1. Under the laws of France, by a marriage without a contract as to propty, a community of property between the husband and wife is established as a incident of the marriage. During coverture the husband has the control ad management of the community property, and he may dispose of his share the common property by his will; but the wife's share that is, the one-half o the community property-the husband cannot dispose of, and she will be etitled to it on his death.

2. A person sui juris may change his domicile as often as he pleases. To effct such a change, naturalization in the country he adopts as his domicile is Inecessary.

5. To effect a change of domicile there must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; to the factum of residence there must be added animus manendi; and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of mak

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Harral v. Harral.

ing it his home, unless, or until something uncertain or unexpected shall happen to induce him to adopt some other place as his permanent home.

4. By the laws of France, the marriage of a foreigner in France without any contract as to property, followed by the establishment of a conjugal domicile in that country, will subject the property of the married persons to the community law, and a government authorization under article XIII. of the Code is not necessary to the establishment of such a domicile.

5. H., whose birthplace was in Connecticut, went to Europe in 1869, for the purpose of acquiring the German language, and completing his professional studies. In 1872 he went to Paris, where he remained; and, in February, 1877, married a French woman in Paris, without any contract as to property. Immediately after the marriage he rented a house at Suresnes, a village near Paris, for two years, and took up his residence there with his wife. In May, 1878, he was brought to this country, and sent to a hospital for the insane, at Philadelphia, where he died in 1881.-Held, that by his marriage in France, and the establishment of his conjugal domicile there, his personal property became subject to the community law, and that his widow, on his death, was entitled to the one-half part thereof, notwithstanding that by his will, made before the marriage, he had bequeathed the whole of it to others.

On appeal from reported in Ha decre

Fre

of the chancellor, whose opinion is

Fall v. Wallis, 10 Stew.

Eq. 458.

1842. He of Phy

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graderick F. Harral was born in Connecticut in sicated at Yale College in 1863, and at the College an and Surgeons, in New York city, in 1868. He was ried on the 20th of February, 1877, before the deputy mayo the city of Paris, to Clarice Marie Le Gars, a French wom In May, 1878, he returned to this country, and died at Kin bride's hospital for the insane, in Philadelphia, July 5th, 188 On the 9th of July, 1869, and before his departure for Europ the decedent duly made and executed a will, devising and ind queathing all his property, real and personal, to his brother a sisters, and appointing William Creighton Peet and Hamil Wallis executors. This will was admitted to probate in the rogative court of this state on the 31st of July, 1882.

The widow filed this bill in the court of chancery of this s to which the legatees under the will of her husband and executors are parties.

The prayer of the bill is that the personal estate of t

31.

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ton

ate, the

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Harral v. Harral.

cedent, so far as concerns the complainant's interest therein, should be distributed in accordance with the laws of France.

On final hearing, on bill answer and depositions, the chancellor made a decree in accordance with the prayer of the bill. From that decree the defendants appealed.

Mr. Flavel McGee and Mr. J. D. Bedle, for appellants.

Mr. John Linn and Mr. F. R. Coudert, of New York, for respondents.

The opinion of the court was delivered by

DEPUE, J.

+

ar

;

The law of France in relation to the rights of husband and wife in the property of either spouse is established by the Code Napoleon. Before the French Revolution, the northern provinces of France were under the coldavad theaw, and the comcustomary me inthe southmunity of property governed the nuptial contract was ein provinces the Roman law prevailed, and the contra governed by the dotal system. The Code Napoleon left the ties to elect the law by which the marriage should be governea and if no election was made, the community system was to prevail. 2 Kent 187, note. Section 1391 of the Code provides that the parties may declare in a general manner that they intend to marry either under the law of community or under the law of dowry. The community is either legal or conventional. Legal community is established either by a simple declaration that the parties marry under the law of community, or by a marriage without any contract on the subject. Sections 1400, 1497. There was no marriage contract between these parties with respect to property; and if disposition of the personal estate in question is to be made by the French law, it must be disposed of as community property.

Community is divided by the Code into two classes-active and pascive. The former relates to the disposition of property; the latter, to liability for debts. The property which is comprised

Harral v. Harral.

in the community consists of (1) All the movable property which the married parties possessed on the day of the celebration of the marriage, and all movable property which falls to them during the marriage, by succession, or even by donation, if the donor has not expressed himself to the contrary; (2) All the fruits, revenues, interest and arrears of what nature soever they may be, fallen due or received during the marriage, and arising from property which belonged to the married persons at the time of the celebration of the marriage, or from such as has fallen to them during the marriage by any title whatsoever; and (3) All immovable property acquired during the marriage. Section 1401. This community, whether it be conventional or legal, commences from the day of the marriage contracted before the officer of the civil power. Section 1399. During the coverture the husband has the custody, control, management and power of disposition (under some restrictions) of the community property, (sections 1421, 1422); and he may make a testamentary disposition of his portion of the community property, but of no more. Section 1423. After the death of the husband the wife may accept or re renounce the community. share that is, the one-half part of the community property-is Section 1453. If she accept it, her Siven ven to her, subject, in the partition, to certain specified deductions and allowances by way of compensation. Sections 1467, 1480. The complainant, in her bill, charges that the legal domicile of the dececient, at the time of his death, was in France, and insists that from the time of the celebration of her marriage with the testator, by force and operation of the laws of France, a legal community was established between her and her husband as to all the personal or movable property possessed or owned by either of them during the marriage, and in all the fruits, revenues, interest and income thereof; and that upon the death of the testator she was entitled to have and receive, absolutely, for her own use and benefit, the one-half part of all such property so held in community between herself and her husband, and that it was not in the power of her husband to dispose of that share or interest in said property, which, by the laws of France belonged to her.

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