McCollum vs. Smith.
Conflict of Laws. Power of a, State over property within it — slaves in Louisiana. Every state may impress upon all property within its own territory, any character, which it may choose, and no other state or nation can impugn or I vary that character. In Louisiana, slaves, though moveable by their nature,’ l are immoveable by operation of law.
Same. Descent of immoveables. The descent and heirship of immoveables are exclusively governed by the law of the country within which they are actually situated. This is the doctrine of the common law. Story’s Confl. § 483.
SAME. Descent in Louisiana among intestate's children in general, and when some or one of them is a feme covert and nonresident.' By the laws of Louisiana, all the legi~" timate children of an intestate “participate to his succession by equaLshares.” Code of 1808, B. 3, Tit. 1, c 2, $ 2, art. 27. If one of these children be a married woman, her share of the immoveables of the succession, vests in her as paraphernal property, and she holds it independently of her husband, and she is entitled to the administration and enjoyment thereof, Civil Code, La. p. 331, though she be domiciled in Tennessee with her husband. But her husband is entitled to her moveables wherever situated as her administrator in Tennessee.
SAME. Jlcquisitions after marriage — change of domicile. The law oí the actual domicile of husband and wife governs as to moveable property acquired after a change of residence, and as to all immoveable property, the law of the place where it is situated. Story’s Confl. $ 187.
John Dodd, of the parish of Iberville,- Louisiana, had’ five children, a son, William, and four daughters, Elizabeth, Sally, Letitia and Tamsey. The last intermarried first with fine William- Salsbury, by whom she had a son, William. On the death of Salsbury, her husband, she intermarried in March, 1810, with Edwin Smith, by whom she had twef daughters, Zilla Willson, born before the marriage, but re-cognised by Smith as his child, and Sally Argadine, born afterwards. In April, 1815, Smith was'appointed guardian of William Salsbury, by the coiinty court of Davidson.
About the 10th of December, 1815, John Dodd died intestate, at his residence in Louisiana, seized and possessed óf a considerable estate, consisting of lands, slaves and other property, his five children above named surviving him. In' January, 1816, Smith and his wife "heard of her father’s death; and they immediately joined in a sale of her interest in his estate to one Wright, for $2400, for which sum Wright gave his notes. Mrs. Smith herself died suddenly in February afterwards, and Smith rescinded the contract with Wright and gave him up his notes. He then repaired to' *343Louisiana, and there, on the 30th of March, 1816, joined the other heirs of John Dodd, in an application to the parish judge, as appears from his record, “that a sale of the property belonging to the said succession might be decreed in the shortest delay that the law would allow;” the said heirs declaring that they believed it would be for the interest of all parties concerned, that the said property be sold on the following terms, that is to say, the personal property payable in the. month of March, 1817; and the land and slaves, payable one third in March, 1817,' one third in March, 1818, and one third in March, 1819.
In making this application, Smith claimed one sbar.e as “guardian of William Salsbury, a minor child, and'heir of the said deceased, in the right of his deceased mother, Tam-sey Dodd; and as representing “the rights of Zilla Willson Smith and Sally Argadinre'-'Smitb, minor children, issue of the said Tamsey Dodd, deceasfd', and said Edwin Smith.” “A liquidation and partition of the succession of John Dodd, between his five heirs, viz. William Dodd, Elizabeth Goodwin, the children and heirs of the late Tamsey Dodd, represented by their guardian, Edwin Smith, — Sally Lowe, represented by Philip Pipkin and Edwin Smith, her assigns, and Letitia Dodd, wife of Placide Leblane,” was made on the 17th of April, 1817, when the net proceeds thereof, were stated at 16,688 dollars, and the share of each heir, less nine dollars, at $3,323 60 cents. The record then stated the allotments of the first instalment, and proceeds— “And the said co-partners do hereby transfer, assign and set over the several obligations, credits, rights and actions; as contained in the lots aforesaid, to the several persons by whom they have been drawn as above, or to whom they have been assigned, to balance their accounts.” The said co-part-: ners then proceeded to divide the sums due on the second and third payments of March, 1818, and March, 1819; and agreed that the heirs of Tamsey Dodd and Sally Lowe, re: presented by Philip Pipkin and E. Smith for their two sever ral shares, do take the amount due from Louis Mairouneau, being eighteen, hundred and eighty-one dollars and sixty-two cents and two thirds, at each payment, and one hundred and *344sixty-three dollars, ninety-four cents, of what is due by W. Dodd on the purchase of slaves at each payment;” and then after stating these allotments in figures, the record concludes —“And the copartners do hereby transfer, assign, and set over the several obligations, credits, rights and actions as contained in the lots aforesaid, to the several persons to whom they have been assigned as above, to balance their accounts. Thus done and passed in my office this 2Sth day of April, in the year of our Lord, one thousand eight hundred and seventeen, causing the parties interested, herein, to sign in presence of N. Meriatn and Antoine Devillies, witnesses hereunto required,” and then the paper was signed by the parties, and the witnesses, and the parish judge.
Smith obtained from William Salsbury, when he came of age, the following receipt — “October 21, 1826. I this day have settled with Edwin Smith, for being guardian for me, and received of him two thousand and fifteen dollars.” (signed,) “William Salsbury,” and witnessed by Tillman S. Hunt.” Salsbury died intestate, on the 19th of December, in the same year.
On the 18th of August, 1833, Sarah A. Smith executed a deed, in which reciting that she was entitled to a distributive share of John Dodd’s estate, as heir of her mother, and to a distributive share of the estate of her brother, William Salsbury; that her sister Zilla, having been born out of wedlock, could not represent them; that her husband, John D. McCollum had taken much pains and trouble, and been at much expense in travelling from this state to Louisiana to examine into and adjust said business; in consideration of the premises, she conveyed, and assigned, to said McCollum and wife the one half part or portion of her interest in both said estates, and empowered McCollum and her sister to sue for and recover the same for their own use, &c.
After Sarah had executed this paper, Smith obtained from her a receipt, which was witnessed by Frederick Bradford and John Lowe, in the following words:—
“Received of Edwin Smilh, two thousand dollars in money and property, and other considerations, in full of all accounts, dues and demands; and particularly in full for his *345guardianship of my property, during my minority, being satisfied in full, and I release, acquit and discharge him for ever in full. Witness my hand and seal this 29th September, 1833.”
Afterwards, Sarah intermarried with Joel S. Reid, who by his deed of the 15th of January, 1835, confirmed his wife’s deed of the 18tb of August, 1833, covenanting that McCollum might use his and his wife’s name in attempting to recover said estate, and that he, for himself and wife, would join McCollum in any suit in law or equity which might be brought for the same.
Accordingly, on the 15th of April, 1835, McCollum and his wife, and Reid and wife joined in a bill in the Chancery court at Franklin against Edwin Smith, stating the facts here recited, and praying that he might be compelled to show what he had paid for the receipts obtained from his wards, Sals-bury, and Sarah A. Smith; what property or money of said Salsbury came to his hands; what amount of money he had received from the estate of John Dodd, as guardian of Sals-bury, Zilla, and Sally; that an account might be taken of these several particulars; and that he might be decreed to pay them what should be found due them on the account.
On the 30th of April, 1835, Smith filed his answer, in which he insisted that by the proceedings in Louisiana, he did not intend to relinquish his interest in the property of John Dodd; that the receipt from Salsbury was executed after his majority, fairly, freely and bona fide, he having suffered Salsbury to take possession of his property, advanced money to him from time to time; that Salsbury held a note on him for about three hundred dollars, which he was ready to pay to his administrator when one should be appointed; that his daughter Sarah, having, after executing the deed to McCollum, of the 18th of August, 1833, informed him thereof, and that she did not wish him made responsible in any way, he told her he could make a charge of what money he had advanced her during her minority, and for her support, and she could give him a release if she thought proper; and she thereupon executed the receipt of *346.the 29th of September, 1833, freely and voluntarily, and without any fraud; that he is entitled to all the personal estate of John Dodd, including the slaves, the proceeds of which he received in Louisiana; because, as his wife was domiciled in Tennessee at her death, the succession to personal estate would be governed exclusively by the laws of Tennessee; that by the laws of Louisiana, he would bo entitled to one half of the real estate absolutely, if those laws recognise, in matters of succession, the law of the matrimonial domicile; and that he would be entitled to the proceeds of the real estate during his life, being accountable for the value of the capital, considered as real estate at the time of his death. And the answer concluded by stating, that the defendant had taken letters of administration to his wife, and he produced his letters, which were tested as of the third Monday of April, 1835.
The complainants, McCollum and Reid had themselves .appointed administrators of W. Salsbury, and filed an amended and supplemental bill, stating the fact. On the 3d of November, 1836, they filed another amendment to their bill, charging that, by the laws of Louisiana, land and slaves are immovables, and those of Dodd’s estate did not vest in Smith as husband of Tamsey Dodd; that upon her death they vested in complainants and William Salsbury, and the proceeds after the sale belonged to them; that William Salsbu-ry’s interest, after his death vested in complainants, Sally .and Zilla; that movables, by the laws of Louisiana, are| to be applied to the payment of the debts of the deceased, and that those of John Dodd were sufficient to pay his debts, ,&c.
Smith in answer to this amendment, denied that the laws of Louisiana were as complainants supposed, and required proof. He insisted that Mrs. Smith’s share of John Dodd’s .slaves would be governed by the laws of Tennessee, and would vest in him on her death, and he would be entitled to them as her .administrator and next of kin. And he declined admitting any of the matters of fact, or conclusions of law, or inferences stated in the amendment, and required full .and strict proof thereof.
*347At April Term, 1837, by consent of counsel, his Honor Chancellor Bramlitt, referred it to the clerk and master, Litton, to report what the law of Louisiana was, at the death of John Dodd, upon the following points — l. Whether slaves are, by that law, movable or immovable property? 2. Does immovable property, which descends to a married woman from her father, upon her death intestate, belong to her heirs or children, or to her husband? 3. Whether the law of Louisiana makes any difference as to descent of immovable property, when the party on whom it is cast is not a citizen, and when he is a citizen of the state of Louisiana?
On the 18th of October, the clerk and master filed his report, stating from the Digest of the Laws of Louisiana, pub^ lished in 180S, the provisions which he supposed to bear Upon the inquiries referred to him, and his conclusion therefrom, as to each inquiry. And he stated that those provisions were in force at the death of John Dodd, and had remained unaltered, as appeared by the deposition of Alexander Barrow, Esq., which he submitted with his report.
Testimony was taken by the parties in reference to the receipts executed to the defendant by Salsbury, and by his daughter, the complainant, Sarah; and upon some other matters unimportant to the questions debated here, or irrelevant to the issue. As to thé receipts, the testimony did not satisfy the chancellor, that Smith had paid, the sums of money specified in them to Salsbury, and his daughter. There was testimony also, showing that Smith was of sufficient substance to support his daughter without trenching upon her estate.
At November Term, 1837, the cause was heard by Chancellor BRamlitt, who being of opinion that the receipts formed no obstacle to the relief asked for by the complainants; and that complainants, Zilla aud Sarah, were entitled to their mother’s share of the lands and sláves of John Dodd, decreed an account of the proceeds of them against Smith, and that the clerk and master should state his account as guardian; that the defendant should be charged with one half, being Salsbury’s portion, of the proceeds of said lands *348an¿¡ slaves, and with compound interest thereon from the timé? he received it, until Salsbury’s majority, and simple interest afterwards till his death; that he should be credited with a reasonable yearly allowance for the support and maintenance of Salsbury from 1810 until his death in 1816; also-with any sums of money paid Salsbury after his majority,- “and any small or reasonable sum” before that time; and with the value of any property received by Salsbury; that the' defendant should be charged with simple interest only on the share of Sarah, and allowed nothing for her support, and that he should pay costs.
Dec. 21, 22, 24.
From this decree he appealed in error.
E. H. Ewing & Meigs, for the complainant.
1. As to movables, in Lousiana, to which Tamsey Dodd was entitled by succession to j her father, it is admitted, defendant’s marital rights are according to the laws of Tennessee, the place of the matrimonial domicile. 1. By a principle of international law; Story’s Confl. § 186. 2. By the law of Louisiana itself; Code of 1808, Book 3, Tit. 1, Art. 163y p. 186.
2. As to the immovables of John Dodd’s succession, the title is. regulated by the laws of Louisiana. From and after the 10th of Dec. 1815,one-fifth of them were the property of Tam-sey Smith. What were her husband’s rights to them during the marriage; that is, in this case, from Dec. 10, 1815, to Feb. 28, 1816, appears from the same Code, page 334, §111, Arts. 56 etseq., and page 186, Art. 168, and page 52y Arts. 42 et seq.
After the death of Tamsey Dodd, the father ceased to have the usufruct, secured by law — during the marriage — to the parents; and then the relation of guardian and ward commenced between him and his children. See Code, page 57 of Tutorship by Nature.
“During the marriage,” the relation of parent and child continued; by virtue of which, the usufruct of the estate of the children belonged to the parents, that is, in the words of the Code, page 52, Art. 42, “fathers and mothers shall have during marriage the enjoyment,” &c. But as soon as one of the parents dies, the relation of guardian and ward commences. *349between the survivor and the children, and the guardian i's accountable both for the property and revenues of the estate. Code, page 58, Art. 5.
3. But in this case, in point of fact, Edwin Smith did assume to act as the natural guardian of his children, in which capacity, he did all the various acts which are necessary by the Code to divide an inheritance among the co-heirs. All of which will be seen in the Code of 1808, Book 3, ch. 8, page 184.
Art. 155, shows by what title the heirs are seised of the inheritance upon the death of the ancestor.
Art. 162, and Arts. 171 et seq. show that after the partition, the heirs are alienees and vendees mutually. See page 366, ch. 6, Arts. 118, 119, 120.
Arts. 237 et seq. show that they are mutual warrantors.
This partition was judicial, — see Arts. 165 et seq., andthe acts of the Parish judge in receiving the petition for partition; ordering and conducting the sale; forming the mass of the inheritance; auditing the demands of creditors; ascertaining the net residue; drawing the lots; adjudicating the allotments in severalty, were all judicial in their nature; all of which, constituting the entire partition, also constitute a judgment in rem, of a court having jurisdiction of the persons claiming, and of the subject matter claimed. See Story’s Conflict of Laws, c. 15 — especially § 591, 592.
And such a judgment is conclusive upon all the world as to all the matters of right and title, which it professes to decide. Least of all persons in the world, can Smith impeach this judgment, having been himself a party to it, and having acquiesced in it 19 years.
James Campbell, for the defendant.
In this case both the parties claim the proceeds of certain negroes, &c., in Louisiana, under Tamsey Smith, the wife of Edwin Smith, and mother of complainants. Edwin Smith and wife were citizens of Tennessee.
1. As the domicile of Mrs. Smith was in Tennessee, the laws of Tennessee would govern in the distribution of personal property, and the lex loci rei sitae as to the realty; Story’s Conflict of Laws, § 481,483.
*3502. Lands and houses, and other things which are deemed part of the freehold, or which savour of the realty are real estate or immovables — all other things which are movable in their nature are personal property. To make a thing realty, it must be attached to some freehold. The distinction between real and personal property exists in the things — it is the ideas in the mind and not the words employed that can make a thing real or personal property; Story’s Conflict of Laws, § 447.
3. The principle laid down in this section of Story’s Conflict of Laws, that every nation can impress upon property what character it pleases, only applies to cases where the sovereignty is complete, not to cases of a divided jurisdiction the owner being in one State, and the property in another. But supposing that a State, under the principle stated, could make personal property a part of the land, or “annex it to the freehold,” the law of Louisiana, in this case, does not do it. It does not annex negroes to any freehold, but merely says slaves shall be immovable by operation of law, and therefore they may be mortgaged, &c. It is the annexing a thing to the freehold that makes it realty. The negroes in this case must be regarded as movables or personalty, because they are movables in fact and are not attached to the realty.
4. Our statute of distributions is positive in its provisions. So are the statutes of descents of Louisiana. Where the owner' of property is in one sovereignty and the property in another, and a conflict arises^ the disposition must be settled upon a principle independent of both. That principle or rule is, that the law of the domicile must govern as to personalty, and the law of the place where the property is situate must govern as to the realty. And so strong is the principle, that if a citizen of a State acquires property under a foreign judgment or decree contrary to the rule I have mentioned, he will be held liable to the person who would be entitled under the rule, and made to hold as a trustee for him; Story’s Conflict of Laws § 409; see also § 20. The authorities on this subject are collected in the 9th chap, of Story’s Conflict of Laws, to which the court are refered, 4 J. C. R. 487.
5. The laws of Louisiana do not contravene the principles *351contended for, but if they did Tennessee would not in her courts give effect to those laws in opposition to her own, and in opposition to the law of nations. If Louisiana can by the mere application of a word, change the character of the property, -she is evading the principle. The law then would be no law at all.
F. B. Fogg, on the same side.
Article 163, page 186 of the Dig. of La. relied upon by Mr. Meigs, applies only to the rights of the husband during marriage, and has no relation to the rights of the husband to his wife’s movable effects after her death. The right of succession is precisely the same as to movables as immovables, there is no distinction between them. Succession applies to “the estate, rights and charges of the deceased which pass to other persons who replace them.” Book 3, Title 1, Chap. 1, Art. 1, Dig. 144. The husband has no right except to the partnership property, in any thing movable or immovable, where the wife has lawful descendants.: page 154, c. 3, art. 43.
See page 324, art. 13 — Proper or hereditary effects are all such as.either husband or wife brings in marriage, or whioh he or she inherits or acquires during marriage, by will or lucrative contract,
Dig. p. 52; Art. 42, 43; Fathers and mothers during marriage have the enjoyment of the estate of their children un.til their majority. They are usufructuaries, and by Art. 47, children cannot sue them. The father is liable as an usu-fructuary; how that is, see p. 110; also 114, Art. 22, 23 54.
I refer the court also to the case of Lashley v. Hog, Robertson on Personal Succession, p. 234; 12 Law Library, side paging, 416; also Stanley v. Bernes, 5 Ecclesiastical Rep. 140, 161; 9 Bligh’s Rep. 32, Britwhistle v. Vandell', Id. 89, Wanender v. Wanender; 4 John. Ch. Rep., Holmes v. Mensem, 461; 2 Id. JDecouche v. Savatier.
When there is a father or mother, the courts of Louisiana have no power to appoint a curator or guardian. The father has the rights of an usufructuary, unless the donation made to ¡the child prohibits it; 6 La. Rep. 236.
*352January 8.
Green, J.,
delivered the opinion of the court.
The complainants Zilla and Sally, are the children of the defendant, by his former wife Tamsey. Tamsey was the daughter of John Dodd of Louisiana, who died in that State, possessed of considerable estate, about the 1 st of December, 1815. Mrs. Smith and her husband, the defendant, lived in Tennessee, where she died in February, 1816, before any measures were taken to obtain her share of her fathers estate. Her only children surviving her were, the complainant, Zilla, wife of McCollum, and Sally, wife of Reid, and William Salsbury, a son by a former husband. William Salsbury died in November, 1826, without lawful issue; leaving his sisters, Zilla and Sally, his only heirs and distributees.
The defendant, Smith, obtained his wife’s portion of her father’s estate in Louisiana, and was guardian of William Salsbury, whose estate went into his hands. This bill is brought by his daughters and their husbands for an account of each of these funds.
The principal question in this cause is, whether negroes are to be regarded in Louisiana as real estate, or personal? .For it is not disputed on either side, but that if personal, the law of Mrs. Smith’s domicile will govern; and if real, the law of the place where it was situated will control the succession. Story’s Confl. L. § 481, 483.
By the law of Louisiana, real estate and immovable things are convertible terms. Dig. 1808, B. 2, c. 2, Art. 13.— And that law, Art. 19, contains the following provision, inr elation to slaves — “Slaves in this territory are considered immovable by the operation of law, on account of their value and utility for the cultivation of the lands, and therefore they may be mortgaged.”
The chapter from which this extract is made, treats only of immovable things, enumerating what are such and in what sense; whether by their nature,' or by operation, or destination of law; and commences with the words, “Real estate or immovable things are,” &c. Thereby substituting the terms, “immovable things,” for “real estate;” Story’s Confl. L. § 447, says, “that in addition to those things which may be deemed universally to partake of the nature of immovables, or, *353as the common law phrase is, to savor of the realty, all other things though movable in their nature, which by the local law are deemed immovables, are, in like manner, governed by the local law. For every nation, having authority to prescribe rules for the disposition and arrangement of all property within its own territory, may impress upon it any character which it shall choose; and no other nation can impugn or vary that character.”
If these principles be correct, they settle the question; for Louisiana has said, by its law, that slaves are immovable, and having a right to impress upon them any character it may choose, which Tennessee has no right to impugn or vary, it follows that the law of Louisiana must govern the succession.
It is earnestly argued, that this language of Judge Story must be restricted in its meaning, to such things, movable in their nature, as are by law attached to the land,- and are thus made to savor of the realty. This is plainly a misconstruction of the author; for he says expressly, that in addition to the things that are universally considered to savOr of the realty, “all other things,-though movable in their nature, which by the local law are deemed immovables, áre .in like manner governed by the local law.” Thus plainly intending to assert the power of a nation to impress any description of property, with the character of “immovable;” whether connected with land or not.
But it is insisted, that no State has a right to do this; and thus give to property, movable in its nature, a destination, different from that, which by the law of nations would be given to it, were there no such local law.
If this argument be well founded, the power, by law, to attach movable property to the freehold, and thus constitute a part of it, would be equally beyond the competency ol a State. Is it not as easy to declare, in an act of assembly, that horses for the plough shall constitute part of the freehold, and thus make them immovable, — as to announce simply, that horses shall be immovable property? It is certainly difficult to perceive upon what principle, the competency to enact the former provision can be maintained, while the power to make *354tlie latter is denied. And yet the power to attach, by faf#> things in their nature movable to the freehold, and thus make? them immovable, is not denied in the argument; — -and, indeed? could not be, for the common law, as well as the civil law? recognises some things movable in their nature, as part of the freehold. This right to impress upon movable things, the character of immovables does not depend upon their relation to the freehold, but results from the power inherent in every nation, “To prescribe rules for the disposition and arrangement of all property within its own territory." When this shall be done the law applicable to immovables governs the disposition which must be made of such property.
It is insisted that the law of Louisiana refered to was not made with a view to the succession, but that, as only immov-ables are there subject to mortgage, slaves on account of their' value, were impressed with the character of immovable with the view only of malting it lawful to mortgage them.
This is evidently a misconstruction of the law. It is true,, that after announcing that slaves are immovable property, it is added in the digest of 1808, “And therefore they may be mortgaged.” But this is stated as a mere consequence, or incident, resulting from the character with which the property had been impressed by law. The chapter is not treating of mortgages, or securities, but of the character of property,defining what things are immovable in contra-distinction to movable things. To put it beyond doubt, that such is thetrue construction of this article, it will be perceived by refference to the civil code of Louisiana of 1825, Book 2, Tit. Ch. 2, Art. 461, that the words, “And therefore they may be mortgaged,” are omitted altogether. The language of that article is, “Slaves, though movable by their nature, are considered as immovables by operation of law.
Thus we have a legislative construction of the article in question, removing all doubt.
These principles having been established, let us apply them to the case under consideration. We have seen that John Dodd died in Louisiana in 1815. His daughter Tamsey, wife of the defendant Smith, him surviving, then resided im Tennessee, where she died in 1816.
*355In relation to immovable property, the descent and heirship is exclusively governed by the law of the country, within which it is actually situate. “No person can take except those who are recognised as legitimate heirs by the laws of that country; and they take in the proportions and order which these laws prescribe.” “This,” says Judge Story, “is the indisputable doctrine of the common law;” Confl. L. §483. By the law of Louisiana; Dig. Civ. Code., B. 3, Tit. 1, Ch. 2, § 2; Art. 27, p. 150; when a man dies all his legitimate children “participate to his succession by equal shares.”
John Dodd had five children, of whom Mrs. Smith was one, so that she became entitled to one-fifth of all her father’s estate.
This vested in her as paraphernal property; and as the law of Louisiana governs, as to the land and negroes, being immovables, that portion of the estate was held by her independently of her husband, of which she had the administration and enjoyment. Civil Code, La. 334. This property remained undisposed of, and undivided until after the death of Mrs. Smith in 1816. Upon her death by the law of Louisana, the succession to all her property in that State, is participated by her children. But as that law governs only as to the immovable, Story’s Confl. § 483, the defendant, her husband, as administrator of her estate in Tennessee, is entitled to her movable effects; and is not bound to account for them to her children. Story’s Confl. § 481.
But it is insisted, that as Smith and wife were married in Tennessee, that contract was made in reference to the law of Tennessee, and, therefore, all their matrimonial rights are to be governed by that law. . This question has called forth much ingenious discussion on both sides. It is unnecessary to add any thing of ours, other than to announce the result of our investigation of the subject. We think that, however, the domicile of the parties may be changed, the law of the actual domicile will govern as to movable property acquired after such change of residence, and as to all immovable property, the law of the place, where it is situated. Story’s Confl. L. § 187.
Upon these principles, the complainants are entitled to an *356account for the estate of their mother, which may have come into the hands of the defendant.
Indeed, if these principles were less clear and satisfactory, than they appear to be, the manner in which the defendant has treated the subject, recognizing the rights of his children* in the proceedings in Louisiana, acting as their guardian in the division of their grandfather Dodd’s estate, and receiving their portion in that character, are circumstances which tend strongly to support their claim to the account they seek.
He could not have obtained the property in Louisiana in any other character than as guardian for his wife’s children; nor did he ever set up any right to it until this bill was filed. He told Mrs. Woodson, his step-daughter, that his daughters were worth more than she was. In requiring him to ac-> count for this estate, therefore, in accordance with our views of the rights of the parties, he will only do what he has all along felt himself bound to perform.
But the defendant insists in his answer, that he has settled with the parties entitled to this estate, and therefore he is not beund to account.
To support this allegation in the answer, he has produced a receipt from the complainant Sally, dated 29th September, 1833, wherein she acknowledges the receipt from him, as guardian, of two thousand dollars in money and property in full of all demands.
The evidence shows that this receipt was obtained from his daughter without consideration; no money having been actually paid. That his daughter was young, lived in his house, was very much under his control and influence, and most probably did not know what was the character of the paper she signed. There is no pretence for setting up this receipt in opposition to the account prayed for.
The defendant also relies upon a receipt from William Salsbury, dated October 21, 1S26, for two thousand and fifty dollars, in which a settlement is acknowledged to have been made with Smith as guardian, and that sum received.
It is insisted, that this receipt is valid, and ought to be conclusive as to Salsbury’s share of the estate; for that, although it may appear from the evidence, that Salsbury did *357not receive this sum, still he was of age, gave the receipt voluntarily, and that he had a right to give his estate to Smith if he chose to do so.
This view of the subject presents'] some difficulty in the mind of the court, and had the defendant treated it in this manner, we should have hesitated before we would have pronounced it invalid. But the defendant in his answer, alleges that he had advanced money to Salsbury from time to time, and had permitted him to take possession of his property, and after he became of age, settled with him and took his receipt. He thus puts his defence upon the ground, that he had actually paid Salsbury his distributive share of both his fathers and mother’s estate.
But it satisfactorily appears from the evidence, that such was not the fact. At the time the receipt was executed, no money was paid, no note was given, no property was delivered; and Salsbury dying shortly afterwards, left no visible estate, save a horse or two, known to any of the witnesses. It is in proof too that Salsbury was not an extravagant young man.
It impossible, therefore, to believe that Smith actually paid the money mentioned in this receipt; and as he has placed the question of its validity upon an actual payment, and not as a gift from Salisbury, we cannot regard it as a gift, and being satisfied the money was not paid, we are of opinion it presents no obstacle to the account the complainants ask, of Salsbury’s estate in his hands.
L.et the decree be affirmed.