Irving v. M'Lean

4 Blackf. 52, 1835 Ind. LEXIS 26

• Court: Indiana Supreme Court
• Decided: May 29, 1835
• Status: Published

Opinion

Stevens, J.,

after stating the facts in the cause, delivered the following opinion of the Court:

Numerous objections are raised in this case, and divers errors assigned, but this opinion will be confined to one. We are met at the threshold by an objection which renders all further investigation useless.

The complainants in the original bill have not shown that they are entitled to any relief. They claim as the children and heirs of John M’Lean, deceased, and the record expressly shows that the domicil of the intestate and his family was in the state of Pennsylvania, that he died there, and that the executor de son tort seized and possessed himself of the personal estate of the deceased in that country; hence the laws of that state must govern the rights of the complainants. -, Judge Kent says: “It has become a settled principle of international jurisprudence, and one-founded on a'comprehensive and enlightened sense of-public policy and convenience, that the disposition, succession to, and distribution of personal property, wherever situated, is governed by the law of the country of the owner’s or intestate’s domicil, at the time of his death, and not'by the conflicting laws of the various places where the goods happened to be situated.” ...... “ Personal property is subject to that law which governs the- person of the owner. Huberus lays down this to be the correct and common opinion.”- Bynkershoeck considers the-principle so well settled that none dare dispute it. Vattel thinks the rule to be well established by the laws of nations. 2 Kent, 429.

This doctrine is also settled in England in the cases of Thorne v. Watkins, 2 Ves. 35.—Pipon v. Pipon, Amb. Rep. 25.—Burn v. Cole, ib. 415.—Bruce v. Bruce, 2 Bos. & Pull. 229, note.—Bempde v. Johnstone, 3 Ves. 198.—Somerville v. Lord Somerville, 5 Ves. 750.

The rule as settled in England, arid by the general usage of nations, as to succession and distribution of real and personal property, has been repeatedly declared to constitute a part of the municipal jurisprudence of this country. 2 Kent’s Comm. 2 edit. 432.-3 Cranch’s Rep. 319.—7 ib. 115.—9 Wheat. 565.—1 Binn. 336.-3 Johns. Ch. Rep. 210.—4 ib. 469.—9 Mass. 337.—1 Mason’s Rep. 408.—1 Const. S. C. Rep. 292.—4 Greenl. Rep. 134.

It is a rule about which there is’ no controversy, that Courts of justice cannot judicially take notice of foreign laws; they must be specially pleaded. Whether the complainants in this case are entitled to relief, or have any interest in the money in controversy, depends.solely upon the laws of Pennsylvania, and it is a question of law for the Court to decide; and therefore the bill should have averred their rights under the laws of that state, and should have set forth the law on which they relied, to enable the Court to determine whether they are entitled to any relief in the premises or not

(1). There are other defects in the original bill which might, perhaps, have been reached by a proper demurrer. It is even left doubtful, in what character the complainants intend to charge Irving, whether as executor or as a trespasser. He is neither called upon to account or pay; the whole frame of the bill is unapt, and lacks many important averments.

J. Perry and S. Bigger, for the appellant. J.Rariden, for the appellees.

Per Curiam.

The decree is reversed with costs. Cause remanded, with directions to the Circuit Court to dismiss the. bill, &c.

Vide Stout v. Wood, Vol. 1 of these Rep. 71.—Elliott et al. v. Ray, 2 id. 31, and note.—Cone v. Cotton et al. Id. 82, and note.—Titus v. Scantling et ux. 3 id. 372.— West et al. v. Blake, Nov. term, 1836, post.

The printed statute books of this state, and of the lato territories of Indiana and Illinois, purporting to be printed under tho authority of the state or territory, are evidence of the private acts therein contained. And the printed statute books of any other state or territory of the Union, purporting to be printed unde the authority of such state or territory, arc prima facie evidence of the public and private acts contained in them. Stat. 1834, p. 79.—Rev. Stat. 1838, p. 273.