Gambar halaman

personalties of the community and may alienate the must be supplied to her by the succession, and withwhole. If the real property is only partly converted out being deducted from interest due to her. for a certain amount, the husband cannot alienate it Paraphernalia.-All the wife's property that has not without the consent of his wife; he may, however, been settled in dowry is her paraphernalia. If all her mortgage it without her consent; but only to the ex- property should consist of such, and if there is no tent of the portion rendered movable. The stipulation clause in the marriage contract that she shall share the by which consorts agree that each shall pay separately expenses incident to marriage, the wife must contribhis or her personal debts binds them when the com- ute one-third of her income. The wife has the use of munity is dissolved, to refund respectively debts her paraphernalia, but cannot dispose of it without which are proved to have been paid by the community. authority of her husband or judicial authority. I A wifo may stipulate that in case of renunciation of have endeavored to give you a general outline on the the community she shall take back a whole or a part subject, leaving it for you at your leisure to examine of what she brought into it, either at the time or dur- it more fully in detail. You will find the French law ing the marriage.

in respect to the legal status of husband and wife, in Préciput by Agreement. This stipulation by which all their relations as such, the most full and complete the surviving consort is authorized to take, before any law extant. partition, a certain sum or a certain quantity of per- By the Laws of Holland, lawfully contracted marsonal effects in kind, takes effect in favor of the surviv- riages, so far as they are not avoided by a special anteing wife only when she has accepted the community; nuptial contract, have relation either to the person or unless in the marriage contract such right has been re- the goods of the parties. The wife becomes by marserved to her even in the event of renunciation. In riage, as it were, a minor; and the husband her curadefault of such reservations, the préciput can only be tor or guardian; she has no power to appear in courttaken out of the divisible bulk of the community, and is not capable of herself to enter into any contract not out of the private property of the predeceased without the knowledge or consent of her husband, so consort. Préciput is not regarded as a benefit subject as to bind her to others, except so far as she may to the formalities of gifts inter vivos, but as a mar- clearly appear thereby to have derived an advantage riage agreement. When the community is dissolved or profit, or that she, with the knowledge of her husby death the préciput (benefits stipulated by will or by band, has carried on trade openly. By this power of law in favor of one of several co-heirs, or a benefit her husband over her she is bound and liable for all stipulated by marriage settlement in favor of the sur- debts and engagements contracted by her husband, viving husband or wife), may be at once claimed. even without her knowledge, and equally with him

Consorts by their marriage contract may establish a during the marriage and after his death, for one-half general community (à titre universel) of their real and thereof, except the obligation arises from some crime personal property, present and future, or of all their on the husband's part; the husband may at his pleaspresent property only; or of all their future property ure alienate or incumber the wife's property, without only. They may enter into such agreements as they her consent thereto. If, however, the husband make please, provided they do not infringe upon the law. such a manifest misuse of the marital power as is Community by agreement is subject to the rules of likely to bring the wife to poverty, the law affords her legal community in all cases where there is no express the means of checking him. The usual step in such a or implied derogation of the law.

case is a petition that the husband's person and propWhen the consorts, without subjecting themselves erty may be placed under curatorship. to the dotal system, stipulate that there shall be no When not limited or excluded by a previous marriage community or that they shall remain separate as to contract, the law is that community of goods takes property, such stipulation does not give the wife the place immediately on the completion of the marriage, right to administer her property, nor to receive the since it is an established rule in the States of Holland, fruits thereof, which are deemed to be brought by her that man and wife have no separate property, and 80 to her husband for household expenses. The husband binding is this that the community once introduced retains the management of the real and personal prop- by marriage can in nowise be done away with; nor erty of the wife. When the consorts stipulate by the does it make any difference whether it be the first or marriage contract that they should be separate as to second marriage of the parties. Is this reasonable property, the wife retains the entire management of when there are children by the former marriage? both her real and personal property and the free use of Vide Bynkershoek Quant Jur. Lib. 2, cap. 2. There are her revenues. They both contribute to the household two cases wherein this community does not take place expenses. The wife cannot alienate her real property by marriage. (1) In clandestine marriage of minors. without the special consent of her husband, or on his (2) In marriages between parties who have eloped. refusal, without being judicially authorized.

This community extends to every thing possessed by Dowry. - Dowry under the French Code, as gener- the parties on either side at the time of marriage, or ally understood, is the property which the wife brings acquired by them during marriage, whether by inherto her husband to defray expenses incident to mar- itance, legacy, donation, or otherwise, and no profit of riage. Under the dotal system all that she settles, or any kind is excepted. You will notice that the French that which is settled upon her in the marriage contract, law does not go so far as this. Property which after is dotal, unless there is a stipulation to the contrary. the death of the present possessor, goes to the eldest A settleinent in general terms of all the property of in descent of the family; also goods affected with a the wife does not include property that may accrue to trust, and the like. As the parties enjoy alike the her. A dowry can neither be settled nor increased profit or gain during marriage, so are they also equally during marriage. The husband has the sole control affected by all the losses and charges of the property of the dotal property during marriage. If the mar- on either side, among which are to be reckoned the riage is dissolved by the death of the wife, the interest debts, not only those contracted during marriage but and fruits of the dowry to be returned go for the ben- also those with which either of the parties was affected efit of her heirs from the day of the dissolution. If before marriage. it is dissolved by the death of the husband, the wife The consequences of the community of goods thus has the option of demanding the interest of the dowry established are as follows: (1) The goods of both parduring the year of mourning (l'an du deuil), or of ties brought into community at the marriage, as well claiming maintenance during the same period at the as those acquired, are during the marriage common. expense of her husband's succession ; but in both (2) This property, during marriage, is under the concases her lodgings during the year and her mouruing 'trol and disposition of the husband. (3) All debts


contracted before the marriage are common, and must or guardian of his wife, and should be joined with her be paid out of the common estate. (4) At the death of in deeds and law proceedings to which she is a party. either of the parties this community of goods ceases Although she has control over her separate estate, yet ipso jure. (5) The common goods of the husband and her husband's consent is necessary to validate deeds wife are then divided into two parts, the one half as- granted by her. Her personal obligations are binding signed to the survivors and the other half given over; if they are in rem versum of the wife, or have special also those with which either of the parties to the heirs reference to her own property, or have been granted of the deceased party.

by her while carrying on trade on her own account, Effect of English Marriage. By the English law, her husbaud being abroad, or when she is judicially husband and wife are constituted one person; the separated from her husband. A married woman, withvery being and legal existence of a woman is in many out her husband's consent, may validly execute a setrespects suspended during her marriage, and she is tlement, or dispose of her separate estate by any deed under his complete control and protection and cover, which is not to take effect till her own death. Marand was therefore called in the law French of the riage by the Scottish law transfers to the husband all times a feme-covert, fæmina viro co-operta is said to the personal property of the wife at the time of the be covert-baron or under the protection and influence marriage, or which may accrue to her during its subof her husband, her baron or lord; and her marriagesistence, with the exception of personal bonds bearing condition is called her coverture.

interest, and her paraphernalia. The wife is proprietor Out of the union of husband and wife spring almost of her real estate; but the husband is entitled to the all the legal rights, duties and disabilities that either administration and to the whole yearly rents and of them acquire by marriage. According to the com- profits during the marriage. After the wife's death mon law a man cannot grant any thing to his wife or and there has been a living child born of the marriage, enter into any covenant with her, since such an act and the wife has left no heir to her heritage by a forwould suppose her separate existence. As a general mer marriage, the surviving husband has a life-rent tbing compacts made between husband and wife before right to the rents and profits of her heritable estate, marriage are valid by their intermarriage. A man which is called the curtesy. The rights of the spouse, may, however, covenant with others, as trustees for at common law, may be modified by settlements behis wife; and a busband may convey to trustees for fore marriage, and any gift or bequest by a stranger to her benefit. A woman may act as agent for, ber hus- a married woman may be destined for her separate band, as that implies no separation from, but rather as his representative. By the common law of Eng- By the act of 25 and 26 Vict., ch. 84, amending the law land the husband acquires all the personal property regarding congugal rights in Scotland, some important belonging to the wife at the time of the marriage, or changes have been made in relation to the property which may accrue to her during its subsistence, except | rights of married women. her paraphernalia, and such property as may be settled 1. When a married woman succeeds to property, or for her separate use. He is also entitled to all her acquires a right to it by any other means than her own chattels, real or leasehold interests, and to her choses in industry, neither the husband, his creditors, nor any action— such as debts due to the wife on bond or one claiming through him, shall be entitled to such otherwise, these are so far excepted that they do not property, except on the condition of making therein general become the husband's until he reduces thém from a reasonable provision for the support and maininto possession. If he dies before this is done, they tenance of the wife. This claim must be made before remain to the wife, and if she dies before this is done, the husband or his assignees shall have obtained posthey form part of her estate. The husband is also session of the property, and before his creditors shall entitled to the management and to the rents and profits have attached it. of the wife's freehold estates during her marriage. 2. After a decree of separation, a mensa et thoro, obAfter his wife's death he may enjoy for his life, lands tained by the wife, all property which she may acquire, of the wife of which they were seized in her right, for or may come to her, shall be considered as her own, an estate of inheritance, if issue of the marriage is and she may dispose of the same as if she were unmarborn capable of inheriting the property. When the ried, and in case she die intestate, it will pass to her husband seeks in a court of equity the benefit of any living representatives, and while so separated she is of his wife's property, and when no other adequate capable of entering into obligations and be liable for provision has been made for her, the court will order wrongs and injuries and be capable of suing and being part of such property to be settled upon the wife for sued, as if sole. her separate use. M. Paterson's Compendium, p. 297. 3. When a wife has been deserted by her husband As to the rights of property acquired by the wife on she will be protected by the court in all property which her husband's death, the law of England allows them she has acquired by her own industry or which she has to stand on a very precarious footing. The widow's succeeded to or may succeed to after desertion, against dower right in her husband's estate, was once a very her husband or his creditors, or any one claiming valuable provision, but it has now dwindled into in- through him. significance. Under the act 3 and 4 Will. IV, which ap- On the death of the husband, the surviving wife, if plies to all marriages contracted after the first of Jan., she has no conventional provisions, has a right to the 1834, dower cannot be claimed: First, where the estate terce, which is a life-rent of a third of the heritable of the husband has been disposed of by him either in property in which the husband died infeft, including his life-time or by will. Second, a simple devise of burgage subjects. She is also entitled to the jus relictæ, real estate subject to dower, by the husband to the which is a share of the free movable estate goods wife, will bar the dower, unless a contrary intention in communion, amounting to one-half, where there be expressed, and Third, any declaration by the hus- are no children of the marriage, or where the husband band, either by deed or will, that the wife shall not has left no children by a former marriage, and to onehave dower, will defeat her claim. If the husband third only where there are children. These legal prohappen to die intestate, the statute of distributions (22 visions of the widow are not liable to be defeated and 23 Car. II, ch. 10) gives to the widow one-third of arbitrarily at the pleasure of the husband, as the corhis personal property when he leaves issue living, and responding rights of the widow to dower and a share one-half when there is none; but this is a mere chance of the movables may be in England. or hope of succession, which may be defeated by the While the Roman law allowed great freedom to marhusband's will.

ried women, as regards their proprietary powers, the By the Scottish law the husbaud becomes the curator law in modern times lays them under severe restric

tion. The Code Napoleon is much influenced by the sumed to pay for such goods. The common-law principles of the Roman law as regards the powers of liability of a husband civilly for the torts of his wife married women; but the Scottish law goes in the very prevails very generally in this country, unless some opposite direction. The systems which are least in- statute has changed the rule. The courts will sanction dulgent to married women are invariably those which a valid agreement of separation between husband and hare followed the canon law. The doctrines of the wife; and if the husband makes in such agreement a English common law, as well as the Scottish, are provision of a specified sum for the support of the largely borrowed from the Canonists. Recent legisla- wife and makes the payment accordingly, the wife tion has very much softened the rigors of the common cannot create any debts against him for such support. law in England; it has done much in America.

At common law a husband is entitled to the personal In the United States the common-law disability of a property and chose in action of his wife, and they are married woman to make contracts very generally pre- vested in him at her death whether reduced to possesvails where no statute has changed the rule. Several sion or not, in virtue of his marital right, and not of of the States have provided for the protection of mar- his right to administration. The liability of the husried women. Wherever such statutes exist the courts band for the debts of his wife which were contracted have given full effect to them. It is generally held before the marriage is a joint one, and it terminates that such statutes do not enlarge the general powers on her death, uuless enforced during coverture by a of the wife as to all contracts, but only as to such as judgment or joint action against both. affect her property or estate. She may now make bar- The rigor of the common law has been very much gains, carry on any trade or business, and perform softened with every advancing step made in the knowllabor and services on her own separate account as it edge of the principles of the Roman law. Its principles she were unmarried; and the earuings and profits be- have been found readily suitable in every age to the relong to her exclusively. She may sue and be sued in quirements of an advancing civilization. Led by their relation to her separate business as if she were a feme theory of natural law the jurisconsults of ancient sole. Foster v. Conger, 61 Barb. 145. The tendency of times assumed the equality of the sexes as a principle legislation and the adjudication of the court is to ex- of their Code of Equity. The codified jurisprudence tend the rights and powers of married women beyond of Justinian was a powerful solvent of those barbaric those given by the common law. Ordinarily the hus- principles that inhered in the laws in relation to band is entitled to the personal services and earnings women throughout Europe. The legal status of woman of the wife, unless it is earned in a business carried on was read rather by the light of the canon law. This upon her sole and separate account. The statutes in was inevitable since the canon law nearly everywhere some of the States are broad enough to give the wife prevailed. In some of the French provinces married the earnings of her personal services in all cases and women obtained all the powers of dealing with propall the rights which she would have had unmarried, erty which Roman jurisprudence had allowed and the and her husband's creditors cannot reach them on local law was largely followed by the Code Napoleon. their avails. Marshall v. Marshall, 2 Bush (Ky.), 415; Although the Scottish law, which shows such a scruHoyt v. White, 46 N. H. 45 ; Oglesby v. Hall, 30 Ga. pulous deference to the doctrines of the Roman juris386; Whiting v. Beckwith, 31 Conn. 596; Abbey v. Deyo, consults, has been very slow in its progress in mitigat44 N. Y. (5 Hand) 348. As a general rule in this coun- ing the disabilities of married women. try the wife's earnings belong to the husband and A reactionary movement is now taking place. The may be taken for his debts unless some statuto gives tendency of legislation is to give married women the them to the wife. The common law does not permit power of aoquiring, holding and managing their own husband or wife to be a witness for or against the property. other in civil actions. In some of the States they have enacted special laws by which the wife or hus

LIABILITY OF TAX COLLECTOR FOR FALSE band may sometimes be witnesses for or against each

RETURN other, but it is generally held that statutes which merely declare that interest shall not disqualify, do not remove the common-law disabilities of husband

MICHIGAN SUPREME COURT, APRIL 21, 1880. and wife, which are founded on principles of public policy.

RAYNSFORD V. PHELPS. In New York (Laws 1869, ch. 887), in civil actions or A tax collector who held a warrant for taxes assessed upon proceedings a husband or wife is competent and com- land which was mortgaged to plaintiff made a false re pellable to give evidence for or against each other the

turn that there were no goods upon such land to satisfy same as other witnesses, except in actions for adultery,

who tax, whereby it became a lien on the lands to plaintfor criminal conversation or confidential communica

if's loss, he being obliged to redeem at the ta sale of

the land. Held, that the tax collector was liable to tion between them. Southwick v. Southwick, 49 N. Y.

plaintif for the amount of such loss. (4 Sick.) 510. After a dissolution of the marriage by a divorce or by death, either party may be admitted as a witness, unless as to confidential communication tax collector. The opinion states the facts. Demade during marriage. Although the general rule fendant had judgment on demurrer to a complaint seems clearly settled yet there are a few cases which below. seem opposed. After a divorce a woman is still in

C. G. & W. W. Hyde, for plaintiff in error. competent to testify against her former husband in a matter between him and a third party. Having lived

Simonds & Fletcher, for defendant in error. in illicit cohabitation does not render the one incom- COOLEY, J. It was decided in Royoming v. Goodpetent as a witness for or against the other. In case child, 2 W. Bl. 906, that a public officer having minisof bigamy tbe second wife is a competent witness. In terial duties to perform, in which a private individual criminal cases neither can be a witness for or against has a special and direct interest, is liable to such indithe other. A wife may act as agent for her husband vidual for any injury sustained by him in consequence or he is agent for his wife. A wife who leaves her of the failure to perform such duties. It was an officer husband without good cause cannot bind him to pay connected with the postal service who was held liable for necessaries furnished to her by a person who knows in that case, and the decision is followed in this counthat they are living separate and apart. Neither is a try. Teal v. Filton, 1N. Y. 537; 8. C., in error, 12 husband liable for goods sold to the wife upou her sep- How. 284. Election officers have been held liable on arate credit as feme covert trader, who has never as- the same ground (Ashby v. White, Lord Raym. 938; 1


Salk. 19; Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. time, the plaintiff had foreclosed his mortgage and beAnkeny, 11 Ohio, 372); and so have commissioners of came owner of the lands, and was compelled to redeem highways (Hover v. Barkhoof, 44 N. Y. 113; Hathaway from the tax sale. 7. Hinton, 1 Jones (N. C.] 243); and so have inspectors Is the plaintiff wronged by this false returu? We of provisions (Hayes v. Porter, 22 Me. 371. Mickerson think he is. It was his legal right that the goods of v. Thompson, 33 Me. 433; Tardes v. Bozant, 1 La. Anp. Freuch should be sold to satisfy the tax, and the law 199); and so havo tax and other officers (Army v. Su- always intends that legal rights shall be respected. pervisors, 11 Wall. 136; Tracy v. Swartwout, 10 Pet. 80; Moreover, he alone suffered injury from the false reBrovon v. Lester, 21 Miss. 392; Bolan v. Williamson, 1 turn. The public suffered nothing, for the lien on the Brev. 181). It is immaterial that the duty is one pri- land remained and was enforced, and the only injurimarily imposed on public grounds, and therefore pri- ous consequence of the misfeasance in publio office marily a duty owing to the public. The right of action was that the tax was collected from one man, when springs from the fact that the private individual re- the command of the law was that it should be collected ceives a special and peculiar injury from the neglect in from another. performance, which it was in part the purpose of the If there is no wrong without a remedy, then it law to protect him against.

would seem that this action should be supported, for It is also immaterial that a failure in performance is the defendant is the only wrong-doer. It may be made by the law a penal offense. Hayes v. Porter, 22 suggested that the plaintiff might have a cause of acMe. 371, The exceptions are of those cases in which tion against French for money paid to his use, but the functions of the office are judicial, or partake of this is not clear. The statute does not make the purthe judicial. Sage v. Laurain, 19 Mich. 137; Goelchens chaser of land, under such circumstances, personally v. Mattheroson, 61 N. Y. 420; Bevard v. Hoffman, 18 liable; it only renders his property subject to seizure Md. 479; Harrington v. Commissioners, etc., 2 MoCord, during the life of tho tax warrant. Payment by de400. But even in these cases the officer is responsible fendant did not release the property of French, for it if he acts maliciously. Gordon v. Farran, 2 Doug. was released by the neglect of the officer which is (Mich.) 411; Bennett v. Fulmer, 49 Penn. 82, 157; complained of in this suit. The general rule is that Gregory v. Brooks, 37 Conn. 365; Stichfadden v. Lipp-taxes can only be enforced by means of the statutory rick, 49 Ill. 286.

remedies. Crapo v. Stetson, 8 Metc. 393; Shaw v. The principle is as familiar as it is sound. It is nev- Pichett, 20 Vt. 482; Camden v. Allen, 26 N. J. 399, ertheless insisted that the present case is not within Packard v. Tisdale, 50 Me. 376; Carondelet v. Picott, 38 it. Tax collectors, it is truly said, are chosen because Mo. 125. But whether or not the rule applies here is the machinery of government must be kept in motion, immaterial, as this action, in either case, is well and to that end it is essential that the public revenuo grounded in common law principles. should be collected. They are chosen, therefore, and The judgment must be reversed, with costs, and the their duties imposed ou public grounds, not on pri- cause remanded, with leave to defendant to withdraw vate. If through any negligence on the collector's his demurrer and plead, on payment of the costs of part, the State loses a portion of its dues, the officer is demurrer. responsible to the State for the loss; but it is denied (The other justices concur.) that he owes any duty to individuals, except to abstain, as every citizen must, from committing trespasses on their rights. The question of negligence, in BEQUEST OF BONDS DOES NOT INCLUDE the performance of public duties, must always con

OVERDUE COUPONS. cern the public good.

But conceding that the law creates the office of col- NEW YORK COURT OF COMMON PLEAS, SEPTEMBER lector in order that public revenues may be collected,

16, 1880. it does not follow that it leaves that officer at liberty to disregard private interests in their collection. When

MCGRATH V. VAN STAVOREN. the law prescribes who shall be liable for the payment of taxes, and whose property may be levied upon A testator gave to his nieco specified railway bonds; held, therefor, it at the same time, by implication, forbids that interest coupons on the bonds, duo at the time of the officer to seize upon the property of others, or by

testator's deais), did not pass to the niece.

THIS action was brought by Emma H. McGrath and favor of the person whose property is the subject of it,

the construction of some of the clauses of the will of and he is at liberty to buy and sell in reliance upon the George W. Van Stavoren, who died in 1861. To his duty being performed. He has a right to understand

niece the plaintiff named, testator, gave two $1,000 that the officer is commissioned by the law to act only Erie Railway bonds, on which, at the time of his death, with due respect to the rights of individuals, and that there were undetached interest coupons due to the if he acts otherwise and causes special injury, he dis

amount of $280. The plaintiffs claimed that this sum obeys his commission, and is not within the protection belonged to the legatee. The court gave judgment for the commission might otherwise give.

the defendants. The plaintiff owned a mortgage on lands on which a tax was assessed for the year 1874. A warrant was DALY, C. J. The coupons attached to the bond issued for the collection of this tax, and was placed in were due and payable at the time of the death of the the hands of defendant for service. The plaintiff's testator and did not pass with the bond to the legatee, case is that during the life of this warrant, and while but form a part of the coupons of the estate. De Genthe defendant held it, there was personal property dre v. Kent, L. R., 4 Eq. 283-5; Wright v. Tucker, 1 upon the land, belonging to one French, who had pur- Johns. & Hem. 266; Brundap v. Brundap, 60 N. Y. 544, chased the equity of redemption after the first Mon- 551; Lock v. Venables, 27 Beav. 598; In re Rogers, 1 day of May, and before the first Monday of December, Drew & Small. 338; Paton v. Shephard, 10 Sim. 186; of that year, from which it was the duty of defendant, Earp's Will, 1 Parsons' Eq. (Penn.) 453, 464-5; Spear v. under the express provisions of the statute, to make Hart, 3 Robertson, 420. collection. Comp. Laws, $ 1006. Instead of perform- "Specific legacies," says Williams, are considered ing this duty he falsely made return of no goods, as separated from the general estate, and appropriated whereby the tax became established as a lien upon the at the time of the testator's death, and consequently, land, and the land was sold for its satisfaction. Mean- from that period, whatever proceeds accrue upon

property. The implied prohibition creates a duty in | Thotharsiagainst Emma Van Stavoren and others for

them, and nothing more or less, belongs to the legatee." abroad, and went to Amsterdam, whither he was fol2 Williams on Executors (4th Am, ed.), 1221. And it lowed by Charlotte Smith and the three children, and is equally an established rule that the bequest of that he resided there until 1826, and from that date a bond or other security does not pass the interest until that of his death in 1832, he resided in Brussels; which has accrued and is payable on the security, un- that whilst at Amsterdam he had by Charlotte Smith less there is something super-added to the bequest to another child born in 1821 (afterward Mrs. Pieret), and show that such was the intention. Roberts v. Kuffin, that after her birth in 1822 he married Charlotte 2 Atk. 112; Gibbon v. Gibbon, 13 C. B. (4 J. Scott) 217, Smith at Amsterdam, and by the act of register of per Maule, J.; 1 Roper on Legacies (2d Am. ed.), 285; marriage it was declared that the parents intended to Floyd on Wills, 227-8.

legitimize all the children before mentioned, and that The cases suggested - of a bond with coupons at- after such marriage there was a fifth child born (aftertached, given mortis causa (Walsh v. Sexton, 55 Barb. ward Mrs. Denis). It was also set forth that by the 251), or the bequest of a promissory note (Willard, J., evidence taken the four children born before the marin Tifft v. Porter, 8 N. Y. 516) — are not analogous. riage were, according to the law of Holland, legitimate. The gift mortis causa of a bond, with coupons attached By an order of Stuart, V. C., made July, 1862, in which were then due and payable, shows by the de- Goodman v. Goodman, the chief clerk's certificate was livery of the boud with the coupons the intention that confirmed, and it was declared that, it appearing that the donee is to have both the bond and the interest Leyon Goodman was domiciled in Holland at the timo that is due on the coupons. But no such intent is in- of the birth of Madamo Pieret, she was entitled to an ferable by the bequest of a bond in a will, where noth-equal share with her sister, Mrs. Denis, in the legacy ing is said about interest which is then due upon bequeathed by the will of John Goodman to the chilcoupons attached to the bond or which may become dren of Leyon Goodman. due at the time of the testator's death, and in the case Mrs. Pieret now claimed to share with the four of a promissory note drawing interest, the interest is children of Isaac Goodman, according to the statute payable, together with the principal, when the note of distributions, in the lapsed share bequeathed by becomes due, and necessarily passes, as incident of the Rachel Goodman's will, and the amount was paid into note, by the transfer of a note to another.

court by the trustees of her will.

JESSEL, M. R., said that he agreed with the view CONFLICT OF LAW - LEGITIMACY OF CHIL- taken by Kindersley, V. C., in Re Wilson's Trusts, L. DREN BORN ABROAD.

R., 1 Eq. 247; 13 L. T. Rep. 576, as to Goodman v.

Goodman, 3 Gif. 643; 6 L. T. Rep. (N. S.) 641, which ENGLISH HIGH COURT OF JUSTICE, CHANCERY was only a decision that Leyon Goodman was domiDIVISION, JUNE 12, 1880.

ciled in the Netherlands, and continued: But then

there is the case of Boyes v. Bedale, 1 H. & M. 79; 10 Re GOODMAN'S TRUSTS, 43 L. T. Rep. (N. S.) 14.

L. T. Rep. (N. S.) 131, which came before Lord Hath

erley when vice-chancellor. It was decided in that A child, illegitimate according to English law, but who has case that the child or children of a person domiciled

been, according to the laws of its domicile and of its in England must mean the children according to Engparents' domicile, legitimized by a post-natal marriage,

lish law, as distinguished from the children born before cannot take under the statute of distributions as one

marriage and which were not legitimate according to of the next of kin of an intestate dying domiciled in England. The word “ children," in the statute of dis

English law. But the vice-chancellor said more than tributions means children according to the English

that. This is what he said: “I take it that the lanlaw.

guage of the statute of distributions would be dealt with in the same way. If an intestate dies domiciled

in England, the division of his property is governed This was a petition for the distribution amongst throughout by English law, and no person could take the next of kin of Rachel Goodman, who died domi- by representation under that statute, unless legitimate ciled in England in 1878, of a lapsed share of residue by the law of England." That is no doubt only a diepaid into court by her executors under the Trustee tum, but it is a dictum entitled to very great respect. Relief Act.

If I had any doubt upon this subject in this case I The question raised by the petition was, whether a re- should follow the dictum, but I feel myself no doubt spondent, Mrs. Pieret, who was illegitimate according whatever. The words of the statute under which to the law of England, but claimed to be legitimate these parties must come are “brother's and sister's and therefore one of the next of kin, on the ground children.” When an intestate dies without children that she had been legitimized according to the law of you go to the next of kin, but you must not carry in Holland by her parents' post-natal marriage, could representation beyond brother and sister, and consetake a share in the distribution of the fund.

quently this lady must prove herself to be a brother or The facts were as follows: The testatrix died in 1878, sister to take at all, and the question is, whether the having bequeathed a third part of her residuary per- word does not mean exactly what Wood, V. C., said sonal estate to a niece who had died during the testa- children according to the law of England. I think trix's life-time. At the date of the death of the that that is the meaning. Then I hare in addition to testatrix her sole relatives were the children of her that the authority of Kindersley, V. C., in Re Wiltwo deceased brothers, Isaac and Leyon Goodman; of son's Trusts, where he entirely agrees with Boyes v. Isaac there were four children living, and the children Bedale, and decides accordingly. He says: “Now the of Leyon had formed the subject of a special inquiry will being a will made in England by an Englishman directed in a suit of Goodman v. Goodman, 3 Gif. 643. domiciled in England, must be construed according to That suit was a suit for the administration of the estate the law of England. Every term in it must receive of Henry Goodman, the father of the present testatrix, that interpretation which belongs to it accordiug to who by his will bequeathed a share of his residue to English law. What is the interpretation which the the "children of Leyon Goodman."

law of England gives to the term 'children?' U'nBy the chief clerk’s certificate in Goodman v. Good- doubtedly children lawfully begotten, ex justis nuptiis man, it was found that Leyon Goodman had three procreatos, unless indeed there be something in the children by Charlotte Smith, born respectively in 1815, context which satisfies the court that the testator 1818, and 1820, in London, and that in 1820 he left Eng- meant to use the expression in a different sense." land with the intention of permanently residing | Therefore he quite agrees that under the particular

PETITION for payment out of court.

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