Loftus v. F. & M. N. Bank

Opinion, Mr. Justice Mitchell: The settled general rule is that the validity of a transfer of personal property is to be determined by the law of the domicile of the owner. And this is especially so in regard to the capacity to pass the title, in cases of infants, married women, or others who may be under legal disabilities, varying in different countries. “ A married woman’s capacity for the alien [111] ation of movables depends in general upon the law of her domicile: ” Dicey on Domicile, Rule 38, p. 195. The defendant in error, though by birth a citizen of Pennsylvania, by her marriage lost her domicile here, and acquired the domicile of her husband, which is English. It is entirely clear, therefore, that her general rights, capacities, and disabilities as a married woman, in regard to her personal property, are governed by the laws of Great Britain, and are not affected by the laws of Pennsylvania. No assistance, therefore, in the determination of this case, can be got from the act of June 3,1887, P. L. 332. That act relates to the rights and powers of married women over the control and disposition of their separate property. But the only married women whose rights and capacities the legislature of Pennsylvania has any power to regulate, are those within the 'commonwealth, and it cannot be assumed that the act was intended to apply to any others. How far the lex loci contractus might affect the rights of property arising therefrom, it is not necessary to consider, as the marriage in this case took place abroad, and the husband did not, even by the place of the contract, become subject to the laws of Pennsylvania. But while the general rule, as above stated, is entirely settled, not only in this state, but in every jurisprudence founded on the common- law, yet it is subject always to the power of the state to declare otherwise as to any property having an actual or legal situs within its borders. The title and mode of transfer of land are always governed by the lex loci rei sitae ; and personal property may be assimilated to land, in these respects, whenever the law of any state so determines. In Milne v. Moreton, 6 Binn. 353, 361, Chief Justice Tilghman said: “ The assignees.....stand upon this principle, that personal property has no locality, but is transferred according to the law of the country in which the owner is domiciled. This proposition is true, in general, but not to its utmost extent, nor without several exceptions. In one sense, personal property has locality; that is to say, if tangible, it has a place in which it is situated, and if invisible, (consisting of debts,) it may be said to be in the place where the debtor resides; and of these circumstances the most liberal nations have taken advantage, by making such property subject to regulations which [112] suit their own convenience. In cases of intestacy, the property is distributed according to the law of the domicile of the intestate. But yet, so far as concerns creditors, it depends on the law of the country where it is situated..... Every country has the right of regulating the transfer of all personal property within its territory, but when no positive regulation exists the owner transfers it at his pleasure.” And see observations of Gibson, O. J., in Mulliken v. Aughinbaugh, 1 P. & W. 124, and in Speed v. May, 17 Pa. 94; of King, P. J., in Merrick’s Est., 2 Ash. 485; Smith’s App., 104 Pa. 381; and Bacon v. Horne, 123 Pa. 452. Indeed, it may be said that the tendency of modern authorities, under the influence of the European continental jurisprudence, is towards the recognition of the law of the situs, to such an extent that what was an exception is tending to become the rule. See note to the late editions of Story on Confl. of Laws, § 388; Whart. on Confl. of Laws, §§ 346-353, and cases there cited; Westlake on Private International Law, § 141. Even Dicey, a common-law writer whose clear and accurate pages are as refreshing as the blue sky after the foggy disquisitions of Story and Wharton, generalizes the rule as to creditors to which the Pennsylvania cases above cited adhere, in this form: “ Where there is a conflict between a title, under the law of the country where a movable is situated, and under the law of the owner’s domicile, the lex situs will in general prevail.” Dicey on Domicile, Rule 57, p. 262. In accordance with this tendency, the legislature of Pennsylvania, by act of March 18, 1875, P. L. 24, declared that it shall be lawful for any married woman owning any of the loans of this commonwealth, or of the city of Philadelphia, etc., to sell and transfer the same with like effect as if she were unmarried. This act rules the present case. Its intention is not so much to enlarge the capacity of a married woman to deal with her property, as to regulate the mode of transfer of certain kinds of property owing their existence to Pennsylvania law and having their legal situs in this commonwealth. Being a regulation of property made for the public safety and convenience in the transaction of business, it is applicable to all owners of the classes of property named, though it may thus incidentally enlarge the powers of some foreign or non-resident [113] wives. The direction is peremptory and without exception, that the transfer shall have the same effect as if she were unmarried; and, as the purpose of the act is the public convenience, no construction should be given to it which would operate against that purpose. The authority to transfer, therefore, must be construed to carry with it all the necessary powers to make it effective, and among these is the power to do it by attorney. The same considerations dispose of the objection to the constitutionality of the act of 1875 that it relates only to the loans of the city of Philadelphia among municipal corporations. The act is not a regulation of the affairs of the city of Philadelphia, within the meaning of article III., § 7, of the constitution. As already said, it is the regulation of the mode of transfer of cei'tain kinds of property for the public business convenience. It includes the loans of the commonwealth itself, and of all corporations chartered by its authority; and the power to include such city loans as the public convenience required is nowhere prohibited to the legislature. In the view we have taken, it is not necessary for us to consider the power of Mrs. Loftus under the English statute of 45 and 46 Viet., c. 75, further than to say that that act appears to confer upon married women ample authority to make transfers such as the present. But, as the construction of foreign statutes is a matter that courts never enter upon unless absolutely necessary, and as the plaintiff’s authority under the act of 1875 is clearly sufficient, we rest the case upon that act. Judgment affirmed.