#### WYATT MOYE AND LOUISA HIS WIFE *against*BENJAMIN MAY.

This case was heard in this Court, at December Term, 1851, and the opinion of the Court, then delivered by Mm Justice PeaiisoN, and is reported in 8 Iredell’s Equity Reports 131, and on the petition of defendant’s .counsel was reheard at this term.

as argued as follows:

*Moore,*with whom were *Donnell and Rodman*

The case is this : Gen. Speight became indebted in North Carolina, and there married. In 1837, he and his wife became domiciled in Mississippi. In 1840., .Mississippi enacted a law, that the future acquisitions of *Jemes covert*should be their separate estate. In 1846, the mother of Mrs. Speight, who was domiciled in North' Carolina,'died intestate, and .Peter, one .of her slaves, was allotted to hex-daughter. Mr. Speight took ■.ehai’ge of the slave to be removed to his domicil, but he left him hei’e, and died soon after he returned. A creditor of Mr. Speight became his administrator here, took possession of .the slave .and-claims to hold Mm as Speight’s property.

The opinion of the Court is, that,'the property is subject to the payment of Speight’s debts, and- that .the residue belongs to his wife.:

Because, say the. Court, this State is not bound to execute any law but its own; and whenever it does, it is.through *85mere comity. And as, by our law, the slaves of tbe wife pass to the husband, and would be subject to his debts, it would prejudice his creditors to give effect to the law of Mississippi. As conclusive proof that this case does not fall under the rule of comity, it is declared that Speight could not, without fraud as to his creditors, have surrendered to her the future acquisitions of his wife, and, therefore, the law of Mississippi could not effect for Mrs. Speight, what Mr. Speiglrt himself could not do for her.

1. The law' of comity is as -much the law of this State as any other law, and is a part of the common law.

Capriciously to execute or reject the law of comity, is to legislate, and to legislate in the most despotic form. The law of comity is *jus gentium*in all civilized countries. It always has been a part of the law. of this State. ARRING-TON v. Gee, 5 Ired. 590; Davis v. Coleman, 11 Ired. 808; Williamson’s Adm’r v. Smaet, Conf. Rep. 146. It is the law of the country, 'unless it will work some “ manifest injustice,” is *u,oontra bonos 'mores,*or repugnant to the settled rules of its own policy.” Conf. Laws, sec. 87, 182, *et. seq.*

2. It is convenient and proper that the law of the actual ■ domicil, or domicil of dissolution, should conclusively determine the rights of husband and wife in the personal property of each other, *wherever that property may be situate.*

Personal estate, having no *situs,*follows, wherever it may be, the lawr of the domicil of the owner, in life and in death. He cannot bequeath it, unless the law of the domicil allows it, although allowed by the *rei sites,*nor transfer it by sale, unless he ha\e capacity by the law of the domicil. On his death it is distributable, among all nations, according to the law of his domicil. Williamson’s Adm’r v. Smart, *ut supra;*Bruce v. Bruce ; Robertson on Succession, Law Library, Conf. Laws; sec. 480. ' Therefore, as the husband and wife were both domiciled in one place, the law of that *86place determines what interest each has in the property of the other, *wherever it may*be, see. 423,-59.

In the distribution ©f intestates’ estates, this law is universal ; yet it is a law of mere comity. It stands on its great convenience to testators, who are enabled thereby to dispose of their property everywhere, by a testament of one form; and its great convenience tointoftates, who, thereby, know to whom of their kindred, without a will, their property will go.

Marriage, civilly considered, is a mefe union of the sexes. Of itself, it gives no property, to, nor takes any away from, either of the parties : what alteration it shall make between the parties, in the dominion of the one, or the subjection of the other, in the transfer of property, its-division, its use by them in life, or after death, by the survivor, are subjects of municipal regulation. It is the *law,*and not the *marriage,*which confers rights and duties in the-relation; if it 'were the marriage, the rights and duties would be natural, and should be alike everywhere.

So great is the diversity of these rights and duties under the laws of different countries, that all admit the propriety of securing a practicable unifoimity, by referring them to-the law of some one country : what country that shall be, ap pears to have been the only question. “ Marriage is treated by all civilized nations, as a peculiar and favored contract..’1 Pibes V. PiHRS, 2Ho. Lords Cases 331. “In its origin it is a contract of natural law'.” In civil society it becomes a civil contract, endued with civil consequences. Conf. Laws, sec. 108. The lights of the parties should be regulated by the law of every civilized country, according to the law of their domicil. Eerg. Mar. and Div. 397, *et seq.*

The civil relation of coverture being of a universal nature, and fixed by the law of the domicil, it is the interest of all nations to sustain the law. Kent’s Com. See» 39»

*87It is presumed that every nation has suitably adjusted the relation of husb.and and wife, and given to each a just interest -in the property of the other. Allen y. Allen, 6 Ired. Eq. 293.

The capacity, state and condition of persons, as to the rights acquired according to the law of their domicil, will he regarded everywhere, and he valid’ or invalid, according to that law. Conf. Laws, sec. 101. •

The idea of a tacit contract at the time of marriage, that the parties, wherever .they may he domiciled, shall enjoy the rights secured hy the law of the matrimonial dom-icil, is, in this country, exploded, and hy the Court, in this case, utterly rejected.'

3. The rights of the relation, when there is no express contract otherwise, are those fixed hy law of the actual domicil.

By some, that law has been regarded as a *real*statute; Saul v. his CREDITORS, 3 Oond. La. Rep. 664: hut this Court recognises it as personal- statute, fixing the relation *lis*to personal property, not only in the country of the dom-icil, hut everywhere; and so concludes Stony, in his work on the. Conflict of Laws, sec. 199, 187, 188, who says, “When there is a change of matrimonial domicil, the law of actual domicil, and not of the matrimonial domicil, will govern as to *all future*acquisitions of moveable property,” with the exception, “ that the laws of the place whore the rights sought to he enforced do not *prohibit”*such rights.

The slave in controversy was a *future*acquisition. Do our laws *prohibit*such right *¡*s the law of Mississippi confers on the wife ? That is the whole and sole question in the cause.

They do not *prohibit*such right. The opinion concedes that; for, if there wras such prohibition, Mrs. Speight would not he entitled, even against her husband, to the surplus, after payment of his debts. ,

*88Such • acquisitions by *femes covert*are in perfect accord-' ance with our own laws. Contracts securing a separate estate, have always been allowed: even an infant, by the prin - ciples of the common law,-may so secure her estate, “ as oth-. erwise the husband would-take all.” Satteufjeld v. Rid-dick, 8 Ired. Eq. 265. They bind his creditors. Eiibe-man v. Cook, 6 Ired. Eq.-373.

The husband is entitled'to nothing of the wife’s estate,which he does not reduce into possession- during coverture.-He cannot dispose by will, what he has neglected to possess.' McBRIDE v. Choate, 2 Ired-. Eq. 610.

The Court will' not decreé payment of an absent hus-' hand’s debts, out of her distributive share. ARRINGTON v. Yarbrough, 5 Ired. Eq. '291.

She may take such estate by deed or will. She may acquire and hold separate estate against a spendthrift husband, and *Ms*creditors, and transmit it to her heirs' and next of kin. R. S., c. 39, s. 4,-12. '

By the act of 1848, ch. 41, all her future acquisitions of real estate are secured to her separate use. It is, therefore, positively certain, that the law of Mississippi, so far as the1 bestowing on *femes covert*separate interests in personal pro--perty, is not in conflict with any hxed policy of our law, but is in direct accordance with it ;■ both States having but provided general rules, and superceded the necessity of a particular contract, which, in this State, was before allowed,-pra'ctiséd and encouraged.

The Court say, that the larra of North Carolina establish one sot of rights for the relation of husband and wife, and the laws of Mississippi another and different set. That it is their duty to execute the laws of this State; because, if comity were extended to the law of Mississippi, the creditors of the husband here, would be prejudiced by not getting their debts paid ; therefore, as the husband has no estate, the wife’s will be taken to pay his debts, and it *89will be taken, not because it is his bj the, law of Missis--sippi; but, because, by our law, it would be his.

This is a practical denial of the doctrine, that, on a change of domicil, “ the law of the actual domicil will govern, as to all future acquisitions;” and a denial, too, that the actual domicil will govern, even when there has been no change; for, the conflict of laws is the same in both cases, and of course all rational consequences must be the .same. The doctrine of the. Court, then, is, that the actual domicil will govern, absolutely, in no case, where there is a difference in the law of the domicilj and the law of the *situs.*In other words, that the adjustment of the rights of the wife, by the country which has charge of the relation, though presumed to be altogether suitable, and her secured rights to have becnj based on her .surrenders and concessions, is not binding on any -other country, as a law of comity; but, that what is declared to be the wife’s estate, by the law' of actual domicil, and to be her’s against the creditors-of her husband, shall not be her’s, *elsewhere,*against his creditors, Unless the law of the *situs*shall likewise give it to the wife, as separate estate.

If the law of the actual domicil is allowed to' determine-the interest of the wife in her own estate, there can be-no difference between the cases of a law, assigning that interest, and a contract to that effect. Indeed, if the contract and the law were the same, she would take under the law, as the bettor title.

Before the change of matrimonial domicil,- the *lex loci*determines her rights in all property *then*acquired. After that change, the *actual*domicil determines them in property acquired thereafter. Are not the rights of the *feme covert,*in property acquired under the law of the new domicil, quite as valid as those acquired before the change ? If not, the rule is false, which declares that, on a change of domi-cil, all futuro acquisitions shall be governed by the law of the new domicil.

*90If an insolvent husband take wife in Mississippi, and continue to reside there, will the personal property situate in North Carolina, and falling to the wife by distribution, be subject to his debts here ? Here is the same conflict of laws. Yet, there can be no doubt, I suppose, if the law of comity is any law at all, that it will prevail, even to the disappointment of his creditors.

If a woman marry in North Carolina, the law transfers her personal property to the husband: if they remove to Louisiana, where the law makes no such transfer, still the property is the husband’s; but, if moveables, situate in another State, fall to her in her new domicil, they will be her separate estate, by force of the law of the domicil. If they remove back to North Carolina, the property would still remain under the same ownership, as it was in Louisiana, and the law of North Carolina, however changed it may have been since they removed away, would govern all future acquisitions ; because, where the law of the place of marriage alters no rights in property, the change of domicil affects only *future*acquisitions; so that, if a wife come into this State, with separate property, conferred by the law of her last domicil, she will be entitled in the same manner as if she held that property by contract; for, the rule is, that, if the husband, at the very time when the pioperty comes to the wife, acquires no interest in, or power over the estate, it shall always be the wife’s separate property. Thus, the law cf every actual domicil fixes their respective rights in the property, *whenever*it -accrues during life : and the law of the la-st domicil governs the rights of the parties on the death of either.

By our law, what has once been the property of the husband cannot become the wdfe’s, but after the payment of liis debts ; and that which has never been the husband’s estate, is not subject to his debts, but is subject to her’s. Such is ¿he rule, when the relation begins, continues and ends here, *91•without any regard to tlie creditors of the husband. The rule is so much in favor of the wife, that power over her property, not exercised, is not estate in him; so that, if ho will not assign his choses during the coverture, as he may do, tli-e wife shall hold them to her own use, against his creditors.

In the case before us, the husband never had, at any time, under any law of this State or Mississippi, any estate or interest in, or power over, the property; nor could he, by any possibility, hare had any. And it is submitted, that .there is not, and never has been, any other instance, cither decided or supposed, where the property is taken from one who is admitted to have *seme*claim thereto, in order to satisfy the debts of another, who never *had,*and never *could*have, *by any possibility,*such a.n interest therein, as he could either vindicate for himself,’or convey to another.

Just such is the case of Gen’l Speight. He never had, and it was impossible for him to hare during his whole life, any interest in, or power over, the slave which ho could claim for himself, or convey to another. While the property was Mrs. May’s, he had none, and when she died, ho was not one of.flcr successors; as husband, the law gave him nothing.

The utmost he could have done, would have been to contract, that the future acquisitions of his wife should bo her property, and not his. To have done this, in a country where the law casts such acquisitions on him, had been a fraud on his creditors ; but to have dono it where he could acquire no interest in them, had been merely nugatory.

And, say the Court, inasmuch as he could not, in Lhe year 1840, do this by deed, so the country of his domicil could not, in good faith towards creditors, change any law touching the relation; wliorcby his interest in the future acquisitions of the wife should he diminished.

*92It is obvious, if this be true, that the same consequence would have followed, whether the removal to Mississippi had been before or’after the law had been enacted.- For, there can be no difference, whether the law covered the parties after they were domiciled, or they took shelter under the l'aw, after it was passed. Such, too, in principle, must be the case of an insolvent, who quits his own and marries in a country, by whoso law the property of *the feme*remains unchanged. For, in every instance, the husband is presumed to assent to the law *when*passed, or voluntarily to put himself and wife under the law, as it is *already*passed. In every such case, a conflict of laws arises. So that, the doctrine of the Court clearly establishes the rule, that, for the benefit of creditors, the law of the actual domicil will never be regarded-.

This conclusion, however, they reject. ' But it is a grave error to confound the deed of an individual, made to denude himself of such property as the law may, in future, cast on him, with a general law, made for the whole people, on conviction of public utility, changing existing rules *of*succession in property, or rights in the matrimonial relation,, in future acquisitions. *

It is the first instance of the kind, where they are put oir the same footing. If such a general lav: cannot be made in good faith, as to creditors, they ought to be allowed to-sell the expectancy, and compel its surrender on a *ca. sa:*or at least, the law ought to bo made with a saving for all such as might be creditors, when the acquisition might fall-ís there any such instance to be found in any law that has been enacted on this subject ? A principle of this kind, en-grafted in legislation, would destroy the generality of laws to such an extent, as to produce the utmost uncertainty in their application, and constitute “the *rule*of action”' a labyrynth of’ confusion. The principle is, moreover, pernicious : For, it restrains thl exercise of the power of ad*93justing, as wisdom and experience may dictate, tlie rights and duties of the marriage relation. No nation, in its .highest morality, has ever undertaken such an impracticability, as that demanded of the Mississippi law, as a condition to its claim for comity. 'This State, certainly, never has. ' .

In 1784, all the sons were constituted co-heirs with the ..eldest, without providing for his creditors. Yet he could ,not have divested himself by deed of the expectancy, to the .prejudice of creditors..

In 1795, all the daughters were let in as co-kcirs.

In 1808, Rules of Descent were established, essentially .ehanging the law, and, of course, diminishing the expectancy of thousands.

By the act of 1828, Rev. Stat. c. 39, s. 4, 12, the wife of a spendthrift may, on application, have a decree, that she •shall have “ all such property as may accrue to her by descent, gift, or in any other manner, and the same shall not be liable to the power, control or debts of her husband; .but, on her death, shall be transmissible, as though she ■were *a, feme sale.”*

By the. act of 1848, c. 41, no real. estate, which may be ¿acquired after the 4th March, 1849, by a *feme covert*already married, by gift, inheritance, &c., shall be sold to ■satisfy her husband’s debts. None of these laws provide ,£or creditors. They are all, in principle-, like the law of Mississippi: the two last are identical in .their object with .that law, and they all wrought the like injury to creditors. Ingenuity cannot fabricate a distinction -between them.

Will it be said, that these laws of ours are not made in good faith, and that the Court executes them, only because *ita scriptce ?*Their morality has never been, and never will be, questioned. The legislation of every State, on such .subjects, is without any proviso for .creditors.

*94Do the Court feel hound to hold up a higher standard of morality and good faith for Mississippi than for North Carolina ? I trust that the current legislation of our State, for seventy years, demands not this rebuke at the hands of the Court.

But, if any just analogy could be drawn from the powers of individuals, illustrative of what a State may do with such future acquisitions, the Court should have selected Mrs. May, and not Gren’l Speight. She could have provided, that all the property which her daughter might take in the division, should be her separate estate against creditors; and certainly, when the intestate is silent, the State of Mississippi may lawfully prescribe such righ ts for .the wife, as Mrs. May might have done. Our law allowed Mrs. May to do that: Mississippi has done nothing more, — absolutely nothing but cut off, years before, an expectancy which the owner óf the property might have done on the hour of her death. But why single out for sacrifice, the wife, whose separate rights, during coverture, as far as concerns her husband, and all claiming under him, are meritorious, and not those of a volunteer. She was a volunteer as to Mrs. May, but not as to her husband or any one else. She could not be. The common law did not divest a *feme covert*of her remainder and reversions in real- estate ; and it is submitted, that, where she holds any other estate by Statute, she holds it as perfectly as she held those estates at common law.

The regulation of the rights of married persons is certainly of as much concern as the distribution of intestate’s estates. By our law, the father of an intestate, dying without wife or child, *by express enactment*takes his personal estate : by the law of some countries, his brother takes it. If, in such country, an intestate die, possessed of moveables, situate here, the brother would take, without regard to the creditors of the father, by the mere force of the law of *95comity, because our law does *not “prohibit ” it,*nor does it involve any “manifest injustice,” or repugnancy to “a settled policy.”

The Court overlooks the fact, that the- wife may Have creditors who may be prejudiced by the .application of her estate to the debts of lier husband. If she were dead, and her representative were before the- Court, I cannot surmise how the difficulty would be solved.

In no case or text book, is the doctrine, that “ *the actual domicil shall govern as to all future acquisitions,’'*qualified by any proviso as to creditors of the husband; and I cannot conceive how her enlarged capacity to take and hold for herself, conferred on her rightfully by the country having charge of the relation, can be curtailed by the Court of a country whose laws disclaim all control over their persons, but upon the principle of making 'the matrimonial domicil the arbiter of their rights; or, on the supposition, that the creditors acquired a sort of lien on all the acquisitions of the wife, which follows them whithersoever they may go.

OiiveR v. Towns, 2 Cond. La. Rep. 608; ThuRST v. Jenkins, 1 Do. 566; Laueeak, v. SumneR, 11 Mass. Rep. 110, are c.asos which decide nothing, but that the *lex loci contractus*shall not prevail against a rule of settled policy to inhibit fraud in sales. And the very learned Mr. Justice Stoky, after a full review of them1, did not regard them as, in the slightest degree, qualifying the doctrine as to the future acquisitions of the wife. Confl. Laws, passim; Reme-sen v. Holmes, 20 John’s Rep. 267; Hunter v. Potts, 4 7 R. 192 ; Sawyer v. Shute, 1 Anstr. R. 63.

*Biggs,*for defendant,

Pearson, J.

The opinion in this case, directing the bill to be dismissed, was delivered at December Term, 1851, and the petition to re-hear .was not filed until after June *96Term, 1852; but a decree has not been signed.and passed. If that had been done, the petition to re-hear would certainly have come too late. Cooper’s Eq. pi. 91; Story’s Eq, pi. sec. 421. Whether, when .the decision is simply that the bill shall be dismissed, a decree to that effect will be .considered;as drawn, signed, passed and recorded as of the .time when the case is decided, so as to preclude a.petition to re-hear, we will now determine, because the case has been .fully argued upon the merits, and as ,we are satisfied there is no error, we prefer to put our present decision on- that -ground.

The opinion under review admits the conclusion of Judge Story, that, when there is a change of domicil, the law of the *actual domicil,*and not that of the matrimonial domicil, will govern as to all future acquisitions of moveable property, and the decision is put on the ground that there are peculiar circumstances, which take the case.out of the operation of rthat general rule. These t circumstances are the indebtedness of Speight in this State, and ,his marriage in this State, whereby, according to our laws, he acquired rights in the property that his wife might afterwards acquire, which he could not relinquish or convey to a trustee, for the separate-use of his wife, without committing a fraud upon his creditors. For, although they had acquired no specific lien, yet the law protected them against any voluntary convey.ance of the debtor, and our inference is, “that his adopted State could not by a Statute do that for him which he could not do himself, without being guilty of a fraud; and we con- , elude that there is no principle in the doctrine of the comity .of nations, by which this State is called upon to standby and .see her citizens deprived of the right to collect their debts, out of property within her jurisdiction, by an act, which, if . done by the debtor himself, would *he*deemed fraudulent .and void. Nay more, by which she is called upon to set ¿aside her own laws, fo.r .the purpose.of carrying into opera-*97■/cion a statute of another State, having this effect. And -we go on to challenge the production of any authority or any fair reasoning, by -which such a principle can be established, and the case of Olivier v. Townes, 14 Martin’s Rep. 97, is cited as going farther than our decision in support of the rights of creditors, who are citizens in this : our case was a contest between a creditor and *a,vohmteer;*that was a contest, between a creditor and a *Iona fide purchaser for full value.*

*• Mr. Moore*admits, that he has not been able to find any authority opposed to our conclusion, and it was apparent from his very learned argument, that he had pushed his researches to the extreme. But he assailed our reasoning, and denied that the conclusion was a legitimate deduction from the premises. He also relied upon certain analogies as opposed to cur conclusion.

As to the reasoning, he admitted that the debtor could not, without a fraud upon his creditors, relinquish his marital rights in favor of his wife, but ho insisted that it did not follow that the State of Mississippi could not do it for him by a general statute, and he took a distinction between the conveyance of the debtor and a statute. The one is the act of an individual, having a particular operation, hi fraud, of certain persons who ar;e his creditors. The other is the act of a State, having a general operation. He says, it is true, a citizen of North Carolina cannot, as against his creditors, relinquish his right to the future acquisitions *of his wife, but if North Carolina had in 1839 passed a Statute to' that effect, its operation would have. extended to debts then existing: and if North Carolina could have passed such a law, it follows that the State of Mississippi could do it also, It seems to us, this conclusion, in its application to the case .under consideration, is *a non sequitur.*Admit' that North Carolina could have passed such a law, in regard to her xOwn citizens and property within her own limits, does it fol*98low that if she deems it inexpedient to do so, the State of Mississippi can do it for her ?

North Carolina may pass a law, that the estate of a deceased debtor shall be paid to his creditors rateably, without regard to the dignity of their debts. Suppose she passes no such law, but the State of Mississippi does, and a citizen of that State dies, leaving- property in this State, how will creditors in this State be paid ? *Mr. Moore*is compelled to admit, that the administration of the assets will be according to the dignity of the debts, the law of Mississippi to the contrary notwithstanding. This admission sweeps off the whole of his reasoning, and shows the fallacy to consist in not distinguishing between the effect, which a Statute in Mississippi has in regard to creditors and property in this State, and that which it has in regard to creditors and property in that State.

By way of analogy, *Mr. Moore*put several cases, and cited many from the boolts. Among others, he put this : A citizen of another State, where by law a wife is entitled to the whole of the estate, as distributee, dies, leaving a widow there, and leaving children who reside in this State, and are indebted to certain of our citizens. Will his administrator here be directed to pay over the property, which is in this State, to the widow, according to the law of the domicil of the intestate, or will he be directed to pay a part of it to the children here, according to our Statute of Distributions, because, in that way, our citizens, who are the creditors of the children, may secure their debts ? Most unquestionably the widow would be entitled to the whole of the estate. But we are not able to perceive the analogy.

A more apposite case would be *this;*a citizen of our State becomes indebted here, and removes to a State where, by law, in the event of his death, his widow is entitled to one-half of his estate, in preference to creditors: he *99<dies leaving his debts here unpaid, and leaving property here; mil his -administrator here be directed to apply the whole of the assets to the payment of' nis creditors, or to pay one-half to the widow, leaving debts unpaid ?

Certainly there is nothing in the doctrine of the comity •of nations, that would induce our ‘Courts to give a preference to the widow, in exclusion of our own citizens, who are •creditors. He also put this case: suppose a citizen of Mississippi marries a lady there, who has a slave in this State : the slave being a chose in possession belongs, by our laws, to the husband. Can his creditors here attach the slave for the debts of the husband, or in case of his death, would his administrator take the slave as assets for' the payment of debts ?

We are not now called -upon to decide this question.

The counsel, throughout the entire argument, seemed to forget that in our case there are certain antecedents. Suppose the man lived hére, contracted debts here, married here, and then removed, and the State of Mississippi then passed a Statute securing to wives all property that they might become entitled to, by “ conveyance, gift, inheritance, distribution,or otherwise,” and the mother of the wife dies in this State, leaving her a negro, and the husband comes here and reduces him into possession, and dies, leaving the slave in this State. There you have our case.

We are entirely satisfied that the administrator of the husband is chargeable with the slave, as assets for the payment of debts.

PeR Cukiam. The petition to rehear must be dismissed with costs.