
    Kneeland vs. Ensley.
    Conflict OF Laws.. Husband and wife — Marital right to wife's movables and immovables, by what law determined. The marital right to the wife's moveables is determined as follows:
    1. In case there is no determinate domicile of either husband or wife at the time of the marriage, by theZc# loci contractus.
    
    2. In casethey have different domiciles,, by the law of the husband’s domicile.
    3. In case they agree* previously to the marriage, upon a place of residence after,» it,-and that place actually become the place of the matrimonial domicile, by the law of that place.
    4. In case there is a change of domicil after the marriage,,the law of the new domicile determines the mantal light in the wife’s movables acquired after the, change in the place of the new domicile. ^ Immovables. And in all cases, the marital right to the wife's immovables is de-. termined by the lex loci rei sites.
    
    'SAME. Same. Marital right to wife's acquests after the marriage not in the pla&e. * of the matrimonial domicile. How marital right is affected by a change of the form of such acquest from immovable to movable, and a reduction of the latter to possession by husband with or without the wife's consent. If husband and wife have their domicile in Tennessee, and a person die intestate in Louisiana, of whom the wife is a legal heir, leaving movables and immovables, which, on the petition of some of the heirs, are converted into cash orchosesin action by a judicial sale, — the conversion, per se, will not affect the marital right; but that right will be determined by the law of Tennessee as to so much of the wife’s shave as was movable, and by the law of. Louisiana as to the rest. And the law is the same, though he reduce the share* thus converted, into his possession, if it be done without her consent; butif it be reducedinto possession by the husband under a power of attorney from his wife, his marital right will be determined by the law of Tennessee.
    Susan Thompson, widow of .Jason Thompson, and Ira C.. Kneeland, her son by a former marriage, are the complainants.
    - The complainant, Susan, was the daughter of Arthur and Susan Cobb, who, in her infancy, resided near Natchez, and afterwards in the parish of West Feliciana, in the state of Louisiana, where they died. She first intermarried with William Cobb, at whose death, she received from her father-in-law, Frederick Cobb, as part of her husband’s estate, two slaves, Wilt and Jenny. She next intermarried with Ira C. Kneeland, father of the other complainant, who was born after the death of his father, which happened in 1809 or 1810. Her father, before his death, gave her two slaves, Anthony and Dick. After his death in 1811, she received of his estate three slaves, Thomas, Isharn and Jacob, In Decern-ber, 1811, she intermarried with Jason Thompson, who was a citizen of Davidson county, Tennessee, where he had a farm, other property and a family. At the time of this marriage, the complainant, Susan, was possessed of the property received from the estate of her husband, William Cobb, and her father, Arthur Cobb; namely, of the slaves, Will, Jennyr Anthony, Didc, Thomas, Isham and Jacob.
    
    Thompson, after the marriage, which was celebrated at the place of complainant, Susan’s residence, took upon himself the control of her property as well as his own; and sold her slave Will for 900 dollars, and Thomas for 250 dollars. lie settled on the plantation occupied by his wife, where, with her slaves and three or four of his own, he made a crop in the year 1812. Xtn the month of .'lay, that year, he quarrelled with his wire’s relations, the Cobbs, about the division of Arthur Cobb’s estate; and in a fight with one of them, gave him a mortal wound. Before this occurrence he had not been heard to say any thing of removing, but afterwards he told Flowers, his near neighbor, and who subsequently became his agent, that he would leave the state. He did return to Tennessee in November or December, 1812, bringing with him all his wife’s property above mentioned, exceptthe slaves sold, and the proceeds of the cotton crop of 1811, which he had also sold.
    In 1819, Susan Cobb, mother of complainant, Susan, died, and her estate was administered by the parish judge according to the laws of Louisiana, where the administration is conducted as a suit. In this process, the complainant, Susan, was represented by Benjamin Scurlock, who was appointed her attorney by the parish judge.
    From his record it appears that the estate consisted of 500 arpents of land, about forty slaves, stock, &c. &c. On the 23d of November, 1819, some of the heirs petitioned for a sale of the estate on a credit of one, two and three years, which was ordered accordingly. The sale was made; and on the 22d of April, 1820, the judge proceeded to form the mass-of the estate, which, after paying the debts, was found to be $46,78? 29 cents, which, when divided amongst seven heirs, gave each ‡6683 87 cents. The third lot consisting ofdiv ers chases in action, was assigned to Mrs. Thompson.
    Thompson procured from his wife a power of attorney,, dated the 4th of January, 1824, to ask, demand and receive’ her share of said estate. He filed this power with the parish judge, and it was recorded in his office, after which he pro-* ceeded to collect said share, some part of which he reduced to his possession, and managed it as his own property, but some of it remained uncollected, it is probable, at his death, which occurred on the 22d of April, 1S33.- Before'his death he had made his will, in which he gave his oWn property, and all his wife’s besides, to his own children. To complainant Kneeland, his wife’s only child by her former marriage, he gave a very inconsiderable legacy, and withal annexed to it such burdensome conditions as to make it worthless.
    Complainant, his widow, dissented from his will, and having transferred to her son, the other complainant, all her demands against Thompson’s estate on account of her Louisiana property, joined him in filing this bill in the chancery court at Franklin, on the I7th of October, 1835, against Enoch Ens-ley, administrator with the will annexed, of Jason Thompson and John McNairy Thompson, who had taken possession of one of her negroes, Anthony, under a gift from his father in his life time.
    Answers were filed, and testimony taken, from all which the' case appeared as above stated.
    At April Term, 1838, the cause was heard by Chancellor BRamlitt upon the pleadings and proofs, among which was the printed code of Louisiana of 180S, admitted as if proved. His Honor declared that the estate of Jason Thompson was accountable to the complainants as follows, and not otherwise — 1. For all the property of which complainant, Susan, was possessed at the time of her marriage with Thompson, whether movable or immovable. 2. For all immovable property, which was of her share of her mother’s estate. 3. For the profits of said property, which accrued, or might have been made after the death of Thompson, whether such profits consisted of the rent of lands, hire of slaves or interest of .money. 4. For any profits of said property which accrued
    
      January 1.
    before the death of Thompson, and remained unexpended at his death.
    That said Susan was entitled to have restored to her all of said property, which remained in kind either in the hands of Thompson’s personal representatives, or in the hands of his heirs or voluntary donee. And finally, that said Jason Thompson’s estate in Louisiana-was charged, as by a tacit mortgage, to render said account. But because it was unknown to the court what property said Susan was seized and posses-sed of at the time of the marriage; what immovable proper-ty came to her by succession to said Susan Cobb; what profits may have accrued on said property at the period above expressed; and what property yet remains in kind to which said Susan is entitled as aforesaid: it was referred to the Clerk and Master to take and state an account in the pre-mises, and report thereof to the next term of the court.
    From this decree the defendants appealed in error.
    WASIIINGTON and MEIGS, for the complainant,
    said---There does not appear to have been any marriage contract between complainant Susan and Thompson-in which case, “in relation to property, the law only regulates the conjugal association.” La. Code, art. 2305; Code of 1808, p. 324, art. 8. The law divides the property of married persons into separate property and common property. Separate property is that which either party brings in marriage, or acquires the marriage, by inheritance or donation made to him or her, particularly. Code, art. 2314. The separate property of the wife is divided into dotal and extradotal. Art. 2315; Code of 1808, p. 324, arts. 11, 12, 13, 14. No property is dotal but what is so declared by the marriage contract. Code, art. 2317, 2318. All property not made dotal by the contract, is paraphernal. Arts. 2315, 2360. See also The Partidas, vol. I, p. 523, law 17; Code of 1808, page 334. Therefore, as there was no contract in this case, all the separate property Mrs. Thompson, which she brought in marriage, i. e. had at the time of the marriage, or acquired during the marriage, was paraphernal. As to the administration of paraphernal and the disposition of it on the dissolution of the see code of 1S08, pagé 334, et seq. As the marriage in this case was contracted and celebrated in Louisiana, there would be no difficulty in deciding if there had been no change of domicil during the marriage. The law upon this point, may be seen in Story’s Conflict of Laws, from section 157 to 159 inclusive, where it is laid down, after a very full comparison, (in previous sections) of authorities, in accordance with the decisions of the supreme court of Louisiana,'the result of which is stated in § 158, to be — “that in case of a marriage without any express contract, the lex loci contractus will govern as to all movable and immovable property within the country” — p. 142 — and also to all movables out of-the country. .
    But where there is a change of domicil, two questions present themselves — 1. What is the law in relation to property acquired before the removal? 2. In relation to property acquired afterwards in the new domicil. The supreme court of Louisiana has settled these questions in the following way:— “Where there is no express contract, the law of the matrimonial domicil is to prevail as to the antecedent property; but the property acquired after the removal — in the place to which they have removed — is governed by the laws of that place,” Story, § 178, and authorities cited.
    But in this case a further question arises, the decision of which is important with reference to the movable property, that is, with reference to Mrs. Thompson’s share of her mother’s estate. The question referred to is — What is to be regarded as the matrimonial domicil in this case? And it is admitted, that if the court should think, in point of fact, that, at the time of the marriage, the parties intended to fix their domicil in Tennessee, that would be the matrimonial domicil, and the law of Tennessee would govern as'to community of movable property previously acquired; in other words, there would be no community; Story, § 198; and the same rule would, in that case, apply to movable property which might afterwards descend to the wife in Louisiana.
    The movable property of the married couple is governed by the law, neither of the previous domicil of the husband, nor of the wife, but by the law of the intended domicil. Story, § 194. Partidas,' page 532 and note. And this is not that domicil, which the husband secretly and separately intends, but that which is mutually intended both by the husband and wife. The court will then have to be satisfied that Tennessee was mutually intended to be made the domicil of the spouses at the time of the marriage. Otherwise, all the just expectations of the wife might be disappointed by a change of domicil, either secretly intended by the husband at the time of the marriage, or arbitrarily resolved upon by him after the marriage.
    If the court should be of opinion that it was not mutually intended by the parties to make Tennessee their domicil; or, which is the same thing, that there is no evidence of such intention, then the case will be governed by the 24th Law of the 11th title of the fourth Partida, which declares — that the law of the country where the marriage was contracted, ought to have effect as it regards the dowery and arras; and also with respect to property acquired during the marriage. See 1 Moreau and Carleton’s Partidas, 532, and the note there. Le Breton vs. Nouchet, 3 Martin, 60 et seq.
    
    The note upon the law just mentioned is by an approved commentator; he is referred to with approbation by Mr. Livingston in the argument of the case of Le Breton vs. Nouchet, 3 Martin 62, 63. And this note settles all the questions above mentioned, as they have since been by-the supreme court of Louisiana.
    From all which they said the following propositions resulted—
    1. That if Mrs. Kneeland, at the time of her interinarriage with Thompson, had been domiciled in Tennessee, the ne-groes, then in her possession, would have been Thompson’s, jure mariti. .
    
    2. That the law would be the same, if, at the 'time of the marriage, both parties intended to remove from Louisiana, where the marriage was contracted, to Tennessee; in other words, that Tennessee was to be the place of their residence. Because, in that case, Tennessee wojild be, in contemplation of law, the matrimonial domicil.
    3. But they were married in Louisiana, and the law presumes the place of the marriage to be the intended matrimonial domicial. And this presumption will stand till it is removed by proof.
    The proof must show,'that at the time of, that is, before the marriage—
    1. Either the husband declared his intent to make Tennessee the matrimonial domicil, and the wife acquiesced.
    2. Or that it was mutually agreed between them, that Tennessee should be the matrimonial domicial.
    In either of these cases, the wife, in legal contemplation, contracts to surrender to her husband the marital rights of the' state intended to be the matrimonial domicil.
    But a secret intent, in the mind of the husband, not expressed and acquiesced in, or agreed to by the wife, would not have the effect of making some other than the place of marriage, the matrimonial domicil.
    4. That the property which descended to Mrs. Thomp-' son in 1819, from the estate of her grandmother,' Mrs. Cobb? if immovable, would not be affected by the Tennessee marital right.
    F. B, Fogg and E: H. Ewing for the defendants,
    said,— that although the slaves were immovable irrespective of the matrimonial domicil, yet, as they were Mrs. Thompson’s paraphernal property, she could control them, and consent to their being converted into cash, which she had actually done; that having done this, and the husband having reduced them into possession when thus converted, the law ot the matrimonial domicil would attach upon their proceeds. And they cited; upon this point, the Digest of 1808, p. 334, art. 60; Story’s Confl. 171, 198;' Digest, p. 28, art. 22,23, 24; p. 334, arts. 59, 60.
    But if her assent and acquiescence for 20 years did not destroy the immovable nature of the property, in relation to the marital rights, it is contrary to'the policy of our law to enforce or encourage such claims; and no state is bound to respect the peculiar legislation of other governments, when adverse to its own interest and policy. Story’s Confl. § 25.
    2. As to the property derived from Susan Cobb, they insisted that the law of the actual domicil governs it, because it had been converted into cash by a judicial sale, in which Mrs. Thompson was represented, and she had given her husband a power of attorney to receive the proceeds; and they said it was impossible to distinguish this from the case of the sale of a wife’s realty with us from the necessity of partition, in which case the proceeds would go to the husband as personalty. They cited Digest 172, 4; 186, 187.
    February 8.
   Turley J.

delivered the opinion of the court.

This bill is filed by Susan Thompson, widow of Jason Thompson, deceased, and Ira C. Kneeland, her son by a former marriage, to recover property claimed by her against the estate of the said Jason Thompson, as belonging to her in her individual right by the operation of the laws of Louisiana, the place of her residence when last married.

Their right to the relief sought depends upon a construction of the law as applicable to the case, upon the following facts.

Mrs. Thompson, the widow of Ira C. Kneeland, resided in the state of Louisiana, and Jason Thompson resided in the state of Tennessee, they intermarried in the state of Louisiana; at the time of the marriage Mrs. Kneeland was possessed of property, movable and immovable. In some short time after the intermarriage they removed to the state of Tennessee, the domicil of the husband, and afterwards other property, movable and immovable, descended to Mrs. Thompson, upon the death of her mother Susan Cobb, a resident citizen of the state of Louisiana.

The question presented for consideration is, — what rights did Jason Thompson, the husband, acquire by virtue of the marriage, over the property of his wife Susan?

By the principles of international law, we consider the following propositions upon this subject settled.

1. If there be no determinate domicil of either the husband or wife, at the time of the marriage, the lex loci contractus governs the husband’s right to the movable property of his wife at the time of the contract, and the lex rei sita, to the immovable.

2. If the husband and wife have different domicils, the law of that of the husband is to prevail as to the wife’s movable property, because the wife is presumed to follow the domicil of the husband.

3. If the parties, at the time of the contract, had reference to another state than the one where it was made, as the place where they intended to live, that the law of the place of intended residence, if it become the actual residence, will govern the right of the husband to the movable property of the wife, and not the lex loci contractus.

"" If there has been a change of the domicil after the marriage, the law of the new domicil shall govern the right of the husband to the movable property of the wife acquired after the change, and not the lex loci contractus. See Story’s Conflict of Laws, from § 143 to § 189, from which we think these principles are clearly deducable. But it is to be observed, that the correctness of these propositions of necessity depends upon the facts, that there has been no express contract between the parties, by which these rights have been changed.

At the time of the marriage between Jason Thompson and his wife Susan, the domicil of Jason Thompson was in the state of Tennessee, that of his wife in the state of Louisiana, which was also the locus contractus. After the marriage, the residence of the parties became the state of Tennessee, where Jason Thompson died.

From the principles above deduced, then it necessarily follows, that, inasmuch as by the laws of the state of Tennessee the husband acquires an absolute right to the movable property of his wife, Jason Thompson, by virtue of his marriage in the state of Louisiana, acquired such right to the movable property of his wife as belonged to her at the time of her marriage, or which she may have acquired from any source whatever since that event and his death, and which he may have reduced into possession during his life time.

This makes it necessary for us to enquire what property is movable and what is immovable by the laws of Louisiana.

It has been held at the present term of the court, in the case of McCollum & al. vs. Smith, “that every state may impress upon all property within its own territory, any character it may choose, and no other state or nation can impugn or vary that character.

Upon an examination of the laws of the state of Louisiana, Digest of 1808, page 96, c. 2, Title Immovables, it will be seen that all the lands and the appurtenances.thereto belonging, slaves, cattle intended for cultivation, implements of husbandry, and other things not necessary to be specified in this case, arc declared to he immovable.

To all property of this description then, Jason Thompson obtained no right by virtue of his marriage with his wife, whether the same was acquired before or after that event, in the state of Louisiana. ( And for so much of it as may now be in the possession of his administrator, or may have been used by him during coverture without his wife’s consent, his estate must account to the complainants. But his right to every other species of property, and which may be embraced under the title of movable, is, by virtue of the marriage, paramount to that of'his wife, and must prevail against it. And, under this head, will be classed all the property, both movable and immovable, which descended to Mrs. Thompson from the estate of her mother, Susan Cobb, which was sold by the order of the parish court in the state of Louisiana, for the purpose of making ¿ division and distribution between the heirs; and the proceeds of which were received by Jason Thompson, under a power of attorney from his wife.

In this case, the immovable estate of Mis. Thompson, which was converted into movable, or personal, property, in Louisiana, by operation of law, and which was afterwards received by Jason Thompson, or by virtue of the power of attorney of his wife, without qualification, and without any agreement, that it should be held for her separate use; became, by virtue of such reception, his absolute property.

If any of her property, which was immovable by the laws of Louisiana, remains in specie in the possession of any of the defendants, the complainant is entitled to have it delivered up to him, and to an account for hire or profits from the date of Thompson’s death. Or, if any such property were converted to personal, by Thompson, or by a decree of the court, and he became possessed thereof without his wife’s cónsent, his administrator must account therefor with interest.

The decree of the chancellor will therefore be reversed an(j reformed, so as to charge the estate of Jason Thompson in accordance with this opinion, giving interest on all sums of money received by him in his life time, by a conversion of the immovable property of his wife from the date of his death, and hire at a reasonable rate for all, which may have come to the hands of the administrators of Jason Thompson, in kind from the same period,  