Rosenbaum v. Garrett.

up in the answer and so stands as a fact in the cause, and is entirely settled by the decisions of that state as they are collected in the opinion attached to the answer.

As already observed, the will was executed in Pennsylvania by a testator domiciled in that state at the time of his death. The general rule is that, as respects the personal property of a testator, the validity and meaning of the will are to be determined by the law of the domicile of the testator. 1 Jarm. Wills. (R. & T. ed.) 3; Theob. Wills (4th ed.) 3, 4; Story Confl. L. *470; 3 Encycl. L. 636; In re Trufort, 36 Ch. Div. 600.

In Trotter v. Trotter, 4 Bligh (N. S.) 502, Lord Lyndhurst said: "There are certain rules of construction adopted by the court, and the expressions which are made use of in a will and the language of a will have frequent reference to those rules of construction, and it would be productive, therefore, of the most mischievous consequences and in many instances defeat the intention of the testator if those rules were to be altogether disregarded."

And in Harrison v. Nixon, 9 Pet. 483, 504, Judge Story writes: "They [wills] are supposed to speak the sense of the testator according to the received law and usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a conclusion. In regard to personalty in an especial manner, the law of the place of the testator's domicile governs the distribution thereof, and will govern in the interpretation of wills thereof unless it is manifest that the testator had the laws of some other country than his own in view."

The exercise of powers conferred by a testator is controlled by the law of the testator's domicile, both as to the execution of the power and the interpretation of it. Bing. App. Cas. 64 Pa. St. 345; Sewall v. Wilmer, 132 Mass. 131; Tatnall v. Hankey, 2 Moo. P. C. 342.

Now, that the language of a will creating trusts in property stands upon the same footing as any other indication of a testamentary disposition of property seems too plain for discussion.

The power of the trustee over the personalty and the extent

Rosenbaum v. Garrett.

of the right of the cestui que trust to it, are to be ascertained by reading the will in connection with the law of testator's domicile, unless it is manifest that the testator had in mind the law of some other state.

The insistence of the counsel for the complainant is that it must be concluded that the testator intended that this trust should be administered and construed in accordance with the laws of New Jersey, from the fact that he named a trustee who was at the time the will was made, as well as at the time of the testator's death, a resident of New Jersey.

It is also assumed in the argument that the cestui que trust was also at the same time domiciled in this state. But it only appears in the bill that it was filed by her as a resident of New Jersey. Where she resided when the will was made and when the testator died, does not appear.

But if both trustee and cestui que trust were domiciled in New Jersey at the dates mentioned, the result, in my judgment, is the same. Neither condition of fact would fix upon the testator an intention that the trust should be construed by the law of New Jersey.

There is a line of cases in which trusts are so clearly to be administered in a foreign state that many questions which would be otherwise determined by the domicile of the testator, will, in these instances, be determined by the situs of the trust. These are cases of gifts to charities established in a country or a state other than the domicile of the testator.

The rule, as stated in Mr. Barr's work on International Law p. 832, is this:

"When a testator has appointed a continuing trust with a legal habitation in another country, e. g., for the establishment of a system of charitable education there, then the law of that country will regulate the conduct of the trustees appointed for the management of the bequest, and will interpret according to its own rules the succession of the original trustees prescribed by the testator; if he has used the word 'heirs' of the original trustees, the law of the place of administration will read the word 'heirs' in its own sense."

The cases cited in support of this statement are Prevost of Edinburgh v. Aubrey, Amb. 236; Attorney-General v. Lepine, 2 Swanst. 181; Emery v. Hill, 1 Russ. 112.

Rosenbaum v. Garrett.

So, it was held in Chamberlain v. Chamberlain, 43 N. Y. 424, that where there was a bequest to a foreign charity, the money would be ordered paid over to the proper parties, leaving the courts of the state where the charity is to be established to provide for its administration.

The construction of the will, however, is controlled by the law of the testator's domicile. To the same effect is the case of

Burbank v. Whitney, 24 Pick. 154.

This line of cases does not seem to afford much assistancę to the attempt to withdraw the construction of the present trust from the control of the law of the testator's domicile. It was apparent in those cases that the testator intended that the bequests should be used by the charitable organizations in the same way that they used all of their property.

A general bequest to such a charitable body would import that the fund was to be employed and administered for the general purposes of the charity by the persons and in the manner provided for by its own laws and regulations.

These cases deal with a class of trusts quite different from the ordinary trust created by a gift to one person for the use of another.

The former class of trustees has a permanently-fixed domicile and a regularly-organized system for the administration of its funds. The latter class has not.

These cases deal with matters involving the administration rather than the construction of trusts, but the question in the case in hand is primarily one of construction.

The testator, in creating the trust, has employed certain words which by the law of the place of his domicile affect the power of the trustee and the extent of the right of the cestui que trust in the trust fund. The testator declared that the complainant should have the use of the trust fund "free from the control of her husband."

The courts of Pennsylvania have adopted the rule enunciated by Chancellor Kent in his great opinion delivered in the case of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 78. Chancellor Kent's opinion was that a wife held her separate

Rosenbaum v. Garrett.

property with only the degree of power to control and dispose of the same which is expressly given her by the instrument creating the separate estate; that the married woman is not to be deemed a feme sole for all purposes in respect of her separate property, and is not left in a position to be cajoled out of it by her husband or stripped of it by her creditors. Therefore, whenever it appears that property left to a wife is to be free from marital influence, the courts of Pennsylvania hold that it is to be preserved in the hands of a trustee during the period of coverture (Perry v. Boileau, 10 Serg. & R. 208), although the trustee has no active duties to perform. Lancaster v. Dolan, 1 Rawle 247.

The present bill was filed in this court obviously because it was supposed that the law of New Jersey is more favorable to the claim of the complainant, for the rule prevailing in Pennsylvania has not been adopted here. The decision of Chancellor Kent in Methodist Episcopal Church v. Jaques, supra, was reversed by the court of errors, that court holding that a married woman's power to dispose of separate property given to a trustee for her use, free from the debts and intermeddling of her husband, was absolute and she could give it to her husband if she so chose. This view of the power of a married woman over her separate property was adopted by this court in Leaycraft v. Hedden, 3 Gr. Ch. 512. The modern doctrine of the British courts of equity also is that the creation of a separate estate in a married woman, unless coupled with a restraint upon alienation or anticipation, confers an absolute interest in the equitable estate. Whether the interest of the married woman is limited to a right to receive the income during her coverture, or she has a right to receive the entire estate, depends upon whether the trustee has any active duties to perform in respect to the trust estate. If he has not, then he can be called upon to convey the estate to the cestui que trust or to her appointee, even if such appointee is the husband of the married woman.

So it is assumed that by the law of this state this trust, the trustee having no active duties to perform, is a passive trust and the trustee can be called upon to transfer the corpus of the trust fund to whomsoever the cestui que trust may designate.

Magowan v. Magowan.

It is clear that if the trust now in question had been created in this state, and at a time preceding the existence of our statutes giving a married woman a separate property in bequests and devises to her, this would have been its effect. It may, perhaps, be queried whether such a trust, created since the enactment of those statutes, should receive the same construction, for the words used are now useless unless the testator had in mind an intention to guard the married woman in all events against the force of marital persuasion or brutality.

If, however, as I think, the question in hand is one of construction and therefore the testator is presumed to have used the words creating the trust in view of the law of the state of his domicile, the rights and duties of the parties are plain. The trustee is entitled to hold the corpus of the fund during

1. A recital in a decree of divorce rendered by a court of another state, that the petitioner was a resident of that state for the statutory period, is conclusive in New Jersey, not only as to the period of citizenship but as to the fact of petitioner's domicile in the other state.

2. In an action by a wife to declare a decree of divorce rendered against her in another state void and for maintenance, the only charge of fraud was that there was an agreement for separation obtained from her by duress and fraud and that she was induced to withdraw her defence by duress and false representations. The evidence showed no agreement to withdraw such defence. After the execution of the agreement for separation the wife allowed a decree to go against her by default, and there was no duress that prevented her from continuing her defence.-Held, that the decree above referred to must, in this suit, be regarded as a valid judgment.

3. A divorced wife cannot maintain an action for maintenance against her former husband.