The Chancellor.
This is an amicable suit for the purpose of settling, under the authority and sanction of this court, the controversy subsisting between the parties.
The facts upon which the plaintiffs rest their claim and the defendants their defence, are not in dispute. They are disclosed and admitted by the pleadings, A proposition was made by the plaintiffs for a settlement, upon terms deemed honourable and beneficial to the parties. The claim went to the whole of the assets which came to the possession and were in the hands of the defendants, as executors, and the proposition was to accept of a moiety of this property in satisfaction of the claim. All the parties who were competent to give their assent, agreed to the proposition. But as two of the defendants were infants, the sanction of the court was requested, and an order of reference was accordingly made to a master, to examine and report, whether, in his opinion, the terms of the proposed compromise were for the interest of the infants.
The Master has reported, that it would not be for the interest of the infants to accept of the terms, and he has assigned his reasons at large. In his opinion, the claim of the plaintiffs to the whole, or even to a moiety of the property in question, could not be sustained,- if the cause was brought to a hearing.
The parties have again submitted the case upon the pleadings, and the master’s report; and their counsel have argued the claim upon the merits extremely well. The" question is still, whether the demand has such foundation [210]*210and extent, as to render the acceptance of the terms ad-' visable?
The plaintiffs are the lawful representatives, under the" French law, of M. S., the true and lawful wife of C. X F. She died in France, in 1816, a widow and intestate, and the law of that" country governs the inheritance of the personal property to which she was entitled at the time of her death.- It is a settled principle, that the descent of personal property, wherever situated, must' be taken from the country of the intestate’s domicil. Mobilia personam .sequuntur, immobilia silum. "(Hub. Prælec. tom. 1. 278. lib. 3. de Success, ab. Int. Collat. Bempde v. Johnstone 3 Vesey, 198. Somerville v. Somerville, 5 Vesey, 750. Bruce v. Bruce, 2 B. & Puller, 229. note. Desesbats v. Berquier, 1 Binney, 336.) There can be no doubt, then, that the plaintiffs are entitled to all the right to the per-' sonal property of C. J. F., deceased, which existed in his widow, at her death.
Her representatives claim the whole of his personal property, by virtue of the marriage contract of 1787. If that marriage contract was out of the question, or could be waived, the plaintiffs would be entitled, under'our statute of distributions, to a moiety of the personal estate of F., inasmuch as he died intestate, without lawful issue.
The claim, to a certain extent at least, under the marriage contract, or the claim under the statute of distributions, must prevail, unless barred by the statute of limitations. ' "
I shall consider the claim, in all these points of view and though I shall be obliged to differ from the Master, in the construction of the marriage contract, as well as on other points in the cause, it is no more than justice to him to declare, that I have perused his report with much respect. It affords evidence of the ability, diligence, and zeal, with which he discharged his duty.
1. The marriage contract was executed with the requisite formalities, and was, doubtless, valid by the laws of [211]*211Francs. It declared that the Custom of Paris should go■vern the disposition of the property of the parties, though they should thereafter settle in countries where the laws and usages were different or contrary. The construction of the contract was thus made to depend upon the lex loci contractus ; and without this provision in the contract itself, there would be no doubt of the general principle, that the rights dependent upon nuptial contracts, are to be determined by the lex loci. (Hub. de Conflict. Legum, Lib. 3. § 9.)
Eights depend-, coníacts"are to" the*
The contract is set forth, at large, in the bill, and contains three important stipulations: 1. The general declaration that there should be a community of property between the parties, according to the Custom of Paris: 2. The special exception as to part of the property, brought into common stock, and which exception declares, that of the goods of the parties, (4,000 livres,) there shall be placed in common, by each party, five hundred livres, and the residue, with whatever else shall be acquired thereafter, by succession, gift, legacy, or otherwise, shall be in severalty, to that person to whom the same shall come or belong, and the respective representatives of that person, exclusively, in the line of representation of the person to whom the same shall come : 3. A general donation to the survivor, in case either should die, without issue living. The parties mutually give, in the most available manner, to each other, and to the survivor, which is in like manner mutually accepted, all the estate and property, moveable and immoveable, acquired or purchased, to them in any ways belonging, and which shall belong, in any way or. manner, to that party who shall first die, and from the day of the decease of such party, and of whatever amount the same may be, and wherever situated, to be enjoyed by the survivor as his or her several property exclusively, from the day of the decease of the party who shall first die. The donation was not to take place, if, at the day of the decease of the party first dying, there should he chi! [212]*212dren then living, born of the marriage, but if, neverthe-less, there should have been children; who afterwards should have died, or entered into religious profession be fore they had made a valid disposition of their rights, then the donation, of which the effect would have been thus suspended, will resume its force as though there had never been any children of the marriage.
French contract or marriage.
Notwithstanding the general declaration in the first part 0 0 . . . of the contract, that there should be a community of goods between the parties, according to the Custom of Paris; yet immediately after, there is a provision, that out of the 4,000 livres mutually and- equally advanced, there should be, by each party, 500 livres placed era conmmaute, and the residue should remain propre, according to the second stipulation which I have noted.
To a person unacquainted with the provisions and terms of the French law, it would appear that the first clause was, in a great degree, repealed by the second. By tire one, their goods were to be common, and by the other, only one fourth part were to enter into community. But the contradiction is only apparent, and the subsequent intermediate stipulations in the contract, form only a branch of this same peculiar societe de biens qu? un homme et me femme contractent lorsqu’ ils se marient. They may be considered as appurtenant to the ordinary convention of the community, according to the Custom of Paris ; and their object was to withdraw a portion of the property from its destiny under the community, in order to make a certain provision, in the event of either party dying leaving, children of the marriage. But the death of the husband; without lawful issue, rendered the special stipulations inapplicable and useless. There is to be no subtractions or deductions and divisions of property in this case, seeing that no issue survived.
The term propre, when used in relation to matters in community, has a- different meaning from that applied to it [213]*213when used in other matters of law. It is used for the separate property of the parties respectively, as contradistinguished from that which is placed in community, strictly so called. Parties often stipulate, in their contract of marriage, under the community system, that the residue of their property shall be separate. (Le surplus de leur Mens seront propre.) If it be personal property or moveables, it is called propres conventiomels, or propres jictifs; and the husband may alienate that property, during the coverture; it is in many respects, confounded with the other goods, strictly in community, and may be applied ad sustinenda oner a matrimonii. (Pothier, Traite de la Communaute, n. 105. 326—326. Argou, Inst. tom. 2. p. 77—84.)
Donation mu-
The 3,000 livres were to remain, in this case, separate or propre. If alienated, they were to be replaced pursuant to custom. This stipulation in the contract, in respect to the restitution on the death of the husband, of the price of that kind of property alienated during the coverture, is well known, and appears, like the other special stipulations in this contract, to be almost a formula in the nuptial contracts creating the communaute de Mens.
But there appears to me, (and which arises, no doubt. from the imperfect knowledge which I have on this subject,) to be still a contrariety between that part of the contract which declares that the propres conventiomels, or le surplus should go axex lexer de cole et ligne, and the mutual donation (donation-mutuelle) at the conclusion, which gives all the property of the parties (ious les Mens, meubles et immeubles, acquetes, conquetes, propres, et autres) at the death of either, to the survivor, in default of children living. I should have supposed, from the explanation given in the books, of the terms, de cote et ligne, that the collateral heirs of the children dying without issue, and of the side and line of the parent first dying, would have taken that separate property, or propres fictifs de la commit[214]*214uauie. So I read Pothier and Jlrgou. (Traite de la Com. No. 329. Inst, au Droit Fran. tom. 3. p. 78.*—83.) The donation mutuelle is, however, to operate upon all the property, wherever situated, of which the party may die pos - sessed, and the survivor takes it all, except in the single case of children living, or who may have disposed of the same. This sweeping clause is explicit and peremptory, and certainly controuls the descent of the property to the collateral heirs of the children.
These donations frequently enter into the contract of marriage, and the parties can give to each other what-, ever property they shall possess at their decease; the French law recognizes such donations, and holds them valid and irrevocable, without being accompanied w ith delivery or possession. (Argou, liv. 3. ch. 14. des donat. fait. par contrat de mariage. Pothier Trait des donat. entre vifs, sec. 2. art. 4. Code Civil, No. 1083, 1083. 1087.)
This donation was in full operation at the death of the husband, in 1810; and the casus faideris occurred, for he died without issue living of the marriage. His wife, as survivor, took all his personal property, under the donation, whicli embraced not oply the property which originally entered into community, but that which was kept separate as propres converdionnels. It was a stipulation, as we have seen, which the parties were not only competent to make, but which seems to be familiar to the French law. The original fund which constituted the communaute, and the propres fictifs which were kept separate, formed, aggregately, the capital from which all the subsequent property was produced by the industry of the husband. The joint increase entered into the common stock of the communaute, by the- general rule; and had it not been so, this increase would have been reached by the universality of the donation.
I conclude, that the plaintiffs are entitled, on the true construction and operation of the marriage contract, to all [215]*215die personal property belonging to C. J. F. when he died. But I give this opinion, with distrust and diffidence, owing to a very imperfect acquaintance with the French law, and more especially, with this curious and complicated branch of it; and I should not have hazarded any remarks on the subject, if I had not felt myself urged by duty. Nor will it be improper to mention here, that an opinion of Count Real on this very marriage contract, has, by the arrangement of the council, been submitted to my inspection; and bis able explanation of the French law, I have found supported by the authorities referred to, and it has much increased my confidence in the conclusion which has been drawn.
With respect to the nett produce, or increase of that property, since the death of the intestate, the plaintiffs are entitled to it, also, after the reasonable charges are deducted. It was property held in trust for the widow, and for their benefit, as the legitimate cestuy que trusts. This appears, also, to be the general doctrine in the books. Dig. 5. 3. 20. 3. Pothier, Traite du Droit de Propriete, n. 400—406. Hub. Prædec lib. 5. tit. 3. de Hered. Pet. §. 14.)
If the plaintiffs are entitled, under the marriage contract, as representatives of the surviving widow, to all the personal estate left by C. J. F., they are not barred from asserting the claim, by lapse of time.
2. The person, under the name of M. F., to whom letters of administration on his estate were granted, in Jime, 1810, succeeded to the possession of the property, not in her own right, but expressly as trustee for the party having right. That party was, in this case, the true and lawful widow of C. J. F. underthe marriage contract, or that widow and the next of kin, under our statute of distributions. She took the property into her hands as administratrix;. This was a direct and express trust, and she could not have set up the statute of limitations, as a bar to the widow [216]*216and next of kin. It would be unjust for the person who takes possession of the property of the intestate, under the authority of law, qua administratrix, to be at liberty, after six years’ possession, to set up the statute of limitations, as a bar to the cestuy que trusts. All the cases admit, that no time bars a direct trust, as between trustee and cestuy que trust. The settled rule is, (and so it was recently declared by the Master of the Rolls, in Cholmondeley v. Clinton 2 Merivale, 360.) that so long as a trust subsists, the right of a cestuy que trust cannot be barred by the length of time during which he has been out of possession, and that he can only be barred, by barring and excluding the estate of the trustee. This general rule applies to this case, for an administrator is a trustee for the party entitled by law. His very office is a trust, and. he can take in no other capacity. Lord Hardwicke said, (2 Vesey, 482.) that executors and administrators were, to' many purposes, considered in Chancery, as Trustees.
No lapse •a direct trust, ¿rusteeand cesMy que trust.
But where person takes possession of own'righq and by matter rdof constructrastee^ "lapse °f time may be pleaded in bar.
There is a class of cases which admit a reasonable time .... to be a bar, but these are cases m which a party is turned into a trustee, by matter of evidence merely, and who took possession originally in his own right, and was, prima facie the owner. Thus in Bonny v. Ridgard, (cited in 4 bro 130. 138. and in 17 Vesey, 97.) the fraudulent purchaser of a leasehold estate from an executor, was not z permitted by Lord Kenyon, to be turned into a trustee for the children of the testator, in consequence of the great lapse of time between the purchase and the filing of the bill. So, in the cases of Andrew v. Wrigley, and Beckford v. Wade, (4 Bro. 125. 17 Vesey, 87.) the suits were brought to disturb purchasers, on the ground of fraud, and to turn them into trustees, by construction; and the court held, that in these cases of a possible, eventual trust, depending upon proof, length of possession was, and ought to be, a bar, upon the principle of the statutes of limitations. But these eases have no relation to suits against. [217]*217fee very executor or administrator, by the next of kin, or other person entitled to the' distribution of the assets. The executor, though he may plead the statute, as against a creditor, (Webster v. Webster, 10 Vesey, 93.) can never plead the statute of limitations as a bar to a legacy. (Vide the cases in 1 Johns. Ch. Rep. 316.) Where even a ' . trust estate is created by will to pay debts, such a trust is held not to be within the statute .of limitations. (Norton v. Turvill, 2 P. Wms. 145.) The true ground of the equitable jurisdiction over executors and administrators, in compelling, the payment of legacies aud distributive shares, is, that they are trustees for those purposes. This is the declared doctrine in Farrington v. Knightly, and Wind v. Jekyl. (1 P. Wms. 249. 572.) The statute of distributions, say the books, was intended as the will of the intestate, and the succession to personal estate is as much fixed-as the title of the heir to the real estate at common law; and on the ground of the trust in the administrator, chancery assumed the power of compelling distribution as soon as the statute was passed. (Winchelsea v. Norcloffe, 2 Rep. in Ch. 367. Matthews v. Newby, 1 Vern. 133.)
An executor cannot plead' the statute of bar to a legacyf ^mst a* wfdltor‘
An administratee’, camfot^set "i limitation^ ofrk?n,thor”the the eaiv' tributiou of assets.
The time of aetions°nis g¿the lex loci con~ Iractus.
I am not prepared to say that the statute of limitations might not be set up by the persons to whom the administratrix bequeathed the trust property, provided sufficient time had elapsed after her executors or legatees had succeeded to the possession. There may perhaps be a sufficient analogy between such a case, and that of the purchasers under the executors in the cases to which I have referred. I mean only to declare, that no time is to be computed against the plaintiffs, while the administratrix had posession of the property; and the subsequent time falls short of any legal bar.
It will be observed, that I have considered the question of time as governed by our own law, and that the limitation of suits was to be taken from the lex fori, and not from [218]*218the lex loci contractus. The counsel for the plaintiffs com tended that the French law of prescription ought to govern in this case; (which was stated to give a period of thirty years,) and he called my attention to a doubbt upon the question, raised in the case of Van Reimsdyk v. Kane (1 Gallis. Rep. 371.) in which the inclination of the Court appeared to be in favour of the foreign prescription in cases between foreigners, and it was considered as an important question open for consideration.
The respect which I feel for every opinion of the learned Judge who gave that intimation, induces me to pause for a moment upon the point.
It is not for me to say, whether this can, or cannot be an open question in Courts of the United States; but it is sufficient for my direction, that the rule is settled in this state, by the judgment of the Supreme Court, in Ruggles v. Keeler. (3 Johns. Rep. 263.) That decision,- as it appears to me, is not only well supported by authority, but' is founded on principles of public convenience and policy, which have met with a very general' assent and reception. Our statute of limitations contains no exception, in form, of foreigners or of foreign contracts, but is general and peremptory in its terms. And why should our Courts be disturbed by the litigation of stale demands of foreigners, grown difficult and obscure by time, when an action upon such demands is denied to our own-citizens, by the wise policy of the law % It is a question of municipal convenience and public utility, which every government has not only a right to consult, but is bound in duty to promote. The plea of the statute of limitations does not touch the merits of the contract. It merely bars the remedy,- in the particular domestic forum, and-does not conclude the plaintiff in his own, or in any other foreign country. To render the matter of the judgment a res judicata, it is necessary that the grounds of the judgment should be the same. (Graham v. Maxwell, 2 Dow. 314.) [219]*219The" reason of the exceptio rei judicatm, is - to prevent endless litigation and discordant decisions; (Big. 44. 2. 6.) the reason has no application to such a plea. The statute of limitations has reference to the ordinatio, not to the decisio litis ; and, therefore, to use the language of the Civilians, servanda est consuetudo loci ubi causa agitur.
In the provinces of the Netherlands, the local limitation where the action is brought, prévails; and Eubérus (De conflictu Legum, § 7.) cites two adjudged cases to that, effect, prior to the year 1680. He considers. the rule of prescription as affecting the remedy, and not the merits of the case. Ratio hcec est, quod prcescriptio ct executio non pertinent ad valorem contractus, sed ad tempus et modum actionis instituendce» The Supreme Court of Massachusettsi in Pearsall v. Dwight, (2 Tyng, 84.) adopted the rule, for the same reason; and that. decision ought to be regarded as authority, for it was the unanimous opinion of the court, delivered by by the late Ch. J. Parsons, whose vigorous mind was richly endowed with various learning, and who possessed that quick discernment and deep knowledge of legal principles that justly rendered him the ornament and pride of his country.
There can be no doubt that the same rule is considered as the settled doctrine in the courts at Westminster Hall. Thus, in Dupleix v. De Roven, (2 Vern, 540.) the parties were Frenchmen, and the debt was contracted in France, and-yet the Lord Keeper made no scruples ofallowingaplea of the English statute of limitations. This was in 1105. In the late case of Williams v. Jones, (13 East, 439.) the court of the K. B. held, explicitly, that the English statute of limitations was to govern, notwithstanding the parties had contracted abroad, and resided abroad so long as to have been barred by the foreign statute of limitations. The statute of limitations was considered barring the remedy only, not as extinguishing the right. Lord Ellen-borough said, “ There was no law or authority for saying, that where there is an extinction of the remedy [220]*220only in the foreign court, that shall operate, by comity, as an extinction of the remedy here also.”
The same rule is now the settled law in Scotland, where civil law is adopted as the common law of the land. Professor Erskine, in his institutes of the Scotch Law, (voh 3, 581. § 48.) says, that the decisions there had formerly been fluctuating on the point, but that the latest cases-had made their own law of limitation the rule of their judgment, and this side of the question he considers to be founded on the better reason. Lord Raimes, (Principles of Equity, vol. 2. p. 353.) speaks with peremptory decision, and says, “ it ought never to be made a question; for our own prescription must be the rule in every case that falls under it.” The same rule is, also, declared, in equally explicit terms, by Voet, in his Commentaries on the Pandects, (Com. ad Pand. lib, 44. tit. 3 § 12.) Si prcescriptioni implendce alia pmfinüa sint témpora in loco domicilii actoris, alia in loco ubi reus domicilium fovet, spectandum videtur, tempus, quod obtinet ex statuto loci, in quo reus commoratur.
The counsel for the plaintiffs also referred to a passage in Pothier-, (Trait. de la Prescription, No. 251.) to show that the law of prescription, of the plaintiff’s domicil, ought to govern; but I apprehend that Pothier alludes only to the various and unequal periods of limitation prevailing in the different provinces of France, of which he gives examples in the section succeeding the one cited. He was not speaking of foreign rules of limitations, extra territorium. Pothier has, again and again, recognized (Trait. des Ob. No. 642. 654. 684.) the distinction admitted in so many authorities, that a plea of the time of limita» tion does not extinguish the debt, but only bars the remedy. The French law of prescription, like ours, appears to be intended to apply to, and govern, directly and positively, all persons whomsoever, who cannot bring themselves within one-of -the exceptions. (Trait, de la Prescription, No. 247. Code Napoleon, No. 2251.)
My opinion accordingly, is, that the plaintiffs are enti[221]*221tied to the whole of the property in question; and that the proposition, on their part, to divide the property with the unfortunate children of C. J. F., who are defendants, is very beneficial to the latter, and ought to be accepted.
3. I am of opinion that the proposed compromise is, also, beneficial in another view of the case.
The widow might have waived her rights under the marriage contract, and have sued for her moiety of the personal estate of her husband, under our statute of distributions. I see no impediment to her right of election. The contract was for her benefit; and to waive it, was yielding her title to the whole, and accepting of a part. It is said (Inst. au 'droit Francois par Argon, tom. 2. p. 30,) that upon the dissolution of the community, by the death of the husband, the wife, or her heirs, may renounce, or accept her rights under it The representatives of the husband would surely be estopped, in this case, from setting up the marriage contract as a bar to her claim to a distributive share. That contract was made and intended for the connubial state ; and to- give it the due effect, .the parties ought to have continued faithful to each other; instead of which, we find that the wife was deserted by the husband, in 1792, after he had formed an adulterous connection;' his lawful wife was left xvithout protection and support; and, after a great number of years, she ended her life in a hospital. It is not for the representatives of such a husband to "set up, in bar of a distributive share, under our statute, a marriage contract xvhich he had thus violated and abandoned. If the widow might have waived her benefits, under the contract, and have resorted to her title at'laxv, her representatives xvho have succeeded to her rights," are entitled to the same privilege.
If the demand was now of a moiety of the personal estate, under the statute of distributions, there could be no bar to the claim, for we have already seen that the administratrw, holding that moiety in trust, could not have [222]*222interposed that statute. If the statute runs at all in sueli a case, it can only commence from the time that the de> fendants succeeded to the property, under an assumed right, as owners by virtue of her will.
* Vid. 1. n. wi 74ofS%rii. iW-
It may be said here that the statute gives an action at law of debt, detinue, or account, to any person entitled to a distributive share'. This is a recent provision,* and was no doubt intended for the ease and favour of the per-s-ons entitled to distributive shares. But I should apprehend it was not the intention of the legislature, by that favour, to abridge the long-established remedy which legatees and the next of kin possessed in this Court. It could hardly have been intended, that executors and administrators might violate their trust, and appropriate the estate to themselves, if the legatees, or next of kin, had not made their demand within the short period of six years. Such a new and alarming relaxation of the poxvers of this Court over such trustees, is not to be presumed, and could not have been intended. I admit the general principle, that if the equitable and legal titles so far correspond, that the only difference between them is, that the one must be enforced in equity, and the other at law, the equitable title must be acted upon in the same time that the legal should b.e, or it will be barred. But this rule is where there is no subsisting trust; and Lord Mane ners mentions that circumstance, as forming an exception to the-rule which he so emphatically lays down. (Medlicott v. O'Donel, 1 Ball and Beatty, 166.) Courts of equity are not within the words of the statute of limita: tions; that statute is adopted and applied by the discretion of this Court, to suits in equity, that are analogous to those in xvhich it is. applied at law. But it has been always the doctrine of the Court that legacies are not within the statute of limitations. (Parker v. Ash, 1 Vern. 256.) The same reason applies to distributive shares, and with equal force. They are considered in, at least, as strong a [223]*223'light as debts by specialty, and are not barred, except un» der the same prescription, arising from lapse of time, that would bar a bond. Within that time, I should not be willing to protect an'executor or administrator from the payment of a legacy or distributive share, when he admits the trusts and admits the assets, and sets up only the lapse of time.
The demand is founded on documents partaking of the nature of a record, as the probate in the one case, and the inventory in the other. The principle on which the court proceeded, in Pomfret v. Windsor, (2. Ves. 472.) was that the statute of limitations affords no protection to an administrator against the party calling for his distributive share, though, no doubt, an administrator, as well as an executor, may plead the statute against a creditor of the estate, as was done in 3 Atk. 70. They are only responsible in the peculiar character of trustees, and to the extent of that character, in respect to legatees and the next of kin, and in some other special cases.
If the plaintiffs, then, are entitled to claim the distributive share of the wife, they could recover interest upon it, at least after one year from the intestate’s death, seeing that the assets were appropriated by the administratrix to the purposes of business, and yielded great profit.
This recovery, however, would not exceed, and would probably fall short, of a moiety of the property now offered to be divided between the parties to this suit. But it is to he observed, that if the marriage contract is laid aside, the next of kin of C. J. F. would be entitled to the other moiety of his estate, which would sweep away the whole from these unfortunate children who are now before the court. The terms of compromise are therefore, beneficial, as well as fair, in this point of view, so that, quacunque via data, the terms ought to be accepted.
I shall, therefore, declare, that it is for the interest of the infants that one equal moiety of the property in the [224]*224possession of the two defendants, who are executors and guardians, after deducting therefrom their reasonable expenses and costs, in the defence of this suit, be paid to the plaintiffs, in full satisfaction of their claim, and that the ■ residue of the costs be borne by the parties respectively.
Order accordingly.