Harral v. Harral. agreed is its truc legal site, and that this place of performance is the matrimonial domicile to which the husband and wife propose to repair. Whart. Confl. Laws, § 192. On the marriage, the legal presumption is that the wife takes the domicile of her husband, and her rights are subject to the law of his domicile; but that presumption is overcome, and the legal inference is superseded, when on the marriage, the parties adopt a place for their matrimonial domicile in which event the matrimonial domicile will control, and will regulate the property rights of the parties in movables. The authorities are quite generally in accord in selecting the matrimonial domicile as the place which shall furnish the law regulating the interests of husband and wife in the movable property of either, which was in esse when the marriage took place. Perplexing questions sometimes arise as to what place shall be deemed the true matrimonial domicile in the sense of this rule. Mr. Justice Story supposes a case where neither of the parties has a domicile in the place where the marriage was celebrated, and the parties were there in transitu, or during a temporary residence, or on a journey made for that sole purpose animo revertendi, and says that the principle maintained by foreign jurists in such cases would be that the actual or intended domicile of the parties would be deemed to be the true matrimonial domicile; or to express the doctrine in a more general form, that the law of the place, where at the time of the marriage the parties intended to fix their domicile, would govern all the rights resulting from the marriage. He also supposes the case of a man domiciled in one State marrying a lady domiciled in another State, and says that foreign jurists would hold that the matrimonial domicile would be the domicile of the husband if it was the intention of the parties to fix their residence there, or the domicile of the wife if it was their intention to fix their residence there, or in a different place from the domicile of either the husband or wife if they intended to establish their matrimonial domicile in some other place. He then refers to the decisions of the courts of Louisiana, adopting the same principle, and concludes, that "under these circumstances, where there is such a general consent of foreign jurists to the doctrine thus recognized in America, it is not perhaps too much to affirm that a contrary doctrine will scarcely hereafter be established; for in England as well as in America, in the interpretation of other contracts, the laws of the place where they are. Harral v. Harral. to be performed has been held to govern. Treated therefore as a matter of tacit matrimonial contract (if it can be so treated), there is the rule of analogy to govern it; and treated as a matter to be governed by the municipal law to which the parties were, or meant to be subjected by their future domicile, the doctrine seems equally capable of a solid vindication." Story's Confl. of Laws, §§ 191–199. All perplexity on this subject is removed where, as in this case, the place where the marriage is celebrated, the domicile of the wife, and the establishment of a home after the marriage, concur. The place of contract and the place of performance being the same, on legal analogies there would seem to be no doubt that that place would be the matrimonial domicile, and that the incidents of the marriage would be determined by the law of that place. Nor can that question, which has given rise to great diversity of opinion where new property has been acquired after the marriage, and in a new domicile, arise in this case, for the property to which this controversy relates was in esse at the time of the marriage, and the matrimonial domicile then established continued until the husband's death; and it is universally allowed that when a marriage takes place without settlement, the mutual rights of the husband and wife in each other's movable property are to be regulated by the law of the matrimonial domicile, so long as that remains unchanged. Westlake's Int. Law, § 360. The French law recognizes a conjugal domicile analogous to what is known in our law as a matrimonial domicile, and is distinguished from that domicile which is required for the purpose of contracting a lawful marriage; and the law of that country, with respect to the effect of the conjugal domicile upon the rights of husband and wife in the movable property of either spouse, is in accordance with the views above expressed. George Merrill, a witness called by the defendants, who is not an attorney or avocat in the French courts, being a foreigner who studied law in New York city, said that a foreigner cannot acquire a domicile in France without complying with article XIII of the Code, except it be a matrimonial domicile, which he defines to be the residence necessary to confer jurisdiction on the magistrate for the celebration of the marriage; and that in the case of an American citizen establishing his residence in France, with intention of making that his permanent home, marrying and living there, not having received the government authorization, according to the Code, his personal property would be distributed VOL. LI-4 Harral v. Harral. according to the American law. On the other hand, M. Goiraud, a French lawyer, called by the complainant, testified that the domicile necessary for a foreigner to contract a legal marriage required only a residence, in fact, for six months, and that the domicile which was to govern the marriage relations of the parties would be the conjugal domicile, which he defined to be the domicile which had been chosen by the parties, either at the time of the marriage or after the marriage, in order to be finally settled. M. Clunet, avocat of the court of Paris, called by the complainant, testified that French jurisprudence, in order to establish the marriage relation of the parties married without a contract, takes as a principle their supposed intention, and finds the expression of that intention in what is called the conjugal domicile, or in other words, the place where after the marriage the parties establish themselves. Both these witnesses agree that government authorization is not required for the establishment of a conjugal domicile in France, which when the marriage is celebrated in France without a contract, will make the property of a foreign-born husband subject to the community law. The decisions of the French courts sustain the opinions given by M. Goiraud and M. Clunet. In Breul's case, Sirey (1854), 2–105, translated in 4 Phillim. Int. Law, 226, and more fully in Cole on Domicile, 45, 47, Breul was a Hanoverian; he married a French woman in France, and died there; at the time of his marriage, and at his death, he was domiciled in France, but had not obtained a governmental authorization for that purpose. On appeal the question was whether there was a community of goods between husband and wife. The court held that there was, and that foreigners were capable of entering into all contracts depending on the law of nations, and could, when they marry in France, accept tacitly the rule of community, established by law, in the same way as they might have made that rule the subject of express stipulation in a formal contract; that to make this principle apply to foreigners, it was not enough that the marriage was celebrated in France; but that it was also necessary that the intention of the contracting parties to adopt the community should be manifested by affirmative acts; that the establishment of a domicile in France had always been regarded as the most positive manifestation of such intention; that the domicile ought to have an importance to distinguish it from simple residence, but it was not necessary that it should have been Harral v. Harral. authorized by the government under article XIII, for the reason that the object of this authorization was to confer on the foreigner all the civil rights of native-born Frenchmen, and that these rights were not necessary in a foreigner in order to enable him to enter into matrimonial conventions, which are purely of the jus gentium. In Lloyd v. Lloyd, Sirey (1849), 2-220; in Cole on Domicile, 37, and translated in a note to Whicker v. Hume, 13 Beav. 401, James Lloyd, a foreigner, whose birthplace was unknown, and who was, by presumption and residence, an Englishman, came to France, and established himself there permanently. In 1836 he married, at Paris, a French woman, without a marriage settlement. He had three children by the wife before marriage, and three afterward. He continued his residence, and died in Paris, leaving his wife and the six children surviving him. The widow claimed, before the French court, that portion of the property which would belong to her by the French law, if she and her husband were married under the régime of the communauté des biens. Her right depended on whether, at the time of the marriage, the decedent had a legal domicile in France. He never had applied for or obtained an authorization under article XIII of the Code. The tribunal of the Seine decided against her claim, but the decree was reversed by the Court of Appeal, and the claim of the widow sustained. The court said that it is fruitless to contend that the domicile of James Lloyd, in France, was not accompanied by the authorization of the government, required by article XIII, and therefore it cannot be taken into consideration as regulating the conjugal domicile, for it is a fixed principle of law, as well before as since the Code, that a foreigner, even when he perserves that quality, could acquire a domicile in France; that article XIII of the Code did not intend to change this state of things; that it is only when a foreigner wishes to possess such a domicile in France, as will confer upon him all civil rights, that the authorization of government is required; that in the present case it is not a question as to a civil right, exclusively appertaining to a French citizen; that the tacit agreement as to the community of goods, resulting from submission to articles 1393, 1399, 1340, and the succeeding articles, was purely derived from the law of nations." 66 In Fraix's case, Fraix was a Savoyard, and settled in Paris, where he married his second wife, a French woman. The question was whether he married under the French communauté des biens. The Harral v. Harral. court held that although he had not been authorized by the government to establish his domicile in France, a domicile was not necessary to make the communauté applicable, which is presumed to have been the intention of the parties when they fixed themselves in France. 4 Phillim. Int. Law, 231. In Ghisla's case, decided in 1878, Ghisla was a Swiss by birth. He married a French woman in France, and before and after his marriage had his domicile in Marseilles, and in that place died. His widow claimed the benefit of the community law, and it was adjudged to her by the court of Aix, the ground of the decision being that where one of the married couple is French, and the other a foreigner, they are, in the absence of a contract, governed by the law of the conjugal domicile; that the intention of the parties is to be considered before their nationality, and that to the fixing of the conjugal domicile, government authorization was not required, for whatever appertains to the marriage belongs rather to the jus gentium than to the civil law, properly speaking. Jour. Int. Law 1878, 610. In Dages v. Laborde it was held that the legislation applicable to the civil interests of a marriage, was that of the place where the married couple established their domicile immediately after the marriage, and where it appeared that it was their intention to fix the principal place of their business, and to raise their family, and that this domicile was denominated their matrimonial domicile. Court of Pau, 1835, affirmed in the court of cassation, December, 1836, 28 Annual des Palais, 537. Giovanetti v. Orsini, Sirey (1855), 699, is the converse of the cases cited. In that case a Frenchman, while domiciled in Tuscany, married an Italian woman in Florence. They afterward removed to France. On her death the question arose in France as to the matrimonial régime governing the estate of the deceased wife. There had been an agreement subsequent to marriage, with respect to property, not valid under the French law. The court held that the marriage having been contracted at Florence, and the parties having, at the epoch of their marriage, fixed their matrimonial domicile in Tuscany, the marriage was necessarily under the influ ence of the Roman law, which governed such matters in Tuscany, according to which, agreements subsequent to marriage were authorized and valid. Cole Domicile, 41. Morand v. Commune de Mézère, Sirey (1873), pt. II, 148, much relied on by the defendants, is not in point. The parties were |