It was held in New York Surrogate Court, 1869, Biolley's Estate, 1 Tucker's Rep., 422, that the usual treaty provision as to succession of foreigners (Treaty between the United States and Switzerland, 1850,) does not require a reciprocal recognition of foreign guardians. The above Article is restricted to the case of guardians appointed judicially, so that the right of appointment by will, which in many of the States is recognized as existing in the parent, may be included in the previous Article respecting natural and testamentary guardians. Surrogate BRADFORD, in stating the rule that foreign guardians have no extraterritorial authority, says: The reason upon which a foreign guardian is denied any recognition of his title, is substantially this, that all his authority springs out of his official character; and a civil officer, as such, can, of necessity, possess no power beyond the limits of the sovereignty by which he is appointed. Such exceptions as may exist have been admitted not de jure, but ex comitate. The lex fori primarily prevails in the form and order of the administration of justice, and foreign law is only received so far as it is found consonant with sound principle and public convenience-it is accepted on the basis of international comity, and not because of any inherent right. The continental jurists go further, and insist upon the absolute right and title of the guardian appointed at the place of domicil, wheresoever the ward is to be represented; but neither in England nor in the United States does this doctrine prevail." McLoskey v. Reid, 4 Bradford's (New York) Surrogate Rep., 334. 4 Woolsey, (International Law, p. 122,) states that, the guardian empowered according to the law of the ward's domicil, which will usually be that of the deceased parent, exercises control over the ward's property wherever situated. But in the case of immovable property the lex loci rei sita may prevent such control of a foreigner, and it may be necessary to appoint a special guardian residing within the jurisdiction. Sanity. 559. The laws determining the lunacy or idiocy of any person are territorial only; and a decision that a person is a lunatic or idiot will bind that person and his movables, whether he be a citizen or an alien, only while he is domiciled within the jurisdiction of the country in which such decision was made, and will bind the immovables of such person situated in that country, whether the domicil therein do or do not continue, but will not bind such person in any other country, nor the immovables of such person situated in any other country. See, however, Westlake, Private Intern. Law, § 402, who says that "While the English law remains as it is, it must, on principle, be taken as excluding, in the case of transactions having their seat there, not only a foreign age of majority, but also all foreign determination of status or capacity, whether made by law or by judicial act, since no difference can be established between the cases, nor does any exist on the Continent. Thus, an act facilitating the transfer of property vested in lunatics, can not be applied on the strength of a judgment, by a foreign competent court, declaring the person a lunatic; nor will the committee appointed by such court have any authority over the lunatic's person here." TITLE XXV. PROPERTY. CHAPTER XLI. General provisions. XLII. Transfer. XLIII. Succession. XLIV. Will. CHAPTER XLI. GENERAL PROVISIONS. ARTICLE 560. Property defined. 561. What things are property. 562. Wild animals. 563. Real and personal property. 564. Real property. 565. Land. 566. Fixtures. 567. Appurtenances. 568. Personal property. 569. Property in possession, or in action. 570. Law of immovables. 571. Law of movables. 572. Local character of public funds, and cor- 573. Local character of shipping. 574. Effect of matrimonial settlement. 575. Rights of property of persons married without a settlement. 576. Matrimonial property after change of domicil. 577. "Matrimonial domicil" defined. 578. Abandonment. Property defined. 560. The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property.' This and the eight following Articles are from the Civil Code, reported for New York, § 159, &c. 1 In another sense, property is the right of a person or persons, public or private, to appropriate a thing (tangible or intangible) to the exclusion of its promiscuous use by others. This has been also called domain. The word is here used, however, in its more general sense. What things are property. 561. There may be ownership of all inanimate things which are capable of appropriation, or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill, as the composition of an author, the good will of a business, trade-marks and signs; and of rights created or granted by statute. Wild animals. 562. Animals wild by nature are the subjects of ownership while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued. Real and personal property. 563. For the purposes of this Code, property is designated as either, 1. Real or immovable; or, 2. Personal or movable. Real property. 564. Real or immovable property consists of, 1. Land; 2. That which is affixed to land; and, 3. That which is incidental or appurtenent to land. The existing rule of international law is, that the question whether an article of property is or is not an immovable, is to be determined by the law of the place where such article of property is locally situated. Story, Confl. of L., § 447; Fœlix, Droit Intern. Privé, vol. I., p. 121. The above Article, and the four following, which are taken from the Civil Code, reported for the State of New York, are proposed here in order to secure a uniform rule for all cases arising under this Code. Land. 565. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance. Fixtures. 566. A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of nails, bolts or screws. Appurtenances. 567. A thing is deemed to be incidental' or appurtenant' to land, when it is by right used with the land for its benefit; as in the case of a way, or watercourse; or of light, air or heat, from or across the land of another. 1 Smyles v. Hastings, 22 New York Rep., 217, 222. 2 Lampman v. Milks, 21 New York Rep., 505, 511. 3 Ackroyd v. Smith, 10 Common Bench Rep., 164, 187. Personal property. 568. Every kind of property that is not real, or immovable, is personal, or movable. Property in possession, or in action. 569. Personal property is of two kinds: 1. Property in possession; and, 2. Property in action. Property in possession can only be such as is capable of manual delivery. Law of immovables. 570. The law of the place where immovables are situate, exclusively regulates and determines the rights of parties, the modes of transfer, or of charging or otherwise disposing thereof, whether between living persons or by will, and the formalities to accompany them. As to the extent to which this rule is adopted on the Continent of Europe, and among other States which have followed the French Code, see Felix, Droit Intern. Privé, vol. I. p. 119. The form in which the rule is stated in Curtis v. Hutton, 14 Vesey's Rep., 536 (approved in Oakey v. Bennett, 11 Howard U. S. Supreme Ct. Rep., 33, 45, as a clear and precise statement of a doctrine uniformly recognized by the American courts), is as follows: The validity of every disposition of real estate depends upon the law of the country in which that estate is situated. |
