Estate of Kohne

The opinion of the Court was delivered by

The testator, Frederick Kohne, was for many years a citizen of Pennsylvania and an inhabitant of Philadelphia, where he executed his last will on the 28th of April, 1829, and where he subsequently died. Among the legacies in this will is found the following : [Here his honour read the bequest as contained in the report.] Moritz Fontain, at the time of the testator’s death, had five children, one of whom is since deceased intestate, unmarried, and without issue. The surviving children are Frederick, now of the age of thirty years, Wilhelm, of the age of twenty-seven years, Albertine Marie Louise, of the age of twenty-three years, and Henrietta Catherina, of the age of twenty-one years and upwards. These four persons have all united in a power constituting John C. Lang, of this city, their attorney in fact, to demand and receive their legacies, and it has been at his instance that the proceeding has been brought before this Court.

If the case was without further complication, it would be one of the extremest simplicity, and the decree of distribution prayed for would follow of course. But a difficulty is supposed to present itself, because these legatees are subjects of the kingdom of Prussia, and at this time actually domiciled therein ; and because, by the laws of that kingdom, the minority of a child continues until he or she may arrive at the age of twenty-four years; the usufruct of the child’s property, and the administration of its estate, remaining in the interval with the father. No dispute exists either as to the fact of the petitioner’s domicile, or as to the Prussian law, in relation to the time when a child becomes emancipated from the paternal authority; nor as to the interest a father possesses, under that law, in the estate of his minor child.

The first question for adjudication is one involving the construe*408tion of this bequest, viz. whether the fund bequeathed is distributable when the youngest child of Moritz Fontain has actually attained the age of twenty-one years, or whether such distribution is to be postponed until such youngest child shall have arrived at full age, according to the law of its legal and actual domicile, which in this instance is the age of twenty-four years.

The complainants, who ask immediate distribution, found their claims on what seems to them the intention of the testator, as expressed on the face of his will. And certainly, if we confine ourselves to the instrument, the position taken by the complainants seems the necessary one. The source from which the legacies bequeathed these complainants come, is the sum of three thousand dollars, directed to be annually set apart and invested, with all accumulations thereof, until the youngest child of the testator’s nephew “ shall arrive at twenty-one years.” Which annual sums and accumulations are to be equally divided among the children of his nephew living, when the youngest thereof shall “ arrive at full age.” The phrases “ arrive at twenty-one years” and “ arrive at full age” are synonymous, and would convey to the mind identically the same idea in any question in which our tribunal were acting on our own citizens; and they must always be so considered, at least primé facia, when found in such an instrument as the present, executed by one of our own citizens, within our own territory, and operating on property exclusively within our own jurisdiction. The theory of the opposite argument is, that the testator having been a native of Prussia, must have been conversant with the laws of that kingdom, and therefore meant to use the phrase “full age,” not in its Pennsylvania meaning, the age of twenty-one years, but in its Prussian sense, the age of twenty-four years; especially in regard to his Prussian legatees. But this theory rests solely on one fact, to wit, that Mr. Kohne was by birth a Prussian. To this fact two assumptions have been associated, viz. that Mr. Kohne was conversant with the Prussian law, and that he had that law in contemplation, in employing the phrase “ of full age ” in his will. Now it happens that the wars of the French revolution, and the final overthrow of the Napoleon dynasty, had, since his departure from Westphalia, more than once changed the government of his native country, and altered its civil code. If, therefore, this question is to be solved by the doctrine of probabilities, the weight of the argument seems to be more in favour of the idea, that in using these words, he had in view their value in the country of his adoption, where his fortune was realized, and towards which he manifested his affection, by *409magnificent donations to her public charities: rather then their meaning in a country from which he had permanently separated himself, and with whose existing laws and institutions he had no further connexion. But independent of this sort of speculative reasoning, the face of the will shows that he had in his mind the . Pennsylvania notion of full age exclusively. He directs the accumulating fund to continue only until the youngest child of his nephew should reach the age of twenty-one years ; the annual appropriation of $3000 then stops. No provision is made for further increase of the fund, either by the addition of new capital or by the accumulation of the interest arising from the then existing fund. This is exactly the state of things we should expect to see, on the arrival of the period at which the testator intended the division of his bequest to take place. If he had had in contemplation, that three years should elapse, after his youngest grand niece had arrived at twenty-one, before she should receive her own proportion, and before her elder brothers and sisters should receive theirs, would not such an eccentric intention have been distinctly expressed? Would not some provision have been made, directing the disposition of the accruing interest during that time, either for the immediate benefit of the legatees, or for adding it to the general fund? On t'he contrary, wherever accumulation of interest is spoken of in the bequest, it is spoken of in connexion with the annual additions made to the capital; manifesting, most clearly, that the two were inseparably associated in the mind of the testator, and that when the addition of new capital by the annual appropriation of $8000, should cease, he intended that the accretions from accumulating interest were alike to terminate, and the aggregate fund divided among his legatees. In all such inquiries as the present, we are solely in pursuit of the intention of the testator; that alone is the point to be arrived at. To accomplish this result, we are to search for such intention in all the parts of a bequest. To dwell on isolated phrases, without considering them in all their connexions is, of all other courses, the one most likely to divert the mind from that enlarged and philosophical manner of discussing such questions which is the only one calculated to bring us to their true solution. It is from such a process of reasoning that we are brought to the conclusion that the testator in this bequest has used the phrases “twenty-one years,” and “full age,” as pure synonymes, and that of consequence, the period for the division of this fund among the legatees has arrived. This conclusion disposes of the case as respects the portions of Frederick, Wilhelm, and Albertine, the two *410former having actually reached twenty-four years of age, and the latter being now sui juris by virtue of an action of emancipation, executed by her father according to the Prussian law.

The remaining point for adjudication, is, whether the power of attorney, under which Mr. Lang claims to represent Henrietta Catherina Fontain is an instrument, executed by a party legally competent to make it. It is admitted that she is a Prussian subject, actually domiciled in that kingdom, and that, by the laws of her domicile, she is still under a state of tutellage, and legally incapable of executing such an instrument, if intended to operate there. What then is her status in reference to the question of her legal capacity to execute such an instrument in Prussia, intended to operate on PERSONAL estate in this commonwealth ?

There are few subjects, arising under the conflict of laws, which have produced more elaborate discussion than laws regulating the capacity, state, and condition of persons. The whole subject has been very fully discussed by Judge Story, in his learned Treatise on the Conflict of Laws, where the studious inquirer will find ample materials to enable him to pursue his investigations of it. We, however, will confine our consideration to the precise question before the Court, which is, whether a minor, actually domiciled in a foreign country, and who, by the laws of that country, is legally incapable of executing any instrument having any legal value there, can execute therein such an instrument legally efficacious on his personal property in this commonwealth. Or, to state the question in another form, whether we will regard the laws of foreign countries, regulating the relations of minority and majority, in cases in which a foreign minor, who still retains his foreign domicile, presents himself as a party in our courts to obtain the recovery of personal property in this commonwealth. The continental authorities on the subject are very fully considered and discussed by Judge Story, who sums them up by stating that, with but few exceptions, they agree in this position: “ That a person who has attained his age of majority by the laws of his native domicile is to be deemed everywhere of the same; and on the other hand, that a person who is in his minority, by the laws of his native domicile, is to be deemed everywhere in the same state and condition. Thus, for example, if, by the laws of the place of his original domicile, a person cannot make a will of his property before he is twenty-one years; he cannot, if under that age, make a valid will, even of such property as is situate in a place where the laws allow persons of fourteen years to make a will of the like property:” §52. It may be appropriately re*411marked that the learned author is here considering cases of the capacity or incapacity of persons arising from the domicile of origin, and where there has been no subsequent change of domicile§ 55. And so far as this doctrine has been applied to acts of minors, executed in their native domicile, which they have never changed, and acting exclusively on personal property, it has met with general favour. When sought to be applied in reference to lands, which are properly regulated by the laws of the situs, it is not received. The rule being “ that no personal statute extends to lands situate elsewhere.” Non tamen statutem personate ssepe regulariter ex-tendet ad bona immobilia alibi sita. In reference to the case before the Court, and the application thereto of those principles, it is important to be borne in mind that the act here impeached as invalid is a power of attorney, executed by a minor in her native country, and where she is now actually domiciled, authorizing an attorney, so constituted by her, to receive her personal inheritance in this country ; and that her right to do so is disputed by the executors of the will under which she claims the inheritance, in consequence of an intervention by her father, claiming as well the administration as the usufruct of the estate under the laws of her native and actual domicile. And finally, that the estate is all personal, which, as well by our laws as by those of her country, follows the situs of the owner.

This state of things brings the case apparently within the first of the categories of Judge Story, in which he recapitulates the continental doctrines best established. That is to say, “ acts of a person done in the place of his domicile, in regard to property situate therein, which are to be judged of by the laws of this place, and which will not be permitted to have any legal effect elsewhere than they have at that place.” In point of actual fact, it is true that the minor’s property in this instance is within our actual jurisdiction; but as personal property always follows the situs of the owner, this fact does not vary the proposition. The case then seems brought within the narrowest limits which any jurist who has admitted the doctrine of the extraterrial force of personal statutes has ever desired to restrain it. And to this extent it is part of the law of Pennsylvania, because it is part of the jus gentium, which forms a part of our code. To this extent I also understand the doctrine as conceded by the learned counsel for Henrietta Catherina Fontain. But his concession is accompanied by the assertion of an exception to the rule, broad enough, as he supposes, to cover his case. He asserts that when Henrietta Catherina Fontain gave a *412power of attorney to Mr. Lang to collect this debt due to her by a person residing in Pennsylvania, she contracted with the person owing the debt, that the payment to the agent should be a full acquittance of her demand. That this contract is to be executed in Pennsylvania, and that the law of Pennsylvania is the “ lex loci contractus aut actus,” and governs as to the ability or disability, and establishes the personal status of the parties to the contract. That contracts are to be performed according to the laws of the place where they are made, is an axiom of universal legal truth. “ Locus contractus reget actum,” is alike the rule of law and reason.

But the second branch of the doctrine contended for, to wit, that a contract made by an admitted minor in his domicile, where it is a nullity, to be executed in another country, where he would not be considered as a minor, may be enforced in the latter, is a question by no means so clear. It is directly at variance with the second proposition which Judge Story deduces from a comparison of the opinions of foreign jurists, and which he asserts to be, “ that the personal capacity or incapacity attached to a party by the law of the place of his domicile is deemed to exist in every country, so long as his domicile remains unchanged, even in relation to transactions in any foreign country where they might be otherwise obligatory (§ 65.

If this doctrine is disputable, as it is supposed to be in the argument, it is not actually necessary to be decided in order to the determination of this case. And this, because the power of attorney executed by Henrietta Fontain is in no respect a contract with the executors of Frederick Kohne. "What is a contract, in the general sense of the term ? Tt is a mutual agreement made between two or more parties. It is express where the terms of the agreement are expressed by the parties themselves. It is implied from the reason and justice of a particular transaction, and which, therefore, the law presumes that every man undertakes to perform. In this case, no such express contract as that asserted, exists. The executors of Mr. Kohne have, on the contrary, refused to negotiate with Henrietta Fontain, because they regard her as incapable of making any binding engagement. Had they admitted her competency, and paid her legacy to her attorney, the argument founded on the idea of a contract might have had some colour. Express contract, then, there is none. An implied contract is necessarily founded on a present, perfect, and absolute right, which reason and justice requires should be enforced in favour of the party possessing it, against him who refuses to do him justice. But we have said that *413no such present, perfect, and absolute right exists in Henrietta, by reason of her minority.

Hence the substratum on which an implied contract could only be founded, fails, and the superstructure falls with the removal of the foundation. The subtlety of this argument is apparent from its operation on the principle we have heretofore asserted. We have said, that according to our laws, in common with those of the civilized world, questions of minority and majority, in all controversies respecting personal estate, are to be determined according to the laws of the country in which the alleged minor has his actual domicile, whether natural or acquired. If, after announcing this principle, as an actual rule of our jurisprudence, we should say that such a minor is competent to execute in his own domicile a power of attorney, legally adequate to operate on his personalty here, we nullify our own rule for every practical purpose, making it a barren abstraction, and inefficacious. We at one breath declare the same party capable and incapable, and by a simple change in the mode of procedure, we recognise a legal capacity which we have before repudiated; a system of jurisprudence which would result in such inconsistencies, could scarcely claim with justice the proud title of the perfection of human reason, which jurisconsults claim for their elevated science.

In the final conclusion we have thus arrived at, we have in part differed, and in part concurred, with both the parties litigant. We agree with the complainants, that the legacies of Mr. Kohne to the children of Moritz Fontain are all immediately payable, and we accordingly decree such payment to Frederick, Wilhelm, and Alber-tine. But we also agree with the respondents, that Henrietta not having reached full age, according to the laws of her native and actual domicile, labours under a personal incapacity, which disqualifies her from suing in this Court as a person sui juris. As the proceedings, as respects her, are still open for further directions, an application on her behalf may be hereafter made. Perhaps her father may see proper to execute in her favour a similar act of emancipation to that which gives her elder sister a standing in Court. If that is not done, an application may be made to the Court, either to order the transmission of her estate to her legal guardian or tutor, in Prussia, or, perhaps, to constitute one here, who may receive and retain, or transmit it under our directions. Our action in these respects has not been asked; and therefore it seems best to leave any direct expression of opinion in.regard thereto, until such action is solicited.