42 Tul.
L. Rev. 662
Powell Crichton died in November of 1962. A native of Louisiana, he
migrated to New York early in life and maintained his
domicile there. He was twice married. His first wife died in 1928,
leaving two children of the marriage. In 1925, he remarried and
had two children by his second wife. The couple separated in 1935
and, though not divorced, lived separate
and apart until Mr.
Crichton’s death. Mr. Crichton’s will
made no provision for his
second wife. The entire estate passed in trust to his four
surviving
children. The estate consisted mainly of bank accounts in Louisiana
and stocks and bonds held in custody
accounts in that state. The
bulk of the fortune was earned in Louisiana and the documentary
evidence of the property remained there. The will named Mr.
Crichton’s
secretary as executrix and she qualified in the state of
New York, where the will was
probated, and in the state of
Louisiana, where ancillary proceedings were instituted. As
ancillary
executrix, she initiated a proceeding in Louisiana for approval of
the inventory and computation of Louisiana inheritance taxes. The
widow
asserted a claim to community property rights which
was
objected to by the son and daughter of the first marriage. As a
result of these proceedings, the Louisiana court issued a
permanent
injunction restraining the executrix from disposing of or removing
the property from Louisiana.
While these proceedings were taking
place in Louisiana, the executrix filed an account in New York
listing the widow’s
share of the community property as allowed
but unpaid, and the daughter of the first marriage objected. The
surrogate court
held that Louisiana’s community property laws
were not applicable and sustained the objection to the allowance
held that Louisiana community property
laws would not be applied
to govern property rights of a New York domiciliary to intangible
personal property of her deceased husband located in Louisiana.
In Re Estate of Crichton., 20 N.Y.2d 124, 281 N.Y.S.2d 811
(1967).
The disposition of the noted case hinged on the determination
of whether Louisiana or New York
law was applicable to the personal property located in Louisiana. In order for
a case to constitute
a true choice-of-law problem in marital property law, the court
must first determine that both states possess sufficient
“interests”;
in the marital property to warrant a consideration of the laws of
each. If such a joint interest is found, it must then be decided that
the substantive rules of the jurisdictions involved conflict on
the
marital property issue raised. If either
the “interest” or “conflict”
is found to be missing, the problem may then be classified as a false
conflict.[1]
In reaching its decision on the first question, the court
utilized what may be referred to as
a “contact” “balance of interest,”
or “paramount interest” test.[2]
In other words, the court
asked if each state had sufficient contacts with the property to
warrant a consideration of its laws. Under this test, the court
reasoned that New
York not only had the dominant interest but
that it had the only interest in the marital property involved.
This
finding alone would have been sufficient to dispose of the case, since
if the foreign jurisdiction had no interest in the application
of its
law, the law and the public policy of the forum state with regard
to the rights of married persons should be given effect. The court
went further, however. In an apparent attempt to strengthen its
decision, it interpreted the
Louisiana law on the subject[3]
and found
that it was questionable that this law would have conflicted even if
there had been sufficient contacts to justify its consideration. It is
In its application of the “paramount
interest” test, the court
seems to have placed primary importance
and reliance on the well-established legal fiction that movables follow the
person, mobilia
sequuntur personam, a principle which has been especially controlling
in marital property law.[4]
Under this concept, the controlling
law as to marital personal property is said to be that of the
marital
domicile at the moment of acquisition. That such a principle has
in
the past been pre-eminent in American legal thought is hardly
arguable and is evidenced by section 290 of the first Restatement
of the Conflict of Laws.[5]
The reasoning behind the acceptance of
this idea is said to be the
convenience of having one law control all
of a marital unit’s personal
property and this one law being applied
by the forum, which is normally the site of the marital domicile.[6]
Thus for the sake of convenience the law has considered that personal marital
property, no matter where it is physically located, has
its legal situs at the marital domicile. Having accepted such
a
principle, it was then rather easy for the court to find that New
York had the paramount and sole interest in this personal property
even though it was physically located and documented in Louisiana.
In light of the rather recent reevaluation
of this marital domicile
doctrine, however, it would have been relevant for the New York
court to ask in the context of the facts presented
should a legal
fiction based on convenience control in such situations or should
the fact of the physical location of personal property in another
[7]
and often been answered in the negative.[8]
For example,
the proposed change in section 290 of the second Restatement[9]
states the marital domicile principle but then allows the state of
the situs to establish marital interests in such property if it
so
desires.[10] This new
trend of thought is based on the idea that convenience is a rather poor
foundation on which to build such a
weighty legal fiction when more concrete necessities for clarifying
title to personal property and protecting the rights of creditors
therein would be better
served by placing control in the law of the
situs.[11]
The advocates of such a change hastily point out that real
property has always been controlled by situs law and this fact has
not created any insurmountable inconveniences
as to marital
property.[12]
Even though the court in the instant case may have
been correct in stating that the marital domicile principle con-
trolled in New York, it should have recognized that the other
principle of control by situs does exist. Had the court done this, it
would then have
had to recognize that the mere fact of physical
location in Louisiana would be sufficient to establish that interests
did exist in both states as to the marital property, thus satisfying
the
“interest” prerequisite of a choice-of-laws problem. This
then
would have set the stage for the court to answer the controlling
question: Did the laws of New York and Louisiana conflict?
The Louisiana statute which would have had to be
compared
with, the New York law granting the surviving spouse one third
of
the entire estate is article 2400 of the Civil Code.[13]
All property acquired in this state by non-resident
married persons, whether the title thereto be in the name of
either the husband or wife, or in their joint names, shall be
subject to the same
provisions of law which regulate the
community of acquets
and gains between citizens of this
state.
On its face, this article purports to grant to any surviving
spouse
a one-half interest in all community property acquired in Louisiana
by non-residents.
Its introduction into Louisiana law has been said
to be indicative of the strength of the community
property system
in Louisiana.[14]
As was pointed out above, the court in the noted
case chose to interpret this article and concluded that it was in-
tended
to apply only to property acquired in Louisiana by non-
residents who later move to Louisiana. To reach this conclusion, the
court cited several cases[15]
decided prior to the enactment of this
article as authority for the proposition that Louisiana did not
apply
its community property laws to non-residents. In doing so,
this common-law court violated one of the basic canons of the civil
law in Louisiana: once a code article is enacted, it should
preempt
conflicting case law.[16]
This is not to imply that all Louisiana cases
and commentators agree that
article 2400[17] applies to
all property
purchased in Louisiana by non-residents.[18]
That this is not the case
is evidenced by the court’;s reliance on one case in particular,
Williams v. Pope Mfg. Co.[19]
in which the court refused to apply
the provisions of article 2400[20]
to a cause of action for personal
injuries. However, the
great weight of authority in Louisiana [21]
The reasons usually advanced for the introduction of this article[22]
into the Louisiana code are identical with those being advanced by
the proponents of a situs-oriented rule today[23]—namely,
clarification of titles and protection of creditors relying on the
appearance
of property, both real and personal. It is submitted that the
clear
legislative intent evidenced by the unambiguous wording of
article
2400[24] was to
establish the law of the situs as the
controlling
Louisiana law governing all marital property physically located in
Louisiana.
Had the New York court recognized this, it would have
clearly seen that the Louisiana situs law conflicted with the New
York marital domicile
law.[25]
This then would have satisfied the final
prerequisite for a true conflict-of-law problem-a conflict between
the substantive rules of the two jurisdictions on the marital
issue
raised.
Solution of this true conflict-of-law problem would have
required
a weighing of the various state interests involved. The court could
have reached the decision that the
public policy of New York compelled it to apply its own law, the law of the
forum, or, conversely,
could have capitulated to Louisiana law which would have resulted
in a different
distribution of the property.[26]
It is submitted that the
New York court would have been completely
justified in holding [27]
or Louisiana[28]
law. That New York could have done this is becoming
increasingly clear as
the United States Supreme Court moves
further away from the “single
proper law” approach to such conflicts.[29]
It would be a false oversimplification to suggest that the
court
in the instant case chose an obviously spurious interpretation of
Louisiana law and completely disregarded Louisiana’;s interest in
this property in order to insure that the public policy of New York
would be given full effect through the application of its own law.
Rather it is suggested that the court decided that
New York law
presented the more equitable solution to the particular marital
problem presented and reasoned that the best way to insure its
application was to decide, as it did, that Louisiana had no interest
in the property. It should be
stressed that this case presented to
the court a situation in which the testator’s
will made no provision
at all for his surviving spouse from whom he had been separated for
nearly thirty years. Furthermore, this spouse had purposely chosen
not to exercise her right to
take one third of the entire estate prior
to the filing of the Louisiana
suit.[30]
The court, no doubt, also noted
that the surviving spouse abandoned the appeal in her own name
prior to this court’s
taking it on appeal, leaving the executrix as
the sole appellant. All of
the above tends to impress one that the
testator did not intend to leave anything to his wife and that
she
apparently concurred in this as evidenced by her renunciation and
failure to prosecute her own appeals. Admitting
that such equities
justified the application of New York law, it is submitted that
the
refusal to recognize the case as a true conflict-of-law situation,
in
which case forum law still could have been applied,[31]
now makes it
extremely difficult for the Louisiana courts presently
considering
the ancillary proceedings on their merits[32]
to give the same effect
to those equities. Without considering the New York decision, it would seem that
the Louisiana court would have to follow the literal mandate of
article 2400.[33]
In doing so, the court would grant one-half of the
personal property to the surviving
spouse as her community property.[34]
With the New York decision of record, however, the very
real problems of
full faith and credit[35]
and judicial comity are
interjected. Both of these principles, of special
importance in the
area of conflict of laws, might be expected to provide a very
strong
impetus to the Louisiana court to give countenance to the
instant
decision. Thus the Louisiana court finds itself in a rather
precarious
position as a result of the New York decision. In order to grant
full
faith and credit to this decision, it would have to accept, at
least
impliedly, a decision which completely misinterpreted one of Louisiana’s
code articles pertaining to marital property. Furthermore, it
would have to admit that Louisiana had no interest in the
personal
property located within its jurisdiction. The prospect of accepting
such a decision is hardly palatable to any court. It is submitted that
had the
New York court used the more convincing method of solving the problem given
above,[36]
the Louisiana court would be in a
much more favorable
position to give it complete acceptance. The
court would then have been asked to give effect to a decision
which
acknowledged that the laws of the two states conflicted as
to
marital property in which both had an interest and on the basis
of doing
“fair play and substantial justice”[37]
the law of the forum
was chosen. The acceptance of such a ruling could readily be based
on the substantial
desire for uniformity of decisions and a discouragement of repeated litigation
on the same question as well as
a. desire by the Louisiana court to follow the equities of the case.
Raymond J.
Salassi Jr.
[1]
See Currie, The Constitution and the Choice of Law: Governmental
Interests and the Judicial Function, 26 U. Chi. L. Rev. 9 (1958). See also
H.
Marsh, Marital Property in Conflict of Laws 9 (1952); Richards v.
United
States, 369 U.S. 3 (1962); Universal C.I.T. Credit Corp. v.
Huiett, 151 So. 2d
705 (La. App. 3d Cir. 1963).
[2]
See Dodd, The Power of the Supreme Court to Review State Decisions in the Field
of Conflict of Laws, 39 Harv. L. Rev. 533, 559
(1926); Reese,
Conflict of Laws and
the Restatement Second, 28 Law & Contemp. Prob. 679,
688-91 (1963);
Currie, The Constitution and the Choice
of Law: Governmental
Interests and the Judicial Function, 26 U. Chi. L.
Rev. 9 (1958). See also
Comment, Conflict
of Laws in Louisiana: Tort, 39 TuL L. Rev. 96
(1964). For
a recent expression by a Louisiana court on conflict of laws
methodology see
Universal C.I.T. Credit Corp. v. Hulett,
151 So. 2d 705 (La. App. 3d Cir. 1963).
[3]
La. Civil Code art. 2400 (1870).
[4]
See H. Goodrich, Conflict of Laws §
124 (3d ed. 1949); G. Stumberg,
Principles of Conflict of Laws
313 (3d ed. 1963); H. March, Marital Property
in Conflict of Laws 192 (1952); Leflar, Community
Property and Conflict of
Laws, 21 Calif. L. Rev. 221, 231 (1932) ; Goodrich, Public
Policy in the Law
of Conflicts, 36 W. Va. L.Q. 156, 173 (1929); Yiannopoulos, Movables and
liumovables
in Louisiana and Comparative Law, 22 La. L. Rev. 517 (1962).
See generally Deering,
Separate and Community Property and the
Conflict of
Laws, 30 Rocky Mt. L. Rev. 127 (1958); Harding, Matrimonial Domicile and
Marital Rights in
Movables, 30 Mich. L. Rev. 859 (1932); Stumberg, Marital
Property and Conflict of Laws,
11 Tex. L. Rev. 53 (1932); Neuner, Marital
Property and the Conflict of Laws,
5 La. L. Rev. 167 (1943); Horowitz,
Conflict
of Laws Problems in Community Property, 11 Wash. L. Rev. 121,
212
(1936).
[5]
Restatement of Conflict of Laws § 290 (1934) provides that:
Interests
of one spouse in movables acquired by the other during the
marriage are determined by the law of the domicile of the parties
when
the movables are acquired.
[6]
Stumberg, Marital
Property and the Conflict of Laws, 11 Tex. L. Rev.
53, 63-64 (1932); Leflar, Community
Property and Conflict of Laws, 21 Calif.
L. Rev. 221, 231 (1932). See generally Comment, Conflict of Laws—Rules on
Marital Property, 18 La. L. Rev.
557 (1958); 15A CJ.S. Conflicts of Law
§ 18(10)
(1967).
[7]
Authorities cited note 4 supra.
[8]
See 1 W. DeFuniac, Principles of Community Property § 201.1
(1943);
2 3. Beale, A Treatise on the Conflict of Laws §
208.1 (1935); Horowitz,
Conflict of Law Problems in Community Property, 11 Wash. L. Rev. 212,
219
(1936); Harding, Matrimonial Domicile and Marital Rights in Movables,
30
Mich. L. Rev. 859, 869 (1932).
[9]
Restatement (Second) of Conflict of Laws § 290 (Tent. Draft No.
5,
1959) provides that:
The effect of marriage
upon interests in a chattel or right embodied in a document that is acquired by
either or both of the spouses during
coverture is
determined, except as stated in Comment (b), by the local
law of the state where the spouses
were domiciled at the time of such
acquisition, unless the law of the state in which the chattel or
document
was situated at that time is to the contrary. (Emphasis added.)
[10]
Id. the Reporters’ Note
explains that:
The black letter rule has been changed (1) to make clear
that the state
of each chattel’s sifts has the ultimate voice in
the creation of marital interests therein.
[11]
See R. Leflar, The Law of the Conflict of Laws §
176 (1959). See generally Leflar, Community Property and Conflict of Laws, 21 Calif. L. Rev.
221 (1932); Comment, 18 La. L. Rev. 557 (1958).
[12]
Authorities cited note 4 supra. (It should be noted that the respondents
in the noted case did not question the applicability of Louisiana law to the
real
property located in Louisiana.)
[13]
La. Civil Code art. 2400 (1870).
This article was first introduced into
[14]
See Morrow, Matrimonial Property Law in Louisiana, 34 Tu!. L. Rev.
3,12 (1959).
[15]
Huff v. Borland, 6 La. Ann. 436
(1851); Wolfe sr. Gilmer, 7 La. Ann.
583 (1852);
Succession of McGill, 6 La. Ann. 327 (1851).
[16]
See Morrow, The Proposed Louisiana
Criminal Code—An
Opportunity and a Challenge, 15 Tul. L. Rev. 415,
420-21 (1941); Morrow, The 1942 Louisiana
Criminal Code in 1945: A Small Voice From the Past, 19 Tul.
L.
Rev. 483,488-89 (1945).
[17]
La. Civil Code art. 2400 (1870).
[18]
See II. Daggett, The Community Property System of Louisiana 113 (1945). See
also H. Marsh, Marital Property in Conflict of Laws 197-201 (1952); Neuner, Marital Property and the Conflict of Laws, 5 La. L. Rev.
167, 170
(1943).
[19]
Williams v. Pope Mfg. Co., 52 La.
Ann. 1417, 27 So. 851 (1900).
In this
case the Louisiana Supreme Court held that a cause of action for
personal
injuries suffered in Louisiana was not “property”; under the contemplation of
article 2400. This decision, which was clearly a blow, at least in part, to
the full
interpretation of the article, was reviewed by a later court; in
the case of
Matney v. Blue Ribbon Inc., 202 La. 505,12 So. 2d 253 (1943).
In this decision,
while the court refused to overrule the case, it severely restricted its
application and effectively established that this was a special exception to the
in-
terpretation of article 2400.
[20]
La. Civil Code art. 2400 (1870).
[21]
See R. Leflar, The Law of the Conflict of Laws §
176 (1959); Stumberg,
Marital Property and the Conflict of Laws, 11 Tex. L. :Rev. 53, 58 (1932);
Leflar,
Community Property and Conflict of Laws, 21 Calif. L. :Rev. 221,
230
(1932); Benjamin & Pigman, Federal Estate
and Gift Taxation of Louisiana
Life Insurance: Part 1, 28 Tul. L. Rev. 75, 82 n.49 (1953); Horowitz, Conflict
of Law Problems in Community Property, 11 Wash. L. Rev. 212,
216 n.70
(1936); Morrow, Matrimonial Property Law in. Louisiana, 34 Tul. L. Rev. 3,
12 (1959); Bender v. Pfaff, 282 U.S. 127 (1930); Stanton v. Harvey, 44
La.
Ann. 511, 10 So. 778 (1892);
Smith v. Gloyd, 182 La. 770,162 So. 617 (1935);
Hyman, Lichtenstein & Co. v. Schienker & Hirsh, 44 La. Ann. 108 (1892);
Succession of Waterer, 25
La. Ann. 210 (1873); Succession of Dill, 155
La.
47,98 So. 753 (1923); cf. Leech v. Guild, 15 La. Ann. 349 (1860). As the court
in Meyerson v. Alter, 11 Fed. 688, 689 (E.D. La. 1882)
said:
It is not necessary to give any technical meaning
to the word “property”;
as used by the legislature. The object of the legislature, namely to
subject
non-residents who acquire property within this state to the same rules
as those which
govern resident citizens, is manifest, and leaves no doubt
but that the word
“property” included not only land and chattels, real
and personal, but also all choses in action.
[22]
La. Civil Code art. 2400 (1870).
[23]
Authorities cited note 11 supra.
[24]
La. Civil Code art. 2400 (1870).
25 N.Y. Decedent Estate Law § 18.
26 Currie, The Disinterested Third State, 28 Law & Contemp.
Prob. 754,
764 (1963) ; Dodd, The Power of the
Supreme Court to Review State Decisions
in the Field of Conflict of Laws,
39 Harv. L. Rev. 533, 559 (1926); Currie,
The Constitution and the Choice of Law: Governmental Interests and
the
Judicial Function, 26 U. Chi. L. Rev. 9, 83 (1958) ;
Goodrich, Public Policy in
the Law of Conflicts, 36 W. Va. L.Q. 156, 170 (1929); Richards
v. United
States, 369 U.S. 3 (1962).
[25]
25
[26]
26
[27]
See Wyatt v. Pulrath,
211 N.E.2d 637 (1965); Hutchinson v. Ross, 187
N.E. 65
(1933). As pointed out by the court, both of these cases
involved
situations in which out-of-state parties chose to designate that
the rights in
their property located in New York be determined by New York law.
[28]
See Williams v. Pope Mfg. Co., 52 La. Ann. 1417, 27 So. 851 (1900);
Marlatt v. Citizens’ State Bank & Trust Co.,
180 La. 887, 156 So. 426 (1934).
[29]
See Leflar, Constitutional Limits on Free Choice of
Law, 28 Law &
Contemp. Prob. 706 (1963).
[30]
See Brief for Respondent at 3; Appellant’s Appendix at A16-A25
[31]
It should be noted that the Surrogate Court’s opinion recognized
the
true conflict and based its decision on the dominant interest of New
York in
the marital rights of the parties. In Re Estate of
Crichton, 49 Misc. 2d 405, 267
N.Y.S.2d 706 (1966).
[32] (Docket number of Louisiana case not
available at this time.)
[33]
La. Civil Code art. 2400 (1870).
[34]
See La. Civil Code art. 2406 (1870).
[35]
U.S. Const. art. IV, § 1.
[36]
Acknowledge the joint interests of both states in the property,
the
conflict of the applicable laws, and then choose to apply the law of the
domicile
[37]
See Leflar,
Constitutional Limits on Free Choice of
Law, 28 Law & Contemp. Prob. 706 (1963).