphs, but not essentially changing said trust so far as this cause is concerned. Thereafter, the testatrix died at her home in Cleveland, Cuyahoga county, Ohio. Her will was offered and admitted to probate in said Cuyahoga county. The testamentary trustees continue to reside in New York, and have possession of the securities constituting the trust under the provisions of the will and the codicil. While such trust is in existence and operation, said Edwin R. Lozier assigns his interests in said trust to his wife, Eva Davies Lozier.
    It is not contended that said assignment was procured by fraud, mutual mistake, or that it was invalid for any other reason than that said trust was at the time administered under the laws of New York and the laws of New York forbid such assignment.
    
      
      Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.
    
      Messrs. Goulder, White & Garry; Messrs. Squire, Sanders & Dempsey and Messrs. Tread-way & Marlatt, for defendants in error.
   By the Court.

At first blush this case seemed to present a formidable question, but upon more careful consideration, when bared to the bone, the question seems very simple.

Property does not pass under will by any natural right. Its transmission by way of inheritance or otherwise, after death, is solely by virtue of our statutes. When this will was made by a resident of Ohio and offered and admitted to probate in the:state of Ohio, it became an Ohio instrument, creating an Ohio trust, to be administered agreeable to Ohio law, unless the terms and provisions of the instrument clearly indicated some specific terms or provisions clearly showing a contrary intention on the part of the testatrix. That the testamentary trustees were residents of New York is not enough to show such contrary intention. The presumption is that they were selected for personal confidence, rather than geographical location — rather than mere jurisdiction as to the administration of the trust.

It is not enough that the securities had as their situs the city and state of New York. Being personal property their domicile is ambulatory and follows their lawful custodian. Under the Ohio law the primary lawful custodian of this trust is the probate court of Cuyahoga county, Ohio, and the testamentary trustees mentioned in the will are simply the instruments or agents of the court of Ohio in the administration of the trust.

The law of Ohio, haying authorized the will and the probate of the will, also fixed the terms and conditions for the administration of the trust created by the will.

If it had been the intention of the testatrix to attach some provision against assignment or alien-ability, to the provision creating the trust in favor of the plaintiff in error, Edwin R. Lozier, the natural thing for her to have done in that behalf was to have so written it in the will. She is presumed to know that otherwise the law of Ohio would control in the administration of the will and that under the law the plaintiff in error’s interest could be aliened as any other interest in the property.

We are unable to discover any substantial evidence of a persuasive nature that the testatrix did not intend that the trust should be administered agreeable to the laws of Ohio and the trust property have all the attributes usually pertaining thereto.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Donahue, Wanamaker and Robinson, JJ., concur.

Nichols, C. J., not participating.  