Harral v. Harral. The defendants, in their answer, admit that the testator was married to the complainant on the 20th of February, 1877, at Paris; but they say that the marriage was void for the reason that the testator at that time was of non-sane mind, and incompetent to enter into a contract of marriage. They admit that the testator lived in Paris for five years before his marriage, but deny that his legal domicile was, at the time of his marriage, or at any time, in France, and insist that distribution of his personal estate should be made under the laws of New Jersey. They also say that by the law of France no man can become domiciled in France without he shall have first applied to the French government for permission to do so, and obtained an express authorization from the government to establish such domicile, and that the testator never obtained an authorization to establish his domicile in France, and never became domiciled there by the laws of that country. The chancellor, in his opinion, considered the evidence on the subject of the testator's mental condition at the time of his marriage, and reached the conclusion that the testator was not at that time mentally incapacitated to contract marriage or to change or establish his domicile. The evidence shows that the decedent, for some time, had been addicted to intemperance, and that his physical and mental vigor had been impaired by indulgence in drink; but it falls short of proof that, at the time of his marriage, his mental faculties had become so impaired as to incapacitate him from entering into a contract of marriage, or from deciding upon the place of his domicile. The answer contains no allegation of fraud or imposition upon the decedent in procuring the marriage. The case turns wholly upon the applicability of the community law to the testator's personal estate in the hands of his executors. When the testator went abroad in 1869, his property consisted of personal estate, and a house and lot in Bridgeport, Connecticut. The personal estate he left in charge of Mr. Wallis, to be invested and cared for, and it remained in charge of the latter daring the lifetime of the decedent. This personal estate, amounting to about $50,000, at the testator's death came to the Harral v. Harral. hands of the executors. This controversy relates wholly to the personal estate. The domicile of the testator's parents, at the time of his birth, was in Bridgeport, Connecticut. That was his domicile of origin. His father died in 1862. In 1865 the family residence in Bridgeport was sold, and in 1866 his mother removed to New York with all the family, except one son, who was married, and had his household in Bridgeport. The mother rented a house in New York as a residence for herself and the family, which they occupied until her death in December, 1867. After his mother's death, the testator resided in New York city with his brother, until he was appointed house-surgeon in the New York Hospital, and had his residence in the hospital until he went to Europe in August, 1869. The decedent went abroad for the purpose of acquiring the German language, and continuing his professional studies. In 1869 he was in Paris temporarily, and in the fall of that year left Paris for Germany, where he remained about two years. He then went to Paris again, and resided there in No. 8 Rue de la Sarbonne, known as the Latin Quartier. In 1872, he became acquainted with the complainant, who lived with him as his mistress at No. 8 Rue de la Sarbonne, until they were married on the 20th of February, 1877. Immediately after their marriage they began housekeeping in a house rented by him at Suresnes, a village a short distance from Paris. He had a lease of the house for two years, and he and his wife continued to occupy it until his return to America, in May, 1878. He seems to have been attached to his wife. In May, 1877, he wrote to Mr. Wallis, announcing his marriage, and said he was "happy and contented." The facts connected with the residence of the decedent at Suresnes are fully stated in the opinion of the chancellor, and need not be repcated here. The chancellor, from the testimony, concluded that the decedent had settled himself in France to live there, and make it his home. The circumstances under which he was brought to America are also detailed in the chancellor's opinion. They show no intention on the part Harral v. Harral. of the decedent to make any change, at that time, in his domicile. The evidence is quite to the contrary. A person sui juris may change his domicile as often as he pleases. To effect such a change, naturalization in the country he adopts as his domicile is not essential. He need not do all that is necessary to divest himself of his original nationality. 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 the 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 making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. Haldane v. Eckford, L. R. (8 Eq.) 631; King v. Foxwell, L. R. (3 Ch. Div.) 518; Lord v. Colvin, 5 Jur. (N. S.) 351; Aikman v. Aikman, 7 Id. 1017, 1019; Douglas v. Douglas, L. R. (12 Eq.) 617, 644; Udny v. Udny, L. R. (1 Sc. App.) 441; Cadwalader v. Howell, 3 Harr. 144, 145. We think the evidence proves that the testator's domicile, arising from the factum of residence and the animus manendi, was, at the time of his death, by the jus gentium, in France. But it is contended that, inasmuch as the decedent never obtained an authorization from the French government, he was incapable, by the law of that country, of acquiring a domicile in France, and that therefore his domicile of origin, or his domicile before he took up his residence in France, either revived or, by the French law, would govern in the disposition of his personal estate if it was administered upon in France. Article XIII of the Code Napoleon is relied on to sustain this contention. That article is in these words: "The foreigner who shall have been admitted by the government to establish his domicile in France, shall enjoy in that country all civil rights so long as he shall continue to reside there." It appears from the evidence that the authorization contemplated by this article of the Code, is obtained by an application i ! Harral v. Harral. to the head of the government, and is attended with formalities almost as solemn as those required for naturalization in France. The construction of this article was before the English courts in Bremer v. Freeman, 10 Moore P. C. 306, and Hamilton v. Dallas, L. R. (1 Ch. Div.) 257, and was somewhat considered in the New York court of appeals in Dupuy v. Wurtz, 53 N. Y. 556. In Bremer v. Freeman, it was held that, if by the jus gentium the decedent, who was an English woman by birth, was de facto domiciled in France, the authorization of the French government was not necessary to confer upon her the right of testacy, and that her will, not executed in conformity with the French law, was invalid. In Hamilton v. Dallas, Vice-Chancellor Bacon held that a de facto domicile, governing the succession of the personal estate of a decedent, might be acquired by a foreigner resident in that country, who had not obtained the government authorization required by article XIII of the French Code, as the condition for the enjoyment by a foreigner resident in that country of full civil rights. The learned judge who prepared the opinion in Dupuy v. Wurtz, expressed a contrary opinion, but the case did not call for a decision on that point. The counsel of the defendants have produced several decisions of the French courts, which hold that, in cases of intestacy, the inheritance of a foreigner domiciled de facto in France will not be distributed under the French law, unless he shall have obtained the authorization required by article XIII of the Code. Pepin's Case, decided in 1868; Melizeť's Case, decided January, 1869; Ott's Case, decided January, 1869; Forgo's Case, decided in 1875, and Cuirana's Case, decided in 1881. It will be observed that all these cases relate to the transmission of property by inheritance, or by testamentary disposition. They do not touch the question in controversy in this case. The complainant does not claim the property in dispute by any right of succession, nor does she dispute the validity of the testator's will, as not being executed according to the laws of France. The claim she makes to the onehalf of the personal property of her deceased husband, she/ founds upon the marriage in France, and the incidents of the married relation, in virtue of which she claims that, by the Harral v. Harral. French law, she became thereby ipso facto entitled to that share in his movable property. The French jurists recognize a distinction between such a legal domicile as a foreigner can acquire by fulfilling the requirements of article XIII of the Code, and will entitle him to all the civil rights of native-born Frenchmen, and a domicile, in fact, which is acquired by a residence without compliance with any legal formalities. The right of a foreigner to contract a lawful marriage is not made to depend on the observance of such forms as are necessary to the acquisition of citizenship; it is given on the sole condition of six months' residence by either of the parties. Article LXXIV of the Code provides that "the marriage shall be celebrated in the commune in which the one or the other of the parties shall be domiciled," and declares that "this domicile shall be established by six months' continued habitation within the same commune." These conditions were fulfilled, and the marriage was lawfully celebrated under the French law. The complainant's counsel contended that inasmuch as the marriage was celebrated in France, the wife, immediately on her consummation of the marriage, acquired a vested right in her husband's property, independent of any question of domicile, and that her right in the personal property of the husband was a jus acquired by the marriage by virtue of the French law, which could not be invalidated by any extraneous circumstances. This view has had some support in the opinions of writers on international law, but is contrary to the course of decision in the courts of this country, and, I may add, to the later decisions of the courts elsewhere. The doctrine generally adopted and supported by reason and public policy is, that a marriage celebrated according to rites and ceremonies recognized by the laws of the country where the marriage takes place, is valid everywhere ; and, as a general rule (not without exceptions), by that law the capacity of the parties to contract a marriage is determined. Whart. on Confl. of Laws §§ 161, 162, 164; Story on Confl. of Laws §§ 113, 113 a, 114, 123 b, 124, 124 a; Bish. on Marr. and Div. §§ 357, 359, 363, 370; Moore v. Hegeman, 92 N. Y. 521. But with respect to the property rights of husband or wife in the / |