Appeal from District Court, Wapello County; C. W. Vermilion, Judge.

Plaintiff claims that she is the illegitimate child of the decedent, Evan Jones, and as such is his sole heir and entitled to his entire estate. The administrator of the estate is made a party and also the brothers and sisters of the said decedent, who claim that the estate of the decedent descends to them. The court denied the plaintiff the relief sought, and she prosecutes this appeal. Reversed.

[182 N.W. 227] Jaques & Jaques and Gillies & Daugherty, all of Ottumwa, for appellant.

J. J. Smith and Roberts & Webber, all of Ottumwa, for appellees.

FAVILLE, J.

The decedent, Evan Jones, was a native of Wales. When he was about 33 years of age, he came to America as an immigrant. This was in 1883. He came over on the same ship with the wife and children of one David P. Jones. At that time, David P. Jones was living in Oskaloosa, Iowa, to which place the decedent went. After [182 N.W. 228] the death of David P. Jones, the decedent married his widow, who subsequently died in January, 1914. The decedent, Evan Jones, was a coal miner, an industrious, hard-working, thrifty Welshman, who accumulated a considerable amount of property. In 1896, he was naturalized in the district court of Wapello county, Iowa, and thereafter voted at elections. The reason for his leaving Wales at the time he did was because of bastardy proceedings which had been instituted against him by the mother of the appellant. In 1915, the decedent disposed of his property, which then consisted of two farms and some city real estate. He was advised by his banker to leave the greater part of his money in a bank at Ottumwa until he got to Wales, and did so deposit it. He purchased a draft for about $2,000 and left some $20,000 on deposit in the bank, and also a note and mortgage for collection, and left with the banker the address of a sister in Wales, stating that he intended to live with said sister. He sailed from New York on May 1, 1915, on the ill-fated Lusitania, and was drowned when the boat was sunk by a German submarine on May 7, 1915. The Lusitania was a vessel of the Cunard line, flying the British flag. Thereafter the brothers and sisters of the decedent secured the appointment of an administrator in Wapello county, Iowa. Various proceedings were had, which finally resulted in the trial of the issues in this cause.

I. The question for our determination in this case is whether or not, under the facts stated, the domicile of the decedent at the time of his death was in Wapello county, Iowa, or in Wales. If his domicile at the time that the Lusitania sank was legally in Wales, then it is conceded by all the parties that, under the laws of the British Empire, the appellant, as his illegitimate child, would have no interest in his estate. On the other hand, if the decedent at said time legally had his domicile in Wapello county, Iowa, then the property passed to the appellant as his sole heir under the laws of this state.

For the purposes of the present discussion, it may be conceded that the evidence is sufficient to justify a finding that the appellant was the child of the decedent and had been so recognized and declared to such an extent as to satisfy the requirements of Code, § 3385.

It may also be conceded, for present purposes, that it is established by the evidence in the case that the decedent had by acts and declarations evidenced a purpose to leave his home in Iowa permanently and to return to his native country, Wales, for the purpose of living there the remainder of his life.

The question of what constitutes domicile has often been passed upon by the courts, but the cases are so unlike in their facts that precedents to aid us in the determination of this precise question are difficult to find.

In White v. Brown, 29 Fed. Cas. 982, No. 17,538, Mr. Justice Grier well said:

“There are few subjects presented to courts for their decision which are surrounded with so many practical difficulties as questions of domicile.”

The words “domicile” and “residence” are not always synonymous at law, nor are they convertible terms. Ludlow v. Szold, 90 Iowa, 175, 57 N. W. 676;Mann v. Taylor, 78 Iowa, 355, 43 N. W. 220;Fitzgerald v. Arel, 63 Iowa, 104, 16 N. W. 712, 18 N. W. 713, 50 Am. Rep. 733;Cohen v. Daniels, 25 Iowa, 88.

[1] A person may have his residence in one place, while his domicile is in another. In re Titterington's Estate, 130 Iowa, 356, 106 N. W. 761; Fitzgerald v. Arel, supra; Cohen v. Daniels, supra; Love v. Cherry, 24 Iowa, 204.

A person may have more than one residence at the same time, but can have only one domicile, at least for purposes of succession. Farrow v. Farrow, 162 Iowa, 87, 143 N. W. 856;Savage v. Scott, 45 Iowa, 130; Love v. Cherry, supra.

[2] It is well settled that every person, under all circumstances and conditions, must have a domicile somewhere. Barhydt v. Cross, 156 Iowa, 271, 136 N. W. 525, 40 L. R. A. (N. S.) 986, Ann. Cas. 1915C, 792; In re Titterington's Estate, supra.

[3] There are different kinds of domiciles recognized by the law. It is generally held that the subject may be divided into three general classes:

(1) Domicile of origin.

(2) Domicile of choice.

(3) Domicile by operation of law.

Smith v. Croom, 7 Fla., 81;Louisville & N. R. Co. v. Kimbrough, 115 Ky. 512, 74 S. W. 229.

The “domicile of origin” of every person is the domicile of his parents at the time of his birth. In Prentiss v. Barton, 19 Fed. Cas. 1276, No. 11384, Circuit Justice Marshall said:

“By the general laws of the civilized world, the domicile of the parents at the time of birth, or what is termed ‘the domicile of origin,’ constitutes the domicile of an infant, and continues, until abandoned, or until the acquisition of a new domicile, in a different place.”

The “domicile of choice” is the place which a person has elected and chosen for himself to displace his previous domicile. Warren v. Warren, 73 Fla. 764, 75 South. 35, L. R. A. 1917E, 490;Boyd's Ex'r v. Commonwealth, 149 Ky. 764, 149 S. W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481;Mather v. Cunningham, 105 Me. 326, 74 Atl. 809, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692;Duke v. Duke, 70 N. J. Eq. 135, 62 Atl. 466;Price v. Price, 156 Pa. 617, 27 Atl. 291.

“Domicile by operation of law” is that  [182 N.W. 229] domicile which the law attributes to a person independent of his own intention or action of residence. This results generally from the domestic relations of husband and wife, or parent and child. Hindorff v. Sovereign Camp of Woodmen of the World, 150 Iowa, 185, 129 N. W. 831;In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546;Jenkins v. Clark, 71 Iowa, 552, 32 N. W. 504.

In the instant case, we have to deal only with the first two kinds of domicile; that is, domicile of origin and domicile of choice. Applying these general definitions to the facts of this case, the domicile of origin of Evan Jones was in Wales, where he was born, and the domicile of choice was Wapello county, Iowa. The question that concerns us is: Where was his domicile for the purpose of descent of personal property on the 7th day of May, 1915, when the Lusitania was sunk off the western coast of the British Isles?

The matter of the determination of any person's domicile arises in different ways and is construed by the courts for a variety of different purposes. Apparent inconsistencies occur in the authorities because of the failure to clearly preserve the distinctions to be made by reason of the purpose for which the determination of one's domicile is being legally ascertained. The question frequently arises where it becomes important to determine the domicile for the purpose of taxation, or for the purpose of attachment, or for the levy of execution, or for the exercising of the privilege of voting, or in determining the statute of limitations, or in ascertaining liability for the support of paupers, and perhaps other purposes. Definitions given in regard to the method of ascertaining the domicile for one purpose are not always applicable in ascertaining the domicile for another purpose. Some of the courts have made the broad assertion that a person can have only one domicile. We appear to have so declared in Farrow v. Farrow, 162 Iowa, 87, 143 N. W. 856;Savage v. Scott, 45 Iowa, 130;Love v. Cherry, 24 Iowa, 204. While other courts have declared that a person may have a domicile at one place for one purpose and at another place for another purpose. Smith v. Croom, 7 Fla. 81; Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 340. Confusion has frequently arisen because of a failure to distinguish between domicile and residence.

[4] Generally speaking, it is an established rule that a person can have but one domicile at the same time for the same purpose. In any event, it is the uniform holding that a person can have only one domicile for the purpose of descent of personal property. White v. Brown, supra; Merrill's Heirs v. Morrissett, 76 Ala. 433; Mather v. Cunningham, 105 Me. 326, 74 Atl. 809, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692;Greene v. Greene, 11 Pick. (Mass.) 410; Isham v. Gibbons, 1 Bradf. Sur. (N. Y.) 69; Somerville v. Somerville, 5 Ves. Jr. 750; Smith v. Croom, supra.

[5] In the instant case, we are concerned only in the matter of the domicile of the decedent, Evan Jones, as it affects the question of the descent of his personal estate. An examination of the record satisfies us that the evidence is sufficient to amply justify a finding that the said decedent disposed of his property in Wapello county, Iowa, and converted the same into money or securities, and left Wapello county, Iowa, with the present intention of abandoning his domicile there, and without any present intention of returning thereto, and also with the express intention of returning to his native country, Wales, to make his permanent home there. Or, in the language of the books, decedent's intention was to abandon his domicile of choice and return to his domicile of origin. He died in itinere. It is needless for us to cite the vast number of cases announcing the general rule that the acquisition of a new domicile must have been completely perfected, and hence there must have been a concurrence both of the fact of removal and the intent to remain in the new locality before the former domicile can be considered lost. The cases from many of the states are collected in 19 Corpus Juris, p. 423.

At the outset, it is obvious that under the circumstances of the instant case the domicile of the decedent at the time of his death must in any event be determined by the assumption of a fiction. All will agree that the decedent did not have a domicile on the Lusitania. In order to determine his domicile, then, one of two fictions must be assumed, either that he retained the Iowa domicile until one was acquired in Wales, or that he acquired a domicile in Wales the instant he abandoned the Iowa domicile and started for Wales, with the intent and purpose of residing there. Which one of these fictions shall we assume for the purpose of determining the disposition of his personal property? This question first came before the courts at an early day, long before our present easy and extensive methods of transportation, and at a time before the present ready movement from one country to another. At that time men left Europe for the Western Continent or elsewhere largely for purposes of adventure or in search of an opportunity for the promotion of commerce. It was at a time before the invention of the steamboat and before the era of the oceanic cable. Men left their native land knowing that they would be gone for long periods of time, and that means of communication with their home land were infrequent, difficult, and slow. The traditions of their native country were strong with these men. In the event of death, while absent, they desired that their property should descend in accordance with the laws of the land of their birth.

[182 N.W. 230] Many such men were adventurers who had the purpose and intent to eventually return to the land of their nativity. There was a large degree of patriotic sentiment connected with the first announcement of the rules of law in the matter of the estates of such men. The idea found expression in the phrase, “Once an Englishman, always an Englishman,” and in the kindred declaration, “A man must intend to become a Frenchman instead of an Englishman.” Moorhouse v. Lord, 10 H. L. C. 272. This popular and partriotic idea was expressed in the familiar lines of Sir Walter Scott:

“Breathes there the man, with soul so dead,

Who never to himself hath said,

‘This is my own, my native land.'

Whose heart hath ne'er within him burned,

As home his footsteps he hath turned,

From wand'ring on a foreign strand?”

Many men, especially of English birth, became traders in the American colonies or in India. The Englishman of that day was a firm believer in the law of primogeniture and desired that his estate should descend according to the established law of his native land.

These reasons, which were, to an extent at least, historical and patriotic, found early expression in the decisions of the courts on the question of domicile. The general rule was declared to be that a domicile is retained until a new domicile has been actually acquired. At an early time, however, an exception was ingrafted upon this rule to the effect that, for the purposes of succession, a party abandoning a domicile of choice with the intent to return to his domicile of origin regains the latter the instant that the former domicile is abandoned.

It will be observed that this exception involves two elements: First, that the party is seeking to return from a domicile of choice to a domicile of origin; and, second, that the question arises in a case involving succession to an estate. It is apparent that this exception to the general rule grew out of the conditions that we have before suggested and was a recognition of the desire on the part of the English trader in distant lands to have his estate administered according to the laws of the land of his birth.

One of the earliest cases in the English courts upon this question was Somerville v. Somerville, 5 Ves. Jr. 750, decided in 1801. In that case Lord Somerville had a large estate of lands in Scotland. He also maintained a home in London and spent a large portion of his time in each place. He had been educated in England and lived according to the fashion and style of an Englishman. He had declared that he considered himself an Englishman, and his only reason for spending any portion of his time on his estates in Scotland was because of a promise to his father that he would do so, and accordingly he spent about half of his time in each country. He died at his London residence in 1796. The question arose as to the descent of his personal estate. The Master of the Rolls said:

“The succession to the personal estate of an intestate is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death; without any regard whatsoever to the place either of the birth or the death, or the situation of the property at that time.”

He further said:

“Though a man may have two domiciles for some purposes, he can have only one for purposes of succession.”

Special stress was laid on the fact that the domicile of origin of the decedent was in Scotland, and the court held that the decedent “never ceased to be a Scotchman.”

In the same year, 1801, the case of The Indian Chief, 3 C. Rob. 12, was decided by the Admiralty Court. In that case a ship and cargo were seized in the Harbor of Cowes. The owner had been born in America, but had been living for some years in England, carrying on trade, and had also resided in France. Speaking of him, the court said:

“He came, however, to this country in 1783 and engaged in trade and has resided in this country until 1797. During that time he was undoubtedly to be considered as an English trader, for no position is more established than this, that if a person goes into another country and engages in trade and resides there, he is by the law of nations to be considered as a merchant of that country. * * * It must be held that from the moment he turns his back on the country where he has resided on his way to his own country, he was in the act of resuming his original character and is to be considered as an American. The character that is gained by residence ceases by nonresidence. It is an adventitious character which no longer adheres to him, from the moment that he puts himself in motion bona fide to quit the country sine animo revertendi.”

The reason for the rule as it is announced by text-writers and courts is well set forth in the foregoing case. The thought is evident that one who becomes domiciled in a foreign country for purposes of trade, and who abandons such domicile for the purpose of returning to his native land, reinvests himself at once with his domicile of origin.

A little later, in 1812, the question came before the United States Circuit Court in the case of The Ann Green, 1 Fed. Cas. 958, No. 414. Mr. Justice Story rendered the opinion in the case and therein declared:

“I accede to the doctrine, that fewer circumstances are necessary to constitute domicile in case of native subjects, than of foreigners; and that as native allegiance easily reverts, so the presumption against the party is much heightened by the shipment being made from a port of his native country.”

[182 N.W. 231] It is significant, in view of the pronouncements later made by this eminent jurist in his work on the “Conflict of Laws,” that at this time he recognized the rule that “native allegiance easily reverts.”

In 1814, the question came before the Supreme Court of the United States in the case of The Venus, 8 Cranch, 253, 3 L. Ed. 553. Mr. Justice Washington, speaking for the court, cited with approval the case of The Indian Chief, supra, and said:

“Having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it, until he had thrown it off, either by an actual return to his native country, or to that where he was naturalized, or by commencing his removal, bona fide, and without an intention of returning.”

In Prentiss v. Barton, supra, decided in 1819, it is said, referring to domicile:

“As it gives political rights, which are not lost by a mere change of domicile, it is recovered by any manifestation of a disposition to resume the native character; perhaps, by a surrender of a new domicile. In fact, it may be considered rather as suspended, than annihilated.”

It is apparent that the court gave consideration to the idea that “political rights” entered into a consideration of the matter at least so far as furnishing a reason for the recognition of the rule that the domicile of origin easily reverts. It is the same idea as expressed by the English courts in stablishing the rule of “native allegiance.”

In 1829, the question was again before the English Court of Chancery, under circumstances more nearly like those of the instant case, in the case of Munroe v. Douglas, 5 Madd. Ch. Rep. 379. In that case it appeared that Munroe was born in Scotland and went to Calcutta, India, to practice his profession as a surgeon. He married and lived in India for some time. He left India in 1815, declaring his purpose to spend the remainder of his days in Scotland. On the way, he stopped in England and took a house, and on account of ill health was unsettled and undetermined whether to continue to reside in England or to spend the remainder of his days in Scotland, or to go to France. He went to Scotland on a visit, and while there died. The question in the case was where the decedent was domiciled at the time of his death. The Vice Chancellor held that a domicile cannot be lost by mere abandonment and that it remains until a subsequent domicile is acquired, “unless the party die in itinere toward an intended domicile.” Under the facts of the case, the court held that the decedent had formed no settled purpose to settle in Scotland at the time of his death, and that therefore his domicile was in India. The court said:

“A domicile in India is in legal effect a domicile in the province of Canterbury and the law of England, and not the law of Scotland is, therefore, to be applied to his personal property.”

In 1834, Mr. Justice Story wrote the first edition of his great work on the “Conflict of Laws.” In it he stated (section 47):

“If a man has acquired a new domicile different from that of his birth, and he removes from it with an intention to resume his native domicile, the latter is reacquired even while he is on his way in itinere, for it reverts from the moment the other is given up.”

In section 48, he said:

“A national character acquired in a foreign country by residence changes when the party has left the country animo non revertendi, and is on his return to the country where he had his antecedent domicile. And especially if he be in itinere to his native country with that intent, his native domicile revives while he is yet in transitu, for the native domicile easily reverts. The moment the foreign domicile is abandoned the native domicile is reacquired.”

This pronouncement of Mr. Justice Story has been frequently referred to by the courts, both English and American, in discussing this question, and has been the basis for decisions, particularly in the English courts.

In the case of The Goods of Bianchi, 3 Sw. & T. 16, decided in 1862, the English Court of Probate said:

“The deceased was originally domiciled in Genoa; he then became domiciled in the Brazils and there is no doubt of the fact that he died in itinere as he was returning to Genoa to resume his permanent residence there. Then it may be said that as soon as he had finally abandoned the acquired domicile by setting off on his journey to return to his domicile of origin, the latter revived.”

From the meager statement in this case, it is apparent that the decedent was a trader and was domiciled in Brazil solely for the purposes of trade.

The leading and most frequently cited English case is that of Udny v. Udny, L. R. 1 H. L. § 441. In this case the question arose as to the domicile of one Udny, who was born in Scotland and who afterward resided in England and in France. The Lord Chancellor declared:

“But the domicile of origin is a matter wholly irrespective of any animus on the part of its subject. He acquires a certain status civilis, which subjects him and his property to the municipal jurisdiction of a country which he may never even have seen, and in which he may never reside during the whole course of his life, his domicile being simply determined by that of his father.”

It is further said:

“It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicile, [182 N.W. 232] then the exact converse of such a procedure, viz., the intention to abandon the new domicile, and an actual abandonment of it, ought to be equally effective to destroy the new domicile. * * * Why should not the domicile of origin cast on him by no choice of his own, and charged for a time, be the state to which he naturally falls back when his first choice has been abandoned animo et facto, and whilst he is deliberating before he makes a second choice.”

Lord Chelmsford quotes with approval from Story, in his Conflict of Laws, and says:

“The meaning of Story, therefore, clearly is, that the abandonment of a subsequently acquired domicile ipso facto restores the domicile of origin. And this doctrine appears to be founded upon principle, if not upon direct authority.”

And further states:

“The domicile of origin always remains, as it were, in reserve, to be resorted to in case no other domicile is found to exist.”

Lord Westbury, in discussing the case, also said:

“When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. * * * Its acquisition being a thing of choice, it was equally put an end to by choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at the same time his domicile of origin revived.”

The whole theory of this case and the discussion throughout illustrates the basis of the English rule that the domicile of origin is always retained and that the acquisition of a domicile of choice constitutes a mere suspension, or holding in abeyance of the domicile of origin.

In King v. Foxwell, 3 Ch. D. 518, the court said:

“A man may abandon his domicile of choice without acquiring in strictness any new domicile, because his domicile of origin reverts.”

In White v. Brown, supra, the court submitted the question of domicile to the jury and stated:

“The domicile of origin easily reverts, and * * * it requires fewer circumstances to constitute domicile in a native subject or citizen than to impress the national character on one who is originally of another character. The acquired domicile, however, must be finally abandoned before the domicile of origin can revert.” (Italics are ours.)

The foregoing authorities are sufficient to indicate the origin of the exception to the general rule and to illustrate its application by the courts. As early as 1868, the Supreme Court of the State of Connecticut made a clear and important distinction in the application of this rule in the case of First National Bank v. Balcom, 35 Conn. 351. In it the court said:

“But the principle that a native domicile easily reverts applies only to cases where a native citizen of one country goes to reside in a foreign country, and there acquires a domicile by residence without renouncing his original allegiance. In such cases his native domicile reverts as soon as he begins to execute an intention of returning; that is, from the time that he puts himself in motion bona fide to quit the country sine animo revertendi, because the foreign domicile was merely adventitious and de facto, and prevails only while actual and complete. * * * This principle has reference to a national domicile in its enlarged sense, and grows out of native allegiance or citizenship. It has no application when the question is between a native and acquired domicile, where both are under the same national jurisdiction.” (Italics are ours.)

The Supreme Court of Connecticut, in this case, evidently fully appreciated the source and origin of the rule as laid down by Story and as announced by the English courts, and the early federal decisions. The basis of the rule was the fact of the native allegiance, which was assumed to revert the instant the foreign domicile had been abandoned.

It is true that the question of domicile is not to be determined by the question of citizenship, but when we are assuming the fiction that the domicile of origin reverts immediately upon the abandonment of a domicile of choice and assume that fiction, because of native allegiance, to the land of one's birth, then the basis for the fiction and assumption is destroyed when it appears that the party has renounced his native allegiance and has secured citizenship in the land of his domicile of choice. The reason for the rule having failed, the rule fails also.

In Plant v. Harrison, 36 Misc. Rep. 649, 74 N. Y. Supp. 411, it is said:

“* * * While a domicile of origin reverts easily upon relinquishment of a domicile of choice, the American decisions have not gone the length of the English authorities in the application of this principle. The English rule that the domicile of origin reverts at once upon the abandonment of the domicile of choice * * * has not been followed in this country, where the rule seems to be that a domicile once acquired continues not only until it is abandoned, but until another is acquired.”

[182 N.W. 233] It has been held that the English rule only applies when the question arises where the domicile of origin is under one general government and the domicile of choice under another, and that it has no application where the native and the acquired domicile are under the same national jurisdiction. First National Bank v. Balcom, supra. On the other hand, it has also been held that the rule applies to changes from one country to another, or from one state of the Union to another. Denny v. Sumner County, 134 Tenn. 468, 184 S. W. 14, L. R. A. 1917A, 285.

Appellants cite In re Robitaille, 78 Misc. Rep. 108, 138 N. Y. Supp. 391. The party was an English subject, born in Canada, who removed to New York and there engaged in business. He became naturalized and afterward closed out his business and declared his intention to return to the place of his birth to live the remainder of his life. Before doing so, however, he became insane and a guardian was appointed for him, who carried out his original wishes, and he was taken by the guardian to his destination in Canada, as he had intended, and there died. The question discussed in the case was largely whether after having “put himself in motion to resume his domicile of origin” and having become incompetent, his guardian could carry out his intention and acquire the intended domicile for him by actually transporting him there. The court held that a court of competent jurisdiction could authorize the guardian to change the domicile of an incompetent in a proper case and held, under all of the facts, that the decedent was domiciled in Canada at the time of his death.

In Rudolph v. Wetherington's Adm'r, 180 Ky. 271, 202 S. W. 652, a resident of Arkansas, having formed and expressed an intention to remove to and become a citizen of Ballard county, Ky., in furtherance of that intention left her home in Arkansas, with her belongings, on or about November 20, 1916, arriving in the city of Paducah, Ky., November 24, where she died November 26, 1916, without ever having been in Ballard county, Ky. The question in the case was whether or not the residence of the decedent was in Ballard county, at the time of her death. Following previous decisions that involved a question of taxation, the Court of Appeals of Kentucky held that, at the time of the death of said decedent, she was not yet a resident of Ballard county, Ky., and that the court of that county was without jurisdiction to grant administration upon her estate.

In Cooper v. Beers, 143 Ill. 25, 33 N. E. 61, a question of descent was involved. Cordelia D. Cooper was a resident of Bloomington, Ill., when she married Edward T. Cooper, who was a resident of Cincinnati, Ohio. After the marriage, the parties acquired a residence in St. Louis, Mo., which they afterward abandoned, intending to ultimately become residents of either Bloomington or Salem, in the state of Illinois; but, before they had determined which place or had adopted any home at either, Mrs. Cooper died. The question raised was as to her domicile at the time of her death. The court held that the proof failed to show with certainty a fixed and unalterable intention to make Illinois presently the home of the decedent and held:

“The domicile in Missouri remained the domicile of the Coopers, not only until it was abandoned, but also until a new domicile was acquired by actual residence within another jurisdiction, coupled with the intention of making the last-acquired residence a permanent home.”

In Burnett v. Meadows' Administrator, 7 B. Mon. (Ky.) 277, 46 Am. Dec. 517, a resident of Virginia, contemplating a removal to Kentucky, died on the route before he got out of the state of Virginia, but after he had, with his family and his property, commenced his intended journey. After his death, the family continued their journey, bringing their property with them and settled in Kentucky. No part of the property was actually in Kentucky at the time of his death. The court said:

“And had he been domiciled in the state of Virginia at the time of his death, and his property afterwards been brought into this state, no administration on it could have been granted here, as was decided by this court in the case of Embry v. Miller, 1 Marshall, 300 [10 Am. Dec. 732]. Inasmuch, however, as this property was in transitu when he died, and afterwards reached its destination, and as many inconveniences would necessarily result from the absence of power in our county courts to regulate its administration, it should be regarded as being at the time of his death, constructively in this state, under the circumstances here presented, solely however, for the purpose of enabling a county court in this state to grant an administration thereon.”

In Denny v. Sumner County, supra, the Supreme Court of Tennessee said:

“Reference may be made parenthetically to an exception recognized in this state to the rule that a domicile once fixed remains until another is actually acquired, arising in event of a change from a domicile of choice to that of origin. Then, if the removal be with the intention to resume his domicile of origin, the latter is re-acquired before it is reached, or even while the person is in itinere, ‘for it reverts from the moment the other is given up.’ Allen v. Thomason, supra, citing Story on Conflict of Laws. The doctrine touching this exception is confined, however, to changes from one country to another, or from one state of the Union to another.” (Italics are ours.)

In Graham v. Public Administrator, 4 Bradf. Sur. (N. Y.) 127, a woman was en route from Scotland, her domicile of origin, [182 N.W. 234] to Canada, and died on the way in a hospital in New York. It was held that the domicile of origin was retained until a new domicile was actually acquired.

The foregoing cases illustrate the various holdings of the authorities.

[6] Perhaps no better case could be found than the instant case to illustrate the effect of the adoption of the exception to the general rule. The decedent in this case had not only acquired a domicile in the United States, but had become a citizen of this country. Under the general rule, if he had abandoned his domicile in Iowa with the intention of acquiring a domicile in Norway or in France, and had been on the illfated Lusitania, it would have been universally held that the domicile in Iowa was still retained. No one will dispute that proposition. But, because, although a citizen of the United States, and residing here for many years, he was en route to Wales, the land of his birth, instead of to some other country, it is contended that he acquired a domicile in that country instantly upon abandoning his domicile in Iowa. If some native of Iowa had done exactly what the decedent did, had disposed of his property with the avowed and declared intention of abandoning his domicile in Iowa and of securing one in Wales, and had accompanied Jones on his trip, and had gone down on the same boat, his estate would have been administered according to the laws of the state of Iowa, because he had not yet acquired a new domicile anywhere else, while Jones' estate, under the theory of the English rule, would be administered according to the laws of Wales, because he happened to have been born in that country. If such a rule is to be applied as between different states of the Union, with our freedom of movement between the various states, it would lead to very startling results. The laws of the states differ greatly in regard to descent. There is no logical reason why the rule should not be applied between different states of the Union as readily as between different governments. Under such a doctrine, if applied between the various states of the Union, if a man had been born in the state of New York, and at an early age had removed to Iowa, and had lived in this commonwealth for many years, had voted here and had become familiar with our laws, and should finally decide to remove to New York to live, and should die in itinere, he would be regarded as domiciled in New York. If, however, under identical circumstances, he intended to remove to Massachusetts, he would be regarded as domiciled in Iowa.

What good reason is there why “native allegiance” to the state of New York, where he was born, should be the determining factor which would prevail in such instance? One reason that is persuasive why such a rule should not be adopted is that a person who in these days abandons his domicile of origin and acquires a legal domicile in another jurisdiction, presumably, at least, is familiar with the laws of the jurisdiction of the latter domicile, and there is, to say the least, as strong a presumption that he desires his estate to be administered according to the laws of that jurisdiction as of the jurisdiction of the domicile of origin. While there may have been a good reason for the establishment of the English rule at the time and under the conditions under which it was announced, we do not believe that any good reason exists for the recognition of such a rule under the circumstances disclosed in this case. The general rule that a domicile once legally acquired is retained until a new domicile is secured, and that, in the acquisition of such new domicile, both the fact and the intention must concur, it seems to us is a rule of universal and general application and that there is neither good logic nor substantial reason for the application of an exception to that rule in the case where the party is in itinere toward the domicile of origin. In other words, going back to the original proposition, the fiction is assumed generally that any domicile, either of choice or of origin, is retained until a new domicile has been legally acquired. We see no good reason for changing that rule in the one instance where the descent of property is involved and the party is in itinere to the domicile of origin. We believe that the general rule is the better rule, and that the exception laid down by Story and followed by the English courts should not be recognized either as between the states of the union or between this country and a foreign country, under the facts disclosed in this case.

It therefore follows that the domicile of the decedent was in the state of Iowa until a new domicile had been actually acquired in Wales. No such domicile having been acquired, at the time of his death, his personal estate must be administered according to the laws of Iowa. We think the general rule should be followed, even though the decedent was in itinere to his domicile of origin at the time of his death. We have examined the record and hold that the appellant was legally recognized as the child of the decedent, as required by our statute and the decisions of this court, and is his lawful heir.

It follows that the judgment of the trial court must be, and the same is, reversed.

EVANS, C. J., and STEVENS, ARTHUR, and DE GRAFF, JJ., concur.

[790] 1. Domicile Change of Residence Intent.

Where a person entirely abandons his former residence in one State with no intention of resuming it and goes with his family to another residence, which he has rented in another State, with the intention of making the latter his residence for an indefinite time, the latter State is his domicile notwithstanding the fact, that, after he and his family arrive at the new residence, which is only about a half a mile from the State line, they go on the same day on a visit to spend the night with a neighbor in the former State intend-[791]-ing to return in the morning of the next day, but he is detained there by sickness, until he dies, and never does in fact return to his new home. (pp. 796, 797.)

2. Domicile Conflict of Laws Distribution of Property.

The laws of the State, in which the domicile of a decedent is at the time of his death, control and govern the distribution of his personal estate, although he may die in another State. (p. 797.)

P. II Keek and J. M. Pagans for appellants.

Berkshire, Sturgiss & Baker and A. F. Haymond for ap-peliees.

Snyder, Judge:

This is a suit brought December, 1886, in the Circuit Court of Monongalia county by William L. White and others against Emrod Tennant, administrator of Michael White deceased and Lucinda White, the widow of said Michael White, to set aside the settlement and distribution made by the administrator of the personal estate of said decedent, and to have the same settled and distributed according to the laws of the State of Pennsylvania, which State it is claimed was the domicile of said decedent at the time of his death. The plaintiffs are the brothers and sisters of the decedent, who died in this State intestate. On October 28, 1887, the court entered a decree dismissing the plaintiffs' bill, and they have appealed.

The sole question presented for our determination is, whether the said Michael White at the time of his death, in May, 1885, had his legal domicile in this State or in the State of Pennsylvania. It is admitted to be the settled law, that the law of the State, in which the decedent had his domicile at the time of his death, will control the succession and distribution of his personal estate. Before referring to the facts proved in this cause, we shall endeavor to determine what in law is meant by " domicile."

Dr. Wharton says:" ' Domicile ' is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the non-existence of any intention to make a domicile elsewhere." Whart. Conn. Law §21. "'Domicile' is that place or country, either (1) in [792] which a person in fact resides with an intention of residence, animus manendi; or (2) in which, having so resided, he continues actually to reside, though no longer retaining the intention of residence, animus manendi; or (3) with regard to which, having so resided there, he retains the intention of residence,-animus manendi, though he in fact no longer resides there." Dicey Dom. 44. Two things must concur to establish domicile, the fact of residence, and the intention of remaining. These two must exist, or must have existed, in combination. There must have been an actual residence. The character of the residence is of no importance; and, if domicile has once existed, mere temporary absence will not destroy it, however long continued. Munro v. Munro, 7 01. & Fin. 842. The original domicile continues until it is fairly changed for another. It is a legal maxim that every person must have a domicile somewhere; and he can have but one at a time for the same purpose. From this it follows that one can not be lost or extinguished until another is acquired. Baird v. Byrne, 3 Wall. Jr. 1. When one domicile is definitely abandoned and a new one selected and entered upon, length of time is not important; one day will be sufficient, provided the animus exists. Even when the point of destination is not reached, domicile may shift in itinere, if the abandonment of the old domicile and the setting out for the new are plainly shown. Munroe v. Douglass, 5 Madd. 405. Thus a constructive residence seems to be sufficient to give domicile, though an actual residence may not have begun. Whart. Conn. Law, § 58. A change of domicile does not depend so much upon the intention to remain in the new place for a definite or indefinite period as upon its being without an intention to return. An intention to return however at a remote or indefinite period to the former place of actual residence will not control, if the other facts, which constitute domicile, all give the new residence the character of a permanent home or place of abode. The intention and actual fact of residence must concur, where such residence is not in its nature temporary. Hallet v. Bassett, 100 Mass. 170, 171; Long v. Ryan, 30 Gratt, 718. In Bradley v. Lowery, 1 Speer Eq. 1, it is held, that " change of domicile is consummated when one leaves the [793] State where he has hitherto resided, avowing his intention not to return, and enters another State intending to permanently settle there." A domicile once acquired remains until a new one is acquired elsewhere, facto et animo. Story Conn. Law, § 47; Hart v. Lindsey, 17 N. II. 235. Where a person removes from one State to another and establishes a fixed residence in the latter, it will become his domicile, although there may be a floating intention to return to his former place of abode at some future period. Ringgold v. Barley, 5 Md. 186." If a man intending to remove with his family visits the place of removal beforehand, to make arrangements, or even sleeps there occasionally for convenience and then transfers his family, the change of domicile takes effect from the time of removing with the family; but if he has definitely changed his residence and taken up his abode permanently in a new place, the fact, that his family remains behind, until lie can remove them conveniently, and that he visits them occasionally, will not prevent the new place being his domicile." Guier v. O'Daniel, Amer. Lead. Cas. (753,) 903; Cambridge v. Charlestown, 13 Mass. 501.

The material facts in the case at bar are as follows: Joseph S. White, the father of the plaintiffs and Michael White, died intestate in Monongalia county seized of a tract of about 240 acres of land, of which about forty acres lay in Greene county, Pa., the whole constituting but one tract or farm. The mansion-house in which the father resided was located on the West Virginia side of the farm, and there was also a dwelling-house generally occupied by tenants on the Pennsylvania part of the farm. After the death of the father, his widow and the plaintiffs remained together and occupied the home-farm, residing in the mansion-house in West Virginia. Michael White several years before his death married the defendant, Lucinda White, a daughter of the defendant, Em rod Tennant, and about that time purchased a farm on Day's run, in Monongalia county, some fifteen miles from the home-place, to which he moved, and at which he and his wife resided. It is conceded, that Michael was born and had his domicile in West Virginia all his life, until about April 1, 1885.

[794] In the winter of 1884-85, Michael sold his Day's run farm, and then rented or made an arrangement with his mother and brothers and sisters, the plaintiffs, to occupy the forty acres of the home-farm, in which he still had an undivided interest, and to live in the house on said forty acres in Greene county, Pa. He was to give to the purchaser the possession of Ms Day's run farm on April 1, 1885, and to have possession of the Pennsylvania house and forty acres at the same time. In March, 1885, he moved part of his household-goods into the Pennsylvania house, and put them into one of the rooms by permission of the tenant, who then occupied it, and who did not vacate it until between the middle and last of March, 1885. About the same time he moved an organ and some grain to the old homestead, until he could get possession of the Pennsylvania house.

On the morning of April 2, 1885, he finally left the Day's run house with the remainder of his goods and his wife, he having no children, with the declared intent and purpose of making the Pennsylvania house his home that evening. He with his team, wife and goods and live-stock passed into the State of Pennsylvania several miles before he reached said house and continued in said State thence to said Pennsylvania house, where they arrived that evening about sundown, and then and there unloaded their goods and put them in the house, setting up one bed and turning the fowls and other live-stock loose at the house.

The said house had been vacated for several days. It was a damp, cool day, and the house was found to be damp and uncomfortable. The wife was complaining of feeling unwell, and in consequence of that fact and the uncomfortable condition of the house, on the invitation of her brother-inlaw and others of the family who then resided at the mansion-house, but a short distance therefrom, the said Michael and. his wife went to the mansion-house in West Virginia to stay all night and return in the morning. Before leaving the Pennsylvania house the wife had gotten out of the buggy at the house, and the said Michael after putting into it his household-goods locked the door and took the key with him. On the following morning, the wife still feeling unwell, and the brother who was to return the team, which [795] they had used in moving their goods, having taken sick, the wife after going to the Pennsylvania house to milk returned to the mansion-house, and Michael took the team hack to Day's run.

On the return of Michael from this trip he found his wife so sick with typhoid fever, that it was impossible to move her, in consequence of which both he and she remained at the mansion-house, she because she was unable to get away, and he to wait on her, but he went daily over to the Pennsylvania house to look after it, and to feed his stock there, calling it his " home." In ten or fifteen days, and before the wife had sufficiently recovered to leave her bed, Michael was attacked with typhoid fever, and about ten days thereafter died intestate in the same house. The wife recovered, and the defendant, Emrod Tennant, her father, administered on the estate of Michael, taking out letters of administration in Monongalia county, W. Ya. The administrator settled his accounts before a commissioner of said county, and distributed the estate according to the laws of West Virginia; that is, by paying over to the widow the whole personal estate remaining after the payment of the debts of the decedent. It is admitted, that, if the distribution had been according to the laws of the State of Pennsylvania, the wife would have been entitled to the one half only of said estate, and the plaintiffs would have been entitled to the other half.

As the law of the State, in which the decedent had his domicile at the time of his death, must govern the distribution of his estate, the important question is, where, according to the foregoing facts, was the domicile of Michael at the time of his death? It is unquestionable, that prior to the 2d day of April, 1885, his domicile was and had been in the State of West Virginia. Did he on that day or at any subsequent day change his domicile to the State of Pennsylvania? According to the authorities hereinbefore cited, if it is shown, that a person has entirely abandoned his former domicile in one State with the intention of making his home at a fixed place in another State with no intention of returning to his former domicile and then establishes a residence in the new place for any period of time, however brief, that will be in [796] law a change of domicile, and the latter will remain his domicile until changed in like manner.

The facts in this case conclusively prove, that Michael White, the decedent, abandoned his residence in West Virginia with the intention and purpose not only of not returning to it, but for the expressed purpose of making a fixed place in the State of Pennsylvania his home for an indefinite time. This fact is shown by all the circumstances as well as by his declarations and acts. He had sold his residence in West Virginia and surrendered its possession to the purchaser, and thereby made it impossible for him to return to it and make it his home. He rented a dwelling in Pennsylvania, for which he had no use except to live in and make it his home. In addition to all this, he had moved a part of his household goods into this house, and then, on the 2d of April, 1885, he with his family and the remainder of his goods and stock finally left his former home and the State of West Virginia, and moved into the State of Pennsylvania to his house In that State, and there put his goods in the house, and turned his stock loose on the premises. At the time he left his former home on that morning, and while he was on the way to his new home, his declared purpose and intention were to make that his home from that very day, and to occupy it that night. He arrived in Pennsylvania and at his new home with that intention; and it was only after he arrived there and for reasons not before known, which had no effect to change his purpose of making that his future home, that he failed to remain there from that time. There was no change in his purpose, except that after he arrived at his new home and unloaded and left his property there, he concluded on account of the condition of the house and the illness of his wife, that it would be better to go with his wife to remain one night with his relatives and return the next morning.

When he left his former home without any intention of returning and in pursuance of that intention did in fact move with his family and effects to his new home with the intention of making it his residence for an indefinite time, it is my opinion, that, when he and his wife arrived at his new home, it became eo instanti his domicile, and that his leaving there under the circumstances with the intention of returning the [797] next day did not change the fact. The concurrence of his intention to make the Pennsylvania house his permanent residence with the fact, that he had actually abandoned his former residence and moved to and put his goods in the new one, made the latter his domicile. According to the authorities hereinbefore referred to he must of necessity have had a domicile somewhere. If he did not have one in Pennsylvania, where did he have one? The fact, that he left the Pennsylvania house, after he had moved to it with his family and goods, to spend the night, did not revive his domicile at his former residence on Day's run, because he had sold that, and left it without any purpose of returning there. By going from his new home to the house of his relatives to spend the night he certainly did not make the house thus visited his domicile; therefore, unless the, Pennsylvania house was on the evening of April 2, 1885, his domicile, he was in the anomalous position of being without a domicile anywhere, which, as we have seen, is a legal impossibility; and, that house having become his domicile, there is nothing in this case to show, that he ever did in fact change or intend to change it or to establish a domicile elsewhere.

It follows, therefore, that that house remained his domicile up to and at the time of his death; and, that house being in the State of Pennsylvania, the laws of that State must control the distribution of his personal estate notwithstanding the fact, that he died in State of West Virginia.

For these reasons the decree of the Circuit Court must be reversed, and the cause must be remanded to that court to be there further proceeded in according to the principles announced in this opinion and the rules of courts of equity.

Reversed. Remanded.

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

[31] Edwin R. Smith argued the cause and filed briefs for appellant.

[32] Edward O. Miller argued the cause and filed a brief for appellees.^[1]

JUSTICE BRENNAN delivered the opinion of the Court.

This appeal requires us to construe the provisions of the Indian Child Welfare Act that establish exclusive tribal jurisdiction over child custody proceedings involving Indian children domiciled on the tribe's reservation.

I

A

The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U. S. C. §§ 1901-1963, was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called "[t]he wholesale removal of Indian children from their homes, . . . the most tragic aspect of Indian life today." Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id., [33] at 15; see also H. R. Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report). Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and during the year 1971-1972 nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence,^[2] as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings.

Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the [34] ICWA.^[3] While much of the testimony again focused on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves of the massive removal of their children. For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association, testified as follows:

"Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships." 1978 Hearings, at 193.

See also id., at 62.^[4] Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:

"One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life [35] and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child." Id., at 191-192.^[5]

The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found:

"(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . ;

"(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

"(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people [36] and the cultural and social standards prevailing in Indian communities and families." 25 U. S. C. § 1901.

At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe," as well as for wards of tribal courts regardless of domicile.^[6] Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court.

Various other provisions of ICWA Title I set procedural and substantive standards for those child custody proceedings that do take place in state court. The procedural safeguards include requirements concerning notice and appointment of counsel; parental and tribal rights of intervention and petition for invalidation of illegal proceedings; procedures governing voluntary consent to termination of parental rights; and a full faith and credit obligation in respect to tribal court decisions. See §§ 1901-1914. The most important substantive requirement imposed on state courts is that of § 1915(a), which, absent "good cause" to the contrary, mandates [37] that adoptive placements be made preferentially with (1) members of the child's extended family, (2) other members of the same tribe, or (3) other Indian families.

The ICWA thus, in the words of the House Report accompanying it, "seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society." House Report, at 23. It does so by establishing "a Federal policy that, where possible, an Indian child should remain in the Indian community," ibid., and by making sure that Indian child welfare determinations are not based on "a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family." Id., at 24.^[7]

B

This case involves the status of twin babies, known for our purposes as B. B. and G. B., who were born out of wedlock on December 29, 1985. Their mother, J. B., and father, W. J., were both enrolled members of appellant Mississippi Band of Choctaw Indians (Tribe), and were residents and domiciliaries of the Choctaw Reservation in Neshoba County, Mississippi. J. B. gave birth to the twins in Gulfport, Harrison County, Mississippi, some 200 miles from the reservation. On January 10, 1986, J. B. executed a consent-to-adoption form before the Chancery Court of Harrison [38] County. Record 8-10.^[8] W. J. signed a similar form.^[9] On January 16, appellees Orrey and Vivian Holyfield^[10] filed a petition for adoption in the same court, id., at 1-5, and the chancellor issued a Final Decree of Adoption on January 28. Id., at 13-14.^[11] Despite the court's apparent awareness of the ICWA,^[12] the adoption decree contained no reference to it, nor to the infants' Indian background.

Two months later the Tribe moved in the Chancery Court to vacate the adoption decree on the ground that under the ICWA exclusive jurisdiction was vested in the tribal court. Id., at 15-18.^[13] On July 14, 1986, the court overruled the motion, [39] holding that the Tribe "never obtained exclusive jurisdiction over the children involved herein . . . ." The court's one-page opinion relied on two facts in reaching that conclusion. The court noted first that the twins' mother "went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation" and that the parents had promptly arranged for the adoption by the Holyfields. Second, the court stated: "At no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation." Id., at 78.

The Supreme Court of Mississippi affirmed. 511 So. 2d 918 (1987). It rejected the Tribe's arguments that the state court lacked jurisdiction and that it, in any event, had not applied the standards laid out in the ICWA. The court recognized that the jurisdictional question turned on whether the twins were domiciled on the Choctaw Reservation. It answered that question as follows:

"At no point in time can it be said the twins resided on or were domiciled within the territory set aside for the reservation. Appellant's argument that living within the womb of their mother qualifies the children's residency on the reservation may be lauded for its creativity; however, apparently it is unsupported by any law within this state, and will not be addressed at this time due to the far-reaching legal ramifications that would occur were we to follow such a complicated tangential course." Id., at 921.

[40] The court distinguished Mississippi cases that appeared to establish the principle that "the domicile of minor children follows that of the parents," ibid.; see Boyle v. Griffin, 84 Miss. 41, 36 So. 141 (1904); Stubbs v. Stubbs, 211 So. 2d 821 (Miss. 1968); see also In re Guardianship of Watson, 317 So. 2d 30 (Miss. 1975). It noted that "the Indian twins . . . were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d, at 921. Therefore, the court said, the twins' domicile was in Harrison County and the state court properly exercised jurisdiction over the adoption proceedings. Indeed, the court appears to have concluded that, for this reason, none of the provisions of the ICWA was applicable. Ibid. ("[T]hese proceedings . . . actually escape applicable federal law on Indian Child Welfare"). In any case, it rejected the Tribe's contention that the requirements of the ICWA applicable in state courts had not been followed: "[T]he judge did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc." Ibid.^[14]

[41] Because of the centrality of the exclusive tribal jurisdiction provision to the overall scheme of the ICWA, as well as the conflict between this decision of the Mississippi Supreme Court and those of several other state courts,^[15] we granted plenary review. 486 U. S. 1021 (1988).^[16] We now reverse.

[42] II

Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA. Indeed, some of the ICWA's jurisdictional provisions have a strong basis in pre-ICWA case law in the federal and state courts. See, e. g., Fisher v. District Court, Sixth Judicial District of Montana, 424 U. S. 382 (1976) (per curiam) (tribal court had exclusive jurisdiction over adoption proceeding where all parties were tribal members and reservation residents); Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich. 1973) (tribal court had exclusive jurisdiction over custody of Indian children found to have been domiciled on reservation); Wakefield v. Little Light, 276 Md. 333, 347 A. 2d 228 (1975) (same); In re Adoption of Buehl, 87 Wash. 2d 649, 555 P. 2d 1334 (1976) (state court lacked jurisdiction over custody of Indian children placed in off-reservation foster care by tribal court order); see also In re Lelah-puc-ka-chee, 98 F. 429 (ND Iowa 1899) (state court lacked jurisdiction to appoint guardian for Indian child living on reservation). In enacting the ICWA Congress confirmed that, in child custody proceedings involving Indian children domiciled on the reservation, tribal jurisdiction was exclusive as to the States.

The state-court proceeding at issue here was a "child custody proceeding." That term is defined to include any " `adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." 25 U. S. C. § 1903 (1)(iv). Moreover, the twins were "Indian children." See 25 U. S. C. § 1903(4). The sole issue in this case is, as the Supreme Court of Mississippi recognized, whether the twins were "domiciled" on the reservation.^[17]

[43] A

The meaning of "domicile" in the ICWA is, of course, a matter of Congress' intent. The ICWA itself does not define it. The initial question we must confront is whether there is any reason to believe that Congress intended the ICWA definition of "domicile" to be a matter of state law. While the meaning of a federal statute is necessarily a federal question in the sense that its construction remains subject to this Court's supervision, see P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 566 (3d ed. 1988); cf. Reconstruction Finance Corporation v. Beaver County, 328 U. S. 204, 210 (1946), Congress sometimes intends that a statutory term be given content by the application of state law. De Sylva v. Ballentine, 351 U. S. 570, 580 (1956); see also Beaver County, supra; Helvering v. Stuart, 317 U. S. 154, 161-162 (1942). We start, however, with the general assumption that "in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U. S. 101, 104 (1943); NLRB v. Natural Gas Utility Dist. of Hawkins County, 402 U. S. 600, 603 (1971); Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 119 (1983). One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. Jerome, supra, at 104; Dickerson, supra, at 119-120; United States v. Pelzer, 312 U. S. 399, 402-403 (1941). Accordingly, the cases in which we have [44] found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended. E. g., Beaver County, supra, at 209 (statute permitting States to apply their diverse local tax laws to real property of certain Government corporations). A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." Jerome, supra, at 104; Dickerson, supra, at 119-120; Pelzer, 312 U. S., at 402-403. For this reason, "we look to the purpose of the statute to ascertain what is intended." Id., at 403.

In NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944), we rejected an argument that the term "employee" as used in the Wagner Act should be defined by state law. We explained our conclusion as follows:

"Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no . . . patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is . . . intended to solve a national problem on a national scale. . . . Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by . . . varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems." Id., at 123.

See also Natural Gas Utility Dist., supra, at 603-604. For the two principal reasons that follow, we believe that what we said of the Wagner Act applies equally well to the ICWA.

First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its [45] enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities.^[18] More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. See 25 U. S. C. § 1901(5) (state "judicial bodies . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families").^[19] Under these circumstances it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.

Second, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of domicile. An example will illustrate. In a case quite similar to this one, the New Mexico state courts found exclusive jurisdiction in the tribal court pursuant to § 1911(a), [46] because the illegitimate child took the reservation domicile of its mother at birth — notwithstanding that the child was placed in the custody of adoptive parents 2 days after its off-reservation birth and the mother executed a consent to adoption 10 days later. In re Adoption of Baby Child, 102 N. M. 735, 737-738, 700 P. 2d 198, 200-201 (App. 1985).^[20] Had that mother traveled to Mississippi to give birth, rather than to Albuquerque, a different result would have obtained if state-law definitions of domicile applied. The same, presumably, would be true if the child had been transported to Mississippi for adoption after her off-reservation birth in New Mexico. While the child's custody proceeding would have been subject to exclusive tribal jurisdiction in her home State, her mother, prospective adoptive parents, or an adoption intermediary could have obtained an adoption decree in state court merely by transporting her across state lines.^[21] Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind.^[22]

[47] We therefore think it beyond dispute that Congress intended a uniform federal law of domicile for the ICWA.^[23]

B

It remains to give content to the term "domicile" in the circumstances of the present case. The holding of the Supreme Court of Mississippi that the twin babies were not domiciled on the Choctaw Reservation appears to have rested on two findings of fact by the trial court: (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents. 511 So. 2d, at 921; see Record 78. The question before us, therefore, is whether under the ICWA definition of "domicile" such facts suffice to render the twins nondomiciliaries of the reservation.

We have often stated that in the absence of a statutory definition we "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1, 9 (1962); Russello v. United States, 464 U. S. 16, 21 (1983). We do so, of course, in the light of the " `object and policy' " of the statute. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956), quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849). We therefore look both to the generally accepted meaning of the term "domicile" and to the purpose of the statute.

That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general state-law principles to determine "the ordinary meaning of the words used." Well-settled state law can inform our understanding of what Congress had in mind when it employed a term it did not define. Accordingly, we find it helpful to borrow established common-law principles of domicile [48] to the extent that they are not inconsistent with the objectives of the congressional scheme.

"Domicile" is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. See generally Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 17-38 (4th ed. 1986); R. Weintraub, Commentary on the Conflict of Laws 12-24 (2d ed. 1980). "Domicile" is not necessarily synonymous with "residence," Perri v. Kisselbach, 34 N. J. 84, 87, 167 A. 2d 377, 379 (1961), and one can reside in one place but be domiciled in another, District of Columbia v. Murphy, 314 U. S. 441 (1941); In re Estate of Jones, 192 Iowa 78, 80, 182 N. W. 227, 228 (1921). For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there. Texas v. Florida, 306 U. S. 398, 424 (1939). One acquires a "domicile of origin" at birth, and that domicile continues until a new one (a "domicile of choice") is acquired. Jones, supra, at 81, 182 N. W., at 228; In re Estate of Moore, 68 Wash. 2d 792, 796, 415 P. 2d 653, 656 (1966). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Yarborough v. Yarborough, 290 U. S. 202, 211 (1933). In the case of an illegitimate child, that has traditionally meant the domicile of its mother. Kowalski v. Wojtkowski, 19 N. J. 247, 258, 116 A. 2d 6, 12 (1955); Moore, supra, at 796, 415 P. 2d, at 656; Restatement § 14(2), § 22, Comment c; 25 Am. Jur. 2d, Domicil § 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicil of origin will be in a place where the child has never been." Restatement § 14, Comment b.

It is undisputed in this case that the domicile of the mother (as well as the father) has been, at all relevant times, on the Choctaw Reservation. Tr. of Oral Arg. 28-29. Thus, it is clear that at their birth the twin babies were also domiciled [49] on the reservation, even though they themselves had never been there. The statement of the Supreme Court of Mississippi that "[a]t no point in time can it be said the twins . . . were domiciled within the territory set aside for the reservation," 511 So. 2d, at 921, may be a correct statement of that State's law of domicile, but it is inconsistent with generally accepted doctrine in this country and cannot be what Congress had in mind when it used the term in the ICWA.

Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. See 25 U. S. C. §§ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"), 1902 ("promote the stability and security of Indian tribes").^[24] The numerous prerogatives accorded the tribes through the ICWA's substantive provisions, e. g., §§ 1911(a) (exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention), 1912(a) (notice), 1914 (right to petition for invalidation of state-court action), 1915(c) (right to alter presumptive placement priorities applicable to state-court actions), 1915(e) (right to obtain records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.

In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children [50] themselves of such placements outside their culture.^[25] Congress determined to subject such placements to the ICWA's jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents. As the 1977 Final Report of the congressionally established American Indian Policy Review Commission stated, in summarizing these two concerns, "[r]emoval of Indian children from their cultural setting seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children." Senate Report, at 52.^[26]

[51] These congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme is inconsistent with what Congress intended.^[27] See In re Adoption of Child of Indian Heritage, 111 N. J. 155, 168-171, 543 A. 2d 925, 931-933 (1988). The appellees in this case argue strenuously that the twins' mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields. But that was precisely part of Congress' concern. [52] Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish.^[28] The Supreme Court of Utah expressed this well in its scholarly and sensitive opinion in what has become a leading case on the ICWA:

"To the extent that [state] abandonment law operates to permit [the child's] mother to change [the child's] domicile as part of a scheme to facilitate his adoption by non-Indians while she remains a domiciliary of the reservation, it conflicts with and undermines the operative scheme established by subsections [1911(a)] and [1913(a)] to deal with children of domiciliaries of the reservation and weakens considerably the tribe's ability to assert its interest in its children. The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize. It is precisely in recognition of this relationship, however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and [53] adoption matters for reservation-domiciled Indian children, and the preferred forum for nondomiciliary Indian children. [State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents." In re Adoption of Halloway, 732 P. 2d 962, 969-970 (1986).

We agree with the Supreme Court of Utah that the law of domicile Congress used in the ICWA cannot be one that permits individual reservation-domiciled tribal members to defeat the tribe's exclusive jurisdiction by the simple expedient of giving birth and placing the child for adoption off the reservation. Since, for purposes of the ICWA, the twin babies in this case were domiciled on the reservation when adoption proceedings were begun, the Choctaw tribal court possessed exclusive jurisdiction pursuant to 25 U. S. C. § 1911(a). The Chancery Court of Harrison County was, accordingly, without jurisdiction to enter a decree of adoption; under ICWA § 104, 25 U. S. C. § 1914, its decree of January 28, 1986, must be vacated.

III

We are not unaware that over three years have passed since the twin babies were born and placed in the Holyfield home, and that a court deciding their fate today is not writing on a blank slate in the same way it would have in January 1986. Three years' development of family ties cannot be undone, and a separation at this point would doubtless cause considerable pain.

Whatever feelings we might have as to where the twins should live, however, it is not for us to decide that question. We have been asked to decide the legal question of who should make the custody determination concerning these children — not what the outcome of that determination should be. The law places that decision in the hands of the Choctaw tribal court. Had the mandate of the ICWA been followed in [54A] 1986, of course, much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to "reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation." Halloway, 732 P. 2d, at 972. It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the Tribe — and perhaps the children themselves — in having them raised as part of the Choctaw community.^[29] Rather, "we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy." Ibid.

The judgment of the Supreme Court of Mississippi is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

[54B] JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, dissenting.

The parents of these twin babies unquestionably expressed their intention to have the state court exercise jurisdiction over them. J. B. gave birth to the twins at a hospital 200 miles from the reservation, even though a closer hospital was available. Both parents gave their written advance consent to the adoption and, when the adoption was later challenged by the Tribe, they reaffirmed their desire that the Holyfields adopt the two children. As the Mississippi Supreme Court found, "the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d 918, 921 (1987). Indeed, Appellee Vivian Holyfield appears before us today, urging that she be allowed to retain custody of B. B. and G. B.

[55] Because J. B.'s domicile is on the reservation and the children are eligible for membership in the Tribe, the Court today closes the state courthouse door to her. I agree with the Court that Congress intended a uniform federal law of domicile for the Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U. S. C. §§ 1901-1963, and that domicile should be defined with reference to the objectives of the congressional scheme. "To ascertain [the term's] meaning we. . . consider the Congressional history of the Act, the situation with reference to which it was enacted, and the existing judicial precedents, with which Congress may be taken to have been familiar in at least a general way." District of Columbia v. Murphy, 314 U. S. 441, 449 (1941). I cannot agree, however, with the cramped definition the Court gives that term. To preclude parents domiciled on a reservation from deliberately invoking the adoption procedures of state court, the Court gives "domicile" a meaning that Congress could not have intended and distorts the delicate balance between individual rights and group rights recognized by the ICWA.

The ICWA was passed in 1978 in response to congressional findings that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies," and that "the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U. S. C. §§ 1901(4), (5) (emphasis added). The Act is thus primarily addressed to the unjustified removal of Indian children from their families through the application of standards that inadequately recognized the distinct Indian culture.^[30]

[56] The most important provisions of the ICWA are those setting forth minimum standards for the placement of Indian children by state courts and providing procedural safeguards to insure that parental rights are protected.^[31] The Act provides [57] that any party seeking to effect a foster care placement of, or involuntary termination of parental rights to, an Indian child must establish by stringent standards of proof that efforts have been made to prevent the breakup of the Indian family, and that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. §§ 1912(d), (e), (f). Each party to the proceeding has a right to examine all reports and documents filed with the court, and an indigent parent or custodian has the right to appointment of counsel. §§ 1912(b), (c). In the case of a voluntary termination, the ICWA provides that consent is valid only if given after the terms and consequences of the consent have been fully explained, may be withdrawn at any time up to the final entry of a decree of termination or adoption, and even then may be collaterally attacked on the grounds that it was obtained through fraud or duress. § 1913. Finally, because the Act protects not only the rights of the parents, but also the interests of the tribe and the Indian children, the Act sets forth criteria for adoptive, foster care, and preadoptive placements that favor the Indian child's extended family or tribe, and that can be altered by resolution of the tribe. § 1915.

The Act gives Indian tribes certain rights, not to restrict the rights of parents of Indian children, but to complement and help effect them. The Indian tribe may petition to transfer an action in state court to the tribal court, but the Indian parent may veto the transfer. § 1911(b).^[32] The Act [58] provides for a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones. §§ 1911(c), 1912(a).^[33] Finally, the tribe may petition the court to set aside a parental termination action upon a showing that the provisions of the ICWA that are designed to protect parents and Indian children have been violated. § 1914.^[34]

While the Act's substantive and procedural provisions effect a major change in state child custody proceedings, its jurisdictional provision is designed primarily to preserve tribal sovereignty over the domestic relations of tribe members and to confirm a developing line of cases which held that the tribe's exclusive jurisdiction could not be defeated by the temporary presence of an Indian child off the reservation. The legislative history indicates that Congress did not intend "to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits." House Report, at 19; Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N. M. L. Rev. 413, 416 (1980). The apparent intent of Congress was to overrule such decisions as that in In re Cantrell, 159 Mont. 66, 495 P. 2d 179 (1972), in which the State placed an Indian child, who had lived on a reservation with his mother, in a foster home only three days after he left the reservation to accompany his father on a trip. Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz. L. Rev. 1123, 1129 (1979). Congress specifically approved a series of cases in which the state courts declined jurisdiction over Indian children who were wards of the tribal court, In re Adoption of Buehl, 87 Wash. 2d 649, 555 P. 2d 1334 (1976); Wakefield v. Little Light, 276 Md. 333, 347 A. 2d 228 (1975), or whose [59] parents were temporarily residing off the reservation, Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich. 1973), but exercised jurisdiction over Indian children who had never lived on a reservation and whose Indian parents were not then residing on a reservation, In re Greybull, 23 Ore. App. 674, 543 P. 2d 1079 (1975); see House Report, at 21.^[35] It did not express any disapproval of decisions such as that of the United States Court of Appeals for the Ninth Circuit in United States ex rel. Cobell v. Cobell, 503 F. 2d 790 (1974), cert. denied, 421 U. S. 999 (1975), which indicated that a Montana state court could exercise jurisdiction over an Indian child custody dispute because the parents, "by voluntarily invoking the state court's jurisdiction for divorce purposes, . . . clearly submitted the question of their children's custody to the judgment of the Montana state courts." 503 F. 2d, at 795 (emphasis deleted).

The Report of the American Indian Policy Review Commission, an early proponent of the ICWA, makes clear the limited purposes that the term "domicile" was intended to serve:

"Domicile is a legal concept that does not depend exclusively on one's physical location at any one given moment in time, rather it is based on the apparent intention of permanent residency. Many Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment [60] and educational opportunities. . . . In these situations, where family ties to the reservation are strong, but the child is temporarily off the reservation, a fairly strong legal argument can be made for tribal court jurisdiction." Report on Federal, State, and Tribal Jurisdiction 86 (Comm. Print 1976).^[36]

Although parents of Indian children are shielded from the exercise of state jurisdiction when they are temporarily off the reservation, the Act also reflects a recognition that allowing the tribe to defeat the parents' deliberate choice of jurisdiction would be conducive neither to the best interests of the child nor to the stability and security of Indian tribes and families. Section 1911(b), providing for the exercise of concurrent jurisdiction by state and tribal courts when the Indian child is not domiciled on the reservation, gives the Indian parents a veto to prevent the transfer of a state-court action to tribal court.^[37] "By allowing the Indian parents to [61] `choose' the forum that will decide whether to sever the parent-child relationship, Congress promotes the security of Indian families by allowing the Indian parents to defend in the court system that most reflects the parents' familial standards." Jones, 21 Ariz. L. Rev., at 1141. As Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians, stated in testimony to the House Subcommittee on Indian Affairs and Public Lands with respect to a different provision:

"The ultimate responsibility for child welfare rests with the parents and we would not support legislation which interfered with that basic relationship." Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess., 62 (1978).^[38]

[62] If J. B. and W. J. had established a domicile off the reservation, the state courts would have been required to give effect to their choice of jurisdiction; there should not be a different result when the parents have not changed their own domicile, but have expressed an unequivocal intent to establish a domicile for their children off the reservation. The law of abandonment, as enunciated by the Mississippi Supreme Court in this case, does not defeat, but serves the purposes of, the Act. An abandonment occurs when a parent deserts a child and places the child with another with an intent to relinquish all parental rights and obligations. Restatement (Second) of Conflict of Laws § 22, Comment e (1971) (hereinafter Restatement); In re Adoption of Halloway, 732 P. 2d 962, 966 (Utah 1986). If a child is abandoned by his mother, he takes on the domicile of his father; if the child is abandoned by his father, he takes on the domicile of his mother. Restatement § 22, Comment e; 25 Am. Jur. 2d, Domicil § 69 (1966). If the child is abandoned by both parents, he takes on the domicile of a person other than the parents who stands in loco parentis to him. In re Adoption of Halloway, supra, at 966; In re Estate of Moore, 68 Wash. 2d 792, 796, 415 P. 2d 653, 656 (1966); Harlan v. Industrial Accident Comm'n, 194 Cal. 352, 228 P. 654 (1924); Restatement § 22, Comment i; cf. In re Guardianship of D. L. L. and C. L. L., 291 N. W. 2d 278, 282 (S. D. 1980).^[39] To be effective, the intent to abandon or the actual physical abandonment must be shown by clear and convincing evidence. In re Adoption of Halloway, supra, at 966; C. S. v. Smith, 483 S. W. 2d 790, 793 (Mo. App. 1972).^[40]

[63] When an Indian child is temporarily off the reservation, but has not been abandoned to a person off the reservation, the tribe has an interest in exclusive jurisdiction. The ICWA expresses the intent that exclusive tribal jurisdiction is not so frail that it should be defeated as soon as the Indian child steps off the reservation. Similarly, when the child is abandoned by one parent to a person off the reservation, the tribe and the other parent domiciled on the reservation may still have an interest in the exercise of exclusive jurisdiction. That interest is protected by the rule that a child abandoned by one parent takes on the domicile of the other. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act's substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 173 (1973); Williams v. [64] Lee, 358 U. S. 217, 219-220 (1959); Felix v. Patrick, 145 U. S. 317, 332 (1892).

The interpretation of domicile adopted by the Court requires the custodian of an Indian child who is off the reservation to haul the child to a potentially distant tribal court unfamiliar with the child's present living conditions and best interests. Moreover, it renders any custody decision made by a state court forever suspect, susceptible to challenge at any time as void for having been entered in the absence of jurisdiction.^[41] Finally, it forces parents of Indian children who desire to invoke state-court jurisdiction to establish a domicile off the reservation. Only if the custodial parent has the wealth and ability to establish a domicile off the reservation will the parent be able to use the processes of state court. I fail to see how such a requirement serves the paramount congressional purpose of "promot[ing] the stability and security of Indian tribes and families." 25 U. S. C. § 1902.

[65] The Court concludes its opinion with the observation that whatever anguish is suffered by the Indian children, their natural parents, and their adoptive parents because of its decision today is a result of their failure to initially follow the provisions of the ICWA. Ante, at 53-54. By holding that parents who are domiciled on the reservation cannot voluntarily avail themselves of the adoption procedures of state court and that all such proceedings will be void for lack of jurisdiction, however, the Court establishes a rule of law that is virtually certain to ensure that similar anguish will be suffered by other families in the future. Because that result is not mandated by the language of the ICWA and is contrary to its purposes, I respectfully dissent.

[1] Briefs of amici curiae urging reversal were filed for the Association of American Indian Affairs, Inc., et al. by Bertram E. Hirsch and Jack F. Trope; for the Menominee Indian Tribe of Wisconsin by Kathryn L. Tierney; for the Navajo Nation by Donald R. Wharton; and for the Swinomish Tribal Community et al. by Jeanette Wolfley, Craig J. Dorsay, and Richard Dauphinais.

[2]For example, Dr. Joseph Westermeyer, a University of Minnesota social psychiatrist, testified about his research with Indian adolescents who experienced difficulty coping in white society, despite the fact that they had been raised in a purely white environment:

"[T]hey were raised with a white cultural and social identity. They are raised in a white home. They attended, predominantly white schools, and in almost all cases, attended a church that was predominantly white, and really came to understand very little about Indian culture, Indian behavior, and had virtually no viable Indian identity. They can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a historical figure but were not a viable contemporary social group.

"Then during adolescence, they found that society was not to grant them the white identity that they had. They began to find this out in a number of ways. For example, a universal experience was that when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from the parents not to date these Indian children. . . .

"The other experience was derogatory name calling in relation to their racial identity . . . .

.....

"[T]hey were finding that society was putting on them an identity which they didn't possess and taking from them an identity that they did possess." 1974 Hearings, at 46.

[3] Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess. (1977) (hereinafter 1977 Hearings); Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978) (hereinafter 1978 Hearings).

[4] These sentiments were shared by the ICWA's principal sponsor in the House, Rep. Morris Udall, see 124 Cong. Rec. 38102 (1978) ("Indian tribes and Indian people are being drained of their children and, as a result, their future as a tribe and a people is being placed in jeopardy"), and its minority sponsor, Rep. Robert Lagomarsino, see ibid. ("This bill is directed at conditions which . . . threaten . . . the future of American Indian tribes . . .").

[5] One of the particular points of concern was the failure of non-Indian child welfare workers to understand the role of the extended family in Indian society. The House Report on the ICWA noted: "An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights." House Report, at 10. At the conclusion of the 1974 Senate hearings, Senator Abourezk noted the role that such extended families played in the care of children: "We've had testimony here that in Indian communities throughout the Nation there is no such thing as an abandoned child because when a child does have a need for parents for one reason or another, a relative or a friend will take that child in. It's the extended family concept." 1974 Hearings, at 473. See also Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich. 1973) (discussing custom of extended family and tribe assuming responsibility for care of orphaned children).

[6]Section 1911(a) reads in full:

"An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child."

[7]The quoted passages are from the House Report's discussion of § 1915, in which the ICWA attempts to accomplish these aims, in regard to nondomiciliaries of the reservation, through the establishment of standards for state-court proceedings. In regard to reservation domiciliaries, these goals are pursued through the establishment of exclusive tribal jurisdiction under § 1911(a).

Beyond its jurisdictional and other provisions concerning child custody proceedings, the ICWA also created, in its Title II, a program of grants to Indian tribes and organizations to aid in the establishment of child welfare programs. See 25 U. S. C. §§ 1931-1934.

[8] Section 103(a) of the ICWA, 25 U. S. C. § 1913(a), requires that any voluntary consent to termination of parental rights be executed in writing and recorded before a judge of a "court of competent jurisdiction," who must certify that the terms and consequences of the consent were fully explained and understood. Section 1913(a) also provides that any consent given prior to birth or within 10 days thereafter is invalid. In this case the mother's consent was given 12 days after the birth. See also n. 26, infra.

[9] W. J.'s consent to adoption was signed before a notary public in Neshoba County on January 11, 1986. Record 11-12. Only on June 3, 1986, however — well after the decree of adoption had been entered and after the Tribe had filed suit to vacate that decree — did the chancellor of the Chancery Court certify that W. J. had appeared before him in Harrison County to execute the consent to adoption. Id., at 12-A.

[10] Appellee Orrey Holyfield died during the pendency of this appeal.

[11] Mississippi adoption law provides for a 6-month waiting period between interlocutory and final decrees of adoption, but grants the chancellor discretionary authority to waive that requirement and immediately enter a final decree of adoption. See Miss. Code Ann. § 93-17-13 (1972). The chancellor did so here, Record 14, with the result that the final decree of adoption was entered less than one month after the babies' birth.

[12] The chancellor's certificates that the parents had appeared before him to consent to the adoption recited that "the Consent and Waiver was given in full compliance with Section 103(a) of Public Law 95-608" (i. e., 25 U. S. C. § 1913(a)). Record 10, 12-A.

[13] The ICWA specifically confers standing on the Indian child's tribe to participate in child custody adjudications. Title 25 U. S. C. § 1914 authorizes the tribe (as well as the child and its parents) to petition a court to invalidate any foster care placement or termination of parental rights under state law "upon a showing that such action violated any provision of sections 101, 102, and 103" of the ICWA. 92 Stat. 3072. See also § 1911(c) (Indian child's tribe may intervene at any point in state-court proceedings for foster care placement or termination of parental rights). "Termination of parental rights" is defined in § 1903(1)(ii) as "any action resulting in the termination of the parent-child relationship."

[14] The lower court may well have fulfilled the applicable ICWA procedural requirements. But see n. 8, supra, and n. 26, infra. It clearly did not, however, comply with or even take cognizance of the substantive mandate of § 1915(a): "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (Emphasis added.) Section 1915(e), moreover, requires the court to maintain records "evidencing the efforts to comply with the order of preference specified in this section." Notwithstanding the Tribe's argument below that § 1915 had been violated, see Brief for Appellant 20-22 and Appellant's Brief in Support of Petition for Rehearing 11-12 in No. 57,659 (Miss. Sup. Ct.), the Mississippi Supreme Court made no reference to it, merely stating in conclusory fashion that the "minimum federal standards" had been met. 511 So. 2d, at 921.

[15] See, e. g., In re Adoption of Halloway, 732 P. 2d 962 (Utah 1986); In re Adoption of Baby Child, 102 N. M. 735, 700 P. 2d 198 (App. 1985); In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P. 2d 187 (App. 1981), cert. denied sub nom. Catholic Social Services of Tucson v. P. C., 455 U. S. 1007 (1982).

[16] Because it was unclear whether this case fell within the Court's appellate jurisdiction, we postponed consideration of our jurisdiction to the hearing on the merits. Pursuant to the version of 28 U. S. C. § 1257(2) applicable to this appeal, we have appellate jurisdiction to review a state-court judgment "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." It is sufficient that the validity of the state statute be challenged and sustained as applied to a particular set of facts. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U. S. 468, 473-474, n. 4 (1989); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290 (1921). In practice, whether such an as-applied challenge comes within our appellate jurisdiction often turns on how that challenge is framed. See Hanson v. Denckla, 357 U. S. 235, 244 (1958); Memphis Natural Gas Co. v. Beeler,315 U. S. 649, 650-651 (1942).

In the present case appellants argued below "that the state lower court jurisdiction over these adoptions was preempted by plenary federal legislation." Brief for Appellant in No. 57,659 (Miss. Sup. Ct.), p. 5. Whether this formulation "squarely" challenges the validity of the state adoption statute as applied, see Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 440-441 (1979), or merely asserts a federal right or immunity, 28 U. S. C. § 1257(3), is a difficult question to which the answer must inevitably be somewhat arbitrary. Since in the near future our appellate jurisdiction will extend only to rare cases, see Pub. L. 100-352, 102 Stat. 662, it is also a question of little prospective importance. Rather than attempting to resolve this question, therefore, we think it advisable to assume that the appeal is improper and to consider by writ of certiorari the important question this case presents. See Spencer v. Texas, 385 U. S. 554, 557, n. 3 (1967). We therefore dismiss the appeal, treat the papers as a petition for writ of certiorari, 28 U. S. C. § 2103, and grant the petition. (For convenience, we will continue to refer to the parties as appellant and appellees.)

[17]"Reservation" is defined quite broadly for purposes of the ICWA. See 25 U. S. C. § 1903(10). There is no dispute that the Choctaw Reservation falls within that definition.

Section 1911(a) does not apply "where such jurisdiction is otherwise vested in the State by existing Federal law." This proviso would appear to refer to Pub. L. 280, 67 Stat. 588, as amended, which allows States under certain conditions to assume civil and criminal jurisdiction on the reservations. Title 25 U. S. C. § 1918 permits a tribe in that situation to reassume jurisdiction over child custody proceedings upon petition to the Secretary of the Interior. The State of Mississippi has never asserted jurisdiction over the Choctaw Reservation under Public Law 280. See F. Cohen, Handbook of Federal Indian Law 362-363, and nn. 122-125 (1982); cf. United States v. John, 437 U. S. 634 (1978).

[18] This conclusion is inescapable from a reading of the entire statute, the main effect of which is to curtail state authority. See especially §§ 1901, 1911-1916, 1918.

[19] See also 124 Cong. Rec. 38103 (1978) (letter from Rep. Morris K. Udall to Assistant Attorney General Patricia M. Wald) ("[S]tate courts and agencies and their procedures share a large part of the responsibility" for the crisis threatening "the future and integrity of Indian tribes and Indian families"); House Report, at 19 ("Contributing to this problem has been the failure of State officials, agencies, and procedures to take into account the special problems and circumstances of Indian families and the legitimate interest of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own future"). See also In re Adoption of Halloway, 732 P. 2d, at 969 (Utah state court "quite frankly might be expected to be more receptive than a tribal court to [Indian child's] placement with non-Indian adoptive parents. Yet this receptivity of the non-Indian forum to non-Indian placement of an Indian child is precisely one of the evils at which the ICWA was aimed").

[20] Some details of the Baby Child case are taken from the briefs in Pino v. District Court, Bernalillo County, O. T. 1984, No. 84-248. That appeal was dismissed under this Court's Rule 53, 472 U. S. 1001 (1985), following the appellant's successful collateral attack, in the case cited in the text, on the judgment from which appeal had been taken.

[21] Nor is it inconceivable that a State might apply its law of domicile in such a manner as to render inapplicable § 1911(a) even to a child who had lived several years on the reservation but was removed from it for the purpose of adoption. Even in the less extreme case, a state-law definition of domicile would likely spur the development of an adoption brokerage business. Indian children, whose parents consented (with or without financial inducement) to give them up, could be transported for adoption to States like Mississippi where the law of domicile permitted the proceedings to take place in state court.

[22] For this reason, the general rule that domicile is determined according to the law of the forum, see Restatement (Second) of Conflict of Laws § 13 (1971) (hereinafter Restatement), can have no application here.

[23] We note also the likelihood that, had Congress intended a state-law definition of domicile, it would have said so. Where Congress did intend that ICWA terms be defined by reference to other than federal law, it stated this explicitly. See § 1903(2) ("extended family member" defined by reference to tribal law or custom); § 1903(6) ("Indian custodian" defined by reference to tribal law or custom and to state law).

[24] See also supra, at 34, and n. 3.

[25] In large part the concerns that emerged during the congressional hearings on the ICWA were based on studies showing recurring developmental problems encountered during adolescence by Indian children raised in a white environment. See n. 1, supra. See also 1977 Hearings, at 114 (statement of American Academy of Child Psychiatry); S. Rep. No. 95-597, p. 43 (1977) (hereinafter Senate Report). More generally, placements in non-Indian homes were seen as "depriving the child of his or her tribal and cultural heritage." Id.,at 45; see also 124 Cong. Rec. 38102-38103 (1978) (remarks of Rep. Lagomarsino). The Senate Report on the ICWA incorporates the testimony in this sense of Louis La Rose, chairman of the Winnebago Tribe, before the American Indian Policy Review Commission:

"I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption courts, erase all of their records and send them off to some nebulous family that has a value system that is A-1 in the State of Nebraska and that child reaches 16 or 17, he is a little brown child residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think . . . they destroy him." Senate Report, at 43.

Thus, the conclusion seems justified that, as one state court has put it, "[t]he Act is based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected." In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz., at 204, 635 P. 2d, at 189.

[26]While the statute itself makes clear that Congress intended the ICWA to reach voluntary as well as involuntary removal of Indian children, the same conclusion can also be drawn from the ICWA's legislative history. For example, the House Report contains the following expression of Congress' concern with both aspects of the problem:

"One of the effects of our national paternalism has been to so alienate some Indian [parents] from their society that they abandon their children at hospitals or to welfare departments rather than entrust them to the care of relatives in the extended family. Another expression of it is the involuntary, arbitrary, and unwarranted separation of families." House Report, at 12.

[27] The Bureau of Indian Affairs pointed out, in issuing nonbinding ICWA guidelines for the state courts, that the terms "residence" and "domicile" "are well defined under existing state law. There is no indication that these state law definitions tend to undermine in any way the purposes of the Act." 44 Fed. Reg. 67584, 67585 (1979). The clear implication is that state law that did tend to undermine the ICWA's purposes could not be taken to express Congress' intent. There is some authority for the proposition that abandonment can effectuate a change in the child's domicile, In re Adoption of Halloway, 732 P. 2d, at 967, although this may not be the majority rule. See Restatement § 22, Comment e (abandoned child generally retains the domicile of the last-abandoning parent). In any case, as will be seen below, the Supreme Court of Utah declined in the Hallowaycase to apply Utah abandonment law to defeat the purpose of the ICWA. Similarly, the conclusory statement of the Supreme Court of Mississippi that the twin babies had been "legally abandoned," 511 So. 2d, at 921, cannot be determinative of ICWA jurisdiction.

There is also another reason for reaching this conclusion. The predicate for the state court's abandonment finding was the parents' consent to termination of their parental rights, recorded before a judge of the state Chancery Court. ICWA § 103(a), 25 U. S. C. § 1913(a), requires, however, that such a consent be recorded before "a judge of a court of competent jurisdiction." See n. 7, supra. In the case of reservation-domiciled children, that could be only the tribal court. The children therefore could not be made nondomiciliaries of the reservation through any such state-court consent.

[28] It appears, in fact, that all Choctaw women give birth off the reservation because of the lack of appropriate obstetric facilities there. See Juris. Statement 4, n. 2. In most cases, of course, the mother and child return to the reservation after the birth, and this would presumably be sufficient to make the child a reservation domiciliary even under the Mississippi court's theory. Application of the Mississippi domicile rule would, however, permit state authorities to avoid the tribal court's exclusive § 1911(a) jurisdiction by removing a newborn from an allegedly unfit mother while in the hospital, and seeking to terminate her parental rights in state court.

[29] We were assured at oral argument that the Choctaw court has the authority under the tribal code to permit adoption by the present adoptive family, should it see fit to do so. Tr. of Oral Arg. 17.

[30] The House Report found that "Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole." H. R. Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report). The Senate Report similarly states that the Act was motivated by "reports that an alarmingly high percentage of Indian children were being separated from their natural parents through the actions of nontribal government agencies." S. Rep. No. 95-597, p. 11 (1977). See also 124 Cong. Rec. 12532 (1978) (remarks of Rep. Udall) ("The record developed by the Policy Review Commission, by the Senate Interior Committee in the 94th Congress; and by the Senate Select Committee on Indian Affairs and our own Interior Committee in the 95th Congress has disclosed what almost amounts to a callous raid on Indian children. Indian children are removed from their parents and families by State agencies for the most specious of reasons in proceedings foreign to the Indian parents"); id., at 38102 (remarks of Rep. Udall) ("Studies have revealed that about 25 percent of all Indian children are removed from their homes and placed in some foster care or adoptive home or institution"); id., at 38103 (remarks of Rep. Lagomarsino) ("For Indians generally and tribes in particular, the continued wholesale removal of their children by nontribal government and private agencies constitutes a serious threat to their existence as ongoing, self-governing communities"); Hearing on S. 1214 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 1 (1977) ("It appears that for decades Indian parents and their children have been at the mercy of arbitrary or abusive action of local, State, Federal and private agency officials. Unwarranted removal of children from their homes is common in Indian communities").

[31] "The purpose of the bill (H. R. 12533), introduced by Mr. Udall et al., is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture and by providing for assistance to Indian tribes and organizations in the operation of child and family service programs." House Report, at 8 (footnote omitted). See also 124 Cong. Rec. 38102 (1978) (remarks of Rep. Udall) ("[The Act] clarifies the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the States. More importantly, it establishes minimum Federal standards and procedural safeguards to protect Indian families when faced with child custody proceedings against them in State agencies or courts").

[32]The statute provides in part:

"(b) Transfer of proceedings; declination by tribal court

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe." 25 U. S. C. § 1911.

[33] See 44 Fed. Reg. 67584, 67586 (1979) ("The Act mandates a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones").

[34] Significantly, the tribe cannot set aside a termination of parental rights on the ground that the adoptive placement provisions of § 1915, favoring placement with the tribe, have not been followed.

[35] None of the cases cited approvingly by Congress involved a deliberate abandonment. In Wakefield v. Little Light, 276 Md. 333, 347 A. 2d 228 (1975), the court upheld exclusive tribal jurisdiction where it was clear that there was no abandonment. In Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (WD Mich. 1973), there was no abandonment, the children had lived on the reservation and were members of the Indian Tribe, and the children's clothing and toys were at a home on the reservation that continued to be available to them. Finally, in In re Adoption of Buehl, 87 Wash. 2d 649, 555 P. 2d 1334 (1976), the child was a ward of the tribal court and an enrolled member of the Tribe.

[36]In a letter to the House of Representatives, the Department of Justice explained its understanding that the provision was addressed to the involuntary termination of parental rights in tribal members by state agencies unaware of exclusive tribal jurisdiction:

"As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280. It is our understanding that this legal principle is often ignored by local welfare organizations and foster homes in cases where they believe Indian children have been neglected, and that S. 1214 is designed to remedy this, and to define Indian rights in such cases." House Report, at 35.

[37]The explanation of this subsection in the House Report reads as follows:

"Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected." Id., at 21.

In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated:

"Section 101(b) should be amended to prohibit clearly the transfer of a child placement proceeding to a tribal court when any parent or child over the age of 12 objects to the transfer." Id., at 32.

Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.

[38] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen's Association) ("We believe the tribe should receive notice in all such cases but where the child is neither a resident nor domiciliary of the reservation intervention should require the consent of the natural parents or the blood relative in whose custody the child has been left by the natural parents. It seems there is a great potential in the provisions of section 101(c) for infringing parental wishes and rights").

[39] The authority of a State to exercise jurisdiction over a child in a child custody dispute when the child is physically present in a State and has been abandoned is also recognized by federal statute. See Parental Kidnaping Prevention Act of 1980, 94 Stat. 3569, 28 U. S. C. § 1738A(c)(2); see also Uniform Child Custody Jurisdiction Act, 9 U. L. A. § 3 (1988).

[40] The Court suggests that there could be no legally effective abandonment because the parents consented to termination of their parental rights before a judge of the state court and not a tribal court judge. Ante, at 51, n. 26. That suggestion ignores the findings of the State Supreme Court that the natural parents did virtually everything they could do to abandon the children to persons outside the reservation: "[T]he Indian twins have never resided outside of Harrison County, Mississippi, and were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi." 511 So. 2d 918, 921 (1987). In any event, even a consent to adoption that does not meet statutory requirements may be effective to constitute an abandonment and change the minor's domicile. See Wilson v. Pierce, 14 Utah 2d 317, 321, 383 P. 2d 925, 927 (1963); H. Clark, Law of Domestic Relations in the United States 633 (1968).

[41] The facts of In re Adoption of Halloway, 732 P. 2d 962 (Utah 1986), which the Court cites approvingly, ante, at 52-53, vividly illustrate the problem. In that case, the mother, a member of an Indian Tribe in New Mexico, voluntarily abandoned an Indian child to the custody of the child's maternal aunt off the reservation with the knowledge that the child would be placed for adoption in Utah. The mother learned of the adoption two weeks after the child left the reservation and did not object and, two months later, she executed a consent to adoption. Nevertheless, some two years after the petition for adoption was filed, the Indian Tribe intervened in the proceeding and set aside the adoption. The Tribe argued successfully that regardless of whether the Indian parent consented to it, the adoption was void because she resided on the reservation and thus the tribal court had exclusive jurisdiction. Although the decision in Halloway, and the Court's approving reference to it, may be colored somewhat by the fact that the mother in that case withdrew her consent (a fact which would entitle her to relief even if there were only concurrent jurisdiction, see 25 U. S. C. § 1913(c)), the rule set forth by the majority contains no such limitation. As the Tribe acknowledged at oral argument, any adoption of an Indian child effected through a state court will be susceptible of challenge by the Indian tribe no matter how old the child and how long it has lived with its adoptive parents. Tr. of Oral Arg. 15.

Graziadei & Cantor, and Scott Cantor, Las Vegas, for appellants.

Compton & Kemp, Las Vegas, for respondent.

OPINION

PER CURIAM:

Facts

On April 21, 1983, appellants Violet, Valorie, and Edward Verreaux (the Verreauxes) sold a residential apartment building located in Clark County, Nevada, for a consideration which included, as partial payment, a note in the amount of $20,000. The note was payable in Las Vegas, Nevada, and secured by a second deed of trust on the apartment building. Subsequently, on September 16, 1985, respondent, Susan D'Onofrio, purchased the apartment building and assumed the note. On the same date, the Verreauxes and D'Onofrio executed an amendment to the note which expressly provided that the Verreauxes did not waive their rights to secure redress on the note and deed of trust. Both the Verreauxes and D'Onofrio were residents of California. The Verreauxes' security interest was destroyed on June 18, 1986, when the property was conveyed pursuant to a trustee's sale.

The Verreauxes filed a complaint in Nevada to recover the principal and interest due on the note. D'Onofrio filed a motion to dismiss that was granted by the district court on the theory that California's anti-deficiency law^[1] applied, barring Verreauxes' claim. For the reasons set forth below, we reverse.

Discussion

Choice of law considerations implicate the Due Process Clause (fairness to the litigants) and the Full Faith and Credit Clause (respect for another sovereign). Allstate Insurance Co. v. Hague, 449 U.S. 302, 308, 101 S.Ct. 633, 637, 66 L.Ed.2d 521 [1022] (1981). D'Onofrio had sufficient contacts with Nevada concerning both the transaction and the breach of its terms to render unavailing complaints of unfairness in the application of Nevada law. D'Onofrio assumed a note secured by a Nevada deed of trust in conjunction with the purchase of Nevada real estate. Moreover, D'Onofrio agreed to make payments under the secured note in Las Vegas, Nevada, or as directed. Finally, D'Onofrio operated the apartment complex in Nevada that was the subject of the controversy. These facts reflect sufficient contacts with Nevada, and a sufficient state interest in applying Nevada's own law, to warrant the conclusion that the choice of Nevada law is constitutional and not arbitrary or fundamentally unfair. See Hague, 449 U.S. at 312-13, 101 S.Ct. at 639-40.

D'Onofrio's significant aggregation of contacts with Nevada created in Nevada a substantial interest in upholding its own law and policies. "NRS Chapter 40 `provides a comprehensive scheme of creditor and debtor protection with respect to the foreclosure and sale of real property subject to security interests.'" Welburn v. District Court, 107 Nev. 105, 108, 806 P.2d 1045, 1047 (1991) (quoting Component Systems v. District Court, 101 Nev. 76, 82, 692 P.2d 1296, 1301 (1980)); see NRS 40.455 (deficiency judgment); cf. Key Bank v. Donnels, 106 Nev. 49, 51-52, 787 P.2d 382, 384 (1991); Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270, 273 (1979); Kish v. Bay Counties Title Guaranty Co., 254 Cal. App.2d 725, 62 Cal. Rptr. 494 (1967). This court stated in Welburn that Nevada deficiency actions do not significantly conflict with California's sovereignty and "Nevada has a strong interest in protecting the efficacy of the deficiency statute with respect to out of state owners of Nevada real property."^[2] Welburn, 107 Nev. at 107, 806 P.2d at 1047.

Accordingly, we conclude that Nevada's interest in applying Nevada law outweighs California's interest in having its anti-deficiency legislation applied in the instant case. Following the trustee's sale, the Verreauxes were entitled to apply to the district court for a deficiency judgment pursuant to NRS 40.455(1). We therefore reverse the district court's order dismissing appellants' complaint and remand this matter for further proceedings in accordance with this opinion.

MOBRAY, C.J., ROSE, STEFFEN and YOUNG, JJ., and HUFFAKER, District Judge^[3], concur.

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[1] Cal.Civ.Proc.Code § 580b (West Ann. 1976 and Supp. 1991).

[2] California's anti-deficiency statute derogates from the common law. Key Bank v. Donnels, 106 Nev. 49, 787 P.2d 382 (1990) (citing 3 Sutherland, Statutory Construction § 61.01 (4th ed. 1986)).

[3] The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District, was designated by the Governor to sit in the place of the Honorable Charles E. Springer, Justice. Nev. Const. art. 6, § 4.

[501] Edward C. Kemper (Kemper & Watts, of counsel), Honolulu, for Bell and Stromer.

Steven Guttman (Paul R. Gibson with him on brief; Law Offices of Steven Guttman, of counsel), Honolulu, for Bachrans.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendant-Appellant Norma Rosalinde Bell (Bell) and Third-Party Defendant-Appellant Peter Robert Stromer (Stromer) (where appropriate hereinafter Bell and Stromer will be collectively referred to as Appellants) appeal from the decree entered below foreclosing an agreement of sale of real property in which Stromer was the buyer and Bell was his assignee. We vacate the decree and remand with instructions to enter an amended decree.

FACTS

There is no dispute over the facts involved here.

On March 2, 1978, Defendant-Appellee FAF Canterbury Place, Ltd. (FAF), a California limited partnership, through Defendants-Appellees Frederick Figge (Figge) and Howard Copeland Hill (Hill), its general partners, (where appropriate hereinafter FAF, Figge and Hill will be collectively referred to as FAF) executed a promissory note and a mortgage in favor of Realty Mortgage, Inc. (Realty Mortgage), a Hawaii corporation, for the purchase of apartment 27-A in the Canterbury Place condominium apartment building located at 1910 Ala Moana Boulevard. The mortgage contained what is commonly referred to as a "due-on-sale" clause, which provided that, with certain exceptions not material here, in the event FAF were to transfer its interest without the mortgagee's consent, the mortgagee could declare the entire sum secured by the mortgage to be due and payable. Realty Mortgage promptly assigned the note and mortgage to Plaintiff-Appellee California Federal Savings and Loan Association (California Federal).

Nearly three years later, FAF sold the apartment to Stromer under an agreement of sale (agreement) for $70,000 down and a balance of $280,000, due in full on March 1, 1984. Stromer was required to make monthly interest payments and to pay the lease rent, real property taxes and condominium maintenance fees. He also had the privilege to pay the entire balance before the agreement's maturity date. On the same day Stromer, with FAF's consent, assigned the agreement to Bell. The sale and assignment were not consented to in writing by California Federal as required by the mortgage.

Thereafter, FAF assigned its interest in the agreement and the condominium conveyance document covering the apartment to Defendants and Third-Party Plaintiffs-Appellees William John and Lorraine Marie Bachran (collectively the Bachrans). The assignment to the Bachrans was subject to California Federal's mortgage, but was not consented to by California Federal.

After California Federal learned of the assignment to the Bachrans, it wrote to FAF demanding payment in full, and also notified Figge, Hill, and the Bachrans by letter that it had done so. A letter to that effect was also sent to Bell but was never received by her. When payment was not made, California Federal filed the action below against FAF, Figge, Hill, the Bachrans, Bell, and Doe Defendants for foreclosure of its mortgage. California Federal later identified and served the Association of Apartment Owners of Canterbury Place (Association) as a defendant. Bell did not receive a copy of the complaint and only learned of the suit from Figge. Upon investigating the cause of the mortgage foreclosure and learning that it was caused by FAF's assignment to the Bachrans, Bell stopped paying interest on the agreement on September 1, 1983, and thereafter paid only the lease rent and real property taxes. Also, Bell did not pay the agreement in full on March 1, 1984.

Bell answered the complaint and filed a cross-claim for damages against FAF, Figge, Hill, and the Bachrans, charging that their acts had jeopardized her position as a buyer and that they had breached the [502] agreement. She did not specify those acts. The Bachrans answered Bell's cross-claim and later filed their own cross-claim against her alleging that she had defaulted on the agreement by failing to make the monthly payments after September 1, 1983, and to pay the balance due on March 1, 1984. The Bachrans prayed alternatively for cancellation of the agreement and forfeiture of Bell's payments, or for foreclosure and sale of the property. They also asked for a judgment against Bell for any deficiency between the net proceeds of the sale and the balance due on the agreement. The Bachrans also filed a third-party complaint against Stromer seeking the same relief on the ground that under the agreement Stromer remained liable for Bell's default. Stromer was served with process through the acting director of the Department of Commerce and Consumer Affairs, and notice was sent to him by mail. Stromer answered the Bachrans' third-party complaint with a general denial.

Bell answered the Bachrans' complaint alleging, inter alia, that the Bachrans' actions had caused California Federal to foreclose the mortgage, thus, jeopardizing Bell's interest in the apartment. She also cross-claimed against the Bachrans on the latter ground and requested rescission of the agreement of sale. The Bachrans thereafter answered Bell's cross-claim.

Before trial, Bell filed a motion to amend her answer to the Bachrans' cross-claim to add the defense that the agreement and the assignment were executed in California and her liability should be determined by California law, which prohibits a deficiency judgment in foreclosure cases. Trial was held on August 8, 1985,^[1] at which time the evidence showed that all parties to the agreement and its assignment were domiciled in California and the documents were signed in that state. Bell's motion to amend was heard after the trial, and although she was allowed to amend her answer, the trial court ruled that Hawaii law governed the agreement.

On September 10, 1985, the trial court entered findings of fact and conclusions of law, holding that the mortgage was in default, and entered a decree foreclosing the mortgage and sale of the property by a commissioner (commissioner) appointed for that purpose.^[2]

In separate findings of fact and conclusions of law entered on October 22, 1985, the trial court held, inter alia, that Bell was in default on the agreement and that she and Stromer were jointly and severally liable to the Bachrans. The trial court also held that Bell was not entitled to rescind the agreement, or to a set-off against the Bachrans of damages she allegedly incurred as a result of the foreclosures. The trial court ordered foreclosure of the agreement and sale of the apartment by the commissioner. The trial court also specifically held that if the proceeds of the sale were insufficient to pay all the valid claims in the action, a judgment would be entered for the deficiency. Appellants jointly filed a notice of appeal on November 20, 1985.

On December 23, 1985, the order approving the commissioner's report, confirming the sale of the apartment, and directing distribution of the proceeds was entered. The order also provided:

AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants Bachran have and may recover from NORMA ROSALINDE BELL and PETER ROBERT STROMER, who are jointly and severally liable for the deficiency due Defendants Bachran as of the date of closing, computed as aforesaid and as may be subsequently determined by ths [sic] Court, plus interest as provided by law until paid from the date of closing, and that a deficiency judgment for said sums shall be entered herein in favor of Defendants Bachran and against Defendants Bell and Stromer upon filing of an appropriate affidavit or Motion [503] therefor by Defendants Bachran and that Defendants Bachran have execution thereon against said Defendants Bell and Stromer according to law upon the Deficiency Judgment being filed with this Court.

AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that default having been entered against Defendants FAF CANTERBURY PLACE, LTD. and HOWARD COPELAND HILL in favor of Defendants Bachran and Defendant Bell, default judgment shall be entered as against said Defendant FAF CANTERBURY PLACE, LTD. and HOWARD COPELAND HILL in favor of Defendants Bachran and Defendant Bell in such amounts as shall be determined by the Court after the conveyance of the subject property to the Purchaser.

On January 22, 1986, Appellants filed an amended notice of appeal.

I.

At the outset we note an appellate jurisdiction problem regarding the amended notice of appeal.

A.

Sua sponte, we hold that we do not have appellate jurisdiction over the December 23, 1985 order, since it is not final. Hoge v. Kane, 4 Hawaii App. 246, 663 P.2d 645 (1983). The December 23, 1985 order merely indicates the trial court's intent to enter a deficiency judgment against Bell and Stromer and a default judgment against FAF and Hill, which were to follow upon the distribution of the sale proceeds. Familian Northwest, Inc. v. Central Pacific Boiler & Piping, Ltd., 68 Hawaii ___, 714 P.2d 936 (1986).

B.

The October 22, 1985 decree of foreclosure contains a Rule 54(b), Hawaii Rules of Civil Procedure (HRCP) (1980) certification, and is appealable as a final order. International Savings and Loan Ass'n, Ltd. v. Woods, 69 Hawaii ___, 731 P.2d 151 (1987); Sturkie v. Han, 2 Hawaii App. 140, 627 P.2d 296 (1981).

II.

We also sua sponte take judicial notice of the following proceedings, which took place after the December 23, 1985 order.

On February 11, 1986, the commissioner rendered his final report and accounting of the proceeds of sale, showing that the Bachrans were paid $44,950.67 from the proceeds of the sale and $3,258.66 in net rentals collected by the commissioner for October, November and December 1985. The only deduction from the rentals was for repairs in the amount of $41.34. On August 4, 1986, a deficiency judgment was entered in favor of the Bachrans and against FAF, Bell and Stromer as follows:

  Balance of the Purchase Price    Unpaid from Sale Proceeds ......          $ 78,252.56  Interest on A/S from 9/1/85

^[3]

    to 12/31/85 ....................          $ 71,923.64  Defendants Bachrans' Attorney's    Fees and Costs .................          $  9,516.17                                              ____________        DEFICIENCY TOTAL ...........          $159,692.37

(Footnote added.) On September 3, 1986, Appellants appealed from the August 4, 1986 judgment (Appeal No. 11626). On December 16, 1986, judgment was entered against FAF and Hill in favor of Appellants for $154,692.37. On January 13, 1987, Appellants filed another notice of appeal from the December 16, 1986 judgment "and all previous proceeding [sic] and orders in this case." On February 12, 1987, the supreme court dismissed Appeal No. 11626 for lack of appellate jurisdiction

Although we cannot and do not decide any questions raised by those subsequent actions, our opinion in this appeal will affect them.

III.

The issues raised by Appellants that are deserving of discussion and our answers are as follows:

[504] (1) Did the trial court have personal jurisdiction over Stromer? Yes.

(2) Did the trial court err in ruling that Hawaii law rather than California law is applicable to the question whether the Bachrans were entitled to a deficiency judgment? No.

(3) Did the trial court abuse its discretionary equity power in foreclosing the agreement and ordering that a deficiency judgment would be entered against Appellants? Yes.

Appellants' other points on appeal are without merit.

IV.

Stromer's argument that the trial court lacked personal jurisdiction over him is utterly without merit. Stromer, an attorney licensed in California, filed a pro se answer to the Bachrans' third-party complaint and did not challenge the trial court's in personam jurisdiction. Additionally, he participated actively, pro se, in the trial. His failure to specifically challenge the trial court's in personam jurisdiction over him constitutes a waiver of any objection on those grounds. Sam Daily Realty, Inc. v. Western Pacific Corp., 4 Hawaii App. 577, 671 P.2d 450 (1983); Rule 12(h)(1), HRCP (1980).

V.

On the grounds that all of the parties to the agreement and the assignment are domiciled in California and the documents were executed in that state, Appellants contend that the Bachrans should not have been entitled to a deficiency judgment because California's statutes prohibiting deficiency judgments should have been applied by the trial court.^[4] We disagree.

Surprisingly, this is a case of first impression in this jurisdiction, in spite of the fact that persons from around the world have been buying and selling large portions of our real estate for no small number of years.

Appellants concede that, as a general rule, matters relating to interests in land depend for their determination on the local law of the situs of the land. In re Grayco Land Escrow, Ltd., 57 Hawaii 436, 559 P.2d 264, cert. denied, 433 U.S. 910, 97 S.Ct. 2976, 53 L.Ed.2d 1094 (1977). They further acknowledge the general rule that foreclosures are also governed by the local law of the situs. Restatement (Second) of Conflict of Laws § 229 (1971) (Restatement).^[5] However, citing comment e to [505] § 229 of the Restatement,^[6] they argue that the issue of a deficiency judgment does not affect title to the apartment, but arises from the underlying debt contract and is collateral to the foreclosure issue. They contend that the situs of the land notwithstanding, California has a more significant relationship with the contractual transaction and the contracting parties in this case than does Hawaii, and the question whether a deficiency judgment is to be awarded in this case should be decided by California's law. The Bachrans argue for the general rule and also that the correct principle for resolving the conflict is expressed in § 189 of the Restatement.^[7] But § 189 still raises the question whether California's relationship to the contract is more significant than Hawaii's and whether California's law should apply. In either case, however, we are convinced that Hawaii's relationship with the transaction in question is more significant than California's, and Hawaii's law was correctly applied by the trial court.

Although, as stated, the law of the situs applies to matters affecting title to land, R. Leflar, American Conflicts Law § 165 (3d ed. 1977), and to foreclosures, some authorities hold that the issue of a deficiency judgment should be decided by applying the law of the jurisdiction governing the underlying debt contract rather than the title, since the deficiency judgment does not affect title to the land. R. Leflar, supra, § 171. That is the Restatement's position as expressed in comment e, supra. However, even the Restatement recognizes that the law of the situs has the most significant relationship to most land contracts. R. Leflar, supra, § 170.

Professor Leflar advocates using certain "choice-influencing considerations" that underlie all such decisions when making a choice of law determination. R. Leflar, supra, § 96; Peters v. Peters, 63 Hawaii 653, 634 P.2d 586 (1981). Professor Leflar's fundamental considerations are: (1) predictability of results, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. R. Leflar, § 96; Peters v. Peters, supra. The method of assessing the "`various interests of the states whose laws are in conflict has become the dominant mode of analysis in modern choice of law theory.'" Peters v. Peters, 63 Hawaii at 663, 634 P.2d at 593 (quoting from Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L. Rev. 33, 80 n. 259 (1978)). Applying Professor Leflar's "choice-influencing considerations" convinces us that Hawaii's law was properly applied in this case.

Admittedly, the domicile of the parties and the situs of the contract give California a significant relationship with the contract so that its law could, in accord with conflicts principles, be held applicable to the deficiency judgment issue in this case. California's interest in protecting its citizens against deficiency judgments in cases [506] such as this is of extreme importance to it. Of equal, if not greater, importance in this case, however, are considerations regarding predictability of results in disputes over transactions involving land in this jurisdiction, maintenance of interstate order, and this state's governmental interest in upholding its law relating to real estate transactions. Those considerations militate in favor of applying Hawaii law.

As noted above, real estate in this jurisdiction has been and continues to be attractive to private home buyers and real estate investors throughout the world. Sales and purchases of all types of real property in Hawaii are important to the economic welfare of this state. The predictability of the legal consequences attending such contracts is essential to the maintenance of the level of economic activity necessary to the state's continued prosperity. The governmental interest in advancing that predictability and in maintaining interstate order in such transactions is obvious. If such matters as deficiency judgments arising from land transactions were not to be determined by the laws of this jurisdiction, the laws of nearly every other state as well as a number of foreign countries relating to that issue might be cited by parties as controlling their rights and liabilities. The application of such a polyglot of laws could lead to the virtual destruction of those important elements of predictability and interstate order, and the weakening of a fundamental part of our economy. Therefore, we reject Appellants' argument that the California law applies and hold that the trial court correctly held that Hawaii law governs the rights of the parties.

However, while correct in its ruling, we hold that the trial court nevertheless abused its discretionary equity powers in foreclosing the agreement and holding that the Bachrans were entitled to a deficiency judgment.

VI.

"The granting of equitable relief is a matter addressed to the sound discretion of a trial court, and its decision will not be set aside unless manifestly against the clear weight of evidence." Michely v. Anthony, 2 Hawaii App. 193, 199, 628 P.2d 1031, 1035 (1981). And an equity court has plenary power to fashion its decree in such a manner as to recognize and maintain the equities of the parties. Schrader v. Benton, 2 Hawaii App. 564, 635 P.2d 562 (1981). We do not think the trial court's decree in this case "conserve[d] the equities of all parties." Id. 2 Hawaii App. at 566, 635 P.2d at 564.

When the bona fides of the Bachrans and Bell are considered only as they relate to the agreement, Bell was in default and could not rescind the agreement and recover her money, Gomez v. Pagaduan, 1 Hawaii App. 70, 613 P.2d 658 (1980), and the equities appear to weigh against her. Bell's fear that the mortgage foreclosure would render the Bachrans unable to convey good title did not entitle her to cease making payments on the agreement, since it was still possible for the Bachrans to clear the title prior to March 1, 1984. She was, however, entitled to adequate assurance from the Bachrans of their ability to provide good title. Shaffer v. Earl Thacker Co., Ltd., 3 Hawaii App. 81, 641 P.2d 983 (1982); Romig v. deVallance, 2 Hawaii App. 597, 637 P.2d 1147 (1981). Although she did not ask for reassurance, in Bell's favor is the fact that she did attempt to get financing to pay off the agreement, but was unsuccessful because of these proceedings. However, when the facts regarding California Federal's mortgage foreclosure are also considered, the equities are not so clearly with the Bachrans so as to require Appellants to bear the entire brunt of this debacle. California Federal's foreclosure, which placed the Bachrans' ability to convey good title to the apartment in jeopardy, was caused solely by FAF's and the Bachrans' action. Although William John Bachran testified that he was not aware of the details of the mortgage, the assignment from FAF was made subject to the recorded mortgage, and the Bachrans are charged by law with knowledge of its terms. In re Nelson, 26 Haw. 809 (1923). Bell had done nothing to cause California Federal's foreclosure and, indeed, had paid [507] over $100,000 toward the agreement. Moreover, there is no finding that Bell acted in bad faith in her breach of the agreement.

Bell's default would, under ordinary circumstances, have entitled the Bachrans to foreclosure of the agreement. But the circumstances here were not ordinary. The law is clear that the Bachrans' obligation under the agreement was to convey good title on March 1, 1984, not before. Continental Developers, Ltd. v. Hensel, 57 Hawaii 570, 560 P.2d 1306 (1977); Romig v. deVallance, supra. However, they were required in the meantime to protect their ability to tender performance of their part of the bargain. See Continental Developers, Ltd. v. Hensel, supra. Instead, they stood by and allowed California Federal's foreclosure to proceed, arguing that since Bell was in default before March 1, 1984, they were not required to tender title and demand payment on that date, and that had Bell paid the balance in full when required they could have used those funds to pay off the mortgage. The argument is without merit.

The Bachrans' covenant to convey good title and Bell's covenant to pay were "mutually dependent and neither party was obligated to perform without due performance by the other, or at least proof of readiness and willingness to perform." Continental Developers, Ltd. v. Hensel, 57 Hawaii at 573, 560 P.2d at 1308. The Bachrans were not entitled under the circumstances of this case to the expectation of using Bell's money to make their title marketable. Id.; Shaffer v. Earl Thacker Co., Ltd., supra.

In fact, both the Bachrans and Bell were in default, since neither was ready and able to perform on March 1, 1984. Their "faults" were approximately equal and the trial court should have attempted to wrought a more just solution, Paradise Hui Hanalike v. Hawaiian Paradise Park Corp., 66 Hawaii 362, 662 P.2d 211 (1983), recognizing the equities of the parties as they related to the entire situation involving the apartment. While Bell was not entitled to rescission we do not deem it just or equitable for the Bachrans to be accorded complete relief where they were not in fact ready and able to perform their part of the bargain. Certainly, the trial court should not have decreed that the Bachrans should recover a deficiency judgment.

VII.

The agreement in this case gives the seller the following remedies for the buyer's default:

(1) Suit for recovery of the entire unpaid balance;

(2) Cancellation of the agreement, repossession of the property, and retention of all moneys paid by the buyer;

(3) Sale of the property at public auction and recovery of any deficiency between the amount recovered at the sale and the balance owed on the purchase price.

In their cross-complaint the Bachrans sought either alternative (2) or (3), and the trial court awarded them (3). In our view, the court should have cancelled the agreement, authorized the Bachrans to retain all the payments received from Bell, ordered the net proceeds of the foreclosure sale to be paid to the Bachrans, and denied the Bachrans a deficiency judgment against Appellants. This would have recognized that Bell was an innocent victim of the foreclosure, while at the same time recognizing that she had defaulted on the agreement.

On the basis of the foregoing discussion, we vacate the October 22, 1985 decree foreclosing the agreement and remand this matter with instructions to the trial court to enter an amended decree cancelling the agreement of sale, authorizing the Bachrans to retain all the payments received from Bell on the agreement, awarding the net proceeds of the foreclosure sale to the Bachrans, and adjudging that Appellants and the Bachrans shall not be liable to each other for any further monies arising from the agreement or these proceedings, including attorney's fees and costs.

[508] Vacated and remanded for further proceedings in accordance with this opinion.

----------

[1] Counsel for FAF, Hill and Figge were allowed to withdraw by an order entered on February 13, 1985, and those parties were neither present nor represented at trial.

[2] The trial court found that Figge had filed a bankruptcy petition in the Bankruptcy Court for the Central District of California.

[3] The date 9/1/85 appears to be a typographical error. The date should probably be 9/1/83 when Bell stopped paying on the agreement.

[4]Appellants cite §§ 580b and 580d of the California Code of Civil Procedure, which read as follows:

§ 580b. Purchase money mortgages, etc.; no deficiency judgment

No deficiency judgment shall lie in any event after any sale of real property for failure of the purchaser to complete his contract of sale, or under a deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property, or under a deed of trust, or mortgage, on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of such dwelling occupied, entirely or in part, by the purchaser.

Where both a chattel mortgage and a deed of trust or mortgage have been given to secure payment of the balance of the combined purchase price of both real and personal property, no deficiency judgment shall lie at any time under any one thereof if no deficiency judgment would lie under the deed of trust or mortgage on real property.

§ 580d. Foreclosure under power of sale; no deficiency judgment; exceptions

No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage upon real property hereafter executed in any case in which the real property has been sold by the mortgagee or trustee under power of sale contained in such mortgage or deed of trust.

The provisions of this section shall not apply to any deed of trust, mortgage or other lien given to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations, or which is made by a public utility subject to the provisions of the Public Utilities Act.

[5]Section 229 of the Restatement (Second) of Conflicts of Law (1971) (Restatement) reads as follows:

§ 229. Foreclosure of Mortgage on Land The method for the foreclosure of a mortgage on land and the interests in the land resulting from the foreclosure are determined by the local law of the situs.

[6]Comment e to § 229 of the Restatement reads as follows:

e. Issues collateral to foreclosure. The courts of the situs would apply their own local law to determine questions involving the foreclosure which affect interests in the land. Issues which do not affect any interest in the land, although they do relate to the foreclosure, are determined, on the other hand, by the law which governs the debt for which the mortgage was given. Examples of such latter issues are the mortgagee's right to hold the mortgagor liable for any deficiency remaining after foreclosure or to bring suit upon the underlying debt without having first proceeded against the mortgaged land. The rules for ascertaining the state whose local law governs the underlying debt are stated in §§ 187-188. For the analogous rule as to chattels, see § 254, Comment e.

[7]Section 189 of the Restatement reads as follows:

§ 189. Contracts for the Transfer of Interests in Land

The validity of a contract for the transfer of an interest in land and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the land is situated unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

167 Mass. 211

RICHARD POLSON
v.
HENRY STEWART, Jr.

Suffolk. January 20, 21, 1896. —January 5, 1897.

Present: FIELD, C. J., ALLEN, HOLMES, LATHROP, & BARKER, JJ.

Specific Performance of Covenant — Husband and Wife — Conflict of Laws — Construction — Consideration.

[211] A covenant made by a husband to his wife in North Carolina where they are domiciled, to surrender all his rights in land owned by her in Massachusetts, may be enforced specifically here, if she has a right to contract with him by the law of North Carolina. FIELD, C. J. dissenting. A covenant by a husband, A., to his wife, B, "to surrender, convey, and transfer to said B. and her heirs all the rights of him the said A. in and to the lands and property above described which he may have acquired by reason of the aforesaid marriage, and the said B. is to have the full and absolute control and possession of all of said property free and discharged of all the rights, claims, or demands of every nature whatsoever of the said A.," embraces claims arising upon his wife's death. The fact that forbearance to bring a well founded suit for divorce is one of the considerations for a covenant does not invalidate the covenant.

BILL IN EQUITY, filed June 6, 1895, to enforce specific performance of a covenant executed by the defendant to his wife, Kitty T. P. Stewart, who died on December 26, 1898, intestate, and of whose estate the plaintiff, who was her brother, was appointed administrator, he having also acquired the rights of the other heirs in her estate.

The bill alleged, in substance, that the plaintiff's intestate, at the time of her death, and for more than two years previously, owned certain lands in this Commonwealth ; that she was married to the defendant on or about January 25, 1892 ; that during the months of December, 1892, and January, 1898, they had their domicil in the State of North Carolina, and differences arose between them, by reason of which they separated; that the conduct of the defendant was such that, by the laws of that State, his wife was entitled to maintain against him a suit for divorce, and to be decreed a suitable allowance for alimony; that she intended and was about to bring such suit, " when, in order to induce her to forbear from that intention, and for other good and adequate considerations," [212] the defendant made with her the agreements hereinafter mentioned ; that, relying upon such agreements, she abandoned the divorce proceedings which she had contemplated; that on or about January 4, 1893, she, with the consent of her husband, " entered herself as a free trader, and acquired the right of contracting and dealing as if she were sole" by a written instrument, marked A, " duly executed, proved, and registered pursuant to the laws of North Carolina," which instrument purported to have been executed on January 4, and registered on January 7, 1893 ; that " immediately after" she "became a free trader, and had acquired the right to contract as if she were sole" she released and covenanted to release her rights of dower in all the lands which the defendant then owned or might thereafter acquire, by an instrument in writing, marked B, and which recited that it was entered into on January 4, 1893; that, "in consideration of such release of dower, and of other good and adequate considerations," the defendant executed with his wife an instrument marked C, which was dated January 4, 1893, and which, after reciting that the parties were then living separate and apart, and that Mrs. Stewart owned certain lands in North Carolina and Massachusetts, provided as follows:

"And whereas both parties to this contract are desirous that the said Kitty T. Poison Stewart, Jr., shall have full, absolute, and complete possession, management, and control of all the above described property; now, therefore, in consideration of the above premises, and in consideration of one dollar this day paid the said Henry Stewart, Jr., doth by these presents covenant and agree to surrender, convey, and transfer to said Kitty T. Poison Stewart, Jr., and her heirs, all the rights of him, the said Henry Stewart, in and to the lands and property above described, which he may have acquired by reason of the aforesaid marriage; and the said Kitty T. Poison Stewart, Jr., is to have the free and absolute control and possession of all of said property, free and discharged of all the rights, claims, or demands of every nature whatsoever of the said Henry Stewart, Jr."

The bill further alleged that all the agreements were made, and the instruments were executed and delivered, in North Carolina, where the parties had their domicil at the time, and were valid and effectual instruments, according to their intent [213] under the laws of that State; that when the agreements and instruments were made and delivered the defendant owned valuable real estate in North Carolina and in other States, in which his wife had an inchoate right of dower; that the agreement by the wife to release her dower was a full and adequate consideration for the agreement of the defendant to release and surrender his marital rights, and the agreement was fully performed by her; that, " by reason of his agreement and promises in the instrument marked C," the defendant became bound Lo release to the heirs of his wife, upon her death, and to the plaintiff as the purchaser from them, all his right and estate in her property; and that, although requested, the defendant had refused to execute such release, or to perform his agreement in any respect, but contends that he is entitled to the same rights in the real estate of his wife as if the agreement had not been made, and threatens to enforce his claim thereto by legal proceedings.

The prayer of the bill was that the defendant might be enjoined from asserting against the plaintiff any title to the real estate in question ; and that he might be ordered to convey to the plaintiff all his right, title, and interest therein. Extracts from the statutes of North Carolina relating to husband and wife were annexed to the bill, § 1828 of which provides that the wife shall be a free trader from the time of registration ; and § 1835 provides that one of the requisites to the validity of a contract between a husband and wife shall be an examination of her separate and apart from him.

The defendant demurred to the bill, assigning several grounds therefor. Hearing before Knowlton, J., who, at the request of the parties, reserved the case upon the bill and demurrer for the consideration of the full court.

Q. B. Upham, for the defendant.

J. Fox, for the plaintiff. HOLMES,

J. This is a bill to enforce a covenant made by the defendant to his wife, the plaintiff's intestate, in North Carolina, to surrender all his marital rights in certain land of hers. The land is in Massachusetts. The parties to the covenant were domiciled in North Carolina. According to the bill, the wife took steps which under the North Carolina statutes [214] gave her the right to contract as a feme sole with her husband as well as with others, and afterwards released her dower in the defendant's lands. In consideration of this release, and to induce his wife to forbear suing for divorce, for which she had just cause, and for other adequate considerations, the defendant executed the covenant. The defendant demurs.

The argument in support of the demurrer goes a little further than is open on the allegations of the bill. It suggests that the instrument which made the wife a " free trader," in the language of the statute, did not go into effect until after the execution of the release of dower and of the defendant's covenant. But the allegation is that the last mentioned two deeds were executed after the wife became a free trader, as they probably were in fact, notwithstanding their bearing date earlier than the registration of the free trader instrument. We must assume that at the date of their dealings together the defendant and his wife had as large a freedom to contract together as the laws of their domicil could give them.

But it is said that the laws of the parties' domicil could not authorize a contract between them as to lands in Massachusetts. Obviously this is not true. It is true that the laws of other States cannot render valid conveyances of property within our borders which our laws say are void, for the plain reason that we have exclusive power over the res. Moss v. Moss, 129 Mass. 243, 246. Hallgarten v. Oldham, 135 Mass. 1, 7, 8. But the same reason inverted establishes that the lex rei sitae cannot control personal covenants, not purporting to be conveyances, between persons outside the jurisdiction, although concerning a thing within it. Whatever the covenant, the laws of North Carolina could subject the defendant's property to seizure on execution, and his person to imprisonment, for a failure to perform it. Therefore, on principle, the law of North Carolina determines the validity of the contract. Such precedents as there are, are on the same side. The most important intimations to the contrary which we have seen are a brief note in Story, Confl. of Laws, § 436, note, and the doubts expressed in Mr. Dicey's very able and valuable book. Lord Cottenham stated and enforced the rule in the clearest way in Ex parte Pollard, 4 Deac. 27, 40 et seq.; S. 0. Mont. & Ch. 239, 250. So Lord [215] Romilly in Good v. Good, 33 Beav. 314, 322. So in Scotland, in a case like the present, where the contract enforced was the wife's. Findlater v. Seafield, Faculty Decisions, 553, Feb. 8,1814. See also Ouninghame v. Sernple, 11 Morison, 4462; Erskine, Inst. Bk. 3, tit. 2, § 40; Westlake, Priv. Int. Law, (3d ed.) § 172 ; Rorer, Interstate Law, (2d ed.) 289, 290.

If valid by the law of North Carolina there is no reason why the contract should not be enforced here. The general principle is familiar. Without considering the argument addressed to us that such a contract would have been good in equity if made here, (Holmes v. Winchester, 133 Mass. 140, Jones v. Clifton, 101 U. S. 225, and Bean v. Patterson, 122 U. S. 496, 499,) we see no ground of policy for an exception. The statutory limits which have been found to the power of a wife to release dower (Mason v. Mason, 140 Mass. 63, and Peaslee v. Peaslee, 147 Mass. 171, 181) do not prevent a husband from making a valid covenant that he will not claim marital rights with any person competent to receive a covenant from him. Charles v. Charles, 8 Grat. 486. Logan v. Birkett, 1 Myl. & K. 220. Marshall v. Beall, 6 How. 70. The competency of the wife to receive the covenant is established by the law of her domicil and of the place of the contract. The laws of Massachusetts do not make it impossible for him specifically to perform his undertaking. He can give a release which will be good by Massachusetts law. If it be said that the rights of the administrator are only derivative from the wife, we agree, and we do not for a moment regard any one as privy to the contract except as representing the wife. But if then it be asked whether she could have enforced the contract during her life, an answer in the affirmative is made easy by considering exactly what the defendant undertook to do. So far as occurs to us, he undertook three things: first, not to disturb his wife's enjoyment while she kept her property ; secondly, to execute whatever instrument was necessary in order to release his rights if she conveyed ; and thirdly, to claim no rights on her death, but to do whatever was necessary to clear the title from such rights then. All these things were as capable of performance in Massachusetts as they would have been in North Carolina. Indeed, all the purposes of the covenant could have been [216] secured at once in the lifetime of the wife by a joint conveyance of the property to a trustee upon trusts properly limited. It will be seen that the case does not raise the question as to what the common law and the presumed law of North Carolina would be as to a North Carolina contract calling for acts in Massachusetts, or concerning property in Massachusetts, which could not be done consistently with Massachusetts law.

With regard to the construction of the defendant's covenant we have no doubt. It is " to surrender, convey, and transfer to said Kitty T. Poison Stewart, Jr., and her heirs, all the rights of him, the said Henry Stewart, Jr., in and to the lands and property above described, which he may have acquired by reason of the aforesaid marriage, and the said Kitty T. Poison Stewart, Jr., is to have the full and absolute control and possession of all of said property free and discharged of all the rights, claims, or demands of every nature whatsoever of the said Henry Stewart, Jr." Notwithstanding the decision of the majority in Roohon v. Leoatt, 2 Stew. (Ala) 429, we think that it would be quibbling with the manifest intent to put an end to all claims of the defendant if we were to distinguish between vested rights which had and those which had not yet become estates in the land, or between claims during the life of the wife and claims after her death. It is plain, too, that the words import a covenant for such further assurance as may be necessary to carry out the manifest object of the deed. See Marshall v. Beall,Q How. 70; Ward v. Thompson, 6 Gill & Johns. 349; Hutchins v. Dixon, 11 Md. 29; Hamrico v. Laird, 10 Yerger, 222; Mason v. Deese, 30 Ga. 308; MoLeod v. Board, 30 Tex. 238.

Objections are urged against the consideration. The instrument is alleged to have been a covenant. It is set forth, and mentions one dollar as the consideration. But the bill alleges others, to which we have referred. It is argued that one of them, forbearance to bring a well founded suit for divorce, was illegal. The judgment of the majority in Merrill v. Peaslee, 146 Mass. 460, 463, expressly guarded itself against sanctioning such a notion, and decisions of the greatest weight referred to in that case show that such a consideration is both sufficient and legal. Newsome v. Newsome, L. R. 2 P. & D. 308, 312. Wil-[217]-son v. Wilson, 1 H. L. Cas. 538, 574. Besant v. Wood, 12 Ch. D. 605, 622. Hart v. Bart, 18 Oh. D. 670, 685. Adams v. Adams, 91 N. Y. 381. Sterling v. Sterling, 12 Ga. 201. Then it is said that the wife's agreement in bar of her dower was invalid, because it had not the certificate that she had been examined, etc., as required by the North Carolina statutes annexed to the bill. Whether it was invalid or not, the defendant was content with it, and accepted the execution of it as a consideration. This being so, it would be hard to say that it was not one, even if without legal effect. Whether void or not, it is alleged to have been performed ; and finally, if it was void, it was void on its face, as matter of law, and the husband must be taken to have known it, so that the most that could be done would be to disregard it; if that were done, the other considerations would be sufficient. See Jones v. Waite, 5 Bing. N. C 341, 351.

Demurrer overruled.

FIELD, C. J. I cannot assent to the opinion of a majority of the court. By our law husband and wife are under a general disability or incapacity to make contracts with each other. The decision in Whitney v. Closson, 138 Mass. 49, shows, I think, that the contract sued on would not be enforced if the husband and wife had been domiciled in Massachusetts when it was made. As a conveyance made directly between husband and wife of an interest in Massachusetts land would be void although the parties were domiciled in North Carolina when it was made, and by the laws of North Carolina were authorized to make such a conveyance, so I think that a contract for such a conveyance between the same persons also would be void. It seems to me illogical to say that we will not permit a conveyance of Massachusetts land directly between husband and wife, wherever they may have their domicil, and yet say that they may make a contract to convey such land from one to the other which our courts will specifically enforce. It is possible to abandon the rule of lex rei sitce, but to keep it for conveyances of land and to abandon it for contracts to convey land seems to me unwarrantable.

The question of the validity of a mortgage of land in this Commonwealth is to be decided by the law here, although the [218] mortgage was executed elsewhere where the parties resided, and would have been void if upon land there situated. Goddard v. Sawyer, 9 Allen, 78. " It is a settled principle, that ' the title to, and the disposition of, real estate must be exclusively regulated by the law of the place in which it is situated.' " Cutter v. Davenport, 1 Pick. 81. Osborn v. Adams, 18 Pick. 245. The testamentary execution of a power of appointment given by will in relation to land is governed by the lex situs, or the law of the domicil of the donor of the power. Sewall v. Wilmer, 132 Mass. 131.

The plaintiff, merely as administrator, cannot maintain the bill. Caverly v. Simpson, 182 Mass. 462, 464. The plaintiff must proceed on the ground that Mrs. Henry Stewart, Jr. acquired by the instruments executed in North Carolina the right to have conveyed or released to her and her heirs by her husband all the interest he had as her husband in her lands in Massachusetts; that this right descended on her death to her heirs, according to the law of Massachusetts; and that the plaintiff, being an heir, has acquired the interest of the other heirs, and therefore brings the bill as owner of this right. The plaintiff, as heir, claims by descent from Mrs. Stewart, and if the contract sued on is void as to her, it is void as to him.

It is only on the ground that the contract conveyed an equitable title that the plaintiff as heir has any standing in court. His counsel founds his argument on the distinction between a conveyance of the legal title to land and a contract to convey it. If the instrument relied on purported to convey the legal title, his counsel in effect admits that it would be void by our law. He accepts the doctrine stated in Boss v. Moss, 129 Mass. 243, 246, as follows: " And the validity of any transfer of real estate by act of the owner, whether inter vivos or by will, is to be determined, even as regards the capacity of the grantor or testator, by the law of the State in which the land is situated." As a contract purporting to convey a right in equity to obtain the legal title to land, he contends that it is valid. I do not dispute the cases cited with reference to contracts concerning personal property, but the rule at common law in regard to the capacity of parties to make contracts concerning real property, as I read the cases and text-books, is that the lex situs governs. [219] Cochran v. Benton, 126 Ind. 58. Boyle v. McCruire, 38 Iowa, 410. Sell v. Miller, 11 Ohio St. 381. Johnston v. Qawtry, 11 Mo. App. 322. Frierson v. Williams, 57 Miss. 451.

Dicey on the Conflict of Laws is the latest text-book on the subject. He states the rule as follows.

Page lxxxix. " (B). Validity of Contract, (i) Capacity. " Rule 146. Subject to the exceptions hereinafter mentioned, a person's capacity to enter into a contract is governed by the law of his domicil (lex domicilii') at the time of the making of the contract.

" (1) If he has such capacity by that law, the contract is, in so far as its validity depends upon his capacity, valid.

" (2) If he has not such capacity by that law, the contract is invalid.

"Exception 1. A person's capacity to bind himself by an ordinary mercantile contract is (probably) governed by the law of the country where the contract is made (lex loci contractus) [?].

" Exception 2. A person's capacity to contract in respect of an immovable (land) is governed by the lex situs."

Page xcii. " (A). Contracts with regard to Immovables. " Rule 151. The effect of a contract with regard to an immovable is governed by the proper law of the contract [?].

" The proper law of such contract is, in general, the law of the country where the immovable is situate (lex situs)."

On page 517 et seq. he states the law in the same way, with numerous illustrations, but with some hesitation as to the law governing the form of contracts to convey immovables. See page xc, Rule 147, Exception 1. For American notes with cases, see page 527 et seq. In the Appendix, page 769, note (B), he discusses the subject at length, and with the same result. Some of the cases cited are the following: Succession of Larendon, 39 La. An. 952; Besse v. Pelloehoux, 73 111. 285; Fuss v. Fuss, 24 Wis. 256; Moore v. Church, 70 Iowa, 208; Reine v. Mechanics $ Traders Ins. Co. 45 La. An. 770; First National Bank of Attleboro v. Hughes, 10 Mo. App. 7; Ordronaux v. Rey, 2 Sandf. Ch. 33; Adams v. Clutterluck, 10 Q. B. D. 403; Chapman v. Robertson, 6 Paige, 627, 630.

Phillimore in 4 Int. Law, (3d ed.) 596, states the law as follows:

[220] " DCCXXXV. 1. The case of a contract respecting the transfer of immovable 'property illustrates the variety of the rules which the foreign writers upon private international law consider applicable to a contract to which a foreigner is a party : they say that,

" i. The capacity of the obligor to enter into the contract is determined by reference to the law of his domicil.

"ii. The like capacity of the obligee by the law of hu domicil. " iii. The mode of alienation or acquisition of the immovable property is to be governed by the law of the situation of that property.

" iv. The external form of the contract is to be governed by the law of the place in which the contract is made.

" It is even suggested by Foelix, that sometimes the interpretation of the contract may require the application of a fifth law.

" DCCXXXVI. The Law of England, and the Law of the North American United States, require the application of the lex rei sitce to all the four predicaments mentioned in the last section.

"DGCXXXVII. But a distinction is to be taken between contracts to transfer property and the contracts by which it is transferred. The former are valid if executed according to the lex loci contractus ; the latter require for their validity a compliance with the forms prescribed by the lex rei sitce. Without this compliance the dominium in the property will not pass."

To the same effect as to the capacity of the parties are Ratigan, Priv. Int. Law, 128 ; Whart. Confl. of Laws, (2d ed.) § 296; Story, Confl. of Laws, (8th ed.) §§ 424-431, 435 ; Rorer, Interstate Law, 263; Nelson, Priv. Int. Law, 147, 260. See Westlake, Priv. Int. Law, (3d ed.) §§ 156, 167 et seq.

On reason and authority 1 think it cannot be held that, although a deed between a husband and his wife, domiciled in North Carolina, of the rights of each in the lands of the other in Massachusetts, is void as a conveyance by reason of the incapacity of the parties under the law of Massachusetts to make and receive such a conveyance to and from each other, jet, if there are covenants in the deed to make a good title, the covenants can be specifically enforced by our courts, and a conveyance compelled, which, if voluntarily made between the parties, would be void.

I doubt if all of the instruments relied on have been executed in accordance with the statutes of North Carolina. By § 1828 of the statutes of that State set out in the papers, the wife became a free trader from the time of registration. This I understand is January 7, 1893. Exhibit B purports to have been executed before that time,-to wit, January 4, 1893. There does not appear to have been any examination of the wife separate and apart from her husband, as required by § 1835. If Exhibit B fails, there is at least a partial failure of consideration for Exhibit C. It is said that an additional consideration is alleged, viz. the wife's forbearing to bring a suit for divorce. Whether this last is a sufficient consideration for a contract I do not consider. It is plain enough that there was an attempt on the part of the husband and wife to continue to live separate and apart from each other without divorce, and to release to each other all the property rights each had in the property of the other. If the release of one fails, I think that this court should not specifically enforce the release of the other ; mutuality in this respect is of the essence of the transaction. If the husband owned lands in Massachusetts, and had died before his wife, I do not think that Exhibit B, even if it were executed according to the statutes of North Carolina, and the wife duly examined and a certificate thereof duly made, would bar her of her dower. Our statutes provide how dower may be barred. Pub. Sts. c. 124, §§ 6-9. Exhibit B is not within the statute. See Mason v. Mason, 140 Mass. 63. Ante-nuptial contracts have been enforced here in equity so as to operate as a bar of dower, even if they did not constitute a legal bar. Jenkins v. Holt, 109 Mass. 261. But post-nuptial contracts, so far as I am aware, never have been enforced here so as to bar dower, unless they conform to the statutes. Whitney v. Olosson, 138 Mass. 49. Whatever may be true of contracts between husband and wife made in or when they are domiciled in other jurisdictions, so far as personal property or personal liability is concerned, I think that contracts affecting the title to real property situate within the Commonwealth should be such as are authorized by our laws. I am of opinion that the bill should be dismissed.

[449] J. Philip Johnson, Robert A. Feder, Fargo, N.D., for respondent.

William A. Scholossman, Jr., Fargo, N.D., for appellants.

Heard, considered and decided by SEDGWICK, P.J., and PARKER and NIERENGARTEN, JJ.

OPINION

NIERENGARTEN, Judge.

Martin and Jean O'Connor appeal from the entry of a judgment of foreclosure on land in Minnesota and the entry of a deficiency judgment against them. They assert North Dakota law regarding deficiency judgments, not Minnesota law, should apply. We agree and reverse.

FACTS

In April 1978 the Aakres and the Moyers, North Dakota residents, borrowed $91,920 from Gate City Savings and Loan Association (Gate City) whose principal place of business is North Dakota. The loan involved four separate promissory notes executed and payable in Fargo, North Dakota. The notes were secured by four mortgages on condominiums located in Clay County, Minnesota. In June 1979 Martin and Jean O'Connor, North Dakota residents, assumed the notes and mortgages by an agreement executed at Gate City in Fargo, North Dakota.

In 1986 the O'Connors defaulted on the notes and mortgages. Gate City began an action in Clay County, Minnesota, to foreclose the mortgages and recover a deficiency judgment. Gate City moved for summary judgment. The O'Connors did not dispute the foreclosure but objected to entry of a deficiency judgment on the basis that such judgment would be contrary to North Dakota's antideficiency laws. On September 4, 1986, the trial judge issued the order of foreclosure. The condominiums were sold to Gate City on November 18, 1986, for $66,000, leaving a deficiency of $31,291.64 plus interest upon which a deficiency judgment would be entered pursuant to Minn.Stat. §§ 581.09, 582.30 (1986).

The O'Connors now appeal, arguing that North Dakota law should apply to the deficiency, not Minnesota law. Under North Dakota law, a deficiency judgment is possible [450] but only after the fair market value of the property is determined in a trial proceeding. According to North Dakota law, Gate City is entitled to a deficiency judgment in an amount equal to the difference between the fair market value and the unpaid balance due on the notes.

ISSUES

1. Is determination of a deficiency judgment procedural or substantive law?

2. If substantive, should Minnesota or North Dakota law be applied?

ANALYSIS

I

When faced with a conflict of law question, the first step is determining whether there is a conflict. Hague v. Allstate Insurance Co., 289 N.W.2d 43, 46-47 (Minn.1979), aff'd, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). If Minnesota law is applied, the O'Connors will have a $31,291 personal judgment automatically entered. If North Dakota law is applied, there may be no deficiency or a deficiency of a lesser amount entered. The method of determining the existence and amount of a deficiency judgment is significantly different.

Once a conflict is established, the next step is to determine if the law involved is procedural or substantive. Matters involving procedure and remedies are governed by the law of the forum state. Davis v. Furlong, 328 N.W.2d 150, 153 (Minn.1983). The court of the forum determines if a given question is one of substance or procedure. Anderson v. State Farm Mutual Automobile Insurance Co., 222 Minn. 428, 432, 24 N.W.2d 836, 839 (1946). The district court found that under both North Dakota and Minnesota law, the appropriate forum for foreclosure suits is determined by the location of the land and the law of the forum governs the foreclosure procedure. See Connecticut Mutual Life Insurance Co. v. Conley, 194 Minn. 41, 259 N.W. 390 (1935); Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721 (1914); Cosgrave v. McAvay, 24 N.D. 343, 139 N.W. 693 (1913). The trial court determined that the act of foreclosure was a remedy or procedure and thus governed by Minnesota law.

A law is substantive if it will substantially affect the result. See Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). If North Dakota law on deficiency judgments applies, the O'Connors may incur either no judgment, or a larger or smaller one. If Minnesota law applies, there is a certain, relatively large deficiency judgment. Since the respective deficiency judgment laws are significantly different and application of the statutes will substantially affect the result, we hold that deficiency judgments are matters of substantive law.

II

When the conflict involves substantive law, the court must determine which law applies. In Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973), the Minnesota Supreme Court adopted an analysis for determination of the applicable law. The test involved:

(a) Predictability of results; (b) maintenance of interstate and international order; (c) simplification of the judicial task; (d) advancement of the forum's governmental interest; and (e) application of the better rule of law.

Id. at 161, 203 N.W.2d at 412.

(a) Predictability of Results

In the past obligations incurred by residents of one state, in that state, to be performed in that state, were governed by the laws of that state. See Patterson v. Wyman, 142 Minn. 70, 170 N.W. 928 (1919) (mortgaged property was in Minnesota but Minnesota recognized usury laws of North Dakota where contract arose); Clement v. Willett, 105 Minn. 267, 117 N.W. 491 (1908) (validity of mortgage assumption made in Minnesota relating to land in Iowa was governed by Minnesota law). Because these were North Dakota residents with an obligation to be performed in North Dakota [451] the application of North Dakota law could be predicted.

(b) Maintenance of Interstate and International Order

This concept requires that the state whose laws are ultimately applied have sufficient contacts with the facts in issue.

Hague, 289 N.W.2d at 48. The material contacts in this case all favor application of North Dakota law. The notes were signed in North Dakota and were to be performed in North Dakota. The loan modification agreements were executed in North Dakota. All the parties to the transaction are residents of North Dakota. The only contact with Minnesota is the fact that the land securing the notes happens to be located here.

(c) Simplification of the Judicial Task

Frequently, this factor is irrelevant since one court can apply the applicable statute as well as any other court. Hague, 289 N.W.2d at 49. A Minnesota court should have no problem applying the appropriate North Dakota statute.

(d) Advancement of the Forum's Governmental Interest

In analyzing the forum's interest, the public policy of North Dakota also must be considered. Myers v. Government Employees Insurance Co., 302 Minn. 359, 365, 225 N.W.2d 238, 242 (1974). It does not appear that Minnesota should have any particular interest in a North Dakota contract between North Dakota residents. The North Dakota antideficiency statute demonstrates a clear interest in balancing the rights of the North Dakota lenders and debtors.

(e) Better Rule of Law

The "better law" is to be applied only when the other considerations leave the choice of law uncertain. Myers, 302 Minn. at 368, 225 N.W.2d at 244. The previous tests all favor application of North Dakota law, as does the better rule of law test.

Under Minnesota law, the sale price of the foreclosed property determines the amount of the deficiency. Frequently, the only bidder is the lender. If there are no other bidders, the only risk the lender runs in bidding low is the risk the property will be redeemed. A defaulting borrower is unlikely to be in a position to redeem. If there are other bidders, the sale price may be more fair and more accurately reflect the property's value. The North Dakota requirement that a jury determine the value of the property and base the deficiency judgment on the difference between actual value and debt is more equitable. The mortgagee will still be entitled to a deficiency judgment if the land value is insufficient to cover the debt.

DECISION

Determination of a deficiency judgment following a foreclosure is substantive not procedural law. In applying the tests established to resolve conflicts of law, we determine that North Dakota law should apply. The portion of the judgment requiring entry of a deficiency judgment in favor of Gate City is reversed.

Reversed.

Present: ARMSTRONG, ROSE, & DREBEN, JJ.

James T. Ronan (Mary P. Harrington with him) for the plaintiff.

Bertram Glovsky (Jane Kilduff with him) for the defendant.

DREBEN, J.

This dispute is the sequel to Rudow v. Fogel, 376 Mass. 587 (1978), and involves a parcel of real estate located in Rockport, Massachusetts, which has been the subject of litigation since the death of the plaintiff's mother in 1963.^[2] The principal issue in this appeal is what law should Massachusetts apply in determining whether the defendant, the plaintiff's uncle, holds the property in constructive [431] trust for the plaintiff. The trial judge found that the property was transferred to the defendant in New York on an oral trust at a time when the plaintiff, his mother, and the defendant were all domiciled in New York. We hold that, in the circumstances of this case, Massachusetts should look to New York law.

We state the relevant facts found by the trial judge. Marvin and Florence Rudow, the parents of the plaintiff William Rudow, purchased the Rockport property in 1958, taking title as tenants by the entirety. They operated a jewelry store in Rockport during the summer but lived in New York City during the rest of the year, where Florence taught school. In 1961, William's parents separated, Florence brought divorce proceedings in New York, and Marvin moved to Rockport. The plaintiff and Florence lived in New York with Florence's mother and with the defendant Albert Fogel, who was Florence's brother.

Great animosity developed between Marvin and Florence. Nevertheless, in 1962, while Florence was hospitalized for cancer, Marvin conveyed his interest in the Rockport property to Florence. The judge found this was done "out of a sense of remorse over the failure of the marriage and also because he felt sorry for his wife." The conveyance was a gift to Florence without any promise on her part of any kind.

In May, 1962, Florence made a will which, after several small gifts, left the residue of her property in trust for the plaintiff to be distributed to him at age twenty-five.^[3] Thereafter, on July 27, 1962, "anxious to keep the property away from her husband, then and in the future," Florence conveyed the Rockport property to the defendant in New York. The transfer was without consideration. The judge found, and his finding is not clearly erroneous, that at the time of transfer the defendant orally agreed that he would hold the property for the benefit of the plaintiff and "would turn it [432] over to the plaintiff when [he] reached maturity." The judge also found that there was no fraud on the part of the defendant.

It appears that there is a difference between Massachusetts local law^[4] and New York law as to when a confidential (fiduciary) relationship may be found between close family members so as to impose a constructive trust. While recognizing that "respectable authority," including the State of New York,^[5] imposes a constructive trust on the principle "that a confidential relationship arises where the conveyance is made between members of a family," Ranicar v. Goodwin, 326 Mass. 710, 713 (1951), the Supreme Judicial Court has ruled, as a matter of Massachusetts local law, that "a confidential relationship does not arise merely because the conveyance was made between members of the family, even if the transferee promised to hold the land in trust." Meskell v. Meskell, 355 Mass. 148, 152 (1969). The court explicitly rejected Restatement (Second) of Trusts § 44, Comment c (1959).^[6] Id. This holding was reaffirmed in [433] Kelly v. Kelly, 358 Mass. 154, 156-157 (1970). See also Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 443-444 (1980). Compare Samia v. Central Oil Co., 339 Mass. 101, 112 (1959), where additional factors resulted in a fiduciary relationship.

New York law permits a confidential relationship to be found "in the bond of kinship," and "unjust enrichment under cover of the relation of confidence ... puts the court in motion." Sinclair v. Purdy, 235 N.Y. 245, 253 (1923). See also Farano v. Stephanelli, 7 App. Div.2d 420, 424 (N.Y. 1959); Janke v. Janke, 47 App. Div.2d 445, 448-449 (1975), affirmed, 39 N.Y.2d 780 (1976). See also 1 Scott, Trusts §§ 44.2, 45.2 (3d ed. 1967) and cases cited, and 4 Palmer, Restitution § 19.3(b) (1978), which criticizes the Massachusetts rule.

The trial judge, applying Massachusetts local law, ruled that there was no constructive trust. Although he refused specific performance, he held that the plaintiff was not without remedy, and entered judgment for the plaintiff in the amount of the fair value of the property less expenses incurred by the defendant. The award to the plaintiff in the amount of the value of the property, less reasonable expenses, is in accord with Massachusetts law. See Cromwell v. Norton, 193 Mass. 291, 292-293 (1906); Kemp v. Kemp, 248 Mass. 354, 357-358 (1924); Collins v. Hillis, 7 Mass. App. Ct. 883 (1979) (action by beneficiary of promise).

In determining that there was no constructive trust, the judge followed the traditional conflicts rule which looks to the law of the situs for determining all material questions involving legal or beneficial interests in land. See, e.g., Herman v. Edington, 331 Mass. 310, 314 (1954) (whether sufficient declaration of an express trust); Hill v. Peterson, 323 Mass. 384, 386 (1948) (resulting trust).^[7] See also 5 Scott, Trusts § 652, at 4123 (3d ed. 1967).

[434] The Supreme Judicial Court has, however, in a series of cases, rejected the notion that a single test is appropriate for determining which law governs all questions relating to a transaction. The court can be said to have adopted a "more functional approach." See Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 541 (1979). See also Restatement (Second) of Conflict of Laws § 6(2) (1971).^[8]

Thus, although the traditional tort conflicts rule provides for reference to the law of the place where the tort occurred, in Pevoski v. Pevoski, 371 Mass. 358, 360 (1976), the court recognized that "another jurisdiction may sometimes be more concerned and more involved with certain issues than the State in which the conduct occurred." In that case, which involved a three-car collision in New York State, the Pevoski automobile was registered in Massachusetts (as apparently were the other two) and all three vehicles were driven by Massachusetts residents. The plaintiff, a passenger in the car driven by her husband, brought an action against him for damages, and he defended on the ground of interspousal tort immunity. The court held that Massachusetts law governed that question. After pointing out that "the economic and social impact of this litigation will fall on Massachusetts domiciliaries and a Massachusetts insurer," the court concluded, "New York has an undoubted interest in enforcing its traffic laws and in making its highways safe for travel but it has no legitimate interest in regulating the interspousal relationships of Massachusetts domiciliaries who chance to be injured within its borders." Id.

[435] Although the court in Choate, Hall & Stewart v. SCA Servs., Inc., had no occasion to look to foreign law, id. at 541, it rejected reference to the law of the place of making of a contract as determinative of all issues involved in the transaction. Id. The court noted, "[T]here is nothing unusual about the laws of different States applying respectively to various phases of a single transaction or incident." Id. at 542.

While the court has not recently ruled on choice-of-law questions concerning trusts involving land, it has rejected the law of the situs as the only criterion for resolving all questions pertaining to an inter vivos trust. This is true even if the trust expressly directs that the trust shall be governed by and construed in accordance with internal Massachusetts law. In First Natl. Bank v. Shawmut Bank, 378 Mass. 137, 147-148 (1979), a Connecticut settlor created a revocable inter vivos trust in Massachusetts and directed her trustees to pay from the trust all estate and inheritance taxes imposed by reason of her death. Her will, executed while she was a resident of Connecticut but probated in Florida, her domicil at the time of her death, provided that such taxes were to be paid from the residue of her estate. In sending the matter back for more findings, the court found a significant choice of law question despite earlier Massachusetts cases^[9] which appeared to have rejected a reference to any law, other than Massachusetts local law, to determine tax apportionment questions for Massachusetts trusts. The court found it unnecessary to decide "at this time whether the suggestion of the Isaacson and Warfield opinions on choice of law would be accepted today." Id. at 145. While recognizing that the law of the situs would often be given recognition in construing the trust instrument and rights and obligations under it, particularly when the trust expressly so directs, the court pointed out, "In particular circumstances, there may be reason to look to the law of [436] that jurisdiction with which the testator-settlor had the greatest contact at significant times (such as her domicil at the time of execution of the trust and will), or perhaps one would look to the law of that jurisdiction which the testatorsettlor had reason to believe would be applicable." Id. at 147.

We think these recent Massachusetts cases suggest that a trial court should examine the interests of both concerned jurisdictions, here Massachusetts and New York, and the interest of our interstate system before deciding what law is appropriate for Massachusetts to apply. See Restatement (Second) of Conflict of Laws § 6(2) (1971), set forth in note 8, supra. See generally Von Mehren & Trautman, Multistate Problems 193-200, 59-65, 76-79 (1965); Hancock, Conceptual Devices for Avoiding the Land Taboo in Conflict of Laws: The Disadvantages of Disingenuousness, 20 Stan. L. Rev. 1, especially 39 (1967).

The most important interest of the situs in land transactions is the protection of bona fide purchasers or other persons who rely on the record title. Additionally, it is desirable for purposes of convenience that a purchaser and his title searchers need consult only the law of one jurisdiction. See Restatement (Second) of Conflict of Laws § 223, Comment b (1971); Von Mehren & Trautman, supra at 197; Hancock, supra at 22. Here there are no such persons involved as these proceedings are solely between the defendant, the record holder of the real estate, and the plaintiff. See Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 44 (1980) (registered land). Massachusetts also has an interest in upholding its Statute of Frauds; however, the policy underlying the Statute of Frauds is not here involved to any greater degree than in any other situation involving a constructive trust.

The concern at stake is not related to the situs of property but is analogous to the one recognized in Pevoski v. Pevoski, 371 Mass. at 360-361. Massachusetts is interested in establishing for its domiciliaries the obligations of family members to one another. New York has a similar interest for its [437] domiciliaries. Here, New York "has the dominant contacts and the superior claim for application of its law." Id. at 360.

The defendant, his sister and the plaintiff were domiciled in New York at the time the property was transferred to the defendant in that State. It appears that Florence Rudow had an attorney for the transaction. She knew that she was not yet divorced. Both her will and the judge's findings indicate that a primary reason for the transfer was to prevent Marvin from having any interest in the form of marital rights or otherwise in the property. Florence's legitimate expectation, enforceable under New York local law, was that her brother would hold the property for her son.

In estate or commercial planning areas, the intentions of the settlor-testator or the contracting parties are significant both for local law and choice-of-law decisions. See Restatement (Second) of Conflict of Laws § 6(2) (1971), note 8, supra, which lists as a factor "the protection of justified expectations." See generally Ehrenzweig, The Statute of Frauds in the Conflict of Laws: The Basic Rule of Validation, 59 Colum. L. Rev. 874 (1959). See also Trautman, A Comment on Twerski and Mayer: A Pragmatic Step Towards Consensus as a Basis for Choice-of-law Solutions, 7 Hofstra L. Rev. 830, 838 (1979). Cf. National Shawmut Bank v. Cumming, 325 Mass. 457, 463 (1950). The intention of the testatorsettlor was in the forefront of the choice-of-law discussion in First Natl. Bank v. Shawmut Bank, 378 Mass. at 147, where the court referred to the possibilities of looking to the law of the testator-settlor's domicil at the time of the execution of her will and trust, or "to the law of that jurisdiction which the testator-settlor had reason to believe would be applicable." See also Polson v. Stewart, 167 Mass. 211 (1897), where, speaking through Holmes, J., the court applied North Carolina law to validate a covenant between husband and wife whereby the husband agreed to surrender all of his marital rights in land located in Massachusetts. "If valid by the law of North Carolina there is no reason why the contract should not be enforced here. The general principle is familiar.... [W]e see no ground of policy for an exception." Id. at 215. See also Bernkrant v. Fowler, 55 Cal.2d 588, 595-596 (1961).

[438] Moreover, the interests of our interstate system as well as the interests of New York and Massachusetts are furthered by applying a single law in determining whether a given situation creates a fiduciary relationship. It is desirable that the same law apply to all property involved in the same transaction wherever situated. "[A]wkward or arbitrary results" can be produced, see Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. at 541, if different laws are applied to different portions of a settlor-testator's property based solely on the fortuitous physical location of his or her assets. In Keith v. Eaton, 58 Kan. 732, 738 (1897), a testator had owned parcels of land located in four different states. The possibility of applying four different rules of construction in determining whether an illegitimate son was included as an heir "furnish[ed] the reason for giving over to the law of [the] testator's domicile the interpretation of his will, unless to do so contravenes the law of the place where the will is probated." See also In re Estate of Clark, 21 N.Y.2d 478, 485 (1968), where the court held that the law of Virginia, the testatorsettlor's domicil, governed the widow's right of election including assets held by a New York trustee. Compare National Shawmut Bank v. Cumming, 325 Mass. at 462-463. See generally 5 Scott, Trusts § 648, at 4097 (3d ed. 1967). See also Restatement (Second) of Conflict of Laws § 223, Comment i (1971), which, as set forth in the margin, suggests that New York law be applied in this case.^[10]

There are no policy considerations against applying that law here. Massachusetts is not opposed to constructive trusts. To the contrary, in Kelly v. Kelly, 358 Mass. at 156, [439] which held Massachusetts does not find a fiduciary relationship merely because the parties are family members, the court recognized the need for imposing constructive trusts to avoid unjust enrichment where legal title is obtained "in violation of a fiduciary relation." Massachusetts would impose no legal impediment even if the defendant were a Massachusetts domiciliary, had he wished to honor his promise, Twomey v. Crowley, 137 Mass. 184, 185 (1884), and, indeed, as the court below correctly ruled, Massachusetts law does impose an obligation on the promisor to return the value of the property. Kemp v. Kemp, 248 Mass. at 357-358.

Our conclusion that New York law applies was, of course, not anticipated by the trial judge and, as a result, he made no findings as to whether there was an abuse of a confidential relationship under New York law. Our previous discussion has indicated that there are differences between Massachusetts and New York law and that a confidential (fiduciary) relationship will be much more readily found between family members in New York. However, the question is still one for determination by the trier of fact. Sinclair v. Purdy, 235 N.Y. at 252; Farano v. Stephanelli, 7 App. Div.2d at 427; Sharp v. Kosmalski, 40 N.Y.2d 119, 122-123 (1976).

The other issues raised by the parties are either without merit (especially their claims of inadequate pleading) or not argued within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

The matter is remanded to the Superior Court for further proceedings consistent with this opinion, including a determination whether there was, in fact, a confidential relationship between Florence Rudow and the defendant. The trial judge may in his discretion decide that question without hearing additional evidence. If he determines that there was a confidential relationship, the judgment is to be vacated and a new judgment is to be entered which shall include an order for the transfer of the property to the plaintiff. If it is determined that there was no confidential relationship,^[11] [440] the judgment of May 12, 1980, is to stand, subject to such modification as the trial judge deems appropriate to reflect the reasonable expenses of or charges to the defendant since that date.

So ordered.

[1] By Marvin Rudow, his father and next friend.

[2] A brief explanation of the prior litigation involving the defendant and the plaintiff's father appears in Rudow v. Fogel, 6 Mass. App. Ct. 822 (1978), and in Rudow v. Fogel, 376 Mass. at 588-589. The Supreme Judicial Court agreed with the ruling of this court that the present action was not barred by the principles of former adjudication. Id. at 588.

[3] The plaintiff was born on March 11, 1956. We note that he has now reached the age of twenty-five.

[4] As used in this opinion, the terms "local law" or "internal law" refer to the laws of a given jurisdiction exclusive of its rules as to choice of law (conflicts rules). See Restatement (Second) of Conflict of Laws § 4(1) (1971).

[5] The authority cited by the court in Ranicar v. Goodwin included Sinclair v. Purdy, 235 N.Y. 245, 253 (1923).

[6] "Comment c. Where transferee is in a confidential relation to transferor. Where the owner of land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the transferor, if the transferee at the time of the transfer was in a confidential relation to the transferor.... Such a confidential relation exists not only where there is a fiduciary relation such as exists between attorney and client, ... and the like, but also where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.... It would seem, indeed, that wherever the transferee orally agrees to hold the property transferred to him in trust for the transferor there is a sufficient relation of confidence thereby created to justify imposing a constructive trust upon him if he breaks his promise; but some courts require additional evidence of confidence in the relation between them before they will impose a constructive trust." (Emphasis supplied.)

[7] We note that in both Herman v. Edington and Hill v. Peterson there was no apparent difference between the internal law of the situs and the law of the other concerned jurisdiction. Hence, there was no serious choice-of-law question before the court.

[8]Section 6(2) sets forth the choice of law factors which are relevant where there is no statutory directive as to choice of law. These factors include:

"(a) the needs of the interstate and international systems,

"(b) the relevant policies of the forum,

"(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

"(d) the protection of justified expectations,

"(e) the basic policies underlying the particular field of law,

"(f) certainty, predictability and uniformity of result, and

"(g) ease in the determination and application of the law to be applied."

[9] Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469 (1950), and Warfield v. Merchants Natl. Bank. 337 Mass. 14 (1958).

[10] "i. Collateral questions.... [T]he courts of the situs would usually apply their local law to determine whether a conveyance transfers an interest in land and the nature of the interest so transferred. On the other hand, these courts might apply the local law of some other state to determine questions that are incidental or collateral to the conveyance. So ..., for example ... if the basis of A's claim is that B obtained delivery of the deed in breach of a fiduciary obligation owed A, the X court would probably apply the local law of the state having the most significant relationship to the parties with respect to the particular issue in determining whether B did owe A a fiduciary obligation and, if so, whether this obligation was breached."

[11] Since both New York (see In re Buehler's Estate, 186 Misc. 306 [Sur. Ct. N.Y. County 1945], affirmed, 272 App. Div. 757 [N.Y. 1947]; Sutton v. Sandler, 18 App. Div.2d 362, affirmed, 13 N.Y.2d 1007 [1963]) and Massachusetts appear to give the plaintiff a remedy even in the absence of a constructive trust, we need not consider which law should be applied.

[238] Before Judges PETRELLA, ASHBEY and A.M. STEIN.

Hellring Lindeman Goldstein & Siegal, attorneys for appellant (Richard B. Honig and Matthew E. Moloshok, on the brief).

[239] Friedman Siegelbaum, attorneys for respondent (Joel R. Glucksman and Lindsey H. Taylor, on the brief).

The opinion of the court was delivered by PETRELLA, P.J.A.D.

Defendant Anthony Errico appeals from a September 11, 1990 order granting plaintiff Citibank N.A. (Citibank) summary judgment and entering a deficiency judgment of $2,601,149.08 as of August 3, 1990. The deficiency proceeding was instituted against Errico after foreclosure of a mortgage and security agreement which he and others had given to the bank in connection with a one year loan of $5,500,000. Errico's cross-motion for summary judgment dismissing the deficiency action was denied by the Law Division in the same order.

The underlying dispute between the parties arose out of the foreclosure of a mortgage and note on property known as Harbor Island Spa (the Spa) in Long Branch, New Jersey.

The facts are neither complicated nor disputed. On February 11, 1986, Errico, along with Ahmed Elsaid and Karim Elsaid (the Elsaids) executed a $5,500,000 note in favor of plaintiff Citibank secured by a first mortgage against the Spa, as well as mortgages against other properties (two in Hudson County and one in Monmouth County). Citibank was to be paid monthly interest at a rate of Citibank's prime rate plus .05%, with a balloon payment due on February 11, 1987.

The Mortgage Note and Security Agreement contained the following choice of law provisions:

This note is made and delivered in the Borough of Manhattan, City, County and State of New York, where all advances and repayments shall be made. The Maker agrees that this Note shall be construed in accordance with and governed by the laws of said State.

36.... this Mortgage, the Note and all other instruments, bearing even date herewith, in connection with the loan evidenced by the Note, have been executed and delivered in the Borough of Manhattan, City, County and State of New York. This Mortgage, the Note and said other instruments shall, in all respects, be governed, construed, applied and enforced in accordance with the [240] laws of the said State, except as to matters affecting title to Premises which shall be governed by the applicable laws of the State of New Jersey.

Citibank instituted foreclosure proceedings in the Chancery Division, Monmouth County, against Errico as well as the Elsaids on the mortgage when the parties failed to make the balloon payment on the maturity date. A judgment was entered in the foreclosure action and the sale of the Spa was ordered. However, the sale was stayed by the filing of a bankruptcy petition by the Elsaids. The stay was vacated by consent order of April 18, 1989 which also established that Citibank was entitled to $7,100,000 plus interest, fees and costs payable from the proceeds of the foreclosure sale. That order further provided that Errico and the Elsaids were not precluded from contesting the interest rate used by Citibank, and that Errico, as a second mortgagee, did not waive his right to object to confirmation of the sale.

A fair market value appraisal of the property was prepared in connection with the bankruptcy proceedings by Citibank's expert, Cushman & Wakefield, Inc., which indicated that as of February 3, 1989, the Spa's fair market value was $9,500,000. The Spa was sold at public auction on May 24, 1989, pursuant to the bankruptcy court order, to Citibank, the only bidder at the auction, for $5,900,000. Errico did not object to the auction price.^[1]

Citibank then sued in the Law Division seeking a deficiency judgment against Errico in the amount of $1,769,153.17.^[2] Errico moved to dismiss the complaint under R. 4:6-2(e), asserting a failure to state a claim upon which relief can be granted, and alleging that pursuant to New York law, which he asserted governed the transaction, no deficiency existed because he was [241] entitled to a $9.5 million credit for the fair market value of the property based on Citibank's own appraisal. After his motion to dismiss was denied on May 10, 1990, Errico filed an answer and demand for jury trial which contained an affirmative defense that no deficiency existed because the Spa's fair market value exceeded the debt claimed under the mortgage note.

Subsequently, Citibank moved for summary judgment arguing that (1) under N.J.S.A. 2A:50-3 Errico was not entitled to a fair market value credit in a commercial transaction; and (2) Errico's failure to object to the foreclosure sale price precluded him from claiming the fair market value credit. Errico cross-moved for summary judgment, alleging that New York law governed the deficiency proceeding based upon the choice of law provisions contained in the mortgage and note. In particular, Errico argued that New York's Real Property Actions and Proceedings Law (RPAPL) § 1371, subdivision 2, requires that when calculating a deficiency judgment, the debtor shall be credited with the higher of the fair market value as determined by the court, or the sale price. Thus, Errico claimed entitlement to a credit of $9,500,000, the appraised value of the Spa established for Citibank just three months prior to the foreclosure sale.

Citibank argued that New York's RPAPL provision is a procedural rule which is inapplicable to foreclosure and deficiency actions brought outside the State of New York, and that under general conflicts of law principles, New Jersey law governs the procedural aspects of the deficiency judgment proceeding.

After argument on the motions, summary judgment was entered in favor of Citibank. The judge's brief oral opinion addressed only the issue of which law governed the deficiency proceeding. Without distinguishing between the foreclosure action and the deficiency action, he concluded that New Jersey [242] law should apply because the property and foreclosure were in New Jersey.^[3]

The summary judgment order from which Errico now appeals was entered on September 11, 1990. On Errico's request, execution and levy upon the judgment were stayed pending appeal, subject to certain conditions.

Because the mortgage and note specifically provided that New York law was to govern the financing transaction, but not title matters, Errico relies on the deficiency judgment provisions in RPAPL § 1371, subdivision 2, which states:

Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus the amount owing on all prior liens and encumbrances with interest, plus costs and disbursements of the action including the referee's fee and disbursements, less the market value as determined by the court or the sale price of the property whichever shall be the higher. (Emphasis added)

Citibank contends that the New York fair market value credit provisions (sometimes referred to as the anti-deficiency provisions) is procedural, and, thus does not apply under conflicts of law principles, in a New Jersey forum. It also contends that regardless of the "substantive" or "procedural" designation, the New York legislature did not intend for RPAPL § 1371 to apply to property located outside of New York.

The determination of whether a fair market value credit is substantive or procedural is generally accomplished in accordance with the law of the forum state, here New Jersey. See H. Goodrich & F. Scoles, Conflict of Laws, § 81 (4th ed. 1964). Light v. Granatell, 171 N.J. Super. 557, 410 A.2d 266 (App.Div. 1979), does not support Citibank's argument that RPAPL § 1371, subdivision 2, is procedural, rather than substantive. Light only considered RPAPL § 1301, which was intended to [243] prevent multiplicity of suits on the same debt, and concluded that that section was procedural. Section 1371 deals with the extent of a debtor's liability, a substantive right, rather than how a creditor is to proceed in enforcing liability, the procedural aspect. We find persuasive the language in Gate City Federal Savings & Loan Ass'n v. O'Connor, 410 N.W.2d 448, 450 (Minn. Ct. App. 1987), which held a fair market value credit statute to be substantive:

A law is substantive if it will substantially affect the result. See Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). If North Dakota's law on deficiency judgments applies, the O'Connors may incur either no judgment, or a larger or smaller one. If Minnesota law applies, there is a certain, relatively large deficiency judgment. Since the respective deficiency judgment laws are significantly different and application of the statute will substantially affect the result, we hold that deficiency judgments are matters of substantive law. [410 N.W.2d at 450] (Emphasis added).

We consider the New York law deficiency provisions to be substantive, but in any event even if they were procedural, there is no bar to the parties agreeing to apply the New York deficiency provisions to the non-title aspects of the financing arrangements. Simply stated, there is no impediment to applying a contractual choice of substantive law provision as long as the public policy of the forum state is not violated. Kalman Floor Co., Inc. v. Jos. L. Muscarelle, Inc., 196 N.J. Super. 16, 481 A.2d 553 (App.Div. 1984), aff'd o.b. 98 N.J. 266, 486 A.2d 334 (1985); Crinnion v. The Great Atlantic-Pacific Tea Co., 156 N.J. Super. 479, 384 A.2d 159 (App.Div. 1978); Knollmeyer v. Rudco Industries, Inc., 154 N.J. Super. 309, 381 A.2d 378 (App.Div. 1977), certif. denied 77 N.J. 477, 391 A.2d 492 (1978). Thus, the parties may expressly provide that the validity and interpretation of the mortgage and note are governed by the substantive laws of a state other than New Jersey.

Citibank argues that to apply the anti-deficiency provisions of the New York statute would be against the public [244] policy of this State because N.J.S.A. 2A:50-2.3(a), as amended,^[4] contains a provision which exempts mortgage notes used in connection with mortgages for most business or commercial purposes from New Jersey's fair market value credit provision.

New Jersey's law now generally equates notes and bonds for the order of proceedings to collect a debt secured by a mortgage. N.J.S.A. 2A:50-2. It requires that in calculating a deficiency judgment a debtor shall be credited with the fair market value of the property. As a part of that law N.J.S.A. 2A:50-3 provides:

The obligor in any bond or note specified in section 2A:50-2 of this Title, with respect to any bond given after March 29, 1933, and with respect to any note given after the effective date of this amendatory act may file an answer in the action for deficiency, disputing the amount of the deficiency sued for. In that event both parties may introduce evidence as to the fair market value of the mortgaged premises at the time of the sale thereof in the foreclosure action, and the court, with or without a jury, shall determine the amount of such deficiency, by deducting from the debt secured the amount determined as the fair market value of the premises. If all parties to the action shall so agree, the court may accept as the fair market value of the mortgaged premises the value fixed by three appraisers, to be named by agreement of all the parties to the action, which agreement shall be evidenced by a stipulation to be filed in the action. (Emphasis added)

N.J.S.A. 2A:50-2.3 provides:

This act shall not apply to proceedings to collect a debt evidenced by a note and secured by a mortgage on real property in the following instances:

a. Where the debt secured is for a business or commercial purpose other than a two-family, three-family or four-family residence in which the owner or his immediate family resides;

b. Where the mortgaged property is other than a one-family, two-family, three-family or four-family dwelling in which the owner or his immediate family resides at the time of institution of proceedings to collect the debt;

c. Where a banking institution, savings and loan association or building and loan association, operating pursuant to State or Federal law, is the lender or his [245] assignee and the mortgage is not the primary security for the debt, as evidenced by (1) the financial condition of one or more persons directly or indirectly liable on the note, or (2) the giving of collateral in addition to the mortgage as security for the debt;

d. Where a banking institution, savings and loan association, building and loan association or licensed secondary mortgage lender, operating pursuant to State or Federal law, is the lender, and the mortgage is given to secure payment of a loan evidenced by a note, and where the mortgage so given is subject to the lien or liens of a prior mortgage or mortgages not held by such institution or association or by any holder in which such institution or association has an interest or with which such institution or association has an affiliation. (Emphasis added).

Errico argues that New Jersey law requires the court to consider fair market value in determining whether to grant the deficiency judgment, and that the statutory exception for commercial or business property does not preclude that result. Thus, Errico argues that we should conclude that the trial judge should have found that the Spa's fair market value exceeded and extinguished the personal debt based on Citibank's own appraisal, which reflected a fair market value in excess of the personal debt.

The enactment of Laws of 1979, chapter 286, was intended to eliminate the difference in treatment between bonds and notes secured by real estate mortgages so that a creditor would first have to look to the property in satisfaction of the debt, before personal liability was sought to be enforced on personal guarantees. See Central Penn National Bank v. Stonebridge, Ltd., 185 N.J. Super. 289, 304, 448 A.2d 498 (Ch.Div. 1982), and N.J.S.A. 2A:50-2. In Central Penn National Bank, the court did not limit the fair market value credit to residential property, but, in the case of a corporate debtor, imposed conditions, including a condition that "in the event of a suit for a deficiency, and upon objection to the sale of the mortgaged premises, defendants be permitted ... a fair market value hearing under the equitable deficiency proceedings pursuant to 79-83 Thirteenth Avenue v. DeMarco [44 N.J. 525, 210 A.2d 401 (1965)]...." 185 N.J. Super. at 312, 448 A.2d 498. The Chancery Division judge considered the fact that the secured debt in [246] the matter before him was for business or commercial purposes and fell within the exception of N.J.S.A. 2A:50-2.3(a) and (b). Id. at 304, 448 A.2d 498.

The judge in Central Penn National Bank clearly did not consider that the application of equitable principles in resolving that case conflicted in any way with the statute. Nor do we find any violation of public policy here in allowing the parties to contract for the application of New York law. The exceptions in N.J.S.A. 2A:50-2.3 do not create the type of policy statement that precludes private agreements. This statute merely declares the extent to which the Legislature was able to agree on equating mortgage bonds and notes at that time.

The argument raised by Citibank that the New York legislature did not intend for its deficiency statute to operate extraterritorially is a make-weight argument under these circumstances. Under our federal-state system no state purports to enact any legislation to operate extraterritorially, unless there is a legislatively sanctioned compact with another state or states or, perhaps, a uniform act. Citibank's argument is without merit where parties contract to be bound by a law that has a reasonable nexus to the transaction.

The case before us differs markedly from Key Bank of Alaska v. Donnels, 106 Nev. 49, 787 P.2d 382 (1990), which we do not find persuasive in any event. There, the Alaska statute's anti-deficiency language was specifically limited to Alaska land. The parties had contractually agreed in the mortgage note that Alaska law would govern. However, they agreed in the deed of trust (the counterpart of a mortgage) that they would be governed by Nevada law, thus setting up a conflict. Under those circumstances, the court declined to apply Alaska's anti-deficiency statute.

Even in the absence of the contractual provision applying New York law, Citibank's argument that there is no entitlement to a fair market value credit in a deficiency action in New Jersey on a note where business or commercial property is [247] involved is not a correct statement of our law. Although N.J.S.A. 2A:50-2.3 was amended to exempt mortgages secured by notes for business and commercial properties from the fair market credit provision, we find nothing which precludes a court from applying equitable principles to impose a fair market value credit to prevent a windfall or where circumstances require equitable relief in the interests of justice. See Hudson City Savings Bank v. Hampton Gardens, Ltd., 88 N.J. 16, 438 A.2d 323 (1981); 79-83 Thirteenth Avenue v. DeMarco, 44 N.J. 525, 210 A.2d 401 (1965), and Morsemere Federal Savings & Loan Ass'n v. Nicolau, 206 N.J. Super. 637, 503 A.2d 392 (App.Div. 1986). As we have noted, the Chancery Division applied equitable principles in conditioning relief on a fair market value hearing in Central Penn National Bank v. Stonebridge, Ltd., supra (185 N.J. Super. at 311, 448 A.2d 498). An equity court has the inherent power to prevent a potential double recovery or windfall to a judgment creditor. Morsemere Federal Savings & Loan Ass'n, supra (206 N.J. Super. at 645, 503 A.2d 392). Morsemere recognized that the court has equitable powers to mold relief. Although the deficiency suit here was instituted in the Law Division, rather than the Chancery Division, under our constitution each court has the ability to fashion equitable remedies. N.J. Const. of 1947, art. VI, § 3, para. 4; Wojcek v. Pollock, 97 N.J. Super. 319, 325, 235 A.2d 58 (Law Div. 1967). See also Winberry v. Salisbury, 5 N.J. 240, 247, 74 A.2d 406 (1950). We also note that the property involved in 79-83 Thirteenth Avenue Ltd. v. DeMarco, supra (44 N.J. 525, 210 A.2d 401) (a case decided before the amendments to the deficiency statutes), was commercial property but nonetheless, the court noted the inherent unfairness of the situation and applied traditional equitable principles. Such principles were also followed in Central Penn National Bank, decided after the amendments, which likewise involved business property. This analysis is particularly apt where the evidence of the security value being in excess of the debt was derived not from the debtor, but from the creditor.

[248] We conclude that, in accordance with the agreement by the parties in the note and mortgage, New York law applies to the deficiency claim, and that alternatively, under the circumstances here, New Jersey law allows a deficiency hearing to preclude a windfall under general equitable principles. Accordingly, we remand for a deficiency hearing at which the fair market value of the property at the time of foreclosure sale shall be determined and the calculation of any credit to be allowed defendant in the deficiency action.

We reject Citibank's contention that Errico is precluded under the entire controversy doctrine from claiming a fair market value credit because he failed to object to the sale price in the bankruptcy court, as permitted by the bankruptcy court order. In the first place, a debtor is not required to object to a foreclosure sale price as a prerequisite for claiming a fair market value credit in a deficiency suit under N.J.S.A. 2A:50-3. McCloskey v. M.P.J. Co., 85 N.J. Super. 573, 575, 205 A.2d 469 (Law Div. 1964). Although the foreclosure judgment sets the amount due on the debt and may be res judicata among the parties, it is not determinative as to the debtor's liability for a deficiency in a separate suit. See Central Penn National Bank v. Stonebridge, Ltd., supra (185 N.J. Super. at 302, 448 A.2d 498). A claim that no personal liability exists, e.g., that the fair market value of the property exceeds the mortgage debt, is a personal defense which is properly asserted in the deficiency action. See N.J.S.A. 2A:50-3. To assert it in a foreclosure proceeding would be premature. Central Penn National Bank, supra (185 N.J. Super. at 310, 448 A.2d 498). In addition, although the bankruptcy court ordered sale of the Spa, it did not have exclusive jurisdiction over the property and certainly did not have jurisdiction in the deficiency suit instituted by Citibank against Errico. See 28 U.S.C.A. § 1334(b); Matter of Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990). In our view, the deficiency claim is independent of the bankruptcy proceeding for entire controversy doctrine purposes.

[249] Likewise, a defense to personal liability on the note by virtue of a claimed fair market value credit is not germane to either the foreclosure action or the bankruptcy matter. The entire controversy doctrine does not bar Errico's claim here. See Ayers v. Jackson Tp., 202 N.J. Super. 106, 493 A.2d 1314 (App.Div. 1985), mod. 106 N.J. 557, 525 A.2d 287 (1987); Zaromb v. Borucka, 166 N.J. Super. 22, 398 A.2d 1308 (App.Div. 1979). Since the deficiency cause of action did not accrue until after the foreclosure proceeding, and until the property was sold for less than the amount owed on the note, there can be no bar by virtue of the entire controversy doctrine. Indeed, it might equally be argued that if Errico were barred by the entire controversy doctrine, Citibank's own deficiency claim would be barred because it had not been asserted in the foreclosure action. Obviously, neither party is barred because the involved claims could not have been presented earlier. See Viviano v. CBS, Inc. 251 N.J. Super. 113, 128-129, 597 A.2d 543, 551 (App.Div. 1991).

Errico also argues that Citibank's "wholly conclusory affidavit as to the balance allegedly due under the Note," without any supporting documents or computations, does not suffice to establish the amount due. The affidavit submitted by Citibank states that as of April 1, 1990, it was entitled to a $2,345,409 deficiency judgment. We recognize that the issue was not raised below, and hence need not be considered by us. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973). Nevertheless, because of the circumstances here, where Citibank submitted a fair market value appraisal which exceeded the amount due on the mortgage, and the deficiency action was decided on a motion for summary judgment which addressed only the issue of which law governed and not the amount due or the deficiency procedure itself, the interests of justice are best served by remanding for a hearing to determine the amount of the deficiency, if any.

Because it was not a question of allowing the debtor to file an answer under N.J.S.A. 2A:50-3 to dispute the amount due in [250] the deficiency action, but merely allowing the debtor to use the creditor's own appraisal figures, no delay or extended hearing is required. On a remand Citibank must prove the amount due and the parties may agree to an appraisal procedure, perhaps with the designation of three appraisers, as set forth in N.J.S.A. 2A:50-3, to determine the value of the security in the creditor's hands so that there may be an expeditious determination of any deficiency.

In light of our determination we need not address Errico's contention that Citibank should be estopped from arguing that New York law applies because its pleadings and briefs filed in the foreclosure action sought the application of New York law.

We reverse the order granting summary judgment and remand for a hearing to determine the amount of the deficiency, if any, and the allowance of a fair market credit under equitable principles to the extent that the fair market value at the time of the foreclosure sale exceeded the price for which the property was bid in by Citibank.

[1] We are informed that the other three properties subject to the mortgage were of insufficient equity to yield a monetary return to Citibank and were not foreclosed.

[2] The deficiency complaint was originally filed in Passaic County. By consent order of September 13, 1989, venue was changed to Bergen County.

[3] Errico argues that the judge failed to make sufficient findings and conclusions under R. 1:7-4. Respondent in effect acknowledges this, but urges us to nonetheless decide the case on the record and the law.

[4] L. 1979, c. 286 § 13, effective May 1, 1980, amended by L. 1981, c. 333 § 1, effective December 14, 1981. Although not argued in this case, subsections b and c could also be applicable. Indeed, this section as written would appear to run counter to the purpose of the amendments by N.J.S.A. 2A:50-2 and 3 which purported to treat mortgages secured by notes the same as those secured by bonds. See Central Penn National Bank of Stonebridge, Ltd., 185 N.J. Super. 289, 304, 448 A.2d 498 (Ch.Div. 1982).

[395] Mayfield, Commander & Pound, William S. Mayfield, Constance E. Rodts, Atlanta, for appellant.

Morris, Manning & Martin, John F. Manning, Donald A. Loft, Ross A. Albert, Atlanta, for appellees.

MIKELL, Judge.

In the wake of their failed joint venture concerning a commercial property in Gwinnett County, CS-Lakeview at Gwinnett, Inc. (CS-Lakeview), and Simon Property Group, Inc., and its related entities (Simon) entered into a settlement agreement under which CS-Lakeview gained a right of first refusal should Simon obtain a third-party offer as to the Gwinnett property. When such an offer materialized, however, the parties differed as to the procedures to follow, and CS-Lakeview sued Simon and others for breach of contract and other claims. The trial court granted summary judgment to Simon on the ground that CS-Lakeview's right of first refusal was invalid under Delaware's rule against perpetuities, but allowed CS-Lakeview's unjust enrichment claim to go forward. Both parties now appeal. We conclude that none of CS-Lakeview's claims are viable. We therefore affirm in Case No. A06A1841 and reverse in Case No. A06A1842.

The relevant facts are not in dispute. In 1985, CS-Lakeview and the Simon Property Group, both of which are Delaware corporations, began a joint venture to develop 133 acres of land in Gwinnett County. Disputes arose, and Simon sued CS-Lakeview in Delaware Chancery Court in 1994. In the settlement agreement reached late the following year, Simon received the Gwinnett property, while CS-Lakeview retained a right of first refusal under which it could match any "bona fide" offer received "at any time after November 30, 1995." Among other things, the settlement agreement provided that the parties would "take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of [the] Agreement" and that it was "subject to and construed in accordance with the laws of the state of Delaware."

In May 2000, Simon gave CS-Lakeview notice that Retail Development Partners (RDP) had made a "bona fide" offer of $5.5 million for the Gwinnett property. When CS-Lakeview asked for additional information, however, Simon reported that it had not yet received a written offer on the property. To avoid litigation over CS-Lakeview's right of first refusal, Simon proposed an option agreement based on RDP's tentative price of $5.5 million. The parties negotiated a license under which CS-Lakeview would inspect the property to determine its prospects for development, [396] but failed to reach agreement on the remaining terms of the option agreement. On October 6, 2000, CS-Lakeview offered $3.85 million for the Gwinnett property.^[1] Soon afterward, Simon rejected this offer, although CS-Lakeview objected that its right had been ignored. In June 2001, Simon sold the Gwinnett property to RDP for the same $5.5 million price it had quoted to CS-Lakeview the previous October.

On March 1, 2002, CS-Lakeview filed a breach of contract action against Simon and associated entities. CS-Lakeview later added Chicago Title Insurance Company (CTIC) as a defendant, alleging tortious interference with contract, fraudulent conveyance, civil conspiracy and other claims. CS-Lakeview also sued RDP in federal court. The federal district court granted summary judgment to RDP on grounds including that the right of first refusal was void under Delaware's rule against perpetuities. After the Eleventh Circuit affirmed on other grounds, the trial court in this case revisited the choice-of-law issue on Simon's motion for summary judgment and also held that CS-Lakeview's right of first refusal was invalid because it violated Delaware's rule against perpetuities. The trial court denied Simon's motion as to CS-Lakeview's unjust enrichment claim, however.

Case No. A06A1841

1. CS-Lakeview first argues that the trial court erred when it granted summary judgment to Simon on its breach of contract claim. We disagree.

This case is governed by well-established conflict-of-law principles. Under OCGA § 11-1-105(1), "when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties."^[2] "Absent a contrary public policy, this court will normally enforce a contractual choice of law clause."^[3] As we have previously explained:

[A] contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears. Enforcement of a contract or a contract provision which is valid by the law governing the contract will not be denied on the ground of public policy, unless a strong case for such action is presented; mere dissimilarity of law is not sufficient for application of the public policy doctrine.^[4]

Applying these principles to this case, it is plain that the settlement agreement at issue here bears a "reasonable relation" to the state of Delaware and its laws. CS-Lakeview and Simon Property Group are both Delaware corporations, the settlement agreement ended a lawsuit filed in Delaware, and the parties chose to construe that agreement under Delaware law. As the Supreme Court of Georgia noted long ago as it enforced a note executed in Georgia but payable elsewhere:

To construe this note and mortgage as we have done works injustice to no one, but puts the parties where they manifestly intended to put themselves. . . . The contract being under our laws perfectly legal, [the defendant] cannot and ought not to expect the courts of this State to release him from his solemn and deliberate undertakings.^[5]

[397] Despite its own negotiated choice of Delaware law, CS-Lakeview argues that its right of first refusal is governed by and valid under Georgia law. Specifically, it asserts that the right, though a future interest in property, is exempt from Georgia's version of the Uniform Statutory Rule against Perpetuities, which "shall not apply to . . . [a] nonvested property interest . . . arising out of a nondonative transfer."^[6] A contractual right of first refusal is neither a property interest nor a "nonvested" version of the same, however. Instead, a right of first refusal is a personal and contractual right under Georgia law, and does not run with the land as to which the right is given.^[7]

It is true that Delaware law goes further than Georgia's in its pursuit of a policy favoring the alienability of land, as when Delaware disallows a right of first refusal with an unlimited duration.^[8] But this difference does not necessarily signify that such a right violates Georgia public policy. In Shiver v. Benton,^[9] for example, a co-tenant filed suit to enjoin a sale of property as in violation of a first refusal agreement without any explicit time limit.^[10] Our Supreme Court held that when a right of first refusal "is not tied to a fixed price method or some method of pricing which may not reflect true market value, but is conditioned upon meeting a sale price which the seller is willing to accept, [such an a]greement encourages the development of [a] property to its fullest potential."^[11] Since the right of first refusal at issue was "compatible with the policies of commerce and utilization of land," the Shiver court concluded that the right neither violated Georgia's rule against perpetuities nor acted as an illegal restraint on alienation.^[12]

Like the provision at issue in Shiver, CS-Lakeview's bargained-for right of first refusal allowed it to participate in the open market for the Gwinnett property by giving it a chance to buy at a price reached in that market. Georgia public policy does not bar such provisions. But we respect the parties' selection of Delaware law and conclude that Delaware law voids that right.^[13]

2. CS-Lakeview also contends that if its right of first refusal is invalid, the trial court erred in failing (a) to reform the settlement agreement so as to remedy the parties' mutual mistake in choosing Delaware law, which invalidates the right, in favor of Georgia law, which authorizes the right; or (b) to require Simon to execute a document agreeing to apply Georgia law. There is nothing in the record, however, to contradict the conclusion that the parties intended the right of first refusal to be of unlimited duration. As in Thomas v. Murrow,^[14] "[t]he question is whether or not the manner in which the parties reflected [their] intention"—here, the settlement provision containing the right of first refusal—"violates the rule against perpetuities."^[15]

Division 1 holds that the settlement provision does indeed violate Delaware's version of the rule. OCGA § 23-2-27 provides that "where the facts are all known and there is no misplaced confidence and no artifice, deception, or fraudulent practice is used . . ., [a [398] party's mere ignorance of the law] shall not authorize the intervention of equity." As Georgia courts have often held, then, the trial court did not err when it denied CS-Lakeview equitable relief for its mere ignorance of applicable Delaware law.^[16]

3. Finally, CS-Lakeview argues that the trial court erred when it granted summary judgment to CTIC concerning CS-Lakeview's claims for tortious interference and other wrongs. We disagree.

A plaintiff asserting tortious interference with a contractual relationship must show that the defendant "(1) acted improperly and without privilege; (2) acted purposely and with malice with the intent to injure; (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff financial injury."^[17]

The record shows that as a result of RDP's concerns about CS-Lakeview's right of first refusal, and in exchange for an agreement to indemnify CTIC against "any claims arising out of the [right of first refusal,]" Simon obtained title insurance from CTIC. There is nothing in the record, however, to support a finding that CTIC committed any wrongful act, including the inducement of Simon to breach CS-Lakeview's right of first refusal. By November 2000, Simon had decided to sell the Gwinnett property to RDP, whereas CTIC did not agree to issue its title insurance policy until June 2001. Like the trial court, the federal district court, and the Eleventh Circuit before us, we conclude that because CTIC could not have induced Simon's alleged breach, CS-Lakeview's claim for tortious interference, as well as its claims for civil conspiracy, punitive damages and fees arising from the same transaction, must therefore fail.^[18]

Case No. A06A1842

4. In the companion case, Simon cross-appeals from the trial court's denial of its summary judgment motion as to CS-Lakeview's unjust enrichment claim. The trial court held that because CS-Lakeview likely would not have agreed to the settlement agreement without the inclusion of its right of first refusal, a question of fact remained as to whether the invalidation of that right would unjustly enrich Simon. Simon now reasserts arguments made below that CS-Lakeview actually received its bargained-for right and that its unjust enrichment claim is time-barred.

Here, only one part of the settlement agreement has been held invalid, and the agreement contains a severability clause asserting that "[i]f any part or provision of this agreement should be held void or invalid, the remaining provisions shall remain in full force and effect." "A severability clause indicates the intent of the parties where the remainder of the contract can exist without the void portion."^[19] The law of unjust enrichment applies, moreover, only when there is no express contract between the parties.^[20]

We have held in Division 2 above that CS-Lakeview cannot turn to equity to reform the settlement agreement. It is likewise true, then, that it cannot obtain equitable compensation for any alleged unjust enrichment arising from the invalidation of a bargained-for term in that valid contract when it contains a severability clause.^[21] Finally, [399] even if the law of unjust enrichment were available to CS-Lakeview, its own complaint shows that it received the right it bargained for when Simon informed it of RDP's "bona fide" offer of $5.5 million for the Gwinnett property. For these reasons, we reverse the trial court's denial of Simon's motion for summary judgment on CS-Lakeview's unjust enrichment claim, and need not reach Simon's contention that this claim is time-barred.

Judgment affirmed in Case No. A06A1841 and reversed in Case No. A06A1842.

BLACKBURN, P.J., and ADAMS, J., concur.

[1] One of CS-Lakeview's business associates testified that no larger offer was made because the entity was in the "embarrassing situation" of not being able to obtain the larger amount.

[2] See also Lafitte v. Lawton, 25 Ga. 305, 308 (1858) (construing marriage settlement entered into in South Carolina concerning land in Georgia under South Carolina law); Daniel F. Hinkel, Pindar's Georgia Real Estate Law and Procedure, § 1-4 (6th ed.2004), p. 10 ("resort may be had to the law of other states in determining the intentions of the parties to contracts who resided in other states at the time of execution, even though so doing may incidentally affect title to realty in Georgia") (footnotes omitted).

[3] (Citations omitted.) Carr v. Kupfer, 250 Ga. 106, 107(1), 296 S.E.2d 560 (1982), citing New England Mtg. Security Co. v. McLaughlin, 87 Ga. 1, 13 S.E. 81 (1891).

[4] (Citations and punctuation omitted; emphasis supplied.) Nationwide Gen. Ins. Co. v. Parnham, 182 Ga.App. 823, 825(4), 357 S.E.2d 139 (1987).

[5] New England Mtg. Security Co., supra at 5-6, 13 S.E. 81.

[6] OCGA § 44-6-204(1).

[7] See Ricketson v. Bankers First Sav. Bank, 233 Ga.App. 11, 13-14(1), 503 S.E.2d 297 (1998); Hasty v. Health Svc. Centers, 258 Ga. 625, 373 S.E.2d 356 (1988).

[8] See Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1384-1385(III) (Del.1991).

[9] 251 Ga. 284, 304 S.E.2d 903 (1983).

[10] Id.

[11] Id. at 286(1), 304 S.E.2d 903.

[12] Id. at 287(1), 304 S.E.2d 903.

[13] See Stuart Kingston, supra (right of first refusal with unlimited duration violates Delaware's rule against perpetuities); see also Manderson & Assoc. v. Gore, 193 Ga.App. 723, 725(1), 389 S.E.2d 251 (1989) (honoring contract's choice of Alabama law concerning employment and stock agreements); Nationwide Gen., supra at 825-826(4), 357 S.E.2d 139 (honoring contract's choice of Texas law concerning claim under Texas insurance policy); compare Nasco, Inc. v. Gimbert, 239 Ga. 675, 676(2), 238 S.E.2d 368 (1977) (because validity of covenants not to disclose was a matter of Georgia public policy, trial court correctly disregarded contract's choice of Tennessee law).

[14] 245 Ga. 38, 262 S.E.2d 802 (1980).

[15] Id. at 39(2), 262 S.E.2d 802.

[16] Id.; see also Robbins v. Nat. Bank of Ga., 241 Ga. 538, 543-544(2), 246 S.E.2d 660 (1978).

[17] (Citation and punctuation omitted.) Atlanta Multispecialty Surgical Assoc. v. DeKalb Med. Center, 273 Ga.App. 355, 356(2), 615 S.E.2d 166 (2005).

[18] See id. (when one element of tortious interference fails, the entire claim fails); Nelson & Hill, P.A. v. Wood, 245 Ga.App. 60, 67-68(3), 537 S.E.2d 670 (2000) (granting summary judgment on punitive damages dependent on claim for breach of fiduciary duty).

[19] (Citations omitted.) Capricorn Systems v. Pednekar, 248 Ga.App. 424, 428-429(2)(d), 546 S.E.2d 554 (2001); see also OCGA § 13-1-8.

[20] See Cox v. Athens Regional Med. Center, 279 Ga.App. 586, 593(3), 631 S.E.2d 792 (2006).

[21] See id. (affirming dismissal of unjust enrichment claim when parties entered into valid contract); Capricorn, supra at 426-429(2)(a)-(d), 546 S.E.2d 554 (invalidating restrictive covenant, but enforcing employment contract containing severability clause); compare Imerman v. London, 255 Ga.App. 140, 564 S.E.2d 544 (2002) (refusing to find global settlement agreement severable without noting whether agreement had severability clause).

Appeal from Tama District Court; B. O. Tankersley, Judge.

Proponents of last will and testament appeal from an order overruling motion to strike objections filed to petition asking probate.

Reversed.

SMITH, J., MANTZ, C. J., and MULRONEY and HALE, JJ., dissenting.

[35 N.W.2d 659] Ward and Ward and Sheldon & Brown, all of Sterling, Ill., and Willard F. Russell, of Toledo, for appellant.

J. J. Ludens, of Sterling, Ill., and Thomas & Thomas, of Traer, for appellees.

[35 N.W.2d 660] HAYS, Justice.

Appeal from an order overruling a motion to strike objections to petition for probate of the alleged last will and testament of Mary E. Barrie, deceased.

Mary E. Barrie, domiciled in Whiteside County, Illinois, died owning real and personal property in Illinois and real property in Tama County, Iowa. The instrument in question was offered for probate in Whiteside County, Illinois. Although first admitted to probate, it was later denied probate after the Illinois Supreme Court had ruled that said instrument had been revoked by cancellation and that decedent died intestate.

Thereafter the instrument was offered for probate in Tama County, Iowa, by one of the beneficiaries named therein. To the petition for probate, decedent's heirs at law filed objections based upon the judgment of the Illinois Supreme Court, to the effect that the said last will and testament had been revoked. Objectors assert that this judgment is conclusive upon the Iowa Courts. Proponent's motion to strike said objections, for the reason that they do not constitute a valid basis for denying probate, being overruled by the trial court, this appeal was taken.

The instrument offered for probate was duly signed by decedent and witnessed by two witnesses. By the terms thereof, all property was to be converted into cash and distributed to the named beneficiaries, including appellants. When found, after the death of decedent, the instrument had the word ‘void’ written across its face in at least five places, including the attestation clause. Also, upon the cover and upon the envelope containing same, appears the word ‘void’ written with the name ‘M. E. Barrie’ and ‘Mary E. Barrie’. The Illinois Court found that the writing of the word ‘void’ on the instrument, as above related, constituted a revocation by cancellation within the purview of the Illinois Rev. Statutes 1945, Chap. 3, par. 197. This statute provides for the revocation of a will by ‘(a) by burning, cancelling, tearing, or obliterating it by the testator.’

No question is raised as to the due execution of the instrument, either under the Illinois or the Iowa Statutes. No question is raised as to the testamentary capacity of decedent, nor is it claimed by the objectors that there has been a revocation under the Iowa statute, Section 633.10, Code of 1946. The question before this court for determination may be stated thus, ‘Is the judgment of the Illinois Court, holding that said instrument had been revoked and that decedent died intestate, conclusive and binding upon the Iowa Courts?’

Section 604.3, Code of 1946, provides: ‘The district court of each county shall have original and exclusive jurisdiction to: 1. Probate the wills * * * of non-residents of the state who die leaving property within the county subject to administration, * * *.’ Decedent was a non-resident of the state and died owning property in Tama County which was subject to administration. Clearly the District Court of Tama County has original jurisdiction to probate this instrument unless the Illinois judgment has the effect of nullifying or modifying said statute. See In re Longshore's will, 188 Iowa 743, 176 N.W. 902; That this is in accordance with the recognized rule, see Section 469 American Law Institute, Restatement, Conflict of Laws, which states: ‘The will of a deceased person can be admitted to probate in a competent court of any state in which an administrator could have been appointed had the decedent died intestate’, and under Comment ‘C’ of said provision; ‘Probate in a state other than at the domicil can be had although the will has not been admitted to probate in the state of the decedent's domicil’. Also, see Annotation in 119 A.L.R. 491 and authorities cited therein.

Section 633.33, Code of 1946, provides: ‘A will probated in any other state or country shall be admitted to probate in this state, without the notice required in the case of domestic wills, on the production of a copy thereof and of the original record of probate’.

Upon the general question as to the validity, operation, effect, etc., of a will by which property is devised, there are certain well established and generally recognized rules, and which definitely differentiate [35 N.W.2d 661] between movable (personal) and immovable (real) property. We are only concerned with immovables, in the instant case. The general rule as stated in Story Conflict of Laws, 8th Ed., p. 652, is, ‘The doctrine is clearly established at the common law, that the law of the place where the property (speaking of real immovable property) is located is to govern as to capacity or incapacity of the testator, the forms and solemnities to give the will or testament its due attestation and effect.’ Volume 4, Page on Wills, p. 688, states the rule, ‘The general rule is that the validity, operation, effect, etc., of a will by which real property is devised is determined by the law of the place where the land is situated.’ Section 249 Restatement of Laws, states, ‘The validity and effect of a will of an interest in land are determined by the law of the state where the land is.’ Upon the specific question as to revocation of a will, Beals, Conflict of Laws, Vol. 3, p. 972 states, ‘The revocation of a will is governed by the law of the state of situs of the land.’ Restatement of the Law, Conflict of Laws, Section 250, says, ‘The effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is.’ See also 11 Am.Jur., Conflict of Laws, Sections 19, and 21. That Iowa recognized the above rule, see: Otto v. Doty, 61 Iowa 23, 15 N.W. 578;Olson v. Weber, 194 Iowa 512, 516, 187 N.W. 465, 467, 27 A.L.R. 1370, where we said, ‘It is the universal rule that title to real estate can be determined only in the forum in which the land is located. If this were not true, no landowner within that forum would ever be certain of his title. * * * The disposition of real property, whether by purchase or descent, is subject to the government within whose jurisdiction the property is situated.’ In re Estate of Warner, 209 Iowa 948, 229 N.W. 241;Scofield v. Hadden, 206 Iowa 597, 220 N.W. 1;Norris v. Loyd, 183 Iowa 1056, 168 N.W. 557;Ehler v. Ehler, 214 Iowa 789, 243 N.W. 591;Jackman v. Herrick, 178 Iowa 1374, 161 N.W. 97; 50 C.J.S.Judgments, § 898.

Under the above stated rule, Iowa courts are free to place their construction, interpretation, and sanction upon the will of a non-resident of the state who dies owning real property within the state, whether the will be admitted to probate under Section 604.3 or Section 633,33, Code of 1946, both supra, although it has been admitted to probate in the state of the domicil of testator. Otto v. Doty, supra; Lynch v. Miller, 54 Iowa 516, 6 N.W. 740; Norris v. Loyd, supra, Section 633.34, Code of 1946.

Does a different rule pertain where instead of being admitted to probate in the domicil state, probate is denied? We think not. It is generally held that the full faith and credit provision of the Federal Constitution, Section 1, Article 4, does not render foreign decrees of probate conclusive as to the validity of a will, as respects real property situated in a state other than the one in which the decree was rendered, nor does the doctrine of res adjudicata or estopped by judgment apply. Robertson v. Pickrell, 109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049, where the court said the probate established nothing beyond the validity of the will in that state, and while conclusive there, the full faith and credit clause and the act of Congress enacted pursuant thereto, did not require that they shall have any greater force and efficacy in other courts than in the courts of the state from which they were taken, but only such faith and credit as by law and usage they had there. Dibble v. Winter, 247 Ill. 243, 93 N.E. 145; Norris v. Loyd, Iowa, supra; McCormick v. Sullivant, 10 Wheat 192, 23 U.S. 192,6 L.Ed. 300.

While instances where the will disposing of real estate in another state, has been denied probate in the domicil state are few, and we find no Iowa cases upon this point, the question has been passed upon by courts of other jurisdictions. In the case of Doe ex dem, Pritchard v. Henderson, 2 Pennewill, Del., 553, 47 A. 376, 379, the court said, ‘While the Maryland court had full jurisdiction to find that the alleged will, so far as it related to the testator's personal property and her lands in Maryland (domicil state), was procured by fraud and undue influence, and that she was not of sound and disposing mind and memory, it had no jurisdiction whatever to make a conclusive determination as to these facts, or any other [35 N.W.2d 662] facts touching the validity or invalidity of the paper, so far as the same relates to the title to the land in Delaware.’ (Italics added.)

In Re Estate of Mary E. Barrie, 331 Ill.App. 443, 447, 73 N.E.2d 654, 656, where the question was as to the right of the county court to permit the removal of the original will in question from its files, the court said, ‘The title to and disposition of real estate either by deed or will is governed by the law of the State where the land is situated. Mary E. Barrie owned real estate located in Iowa, and the disposition of this real estate is governed by the laws of that State. Any order denying that will admission to probate in Illinois does not effect the title of her real estate located in any other state. * * *’ See also, McGehee v. McGhee, 152 Md. 661, 136 A. 905;McGehee v. McGehee, 189 N.C. 558, 127 S.E. 684.

Appellant places particular stress upon the case of Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 217, 131 A.L.R. 1018. The case is, in many respects, similar to the one at bar. In that case, testator was domiciled in Virginia and owned land in Florida. His will was denied probate in Virginia as an attested instrument, the Virginia Court holding that, though properly executed, it had, because of certain changes and interlineations, made subsequent to its execution, been revoked under the laws of Virginia. It was admitted, however, as a holographic will. Thereafter it was filed for probate in Florida. Objections were filed setting up the Virginia judgment as a bar to the Florida proceedings. The trial court upheld objectors and on appeal the judgment was reversed.

The court recognized and applied the general rule of lex loci rei sitae and held that the Virginia judgment did not operate extra-territorially and was not binding upon the Florida courts so far as the real estate in Florida was concerned. It said, ‘If the courts of Florida are precluded from determining the status of the Triplett will as to real estate in Florida, then the lex loci rei sitae is controlled by the Virginia decisions. The right to contest a will of real estate is not local but is incidental to the parties, the realty, and the jurisdiction where the latter is situated. It follows that when a testator executes a will devising lands in two or more states, the courts in each state will construe it as to the lands located therein as if devised by separate wills' (citing cases).

The instant case and the cited case may be different as to the facts attending the revocation. In the instant case, we assume that the acts committed by testatrix, and which constituted the revocation under the Illinois Statute, were done with intent to revoke, in view of such a finding by the Illinois Court. In the cited case, the finding of the Virginia Court upon this question does not appear.

We deem it to be immaterial to the deciding of this appeal whether the thing which constituted the revocation was by operation of law, the act done being incidental thereto, (such as a marriage when the law makes same a revocation of a prior will), or whether the act was done for the express purpose of revoking, as assumed in the instant case. The basis advanced for denying the jurisdiction of the Iowa Court is not the specific act of ‘cancelling’ but is the judgment of the Illinois Court that the instrument was revoked. As stated in Vol. 1, Page on Wills, p. 999, ‘A will which has been revoked is of no legal effect’, and if, under the laws of the state, the act done, or the situation which arises constitutes a revocation, it is, so far as said state is concerned, of no legal effect. To hold that an act which constitutes a revocation in one state is a revocation in another state where under the law the act does not constitute a revocation, is contrary to the general rule, which is stated in 57 Am.Jur. Wills, Sec. 493, to be, ‘Where a statute prescribes the method and acts by which a will may be revoked, no acts other than those mentioned in the statute are to operate as a revocation, no matter how clearly appears the purpose of the testator to revoke his will and his belief that such purpose has been accomplished’. See also 57 Am.Jur. Wills, Sec. 455; Restatement of the Law, Conflict of Laws, Sec. 250; Gay v. Gay, 60 Iowa 415, 14 N.W. 238,46 Am.Rep. 78. That the acts held to be a revocation in Illinois, do not constitute such in Iowa, see Sec. 633.10, Code of 1946; [35 N.W.2d 663] Blackett v. Zeigler, 153 Iowa 344, 133 N.W. 901, 37 L.R.A.,N.S., 291, Ann.Cas.1913E, 115; In re Will of Rutledge, 210 Iowa 1256, 232 N.W. 674.

Sec. 633.49, Code of 1946, provides: ‘A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided said last will and testament is in writing and subscribed by the testator’.

This statute has not been before this court, so far as the writer of this opinion can find. It is clearly a modification of the common law and should not be extended to include matters not clearly included therein. It specifically with the formalities in the execution of the will, and nothing more. No question of execution is here involved. That the legislature might have waived the common law rule, as applicable to revocations as well as to the formal execution, as it has done, cannot be denied. However the legislature has not seen fit to do so. See State ex rel. Ruef v. District Court, 34 Mont. 96, 85 P. 866, 6 L.R.A.,N.S., 617, 623, 115 Am.St.Rep. 510,9 Ann.Cas. 418. The statute is not applicable.

Assuming the instrument creates an equitable conversion of the realty into personalty, that fact is immaterial to the question before this court since the question presupposes the existence of a formally valid will executed by a competent testator. See Annotation 2 L.R.A.,N.S., 408, 457; Restatement of the Law, Conflict of Laws, Secs. 209, 244, and 249; Sec. 633.38, Code of 1946; Norris v. Loyd, 183 Iowa 1056 1061, 168 N.W. 557, 558, which states: ‘* * * An equitable conversion is a legal fiction, and is simply anticipatory of an actual conversion. There could be no actual conversion without a transfer of title, and there could be no legal transfer of title except in pursuance of Iowa law.’

We hold that the Illinois judgment denying probate to the will in question is not conclusive and binding upon the courts of this state, in so far as the disposition of the Iowa real estate is concerned. That the objections filed to the petition do not constitute a basis for denying probate of the will and the appellant's motion to strike should have been sustained. Reversed and remanded for an order in accordance herewith.

Reversed and remanded.

BLISS, GARFIELD, OLIVER, and WENNERSTRUM, JJ., concur.

MANTZ, C. J., and MULRONEY and HALE, JJ., join in dissent of Justice SMITH.

SMITH, Justice (dissenting).

I am unable to agree with the majority opinion. It perpetuates an anomalous and confusing legal situation which our own statutes seem clearly designed to remove and which judicial thinking should seek a way to avoid. The importance of the question involved justifies, even requires, a statement of the grounds of dissent.

Appellant has litigated in the state of decedent's domicile the very issue it presents here, viz.: Is the instrument in question her will or did decedent die intestate? The Illinois Court held there had been a revocation. In re Barrie's Will, 393 Ill. 111, 65 N.E.2d 433. Unfortunately the method of revocation adopted by decedent does not comply with our revocation statute though recognized in Illinois.

I. Appellant claims (and the majority opinion holds) the Illinois decision does not render the question res adjudicata here because, as to real estate, at common law the ‘lex loci rei sitae’ (the law of the place where a thing is situated) governs as to ‘the forms and solemnities' necessary to give a will ‘its due attestation and effect,’ citing Story Conflict of Laws, 8th Ed., 652, and other texts; and because, since decedent owned Iowa land, the question whether she had effectively revoked the instrument can be relitigated here and must be determined under our laws relating to domestic wills.

No contention is or could be made that this would be true if her Iowa property was personalty only. 15 C.J.S., Conflict of Laws, § 18f. The proposition is based squarely on decedent's ownership of real [35 N.W.2d 664] estate in Iowa. The distinction is significant of the historical situation (now nonexistent) out of which it arose-the fact that wills devising real estate were originally solely cognizable by courts of law, while testaments bequeathing personal property were within the exclusive jurisdiction of the ecclesiastical courts. In re Goldsticker's Will, 192 N.Y. 35, 84 N.E. 581, 18 L.R.A.,N.S., 99, 15 Ann.Cas. 66; Anno: 60 Am.Dec. 360. See also Conklin v. Egerton's Adm'r., N.Y., 21 Wend. 430, 436;Ellis v. Davis, 109 U.S. 485, 495, 3 S.Ct. 327, 27 L.Ed. 1006. The requirements necessary to give the former instruments validity as conveyances of real estate naturally became considered subject to the common law ‘lex loci rei sitae,’ while those which only bequeathed personalty were subject to or followed the rule of testator's domicile, ‘mobilia sequuntur personam,’-movables (personalty) follow the person.

The courts and text writers who adhere to this ancient distinction overlook the profound effect of modern probate statutes that have entirely eliminated any old differences in formal requirements and solemnities as to mode of execution (and revocation) and probate procedure between ‘wills of personalty’ and ‘wills of realty,’ as they were formerly referred to. We no longer speak of ‘wills of real estate’ as something apart or different from ‘wills of personal property.’ The term ‘will’ has come to include ‘testament.’ All must conform to the same statutory standards.

In 57 Am.Jur., Wills, § 938, the text writer says: ‘At common law, although a will of personal and real estate could be probated, such probate was not conclusive as to real estate. This rule was followed at an early period in some of our states and in some later cases, but in most jurisdictions the distinction * * * is no longer recognized and the probate of a will is equally conclusive as regards each class of property.’

Even some of the text writers cited in the majority opinion as supporting the common law rule indicate its subjection to statutory influence and modification. In 4 Page on Wills, 688: ‘At common law, if not modified by statute, the general rule * * * is that the validity, operation, effect, etc., of a will by which real property is devised, is determined by the law of the place where the land is situated.’ See also subsequent language to the same effect on page 689, section 1634. And on page 692 (section 1635) the same author points out the obvious objections to the common law rule and adds: ‘For these reasons the statutes of many states have modified the common law rule * * * and have made it analogous to the rule on the subject of testaments of personalty by providing that if the will of decedent is valid by the law of the jurisdiction where he was domiciled * * * it shall be valid to pass land anywhere.’ (All italics supplied.)

The text in 68 C.J. 626 (Wills, § 251), after announcing the common law rule, adds: ‘Where a statute has been enacted allowing wills executed in a foreign state or county to take effect or be probated if they are valid under the laws of such foreign state or country, or have been probated there, the validity of a will is to be tested by the law of the place of execution, as to property within the state in which such statute is in force, even though the will was not executed in conformity with the law of such state.’ (Italics supplied.) See also later text 68 C.J. 1242 (Wills, § 1100) where the lex loci rei sitae is said to apply ‘in the absence of a controlling statute,’ and not to apply in other states under statutes. Note 96.

In 11 Am.Jur., Conflict of Laws, § 172, after stating the common law rule ‘in the absence of local statutes to the contrary’ the author says it is competent for the legislature to change the rule and that frequently this is done indirectly ‘by the passage of statutes which permit the recording of authenticated copies of foreign wills, admitted to probate in the foreign jurisdiction. Whether such a statute has the effect of changing the common law rule * * * depends, of course, upon the terms of the statute,’ cit-Anno: 2 L.R.A.,N.S., 426. See also, Anno: 2 L.R.A.,N.S., 408, 424, et seq; and 6 L.R.A.,N.S., 617.

II. Our own statutes seem definitely to have done away with the rule of ‘lex loci’ (or ‘lex sitae’ as it is sometimes referred [35 N.W.2d 665] to) in determining whether a foreign decedent has died testate or intestate, or whether a given instrument is or is not his will.

It should be emphasized the rule is still valid in ascertaining what effect is to be given the instrument once it has been found to be a will. But we are not concerned here with the interpretation or construction or legal effect of the document in question. Before that question is reached it must first be established that it is in fact the will of Mary E. Barrie, which fact the Illinois courts have denied. Many of the cases cited by text writers in support of the rule relate to matters of construction and legal effect and not to the method of execution. We are concerned here only with the rule as applied to the ‘forms and solemnities' required in the execution and revocation of wills. The probate of a will determines nothing but what relates to factum. Home of the Aged of Methodist Episcopal Church v. Bantz, 106 Md. 147, 66 A. 701, 703, citing Ramsey v. Welby, 63 Md. 584, 586.

Our general statute of course grants the district court of each county ‘original and exclusive jurisdiction’ to probate the wills not only of residents of the state residing in the county, but also ‘of nonresidents of the state who die leaving property within the county subject to administration’. Section 604.3, Code 1946. And there are also general statutes prescribing the necessary formalities of witnessing, executing and revoking.

But these statutes must be read with others. Section 633.33 requires ex parte probate of a foreign will (that has been probated in a foreign state) ‘on the production of a copy thereof and of the original record of probate’ duly authenticated, all without regard to the manner of its execution. And section 633.49 expressly provides: ‘A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided said last will and testament is in writing and subscribed by the testator.’

None of our statutes differentiates between real and personal property. Whatever the form of property, the same formalities for executing and revoking are required in the case of domestic wills; and there is the same recognition of the validity of a foreign will probated or executed pursuant to the law of testator's domicile whether real or personal property is or is not affected.

I find no cases construing or citing Code, section 633.49, but there are decisions of other states as to the effect of comparable ones. Maryland has one, section 307, practically identical. It is discussed at length in Lindsay v. Wilson, 103 Md. 252, 63 A. 566, 567, 2 L.R.A.,N.S., 408. In speaking of the Maryland statute as it stood before the enactment of section 307, that opinion says: ‘We cannot understand, however, how any distinction can be made under this statute between real and personal property, since the act of 1884. The same formalities were required by that act in the execution of wills of personal property as in those of real estate * * *.’

Then referring to the effect of the subsequent law, equivalent in legal meaning to our section 633.49, the Maryland Court says: ‘Inasmuch as the Legislature provided in section 307 that ‘every will, and other testamentary instrument, made out of the state shall be held to be valid,’ if executed as therein stated' (i. e. ‘according to the forms required by the law of the place where the same was made’) ‘it cannot be said that some wills so made shall be valid, and others so made shall be invalid, without ignoring the express language of the statute.’

See also In re Gailey's will, 169 Wis. 444, 171 N.W. 945, hereinafter discussed.

In the face of our statutes it is difficult to see how we can hold the lex loci rei sitae determines the right of probate in this state of a document offered as the foreign will of a testator owning real estate in Iowa. By the express language of section 633.49 the law of his domicile or of the place where the will was executed must [35 N.W.2d 666] govern as to the manner of its execution. And where, in the jurisdiction of his domicile, probate has been granted or denied in proceedings in solemn form, we should hold the status to the instrument to be res adjudicata.

But one Iowa case is cited by appellant. It does not sustain the proposition contended for. See In re Longshore's Will, 188 Iowa 743, 176 N.W. 902, 905. That case concerned a purported will of an Iowa resident. It had been probated by original proceedings in Nebraska where decedent owned land. It was then sought to be probated in Iowa as a foreign will under what is now Code, section 633.33. We held this could not be done, saying: ‘Under authority and reason * * * we hold that the place of original probate is the place of domicile.’ The opinion points out the distinction between probate proceedings in the jurisdiction of testator's domicile and original proceedings elsewhere, holding the latter to be in rem and affecting only the property and rights in property in the jurisdiction where the proceedings were had. Lynch v. Miller, 54 Iowa 516, 6 N.W. 740, and Otto v. Doty, 61 Iowa 23, 25, 15 N.W. 578, cite the common law rule but were decided prior to our statute that is now section 633.49, and do not even discuss the statutes then in force.

The authorities from other jurisdictions cited by appellant and the majority opinion are not controlling here in the face of our statutes which clearly require application of the principle of res judicata, where probate has been allowed or denied in the jurisdiction of testator's domicile. There is language in In re Barrie's Will, 331 Ill.App. 443, 447, 73 N.E. 654, 656, which tends to support appellant's argument, but it is clear dictum by the Illinois (intermediate) Appellate Court, in releasing to appellant for its purpose here, the possession of the document presented here which the Supreme Court of Illinois had already held not to be a will. See In re Barrie's Will, 393 Ill. 111, 65 N.E.2d 433.

The McGehee v. McGehee cases, 152 Md. 661, 136 A. 905; and 189 N.C. 558, 127 S.E. 684 are cited. They involved a fact situation somewhat analogous to the one here but the question we are discussing was apparently never raised either in North Carolina or Maryland. No statutes are shown similar to our own. Decedent, a resident of South Carolina, left a will with but two witnesses, whereas three were required in that state. Probate was therefore denied in South Carolina and the estate there administered as intestate property. The will was later probated in North Carolina and ancillary administration taken out in Maryland. But no question of prior adjudication (by reason of the denial of probate in South Carolina) was urged in these other states. All parties seem to have acquiesced in the common law doctrine. No statutes comparable to ours are mentioned.

Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, is also cited. It concerned a will (with codicils) that had been admitted to probate in Virginia as testator's holographic unattested will. See Triplett's Ex'rs. v. Triplett, 161 Va. 906, 172 S.E. 162. The Virginia court had denied probate of the main will as an attested holographic will because of unattested alterations made in it by testator.

The Florida court held the Virginia decision as to attestation did not render the question res adjudicata in Florida, that the ‘Full Faith and Credit’ provision of the Federal Constitution did not apply, that the lex loci rei sitae controlled and that the will was effective to devise Florida real estate.

These cases merely repeat the common law doctrine and refer to no such statutory provisions as ours.

III. It is true of course that Code section 633.49 refers to execution and not directly to revocation; and we have here a document, held in Illinois to be non-testamentary, because of revocation and not because of any defect in original execution. In other words, we have an instrument not merely ‘executed’ but also revoked ‘without this state, in the mode prescribed by the law * * * of the testator's domicile’.

But revocation is merely the converse of execution. The power to execute implies [35 N.W.2d 667] the power to revoke. A will can no longer be said to be executed after it has been revoked. Whether an instrument is a will is determined not only by the manner of its execution but also by the manner of its attempted revocation. Both acts are a part of the testamentary process. It is unthinkable that our legislature intended to require recognition of the laws of another jurisdiction in the matter of one and not of the other.

In re Gailey's Will, supra, 171 N.W. 945, 947, the Wisconsin court was considering statute analogous to ours which directly referred only to the recognition of wills proved in another state, and not to the rejection of those whose probate had been refused because of revocation under the laws of the foreign jurisdiction. After holding these statutes had modified the rules of the common law and had committed to the courts of testator's domicile the primary determination ‘as to the form and mode of the execution of foreign wills devising real estate in Wisconsin’, that court said: ‘The determination of these questions legally and necessarily includes the inquiries by such foreign courts whether or not testator made a valid, will, and, if so, whether it had been legally revoked before his death, and such judgment of the courts in sister states is to be accepted here as fixing the status of the instrument propounded as a will * * * it results from this statutory modification of the common law that the question whether or not a purported will has been revoked is necessarily an inquiry in such foreign probate proceeding and is committed to the court of testator's domicile for determination under the law of his residence.’ (Italics supplied.)

The purpose of both Code sections 633.33 and 633.49 must have been to abolish or minimize confusion and conflict between states in the matter of handling wills. Foreign ownership of property has become common. Owners of property in different jurisdictions should not be required, in making and revoking their wills, to do more than comply with the law of their own domiciles, or with the law of the jurisdiction where the instrument is drawn or revoked. As said by one auther: ‘If a testator has any knowledge of the formalities of executing a will his knowledge is generally confined to the law of his own domicile, or to the law of the place where he makes his will, if he relies upon local advice; * * * It may not even be possible to obtain legal advice as to the formalities necessary, by the laws of some remote country, to the validity of a devise of land situate there.’ 4 Page, Conflict of Laws, 692 (Sec. 1635).

IV. I conclude we are required under Code section 633.49, in connection with other statutes I have cited, to determine the status of the offered instrument by the law of decedent's domicile. If there had been no determination of the question in Illinois the issue would of course have to be adjudicated in Iowa. The Iowa court, in that event, would have to construe and apply the Illinois statutes on execution and revocation and decide by that standard whether the document was the will of decedent.

But that issue has been adjudicated. The Illinois Court has spoken. The judgment of a probate court, within the scope of its jurisdiction, is conclusive upon the parties, just as is the judgment of any other court. 50 C.J.S., Judgments, § 605; 30 Am.Jur., Judgments, § 163; 68 C.J. 1240, 1241.

The fundamental error in the majority opinion is in assuming that the validity of an instrument offered as a foreign will, is to be determined by the same standard that would determine its status if offered as a domestic will. But the Iowa statutes establish a different standard without any differentiation between real and personal property. The lex loci rei sitae is in that respect changed. Code, section 633.49 is just as effective in its field as are our general statutes prescribing the forms and solemnities for the execution and revocation of domestic wills.

There is nothing sacrosanct about the ‘lex loci’ anymore than about any other common law rule. Our statute provides: ‘The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. [35 N.W.2d 668] Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.’ Code 1946, Section 4.2.

Undoubtedly our will statutes are in derogation of the common law in many respects, not least of which is the abolition of all differences between wills and testaments as regards the method of their execution. Code, section 633.49 is clearly in derogation of lex loci rei sitae as to execution of foreign wills. Its purpose is obvious. The majority opinion would construe it narrowly and technically by limiting the word ‘executed’ to its strict and more common meaning-the performance of the acts by which the instrument is brought into being, specifically the signing and witnessing of it according to statutory requirements.

But ambiguity, justifying interpretation of a statute is not simply that arising from the meaning of particular words. It includes such as may arise in respect of the general scope and meaning of the statute when all its provisions are examined. 59 Am.Jur., Statutes, § 226, citing Coosaw Min. Co. v. State of South Carolina, 144 U.S. 550, 563, 542,12 S.Ct. 689, 36 L.Ed. 537.

In a narrow sense a will is ‘executed’ when the potential testator signs it and it is duly witnessed according to statutory requirements. But a will is ambulatory and its final character is fixed only when its maker dies. It has been appropriately remarked that a will ‘is, in effect, reiterated as his (testator's) testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator's death.’ In re Kopmeier's Will, 113 Wis. 233, 89 N.W. 134, 136.

It is not a strained construction therefore to say that anything done to the instrument by the testator affecting its status as a will is to be considered in determining whether he has finally executed it. And when our statute speaks of a will ‘executed without this state, in the mode prescribed by the law’ of testator's domicile and provides that the instrument ‘shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state,’ we should construe it as requiring us to recognize the validity of a revocation by the testator, consummated in a mode recognized by the law of his domicile. Any other construction would render the statute impotent as to an important part of the very mischief it was plainly designed to remedy.

With apologies to the court and the profession for the (perhaps unnecessary) length of this dissent, I would affirm the decision of the trial court.

MANTZ, C. J., and MULRONEY, and HALE, JJ., join in this dissent.

[1036] Scotty G. Rozas, Lake Charles, for plaintiff-appellant.

H. Gayle Marshall, Camp Carmouche, Barsh, Hunter, Gray & Hoffman, Anna Merrill, Lake Charles, for defendant-appellee.

Before GUIDRY, DOUCET and LABORDE, JJ.

[1037] DOUCET, Judge.

This appeal presents the res nova issue of whether an olographic will rejected for probate by a New Mexico court based on its formal deficiencies, may be probated in a Louisiana court, where the deceased owned real property in Louisiana.

On April 10, 1978, John Henry Miller, Jr. died in Bernalillo County, New Mexico. He was survived by his widow, Rosa Mae Miller, and by an adopted daughter, Lucy Sondra Moss, a resident of Lake Charles, La.

A hand-written will was presented for probate in the District Court for Bernalillo County, New Mexico. That will was declared invalid by the New Mexico courts because it did not comply with the formal requirements of New Mexico law. An order of intestacy was issued and Rosa Mae Miller was appointed Estate Representative.

At the time of his death, John Henry Miller, Jr. owned an undivided 1/8 interest in 140 acres of land in Calcasieu Parish, Louisiana. Robert Mosbacher held a mineral lease on the property and was operating certain producing mineral wells. Royalty payments to Miller were suspended at the time of his death and payments to Miller's Estate were begun upon the naming of Mrs. Miller as administratrix in the New Mexico Succession.

On July 25, 1979, a letter was sent to Mr. Mosbacher's office by the legal representative of Lucy Sondra Moss, in which Ms. Moss asserted ownership of "a 1/7 interest in mineral production" held by the Estate of John Miller, Jr. Mosbacher continued to send the royalty interest to Mrs. Miller as administratrix of her husband's estate.

In July 1980, Lucy Sondra Moss filed a Petition for Possession with the 14th Judicial District Court for Calcasieu Parish. She alleged that John Henry Miller, Jr. had died intestate and asked to be named sole heir and to be placed in possession of the only asset located in Calcasieu Parish, the alleged 1/7 interest, later shown to be a 1/8 interest, in real property. On July 15, 1980, a judgment of possession was signed placing Lucy Sondra Moss in possession of the assets of the estate.

On March 31, 1982, Ms. Moss filed suit against Mosbacher, seeking to be declared the owner of all funds attributable to the Estate of Miller, in the hands of Mosbacher and requesting that all further payments be made to her. Mosbacher answered and convoked a concursus proceeding, alleging that Mrs. Miller might also have an interest in the property subject to the mineral lease. Ms. Moss and Mrs. Miller both answered the concursus proceeding claiming ownership of the funds at issue.

Rosa Miller then filed a petition in the Succession proceeding opened by Ms. Moss, seeking to probate the olographic will which had been submitted for probate in New Mexico and rejected because of formal deficiencies. She asked to be declared owner of the disposable portion of Miller's estate. Ms. Moss filed Exceptions of Res Judicata and No Cause of Action. After a hearing, the trial judge overruled the exception of Res Judicata and referred the exception of No Cause of Action to the merits. The Succession proceeding was consolidated for trial with the suit by Ms. Moss against Mr. Mosbacher.

After a trial on the merits, judgment was rendered holding the olographic will to be proved, and admitted to probate. The trial judge ordered the will probated and filed. The testamentary disposition of the estate was reduced as an excessive donation. The original judgment of possession was amended to place Ms. Moss in possession of the forced portion, or a 1/3 interest of Miller's estate in Calcasieu Parish. Mrs. Miller was put in possession of the disposable portion, or a 2/3 interest. The exception of no cause of action was denied.

Ms. Moss' claim against Mosbacher was dismissed with a finding that Mosbacher followed a reasonable procedure in making royalty payments.

Ms. Moss appealed the denial of the exceptions as well as the judgment. We affirm the trial court's judgment.

[1038] THE OLOGRAPHIC WILL

La.C.C. Art. 1588 provides that:

"The olographic testament is that which is written by the testator himself.

In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State."

At the trial, Ms. Moss attempted to prove, through the testimony of two of the deceased's sisters and a handwriting expert, that the will was not written by the hand of the testator, but was a forgery. The trial judge rejected this testimony in favor of the testimony elicited by counsel for Mrs. Miller from others of the deceased's siblings and a board certified forensic document examiner. The court stated as follows:

"The handwriting and signature of the will have been positively identified by at least two persons well acquainted with decedents handwriting and who had regularly corresponded with him. Ms. Janet Masson satisfied the court as to her expertise as a forensic document examiner and gave as her unqualified opinion the conclusion that the will in question was entirely written and signed by the decedent. The reasons for her conclusion were well corroborated by exhibits she prepared. The contrary testimony is not convincing."

It is well settled that:

"Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts."

Canter v. Koehring Company, 283 So.2d 716 (La.1973). A review of the record reveals no manifest error. Therefore, we will not disturb the trial court's credibility evaluation.

While the date 1/2/73 is ambiguous, extrinsic evidence was properly introduced to establish the date with certainty. Succession of Boyd, 306 So.2d 687 (La.1975). The date of the document was clarified by testimony from the decedent's siblings, who testified that the decedent had a history of military service and used the military system of dating wherein 1/2/73 would indicate February 1, 1973.

The will fulfills all the requirements for a valid olographic will under the Louisiana Law. As a valid olographic testament, there would have been no question as to the propriety of its admission for probate in Louisiana, had the New Mexico probate never been attempted. Furthermore, the New Mexico court is without power to render judgment as to rights to real property located in Louisiana. It is well settled that immovable property is exclusively subject to the law of the State in which it is located. The law of the jurisdiction in which real property is situated governs its acquisition, disposition and devolution. Succession of Martin, 147 So.2d 53 (La.App. 2nd Cir.1962), writ refused, 149 So.2d 763, 243 La. 1003 (1963). Therefore, the matter is not res judicata.

Contrary to the assertions of Ms. Moss, the Uniform Probate Law La.R.S. 9:2421-2425 applies to wills accepted for probate in foreign jurisdictions. The situation presently before the court is governed by the provisions of La.C.C. art. 1588. Under that article the will is valid although not made in Louisiana. Therefore, it was properly admitted for probate in Calcasieu Parish, the situs of the real property at issue. La.C.C.P. art. 2811.

CONCURSUS PROCEEDING

Ms. Moss contends that the concursus proceedings were not properly instituted since Mosbacher did not immediately deposit the disputed funds in the registry of the court. Deposit of the funds comprising the stake into the registry of the court [1039] is not a requisite of a valid concursus proceeding. La.C.C.P. art. 4658 provides that the stake may be so deposited, and that the deposit relieves the stakeholder of further liability. Mr. Mosbacher properly retained the fund in escrow, and later properly deposited them in the registry of the court. There is no provision for interest or penalties while the stake remains in the hands of the stakeholder. No damage was incurred by Ms. Moss as a result of Mr. Mosbacher's retention of the fund in escrow. There is no basis for an award of damages or penalties.

PENALTIES AND ATTORNEY'S FEES

Additionally, Ms. Moss seeks penalties and attorney's fees for non-payment of royalties under a lease. La.R.S. 31:137 et seq. of the Mineral Code provides for interest, penalties and attorney's fees for failure of a mineral lessee to make timely or proper payments to the lessor. The lessor must give written notice of the failure before judicial demand. The lessee then has thirty days to pay or to respond with a reasonable cause for non-payment.

Counsel for Ms. Moss first contacted Mosbacher in a letter dated July 25, 1979. He asked to be advised as to the status of the royalty payments held for the benefit of the Estate of John Henry Miller, Jr. On July 31, he was sent copies of the correspondence regarding Mr. Miller's estate and a copy of the Letters of Administration issued to Mrs. Miller. On July 22, 1980, counsel for Ms. Moss forwarded the original judgment of possession in which Ms. Moss was named sole heir of Mr. Miller. On July 22, 1980, Mosbacher wrote to Robert Poulson regarding the conflicting claims and informed him that the payments were suspended pending final determination. A copy was sent to counsel for Ms. Moss. On August 5, counsel for Ms. Moss again contacted Mosbacher asserting Ms. Moss' ownership of the funds. On September 22, 1980, counsel for Mosbacher responded, informing counsel for Ms. Moss of the existence of an olographic will and enclosing a copy. In short, Ms. Moss was well provided with reasonable cause for non-payment, even before an actual demand was made. Furthermore, it has been determined that Ms. Moss was not entitled to all she was claiming. Under the circumstances, we believe the trial court was correct in ruling that Ms. Moss is not entitled to interest, penalties, or attorney's fees.

COSTS

The costs as assessed by the judgment are proper under La.C.C.P. art. 1920 and La.C.C.P. art. 4659.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant, Lucy Sondra Moss.

AFFIRMED.

[399] Stanley E. Stettz, Robert E. Simpson, Jr., Easton, for appellant.

Edmund G. Flynn, Stroudsburgh, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

[400] OPINION

McDERMOTT, Justice.

We are called upon here to resolve a conflict of law that lays upon the probate of an estate. The conflict is between the law of this Commonwealth and that of our sister, the garden state of New Jersey. The controversy is directly stated: until 1978, the state of New Jersey denied an attesting witness to a will any benefit under that will. Pennsylvania did not. Nancy M. Janney, a Pennsylvania domiciliary, executed a will leaving her entire estate to her sister, Carolyn Case.^[1] Ms. Case was named executrix and subscribed as one of two attesting witnesses. The estate consisted of various assets situate in Pennsylvania, and realty located in New Jersey. During the course of administration, the property was sold. Distribution of the proceeds of the sale of that real property, the subject matter here, was excepted to by intestate heirs in the Orphans Court of Monroe County, Pennsylvania. They excepted alleging that since the testatrix died in 1974, the law then extant in the state of New Jersey denied an attesting witness benefit under the will. The exceptions were sustained, and an intestacy as to the proceeds of the New Jersey property was declared.^[2] Ms. Case, executrix and beneficiary appeals.^[3] We reverse.

That the law of New Jersey is entitled to full faith and credit is not in question here. What is in question is whether we should do what New Jersey no longer sees fit to do. The New Jersey statutes, N.J.Stat.Ann. 3A:3-6; N.J. [401] Stat.Ann. 3A:3-7, which voided beneficial devises to attesting witnesses, were repealed in 1978 when the New Jersey legislature passed the new Wills and Probate Reform Act of 1978. The 1978 act expressly states:

A will or any provision thereof is not invalid because the will is signed by an interested witness.

N.J.Stat.Ann. 3A:2A-7(b), effective September 1, 1978.

It is settled in this Commonwealth, as in New Jersey, that the intention of the testator is of primary importance, the lodestar, cornerstone, cardinal rule.^[4] So that that intention shall be given full expression, it can be denied only where it is unconstitutional, unlawful, or against public policy.^[5] Indeed, both New Jersey statutes, the old denying and the new allowing attesting witnesses benefit under a will, are articulations of that primary principle. The purpose of the old New Jersey law was to prevent fraud, perjury, and undue influence.^[6] None of these considerations are issues here.

That both jurisdictions, each in its own fashion, seek to preserve the integrity of testatrix's lawfully stated intention is clear. In the instant case, it was her sister and her sister alone to whom testatrix gave. We should fulfill that legislative intent, unless public policy or comity are offended.

The situs state of realty is generally entitled to severest deference. President Judge Marsh gave that deference with a reluctance that was a credit to his office.^[7] That the laws of the situs state should govern the devise of real property is a sound principle, articulated in both Restatements [402] of Conflict of Laws,^[8] and in the consistent statements of this Court.^[9] The policy served is the right of the situs state to regulate the transfer of title to land within its borders.^[10] Such is not an issue here; the land has been sold, the title assured and transferred. The situs state has not been denied its inherent right to regulate title. Only the proceeds are left to be distributed. In fulfilling the intention of the testatrix we neither offend the principle nor depart from the mainstream of accelerating liberalization of conflict of law principles. The present version of the relevant Restatement provision, § 239, now permits the law of the situs to be superseded by the law of the domicile state in situations such as the instant one, where the formalities comply with the requirements of the state of domicile.^[11] Indeed, New Jersey expressly accepts this rationale. In its New Code, the legislature has included this provision:

3A:2A-8. Choice of law as to execution

A written will is validly executed if executed in compliance with section 4 or 5 or its execution was in compliance with the law of the place where it was executed, or with law of the place where at the time of execution or at the time of death the testator was domiciled, had a place of abode or was a national.

N.J.Stat.Ann. 3A:2A-8, effective September 1, 1978. While this provision may not affect the probate of prior New Jersey wills, it lights the issue here.

No current policy of either state is offended by giving this testatrix her will. The will itself is not contested as an expression of testatrix' intent, a consideration that might have triggered the purpose and policy of the New Jersey [403] statute. The property passed without cloud or restraint, the proceeds are collected and in hand, and we devise them as was intended by she who owned them.

We do not doubt that the New Jersey courts, in probating a New Jersey will, may give only prospective effect to their new Code. We are not however, probating a New Jersey will, but rather a will that observed all the formalities of valid execution under our law.

Since New Jersey in its fitting wisdom does of its own law give effect to wills executed in compliance with the laws of domicile, we are doing what it does now. To do less would deny this testatrix her will for reasons neither applicable, nor now considered productive of their purpose.^[12] Accordingly, we reverse the decree of the Orphans Court.

ROBERTS, J., files a Concurring Opinion in which O'BRIEN, C.J., joins.

ROBERTS, Justice, concurring.

I concur in the result.

Testatrix, Nancy M. Janney, a Pennsylvania domiciliary, died on June 22, 1974, leaving a will executed in 1971. In her will, she named as sole beneficiary and executrix her sister, appellant Carolyn Case, who also served as one of the two attesting witnesses to the instrument. Among the assets in testatrix's estate was real property located in Bound Brook, New Jersey. During the course of administration this property was sold to a third party for cash. The net proceeds of the sale were included in appellant's First and Final Accounting of the estate.

On September 20, 1978, appellees, intestate heirs of testatrix, filed exceptions to appellant's Final Accounting and [404] Statement of Proposed Distribution. They argued that, because the law of the situs governs the testamentary disposition of real property and because the law in effect in New Jersey at the time of testatrix's death prohibited an attesting witness from receiving any benefit under a will, an intestacy existed with regard to the real property located in New Jersey. The Orphans' Court of Monroe County sustained appellees' exceptions and decreed that the proceeds from the sale of the real estate should pass through intestacy to appellees. Appellant's exceptions to the decree were dismissed, and this appeal followed.

Because the testamentary disposition of real property is governed by the law of the situs as a matter of comity, we must inquire into the nature and extent of New Jersey's present interests in testatrix's Bound Brook realty. That is, rather than automatically apply the law of New Jersey in effect at the time of testatrix's death, we must ask what a New Jersey court would do now if faced with appellees' exceptions to the distribution of the property pursuant to testatrix's intent as expressed in her Pennsylvania will.

Three considerations lead to the conclusion that New Jersey would give effect to testatrix's clear intent: first, as the property has been sold, the marketability of the New Jersey title is unimpaired; second, New Jersey no longer bars an attesting witness from benefiting under a will, N.J.S.A. 3A:2A-7; and third, New Jersey now considers valid a will executed in another state if the will is in compliance with the requirements of that state, regardless of any formal deficiencies which may exist under New Jersey law, N.J.S.A. 3A:2A-8. As no present New Jersey interest would be offended by the distribution to appellant of the proceeds from the sale of the Bound Brook property in accordance with testatrix's intent, the decree of the orphans' court must be reversed. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).

O'BRIEN, C.J., joins in this concurring opinion.

----------

[1] The will was executed in Pennsylvania, and complied with the relevant formalities.

[2] The exceptions filed by the intestate heirs were sustained in the Opinion and Order of President Judge Marsh, dated December 13, 1978. The exceptions and expanded exceptions of executrix were dismissed by President Judge Marsh in the Opinion and Order dated November 26, 1979.

[3] Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 722. This section was amended after the lower court's decision in this case. See 42 Pa.C.S.A. § 722.

[4] Estate of McAfee, 463 Pa. 250, 344 A.2d 817 (1975); In re England's Estate, 414 Pa. 115, 200 A.2d 897 (1964); In re Conway's Estate, 50 N.J. 525, 236 A.2d 841 (1967).

[5] In re Meyers' Estate, 416 Pa. 516, 206 A.2d 37, 38 (1965); In re Cannistra Estate, 384 Pa. 605, 121 A.2d 157 (1956).

[6] King v. Smith, 123 N.J.Super.Ct. 179, 302 A.2d 144 (Ch.Div. 1973), aff'd, 129 N.J.Super.Ct. 168, 322 A.2d 500 (App.Div. 1974).

[7] As President Judge Marsh stated in his opinion: "Plainly put, ours was a choice between what ought to be and what must be." Slip op. of Marsh, P.J., at 2 (opinion of November 26, 1979).

[8] Restatement of Conflict of Laws § 249; Restatement (Second) of Conflict of Laws § 239.

[9] Estate of Taylor, 480 Pa. 488, 391 A.2d 991 (1978); Dublin Estate, 375 Pa. 599, 101 A.2d 731 (1954).

[10] Dublin, 375 Pa. 599, 101 A.2d 731. See also, Restatement (Second) of Conflict of Laws § 239 comment b, and § 233 comment b.

[11] Restatement (Second) of Conflict of Laws § 239, comment e.

[12] Indeed, the New Jersey Superior Court, in a narrow, if proper reading of the former statute, concerning a New Jersey domiciliary, said exactly that in 1973: "The threat of perjury or undue influence thus appear inapposite. To avoid her legacy would be an artificial and technical result, contrary to preferable English and American authorities." King v. Smith, 123 N.J.Super.Ct. 179, 182, 302 A.2d 144, 146 (Ch.Div. 1973), aff'd, 129 N.J.Super.Ct. 168, 322 A.2d 500 (App.Div. 1974).

[1254] Gary W. Huston and Donald H. Partington of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.

David E. Hightower of Beggs & Lane, Pensacola, for Appellee.

BROWNING, J.

Appellant appeals an order denying her petition for an allocation of her share as a pretermitted spouse under section 732.301, Florida Statutes (1999). The trial court denied Appellant's petition on grounds that Florida law is inapplicable because the nondomiciliary testator did not provide in his will that Florida law would regulate the disposition of his Florida real property, as required by section 731.106(2), Florida Statutes (1999). The trial court concluded the law of the decedent's domicile, Colorado, including its pretermitted spouse statute, regulates the disposition of the decedent's Florida realty. Appellant argues the trial court's construction of section 731.106(2) impermissibly supersedes Florida's common law rule concerning disposition of in-state realty, disregards Florida's strong public policy to protect pretermitted spouses, and misconstrues the proper effect of this section and section 732.301. Appellee, the personal representative of the decedent's estate, argues Florida law is inapplicable based upon the plain wording of section 731.106(2), which controls the disposition of this case. We agree with Appellee and affirm.

Section 731.106(2), Florida Statutes (1999), in pertinent part provides:

(2) When a nonresident decedent who is a citizen of the United States or a citizen or subject of a foreign country provides in her or his will that the testamentary disposition of her or his tangible or intangible personal property having a situs within this state, or of her or his real property in this state, shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law.

Because such section has never been construed, we are compelled to do so. When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words. Aetna Casualty & Surety Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Applying that standard here, we find section 732.106(2) to be clear and unambiguous. It is clear the legislature intended that Florida law apply only to distribute a nondomiciliary testator's property situated in Florida when such testator's last will and testament provides that Florida law shall apply to his or her Florida property. Here, Appellant's decedent did not so provide, and the trial court correctly applied Colorado law to the decedent's Florida property.

Appellant's arguments for reversal that the trial court's determination violated the common law and public policy are without merit. This case does not hinge on an application of the common law or public policy considerations as advanced by Appellant. The common law `is changed where a statute clearly, unequivocally, and specifically prescribes a different rule of law from a common law rule, as does section 731.106(2). See McGhee v. Volusia County, 679 So.2d 729, 731 (Fla. 1996); Wal-Mart Stores, Inc. v. Mc-Donald, 676 So.2d 12, 17 (Fla. 1st DCA 1996). Public policy is determined by the legislature through its statutory enactments. See University of Miami v. Echarte, 618 So.2d 189, 196 (Fla.1993) ("The [1255] Legislature has the final word in declarations of public policy ..."); Collier v. Brooks, 632 So.2d 149, 157 (Fla. 1st DCA 1994) (it is the proper function of the Legislature not the district court of appeal, to announce public policy change). The legislature, by enacting section 731.106(2), determined the public policy on the issue before this court, contrary to Appellant's position.

Lastly, Appellant's argument that section 731.106(2) conflicts with, and is subordinate to, section 732.301, is also without merit. Because section 731.106(2) specifically addresses when Florida law should be applied to dispose of the assets of nondomiciliary testators, it controls over the general statute relating to the rights of a pretermitted spouse of a Florida domiciliary, as well as supercedes common law and public policy considerations. See McKendry v. State, 641 So.2d 45, 46 (Fla. 1994) (a specific statute covering a particular subject area always controls over a statute covering the same or other subjects more generally); Barnett Banks, Inc. v. Dep't of Revenue, 738 So.2d 502, 505 (Fla. 1st DCA 1999). Thus, unless a nondomiciliary testator expressly chooses Florida law to dispose of his or her Florida property, section 732.301 is inapplicable.

In summary, the decedent, a Colorado domiciliary, did not provide in his will that Florida law should be applied to distribute his Florida property. Accordingly, the trial court properly denied Appellant's petition for an allocation of her share of the decedent's property under section 732.301, because section 731.106(2) dictates that Colorado law applies.

AFFIRMED.

WEBSTER and POLSTON, JJ., concur.

[526] Thomas A. Mayer, of Fleck, Mather, Strutz & Mayer, Bismarck, for appellant Winnifred H. Erickson.

Timothy L. Kingstad, Williston, for appellees William K. Erickson, Frank L. Erickson, Steven Jay Erickson, and Theresa Ann Erickson.

VANDE WALLE, Justice.

Winnifred H. Erickson has appealed from: (1) a February 13, 1984, county court Order of Intestacy and Appointment of Personal Representative in Formal Proceedings; (2) an April 30, 1984, county court Order Approving Distribution and Determining Intestacy Status; and (3) a county court order dated July 30, 1984, denying her motion for a new trial. We affirm.

Robert W. Erickson and Winnifred were married in 1956 and were residents of Washington. This was a second marriage for each and no children were born of this marriage. Robert acquired mineral interests in North Dakota through the final decree of distribution of his father's estate in 1973. In 1974, Robert and Winnifred executed an "Agreement as to Status of Community Property After Death of One [527] of the Spouses"^[1] (hereinafter Agreement) reciting:

"I.

"That all property of whatsoever nature or description whether real, personal or mixed and wheresoever situated now owned or hereafter acquired by them or either of them shall be considered and is hereby declared to be community property.

"II.

"That upon the death of either of the aforementioned parties title to all community property as herein defined shall immediately vest in fee simple in the survivor of them."

Robert died on August 7, 1975. He was survived by Winnifred; William and Frank Erickson (born of his first marriage); Steven and Teresa Erickson (children of a deceased son, Richard, born of his first marriage); and two children born of Winnifred's first marriage, Donna Shilliam and Larry Erickson, both of whom Robert had adopted.

On January 10, 1984, William Erickson filed a petition for an adjudication of intestacy and appointment of a personal representative. On February 13, 1984, the county court issued an "Order of Intestacy and Appointment of Personal Representative in Formal Proceedings," in which the court found:

"2. The decedent died intestate; specifically, the Agreement as to Status of Community Property, executed by the decedent and Winnifred H. Erickson, on September 30, 1974, is not a testamentary instrument and has no effect on the disposition of property having a situs in North Dakota."

The order also decreed who Robert's surviving heirs were and appointed William Erickson personal representative.

On April 30, 1984, William Erickson filed a Petition for Determination of Testacy Status, Settlement and Confirmation of Distribution of an Intestate Estate by Personal Representative, dated April 13, 1984, in which he averred that: (1) he had filed an inventory and appraisement of the estate's North Dakota property; (2) the estate was in a condition to be closed; (3) Robert died intestate, survived by the following heirs, who were entitled to receive the indicated shares of the North Dakota property: Winnifred Erickson (an undivided 1/2); William Erickson, Donna Shilliam, Larry Erickson, and Frank Erickson (each an undivided 1/10); Steven Erickson and Teresa Erickson (each an undivided 1/20); (4) notice of the hearing resulting in the February 13, 1984, order had been sent to incorrect addresses for two of the heirs; and (5) the estate had been distributed as set forth above.

On April 30, 1984, the county court issued an Order Approving Distribution and Determining Intestacy Status, in which the court found that the estate was in a condition to be closed; again found that Robert died intestate and that the Agreement had no effect on the disposition of property having a situs in North Dakota; and confirmed the distribution of the estate by the personal representative.

On June 28, 1984, Winnifred moved for a new trial, which was denied in an order of July 30, 1984. The court determined that the motion was not timely because it was not filed within 60 days of the February 13, 1984, order. The court also determined [528] that the February 13, 1984, order was res judicata as to Winnifred because she did not timely appeal from it or move to have it vacated. Winnifred filed this appeal on September 28, 1984.

This appeal raises the following issues: (1) whether or not the appeal was timely; (2) whether or not the county court had subject-matter jurisdiction to determine the effect of the Agreement; and (3) whether or not the Agreement controls the disposition of the North Dakota real property.

William, Frank, Steven, and Teresa Erickson (appellees) assert that Winnifred's appeal should be dismissed because the time for appeal expired on April 13, 1984, which was 60 days from entry of the February 13, 1984, order.

Section 30.1-02-04 (UPC 1-304), N.D. C.C., provides:

"Practice in court.—Unless specifically provided to the contrary in this title or unless inconsistent with its provisions, the rules of civil procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this title."

Section 30.1-02-06.1 (UPC 1-308), N.D. C.C., provides:

"Appeals. Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments, and power of the appellate court, is governed by the rules applicable to the appeals to the supreme court in equity cases from the district court, except that in proceedings where jury trial has been had as a matter of right, the rules applicable to the scope of review in jury cases apply."

Rule 54(b), N.D.R.Civ.P., is applicable in probate proceedings. First Trust Co. of North Dakota v. Conway, 345 N.W.2d 838 (N.D.1984). The February 13, 1984, order was not calculated to finally resolve all claims among all the parties and did not contain "an express determination that there is no just reason for delay and... an express direction for the entry of judgment." Rule 54(b), N.D.R.Civ.P. Thus the order was "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Rule 54(b), N.D.R.Civ.P. The order, therefore, was not final. Anderson v. State, 344 N.W.2d 489 (N.D.1984). Without a Rule 54(b) certification, the February 13, 1984, order was not an appealable final order and thus Winnifred's time for appeal did not expire on April 13, 1984. Further, there apparently was no service of the order and Rule 4(a), N.D.R.App.P., requires a notice of appeal to be filed

"`within sixty days of the date of the service of notice of entry of the judgment or order appealed from' [emphasis added]. No notice of entry of the order has been served in this case. Therefore, the time for appeal technically has not yet commenced to run." In the Matter of Alf J. Bo, 365 N.W.2d 847, 850 (N.D.1985).

Appellees contend that the order of February 13, 1984, was final, binding and conclusive upon Winnifred; and that Rule 54(b), N.D.R.Civ.P., and rules relating to notices of entry of orders are inapplicable in probate proceedings. We are not persuaded. The order involved was subject to appeal under § 30.1-15-12 (UPC 3-412), N.D.C.C., and appellees have not shown that Rule 54(b), N.D.R.Civ.P., and Rule 4(a), N.D.R.App.P. (previously determined in Conway, supra, and Bo, supra, to be applicable in probate proceedings), are inconsistent with the provisions of Title 30.1 (UPC), N.D.C.C. See § 30.1-02-04 (UPC 1-304), N.D.C.C.

The running of the time for filing an appeal from the order of April 30, 1984, was terminated by Winnifred's timely motion for a new trial. Rule 4(a), N.D.R. App.P. When a motion for a new trial is timely filed, the time for appeal commences to run from service of notice of entry of an order denying the motion for a new trial. Rule 4(a), N.D.R.App.P. Winnifred's appeal was timely and she is not barred from [529] seeking review of the order of April 30, 1984.

Winnifred cites several cases and legislative reports and memoranda in support of her assertion that county courts have no equity jurisdiction and that the trial court therefore lacked subject-matter "jurisdiction to determine Winnifred's rights under the Agreement and her interest in real property in North Dakota under the Agreement." It is unnecessary for us to decide whether county courts have equity jurisdiction because the court below did not exercise any power unavailable to a court lacking equity jurisdiction.^[2] The court merely determined that Robert Erickson died intestate and that the Agreement "is not a testamentary instrument and has no effect on the disposition of property having a situs in North Dakota." That determination is not equivalent to rescission of a document or any other exercise of equitable jurisdiction.

Winnifred asserts that "the county court erred as a matter of law in deciding such Agreement was a nullity." She avers that Kuhn v. Kuhn, 281 N.W.2d 230 (N.D. 1979), is controlling and that

"Although Washington's community property laws do not directly transfer title to real property situated in North Dakota, the survivorship clause of the Agreement (independent of the transmutation of all joint and severally held property into community property), should be given effect in North Dakota by virtue of Kuhn v. Kuhn, supra."

We do not deem Kuhn to be controlling. That case involved a "family agreement" to divide and distribute the jointly and severally owned property of two parents, after the deaths of both of them, among their children. The parties to the agreement were the parents and their children. The purpose of the agreement was to avoid family disputes over the parents' estates. The agreement did not purport to create any property interests in either of the parents. It only distributed the parents' property to their children. This court held that the agreement was not a valid joint and mutual will because it was not executed in accordance with the statute controlling the execution of wills. We further held, however, that the agreement was valid as a contract to devise property and that one of the children was entitled to specific performance. The Agreement involved here, which purports to transform any property owned by Robert and Winnifred separately into community property [which it could not do, as North Dakota real property could "not thereby become imbued with the character of community property, North Dakota not being a community property state," Rozan v. Rozan, 129 N.W.2d 694, 707 (N.D.1964)], to the exclusion of their heirs, does not fall within the ambit of Kuhn, supra. Neither will we extend Kuhn so as to render this Agreement a valid contract to devise property. Nor can we give effect to the survivorship clause as a will because it was not executed with the formalities required of a will.

The other "family agreement" or "family settlement" cases relied upon by Winnifred are inapposite. They involved either (1) joint and mutual wills which became irrevocable at the death of one of the parties and were enforceable as contracts to devise property when one party had accepted and received the benefits of the joint will, or (2) agreements by a decedent's heirs, after the decedent's death, to divide property to carry out an intestate decedent's known intent or to settle probate litigation.

Winnifred's reliance upon Rozan v. Rozan, supra, is also misplaced. That decision involved a California divorce judgment determining that North Dakota real property was community property because it had been acquired with community-property funds and assets. This court determined that the property was not community property and that the California judgment could not transfer title to the property. We did, [530] however, determine that, because the North Dakota property was acquired with community-property funds, the parties "thereupon became owners in common of these properties, they having contributed equally toward such acquisition." Rozan v. Rozan, supra, 129 N.W.2d at 701. We then stated, 129 N.W.2d at 701-702:

"Our statute provides that,

"`When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.' 59-01-06(4) NDCC.

"The established facts in the instant action conclusively demonstrate that community funds and assets, one-half of which were owned by plaintiff and with her consent were used by Rozan to acquire the North Dakota mineral interests in his name, thus giving rise to a resulting trust pursuant to the statutory presumption whereby Rozan although the nominal owner of record of all such properties, nevertheless, held an undivided one-half of such purchased properties in trust for plaintiff; ... her one-half interest in and to such North Dakota properties resulted from her definite proportionate contribution towards its acquisition." [Citations omitted.]

Winnifred asserts that an implied trust should result in her favor by virtue of Rozan. We disagree. Unlike the case in Rozan Robert inherited the North Dakota real property at issue. No community funds or assets were used to acquire the property, and Winnifred did not contribute to its acquisition. Thus there is nothing "giving rise to a resulting trust pursuant to the statutory presumption." Rozan v. Rozan, supra, 129 N.W.2d at 701.

Relying on Mills v. Agrichemical Aviation, Inc., 250 N.W.2d 663 (N.D.1977), Winnifred also asserts that her "reasonable expectations" to succeed to all of Robert's property should be fulfilled.^[3] We do not believe that Winnifred could reasonably have expected that inherited North Dakota real property owned by an intestate decedent survived by children would pass to her to the exclusion of the decedent's children because of a Washington community-property agreement that does not imbue North Dakota real property with the character of community property; is not a will because executed without the formalities required of a will; and is not a contract to devise property. The legal effect of a conveyance is determined by the law of the state of the situs of the land. Rustad v. Rustad, 61 Wash.2d 176, 377 P.2d 414 (1963); In re Gulstine's Estate, 166 Wash. 325, 6 P.2d 628 (1932); 15A Am.Jur.2d, Community Property § 13.

Title 30.1 (UPC), N.D.C.C., applies to "property of nonresidents located in this state." Section 30.1-02-01 (UPC 1-301), N.D.C.C. "Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this title." Section 30.1-04-01 (UPC 2-101), N.D.C.C. We conclude that the county court did not err in determining that the Agreement had no effect on the disposition of Robert's North Dakota real property.

The orders appealed from are affirmed.

ERICKSTAD, C.J., LEVINE and MESCHKE, JJ., and PEDERSON, S.J., concur.

PEDERSON, S.J., sitting in place of GIERKE, J., disqualified.

[1] Washington is a community-property state. Agreements as to status of community property after death of one of the spouses are recognized by statute, as are definitions of separate and community property. See RCW §§ 26.16.010, 26.16.020, 26.16.030, and 26.16.120. For the effects of community property and agreements as to status of community property in the administration of estates, see RCW §§ 11.02.090 and 11.04.015. For the scope and effect of such agreements, see In re Estate of Verbeek, 2 Wash. App. 144, 467 P.2d 178 (1970); Neeley v. Lockton, 63 Wash.2d 929, 389 P.2d 909 (1964); and Volz v. Zang,113 Wash. 378, 194 P. 409 (1920).

Because we conclude that the Agreement has no effect on the disposition of Robert's North Dakota real property, we find it unnecessary to determine the Agreement's effect in Washington.

[2] For a discussion concerning the jurisdiction of the county court and the equity jurisdiction of the county court with respect to a constructive trust, see Binder v. Binder, 366 N.W.2d 454 (N.D. 1985), released after this case was submitted on oral argument.

[3] The doctrine of "reasonable expectations" was adopted by only two members of the court in Mills. Three justices concurred specially. See 250 N.W.2d 673. As noted in Nunn v. Equitable Life Assur. Society, Etc., 272 N.W.2d 780, 786 n. 1 (1978), the members of this court "have disagreed as to the applicability" of the doctrine.

[57] David M. Swope and John K. Mangum, Salt Lake City, for plaintiff and appellant.

B.L. Dart and John D. Parken, Salt Lake City, for defendant and respondent.

DURHAM, Justice:

The plaintiff has appealed from a divorce decree, claiming error in the trial court's award to defendant of an interest in Pennsylvania real property and of alimony.

The parties were married in 1956 and separated in 1972. In 1977, divorce proceedings were commenced by the plaintiff in Pennsylvania, then the domicile of both parties. Thereafter, plaintiff moved to Utah for employment reasons and, becoming dissatisfied with the length of time being consumed by the Pennsylvania litigation, sued defendant for divorce in Utah in 1979. The trial court awarded plaintiff a Utah residence with equity of $49,000, stock worth approximately $58,700, and his retirement benefits with Sperry Corporation worth $85,008. Defendant was awarded a Pennsylvania residence with equity of $62,000, stock worth approximately $53,725, her own retirement benefits totaling $6,567, and alimony in the lump sum amount of $18,000 to be paid at the rate of $500 per month from and after September, 1980.

Plaintiff's first contention is that the trial court erred in awarding plaintiff all of the parties' interest in the Pennsylvania property, claiming that said award was contrary to Pennsylvania law, which should be binding on the Utah courts. In support of this claim, plaintiff cites the general rule that questions dealing with title to real [58] property are determined by the law of the situs. 16 Am.Jur.2d, Conflict of Laws, § 26 (1979). In this case, he claims that Pa. Stat. Ann. tit. 68, § 501 (Purdon, as amended), should have been applied by the Utah court:

Whenever any husband and wife, hereafter acquiring property as tenants by the entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the proceeds divided between them.

This statute may be construed in one of two ways: either it determines the title to real property which is part of the marital estate in a divorce proceeding, or it directs how the Pennsylvania divorce courts shall divide and distribute a particular type of marital asset, namely property held as tenants by the entirety. Under either construction, plaintiff's claim that the Utah courts are required to apply the statute is mistaken. If the effect of the statute is to determine title, it is clear that the courts of Utah are without power or jurisdiction to directly affect title to property located in Pennsylvania. Noble v. Noble, 26 Ariz. App. 89, 546 P.2d 358 (1976); Burton v. Burton, 23 Ariz. App. 159, 531 P.2d 204 (1975); Barber v. Barber, 51 Cal.2d 244, 331 P.2d 628 (1958); 27 Am.Jur.2d, Equity § 17 (1966); 34 A.L.R.3d 962 (1970). Thus, the trial court could not apply Pennsylvania law as plaintiff claims it ought to have done if the effect of its ruling is to determine title. On the other hand, if the statute merely controls the division of marital property between the parties to a divorce, it is equally clear that Utah law governs such equitable division where the Utah courts properly have jurisdiction over the parties. § 30-3-5, Utah Code Ann. (1953). Further, it has been held in the majority of American jurisdictions that the equitable powers of divorce courts extend to the award and disposition of real property in other states insofar as the parties' interests therein are concerned. See cases annotated in "Power of Divorce Court to Deal with Real Property Located in Another State," 34 A.L.R.3d 962, § 4 (1970). In Barber v. Barber, supra, cited by plaintiff in his own brief, the California Supreme Court said:

It is settled in California that a court having jurisdiction of the parties may adjudicate their rights to land located in another state and that the adjudication is res judicata and is to be accorded full faith and credit in the situs state regardless of whether the decree orders execution of a conveyance. [Citations omitted.] Although such a decree cannot in itself change or determine title, and while a subsequent action for that purpose must be brought in the situs state, an adjudication, for example, that one of the parties is entitled to the property is binding in the subsequent action.

51 Cal.2d at 247, 331 P.2d at 630. This result is predicated on the basic rule that a court of equity, acting by virtue of personal jurisdiction over a party may compel compliance with its orders to convey out-of-state real property. See generally 27 Am.Jur.2d Equity § 17 (1966).

Thus, the provision of the trial court's decree in this case which awards the house and real property in Pennsylvania to defendant is a legitimate exercise of its equitable powers to determine the rights of the parties to that property. Defendant may enforce that award by application to the Utah courts for an order of conveyance directing plaintiff to comply, and for contempt sanctions if he refuses.

Plaintiff also complains that the trial court's award of alimony in this case was an abuse of its discretion. The record shows a marriage of twenty-four years, although the parties separated after sixteen, and four children raised primarily by defendant. It also demonstrates a substantial earning capacity in plaintiff, and a modest one in defendant, with commensurate retirement benefits. Before consideration of the alimony award, it shows plaintiff receiving approximately $192,000 in marital property (including his retirement benefits), and defendant approximately $122,000 (including her retirement). It is logical to [59] assume that the court's alimony award was designed, at least in part, to compensate for the great disparity in earnings due to defendant's many years out of the work force, as well as for the somewhat disproportionate distribution of the parties' property. The award of a lump sum of $18,000, to be paid at the rate of $500 per month, does not render the respective positions of these parties so unequal as to demonstrate a punitive purpose or to constitute an abuse of discretion. Finally, plaintiff's contention that Pennsylvania law should have controlled on the alimony question is without merit, as discussed above.

This Court is also asked to find error in the trial court's failure to award plaintiff property equivalent to that which he claims to have brought into the marriage. The record discloses a dispute about the amount of the parties' respective separate contributions, and plaintiff failed to offer any corroborative proof as to the amounts he claimed by his testimony. In any case, a comparison of the cash value of property awarded to each party shows that plaintiff received approximately $70,000 more in value than defendant, before alimony, a figure which is nearly twice what he claimed he brought into the marriage in separate assets.

It is well settled that this Court will not disturb the trial court's distribution of property and award of alimony in a divorce proceeding unless a clear and prejudicial abuse of discretion is shown. Despain v. Despain, Utah, 610 P.2d 1303 (1980); Jorgenson v. Jorgenson, Utah, 599 P.2d 510 (1979); Kessimakis v. Kessimakis, Utah, 580 P.2d 1090 (1978). In this case, there is no basis for substituting this Court's judgment for that of the trial court; no abuse of discretion has been shown.

The judgment of the trial court is affirmed. Costs to respondent.

HALL, C.J., and STEWART, OAKS and HOWE, JJ.

[723] Stone, Agerton, Parker & Snakard, Fort Worth, O. P. Newberry, Jr., and James A. McMullen, III, Fort Worth, of above firm, for petitioner.

Fannin & Fannin, Fort Worth, for respondent.

NORVELL, Justice.

This is a suit to enforce an Oklahoma equitable decree ordering James Dorsey McElreath to convey lands in Texas to Evelyn Ann McElreath. Both courts below refused the relief prayed for. 331 S.W.2d 375.

The decree sought to be enforced was entered in a divorce suit between the parties both of whom were residents of Oklahoma and Oklahoma was their matrimonial domicile. This is not a case wherein one of the parties moved from Texas to Oklahoma for the purpose of establishing a [724] residence for divorce purposes. Neither is this a case wherein either party because of residence in Texas had acquired property rights under and by virtue of the marital laws of this State. We are not called upon to pass upon the hypothetical rights of hypothetical persons in the situations mentioned. It appears without dispute that the order is valid and enforceable in Oklahoma and has been affirmed by the court of last resort in that State. See, McElreath v. McElreath, Okl., 317 P.2d 225. However, after the decree had been entered, but before the Oklahoma court could enforce its order, McElreath crossed the Red River and now asserts sanctuary in Texas.

Insofar as marital property is concerned, the laws of Oklahoma are different from those of Texas. However, upon the dissolution of a marriage, Oklahoma like Texas seeks to provide equitable distribution of properties and property rights between its residents. Quite obviously one authority must settle these rights if anything approaching fairness and equity is to be secured. Jurisdiction for such purpose rests with the courts of the matrimonial domicile which in this case, is the State of Oklahoma. A competent court of that state having acted, and presumably having made a proper and equitable adjustment of the property rights of the divorcing parties, it is anomalous to say the least, to assert that the work of that court may be set at naught by the defendant's crossing the state line and coming to Texas. There is no doubt but that had he remained in Oklahoma, the decree could and would have been enforced by contempt proceedings. As a matter of justice, good order and common sense, the Oklahoma decree should be enforced in Texas, unless contrary to some well defined public policy of this State. There is something incongruous and out of keeping with the concept of orderly processes to tolerate a situation wherein solemn court decrees may be flouted by playing hop-skin with state boundaries. This case involves Oklahomans and it is not against the public policy of Texas for Oklahoma to maintain a different system of property ownership for its residents than that provided by Texas for Texans.

Article 4638 of Vernon's Ann.Tex.Stats. is a part of Chapter 4, Title 75 of the Revised Statutes relating to Divorce. It reads as follows:

"The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate."

This article and the chapter of which it is a party apply only to Texas courts pronouncing decrees of divorce in suits involving Texas residents. Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, Tex.Sup., 331 S.W.2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage. We expect other states to recognize our system of marital property ownership, so should we respect their schemes or property ownership and attendant plans for the adjustment of property rights upon the dissolution of a marriage. Texas public policy does not relate to and is not concerned with the settlement by Oklahoma courts of marital property problems which arise between Oklahoma citizens. Article 4638 establishes a policy governing Texas courts in cases involving divorce and property rights based upon the marital laws of this State. It does not purport to establish a public policy relating to land tenure by nonresidents.

[725] The respondent here was a resident of Oklahoma when divorced. He possessed no rights in Texas property under the marital laws of this state. He had no homestead right in and to the property involved, Article 16, § 51, Texas Constitution, Vernon's Ann.St., Article 3833, Vernon's Ann.Tex. Stats., 22 Tex.Jur., Homesteads, §§ 31, 32, or anything similar thereto.

The matter of enforcing the equitable decrees of one state which affect lands in another state has been the subject of much writing, largely occasioned by a few unsatisfactory court decisions. Only a small portion of this legal literature need be noticed. Most of the authorities discuss the problem of the extra-territorial effect of an equitable decree from the standpoint of the full faith and credit clause of the United States Constitution, Article 4, § 1. That doctrine need not be adverted to here. It is similar, but much broader in scope than the doctrine of comity. However persuasive and helpful, the decisions relating to "Full Faith and Credit" may be, the doctrine itself need not be invoked when the state of the situs as a matter of comity recognizes the rights upon which the decree of a sister state is based and decides that the enforcement of such rights does not violate any principle of public policy of the situs state. It has been asserted that the development of the "Full Faith and Credit" clause has fallen half a century behind that of the remainder of the federal constitution. John Russell, "Titles, Effect of Adjudication by Sister States," 3 Baylor Law Review, 441. However, the problem is essentially one for the Supreme Court of the United States which may compel recognition of a foreign decree despite public policy declarations announced by a state court of the situs. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. In this connection, see also, Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279.

Professor Brainerd Currie of the University of Chicago Law School in his paper styled "Full Faith and Credit to Foreign Land Decrees," 21 University of Chicago Law Review 620, 1. c. 666 argues for a dichotomy approach to the problem which in effect would make unnecessary a resort to the principles of comity. He asserts that "either a judgment is rendered without jurisdiction, in which case due process of law would be denied by holding it conclusive; or it is rendered with jurisdiction in which case it is entitled to full faith and credit." We need not pass upon the validity of this approach but may reserve judgment upon the point until a case arises wherein the enforcement of the decree of the sister state would to some extent at least violate an established public policy of this state. This case may be and is decided upon the principles of comity.

Our differences with the courts below rest primarily upon a divergence of opinions as to the proper construction of the Oklahoma court decree. The trial court and the Court of Civil Appeals treated the decree as being one which directly affected the title to Texas lands. We regard it as being an equitable order operating in personam which orders James Dorsey McElreath to execute a deed conveying land in Texas to Evelyn Ann McElreath. Matson v. Matson, 186 Iowa 607, 173 N.W. 127. As so construed, the Oklahoma decree should be enforced as a matter of comity.

The statute upon which the Oklahoma decree is based reads as follows:

"When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband's real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed [726] to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable. * * *" 12 O.S. 1951, § 1278.

James Dorsey McElreath's holdings consisted of real and personal property situated in both Oklahoma and Texas. The Texas property was devised to him by his father, A. R. McElreath. This circumstance is immaterial as the Oklahoma statute above quoted makes no distinction between property acquired by gift, devise or bequest and any other form of separate property. Under the Oklahoma law the court was empowered to allow alimony to the wife "out of the husband's real and personal property."

There is a patent difference between two clauses contained in the decree. One provides that:

"It Is Further Ordered, Adjudged and Decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to all real estate, oil properties, mineral rights, leases, royalties, and any other mineral or oil interests owned by the defendant on this date, including the properties set forth and described in `Exhibit A' attached hereto and made a part hereof, and said defendant is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within five days from this date, in default of which this decree shall constitute a conveyance thereof."

The second clause which is applicable to the Texas property involved in this lawsuit provides that:

"It Is Further Ordered, Adjudged and Decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. McElreath, Sr., deceased, either distributed or in the process of probate, and said defendant is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within sixty (60) days from the date hereof."

It may be that the Oklahoma court sought to recognize a difference in the authority which may be exercised by a court having jurisdiction over both the parties and the res and that which may be exercised by a court having in personam jurisdiction only. The "in rem" provision that in the event James Dorsey McElreath should fail to execute a conveyance, the decree itself should operate as such is not contained in the order relating to the Texas property involved in this lawsuits.

The trial judge, however, in holding that the decree, while effective as to personal property in Texas^[1] was ineffective as to real property, stated in his conclusions of law that a contrary holding would "violate the fundamental rule of law that a court of one state cannot operate directly to pass title to land of another state."

Seemingly the position of James Dorsey McElreath as respondent here is that petitioner's suit is not one to compel him to execute a conveyance but rather one to assert an equitable title which she claims vested in her by virtue of the Oklahoma decree. We are unable to agree with this strict construction of the pleadings. The essential facts,—and facts are what count in Texas pleading—, are alleged in the petition which would authorize a court in Texas to order the execution of a deed so as to implement the rights determined by the Oklahoma decree. In the present suit, the Texas court as distinguished from the position of the Oklahoma court in the divorce suit, has jurisdiction of the res as well as the person and [727] hence has authority to provide that upon the failure of respondent to execute a deed, the decree of the Texas court would have the effect of a conveyance, or that its decree would operate directly to vest petitioner with title to the Texas land. The findings upon which the Oklahoma decree is necessarily based to the effect that petitioner, by reason of her marriage with respondent and her status as a wife, is entitled to certain properties including the Texas land operate by way of estoppel in the nature of res judicata such findings give rise to equitable rights in the property which may be enforced by the Texas courts. The exact method of enforcement is limited only by the jurisdictional authority of the Texas court which having jurisdiction over the res may enter an in rem judgment should such course be deemed expedient.

That portion of the Oklahoma decree relating to the Texas land here involved is purely in personam. It provides that "the defendant (respondent here) is hereby ordered and directed to execute good and proper conveyances of such interest in said property to the plaintiff herein within sixty (60) days from the date hereof." Whether we consider the statement which precedes that above quoted,—"that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest * * * etc." as an attempt to make the decree operate in rem is immaterial. If it be considered wholly inoperative as to real property, we still have the direct categorical order that the petitioner execute a conveyance. Cf. Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175; 25 Tex.Jur. 694, Judgments, § 255. Such an order was within the equitable powers of the Oklahoma court and had McElreath under threat of imprisonment for contempt executed a deed it would have been effective to convey lands in Texas.

An analogy between an obligation arising out of the marriage status and one arising under a contract seems entirely valid. It was well stated by Professor Willard Barbour of the University of Michigan Law School in his article on "The Extra-Territorial Effect of the Equitable Decree," 17 Mich.Law Review 527, 1. c. 548, that:

"We need not say that the foreign decree should ex proprio vigore affect title to domestic land; all that is contended is that the courts of the situs should recognize such a decree as a final determination of a personal obligation to convey, an obligation analogous to that arising from a valid contract. It should be accepted as a valid cause of action in the jurisdiction of the situs and if suit be brought upon it and personal jurisdiction obtained of the person bound, a new decree should be rendered."

The distinction between the decree which purports to directly affect title to lands in another state ex proprio vigore and one which acts upon the parties in personam is important. In essence, the validity of the decree in rem or ex proprio vigore depends upon rules applicable to jurisdiction of courts, while the enforceability of an equitable decree in personam depends upon the public policy of the forum state insofar as comity is concerned. No one contends that an Oklahoma court could decree that A do have and recover against B judgment for title and possession of lands in Texas. On the other hand, when jurisdiction of the persons is present, no one disputes the jurisdiction and authority of the Oklahoma court to decree that A convey to B certain Texas lands, nor the further proposition that such deed, when executed in accordance with the Texas laws relating to conveyancing, operates to legally convey lands in Texas. It therefore follows that unless there be some public policy consideration, a Texas court should not hesitate to enforce an Oklahoma in personam decree ordering a conveyance of Texas lands whether the right given formal recognition by the Oklahoma decree be based upon a contract or one which grew out of the marriage status of Oklahoma residents. Our inquiry relates to public policy and not jurisdiction. The Texas courts, like the courts of Oklahoma, [728] possess the power and authority to award equitable relief in the nature of an order for specific performance and to enforce the same by appropriate contempt action. The enforcement of the rights established by the Oklahoma decree do not involve the use of remedies and processes unknown to the law of Texas, nor the recognition of rights and estates in property unknown to Texas law. See, Stumberg, Conflict of Laws (2d Ed.) 128.

The argument of respondents which was accepted by the Court of Civil Appeals stems from Bullock v. Bullock, 52 N.J.Eq. 561, 30 A. 676, 27 L.R.A. 213, 46 Am.St. Rep. 528, and Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175, 179, which follows the Bullock case. In Fall v. Fall, the following statement of the New Jersey court is quoted with approval:

"[T]he doctrine that jurisdiction respecting lands in a foreign state is not in rem, but one in personam, is bereft of all practical force, if the decree in personam is conclusive and must be enforced by the courts of the situs."

From this premise, it is asserted that a decree of a Washington court in a suit between Washington citizens which directs a party to that suit to execute a conveyance of Nebraska lands is contrary to the public policy of the State of Nebraska. Laying aside for a moment the obvious confusion of the rules governing jurisdiction of courts and the doctrines applicable to questions of public policy, and considering policy alone, we might inquire as to how and in what way does one state's action in adjusting the property rights and problems of its own citizens violate the public policy of another state. Or, to be specific and to the point insofar as this case is concerned, what difference does it make to the State of Texas whether the property here involved is awarded to the ex-husband or the ex-wife of a broken Oklahoma marriage? Is there in Texas a public policy which prefers land tenure by males rather than by females? Is there a reasonable probability of the return of feudal tenures to Anglo-American jurisprudence, so that one owning land would be burdened with knight service? 51 C.J.S. p. 461. It would seem that Texas should have no concern with the statutes and methods adopted by Oklahoma in settling the matrimonial differences of its citizens and their property rights.

In commenting upon the Fall case, Professor Currie in his paper heretofore mentioned said:

"When Justice Letton (the author of the majority opinion in Fall v. Fall) seeks to bolster his argument by the epithetic assertion that `the act directed by the Washington court [the conveyance] is in opposition to the public policy of this state, in relation to the enforcement of the duty of marital support,' it is hard to take him seriously. Bear in mind that he has just finished saying that `[i]n the instant case, if Fall had obeyed the order of the Washington court and made a deed of conveyance to his wife of the Nebraska land, even under the threat of contempt proceedings, or after duress by imprisonment, the title thereby conveyed to Mrs. Fall would have been of equal weight and dignity with that which he himself possessed at the time of the execution of the deed.' But apart from this remarkable inconsistency, are we to believe that a statute defining the jurisdiction of Nebraska courts in divorce cases expresses Nebraska's policy of matrimonial support pertaining to couples domiciled in Washington?" 21 University of Chicago Law Review 620, 1. c. 637.

Although this Court and the courts below may be of the opinion that the Oklahoma trial court should have awarded Oklahoma land rather than Texas land to the wife or entered an alternative money award to the wife in the event the husband refused to convey the Texas land, 17A Am. Jur. 172, Divorce and Separation § 991, and thus avoided the complexities incident to [729] the type of decree now before us, such opinion or belief would not justify a conclusion that the Oklahoma judgment is contrary to Texas public policy. The public policy issue, stripped of all its spurious and specious ramifications, is simply answered by saying that insofar as the public policy of Texas is concerned, either a husband or a wife to a broken marriage of Oklahoma residents may hold land in this state.

The argument of the New Jersey case of Bullock v. Bullock, as above indicated, is that the equitable decree of a sister state directing that a conveyance be made is in substance an in rem decree, and should be treated as such. This over simplification ignores centuries of chancery history and development. As heretofore stated, no one questions nor could be successfully dispute the proposition that a court of equity having jurisdiction of the person and the ability to enforce its decree by contempt may coerce the execution of a deed which will be recognized by Texas courts as a valid conveyance of Texas land. It would be strange to say that as long as the respondent remained in Oklahoma and subject to the jurisdiction of the courts of that state, the decree was one in personam, but became in effect a decree in rem when he crossed the boundary line into Texas. This cannot be sound. The post judgment physical movements of parties cannot affect the nature of decrees. Nor can the premise be accepted that respondent was subject only to the coercive orders of the court rendering the decree. This, to use the phrase of Professor Barbour, would be to assume "that equity has made no progress since the time of Coke," 17 Mich.Law Review 528, and would lead to this anomalous condition of defeasance or something similar thereto: Because of the failure of the Texas court to act, the title to the Texas land would remain in respondent, but should he return to Oklahoma, a court of that state could and undoubtedly would enforce its decree by compelling the execution of a conveyance. This could give rise to numerous title questions and complications. For example, what would be the status of one purchasing from respondent with actual notice of the Oklahoma decree, should respondent after conveying to such purchaser, return to Oklahoma and by court action be coerced into executing a deed to petitioner? Equally unsound is the premise that a deed coerced by the Oklahoma decree may be accepted but the decree rejected, for as stated by Currie:

"Recognition of the deed necessarily involves acceptance of the decree. Whatever intrusion on the state's exclusive control is implied in the recognition of the decree is accomplished through the recognition of the deed. A policy so easily evaded, so dependent on the success of the defendant in eluding the enforcement process of the foreign court, is a formal lifeless thing, and the truth must be that foreign judicial proceedings of this type pose no real threat to the legitimate interest of the situs state." 21 U. of Chicago Law Review 620, 629.

Professor Stumberg, while recognizing a diversity of opinion among courts, states that the decided weight of authority supports the proposition that the equitable decree of a sister state should be recognized and enforced. Stumberg, Conflict of Laws (2d Ed.) 125.

A leading case among those opposed to Bullock v. Bullock and Fall v. Fall is Burnley v. Stevenson, 24 Ohio St. 474, 15 Am.Rep. 621. This was a contract case. A decree of specific performance was rendered by a Kentucky court having jurisdiction of the parties. The subject matter of the suit was land situated in Ohio. No actual conveyance was made. The party entitled to the deed, however, went into possession and in an action in ejectment the Ohio court held that the Kentucky decree constituted a valid defense. The court said:

"True, the courts of this state cannot enforce the performance of that decree by compelling the conveyance [730] through its process of attachments; but when pleaded in our courts as a cause of action, or as a ground of defense it must be regarded as conclusive of all the rights and equities which were adjudicated and settled therein, unless it be impeached for fraud."

Essentially the same rule was held applicable to a divorce case in Matson v. Matson, 186 Iowa 607, 173 N.W. 127, 129. The facts were similar to those in the present case and a statement of them follows:

"Plaintiff and defendant Matson were married in May, in 1897, and continued to live together as husband and wife until the summer of 1914. About 1909 they moved to Washington, and thereafter continued to reside in King county, in that state, until the summer of 1914. There were four small children. In June, 1914, plaintiff commenced her divorce action, in the superior court of King county, for an absolute divorce * * * Said action came on for hearing before said court on the 14th day of August, 1914, the appellee appearing in person and by her attorney, and appellant Matson also appearing in person and by his attorney, and the court, having heard the evidence and proofs, then and upon said day announced its decision granting plaintiff a divorce, the custody of the children, and granting to plaintiff the property in Iowa hereinafter referred to by the following provision afterwards incorporated in the decree:

"`That plaintiff be and she is hereby awarded the household furniture and piano and property known as 4628 Meade street, Seattle, Wash., and the property of the parties hereto located in the town of Boone in the state of Iowa; and the defendant is hereby directed and required to execute to plaintiff a conveyance of said Iowa property.' * * *

"Immediately after the announcement of the decision of said court in said action, the appellant Ed Matson left the state of Washington and came to the state of Iowa, arriving in said state a few days thereafter.

"On the 19th day of August, 1914, said appellant, having arrived in the county of Boone and state of Iowa, made a purported conveyance by warranty deed to the appellant Ida Johnson of the property in Boone, Iowa, for the consideration of $1. Said warranty deed was filed for record in the office of the recorder of Boone county on the 19th day of August, 1914. At and before the execution and delivery of said deed by appellant Ed Matson to appellant Ida Johnson, said Ida Johnson had full knowledge that appellee and appellant Ed Matson were husband and wife; had full knowledge of the decision of the superior court of the state of Washington in and for King county, hereinbefore referred to, and knew that said Matson was directed by the decision of said court to convey to the plaintiff the property hereinbefore described. The conveyance so made by the said Matson to said Johnson was without consideration, save and except the sum of $1. In the deed the said Ed Matson described himself as single, notwithstanding the fact that the decree dissolving the marriage relations between appellee and him had not been filed, and he, the said Matson, then understood that by the decision of said court he was directed to convey the property above described to appellee."

In affirming the judgment of the trial court which set aside the Ida Johnson deed and granted relief to Mrs. Matson under the Washington decree, the Supreme Court of Iowa said:

"It should be kept in mind that in the instant case there was personal notice on, and appearance by, defendant Matson, in the Washington court, in the case there, and in the Iowa court in this case, and the further important fact, [731] as we view it, that plaintiff here is not relying alone on the Washington decree to give title as was the fact in some of the cases cited. Nor does she claim that any deed was executed by defendant to her, even under compulsion, pursuant to the direction in the decree that he should convey. This was the situation in some of the cases. Her claim is that the Washington court having complete jurisdiction, and having rendered judgment and decree, she may use that as a basis for another suit in the courts of this state, after personal notice, for judgment here, and for a decree here to carry out and enforce the Washington decree, which the defendant, by removing himself from the state of Washington, prevented the Washington court enforcing the decree in that state. Of course, if the defendant Matson had remained in the state of Washington, the courts there could have coerced him into executing a deed as directed by the decree. That is impossible now. We have no doubt but that this was a fraud upon the courts in that state, and, under the circumstances shown, we have no doubt but that his purpose was to prevent his wife from obtaining the full relief to which she was entitled. This was also a fraud. Ought he, in equity, to be allowed to profit by his own wrong? So far as defendant Matson is concerned, there was no good faith. This being so, why ought not his conscience to be bound? In the instant case, the equities are clearly with the plaintiff."

In Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682, 689 it was said that:

"[I]t is universally held that a court of one state cannot directly affect or determine the title to land in another state. However, it is also now well established that a court of competent jurisdiction in one state with all necessary parties properly before it in an action for divorce, generally has the power and authority to render a decree ordering the execution and delivery of a deed to property in another state in lieu of alimony for the wife. Such an order is personam in character, and when final it is generally res judicata, bringing into operation the doctrine of collateral estoppel."

See also, Mallette v. Scheerer, 164 Wis. 415, 160 N.W. 182; Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578; Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288; Restatement of Conflict of Law, §§ 94, 97, 430, 450. Cf. Hall v. Jones, Tex.Civ.App., 54 S.W.2d 835, no wr. hist.; Greer v. Greer, Tex.Civ.App., 189 S.W.2d 104; Id., 144 Tex. 528, 191 S.W.2d 848; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, wr. ref.

Respondent, in his vigorous and well-prepared brief, places much emphasis upon the case of Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, affirming Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175. As we construe that case it is not in point here, but some discussion of its holdings may not be inappropriate. As set forth in the forepart of this opinion, there is a clear and fundamental difference between respondent's construction and this Court's construction of the Oklahoma decree in issue here, as well as the nature of the relief sought from the Texas court by the petitioner. We do not construe the Oklahoma decree as being in rem, that is, as directly affecting the title to Texas land. Any portions of the Oklahoma decree purporting to act in rem would be ineffective because of a lack of jurisdiction on the part of the Oklahoma court. However, the order directing the execution of a conveyance is in personam. As we read Fall v. Eastin, it goes off on a somewhat different proposition than that asserted by the Nebraska Supreme Court, namely that the decree of the Washington court was in rem and the Washington court was without jurisdiction to render a decree directly affecting the title to Nebraska lands.

[732] Much has been written about Fall v. Eastin. The opinion has been criticized for lack of clarity, and it has been remarked that the attorneys for Mrs. Fall, the plaintiff in error, mistakenly analyzed the legal situation actually presented by the record in that they sought to rely upon a commissioner's deed executed in pursuance of the Washington decree. However, it seems to us as above indicated, that the Supreme Court placed its judgment of affirmance upon the holding that the Washington decree was in rem. We reach that conclusion from the following bases:

The controversy grew out of a divorce suit in the state of Washington between Sarah S. Fall and E. W. Fall. The parties at interest in the case considered by the Supreme Court of the United States were Sarah S. Fall and Elizabeth Eastin, the grantee in a deed executed by E. W. Fall. The suit was one to remove cloud from title and not a suit brought by Sarah S. Fall to compel E. W. Fall to convey land to her. The controlling legal question involved was the validity of a commissioner's deed, or as stated by Mr. Justice McKenna speaking for the majority of the Supreme Court, "The question in this case is whether a deed to land situate in Nebraska, made by a commissioner under the decree of a court of the state of Washington in an action for divorce, must be recognized in Nebraska under the due faith and credit clause of the Constitution of the United States." [215 U.S. 1, 30 S.Ct. 4]

The state of Washington was the matrimonial domicile of the parties and a court of that state entered a decree of divorce which, among other things, ordered E. W. Fall to convey certain lands in the state of Nebraska to Sarah S. Fall. The decree also provided that in the event Fall failed to execute a deed, then a conveyance to Mrs. Fall should be executed by a commissioner appointed by the court. Fall did not executed a conveyance and as a consequence Mrs. Fall received a deed from the commissioner. Elizabeth Eastin claimed under a deed executed by E. W. Fall after the entry of the divorce decree.

The holding of the Supreme Court of the United States was that the commissioner's deed, having been executed by an arm of the Washington court, was in legal effect a part of that court's decree and that as a court in one state could not by decree divest title in lands situated in another state, the claim of Elizabeth Eastin should prevail.

In the majority opinion, Mr. Justice McKenna said:

"[T]he doctrine that the court, not having jurisdiction of the res, cannot affect it by its decree, nor by a deed made by a master in accordance with the decree, is firmly established * * * [I]t rests, as we have said, on the well-recognized principle that when the subject-matter of a suit in a court of equity is within another state or country, but the parties within the jurisdiction of the court, the suit may be maintained and remedies granted which may directly affect and operate upon the person of the defendant and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted. In such case, the decree is not of itself legal title, nor does it transfer the legal title. It must be executed by the party, and obedience is compelled by proceedings in the nature of contempt, attachment or sequestration. On the other hand, where the suit is strictly local, the subject-matter is specific property, and the relief when granted is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject-matter is situated. 3 Pomeroy's Eq., §§ 1317, 1318, and notes."

[733] Fall v. Eastin did not and, because of a lack of necessary parties, could not be construed as an effort to enforce the personal obligation of E. W. Fall to execute a conveyance. It is stated in the majority opinion that, "No personal service was had upon E. W. Fall, and he did not appear." This point is made clear by the concurring opinion of Mr. Justice Holmes wherein he points out that:

"[T]he Nebraska court carefully avoids saying the decree would not be binding between the original parties, had the husband been before the court. The ground on which it goes is that to allow the judgment to affect the conscience of the purchasers [in this case, Elizabeth Eastin] would be giving it an effect in rem."

Regardless of the view one may take of the soundness of various pronouncements contained in Fall v. Eastin, its actual holding is not contrary to the basis upon which this case should be decided, namely, that the Oklahoma decree established an obligation binding fames Dorsey McElrcath to convey the Texas property to the petitioner similar to that arising from a contract to convey which may be protected and enforced by judicial proceedings in Texas.^[2] In so doing, no in rem effect is given to the Oklahoma decree. It does not pass title. It is the action of the Texas court in giving effect to the findings of fact supporting the Oklahoma decree which effects a transfer of title. Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578.

As heretofore pointed out we approach this case from the standpoint of comity rather than from the standpoint of the closely related subject of "Full Faith and Credit."

It seems settled that the situs state is not required to give full faith and credit to the judgment of a sister state which purports to act in rem and would directly affect the title to land in the situs state. When, however, as in this case, it is contended that the enforcement of an in personam decree of a sister state would be contrary to the public policy of the situs state, the path to be followed is not so clear. In some cases of conflict of public policies, the state policy may be forced to give way. Fauntleroy v. Lum, 210 U.S. 320, 28 S.Ct. 641, 52 L.Ed. 1039. It is peculiarly the function of the Supreme Court of the United States to decide these delicate questions of policy conflict. Comity, in the absence of a controlling decision by the United States Supreme Court under the "Full Faith and Credit" clause, seems the preferable basis for a state court decision. In that way there is no danger of restricting the scope of state public policy by a prediction of what the United States Supreme Court may hold in any given situation. Our holding therefore is that as a matter of comity we will enforce the equitable decrees of a sister state affecting Texas land so long as such enforcement does not contravene an established public policy in this State. As a corollary to this holding and as applicable to this case, we hold that the enforcement of an equitable decree entered by a sister state in a divorce case between nonresidents of the State of Texas who possess no peculiar property rights growing out of Texas marital laws, does not violate the public policy of this State. Other factual situations are not before us and hence are not decided.

Despite the inferential warning contained in Professor Prosser's hyperbole^[3] that lawyers and judges should not pretend to [734] an understanding of the learned writings of law professors in the field of conflicts of law, we are nevertheless bold to say that the following articles from the law reviews support our holdings in principle: Barbour, The Extra-Territorial Effect of the Equitable Decree, (1919) 17 Mich.Law Review 527; Lorenzen, Application of Full Faith and Credit Clause to Equitable Decrees for the Conveyance of Foreign Land, (1925) 34 Yale Law Journal 591; Goodrich, Enforcement of a Foreign Equitable Decree, (1920) 5 Iowa L. Bull. 230, and Currie, Full Faith and Credit to Foreign Land Decrees, (1954) 21 U. of Chicago Law Review 620. See also, Russell, Note on Titles, Effect of Adjudications by Sister States, Conflict of Laws, Foreign Decrees, Stay of Proceedings (1951) 3 Baylor Law Review 441.

The judgments of the courts below are reversed and the cause remanded to the trial court with directions to render judgment for the petitioner in accordance with this opinion and the stipulation of the parties, particularly Paragraph 6 thereof which provides for a full disclosure to the petitioner of all properties constituting the Estate of A. R. McElreath, deceased, as of February 20, 1958, and for such accounting as may be necessary and proper. 49 Am. Jur. 198, Specific Performance § 174.

The Chief Justice and Associate Justices GRIFFIN, SMITH and WALKER dissented.

GRIFFIN, Justice (dissenting).

This is the first case in the history of American jurisprudence in which a court of the situs state has recognized the judgment of a sister state adjudging title to land on the ground of comity, where, without question, that judgment violates the plain and unambiguous provisions of the statute of the situs state.

I cannot agree to the disposition of this case for the following reasons:

1. The majority, in holding that the Oklahoma judgment is a decree in personam rather than a decree in rem, is directly contrary to the plain wording of the judgment and to the construction placed on the judgment by the parties themselves.

2. The Oklahoma judgment which the majority opinion enforces is void and may be collaterally attacked under the decisions of the Oklahoma Supreme Court. Thus the argument that the effect of the decree can be changed by the defendant's crossing the state line is without force.

3. The majority opinion would have our trial courts pass title to realty of one spouse to the other spouse, which power is prohibited to our courts in Texas in divorce matters by legislative enactment; to wit, Art. 4638, R.C.S.1925. This necessarily has the effect of permitting the other 49 states to decree a division of Texas land, while Texas courts are expressly prohibited from doing so. Thus we have one rule of law for Texas citizens who own land in Texas and another, more favorable rule, for non-residents who may own Texas land. This is the rankest kind of discrimination of our own citizens.

4. The judgment of the Oklahoma court is not entitled to recognition under the doctrine of comity because it violates the public policy of Texas as established by legislative enactment.

5. The Oklahoma judgment is not res judicata as to the interest petitioner has in the Texas real estate.

6. The majority decision will create interminable confusion and uncertainty as to land titles and particularly as to land titles in divorce suits, and, as a matter of policy, the decision of the majority should not prevail.

The majority assumes that the Oklahoma judgment is a two-part, divisible judgment; that the first part is an in rem judgment which is void and may not be enforced because the court had no jurisdiction to enter it, but that the second part is an in personam [735] judgment which the court did have jurisdiction to enter, is valid, and may be enforced by the courts of this state. If that concept of the Oklahoma judgment is unsound, the entire opinion of the majority, however logical and appealing it may be, must fall. I submit that the judgment is not a divisible judgment and that the entire judgment should be held void once it is admitted, as it must be, that the court had no jurisdiction to award title to the husband's separate Texas real property to the wife.

Evelyn Ann McElreath owned neither the title nor a legal or an equitable right to title to her husband's separate property in Texas prior to the entry of the judgment in the Oklahoma divorce proceeding. The Oklahoma statute upon which the judgment is based did not give Mrs. McElreath the title or a legal or an equitable right to title to the property. The statute did confer upon the court the discretionary power, when the divorce was granted by reason of the fault of the husband, to award the husband's separate property to Mrs. McElreath as alimony. But unless and until the court adjudicated the right of Mrs. McElreath to alimony and determined the form which the alimony should take, the court had no power or jurisdiction to direct the husband to convey an interest in his separate Texas real estate to Mrs. McElreath. The direction to execute a conveyance does not, and cannot, stand alone. Mrs. McElreath's "equitable rights in the property" which the majority would enforce came into being in, and had no existence outside of, that portion of the judgment which "awarded" to Mrs. McElreath as alimony "an undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. McElreath, Sr., deceased", an award which the majority concede the court had no jurisdiction to make.

It is obvious that the direction to convey contained in the judgment is not the portion of the judgment which undertakes to create rights in or to the property in Mrs. McElreath. The direction to convey is but the mechanics selected by the court for enforcing rights created by the first part of the judgment awarding title. It occupies the same place in the judgment, and serves the same purpose, as would a direction, "for which she shall have a writ of possession". If that had been the direction —the mechanics of enforcement— and Mrs. McElreath had brought to Texas a writ of possession, would the courts of this state enforce the writ and put her in possession? I think not. And if the mere direction to convey creates rights in the husband's separate Texas real property, why this suit to establish title to the property? Why not enforce the obligation to convey by a contempt proceeding?

What has been said demonstrates, I think, the distinction between this case and those in which the courts of a state of the situs of land will recognize and enforce a judgment of a sister state ordering specific performance of a contract to convey. In those cases the right to the conveyance is not grounded in or created by a judgment which purports to adjudicate title to real property over which the court has no jurisdiction; rather, the right to the conveyance is grounded in and created by a contract of the parties which the court having the parties properly before it has jurisdiction to interpret and order performed.

I cannot agree that the Oklahoma judgment is strictly a judgment in personam, as the majority have held. Let us examine the copy of the Oklahoma judgment which is attached to the stipulation of the parties in this trial and which all parties concede is a true and correct copy. As to the Texas properties, both real and personal, the court says, "it is further ordered, adjudged and decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to the interest owned by the defendant in the Estate of A. R. McElreath, Sr., deceased, either distributed, or in the process of probate, and said defendant is hereby ordered [736] and directed to execute good and proper conveyances of such interest in said property to plaintiff herein within sixty (60) days from the date hereof." (Emphasis added.)

When we examined the petition on which petitioner went to trial in the case at bar, we find that the cause of action stated therein is for the recovery of an undivided one-third interest in the A. R. McElreath, Sr. estate in Texas, and joins in the suit Arthur R. McElreath, Jr., Independent Executor and Fay V. McElreath, Independent Executrix of the Estate of A. R. McElreath, Sr., as well as James Dorsey McElreath, her former husband. After setting out the formal allegations as to parties, their residence, etc., plaintiff sets out the paragraph from the judgment of the Oklahoma court in which she is awarded as alimony the interest in the A. R. McElreath Estate. She then states, "the aforesaid judgment [of divorce and property division] of the District Court of Tulsa County, Oklahoma, is entitled to full faith and credit in the courts of Texas, and its findings and decree are res judicata of the right of Evelyn Ann McElreath to an undivided one-third interest in the moneys and properties devised and bequeathed to James Dorsey McElreath, and she is entitled to recover herein of and from defendants an undivided one-third interest in such interest of James Dorsey McElreath in said Estate of A. R. McElreath, Deceased."

She further alleges that under the terms of the judgment and decree of divorce, defendant, James Dorsey McElreath, was ordered to convey the one-third interest; that he wholly failed and refused to comply with the decree, but "equity regarding as done what ought to have been done, equitable title to such property passed to and vested in plaintiff, * * * and she is entitled to recover * * * one-third of the income accruing or paid to James Dorsey McElreath from the properties in Texas constituting the Estate of A. R. McElreath, Deceased." How could, should or would she be entitled to the income from such interest unless it did vest title in her to Texas properties? She pleads no other justification for seeking to recover the income on her claimed interest. If the majority's thesis is sound—that it is only the decree of the Texas court that vests title in plaintiff, then clearly she has no interest in the Texas realty until final judgment of the Texas courts, and, therefore, could recover no income. If the Oklahoma court's judgment acted only in personam plaintiff has no right to income. If the Oklahoma judgment vested a title to Texas real estate in her, the same is void under all the authorities, and under the majority opinion, as being rendered without jurisdiction of the Oklahoma court to decree an interest in Texas lands.

Now let us examine plaintiff's prayer in the trial court. "Wherefore, plaintiff prays that on trial hereof plaintiff recover of and from the defendants an undivided one-third interest in and to the interest of James Dorsey McElreath in the real and personal property located in the State of Texas constituting the Estate of A. R. McElreath in the State of Texas * * *; and further that plaintiff recover judgment against the defendant, James Dorsey McElreath, for one-third of all incomes received by him from the Estate of A. R. McElreath, Deceased, since February 8, 1956 [the day after the Oklahoma judgment was entered] and that she recover judgment against the defendants in their capacities as Independent Executor and Executrix, respectively, of the Estate of A. R. McElreath, Deceased, for one-third of all income accruing from the interest of James Dorsey McElreath in said estate and not yet paid to him," and for cost and general relief at law and in equity to which she may show herself entitled. The language of that prayer seeks more than the mere enforcement of a personal obligation against the conscience of James Dorsey McElreath. To me it plainly is a suit to recover an interest in Texas real estate by virtue of [737] having been "awarded" such interest by the Oklahoma judgment.

Being a judgment in rem, the Oklahoma judgment is clearly not entitled to full faith and credit. "A divorce court does not have jurisdiction to enter a decree in rem which will directly affect the legal title to real estate situated in another state, even though it has jurisdiction in personam over the defendant, and if the person who is ordered to execute the deed does not do so the courts of the state in which the land is situated are not bound to give full faith and credit to a decree concerning the title or the right to it." (Emphasis added.) 17A Am.Jur. 172, § 991 and 17 Am.Jur. 733, § 669. See also Restatement of the Law: Conflict of Laws, p. 332, § 248(2) and p. 333, § 248d; annotations, 145 A.L.R. 583-584.

I should like to point out that the articles by Professor Currie and Professor Barbour, upon which the majority relies, are based on the full faith and credit clause and not on comity.

A second point is that the judgment sued on in the present suit is a void judgment under Oklahoma authorities. Despite the statement of the majority that this judgment is a valid one because it was affirmed on appeal by the Oklahoma Supreme Court, I do not agree because there was no attack made in that court upon the court's judgment awarding plaintiff an interest in defendant's separate real estate. The cases I now discuss hold contrary to the majority opinion. The case of Sharp v. Sharp, 65 Okl. 76, 166 P. 175, L.R.A.1917F, 562, was an action in Oklahoma for the title to Oklahoma land brought by Landis Sharp as plaintiff against his former wife, Jennie Sharp, as defendant. Plaintiff claimed title to the lot under a deed, but, in addition, claimed under a divorce decree of the State of Oregon in which plaintiff and defendant were residents when they were divorced. The Supreme Court of Oklahoma, after an examination of the language of the judgment, concluded that the Oregon decree had the effect of establishing title in plaintiff to the Oklahoma lot, and thus it was beyond the jurisdiction of the Oregon court, and was therefore void. The court approved the reasoning in Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, 17 Ann.Cas. 853; Proctor v. Proctor, 215 Ill. 275, 74 N.E. 145, 69 L.R.A. 673; Burton-Lingo Co. v. Patton, 15 N.M. 304, 107 P. 679, 27 L.R.A.,N.S., 420; Hart v. Sansom, 110 U. S. 151, 3 S.Ct. 586, 28 L.Ed. 101; Carpenter v. Strange, 1891, 141 U.S. 87, 11 S.Ct. 960, 35 L.Ed. 640. It reversed and remanded the cause to the trial court.

West v. West, Okl.1954, 268 P.2d 250 is a divorce and property division case, decided by the Oklahoma Supreme Court. Opal West, as plaintiff, sued I. J. West for divorce, custody of the children, child support and division of their properties. The trial court granted plaintiff her divorce, disposed of the child custody and support phase of the case, and divided all of the property including the defendant's interest in the Texas land. Regarding the Texas lands, the court said that a divorce decree in one state cannot operate directly to pass title to lands in another state, nor is it res judicata as to the rights of the parties in the court of such other state, citing Sharp v. Sharp, 65 Okl. 76, 166 P. 175, L.R.A.1917F, 562.

In California (from which state the majority opinion cites Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288) an Oklahoma judgment in a divorce case dividing California lands equally between the parties was held void and subject to collateral attack. Barber v. Barber, 51 Cal.2d 244, 331 P.2d 628. The court refused to give binding effect to the part of the Oklahoma decree concerning realty. That case applies what I consider to be the correct rule of law. It is a rule that will give nonresidents and residents of Texas the same rights by enforcing the law of situs of real estate. It will not refuse rights to citizens of Texas and at the [738] same time recognize these rights in non-residents.

The majority recognizes that the judgment cannot be enforced under the full faith and credit clause of the Constitution of the United States, but seeks to enforce the decree under the doctrine of comity. I say the Oklahoma decree is not enforceable under the doctrine of comity, or, at least, it should not be enforced under "comity" because to enforce this decree is against the public policy of the State of Texas as clearly expressed by the Legislature when it passed Art. 4638, R.C.S., and as the same has been construed by the courts. The majority says Art. 4638 is not a rule of property, but merely a divorce statute. It seems to me that when the Legislature has specifically prohibited the courts from divesting title in real property, such prohibition is a rule of property; i. e., it governs title to separate estates.

The majority seems to urge that having given effect to the Oklahoma decree regarding personal property, it would be incongruous to deny effect to the decree regarding real property. To my mind, this distinction illustrates the real, true power of the Oklahoma court. It is too elementary to require citation of authorities that the situs of personal property is in or with the owner thereof. Therefore, whatever court has jurisdiction of his person also has jurisdiction of his personal property and by its decrees against the person it also decrees against the personal property. This very fundamental rule of law explains why a money judgment against a party is entitled to be enforced under the full faith and credit clause of the Constitution of the United States, and a decree creating, changing, or otherwise affecting real property has no such protection.

The above rule also clearly explains why a deed or other instrument executed by an owner in obedience to a court decree affecting title to lands in a state other than the forum state is recognized and given effect in the situs state. The jurisdiction over the person gives jurisdiction to require the person to act. When a person acts under court order there is no duress. The deed or other instrument transferring title is the act of the owner of the title, not the act of the court. The rights created by such instruments are rights created by the owner of the title, and therefore are and should be recognized by all courts. "* * * But comity is not permitted to operate within a State in opposition to its settled policy as expressed in its statutes, or so as to override the express provisions of its legislative enactments. Applewhite Co. v. Etheridge, 210 N.C. 433, 187 S.E. 588; Ritchey v. Southern Gem Coal Corp., D.C., 12 F. 2d 605. * * *" Universal C. I. T. Credit Corporation v. Walters, 230 N.C. 443, 53 S. E.2d 520, 522, 10 A.L.R.2d 758(5). And further (11 Am.Jur. 300-301, § 6) "in recognition and enforcement of foreign laws the courts are slow to overrule the positive law of the forum, and they will never give effect to a foreign law where to do so would prejudice the state's own rights or the rights of its citizens or where the enforcement of the foreign law would contravene the positive policy of the law of the forum, whether or not that policy is reflected in statutory enactment."

In the case of State of California v. Copus, 1958, 158 Tex. 196, 309 S.W.2d 227, this court recognized that a right of action accruing under the laws of another state, will not be enforced in this state if for some good reason the enforcement of it would be prejudicial to the general interests of its citizens. This court said that since Texas had statutes of similar import, we would enforce the California statute as to Copus' liability for support for his mother only for so long as Copus was a resident citizen of California subject to the statute of limitations contained in the act.

The general rule with regard to the enforcement of a judgment of one state in another is stated in 30A Am.Jur. 331, § 226, as follows: "Thus, it is a general rule of law that the res must be within the state or country of the court pronouncing a [739] judgment against it, that the courts of one state or country may not render a judgment binding or operating directly upon property situated in another state or country, and that in so far as they attempt to do so, the judgments so rendered are void.", citing cases from the United States Supreme Court, among which is Fall v. Eastin, supra; and cases from Alabama, Arizona, California, Connecticut, Idaho, Iowa, Kentucky, Maine, Missouri, North Carolina, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia and Wisconsin.

This Court, as late as 1953, in the case of Toledo Society for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553, refused to give effect to a judgment of the Supreme Court of Ohio construing the will of a resident of Ohio that devised real property in Texas. This court followed the United States Supreme Court case of Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028, and held the Ohio judgment not protected by the full faith and credit clause. Thus we disposed of the cause under the rule of "comity", but did not recognize or apply the judgment of Ohio because it was contrary to our rule of decision as applied to Texas lands.

In our case, Art. 4638, R.C.S., 1925, expresses the public policy of this State, and such statute absolutely prohibits our Texas courts "to compel either party to divest himself or herself of the title to real estate." The recent case of Hailey v. Halley, Tex.1960, 331 S.W.2d 299, construed the quoted portion of Art. 4638 as prohibiting a divorce court from divesting the title to separate property out of either spouse. Public policy is a bar to comity, but not to the full faith and credit clause. Surely we are not going to hold that the Oklahoma courts can do what the Texas courts are prohibited from doing. Neither should we hold that by the subterfuge of a personal judgment the courts of Oklahoma can "compel either party to divest himself or herself of the title to [separate] real estate." I cannot bring myself to penalize and discriminate against Texas citizens by such so-called legal legerdemain.

I now attack the holding of the majority that the Oklahoma judgment herein is binding on the parties in this case under the doctrine of res judicata. Texas has not extended the doctrine of res judicata to foreign judgments in cases such as we have at hand. Petitioners cite the case of Milner v. Schaefer, Tex.Civ.App.1948, 211 S.W.2d 600, wr. ref., as authority for allowing a recovery herein. With this I do not agree. The Milner case was one decided under the full faith and credit clause of the Constitution of the United States. It was entitled to recognition and to be treated as res judicata by virtue of the fact that Milner had originated the suit in Colorado in which the judgment was rendered; and further, the court specifically held that the settlement agreement was a contract between Milner on the one hand and Schaefer and Lewis on the other for a settlement of the prior partnership affairs, whereby Lewis and Schaefer were to receive the Texas lands belonging to the partnership. The court recognized the rule stated in Massie v. Watts, 6 Cranch 148, 3 L.Ed. 181, that the full faith and credit clause under the Constitution of the United States must be accorded "in a case of fraud, of trust, or of contract," even though land not within the jurisdiction of the court rendering the decree may be affected. The quotation from the case of Hall v. Jones, Tex.Civ.App., 54 S.W.2d 835, no writ history (although the opinion in the Milner case erroneously stated that the writ was refused) conclusively shows the court was relying on the two propositions above stated. I would point out that in the Milner case there was no statute of this state which would prevent our courts from rendering the same decree in favor of Texas citizens. In our case at bar, there is such statute; namely, Art. 4638, R.C.S., 1925. This discussion is also applicable to show that the case of Hall v. Jones, supra, relied upon by petitioner, is not in point [740] here and therefore not applicable nor controlling.

The majority opinion also argues that the judgment of the Oklahoma court should be given res judicata effect by a Texas court. In addition to the objections already raised in this opinion, there is a further reason why, in this case, the Oklahoma decision cannot be res judicata. It is settled law that res judicata applies only to a later suit between the same parties or their privies. 30A Am.Jur. § 397, 50 C.J.S. Judgments § 763. In the Oklahoma case— a divorce action—the only parties were Evelyn Ann McElreath and James Dorsey McElreath. In the instant suit here in Texas, the executors and administrators of the Estate of A. R. McElreath, Deceased, are also parties. The plaintiff is asking a judgment against them, as well as against her former husband. Clearly the Oklahoma suit could not be res judicata as to them, since they were not parties to that suit and are not in privity with any such party.

The doctrine of res judicata permits no inquiry as to the correctness or irregularity of the judgment. Under this doctrine a judgment may be attacked only if it is void, or was procured through fraud. "No principle of res judicata is more fundamental than that the conclusiveness of a judgment is not vitiated by errors committed by the rendering court." 21 Univ. of Chicago Law Rev. 625, citing Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 and Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. "The policy on which the doctrine of res judicata rests precludes an inquiry into the merits of the issues determined by the court [of the forum]". 34 Yale Law Journal 609. This is a well recognized and well accepted legal principle. That being true the case of Greer v. Greer, 1946, 144 Tex. 528, 191 S. W.2d 848, most certainly does not recognize nor stand for the premise that this court recognizes res judicata as applicable to foreign judgments. In the Greer case Mrs. Greer sued Mr. Greer in a proper district court of Oklahoma for divorce and adjudication of title to lands involved in the Texas trespass to try title suit before this court. In the Oklahoma divorce cause, the divorce was granted and the Texas land adjudged to be her separate property. The husband appealed and the Oklahoma Supreme Court affirmed the trial court's judgment. Thereafter the husband filed the trespass to try title suit in the district court of Wood County, Texas against the wife to recover an undivided one-half interest in the identical Texas land which the Oklahoma Supreme Court had adjudged was the wife's separate property. The wife answered and pleaded the Oklahoma judgment as res judicata of the issues in the suit. The trial court sustained this plea. The Court of Civil Appeals affirmed on the same theory advanced by the majority opinion herein. This court granted a writ of error on that identical point, but disposed of the case on another ground. This court failed to give the Oklahoma judgment the benefit of the doctrine of res judicata. This court examined the Oklahoma judgment, applied the Texas rules of law and decisions to that judgment —not the Oklahoma rules—and held the description of the land insufficient and reversed and remanded the cause to the district court. This court recognized that the Oklahoma court had jurisdiction of the parties. Its reason was that according to Texas—not Oklahoma authorities—the description of the land was insufficient. In other words, this Court applied the law of the situs of the land to the Oklahoma judgment and found that judgment void in accordance with the Texas rules of law. It paid no attention to the plea of res judicata by the plaintiff-wife, or the holdings on res judicata by both lower courts. This court examined the judgment of the Oklahoma court to determine if it was erroneous under our own law. This same rule should be followed in our present case. The Oklahoma judgment shows on its face that the Oklahoma court seeks to divest title to defendant's separate real estate and vest title to one-third thereof in plaintiff. Applying the Texas law and decisions to that judgment [741] it demonstrates that the Oklahoma judgment is void and of no force and effect so far as Texas land is concerned. Texas thus far has never recognized the res judicata doctrine in a case like this, and never should do so unless the Legislature materially changes our statutes.

The majority opinion relies most heavily on Professor Currie's article (21 Univ. of Chicago Law Rev. 620), and only six cases out of the whole jurisprudence of the United States are relied on for its support. I shall now discuss those cases. The first case is Burnley v. Stevenson, 24 Ohio St. 474, 15 Am.Rep. 621. A sufficient answer to that case is that the Supreme Court of the United States—final arbiter of the full faith and credit clause of the Constitution of the United States—refused to be bound by the reasoning in the Burnley case, and repudiated it. Substantiating this holding are Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, and many other cases in the United States Supreme Court following or recognizing Fall v. Eastin. Further, the Ohio court bases its decision on Massie v. Watts, 6 Cranch 148, 3 L.Ed. 181, Decisions of the Supreme Court, U.S., Curtis, Vol. 2, p. 345. The Ohio court says, "it appears from the record before us * * * that the subject matter of the bill on which the decree was rendered, [in the Kentucky court] was the enforcement of a trust and the specific performance of a contract to convey lands situate in the state of Ohio." (Emphasis mine). It then states the well recognized rule that in such cases chancery courts of one state have jurisdiction to enforce a trust, and to compel the specific performance of a contract in relation to land situate in another state, after having obtained jurisdiction of the persons of those upon whom the obligation rests. In our case Massie v. Watts does not apply, as the cause of action in Oklahoma is not embraced in the classes enumerated in Massie v. Watts.

Matson v. Matson, 186 Iowa 607, 173 N. W. 127, according to Professor Beale, was not a case where suit was brought to enforce the judgment of the State of Washington in Iowa, but a suit to set aside a conveyance of the land by the husband to a volunteer, on the ground that it was fraudulent with respect to his creditor; namely, his wife. In addition, I would point out that the Iowa court found that the statutes of Iowa and Washington regarding division of property on granting of a divorce were similar and that the husband committed a fraud on the Washington courts, and, therefore, the Iowa courts would carry out the personam provisions of the Washington judgment.

In the case of Mallette v. Scheerer, 164 Wis. 415, 160 N.W. 182, the Supreme Court of Wisconsin held that the laws of Illinois —where a foreign judgment had been rendered —and of Wisconsin were similar with respect to the division and disposition of real property on granting of a divorce. The Wisconsin court enforced the Illinois judgment under the full faith and credit clause of the Constitution of the United States because, Professor Beale says, the cause of action was brought upon a similar statute of Wisconsin, so the Wisconsin judgment was upheld.

Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578, was a suit in a Wisconsin court against Tully and the administrator of the estate of Maude H. Downey for the purpose of declaring certain Wisconsin land a party of the estate of Maude H. Downey. Tully answered claiming title to the land under and by virtue of a certain deed from Maude H. Downey, et al. during her lifetime conveying the land to him. A California judgment was rendered in an action in that state against Bailey, et al. to cancel and annul two deeds given by Tully, et ux to Maude H. Downey, subsequent to her deed to Tully. Here we have another suit on a contract and for cancellation of a deed. This action also falls within the decision in Massie v. Watts, and as is demonstrated by our Texas case of Hall v. Jones, Tex.Civ.App.1932, 54 S.W.2d 835, no writ history. Bailey [742] v. Tully, is not in point, nor does it support the majority opinion on the facts of our case.

The case of Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682, not only does not support the majority view, but supports my view that the foreign decree should not be given effect, when to do so would be contrary to the statutes and therefore to the public policy of the state of the situs of the land. After discussing Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175, which was affirmed by the U. S. Supreme Court as Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A., N.S., 924, the court holds that a foreign judgment which adjudges title to land in another state will be given effect only "* * * if the related public policy of the situs state is in substantial accord with that of the other state." [168 Neb. 346, 95 N.W.2d 690]

Simmons v. Superior Court, 96 Cal.App. 2d 119, 214 P.2d 844, 19 A.L.R.2d 288, does not involve the enforcement or effect to be given to a foreign judgment dividing property in a divorce case. It only involves an action by a wife who had filed a divorce suit in Harris County, Texas to stay proceedings in a divorce suit filed later by the husband in the Superior Court of California. The California suit had been removed to Federal Court and by it remanded to the California Superior Court, with a specific finding that both husband and wife were residents of Texas. The wife's action for a stay was based on a prior suit between the same parties involving the same subject matter. This was sustained by the California appellate court. There was no real estate involved in the California action—only personal property, to wit, stocks and bonds. The courts points out that since it has been judicially determined that both parties are residents of the State of Texas; that since the Texas court first acquired jurisdiction of the parties and the subject matter in controversy (the stock and bonds); and that the Texas courts have the power, under the Texas law, to decree a division of personal property, both separate and community, the action in the California court should therefore be stayed.

We have heretofore cited Barber v. Barber, 51 Cal.2d 244, 331, P.2d 628, which refused to recognize an Oklahoma divorce decree similar to the one in our case. This indicates that California does not support the majority opinion.

There are no recognized texts which support the majority opinion. Professor Beale, The Conflict of Laws, 1935, Vol. 2, p. 1412, § 445.1 states "a valid judgment of a foreign country will not be enforced if an action on the original claim could not have been maintained because contrary to the public policy of the forum." After discussing res judicata and citing Burnley v. Stevenson, supra, and two other cases, he proceeds "in many states upon a divorce the property of the spouses is ordered to be divided, including the land. If in such a case a state decrees the division or the conveyance of land in another state, its judgment is a nullity in the other state."

Professor Walsh, Equity, 1930, § 17, says that decrees may be enforced by action in equity in any other state in which personal jurisdiction over the defendant is secured provided the decree does not dispose of property in the state in which the later action is brought on principles differing from the law of that state; and concludes that the conflict in the cases are all reconciled by the principle of comity; "a state need not respect the foreign decree, but will do so, whether it is based on antecedent consensual obligations or not, when, and only when, the law involved is the same in both states." (Emphasis added.)

Dean Pound, The Progress of the Law-Equity (1920), 33 Harv.Law Rev. 420, 423-425, states that finally, if foreign courts are allowed to create duties to convey land, when such duties are generally recognized as giving rise to equitable ownership as against everyone except purchasers for value without notice, "the result is to allow [743] one state through its courts to create real rights in land in another state—and if it may do so by its courts, why not through its legislature?"

Professor Stumberg, Conflict of Laws, 2d Ed., p. 128, says "the most serious objection to a doctrine of compulsory full faith and credit to foreign equitable decrees is believed to be that a court might thus be compelled to order an act through the use of chancery process in a manner contrary to its local policy. Where, for example, the subject matter is land, it would be compelled to make dispositions of realty which might conflict with the policy of its local law. * *" And further, Restatement of the Law: Conflict of Laws, p. 530, § 449, (1) and (2):

"(1) A valid foreign judgment that the defendant do or refrain from doing an act other than the payment of money will not be enforced by an action on the judgment.

"(2) In an action on the original claim, the effect of res judicata will be given to findings of fact in a prior suit between the parties in which a valid judgment was rendered requiring the defendant to do or refrain from doing an act other than the payment of money."

In the case at bar there could be no suit on the original claim of Mrs. McElreath for an interest in Mr. McElreath's separate estate because of the prohibition of Art. 4638.

Professor Currie recognizes that Professors Cook, Beale, Pound, Walsh and Stumberg disagree with his thesis which is the basis for the majority opinion. Professor Currie also recognizes that Professor Barbour, who, in 1919, originated the theory of the majority opinion would not enforce a foreign decree when "to do so would violate some fundamental policy of the state where the land is situated." If Professor Currie's theory is given effect in Texas, as advocated by the majority opinion, there arises the further question of satisfying the recording and registration laws of the situs of the land. Professor Currie, however, recognizes this defect and advocates that Congress pass a law to remedy this. 21 Chicago Law Rev. 664-665. The reasoning of the majority will apply to affect the title to Texas lands owned by nonresidents. In those states having rules of inheritance different from those in Texas, the majority decision will approve decisions of the courts of those states, where all the heirs may live, awarding the full title to Texas lands in direct contravention to our laws of descent and distribution.

Also, a Texas couple might have a homestead on Texas lands inherited by the wife from her parents—her separate property. Under our laws, Texas residents do not lose their place of domicile by living in another state under certain circumstances. Suppose such a couple goes to another state to go to school for two years. They have established a residence in the other state for the purpose of securing a divorce, but they have not lost their homestead rights. The divorce court in the other state grants the divorce, and then, by the same language we have in our instant Oklahoma judgment, awards the homestead to the husband. We will be bound to recognize such judgment by virtue of the majority opinion herein. Such examples can be multiplied many, many times, and I can never agree to such holding.

In conclusion, I believe we will have more certainty to land titles and less confusion if Texas continues her present policy of determining the title to Texas lands in accordance with its law and decrees, rather than permitting decrees of the 49 other states to affect titles to Texas lands.

I would affirm the judgments of both courts below.

CALVERT, C. J., joins in this dissent.

[744] On Motion for Rehearing

NORVELL, Justice.

Respondent has filed an able motion for rehearing and a supplement thereto, wherein he strongly reurges two propositions, namely, that the decree here involved is actually an in rem decree, and alternatively, that if the decree be considered one in personam, nevertheless the equitable rights supporting the same cannot be enforced in Texas because of local policy considerations.

In our original opinion we said that in the event a portion of the Oklahoma decree should be considered unenforceable in Texas, this circumstance would not affect the vitality of the direct and categorical equitable order that respondent execute a conveyance of lands to petitioner. This order and the equities supporting it constitute the basis of petitioner's claim for relief in Texas. In numerous opinions an in rem judgment rendered by a court of one state purporting to directly affect the title to land in another state is spoken of as being void for want of jurisdiction over the subject matter. In a sense, it could be argued with reason that this Court cannot authoritatively say that an Oklahoma decree which has been affirmed by the Supreme Court of that state is void. We may say, however, that a portion of the decree is inoperative in this state when it purports to act in rem so as to directly affect the title to Texas lands. In determining whether or not a decree of a sister state, or the equities upon which it is based should be enforced in this state, we may also consider matters which go to the jurisdiction of the court of the sister state over the persons involved in the particular suit as well as the res. In this case, the order of the Oklahoma court entered in accordance with the law which controls the marital rights of the parties was an order operating in personam and one which the Oklahoma court had jurisdiction to render. That court also had jurisdiction of the parties litigant. There is no contention made that this personal jurisdiction was spurious, assimilated or pretended. This is not a case where it is asserted that one of the marital partners wrongfully invoked the jurisdiction of the Oklahoma court by falsely pretending to be a resident of Oklahoma. Oklahoma was the state where these litigants lived; it was their matrimonial domicile; they were Oklahomans and, as pointed out in the original opinion, this jurisdictional status could not be changed by one of them crossing the Red River into Texas after their respective rights had been settled and adjudicated by the Oklahoma courts.

We pass next to the second contention which presents the paramount issue in this suit. Do public policy considerations prevent a Texas court from ordering respondent to do what the Oklahoma court has ordered him to do, namely, convey land in Texas to the petitioner?

We reiterate that the enforceability of equitable decrees of sister states relating to Texas lands is hardly an open question in this state. In Milner v. Schaefer, Tex. Civ.App., 211 S.W.2d 600, 605, it was said:

"[W]e do not understand that the trial court held that the Colorado court had jurisdiction or authority to adjudicate land titles in Texas. In fact, the Colorado court, by attempting to enforce its decree of January 21, 1944, proceeded strictly in personam in recognition of its lack of jurisdiction or authority to directly adjudicate Texas land titles.

"However, the Colorado decree did have the effect of judicially determining that Milner had made a valid contract with Schaefer and Lewis under the terms of which Schaefer and Lewis were entitled to receive the Texas property belonging to the partnership. Milner had invoked the jurisdiction of the Colorado court. It had jurisdiction of all the parties and its judgment [745] is binding and operative under the rules of res judicata and estoppel by judgment."

In support of this holding the court cited Hall v. Jones, Tex.Civ.App., 54 S.W.2d 835;^[4] Massie v. Watts, 6 Cranch 148, 3 L. Ed. 181 and Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 145 A.L.R. 578 and the annotations following the A.L.R. reports. The Supreme Court refused the application for writ of error in Milner v. Schaefer.

It is, however, asserted that the rule of Milner v. Schaefer and the authorities cited therein cannot be applied to this case because the Oklahoma decree was one entered in a divorce case and a decree directing and Oklahoma husband to convey Texas land to an Oklahoma wife would violate the public policy of this state.

This contention, if adopted, would put Texas with the minority among the states of the American union. Generally no distinction is made between the equitable decree issuing out of a divorce suit and one based upon a contractual obligation. In the discussion of the subject of "Divorce" it is stated in Corpus Juris Secundum that:

"It is well established, nevertheless, that a court of chancery, in a proper case, has power to compel a conveyance of lands situated in another country or state, where the persons of the parties interested are within the jurisdiction of the court. Such a decree in nowise affects the title to the land; it is the conveyance, not the decree, that transfers the title. The decree acts only on the person, and obedience is compelled by proceedings in the nature of contempt, attachment, or sequestration. The court has no power to validate a conveyance of the foreeign lands, made by its master or commissioner, in default of the performance of the decree by the party.

"The decree is entitled to full faith and credit in the foreign state to the extent that it determines the rights and equities of the parties with respect to land in such state. The foreign decree directing a conveyance is, when not complied with, a sufficient basis for an action in a court of the state where the land is situated, and to which the party not complying with the decree has removed, to compel such conveyance; and in such action the court may render a decree in personam against such party requiring him to make the conveyance." 27B C.J.S. Divorce § 383, p. 886.

The adoption of the minority view must be justified if at all on policy considerations, 27B C.J.S. p. 887, and this is the basis which respondent strongly urges in his motion. A discussion of the applicability and effect of Article 4638, Vernon's Ann.Tex.Stats. is contained in the original opinion and need not be repeated here. However, in the motion for rehearing it is urged for the first time that certain provisions of the Uniform Reciprocal Enforcement of Support Act, Articles 2328b-1, 2328b-2 and 2328b-3, Vernon's Ann.Tex. Stats. have a bearing upon the problem before us in that such Act in subsection (6) of Section 2 of Article 2328b-1 contains an exception as to alimony for a former wife. This subsection among the definitions contained in the Act defines "Duty of support" as follows:

"(6) `Duty of support' includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise; but shall not include alimony for a former wife."

[746] Likewise, Section 7 of Article 2328b-3 contains a similar proviso or exception:

"Sec. 7. Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimony for a former wife."

Section 3 of the Act however provides that:

"The remedies herein provided are in addition to and not in substitution for any other remedies." Article 2328b-1, § 3.

The petitioner's claim for relief arose wholly independent of the Uniform Reciprocal Enforcement of Support Act. The enforcement of her demands by ordering the respondent to execute a conveyance to her is not dependent upon the provisions of the Act. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184. Nor is such action prohibited thereby. It does not follow that because the State of Texas will not enforce the payment of alimony to a wife under the Act, that the enforcement of the Oklahoma equitable decree here involved would be against public policy.

"Ordinarily, the public policy of a state is to be deduced from its constitution, laws, and judicial decisions. However, in considering whether the exercise of the doctrine of comity would be contrary to the public policy of the jurisdiction, the distinction between regulative legislation and the adoption of a principle of public law must not be lost sight of, the mere fact that a particular act or contract is prohibited by statute in the particular jurisdiction not necessarily requiring the withholding of a remedy on a right arising from an act or contract performed or made in another jurisdiction.

"It is usually held that to justify a court in refusing to give effect to or enforce foreign law or rights because it would be against public policy, it must appear that it would be against good morals or natural justice, or for some other reason would be prejudicial to the state or its citizens, the mere fact that the law of two states or nations differs not necessarily implying that the law of one violates the public policy of the other." 15 C.J.S. Conflict of Laws § 4(b), p. 854.

The support orders contemplated by the Act are seemingly those of a recurring nature which would operate upon residents of Texas, such as the payment of certain sums of money at periodic intervals. See enforcement provisions, both criminal and civil, Arts. 2328b-2 and 2328b-3. In this case, the obligation of the husband as it comes to the Texas courts is in the form of an enforceable duty which binds a former husband to convey certain property to a former wife. At this late date in the history of Anglo-American jurisprudence it is difficult to support a distinction in principle between the judgment at law of a sister state based upon a husband's duty to support his wife, Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416, and the equitable decree similarly based. Cf. Charlie D. Dye, Enforcement of Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 Texas Law Review 82.

It seems that fundamentally the argument on the policy issue stems from the circumstance that the laws governing marital rights in Texas are different from those of Oklahoma. On this basis, it is asserted that no rights under the Oklahoma decree should be afforded protection in this state.

We are concerned here with the laws and procedures of another state of the American union and not with a foreign state in the technical sense. In general, the common and statutory law, as well as the legal procedures, of Oklahoma and [747] Texas are similar. There are differences in detail and some of them are of major proportions, but they remain details rather than radical differences in methods or objectives. The marital law of both states is statutory for the most part. While it seems that the Oklahoma law contains certain evidences of the Spanish influence, it is perhaps not inaccurate to say that primarily the Texas statutes are based upon the Spanish law—while the Oklahoma system is based primarily upon the English common law. Alimony is provided for by the Oklahoma law. In Texas, our courts are not authorized to grant permanent alimony payable at periodic times in the future.^[5] This circumstances should not, however, prevent the recognition of the equities supporting the Oklahoma decree.

In Herrick v. Minneapolis & St. Louis Ry. Co., 31 Minn. 11, 16 N.W. 413, 414, the Supreme Court of Minnesota said:

"[B]ut it by no means follows that because the statute of one state differs from the law of another state, that therefore it would be held contrary to the policy of the laws of the latter state. Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and enforce rights under them according to their force and effect under the laws of the state where made. To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens."

The above was quoted with approval by Chief Justice White in Northern Pacific Railway Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958 and by the Supreme Court of Tennessee in Whitlow v. Nashville, Chattanooga & St. Louis R. Co., 114 Tenn. 344, 357, 84 S.W. 618, 68 L.R.A. 503.

Similarly, in Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201, Judge Cardozo speaking for the New York Court of Appeals said:

"Our own scheme of legislation may be different. We may even have no legislation on the subject. That is not enough to show that public policy forbids us to enforce the foreign right. A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. Similarity of legislation has indeed this importance; its presence shows beyond question that the foreign statute does not offend the local policy. But its absence does not prove the contrary. It is not to be [748] exalted into an indispensable condition."

As pointed out in the original opinion, if there be any semblance of fairness achieved in settling the property rights of divorcing persons holding property in two or more states, it must be done by a court operating in one jurisdiction. The problem cannot be adequately solved by the piecemeal attempts of several courts in several states.

The question of the enforceability of equitable decrees arising out of divorce cases relating to lands in states other than the matrimonial domicile is one of growing importance. It demands some solution which is hardly met by the adoption of a strictly "hands off" or "do nothing" policy on the part of the courts of the states wherein the real property may be located. We are dealing with equity jurisprudence, and in this field, we should bear in mind the injunction of Mr. Justice Alexander, later Chief Justice of this Court, that:

"Courts should not allow themselves to become static nor so hedged about with barriers of their own making, as to render themselves incapable of performing the functions for which they were created and are maintained. It was this confession of impotency on the part of the common law courts that brought about the creation of courts of equity to meet practical situations." Powers v. First National Bank of Corsicana, Texas, Tex.Civ. App., 137 S.W.2d 839, loc. cit. 843, affirmed 138 Tex. 604, 161 S.W.2d 273.

We do not regard the objection to the enforcement of the Oklahoma decree as being a valid one. Texas courts have asserted their authority to issue equitable in personam decrees relating to property outside the state. Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403, wr. dis., a divorce case. It seems that there should be no valid objection to the recognition of a like right in the Oklahoma court which had undisputed jurisdiction of the parties. We think the proper approach to the problem is that indicated by the California District Court of Appeals in staying proceedings in the California Superior Court until divorce proceeding affecting the litigating parties could be concluded in Texas. That Court said:

"Under the law of Texas the court has the power in an action for divorce to decree a division of the personal property, separate and community, of the parties in such manner as in its discretion it deems just and right. The court has power to determine and decree that specific property is owned by one or the other of the spouses. Jones v. Jones, Tex.Civ.App., 211 S. W.2d 269; Tims v. Tims, Tex.Civ. App., 201 S.W.2d 865, 868; McGarraugh v. McGarraugh, Tex.Civ.App., 177 S.W.2d 296; Dale v. Dale, Tex. Civ.App., 141 S.W.2d 718; Grissom v. Grissom, Tex.Civ.App., 137 S.W.2d 227; Scott v. Ft. Worth Nat. Bank, Tex.Civ.App., 125 S.W.2d 356, 362; Helm v. Helm, Tex.Civ.App., 291 S.W. 648, 649; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Rudasill v. Rudasill, Tex.Civ.App., 219 S.W. 843; 15 Tex.Jur. 580, sec. 105 et seq.; 4 Tex. Jur. Ten-Yr.Supp. 336, sec. 105 et seq. Under the law of Texas the court also has power by decree to compel a party of whom it has jurisdiction to execute a conveyance of real property situate in another state, Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S.W. 599, 605, 25 L.R.A. 52; Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403, 407; Baughan v. Goodwin, Tex.Civ.App., 162 S.W.2d 732, 736, and such a decree is entitled in California to the force and effect of record evidence of the equities therein determined unless it can be impeached for fraud. Redwood Investment Co. of Stithton, Kentucky v. Exley, 64 Cal. App. 455, 459, 221 P. 973; Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837, 839, 145 A.L.R. 578; Rest., Conflict of Laws, sec. 97, comment a, secs. 430, 449; [749] see Tully v. Bailey, 46 Cal.App.2d 195, 115 P.2d 542.

"* * * California courts should interpose no action to interfere with rights of the wife to which she may be entitled as a resident of Texas in an action for divorce. A conflict of authority should not occur if it can be avoided. Courts should compose rather than irritate. `Our states do not stand in the same relation to each other that foreign countries do. They are members of the same family, and section 1, art. 4, of the Constitution of the United States requires each state to give full faith and credit to the judicial proceedings of every other state. Comity between states is daily growing and should be encouraged.' Hall v. Industrial Commission, 165 Wis. 364, 162 N.W. 312, 314, L.R.A. 1917D, 829.

"The parties are residents of Texas. The Texas action will determine all the issues involved in the California action. The courts of Texas are as competent to administer justice as those of California. A trial in Texas under the circumstances is more likely to accomplish full justice than a trial in California of the comparatively narrow issues involved in the action here." Simmons v. Superior Court, 96 Cal. App.2d 119, 214 P.2d 844, loc. cit. 851-852, 19 A.L.R.2d 288.

Respondent's motion for rehearing is overruled.

CALVERT, C. J., and GRIFFIN, SMITH and WALKER, JJ., dissent.

GRIFFIN, Justice (dissenting).

The majority opinion on motion for rehearing decides no new questions of law. It seeks only to bolster further its previous upholding of the Oklahoma decree on the ground of comity. None of the cases cited in the opinion are in point on the question before us. These same cases were discussed in my original dissent and I see no point in discussing them further.

As I understand the majority opinion on motion for rehearing, it now seeks to evade the plain provisions of Arts. 2328b-1, 2 and 3, Vernon's Annotated Texas Civil Statutes, on two grounds. The first is that the prohibition against allowance of alimony for a former wife as provided in the Uniform Reciprocal Enforcement of Support Act, Arts. 2328b-1, 2 and 3, applies only to alimony "of a continuing and re-occurring nature", and to alimony "in its usual form"; i. e., a continuing obligation to pay to the wife a stated sum of money at periodic intervals in lieu of the common law obligation to support the wife; and, secondly, the act really does nothing to the law existing prior to its passage and has no effect on the remedies then existing. Based on these premises, the majority then states that the original decision does not violate the public policy of Texas, and if it did so violate it, Texas should not have such public policy, and that in this case the majority is not going to be bound by such public policy.

The majority states that had this decree been for periodic payments, it would be invalid, but being for "an award of alimony in gross or an award of property in lieu of continuing periodic payments", it is valid. As to allowance of a lump sum for support of the wife see Boyd v. Boyd, 1899, 22 Tex. Civ.App. 200, 54 S.W. 380, 381, no writ history. The court in the Boyd case granted the divorce and adjudged the sum of $800 against the husband for future support of the wife, and made the $800 a charge against the husband's interest in 80 acres of land. This action of the trial court was reversed and rendered in favor of the husband, the court saying:

"Under the laws of this state, courts are not authorized in divorce suits to provide permanent alimony for the support of the divorced wife. An allowance may be made for her support during the pendency of the suit for divorce, until the final decree is made in [750] the case. Rev.St. art. 2986. The final decree may also order a division of the common estate, if there be such. Id. art. 2980. But the court cannot devest title out of one of the spouses, and invest it in the other. Neither can the court compel the husband, by final decree, to support the divorced wife. Pape v. Pape, 13 Tex.Civ.App. 99, 35 S.W. 479 * * *."

While the case has no writ history it was cited with approval in Cunningham v. Cunningham, 1931, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305.

The case of McBride v. McBride, Tex. Civ.App.1953, 256 S.W.2d 250, 253, wr. ref., no writ history, quotes authorities from this court and the Courts of Civil Appeals which effectively demonstrate the error of the majority position. In discussing the allowance of permanent alimony, i. e., alimony or support of a wife after a judgment of divorce, that court said:

"First and foremost is that the Court has no jurisdiction and is without authority to grant permanent alimony. Art. 4637, V.A.C.S., Pape v. Pape, 13 Tex.Civ.App. 99, 35 S.W. 479 (San Antonio, writ dism.), Ex parte Ellis, 37 Tex.Cr.R. 539, 40 S.W. 275; Boyd v. Boyd, 22 Tex.Civ.App. 200, 54 S.W. 380; Bond v. Bond, 41 Tex.Civ.App. 129, 90 S.W. 1128; Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305; Ex parte Guinn, 121 Tex. 66, 41 S.W.2d 219; Jinks v. Jinks, Tex.Civ.App., 205 S.W.2d 816 (Texarkana); 27 C.J.S., Divorce, § 202, p. 884, 15 Tex.Jur. p. 649.

* * * * * *

"Secondly, the award of permanent alimony is against the public policy of this State. We quote from Cunningham v. Cunningham, supra [120 Tex. 491, 40 S.W.2d 46]:

"`It thus appears that it was originally the public policy of the Republic to confer authority on the district court to compel either spouse to provide the other with proper maintenance.

"`After a brief time, the Congress enacted a change in the public policy of the Republic, disclosed by sections 8, 6, 13 and 4 of the Act of January 6, 1841, which have been continuously reenacted in substance, and are now embodied in articles 4637, 4636, 4639, and 4638 [V.A.C.S.]'"

In Cunningham v. Cunningham, 1931, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305, a portion of which was quoted in McBride v. McBride, this court, speaking through Justice Greenwood, discusses the cases having to do with both wife and child support as permanent alimony. All the cases held that permanent alimony could not be allowed by the courts of Texas. He applies the same rule to all orders providing support for either the wife and/or child, or children, extending beyond the final judgment in the divorce action. Summarizing as to the order before the court—a child support order —he says that first, no action can be maintained in Texas to enforce the father's continuing duty to support his children, except as provided by the divorce statutes, and, second, that the power of the court is so limited by the divorce statutes that no order can be entered directing payments beyond the date of entry of final judgment. The same reasoning applies to permanent alimony for the support of the wife. As a result of this court's decision in the Cunningham case, the Legislature in 1935, by enactment of Art. 4639a, changed the public policy of the state so as to provide for support of children after final divorce judgment. It is significant that the Legislature has not made any change with regard to the support of the wife by the husband after divorce judgment has become final. On the contrary, the Legislature in 1951 reiterated the public policy of the state when, by Senate amendment to the original bill, it added to Art. 2328b-1, § 2(6) and Art. 2328b-3, § 7 the words "but shall not include alimony for a former wife." This language indicates its intention to preserve the public [751] policy of this state against such awards of permanent alimony.

In the case of Martin v. Martin, Tex. Com.App.1929, 17 S.W.2d 789, 791, disposing of a suit by a wife for support of herself and a child, with no divorce suit pending, this court said:

"* * * our statute (article 4637, Rev.Civ.St., 1925) provides for the allowance of alimony pending suit for divorce, and until final decree is entered. This statute is exclusive in its very nature, and no alimony can be decreed by any court in this state except under its express terms."

See also 20 Tex.Jur.2d 611, § 289. In this state the legal duty of the husband to support his wife ceases upon the severance of the marital bonds, nor has a court the power to decree that a husband may be subjected to such support after divorce. Permanent alimony is not provided for by Texas statutes. Phillips v. Phillips, Tex.Civ.App. 1918, 203 S.W. 77, 79, no writ history, citing Pape v. Pape, 1918, 13 Tex.Civ.App. 99, 35 S.W. 479; Bond v. Bond, 41 Tex.Civ.App. 129, 90 S.W. 1128. The Phillips case was cited with approval in Cunningham v. Cunningham, supra.

How is the public policy of a state determined? In answering this question, Mr. Justice Story for the Supreme Court of the United States, in the case of Vidal v. Girard's Executors, 2 How. 127, at page 197, 11 L.Ed. 205, says: "Nor are we at liberty to look at general considerations of the supposed public interest and policy of Pennsylvania upon this subject, beyond what its constitution and laws and judicial decisions made known to us. The question, what is the public policy of a State, and what is contrary to it, if inquired into beyond these limits, will be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ * * *. We disclaim any right to enter upon such examinations, beyond what the State constitutions, and laws, and decisions necessarily bring before us." (Emphasis added.) This is quoted as authority under Note 93, p. 854, 15 C.J.S. Conflict of Laws, along with numerous other authorities from various states of the union to the same effect.

"In its most liberal application comity cannot be applied in opposition to the positive law of the forum. Although generally state courts accept the laws of a sister state as construed by the courts of that state, even though the construction may appear incorrect in principle, a court is not required to enforce a right that, although valid and enforceable in another state, contravenes the public policy of its state." 12 Tex.Jur.2d 304, § 3. The doctrine of comity does not require that a Texas court enforce a foreign law or give effect to rights arising thereunder if to do so will contravene the public policy of the state or work injury or injustice to a citizen or citizens of the state. It is said that the most liberal state comity cannot require Texas to enforce the laws of another when in conflict with its own laws. Portwood v. Portwood, Tex.Civ.App.1937, 109 S.W.2d 515, 523, dism., w. o. j. To the same effect is the opinion in Nueces Valley Townsite Co. v. San Antonio, U. & G. R. Co., 1933, 123 Tex. 167, 67 S.W.2d 215, 220: "* * * No judgment * * * can be affirmed, which is contrary to the public policy of the state as declared by a valid statute", citing City of Tyler v. St. Louis S. W. Ry. Co., 99 Tex. 491, 500, 91 S.W. 1, 13 Ann.Cas. 911. See also Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App.1926, 279 S.W. 473, no writ history, cited with approval in State of California v. Copus, 1958, 158 Tex. 196, 309 S.W.2d 227, 232.

The case of Herrick v. Minneapolis & St. L. Ry. Co., 1883, 31 Minn. 11, 16 N.W. 413, quoted from by the majority, dealt only with the right to enforce in Minnesota a transitory cause of action for personal injuries suffered in Iowa. The right of action was given by the Iowa statute. Minnesota had no such statute, nor does the court mention [752] a statute of Minnesota prohibiting recovery on such cause of action.

The case recognizes that "liability, if the action be transitory, may be enforced, and the right of action pursued, in the courts of any state which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the state where it is sought to be enforced." (Emphasis added.) A reading of the case shows this principle of law to be well recognized by the Minnesota court and recovery was allowed because it was not against the public policy of Minnesota.

The majority contends that since Texas courts can set aside all or a part of the community and separate property for the support of either the husband or wife and children, we should permit the Oklahoma courts to do so. A sufficient answer to that contention is that the plaintiff is not suing for any such relief, but is suing to recover "title" to a part of defendant's separate property. Up to this point the majority has contended that the Oklahoma judgment does not purport to award the property but is only a judgment in personam; however, it now reverses itself and seeks to justify its position by stating that the Oklahoma court had the right to charge the Texas property by a judgment for support of the wife after divorce. Up to this point also the majority had paid at least lip service to the proposition that the Oklahoma court could render no judgment directly affecting the title to the Texas property.

The majority cite Fain v. Fain, Tex.Civ. App.1928, 6 S.W.2d 403, dism., w. o. j., as sustaining the proposition that the Texas courts have asserted their authority to issue equitable decrees in personam relating to property outside the state. That case is not in point for the reason that the suit was pending in Texas and the parties were in Texas and the judgment was to cancel deeds, certificates of stock, etc. I have never contended that had defendant executed a deed in pursuance of the Oklahoma court decree that deed would be invalid. The Fain case would be in point only in an appeal of this cause, or a contempt proceeding in Oklahoma between plaintiff and defendant. In the Fain case the Texas court could enforce its decree by contempt. In our case the Oklahoma courts cannot so enforce their decree.

In view of the intention of the Legislature when it passed the Uniform Support Act, which was called to our attention for the first time on motion for rehearing, I maintain my position as the correct one, and in accordance with the settled laws and decisions of this state for many, many years. A contrary decision, in my opinion, is contrary to those laws and decisions.

I would grant the motion for rehearing and affirm the judgments of both courts below.

CALVERT, C. J., and SMITH and WALKER, JJ., join in this dissent.

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[1] No complaint is made of the holding of the trial judge in regard to personal property situated in Texas.

[2] See, Currie, Full Faith and Credit to Foreign Land Decrees, 21 U. of Chicago Law Review 620, 1. c. 640.

[3] "The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors, who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it." William L. Prosser in Interstate Publications, part of the Cook lectures at the University of Michigan. See 11 Baylor Law Review 202.

[4] Wherein, among others, Mallette v. Scheerer, 164 Wis. 415, 160 N.W. 182; Matson v. Matson, 186 Iowa 607, 173 N.W. 127 are cited with approval.

[5] McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250, 254, no wr. hist. The opinion deals with a decree providing for permanent alimony in the nature of future periodic payments. The holding was that a Texas court has no jurisdiction and is without authority to grant permanent alimony. It was also said an "award of permanent alimony is against the public policy of this State." However, the opinion further stated that: "We recognize the well established rule that property of either spouse, in a divorce proceeding, may be dedicated to the support of either spouse or the children of the marriage. Clark v. Clark, Tex.Civ.App., 35 S.W.2d 189 (Waco, writ dism.) and authorities there cited." While not deemed controlling on the point under discussion, it seems that all provisions for "wife support" are not invalid in Texas. Property may be charged with a trust for that purpose. In Oklahoma "wife support" may take the form of alimony in gross and may be awarded in the form of real property. This illustrates a difference in detail.

Mosk & Rudman, Norman G. Rudman and M. B. Frieden for Plaintiff and Appellant.

Brock & Shapero, Robert L. Brock and Edwin S. Saul for Defendant and Appellant.

PETERS, J.

Plaintiff Leona Addison (hereafter referred to as Leona) was granted an interlocutory decree of divorce from defendant Morton Addison (hereafter referred to as Morton) on the ground of his adultery. As part of that judgment the trial court held, inter alia, that the only community property was the household furniture and furnishings, ^[643] and that Morton was to pay the current income tax [561] liabilities for both Leona and himself, holding his wife harmless from such claims. ^[644] Both parties have appealed, Leona on the question of the extent of the community property, and Morton on his obligation to pay, without recoupment, the current income tax obligations.

At the time of their marriage in Illinois in 1939, Morton, having previously engaged in the used car business, had a net worth which he estimated as being between $15,000 and $20,000. Leona, however, testified that her husband's net worth was almost nothing at the time of their marriage. In 1949 the Addisons moved to California bringing with them cash and other personal property valued at $143,000 which had been accumulated as a result of Morton's various Illinois business enterprises. Since that time Morton has participated in several California businesses.

On February 20, 1961, Leona filed for divorce and requested an equitable division of the marital property. On trial, Leona asserted two theories in support of her claim of property rights. The first was based upon statements Morton allegedly made to her indicating that she had a proprietary interest in property standing in his name alone, i.e., the theory of oral transmutation. In addition, Leona attempted to apply the recently enacted quasi-community property legislation ^[645] by contending that the property presently held in [562] Morton's name was acquired by the use of property brought from Illinois and that that property would have been community property had it been originally acquired while the parties were domiciled in California.

The trial court found no oral transmutation of Morton's separate property into community property, a finding amply supported by the record, and held the quasi-community property legislation to be unconstitutional. ^[646]

The trial court, as noted above, did find the household furniture and furnishings to be community property and, pursuant to Civil Code section 146, awarded them to Leona. In addition, the court found that the residence of the parties was held in joint tenancy and thus each owned an undivided one-half separate interest therein. Finally, all other property which had been in Morton's name alone was found to be his sole and separate property.

The sociological problem to which the quasi-community property legislation addresses itself has been an area of considerable legislative and judicial activity in this state. One commentator has expressed this thought as follows: "Among the perennial problems in the field of community property in California, the status of marital personal property acquired while domiciled in another State has been particularly troublesome. Attempts of the Legislature to designate such personalty as community property uniformly have been thwarted by court decisions." (Comment (1935) 8 So.Cal.L.Rev. 221, 222.)

The problem arises as a result of California's attempts to apply community property concepts to the foreign, and [563] radically different (in hypotheses) common-law theory of matrimonial rights. [1] In fitting the common-law system into our community property scheme the process is of two steps. First, property acquired by a spouse while domiciled in a common- law state is characterized as separate property. (Estate of O'Connor, 218 Cal. 518 [23 P.2d 1031, 88 A.L.R. 856].) Second, the rule of tracing is invoked so that all property later acquired in exchange for the common-law separate property is likewise deemed separate property. ^[647] (Kraemer v. Kraemer, 52 Cal. 302.) Thus, the original property, and all property subsequently acquired through use of the original property is classified as the separate property of the acquiring spouse.

One attempt to solve the problem was the 1917 amendment to Civil Code section 164 which had the effect of classifying all personal property wherever situated and all real property located in California into California community property if that property would not have been the separate property of one of the spouses had that property been acquired while the parties were domiciled in California. ^[648] Insofar as the amendment attempted to affect personal property brought to California which was the separate property of one of the spouses while domiciled outside this state, Estate of Thornton, 1 Cal.2d 1 [33 P.2d 1, 92 A.L.R. 1343], held the section was unconstitutional. The amendment's effect upon real property located in California was never tested but generally was considered to be a dead letter as the section was never again invoked on the appellate level. ^[649] [564]

Another major attempt to alter the rights in property acquired prior to California domicile was the passage of Probate Code section 201.5. ^[650] This section gave to the surviving spouse one half of all the personal property wherever situated and the real property located in California which would not have been the separate property of the acquiring spouse had it been acquired while domiciled in California. As a succession statute, its constitutionality was upheld on the theory that the state of domicile of the decedent at the time of his death has full power to control rights of succession. (In re Miller, 31 Cal.2d 191, 196 [187 P.2d 722].) In other words, no one has a vested right to succeed to another's property rights, and no one has a vested right in the distribution of his estate upon his death. Hence succession rights may be constitutionally altered. This theory was a basis of the dissent in Thornton.

In the present case, it is contended that Estate of Thornton, supra, 1 Cal.2d 1, is controlling and that the current legislation, by authority of Thornton, must be held to be unconstitutional. Thornton involved a situation of a husband and wife moving to California and bringing with them property acquired during their former domicile in Montana. Upon the husband's death, his widow sought to establish her community property rights in his estate as provided by the then recent amendment to Civil Code section 164. ^[651] The majority held the section unconstitutional on the theory that upon acquisition of the property the husband obtained vested rights which could not be altered without violation of his privileges and immunities as a citizen and also that "to take the property of A and transfer it to B because of his citizenship and domicile, is also to take his property without due process of law. This is true regardless of the place of acquisition or the state of his residence." Estate of Thornton, supra, 1 Cal.2d 1, 5.)

The underlying rationale of the majority was the same in [565] Thornton as it had been since Spreckels v. Spreckels, 116 Cal. 339 [48 P. 228, 58 Am.St.Rep. 170, 36 L.R.A. 497], which established, by a concession of counsel, that changes in the community property system which affected "vested interests" could not constitutionally be applied retroactively but must be limited to prospective application.

Langdon, J., in his dissent in Thornton, conceded the correctness of the vested right theory but argued that the statute was merely definitional, giving no rights to anyone except as provided by other legislation. Therefore, the widow would only be acquiring rights pursuant to a right of succession as granted by statute. As to the constitutionality of this application of amended Civil Code section 164 he declared: "It is a rule of almost universal acceptance that the rights of testamentary disposition and of succession are wholly subject to statutory control, and may be enlarged, limited or abolished without infringing upon the constitutional guaranty of due process of law." (Estate of Thornton, supra, 1 Cal.2d 1, 7.) The majority refused to construe amended Civil Code section 164 in this limited fashion.

The constitutional doctrine announced in Estate of Thornton, supra, has been questioned. Justice (now Chief Justice) Traynor in his concurring opinion in Boyd v. Oser, 23 Cal.2d 613 [145 P.2d 312], had the following to say (at p. 623): "The decisions that existing statutes changing the rights of husbands and wives in community property can have no retroactive application have become a rule of property in this state and should not now be overruled. It is my opinion, however, that the constitutional theory on which they are based is unsound. [Citations.] That theory has not become a rule of property and should not invalidate future legislation in this field intended by the Legislature to operate retroactively."

The underlying theory of Thornton has also been questioned by several legal authorities in this field. (Armstrong, "Prospective" Application of Changes in Community Property Control--Rule of Property or Constitutional Necessity? (1945) 33 Cal.L.Rev. 476; Schreter, "Quasi-Community Property" in the Conflict of Laws (1962) 50 Cal.L.Rev. 206; Comment, Community and Separate Property: Constitutionality of Legislation Decreasing Husband's Power of Control Over Property Already Acquired (1938) 27 Cal.L.Rev. 49, 51-55; see also Comment (1927) 15 Cal.L.Rev. 399.)

Thus, the correctness of the rule of Thornton is open to [566] challenge. But even if the rule of that case be accepted as sound, it is not here controlling. This is so because former section 164 of the Civil Code has an entirely different impact from the legislation presently before us. [2] The legislation under discussion, unlike old section 164, makes no attempt to alter property rights merely upon crossing the boundary into California. It does not purport to disturb vested rights "of a citizen of another state, who chances to transfer his domicile to this state, bringing his property with him. ..." (Estate of Thornton, supra, 1 Cal.2d 1, at p. 5.) Instead, the concept of quasi-community property is applicable only if a divorce or separate maintenance action is filed here after the parties have become domiciled in California. Thus, the concept is applicable only if, after acquisition of domicile in this state, certain acts or events occur which give rise to an action for divorce or separate maintenance. These acts or events are not necessarily connected with a change of domicile at all.

[3] It cannot be successfully argued that the quasi-community property legislation is unconstitutional because of a violation of the due process clause of the federal Constitution. ^[652] Morton has not been deprived of a vested right without due process. [4] As Professor Armstrong has correctly pointed out in her article, supra: "Vested rights, of course, may be impaired 'with due process of law' under many circumstances. The state's inherent sovereign power includes the so called 'police power' right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well being of the people. The annals of constitutional law are replete with decisions approving, as constitutionally proper, the impairing of, and even the complete confiscation of, property rights when compelling public interest justified it."

"* * *"

"The constitutional question, on principle, therefore, would seem to be, not whether a vested right is impaired by a marital property law change, but whether such a change reasonably could be believed to be sufficiently necessary to the public welfare as to justify the impairment." (Armstrong, "Prospective" Application of Changes in Community Property Control--Rule of Property or Constitutional Necessity? (1945) supra, 33 Cal.L.Rev. 476, 495-496.) [567]

[5] Clearly the interest of the state of the current domicile in the matrimonial property of the parties is substantial upon the dissolution of the marriage relationship. This was expressly recognized by the United States Supreme Court in Williams v. North Carolina, 317 U.S. 287 [63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273], where it was said (at p. 298): "Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance.protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal."

In recognition of much the same interest as that advanced by the quasi- community property legislation, many common-law jurisdictions have provided for the division of the separate property of the respective spouses in a manner which is "just and reasonable" and none of these statutes have been overturned on a constitutional basis. ^[653]

In the case at bar it was Leona who was granted a divorce from Morton on the ground of the latter's adultery and hence it is the spouse guilty of the marital infidelity from whom the otherwise separate property is sought by the operation of the quasi-community property legislation. [6] We are of the opinion that where the innocent party would otherwise be left unprotected the state has a very substantial interest and one sufficient to provide for a fair and equitable distribution of the marital property without running afoul of the due process clause of the Fourteenth Amendment. For the same reasons sections 1 and 13 of article I of the California Constitution, substantially similar in language, are not here applicable. [568]

Morton also asserts that there is an abridgment of the privileges and immunities clause of the Fourteenth Amendment ^[654] citing Estate of Thornton, supra, 1 Cal.2d 1. [7] As has been observed "The 'privileges and immunities' protected are only those that belong to citizens of the United States as distinguished from citizens of the States--those that arise from the Constitution and laws of the United States as contrasted with those that spring from other sources." (Hamilton v. Regents of the University of California, 293 U.S. 245, 261 [55 S.Ct. 197, 79 L.Ed. 343], rehg. den. 293 U.S. 633 [55 S.Ct. 345, 79 L.Ed. 717].) Aside from the due process clause, already held not to be applicable, Thornton may be read as holding that the legislation there in question impinged upon the right of a citizen of the United States to maintain a domicile in any state of his choosing without the loss of valuable property rights. ^[655] As to this contention, this distinction we have already noted between former Civil Code section 164 and quasi-community property legislation is relevant. [8] Unlike the legislation in Thornton, the quasi-community property legislation does not cause a loss of valuable rights through change of domicile. The concept is applicable only in case of a decree of divorce or separate maintenance.

It is also argued that the legislation here under discussion may be unconstitutional under the privileges and immunities clause of section 2 of article IV of the United States Constitution. It is there provided that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states." The argument is that under the doctrine of Spreckels v. Spreckels, supra, 116 Cal. 339, California has refused to tamper with vested marital property rights of its own citizens and must therefore accord the same treatment to citizens of other states. [9] As the United States Supreme Court has observed, "Like many other constitutional provisions, the privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination [569] bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures." (Toomer v. Witsell, 334 U.S. 385, 396 [68 S.Ct. 1157, 92 L.Ed. 1460], rehg. den. 335 U.S. 837 [69 S.Ct. 12, 93 L.Ed. 389].) [10] In the case at bar, Leona, as a former nondomiciliary of California, is a member of a class of people who lost the protection afforded them in Illinois had they sought a divorce there before leaving that state. (See Marsh, Marital Property in Conflict of Laws (1st ed. 1952) pp. 233-234 and cases cited in fn. 22.) She has lost that protection, and is thus in need of protection from California. Hence, the discrimination, if there be such, is reasonable and not of the type article IV of the federal Constitution seeks to enjoin.

[11] Additionally, it is urged that the quasi-community property legislation is not applicable to Morton because the legislation was enacted subsequent to the filing of the cause of action but prior to the judgment. This position is untenable. (See Peabody v. City of Vallejo, 2 Cal.2d 351, 363-364 [40 P.2d 486] (the law at the time of judgment is controlling); see also Tulare Dist. v. Lindsay- Strathmore Dist., 3 Cal.2d 489, 526-528 [45 P.2d 972].)

[12] Nor is the statute being applied retroactively. That is so because the legislation here involved neither creates nor alters rights except upon divorce or separate maintenance. The judgment of divorce was granted after the effective date of the legislation. Hence the statute is being applied prospectively.

[13] It follows that the trial court was in error in refusing to apply the quasi-community property legislation to the case at bar.

It has been urged that the trial court's finding of the separate nature of the property was not based solely upon the legal question discussed above, but was predicated, in part, upon the evidence relating to the manner in which that property was acquired. However, the trial court's finding on this issue (other than the general conclusion that the property held by the husband was his separate property) leaves doubt as to the basis of that determination. When first announcing his decision, the trial judge stated that his finding was based upon his assumption of the unconstitutionality of the statute. Subsequent to judgment, and on motion for new trial, he cast some doubt upon his former statement. Under the circumstances, [570] we believe that the issue of the separate or community nature of the property should be tried under conditions wherein the trial court's determination of fact will not be colored by an erroneous belief as to applicable law.

As to Morton's cross-appeal on the question of the payment of taxes without recoupment from Leona, ^[656] it has been conceded that if we reverse on Leona's appeal we must do likewise with the cross-appeal because if Leona is to have a share of the assets derived from the business, the trial court, in its discretion, may decide that she should be liable for a portion of the outstanding taxes.

The judgment is affirmed insofar as it decrees divorce and custody of the minor child. In all other respects the judgment is reversed and the cause remanded to the trial court for retrial in accordance with the views herein expressed, Leona to recover costs on both appeals.

Traynor, C. J., Tobriner, J., Peek, J., Burke, J., and Schauer, J., ^[657] concurred.

McCOMB, J.

I dissent.

I would affirm the judgment for the reasons expressed by Mr. Justice Ford in the opinion prepared by him for the District Court of Appeal in Addison v. Addison (Cal.App.) 40 Cal.Rptr. 330.

"10. All of the community property consisting of furniture and furnishings is awarded to plaintiff as her sole and separate property."

"12. That other than the furniture and furnishings awarded to plaintiff there is no community property and that all property standing in the name of the defendant Morton Cutler Addison is the sole and separate property of said defendant."

Civil Code section 140.5: "As used in Sections 140.7, 141, 142, 143, 146, 148, 149 and 176 of this code, 'quasi-community property' means all personal property wherever situated and all real property situated in this State heretofore or hereafter acquired:"

"(a) By either spouse while domiciled elsewhere which would have been community property of the husband and wife had the spouse acquiring the property been domiciled in this State at the time of its acquisition; or"

"(b) In exchange for real or personal property, wherever situated, acquired other than by gift, devise, bequest or descent by either spouse during the marriage while domiciled elsewhere."

"For the purposes of this section, personal property does not include and real property does include leasehold interests in real property."

Civil Code section 146 provides in part: "In case of the dissolution of the marriage by decree of a court of competent jurisdiction or in the case of judgment or decree for separate maintenance of the husband or the wife without dissolution of the marriage, the court shall make an order for disposition of the community property and the quasi-community property and for the assignment of the homestead as follows:"

"(a) If the decree is rendered on the ground of adultery, incurable insanity or extreme cruelty, the community property and quasi-community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just."

"(b) If the decree be rendered on any other ground than that of adultery, incurable insanity or extreme cruelty, the community property and quasi- community property shall be equally divided between the parties."

The trial court's declaration of its belief that the quasi-community property legislation is unconstitutional may be utilized to interpret its finding of fact as to the extent of community property held by the parties. (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750 [47 P.2d 273]; Estate of McAfee, 182 Cal.App.2d 553, 555 [6 Cal.Rptr. 79]; Dahlin v. Moon, 141 Cal.App.2d 1, 4 [296 P.2d 344]; People v. One 1951 Ford Sedan, 122 Cal.App.2d 680, 683 [265 P.2d 176].)

Illinois, the former domicile of the Addisons, has no specific statutory authority granting a spouse a share in the other spouse's separate property upon divorce. However, in 1949 it enacted legislation authorizing a settlement of property in lieu of alimony (Ill. Rev. Stat. ch. 40, 19 (1959)) and this statute has been frequently utilized in situations analogous to the instant case. (See Schwarz v. Schwarz, 27 Ill.2d 140 [188 N.E.2d 673]; Smothers v. Smothers, 25 Ill.2d 86 [182 N.E.2d 758]; Savich v. Savich, 12 Ill.2d 454 [147 N.E.2d 85].)

[643] 1. The judgment included the following provisions:

[644] 2. "8. Defendant is ordered to pay all current income tax liabilities to the United States Government ... and the current tax liability to the Government of the State of California ... and is ordered to hold plaintiff harmless from such obligations." (Id)

[645] 3. The key sections of the 1961 legislation which are involved in the instant case are as follows:

[646] 4. The court announced: "[T]he Court feels that for that section [Civ. Code, 140.5] to be applied as against the property in this case, which was brought from Illinois after years of marriage there and then years of living in residence in California, would be unconstitutional."

[647] 5. It has been suggested that California might be constitutionally able to abrogate the tracing rule and thus classify property acquired in California without inquiring as to the source of the funds used for the property's acquisition. See Leflar, Community Property and Conflict of Laws (1933) 21 Cal.L.Rev. 221, 229. This, however, does not appear to be the purpose and intent of the quasi-community property legislation.

[648] 6. Sections 162 and 163 of the Civil Code defined separate property then, as they do now, essentially as that property acquired by each spouse before marriage in any manner and during the marriage by gift, bequest, devise or descent. Section 164, before being amended in 1961, included the following: "All other property acquired after marriage by either husband or wife, or both, including real property situated in this State and personal property wherever situated, heretofore or hereafter acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this State, is community property; ..."

[649] 7. One of the results of the 1961 legislation, which established quasi-community property, was the repeal of the 1917 and 1923 amendments of Civil Code section 164, the substance of which is quoted in footnote 6, supra.

[650] 8. As passed in 1935, Probate Code section 201.5 provided: "Upon the death of either husband or wife one-half of all personal property, wherever situated, heretofore or hereafter acquired after marriage by either husband or wife, or both, while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this State, shall belong to the surviving spouse; the other one-half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse, subject to the debts of the decedent and to administration and disposal under the provisions of Division III of this code." (Stats. 1935, ch. 831, p. 2248, 1.)

[651] 9. See footnote 6, supra.

[652] 10. The Fourteenth Amendment to the United States Constitution provides, in part: "... nor shall any State deprive any person of ... property, without due process of law. ..."

[653] 11. Because of the experience of the common-law jurisdictions it is the position of the California Law Revision Commission, whose recommendations formed the basis of the 1961 legislation, that where, as here, the divorce is granted on the ground of adultery, and it is the property of the adulterous spouse that is being divided as the court deems just, no valid constitutional objection can be raised. (See Marsh, A Study Relating to Inter Vivos Rights in Property Acquired by Spouse While Domiciled Elsewhere (1961) 3 Cal. Law Revision Com. Rep., Rec. & Studies I-21, I-26, attached to the commission's report.)

[654] 12. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ..."

[655] 13. Comment (1934) 8 So.Cal.L.Rev. 221, 225.

[656] 14. See footnote 2, supra.

[657] *. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

[212] Harris, Cook & Browning, Larry G. Hyden and Scott T. Cook, Corpus Christi, for petitioner.

Charles R. Cunningham, Corpus Christi, for respondent.

POPE, Justice.

The questions presented concern the trial court's division of military retirement pay and United States Savings Bonds between divorcing spouses in Texas. The property was acquired in states that do not have a community property system. The trial court awarded the wife thirty-five percent of the gross military retirement funds received in the future by the divorced husband and fifty percent of the United States Savings Bonds. Considerable other property was divided about which there is no dispute. The court of civil appeals reversed the judgment in part and held that the retirement pay and savings bonds, acquired by the spouses in a common law property state, were the husband's separate property and, thus, not subject to division. 608 S.W.2d 748. We reverse the judgment of the court of civil appeals with respect to the military retirement pay; we reverse the judgment of the court of civil appeals and affirm the trial court's judgment dividing the savings bonds.

Paul Cameron joined the United States Air Force on June 22, 1954. While in the military, Paul married Sue Akers in Midland, Texas, on September 29, 1957, and the couple immediately moved to California. The Camerons remained in California, a community property state, for only three months. During the balance of Mr. Cameron's military service, the two lived in Arkansas, Indiana, Maryland, Nebraska, Ohio and Oklahoma, all of which observe the common law property system. The Camerons' move to Texas in August 1977 coincided with Paul's retirement from the Air Force. At the time the divorce suit was filed in 1978, both spouses lived in Texas.

I. THE MILITARY RETIREMENT PAY

In awarding a fraction of Paul Cameron's military retirement pay to his wife, the trial court followed a number of Texas decisions approving such a division upon divorce. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965). While this cause was on appeal, the United States Supreme Court held that the supremacy clause of the United States Constitution, article VI, precludes a state court from dividing military nondisability retirement pay on divorce. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In the wake of McCarty, we held that the supremacy clause effectively foreclosed the division of military retirement benefits under Texas community property laws. Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981); see also In re Marriage of Jacanin, 124 Cal.App.3d 67, 177 Cal.Rptr. 86, 87-88 (Ct.App.1981); Dedon v. Dedon, 404 So.2d 904, 905 (La.1981); Hill v. Hill, 291 Md. 615, 436 A.2d 67, 70 (1981).

Mrs. Cameron urged that we should remand the cause to afford the trial court an opportunity to increase her award from the community property as a means of offsetting her loss of thirty-five percent of the future retirement pay. The United States Supreme Court had also closed the door to that remedy. McCarty, 453 U.S. at 228-29 n. 22, 101 S.Ct. at 2739 n. 22; see also Hisquierdo v. Hisquierdo, 439 U.S. 572, 588, 99 S.Ct. 802, 811, 59 L.Ed.2d 1 (1979).

On September 9, 1982, the President signed into law the Uniformed Services Former Spouses' Protection Act, Pub.L.No. 97-252, 96 Stat. 730 (1982). The purpose of the act was to reverse the effect of the McCarty decision. Under the act, a divorce [213] court may divide military retirement pay between the spouses in accordance with the law of the jurisdiction of that court. The act limits such division of retirement pay to periods beginning after June 25, 1981. Id. § 1002(a) [to be codified at 10 U.S.C. § 1408(c)(1)].

Paul Cameron served in the military for more than nineteen years of his twenty-one and a half year marriage to Sue Cameron. Under the act, Sue Cameron is entitled to receive a portion of Paul Cameron's retirement pay. The divorce decree, dated March 29, 1979, awards Sue Cameron "thirty-five percent (35%) of the gross present and future Military Retirement presently being received." Sue Cameron is entitled to recover that thirty-five percent, but not for the period from March 29, 1979 to June 25, 1981. Therefore, we affirm that part of the trial court judgment awarding Sue Cameron thirty-five percent of the military retirement pay, but only for the period beginning after June 25, 1981.

II. THE U.S. SAVINGS BONDS

The court of civil appeals characterized the funds earned by Mr. Cameron in common law jurisdictions as his separate property and, through tracing principles, decided the bonds acquired with the common law funds belonged in his separate, Texas estate. As a part of Mr. Cameron's separate estate, the bonds, according to the court of civil appeals, could not be divested by the trial court. Sue Cameron seeks to uphold the trial court's disposition of the bonds by arguing that we should overrule our decision in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977), or, alternatively, treat separate personality differently than separate realty. Although we view the nature of the savings bonds acquired in common law jurisdictions in a different light than the court of civil appeals, we first address these arguments advanced by Mrs. Cameron.

A. Eggemeyer Correctly States the Law

Since the early days of the Republic of Texas, Texas has carefully drawn a line between the separate and community property of spouses in an attempt to preserve the distinctions between and the integrity of the two classes of property. Any judicial divestiture of separate property would essentially disregard the constitutionally mandated distinction. At times pertinent to this action, the Texas Constitution has provided:

All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife ....

Tex. Const. art. XVI, § 15. In interpreting this provision, the court in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), ruled that the constitution contained the exclusive definition of separate property and that the legislature could neither alter nor enlarge upon it. Section 3.63 of the Family Code authorizes a "just and right" division of the estate of the parties, but it does not provide authority for the transmutation of one spouse's separate property into the other spouse's separate property. Allowing a trial court to divest separate property from one spouse and award it to the other spouse as part of the latter's separate estate would impermissibly enlarge the exclusive constitutional definition of separate property. See Eggemeyer, supra, at 140.

In addition to this constitutional reason for disallowing the divestiture of separate property on divorce, the statutory construction of section 3.63, Tex.Fam.Code Ann., does not imbue our courts with the authority to divest separate property. The Fourth Congress of the Republic of Texas approved in 1840 an "Act adopting the Common Law of England ... and to regulate the Marrital [sic] Rights of Parties." 1840 Laws of the Republic of Texas, at 3-6, 2 H. Gammel, Laws of Texas 177-180 (1898). In defining separate and community property,^[1] the congress decreed that land [214] or slaves acquired before marriage or afterward by gift, devise or descent constituted separate property. All other marital acquisitions feel into the common or community estate of the spouses. One year later, the Fifth Congress of the Republic of Texas approved an act "Concerning Divorce and Alimony." The statute authorized a divorce court to "order a division of the estate of the parties ... as shall seem just and right," and added, "that nothing herein contained shall be construed to compel either party to divest him or herself of title to real estate or to slaves." 1841 Laws of the Republic of Texas, An Act Concerning Divorce and Alimony § 4, at 20, 2 H. Gammel, Laws of Texas 484 (1898) (emphasis added); see McKnight, Commentary on Sec. 3.63, 5 Tex.Tech. L.Rev. 337-338 (1974). The divorce statute made clear it was "the estate of the parties,"—the common property —that the court had the power to divide. In contrast, the congress directed that real estate and slaves—separate property as defined one year earlier by the Fourth Congress —should remain inviolate on divorce. The Fifth Congress, thus, forbade the divestiture of a spouse's separate property, as then defined, by the courts on divorce. Consequently, division of property by a divorce court was limited to the community estate.

The phrase "estate of the parties" has been carried forward in Texas divorce laws and now appears in Tex.Fam.Code Ann. § 3.63(a). This court in Eggemeyer, supra, at 139, affirmed the construction that the phrase referred only to community property.^[2] Four years after Eggemeyer, the 67th Texas Legislature amended section 3.63, but left undisturbed this court's decision that "estate of the parties" refers only to community property. In addition, the scheme enacted by the legislature in section 3.63(b) of the Family Code builds upon the law that property acquired before marriage or afterward by gift, devise or descent cannot be divided by Texas courts.^[3] To now hold that [215] the "estate of the parties" encompasses separate as well as community property would thwart the intent of this most recent pronouncement by the legislature.

Section 3.63(a), moreover, authorizes a "division" of the parties' estate, but provides no authority for a court to "divest" a divorcing spouse's separate property. Castleberry, Constitutional Limitations on the Division of Property Upon Divorce, 10 St. Mary's L.J. 37, 48-55 (1978). As early as in the 1841 divorce statute discussed above, the Texas Congress drew a distinction between allowing courts to "order a division of the estate of the parties" while at the same time forbidding them "to compel either party to divest him or herself of the title to real estate or slaves." 1841 Laws of the Republic of Texas, An Act Concerning Divorce and Alimony § 4, at 20, 2 H. Gammel, Laws of Texas 484 (1898) (emphasis added). The 1981 amendment to Tex.Fam. Code Ann. § 3.63 continues the use of the term "division" when addressing the courts' power to order a disposition of marital property. In Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960), this court recognized and explained the difference between a "division" of property and a "divestiture" of property. A division of the community is similar to a partition of property and "is not a divesting of title of either owner...." Id. at 377, 331 S.W.2d at 303. The division, we said, does not effect a conveyance or transfer of title; the transaction only dissolves the tenancy in common. One year later in McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961), we repeated our holding in Hailey:

Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, Tex.Sup., 331 S.W.2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage.

Id. at 193, 345 S.W.2d at 724 (emphasis added). Thus, the terminology utilized first by the Texas Congress and carried forward to the present day by the Texas Legislature reinforces our decision that separate property is not subject to divestiture by courts on divorce.

It is also suggested that separate property may be divested and granted to the non-owning spouse as an exercise of the police power. The Texas Legislature, however, has not seen fit to exercise this power in favor of divestiture of spouses' separate property on divorce. Presently, section 3.63(a) of the Family Code is silent on the [216] courts' power to take one spouse's property and give it to the other on divorce. In comparison, the California statute concerning the disposition of property on divorce, Cal.Civ.Code § 4800, like Tex.Fam.Code Ann. § 3.63(a), neither expressly prohibits nor provides for divestiture of separate property on divorce. Yet the California courts have consistently refused to interpret the statute as authorizing its courts to divest spouses of their separate property. One California court has explained:

The jurisdiction of the court with respect to property in a divorce action is found in section 137 et seq. of the Civil Code. As a general rule and subject to certain exceptions not material here, the power of the court is limited to a disposition of the community property and a court is without power to pass upon a dispute as to separate property or the disposition of the same.

Roy v. Roy, 29 Cal.App.2d 596, 85 P.2d 223 (Dist.Ct.App.1938); accord, Machado v. Machado, 58 Cal.2d 501, 375 P.2d 55, 58 (1962); Fox v. Fox, 18 Cal.2d 645, 117 P.2d 325, 326 (1941); Simpson v. Simpson, 80 Cal. 237, 22 P. 167, 168 (1889). As recently as 1981 when the Texas Legislature considered and substantially amended Tex.Fam.Code Ann. § 3.63,^[4] it failed to assert any intention to use the police power it might have as a means of divestiture. We do not see, therefore, that the state has authorized the use of any power it might have to take separate property on divorce.

Texas property law contains a rich tradition of respect for the constitutional, Tex. Const. art. XVI, § 15, and statutory, Tex. Fam.Code Ann. § 5.01, boundaries between community and separate property. Our state's courts have steadfastly guarded these estates from, and have been alert to rectify fraudulent encroachment by one estate upon the other. Land v. Marshall, 426 S.W.2d 841 (Tex.1968); Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962); Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105 (1946). The integrity of each estate has been protected by developed principles of law and accounting by which funds or assets may be traced. Tarver v. Tarver, 394 S.W.2d 780 (Tex. 1965); Rose v. Houston, 11 Tex. 324 (1854); Love v. Robertson, 7 Tex. 6 (1851). The law of reimbursement between separate and community estates of spouses at divorce has been recognized since an early date. Rice v. Rice, 21 Tex. 58 (1858); see also Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777 (1952); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Schmidt v. Huppman, 73 Tex. 112, 11 S.W. 175 (1889). A decision that would throw all separate and community property of the divorcing spouses into a hotchpotch so a trial judge could divide the mass without regard to when or how it was acquired would raze much of our developed community property law.

As we look beyond the boundaries of Texas, we find our holding in Eggemeyer that separate property may not be divested puts Texas in conformity with the law in six of the seven other community property states. In Arizona, "The court in pronouncing the decree of divorce had no authority to compel either party to divest himself or herself of the title to separate property." Wiltbank v. Wiltbank, 18 Ariz. 435, 162 P. 60, 61 (1917); see also Collier v. Collier, 73 Ariz. 405, 242 P.2d 537 (1952); Armstrong v. Armstrong, 71 Ariz. 275, 226 P.2d 168 (1951); Schwartz v. Schwartz, 52 Ariz. 105, 79 P.2d 501 (1938); Brown v. Brown, 38 Ariz. 459, 300 P. 1007 (1931); Warren v. Warren, 2 Ariz.App. 206, 407 P.2d 395 (1966).

In California, the court may not assign the separate property of one spouse to the other, nor require one to pay the other any amount in lieu of an assignment or divestiture. Fox v. Fox, 18 Cal.2d 645, 117 P.2d 325 (1941). "[T]he power of the court to dispose of the property of the parties to a divorce action is limited to their community property. It is the general rule that the court has no jurisdiction to assign separate property of one spouse to the other ...." Mitchell v. Marklund, 238 Cal.App. 398, 47 Cal.Rptr. 756 (Ct.App.1965); accord Reid v. [217] Reid, 112 Cal. 274, 44 P. 564 (1896); Davis v. Davis, 222 Cal.App.2d 691, 35 Cal.Rptr. 281 (Ct.App.1963); Thomasset v. Thomasset, 122 Cal.App.2d 116, 264 P.2d 626 (Dist.Ct. App.1954); Barba v. Barba, 103 Cal.App.2d 395, 229 P.2d 465 (Dist.Ct.App.1951); Robinson v. Robinson, 65 Cal.App.2d 118, 150 P.2d 7 (Dist.Ct.App.1944). The California rule may be summed up: "As a general rule and subject to certain exceptions not material here, the power of the court is limited to a disposition of the community property and a court is without power to pass on a dispute as to separate property or the disposition of the same." Roy v. Roy, 29 Cal. App.2d 596, 85 P.2d 223 (Dist.Ct.App.1938); see also Machado v. Machado, 58 Cal.2d 501, 375 P.2d 55 (1962); McKannay v. McKannay, 68 Cal.App. 701, 230 P. 214 (Dist.Ct. App.1924). In California, even the community property must be divided in equal parts rather than, as in Texas, fairly and equitably. Cal.Civ.Code §§ 4800, 4801.

The Idaho Supreme Court, interpreting that state's divorce laws, stated, "The court has the power to divide the community property between the parties, but has no power or authority to award the wife's separate property, or any of it, to the husband." Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940); see also Simplot v. Simplot, 95 Idaho 239, 526 P.2d 844 (1974).

Nevada courts cannot divest separate property and award it to a spouse in fulfillment of the statutory power to make an equitable disposition of the marital property. Stojanovich v. Stojanovich, 86 Nev. 789, 476 P.2d 950 (1970); Jacobs v. Jacobs, 83 Nev. 73, 422 P.2d 1005 (1967); Thorne v. Thorne, 74 Nev. 211, 326 P.2d 729 (1958). The New Mexico law regarding divestment of title parallels that of Nevada. Ridgway v. Ridgway, 94 N.M. 345, 610 P.2d 749 (1980). Louisiana also maintains a distinction on divorce between a couple's community and separate estates. See generally Curtis v. Curtis, 403 So.2d 56 (La.1981); Lane v. Lane, 375 So.2d 660 (La.Ct.App. 1978), writ denied, 381 So.2d 1222 (La.1980); La.Civ.Code Ann. arts. 149, 155, 159, 2341, 2365, 2367, 2369, 2369.1. The Nevada, New Mexico, and Louisiana legislatures have imposed upon spouses a continuing legal duty to provide support for a divorced spouse through alimony. While prohibiting divestment for property settlements, those states expressly permit a transfer in discharge of the legislatively enunciated duty to provide support. See La.Civ.Code Ann. art. 160; Nev.Rev.Stat. § 125.150(3); N.M.Stat.Ann. § 40-4-7.B(1).

The State of Washington is the only community property jurisdiction that holds contrary to Eggemeyer and the rule in all other community property states. Even so, Washington permits divestment only in exceptional circumstances. Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966); Browning v. Browning, 46 Wash.2d 538, 283 P.2d 125 (1955).

The National Conference of Commissioners on Uniform State Laws in the Uniform Marriage and Divorce Act has accepted the principle that separate property in community property states should not be subjected to divestment by a trial court on divorce. The recommended draft for community property jurisdictions affirmatively states that "the court shall assign each spouse's separate property to that spouse."^[5] The [218] comment explains that the commissioners from community property states adhered to the distinction between community and separate property, and the draft provides only for the division of community property. Unif.Marriage & Divorce Act § 307 Commissioners' Comment, 9A U.L.A. 144 (1973).

In a broader context, Professor Marsh in his treatise, Marital Property In Conflict Of Laws 182 (1952), writes that "in none of the United States at the present time does either spouse acquire a marital-property interest in the property of the other owned at the time of marriage, whether movable or immovable." Accord, K. Gray, Reallocation Of Property On Divorce 127, 132 (1977). Section 257 of the Restatement Of Conflict Of Laws (Second) and its comment affirms the principle that a spouse gains no marital property interest in the pre-marital acquisitions of the other spouse by virtue of the marriage.^[6]

The undercurrent of arguments to this court in support of the divestment of separate property is that Texas does not allow permanent alimony.^[7] Section 3.59, Tex. Fam.Code Ann., authorizes support of a spouse only until a final decree. See Eichelberger v. Eichelberger, 582 S.W.2d 395, 402 (Tex.1979). The policy against permanent alimony is so strong that the Texas Legislature has stated that the duty of support will be honored under the laws of other states except that the rule "shall not include alimony for a former wife." Tex. Fam.Code Ann. § 21.21; see McElreath v. McElreath, 162 Tex. 190, 228-229, 345 S.W.2d 722, 747 (1961).

One reason that Texas denies permanent alimony is that more than a century and a half ago, the state, along with Louisiana, took the lead to give wives equality with their husbands in the ownership of property they acquired during coverture. The common law recognized the wife's existence only through the husband, who upon marriage became the owner of the wife's property. Castleberry, supra, at 55. In addition, spouses share the gains of their marriage equally under our community property legacy from Spain. Common law jurisdictions are yielding to this equal system of marital property ownership. See K. Gray, supra, at 63-67, 132-133.

It is urged that we, by indirection, should resolve the problem of the state's lack of alimony laws by allowing our courts to divest a spouse of separate property and award it to the other spouse. In so doing, it is argued that we would be insuring the state that a worthy spouse^[8] would receive [219] the financial support necessary to keep him or her from being a charge of society. As noted earlier, New Mexico currently allows its courts to transfer spouses' separate property on divorce, but the statute permitting such expressly notes that the transfer is considered alimony. N.M.Stat.Ann. § 40-4-7.B(1). Divestiture of separate property for reason of financial support is nothing less than alimony. Our legislature has not authorized Texas courts to grant permanent alimony, and we do not perceive that it is our function to legislate in its stead.

Whatever may be the reasons for the strong Texas legislative policy against permanent alimony, this court will respect it. To do otherwise requires this court to disregard the rules of statutory construction, the history of the law prohibiting divestment of separate property, the developed law of the other community property states; it would wipe out the legal distinctions between property, generate unnecessary constitutional problems about the classification and taking of property, create a new cycle of problems in construing amended article 3.63(b) of the Family Code, and would be contrary to the directions the law is taking in both common and community property law states as well as in the provisions of the Uniform Marriage and Divorce Act. The rules stated in this cause and in Eggemeyer harmonize these problems and keep the Texas community law consistent with the law of the other community property states. If there is a need for permanent alimony, it must come from the legislature where the policy arguments can be fully addressed by the whole public.

B. Separate Personal Property, Like Separate Real Property, May Not Be Divested

The court in Eggemeyer was unanimous in its decision, as stated by the dissent, that the "estate of the parties" includes both real and personal property. In 1969, article 4638, later to become section 3.63 of the Family Code, was amended to eliminate the statutory prohibition concerning divestment of realty. As previously written, there was a question whether article 4638 meant that separate personality could be divested. The Texas Legislature by its 1969 amendment of section 3.63 removed this provision, and as now written, the statute avoids the charge that it violates the due course of law, Tex. Const. art. I, § 19, equal protection, Tex. Const. art. I, § 3, and the constitutional classifications of property, Tex. Const. art. XVI, § 15. See also Castleberry, supra, at 40-46.

Sue Cameron argues that Eggemeyer stands only for the narrow rule that separate realty may not be divested; separate personality, she argues, may be divested. Only realty was involved in Eggemeyer, but, on the issue concerning an unconstitutional classification between realty and personalty, the entire court agreed that realty and personalty must be treated alike.^[9] To hold that the owner of separate realty may not be divested of his property, but that the owner of vendor's lien notes secured by the same realty or that the owner of stock in a corporation owning the realty could be divested would be an unreasonable classification of property. Railroad Commission v. Miller, 434 S.W.2d 670 (Tex.1968); see San Antonio Retail Grocers, Inc. v. Lafferty, 156 Tex. 574, 297 S.W.2d 813 (1957); Ground Water Conservation Dist. No. 2 v. Hawley, 304 S.W.2d 764 (Tex.Civ.App.—Amarillo), writ ref'd n.r.e. per curiam, 157 Tex. 643, 306 S.W.2d 352 (1957). Landholders cannot be so favored over holders of other kinds of property. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971); State v. Standard Oil Co., 130 Tex. 313, 107 [220] S.W.2d 550, 557 (1937). The term "property" includes every species of property. Gulf, C. & S.F. Ry. v. Fuller, 63 Tex. 467, 469 (1885); Renault, Inc. v. City of Houston, 415 S.W.2d 948 (Tex.Civ.App.—Waco), rev'd on other grounds, 431 S.W.2d 322 (Tex.1968); see Castleberry, supra, at 46.

Our construction of the statute corresponds with the law that prevails in community property states. Arizona holds that there may be no divestment of either separate realty, Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948), or of separate personalty, Warren v. Warren, 2 Ariz.App. 206, 407 P.2d 395 (Ct.App.1966). California denies a divestment of separate realty, Reid v. Reid, 112 Cal. 274, 44 P. 564 (1896), and treats separate personalty in the same manner, Donovan v. Donovan, 223 Cal.App.2d 691, 36 Cal.Rptr. 225 (Dist.Ct.App.1963). Idaho held the same in Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974). In Nevada, neither the separate realty, Thorne v. Thorne, 74 Nev. 211, 326 P.2d 729 (1958), nor the separate personalty, Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960), may be divested in settling marital property rights. We can find no justifiable reason for treating separate personalty in a different manner than separate realty in divorce proceedings. As a result, we reject Sue Cameron's argument to allow the divestiture of separate personalty upon divorce.

C. "Separate" Property Under Common Law and Community Property Regimes

Mr. Cameron acquired most of the U.S. Savings Bonds here at issue during his marriage to Sue Cameron while the couple was domiciled in common law states. Reviewing the action of the trial court, which had awarded Mrs. Cameron one-half of the bonds, the court of civil appeals characterized the bonds earned by Mr. Cameron in the common law jurisdictions as his separate property and held that the trial court could not divest a spouse's separate personalty. 608 S.W.2d at 751. We recognize that property acquired in common law jurisdictions has historically been termed "separate" property, but we hold that the property spouses acquire during marriage, except by gift, devise or descent should be divided upon divorce in Texas in the same manner as community property, irrespective of the domicile of the spouses when they acquire the property.

Characterization of the common law marital estate as separate property comes from the common law concept that the wife possessed no legal identity apart from her husband in whom legal title to the couple's property vested. See Oldham, Property Division in a Texas Divorce of a Migrant Spouse: Heads He Wins, Tails She Loses?, 19 Hous.L.Rev. 1, 3-15 (1981); see generally Dickson v. Strickland, 114 Tex. 176, 201-02, 265 S.W. 1012, 1021-22 (1924). Beginning with the enactment of the various Married Women's Property Laws throughout the nation during the nineteenth and early twentieth centuries, common law jurisdictions began to modify statutorily their archaic treatment of wives' rights in marital property. See Glendon, Matrimonial Property: A Comparative Study of Law and Social Change, 49 Tul.L.Rev. 21, 28-35 (1974). As a result of the statutes, courts in thirty-nine of the forty-two common law property states^[10] now possess power to fashion upon divorce an equitable distribution of property acquired during marriage. See Freed & Foster, Divorce in the Fifty States: An Overview, 14 Fam.L.Q. 229, 249-52 (1981). A husband in a common law state may now have full paper title to property, but the non-acquiring wife holds valid and substantial rights to an equitable share of the "separate" marital property on divorce. See H. Marsh, Jr., Marital Property in Conflicts of Law 22-67 (1952).^[11]

[221] Common law jurisdictions have been compelled to recognize the justness of a community property system which recognizes the rights of both the husband and wife during the period of their acquisition of real and personal property. Common law marital property is not and should not be regarded by Texas courts as "separate" property in the context of our community property law on divorce. See Tex. Const. art. XVI, § 15. Four of the eight community property states in recent years have addressed this difference in meanings of terms and have recognized the distinctions between the community and common law property concepts of "separate" property. Each court has looked behind the label when dividing marital property, that which was acquired during marriage.

In Hughes v. Hughes, 91 N.M. 339, 573 P.2d 1194 (1978), the New Mexico Supreme Court considered the disparate natures of separate property in common law and community property states. The court held that New Mexico courts should not treat separate property as recognized in common law jurisdictions the same as separate property under community property laws. Id. at 1201-02. The court further held the bare legal principle that a wife has no legal title in her husband's separate common law marital property could not be accepted in light of the benefits, incidents, and immunities recognized as attaching to marital property in a wife's favor by courts in common law property states. Id. at 1197-99.

The Idaho Supreme Court in Berle v. Berle, 97 Idaho 452, 546 P.2d 407 (1976), also viewed the separate property concept in the common law state of New Jersey as significantly different from the concept of separate property under Idaho's community property laws. The trial court in Berle had characterized the husband's common law marital property as separate property and had concluded that Idaho's prohibition against divesting separate property entitled the husband to all the common law property. In reversing the judgment of the trial court, the Idaho Supreme Court maintained that Idaho's prohibition of divestiture was restricted to "separate" property within the context of the community property laws and did not prevent that state's courts from acknowledging the rights of spouses to an equitable division of common law separate property on divorce. Id. at 409.

In Rau v. Rau, 6 Ariz.App. 362, 432 P.2d 910 (1967), the court of appeals in Arizona confronted a judgment in which an Arizona trial court had equally divided personalty (savings bonds) and realty (a farm) that the Raus bought with funds they acquired during their marriage in Illinois, a common law state. The court determined that a spouse in Illinois holds an equitable interest upon divorce to a fair and just division of jointly earned marital property even though title to such property rests in the name of only one spouse. Comparing the definition of separate property under Arizona statutory law^[12] with the nature of separate property as found in Illinois, the court maintained that Arizona's prohibition against divestiture of spouses' "separate" property would not preclude a division of the Illinois common law separate property. See also Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060 (1975). We agree with the New Mexico, Idaho, Arizona, and Nevada courts that substantively distinguish common law marital property from the separate property of community property jurisdictions.

The 67th Texas Legislature last year adopted this sensible approach when it authorized a division, on divorce, of common law property acquired during marriage in a [222] manner like they would divide community property on divorce. This amendment to Tex.Fam.Code Ann. § 3.63 provides as follows:

(b) In a decree of divorce or annulment the courts shall also order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1) property that was acquired by either spouse while domiciled elsewhere and that would have been community property if the spouse who acquired the property had been domiciled in the state at the time of the acquisition; or

(2) property that was acquired by either spouse in exchange for real or personal property, and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

The bill analysis accompanying the subsequently adopted statute correctly explained:

Two separate systems of marital property regimes exist in the various states: common law and community property. Each regime provides for the welfare and estate of both spouses upon dissolution of marriage. The end result is similar while the nomenclature is different. In community property states, like Texas, each spouse has legal title in property accumulated during the marriage. In common law states, the same property may belong to one spouse, but the other spouse is found to have acquired an equitable interest that can be vested upon dissolution of the marriage.

House Comm. On The Judiciary, 67th Legislature Of Texas, Bill Analysis To H.B. 753, p. 1 (1981). In enacting subsection (b) of Tex.Fam.Code Ann. § 3.63, the legislature established a workable, uncomplicated framework for effecting just divisions of common law marital property on divorce in Texas. The amendment, however, applies only to suits for divorce or annulment in which a hearing has not been held before September 1, 1981. 1981 Tex.Gen.Laws, ch. 712, § 3, at 2656. The trial court rendered a judgment divorcing the Camerons in 1979. Rather than returning in this cause to the now discredited approach of assuming the equivalence of "separate" property under community property systems and common law "separate" property, and rather than embarking upon a cumbersome conflict of laws approach^[13] which produces essentially the same result, we judicially adopt Tex. Fam.Code Ann. § 3.63(b) as part of the substantive law of this state.

It has been suggested that section 3.63(b) may run afoul of this court's decision in Eggemeyer, because the statute may unconstitutionally authorize trial courts to interfere with the rights of a spouse holding legal title to common law marital property. See Oldham, supra, at 37-46; Stewart & Orsinger, Fitting a Round Peg into a Square Hole: Section 3.63, Texas Family Code, and the Marriage that Crosses State Lines, 13 St. Mary's L.J. 477, 486-91 (1982).

As stated above, divorce courts in all but three of the common law jurisdictions may effect an equitable distribution of the marital assets upon divorce. The New Mexico Supreme Court explained in Hughes:

[T]he wife, in many common law states..., has inchoate equitable rights to her husband's separate property where she has made contributions to preserving and bettering that property, whereas in a typical community property state she has no such rights since she has community property rights instead.

Hughes, supra, at 1199. A Texas court that makes a distribution on divorce of the common law marital estate equivalent to what would occur in the common law jurisdiction where the couple was domiciled when they acquired the property, does not impair the [223] rights of spouses in the common law marital property. No divestment transpires because the acquiring spouse loses no more in a Texas divorce than he loses in a judgment rendered in an equitable distribution common law state. Berle, supra, at 411. Our judicial adoption of the quasi-community property amendment to Tex.Fam.Code Ann. § 3.63 does not violate article I, section 19 of the Texas Constitution.

III. CONCLUSION

The framework for the Spanish community property system of marital property builds upon a distinction between spouses' community and separate estates. This distinction springs from a reality that property acquired during marriage other than by gift, devise or descent is the product of a unique, joint endeavor undertaken by spouses. That is the concept of matrimony. Community property owes its existence to the legal fact of marriage, and when the parties to that compact determine their relationship should end, property acquired during marriage is and should be divided among them in a just and right manner. By way of contrast separate property, in the community property setting, owes its existence to wholly extramarital factors, things unrelated to the marriage. In relation to that property, the parties are, in essence, strangers; they are separate. Any property that arises independently of marriage as a means of "equitably" balancing the spouses' positions on divorce cannot be justified. Such a view rejects the viability of the community property system and ignores the carefully hewn jurisprudence that attempts to preserve the integrity of the two estates. The vast majority of common law property states have demonstrated that they too recognize the special nature of property acquired through the corroborative efforts of spouses. In adopting Tex. Fam.Code Ann. § 3.63(b) as the substantive law of the state, we continue the national trend endorsing the use of marital property as the means of settling the equities between divorcing spouses.

We reverse that part of the judgment of the court of civil appeals that denied Sue Cameron fifty percent of the savings bonds and affirm the judgment of the trial court ordering the equal division.

We reverse that part of the judgment of the court of civil appeals that reversed the trial court's judgment that Sue Cameron receive thirty-five percent of the military retirement pay, and we render judgment awarding Sue Cameron her share of the military retirement pay but only from June 25, 1981.

Costs are adjudged against the respondent.

McGEE, Justice, concurring.

I agree with the judgment of the Court. I also concur in that portion of the majority opinion which holds that marital property acquired in a common law state is subject to division by a Texas court upon the parties' divorce. I cannot, however, accept the majority's unnecessary discussion of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). Since the entire Court agrees that the savings bonds at issue in this case are not separate property, the majority's discussion of separate personalty is obitur dictum. As in Eggemeyer, a majority of this Court has reached conclusions grounded on statutory and constitutional considerations not essential to the disposition of the case. Because I do not believe Eggemeyer correctly states the law in all respects, I respectfully disagree with the majority's statement to the contrary.

In Eggemeyer, the issue before the Court was whether the trial court, in its divorce decree, could "divest one spouse of his separate realty and transfer title to the other spouse." 554 S.W.2d at 138 (emphasis added). Virginia Eggemeyer's principal contention was that section 3.63, unlike former article 4638, did not restrict the power of the trial court to divide the separate realty of one spouse and award the other spouse a fee interest therein. The Court rejected this contention, holding that the legislature had intended to recodify the law as it existed before the enactment of the Family Code.

[224] The majority opinion in Eggemeyer, however, transcended the precise issue before the Court and advanced three additional grounds for its decision:

(1) the phrase "estate of the parties," as employed in section 3.63 of the Family Code refers only to the community property of the parties and prohibits the division of separate property;

(2) a division of the separate property of one spouse would create a form of separate property not provided for in article XVI, section 15 of the Texas Constitution;

(3) a division of the separate property of one spouse is a taking of property not justified by any public benefit, and deprives that spouse of his property without due process in violation of article I, section 19 of the Texas Constitution.

In this case, the majority states that these supposed limitations on the power of the trial court are equally applicable to an attempted division of separate personalty. For the following reasons, I disagree.

A. Eggemeyer Is Not Stare Decisis on the Divisibility of Separate Personalty under the Family Code.

The first statutory ground advanced in Eggemeyer was that the legislature intended to enact the Family Code as a codification of existing law. 554 S.W.2d at 139. Article 4638, the forerunner of section 3.63, expressly prohibited divestiture of realty by a trial court when making a fair and just division of property in divorce proceedings. For over a hundred years, however, Texas courts divided separate personalty when equity demanded such a division. Hedtke v. Hedtke, 112 Tex. 404, 409, 248 S.W. 21, 22-23 (1923); Fitts v. Fitts, 14 Tex. 443, 450, 453 (1855); Trader v. Trader, 531 S.W.2d 189, 190 (Tex.Civ.App.—San Antonio 1975, writ dism'd); Tullis v. Tullis, 456 S.W.2d 172, 173 (Tex.Civ.App.—El Paso 1970, writ dism'd); Dillingham v. Dillingham, 434 S.W.2d 459, 461 (Tex.Civ.App.— Fort Worth 1968, writ dism'd); Grant v. Grant, 351 S.W.2d 897, 898 (Tex.Civ.App.— Waco 1961, writ dism'd); McCart v. McCart, 275 S.W.2d 155, 157 (Tex.Civ.App. —Fort Worth 1955, no writ); Grisham v. Grisham, 255 S.W.2d 891, 893 (Tex.Civ.App. —Waco 1953, no writ); Hamm v. Hamm, 159 S.W.2d 183, 185-86 (Tex.Civ.App.—Fort Worth 1942, no writ); Dale v. Dale, 141 S.W.2d 718, 719 (Tex.Civ.App.—Beaumont 1940, no writ).

The statutory prohibition of divestiture of realty was not carried forward in section 3.63 of the Family Code. Despite the obvious omission of that prohibition, the Court determined the legislative intent behind section 3.63 was to codify the law as it existed at that time. Eggemeyer, 554 S.W.2d at 139. Thus, section 3.63 did not authorize divestiture of separate realty upon divorce. Id.

This holding alone would have been sufficient to sustain the Court's judgment in Eggemeyer. Nevertheless, the Court advanced a second statutory ground as a basis for its decision. Upon exmaining section 3.63, the Court held that the "estate of the parties" was limited to community property. In so doing, the Court redefined the statutory language in a manner wholly different from that which existed previously. Consequently, the Court's construction of section 3.63 was inconsistent with its simultaneous determination that the Family Code codified the existing law.

In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), this Court construed the phrase "estate of the parties" as follows:

The estate subject to division, under the statute, includes all property of the parties whether community property or separate property. The meaning of the statute is not different from what it would have been had the word `property' been substituted in its phraseology for the word `estate.'

Id. at 408, 248 S.W. at 22 (emphasis added). Notwithstanding continued judicial and legislative acceptance of this construction, the majority in Eggemeyer examined several relatively recent cases and determined "estate of the parties" referred only to community property. See Reardon v. Reardon, 163 [225] Tex. 605, 359 S.W.2d 329 (Tex.1962); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Mansfield v. Mansfield, 308 S.W.2d 80 (Tex.Civ.App.—El Paso 1957, writ dism'd). Upon closer examination, it is clear those cases dealt solely with the question of whether title to community real estate could be divested. None of these cases purported to construe "estate of the parties."^[14]

The courts of this State historically have interpreted "estate of the parties" to mean all property of the parties, whether community or separate. E.g., Hedtke v. Hedtke, 112 Tex. at 408, 248 S.W. at 22; Fitts v. Fitts, 14 Tex. at 450; Trader v. Trader, 531 S.W.2d 189, 190 (Tex.Civ.App.—San Antonio 1975, writ dism'd). Any doubt as to the correct construction of a statute must be considered removed by consistent interpretation by the appellate courts. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 193 (Tex.1968); see also Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931). As Justice Norvell cautioned in Marmon, the doctrine of stare decisis is especially weighty in statutory construction:

"It is one thing for the judicial branch to amend a statute and quite another thing to modify a rule of common law. And, to overrule a court's uniform interpretation of a statute which has persisted over a long period of years as evidenced by numerous decisions, is very like amending a statute. That is why the rule of stare decisis is highly binding in this field." 430 S.W.2d at 193. Because the definition of "estate of the parties" was not essential to the holding in Eggemeyer, and because it represented a departure from established construction, I do not regard the Eggemeyer definition as a correct statement of the law.^[15]

B. Eggemeyer Is An Incorrect Construction of the Texas Constitution.

The Court's judgment in Eggemeyer, as noted above, was fully supported by the holding that section 3.63 was merely a recodification of existing law. Thus, it is not surprising that the subsequent discussion of the constitutional limitations on the division of separate property in general has been treated as dicta, Muns v. Muns, 567 S.W.2d 563, 565 (Tex.Civ.App.—Dallas 1978, no writ), and has not been viewed as prohibiting an award of one spouse's separate personalty to the other. York v. York, 579 S.W.2d 24, 25 (Tex.Civ.App.—Beaumont 1979, no writ); Eichelberger v. Eichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App.— Waco 1977), rev'd on other grounds, 582 S.W.2d 395 (Tex.1979). The constitutional bases of Eggemeyer should not be regarded as authoritative since this Court will not decide a case on constitutional grounds if the case can otherwise be disposed of. See, e.g., Wood v. Wood, 159 Tex. 350, 359, 320 S.W.2d 807, 813 (1959); San Antonio General Drivers, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 647, 299 S.W.2d 911, 915 (1957); Waller v. State, 68 S.W.2d 601, 603 (Tex.Civ.App.—Amarillo 1934, writ ref'd). [226] In my opinion, there are no constitutional limitations on the power of the trial court to divest a spouse of his or her separate property.

Prior to its amendment in 1980, article XVI, section 15 of the constitution provided as follows:

All property, both real and personal, of the wife, owned prior to marriage or claimed by her before marriage by gift, devise or descent, shall be the separate property of the wife; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband ....

Citing Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), the majority in Eggemeyer stated that the constitutional definition of separate property was exclusive and could not be altered or enlarged by the legislature. Thus, even if section 3.63 could be construed as permitting a divestiture of one spouse's separate realty, the trial court was still powerless to make an award of one spouse's separate property to the other in its divorce decree.

What the Court overlooked in Eggemeyer is that the division of property upon divorce does not occur during the marriage, but at the moment of divorce; the division of property and the divorce decree are a single, integrated action. Application of those rules which characterize property before and during marriage is inappropriate. An analogous situation involves community property that is not divided upon divorce. We have consistently held such property is owned by the ex-spouses separately as tenants in common. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970); Taylor v. Catalon, 140 Tex. 38, 41-42, 166 S.W.2d 102, 104, (1942); Kirkwood v. Domnan, 80 Tex. 645, 647-48, 16 S.W. 428, 429 (1891). In both instances, this "separate property" is not within the constitutional definition, but is created by the fact of divorce.

There are, moreover, at least two additional situations in which property that is neither "owned prior to marriage" nor acquired thereafter by "gift, devise or descent" is treated as separate property. The first is a mutation of separate property. The second, personal injury awards, is particularly instructive for the purposes of this case. In Graham v. Franco, 488 S.W.2d 390 (Tex.1972), we unanimously held that such awards were the separate property of the injured spouse despite their exclusion from the constitutional definition. More importantly, we limited Arnold v. Leonard to its facts. Thus, the most that can be gleaned from Arnold v. Leonard is that the legislature is powerless to enact a law classifying the rents and revenues of the wife's separate realty as her separate property.

There is, however, a more basic flaw in the "implied exclusion" reasoning of Arnold v. Leonard. Logically extended, it denies the existence of the husband's separate property since the constitution, until the 1980 amendment of article XVI, section 15, provided only for the separate property of the wife. Under a strict reading of Arnold v. Leonard, all property owned by the husband before marriage and acquired thereafter during marriage is necessarily community.

The fact that property is community or separate is pertinent to its division upon divorce. The courts of appeals have evolved several equitable rules which, quite properly, limit the trial court's discretion to award the separate property of one spouse to the other spouse to extraordinary circumstances. Muns v. Muns, 567 S.W.2d 563, 567 (Tex.Civ.App.—Dallas 1978, no writ); Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ. App.—Houston [1st Dist.] 1974, no writ); Bryant v. Bryant, 478 S.W.2d 602, 605 (Tex. Civ.App.—Waco 1972, no writ); Dorfman v. Dorfman, 457 S.W.2d 91, 95 (Tex.Civ.App.— Waco 1970, no writ); Keene v. Keene, 445 S.W.2d 624, 626 (Tex.Civ.App.—Dallas 1969, writ dism'd). Equity and the theory of community property argue for such rules. For over a century, Texas courts awarded separate personalty upon divorce. Prior to Eggemeyer, this was not considered a constitutional problem. It was the statutory provision, not the constitution which prohibited the award of separate realty upon divorce. [227] Therefore, I would hold that article XVI, section 15 of the constitution does not prohibit a trial court from dividing the separate property of one spouse upon divorce.

The second constitutional basis for the Court's decision in Eggemeyer was the due process clause of the Texas Constitution. Tex.Const. art. I, § 19. In Eggemeyer, the Court stated that the division of one spouse's separate property was not justified by any benefit to the public welfare. Because this "taking" of private property was not grounded upon the police power, the legislature could not constitutionally authorize a division of one spouse's separate property.

I disagree with this holding. As stated in the dissent in Eggemeyer, "[t]he special relationship between the State and the institution of marriage has often been recognized." 554 S.W.2d at 147. The state's interest in the marital relationship provides a sufficient and justifiable public purpose for divestiture of one spouse's separate property. Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654 (1897).

By ordering periodic child support payments, Texas courts are empowered to divest a parent of his separate personalty. Tex.Fam.Code Ann. § 14.05. Likewise, the state imposes a duty upon the spouses to support each other during the marriage. Id. § 4.02. Although a spouse must look first to the community for support, the other spouse may be required to employ his or her separate funds if community funds are insufficient. Norris v. Vaughan, 152 Tex. 491, 502-03, 260 S.W.2d 676, 683 (1953); Callahan v. Patterson, 4 Tex. 61, 66 (1849). In neither case is there a violation of due process. The valid state interest in the marital relationship justifies the burdens imposed upon a spouse's separate property. That same valid state interest allows the state to provide rules for the dissolution of the marriage and the division of both separate and community property upon dissolution.

Section 3.63 of the Family Code and previous Texas divorce statutes have required the division of marital property according to equitable principles. In many circumstances, equity may require an unequal division of community property. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). Likewise, in extreme cases, equity may require the trial court to award a portion of one spouse's separate personalty to the other. I would hold that article I, section 19 of the Texas Constitution is no impediment to an award of one spouse's separate property to the other.

The majority opinion suggests that allowing a divestiture of separate personalty under section 3.63, in light of the holding in Eggemeyer that separate realty cannot be divested, is a violation of equal protection under the Fourteenth Amendment of the United States Constitution and article I, section 3 of the Texas Constitution. The argument is that a classification based on land ownership arbitrarily discriminates against those persons owning separate personalty rather than separate realty. I do not find this contention persuasive.

The equal protection clauses of both the federal and state constitutions protect individuals against arbitrary discrimination by the state. The state, however, may classify its citizens into reasonable classes, and treat these different classes of persons in different ways. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971); Railroad Commission v. Miller, 434 S.W.2d 670, 673 (Tex.1968); Bjorgo v. Bjorgo, 402 S.W.2d 143, 148 (Tex.1966).

The test under both the state and federal constitutions is whether the classification is reasonable and not arbitrary. Reed v. Reed, 404 U.S. at 76, 92 S.Ct. at 254 (1971); Railroad Commission v. Miller, 434 S.W.2d at 673; San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 577, 297 S.W.2d 813, 815 (1957). There must be some ground of difference which has a fair and substantial relationship to the purpose of the legislation, so that all persons similarly situated are similarly treated. New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976); Railroad Commission v. Miller, 434 S.W.2d at 673.

[228] There is a rational purpose for the different treatment accorded owners of real and personal property by the trial courts upon divorce. Realty, by definition, is unique. By contrast, personalty is often fungible and more easily replaced than realty. If a spouse's personalty is genuinely unique and irreplaceable, the trial court can consider this fact under section 3.63.

C. A Divestiture of Separate Property Is Not an Award of Alimony.

The majority opinion asserts that a divestiture of separate property "is nothing less than alimony." Thus, the majority concludes that a division of one spouse's separate property is not only prohibited by section 3.63 and the Texas Constitution, but is also contrary to public policy. I disagree.

A divestiture of separate property and an award of alimony are totally different. Unlike a divestiture of separate property, alimony is a personal obligation of one spouse to support the other which continues after a final decree of divorce. Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex.1967). By contrast, a divestiture of separate property, like a division of community property, is an isolated event which occurs at the moment of divorce. Alimony and an award of separate property are two distinct means of achieving a single end: the financial support of the ex-spouse. Because Texas does not permit alimony, our courts, with the implicit approval of the legislature, have permitted divestiture of one spouse's separate personalty to ensure that the other spouse does not become a destitute ward of the state.

The majority also stresses that its opinion conforms with the law of other community property jurisdictions. While it is true that no state other than Washington permits a divestiture of separate property, it is equally true that the courts of these states are empowered to award permanent alimony. This is a critical distinction which the majority relegates to a footnote.

D. Conclusion.

Neither Eggemeyer nor the majority opinion in this case should be viewed as anything but dicta regarding the power of the trial court to divide separate personalty upon divorce. In my opinion, section 3.63 of the Family Code allows the trial court to divest a spouse of his or her separate personalty. Furthermore, I do not believe the Texas Constitution prohibits such a division.

BARROW and SONDOCK, JJ., join in this concurring opinion.

GREENHILL, Chief Justice, concurring.

I agree with the substance of the concurring opinion of Mr. Justice McGee.

I also agree with the holding of the Court that marital property acquired in a common-law jurisdiction is not separate property within the framework of the Texas community property laws.

The majority opinion gives several grounds for its holdings with which I obviously do not agree. Since there are many reasons given, it is not necessary to reach constitutional grounds, particularly the "due process" argument. A wise rule of opinion writing and appellate judgments is that constitutional grounds are not decided unless it is absolutely necessary.

A redeeming feature of the majority opinion, as I understand it, is that it does not reach the "due process" point. If it even suggests such a holding, it is unnecessary to the opinion.

The Court's opinion does not disavow the dictum of the earlier opinion in Eggemeyer. Separate personal property was not before the Court in Eggemeyer; and any observation about "due process" was, in my opinion, clearly dictum. With this state of the law, we also have the undisturbed language of Hedtke that it was permissible to deal differently with separate realty and separate personalty.

It is my hope, therefore, that the Court's power to deal with separate property, particularly separate personal property, may be addressed by the Legislature. After all, the Legislature is the policy making body of this state. In this context, the Legislature [229] will have an alternative to enacting alimony statutes which will surely result if the "due process" dictum of Eggemeyer should ultimately prevail. The Legislature can change the "estate of the parties" and other statutory provisions; but it cannot change the "due process [due course] of law" of the Texas Constitution,—without a constitutional amendment.

[1] Sec. 3. Be it further enacted, That neither the lands nor slaves which the wife may own, or to which she may have any right, title or claim at the time of her marriage, nor the lands nor slaves to which she may acquire, during the coverture, any right, title or claim, by gift, devise or descent, nor the increase of such slaves in each case, nor the paraphernalia as defined at Common Law, which the wife may have at the time of the marriage, or which she may acquire during the coverture as aforesaid, shall, by virtue of the marriage, become the property of the husband, but shall remain the separate property of the wife; Provided, however, That during the continuance of the marriage, the husband shall have the sole management of such lands and slaves.

Sec. 4. Be it further enacted, That all property which the husband or wife may bring into the marriage except land and slaves and the wife's paraphernalia and all the property acquired during the marriage, except such land or slaves, or their increase, as may be acquired by either party, by gift, devise or descent, and except also the wife's paraphernalia, acquired as aforesaid, and during the time aforesaid, shall be the common property of the husband and wife, and during the coverture may be sold or otherwise disposed of by the husband only; it shall be first liable for all the debts contracted by the husband during the marriage, and for debts contracted by the wife for necessaries during the same time; and upon the dissolution of the marriage, by death, after the payment of all such debts, the remainder of such common property shall go to the survivor, if the deceased have no descendant or descendants; but if the deceased have a descendant or descendants, the survivor shall have one half of such common property, and the other half shall pass to the descendant or descendants of the deceased.

1840 Laws of the Republic of Texas, An Act to Adopt the Common Law of England—To Repeal Certain Mexican Laws, and to Regulate the Marrital [sic] Rights of Parties §§ 3, 4, at 4, 2 H. Gammel, Laws of Texas 178 (1898) (emphasis added).

[2] The Arizona Supreme Court in construing its divorce statute providing for a "division of the property of the parties as to the court shall seem just and right," also determined that the phrase "property of the parties" referred only to the community property. Collier v. Collier, 73 Ariz. 405, 242 P.2d 537, 541 (1952).

[3] Amended section 3.63 now provides:

Section 3.63 Division of Property

(a) In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

(b) In a decree of divorce or annulment the court shall also order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage;

(1) property that was acquired by either spouse while domiciled elsewhere and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2) property that was acquired by either spouse in exchange for real or personal property, and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

Tex.Fam.Code.Ann. § 3.63 (emphasis added).

The Bill Analysis for H.B. 753 prepared for the House Committee on Judiciary stated:

Division of Property. Two separate systems of marital property regimes exist in the various states: common law and community property. Each regime provides for the welfare and estate of both spouses upon dissolution of marriage. The end result is similar while the nomenclature is different. In community property states, like Texas, each spouse has legal title in property accumulated during the marriage. In common law states, the same property may belong to one spouse, but the other spouse is found to have acquired an equitable interest that can be vested upon dissolution of the marriage.

* * * * * *

Suggested solutions would be to allow Texas courts to find an equitable interest in separate property, or to allow the courts to consider as community property that property which would have been community had it been acquired by someone domiciled in Texas at the time of acquisition.

* * * * * *

Section 1. Amends Family Code, Section 3.63, to allow Texas courts to divide all property before them in a marriage dissolution suit which according to Texas law would be considered community property if the acquiring spouse had been domiciled in Texas at the time of acquisition.

House Comm. On The Judiciary, 67th Legislature Of Texas, Bill Analysis To H.B. 753, p. 1 (1981) (emphasis added).

[4] See note 3, supra.

[5] [Section 307. Disposition of Property.] In a proceeding for dissolution of the marriage, legal separation, or disposition of property following a decree of dissolution of the marriage or legal dissolution by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's separate property to that spouse. It also shall divide communityproperty, without regard to marital misconduct, in just proportions after considering all relevant factors including:

(1) contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;

(2) value of the property set apart to each spouse;

(3) duration of the marriage; and

(4) economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for a reasonable period to the spouse having custody of any children.

Unif. Marriage & Divorce Act § 307 alternative B, 9A U.L.A. 144 (1973) (emphasis added).

[6]The Restatement (Second) provides:

TITLE D. MARITAL PROPERTY

Introductory Note: The term "marital property," as used in the Restatement of this Subject, means any interest which one spouse acquires, solely by reason of the marital relation, in the immovables and movables of the other spouse, apart from the expectancy of inheriting upon the death of the other.

§ 257. Effect of Marriage on Existing Interests in Movables

Whether as a result of the marriage one spouse acquires an interest in the movables then owned by the other spouse is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the movables under the principles stated in § 6. This state will usually be that where the other spouse was domiciled at the time of the marriage. Comment:

a. The rule of this Section is of minor importance, since in no State of the United States does a spouse acquire any marital property interest, as defined in the Introductory Note to this Title, in the movables owned by the other spouse at the time of the marriage.

Restatement (Second) Of Conflict Of Laws § 257 (1971).

[7] Texas is the only state that forbids an award of alimony. In 1980, Pennsylvania reformed its law to permit alimony, but at the same time, the state's reform statute excluded "separate" property from the term "marital property." Separate property is defined as that which is acquired before marriage and that which is acquired during marriage by gift, bequest, devise or descent. Only marital property is divisible upon divorce. See Freed & Foster, Divorce in the Fifty States: An Overview, 14 Fam.L.Q. 230-31 (1981).

[8] The parental duty to support children is not here involved. That duty exists independent of the character of property a spouse owns and may be enforced and secured by setting aside property, separate or community, to assure the children's support. Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Gulley v. Gulley, 111 Tex. 233, 231 S.W. 97 (1921).

[9] The dissent stated: "There is no difference in the constitutional classification of separate real and separate personal property." Eggemeyer, supra, at 144 (Steakley, J., dissenting).

[10] Even in those three states—Mississippi, Virginia, and West Virginia—the wife has some of the "bundle of sticks." Any injustice that accrues to divorcing parties from one of those three states, is the problem of their own archaic and unfair laws.

[11] In the thirty years since Professor Marsh published his work, the distinctions between marital property that is called "separate" property in common law and community property states have become more pronounced. See K. Gray, supra, at 63-67.

[12] The court in Raucited Arizona's community property definition of separate property, and except for its treatment of the increases, rents, issues and profits from separate property, it is the same definition we have in Texas.

Compare Ariz.Rev.Stat.Ann. § 25-213:

A. All property, real and personal, of the husband, owned or claimed by him before marriage, and that acquired afterward by gift, devise or descent, and also the increase, rents, issues and profits thereof, is his separate property;

with Tex.Const. art. XVI, § 15:

All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse....

[13] Professor J. Thomas Oldham has thoughtfully developed this viable concept in Oldham, Property Division in a Texas Divorce of a Migrant Spouse, Heads He Wins, Tails She Loses, 19 Hous.L.Rev. 1 (1981).

[14] In Reardon v. Reardon, the Court held that the prohibition against divestiture of title to real estate in article 4638 did not include community real estate. 163 Tex. at 607, 359 S.W.2d at 330. The most that should be taken from this holding is that the "estate of the parties" doesinclude community realty. I do not believe the holding excludes from the definition the separate property of the spouses. If "estate of the parties" was intended to apply only to community property, that portion of article 4638 prohibiting divestiture of title to realty would have been mere surplusage.

In Hailey v. Hailey, the Court noted with approval the language in Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306 (1939), that title to realty could not be divested. The Court held that the division of community real property is proper and does not violate article 4638 because a partition deed merely dissolves a tenancy in common and does not convey title. 160 Tex. at 375-76, 331 S.W.2d at 302-03. Accordingly, when a trial court orders a partition of community property, title to that property is not divested. In Mansfield v. Mansfield the holding was the same. 308 S.W.2d at 83.

[15] The fact that the legislature has not amended section 3.63 since the Court's decision in Eggemeyer is not evidence of the legislature's intent to limit the "estate of the parties" to community property. In light of the constitutional dicta in Eggemeyer, the legislature reasonably could have believed that any attempt to include separate property in the estate of the parties would have been unconstitutional.

[664] Richard D. Davis, Sr., Johnson & Davis, Harlingen, and Michael J. Cenatiempo and Sharon E. Gardner, Michael J. Cenatiempo & Associates, P.C., Houston, for petitioner.

Randell W. Friebele, Friebele & Mardis, Harlingen, for respondent.

ROBERTSON, Justice.

This case involves the question of whether the rule announced in Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982) applies to probate as well as divorce matters.

Robert and Dorris Hanau were married in Illinois in 1974 and five years later moved to Texas. After moving here, Robert prepared a will leaving his separate property to his children by a prior marriage, and his community property to Dorris. Robert and Dorris each had substantial amounts of separate property before the marriage, and at all times kept such property under their own names. While married and in Illinois, Robert accumulated numerous shares of stock through the use of his separate property. Under Illinois common law, this would have remained his separate property. Robert died in Texas in 1982 and Dorris was granted letters testamentary on May 10, 1982. In February 1983, Dorris transferred large amounts of the estate's stock to the son, Steven, and the daughter, Leslie Ann. In May 1983, however, Steven brought an original petition seeking to have Dorris removed as exectutrix, claiming that she was intentionally mismanaging and embezzling from the estate. Dorris soon thereafter filed an inventory [665] and appraisal listing all of the property owned by Robert, claiming that all stocks obtained by Robert during their marriage were community property, even though they were originally acquired in a common law state. Thus, Dorris sought the return of some of the stock she had already delivered to the children. The parties stipulated that the stocks acquired before marriage were Robert's separate property and that stocks acquired while married in Texas were community property. The only question presented to the trial court was the status of those stocks bought during the marriage in Illinois using Robert's separate property.

The trial court severed the question of proper distribution of the assets and granted a partial summary judgment to Dorris on the characterization issue. The trial judge ruled that all the amounts that accrued during the marriage would be considered as community property in Texas, despite their characterization as separate property outside the state. He concluded that "the Texas Supreme Court in Cameron v. Cameron could not have intended to limit its new characterization of common law marital property to divorce proceedings, but rather intended that said characterization to be applied to any situation where the issue arose, including probate proceedings."

The court of appeals affirmed in part and reversed in part. 721 S.W.2d 515. The court determined that Cameron was not applicable to probate situations, rather it should be limited only to divorce matters. Therefore, the court held that most of the stocks should have been classified as separate property, and rendered judgment that they go to the son and daughter. The court did, however, affirm as to one specific stock (TransWorld) where it held that a proper tracing could not be shown so as to classify it as separate property. Both parties appeal here; Dorris as to the former holding, Steven as to the latter. We affirm in part and reverse and render in part.

In her application, Dorris relies exclusively on § 3.63 of the Family Code and Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982). Dorris admits that Cameron dealt with divorce rather than probate, but argues that this court intended to make "a fundamental change in its characterization of common law marital property." She argues that a broad interpretation of the result in Cameron should be applied because no distinction can be made between dissolution of the marriage by death or divorce. We disagree.

The long-standing general rule is that property which is separate property in the state of the matrimonial domicile at the time of its acquisition will not be treated for probate purposes as though acquired in Texas. Oliver v. Robertson, 41 Tex. 422, 425 (1874); McClain v. Holder, 279 S.W.2d 105, 107 (Tex.Civ.App.—Galveston 1955, writ ref'd n.r.e.). In Cameron, we held, however, that separate property acquired in common law jurisdictions merits different treatment in the limited context of divorce or annulment. While there were solid reasons for creating the Cameron rule in those situations, the same rationales are not applicable to probate procedures.

In Cameron, this court used three bases for its holding. First, the court examined the laws of some of the other community property states, and agreed that a difference exists between common law marital property and the separate property of community property jurisdictions. This court cited to several cases, including Rau v. Rau, 6 Ariz.App. 362, 432 P.2d 910 (Ct.App. 1967), in support of its holding. In examining Rau, however, it is clear that the court there refused to apply the rule to probate cases because "the statutory regulation of rights of succession has been regarded as something apart from the determination of property rights between living persons." Id., at 914. Furthermore, nothing in the other cases used for support in Cameron reveals an intent to extend the rule to probate cases in those jurisdictions. See Hughes v. Hughes, 91 N.M. 339, 573 P.2d 1194 (1978); Berle v. Berle, 97 Idaho 452, 546 P.2d 407 (1976). In fact, it appears that the only community property states which have extended the rule reach such a result based completely upon statutory authority. See California Prob.Code [666] § 66 (West 1985); Idaho Code § 15-2-201 (1971). Thus, there is no case law or trend which supports change of the rule here.

The second basis used in Cameron was the Texas legislature's action in adopting § 3.63 of the Family Code. Section 3.63 provides that a trial judge shall make a "just and right" division of property, which may include: "Property that was acquired by either spouse while domiciled elsewhere and that would have been community property if the spouse who acquired the property had been domiciled in the state at the time of the acquisition." Therefore, this court merely judicially adopted § 3.63 into the substantive law of this State. Dorris suggests that we apply § 3.63 to the probate situation, but by its own terms the Family Code provision applies only "in a decree of divorce or annulment." In addition, there is no provision similar to § 3.63 in the Probate Code, nor in any other statute of this state, which would logically require us to follow her suggestion. Therefore, there is also a lack of statutory authority which mitigates against extending Cameron.

The final foundation in Cameron dealt with the necessity of giving the trial court the power to effect an equitable distribution of property. Without such power, unfair results could occur because one spouse's equitable share of the other spouse's separate property under common law might not be considered under our community property definition of separate property. The Cameron holding merely made such an interest in common law separate property one which is susceptible to a Texas trial court's equitable division. The key is that there is no similar right in a probate proceeding, nor is there any need for any. If there is a valid will, the will should usually be enforced regardless of the equity of the devises or bequests within. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 889 (1960) (while a court can relax rules of construction, it may not redraft a will). Similarly, if the property is to pass through intestacy, a specified statutory formula is invoked which operates without the need to make equitable determinations. See TEX.PROB.CODE ANN. § 38 (Vernon 1980).

In sum, to extend Cameron would make a shambles of 150 years of Texas probate law, thus, without a clear showing of supporting case law, statutory authority or a clear need for such broad power in the trial court, we refuse to do so. Because the court of appeals refused to enlarge Cameron, its judgment on this point is affirmed.

In turning to the only other issue in this case, we must address whether the court of appeals erred in holding that the 200 shares of TransWorld stock were not properly traced.

The stipulations of the parties provided the following:

(1) Both parties owned considerable amounts of property before entering the marriage.

(2) After the marriage, both Robert and Dorris continued to keep their respective stock, bond and mutual funds accounts in their own names.

(3) During all times pertinent to this lawsuit, all transactions in Robert's account were from his income, and all transactions in Dorris' account were from her income.

(4) That the following transactions took place in the stock brokerage account of Robert:

A) On the date of marriage, there were 200 shares of Texaco stock in the account.

B) That while married and living in Illinois, the Texaco stock was sold for $5,755.00 and on the same date 200 shares of City Investing stock were purchased for $5,634.00.

C) After moving to Texas, the City Investing stock was sold for $6,021.00 and on the same date 200 shares of TransWorld stock were bought for $6,170.00.

The court of appeals held that the above stipulations did not constitute sufficient evidence to overcome the community property presumption. The court held that it is not sufficient "to show that the separate [667] funds could have been the source of a subsequent deposit of funds," citing Lantham v. Allison, 560 S.W.2d 481, 485 (Tex. Civ.App.—Fort Worth 1978, writ ref'd n.r.e.) (emphasis in original).

In Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965), this court held that all property possessed at the time of dissolution of the marriage is presumed to be community property. To show otherwise, the spouse must trace and clearly identify the property claimed as separate property. While the burden is difficult, it is not an impossible one to bear. Lantham, at 484. But if the evidence shows that the separate property and community property are commingled so as to defy segregation and identification, the burden is not discharged and the statutory presumption prevails. Lantham, at 484.

The account here has not been commingled, as it was stipulated that the decedent had always kept the property in his own name and that his wife had no power over the account. It certainly does not appear that the property has so radically changed as to "defy resegregation and identification" as said by this court in McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973). Further, the petitioner has shown the chain of events leading from the Texaco stock to the TransWorld purchase and shown that no other transactions occurred on the days in question, which would have planted the seeds of doubt upon the possible source of the funds used to buy the stocks. Because the court of appeals' holding that the TransWorld stock was not properly traced was erroneous, we reverse the judgment of the court of appeals and render judgment that the TransWorld stock be transferred to Steven Hanau. The judgment is in all other things affirmed.

SPEARS, J., filed a concurring opinion.

SPEARS, Justice, concurring.

I concur in the result reached by the court. Cameron v. Cameron, 641 S.W.2d 210, 221-23 (Tex.1982) was based in large part upon Section 3.63 of the Family Code which provided statutory authorization for the characterization of property acquired outside of Texas as quasi-community property. No such provision is present in the Probate Code; therefore, I concur.

The court's opinion creates two rules for the characterization of the same property. A husband and wife from a common law state could retire to Texas with the majority of their property characterized as the husband's separate marital property. If the wife brought divorce proceedings, the "separate" marital property would be characterized as quasi-community property under Cameron and Section 3.63 of the Family Code. The trial court would then be authorized to divide the marital property between the spouses in a manner that it deemed just and right. Under the majority's decision in this case, the same husband could execute a will devising all the "separate" marital property to a third party leaving the wife without any means of support after he dies.

Most jurisdictions have some method to protect the interest and insure the support of surviving spouses. This court's holding leaves surviving spouses without the protection afforded by either common law or community property statutory schemes in certain situations. Accordingly, I urge the Legislature to eliminate this illogical and potentially inequitable difference in the characterization of marital property by adopting a Probate Code section similar to Section 3.63 of the Family Code and the probate codes of other jurisdictions. See California Prob.Code § 66 (West 1985); Idaho Code § 15-2-201 (1971).

William Piel, Jr., and Samuel W. Ingram, Jr., for appellant.

Chester Bordeau for respondent.

Judges DYE, FULD, and BURKE concur with Judge BERGAN; Chief Judge DESMOND dissents in an opinion in which Judges VAN VOORHIS and SCILEPPI concur.

[171] BERGAN, J.

The Duke and Duchess of Arion were nationals and domiciliaries of Spain. Neither of them had ever been in New York, but through a long period of political uncertainty in Spain, from 1919 to the end of the Civil War, they sent cash and securities to New York for safekeeping and investment.

Under the law of Spain this was the community property of the spouses. Substantial parts of it were placed with the New York custodians in joint accounts. In establishing or in continuing these accounts, the husband and wife either expressly agreed in writing that the New York law of survivorship would apply or agreed to a written form of survivorship account conformable to New York law.

The husband died in November, 1957; the wife in March, 1959. After the husband's death the wife took control of the property in New York and undertook to dispose of it by a will executed according to New York law and affecting property in New York [172] (Decedent Estate Law, § 47). Some additional property in joint account in England was transferred by the wife to New York after the husband's death which had not been placed by either spouse in New York during the husband's life.

This action is by plaintiff as an ancillary administrator in New York of the husband against defendant as executor of the wife's will to establish a claim of title to one half of the property which at the time of the husband's death was held in custody accounts under sole or joint names of the spouses by banks in New York and London.

The total value of the property in New York is about $2,275,000, of which about $370,000 was transferred by the wife after the husband's death from the London accounts to New York. Plaintiff also seeks an accounting and damages for conversion.

The main issue in the case is whether the law of Spain should be applied to the property placed in New York during the lives of the spouses, in which event only half of the property would have gone to the wife at her husband's death, or the law of New York, in which event all of such jointly held property would have gone to her as survivor. (Banking Law, § 134, former subd. 3.)

The banks which were custodians of the property are protected from liability, of course, by the form of survivorship agreement in making the transfer of the jointly held property in their custody to the wife (Banking Law, § 134, former subd. 3). The controversy here is not with the custodians, but between the representatives of the owners of the property, and is to be governed by the legal capacity of the husband and wife, as citizens and domiciliaries of Spain, to make an agreement as to their community property inconsistent with Spanish law.

The agreements giving full title to the survivor in the joint accounts were executed either in Spain, or if not there at least not in New York, and were, in any event, executed by persons who were domiciliaries and citizens of Spain. Usually rights flowing from this kind of legal act are governed by the law of the domiciliary jurisdiction (Matter of Mesa y Hernandez, 172 App. Div. 467, affd. 219 N.Y. 566; Matter of Majot, 199 N.Y. 29, 32; Hendricks v. Isaacs, 46 Hun 239).

It is abundantly established in the record that the law of Spain would have prevented either spouse in the circumstances [173] shown here from agreeing that community property go entirely to the survivor on the death of either; but half would go to the survivor and at least two thirds of the remaining half would pass to the heirs of the deceased spouse.

Dispositions of property in violation of this prohibition are shown to be void according to Spanish law. It is provided that all the assets of a marriage shall be deemed to be community property until it is proved they belong privately to either (Spanish Civ. Code, art. 1407). A gift from one to the other, except minor personal gifts, is void and the spouses are without capacity to renounce by contract or otherwise their rights and obligations concerning community property (arts. 1334, 1394).

But New York has the right to say as a matter of public policy whether it will apply its own rules to property in New York of foreigners who choose to place it here for custody or investment, and to honor or not the formal agreements or suggestions of such owners by which New York law would apply to the property they place here. (Cf. Decedent Estate Law, § 47; Personal Property Law, § 12-a.)

It seems preferable that as to property which foreign owners are able to get here physically, and concerning which they request New York law to apply to their respective rights, when it actually gets here, that we should recognize their physical and legal submission of the property to our laws, even though under the laws of their own country a different method of fixing such rights would be pursued.

Thus we would at once honor their intentional resort to the protection of our laws and their recognition of the general stability of our Government which may well be deemed inter-related things.

Such a law conflicts choice seems to be suggested by Hutchison v. Ross (262 N.Y. 381 [1933]) although there are some differences between that case and this. There a husband who, with his wife, was domiciled in Quebec, established a trust of personal property for the benefit of the wife in New York with a New York trustee and with the expressed intention the trust should be governed by New York law.

Its validity was determined according to New York law even though by the law of Quebec it would have been decided differently. Of course, the New York trustee had there acquired legal [174] title of the property and here the banks were mere bailees in relation to the property in their possession.

Still the case suggests a direction to our present public policy and, in the course of an examination of great depth into the conflicts problem, Judge LEHMAN noted: "Physical presence in one jurisdiction is a fact, the maxim [mobilia sequuntur personam] is only a juristic formula which cannot destroy the fact. * * * When the owner of personal property authorizes its removal from his domicile or acquires property elsewhere, he must be deemed to know that his property comes under the protection of, and subject to the laws of the jurisdiction to which it has been removed, and that appeal may be made to the courts of that jurisdiction for the determination of conflicting rights in such property" (supra, pp. 388-389).

The Special Term in the case before us found for the defendant largely on the basis of Ross and the Appellate Division affirmed without opinion. We agree that this disposition is the correct one as to property placed in New York during the husband's lifetime.

This effect would include, too, those accounts which had formerly been joint accounts but which during the lifetime of the husband were transferred to the wife's sole name. One of these, for example, was a joint account in the Guaranty Trust Company which in 1936 was transferred to a new account in the wife's name. There were additional assets in this bank in the sole name of the wife which had not been in joint account and which were recognized by the husband as her separate property.

The assent of the husband to arrangements in respect of joint property transferred to the sole account of the wife with the legal consequence of sole ownership to be anticipated from the effect of New York law would lead us to treat the property as the property of the wife and to be controlled by the same principle applicable to joint accounts (cf. Walsh v. Keenan, 293 N.Y. 573).

We would treat the wife's own separate property similarly where, during the lifetime of her husband and apparently with his recognition and assent, she was able to transfer the separate property to New York and keep it here in her own name.

But the property in the value of about $370,000 transferred from London to New York by the wife after the husband's death [175] raises a somewhat different question. Adjudication of its title requires further factual exploration. At the time of the husband's death this property and other property were held in three-name custody accounts by London depositories. The accounts were in the names of the husband, the wife and their daughter Hilda, who had no proprietary interest.

One of the accounts, it is asserted, was a "safe custody account" opened under simple letters of instruction. The other accounts seem not to have been governed by any formal documents.

The reasons grounded on New York policy and affected by the physical transfer of the property to New York during the lifetime of the spouses and by their directions relating to it do not necessarily apply to property of Spanish nationals placed in a third country during their lifetime.

If the local law of the third country would deem title to have passed to the wife on the death of the husband, we would treat this property as we now treat that placed in New York during their lives.

But if the third country would have applied the Spanish community property law or, if it is not demonstrated what rule would be applied by the third country and the subject is open or equivocal, we would, under general principles, feel bound to apply the law of Spain to the title of property owned by these Spanish nationals.

The facts necessary to decide this question were not resolved at Special Term, largely because this was not an issue on which attention was focused at trial. One question for resolution would be the precise form of instruction or agreement pursuant to which the property was placed in custody accounts in London; the other question would be how, on those facts as found, the title would be regarded in English law. If upon such further inquiry it be found the wife did not succeed to full title to the property in London an accounting for the portion not belonging to her would be indicated.

The order should be modified to direct the remission to Special Term to determine the rights of parties in respect of the property transferred by the wife from London to New York after the husband's death in accordance with this opinion and, as modified, affirmed, without costs.

[176] Chief Judge DESMOND (dissenting).

Resolution of the dispute as to this property (or any part of it) by any law other than that of Spain, the matrimonial domicile, is utterly incompatible with historic and settled conflict of laws principles and is not justifiable on any ground. No policy ground exists for upsetting the uniform rules and no precedent commands such a result.

"Conflict of Laws" (or, more aptly, "Private International Law") rules involve no actual conflict or collision between the laws of separate jurisdictions but are the accepted methods of accommodation and comity between sovereign States, worked out consensually over the centuries, not arbitrarily or from mere politeness but as expressing reason and justice. Thus, as to real property the applicable law is always that of the State wherein the land is situated since it is an attribute of every sovereign to control his own actual territory. Movables, on the other hand, are considered to be incidental to their owner's person and so to be governed as to title by the laws of his domicile. These are not ad hoc holdings subject to the moment or the mode or to the conveniences of a particular case but are part of the generally acknowledged fundamentals of international comity. The twentieth century with its shrinking distances and enlarging wars is a poor time to make sudden and uncalled for changes particularly when the changes are urged on us not because the old rules are outdated or proven to be unjust but, apparently, because in this particular case there appears in the record a small and unconvincing indication that this husband and his wife may have intended a result inconsistent with that which would result from application of the law of their domicile, Spain.

The majority of this court is throwing overboard not one but three of the oldest and strongest conflict rules: first, that with exceptions not pertinent here the law of the domicile of the owner governs as to the devolution of personal property (Cross v. United States Trust Co., 131 N.Y. 330); second, that the law of the matrimonial domicile controls as to the property and contract rights of husband and wife inter sese (Bonati v. Welsch, 24 N.Y. 157; Hendicks v. Isaacs, 46 Hun 239); and, third, that whether such personalty is separate or community property is determined by the law of the matrimonial domicile (Poe v. Seaborn, 282 U. S. 101, 110).

[177] For no reason of law that we know of but on the authority of one decision of slight or no relevance (Hutchison v. Ross, 262 N.Y. 381) the majority chooses to turn its back on these rules and to destroy the community status, fixed as such by the laws of Spain, of personalty owned during marriage by Spanish nationals always domiciled in Spain and neither of whom was ever in New York State.

Completely applicable here is the Spanish Civil Code which subjects to the statutory regime of community property all marriages of Spanish nationals in Spain, which applies to property outside as well as within Spain and which makes all property acquired by the married couple or either of them during marriage community property, and forbids the alteration of such community property either unilaterally or by mutual consent, to the extent even of voiding a gift from one party to another or renunciation by either spouse of any right or obligation in respect to the community property (Spanish Civ. Code, arts. 9, 1315, 1334, 1394, 1401). The only exception to all this arises when an antenuptial contract has been made. There is no proof or claim of any such contract here. The Spanish statutes are clear and no one disputes their meaning. The Duke and Duchess of Arion were Spanish nationals, were married in Spain and always had their domicile there as had their ancestors for generations or centuries. Neither was ever in New York. New York State's only contact with this property was that for purposes of convenience or safety the husband and wife left valuable property in the custody of New York banks for safekeeping only. The banks were mere bailees without other title or interest. To say that setting up of joint accounts of personalty in New York subjected that personalty to New York law rather than to the law of the matrimonial domicile is to refuse to follow one of the most basic of Conflict of Laws rules (Story, Conflict of Laws [7th ed.], §§ 158-159; Leflar, Community Property and Conflict of Laws, 21 Calif. L. Rev. 221).

The oldest relevant case in this court (Bonati v. Welsch, 24 N.Y. 157, 162, supra) holds that the incidents of marriage, and contracts and property rights in relation to marriage are to be governed by the law of the matrimonial domicile. The directly controlling case in this court is Matter of Mesa y Hernandez (172 App. Div. 467, affd. 219 N.Y. 566). [178] In Mesa the New York courts, in a transfer tax proceeding, had to adjudicate the claim of the widow to a half ownership under the laws of Cuba, the matrimonial domicile (which has a community or property law like that of Spain), of personalty in custody of New York banks. A unanimous Appellate Division, affirmed without opinion by this court, held that "the law of matrimonial domicile governed not only as to all the rights of the parties to their property in that place, but also as to all personal property everywhere, upon the principle that movables have no situs, or rather that they accompany the person everywhere, while as to immovable property the law rei sitae prevails" (172 App. Div., p. 477). Respondent notes the Appellate Division's statement in its Mesa opinion that "Concededly there was no express contract between the parties" and that, therefore, the law of the marital domicile governed. We think it clear that this reference was to the fact that, as in our case, the parties had not made an antenuptial agreement. The Mesa case has never been overruled, it expresses the accepted rule and should be applied here. The Restatement, Conflict of Laws, says in section 290: "Interests of one spouse in movables acquired by the other during the marriage are determined by the law of the domicil of the parties when the movables are acquired" and in section 292: "Movables held by spouses in community continue to be held in community when taken into a state which does not create community interests." No one doubts that in Spain as in the eight American States which follow community law, any effort during marriage to change the nature or devolution of community property is void (Commissioner of Internal Revenue v. Chase Manhattan Bank, 259 F.2d 231, 239, cert. den. 359 U. S. 913; Garrosi v. Gonzales, 8 P. R. Fed. 571; Kelly v. Kelly, 131 La. 1024; Smith v. Smith, 239 La. 688, 695).

Research has not turned up any other decision similar to the one now being made. For the proposition that New York law applies because joint accounts were created or attempted to be created in this State, the trial court and respondent put their whole reliance on Hutchison v. Ross (262 N.Y. 381, supra) and the conclusion there stated (p. 395) that "The validity of a trust of personal property must be determined [179] by the law of this State, when the property is situated here and the parties intended that it should be administered here in accordance with the laws of this State." The differences between our case and Hutchison are of substance and not detail. First, let it be noted that the transaction upheld in Hutchison v. Ross was a gift from a husband to his wife and children of a life interest carried out by making them the life beneficiaries of an inter vivos trust with a New York bank as trustee. The bank took title as such trustee. The marital domicile was in Quebec which has a civil law provision calling for community of property between spouses but allowing for antenuptial agreements. Ross and his prospective wife had made an antenuptial agreement providing that the property of each should be separate and that he would create a trust fund of $125,000 for his future wife and children. Several years after the marriage the husband, who had inherited a large estate from his father, concluded that the $125,000 trust provision was insufficient, agreed with his wife to revoke it and made a new trust with the same New York bank as trustee in which the principal amount was now $1,000,000. Years later the husband, having lost most of his inherited estate, secured the consent of his wife and children to a revocation of the second trust and brought the action (his trustee in bankruptcy later became the substitute of plaintiff) to set aside the trust as being void under the Quebec community property law which forbids the abrogation, modification or enlargement of an antenuptial agreement or a transfer during marriage by husband to wife of any substantial property. A divided New York Court of Appeals, applying New York law, decided that the $1,000,000 trust was valid despite the Quebec statute. The Court of Appeals stated that the decisive consideration was as to the legality of the second trust — that is, whether we were "to apply the law of another jurisdiction to the conveyance of property situated here" (p. 399). Our court held that the attempted renunciation by the wife of her benefits under the original matrimonial settlement had to be determined by the laws of Quebec. On the other question, that is as to the validity of the second trust, the basic holding in our court was (262 N. Y., beginning at bottom of p. 396, supra): "There is, nevertheless, no rule of law which would preclude the courts [180] of this State from determining in accordance with the rules of law of this jurisdiction, the validity of a conveyance of real or personal property contained in a bilateral agreement, even though the remainder of the agreement be governed by, and is void under, the law of another jurisdiction, provided the conveyance be separable from the other parts of the contract. Concededly that would be true if the conveyance were of real estate here. It is equally true of personal property situated within the jurisdiction of our courts. Here we are free to apply our law rather than the law of another jurisdiction" (pp. 396-397). The Hutchison-Ross holding is in terms of trusts and conveyances, and can be read only as such (2 Beale, Conflict of Laws, pp. 1018-1019).

Thus we see that Hutchison v. Ross (supra) has only the most superficial resemblance to the situation now being examined. Among other differences, the Hutchison case dealt with the validity of a conveyance whereas here there was the merest deposit of property for safekeeping in New York — that is, a bailment without change of title. As respondent in his answer in this cause admits, the New York banks acted in a "solely * * * ministerial capacity as custodian and depositary". Hutchison v. Ross involved a situation where not only title had passed to a trustee but application of the foreign law would have destroyed rights of third parties created and acquired in good faith and which merited protection. Not only did Hutchison v. Ross not overrule the Mesa decision (supra) but it stands apart and on its own facts.

If the intent of the parties to apply New York law is to control, there was undisputed proof in the Hutchison case (supra) of such intent, whereas in ours there is no real proof at all. The signing by the Duke and Duchess in Spain of routine joint-account-for-custody agreements on forms supplied by the New York banks is not substantial proof that these people (who had no apparent reason for so doing) were attempting to abrogate as to these items of property the ancient community laws of their country. There is no other proof of such an intent to substitute New York law and a much more reasonable explanation of the documents exacted by the banks is that they operated and were intended merely to release the banks on payment to one spouse or the other. It is to be emphasized [181] that here, unlike the Hutchison case, no rights of third persons are involved or in need of protection. The court below mentioned the difficulties which New York banks would encounter if they had to comply with the laws of other jurisdictions. Such inconvenience there may be, but surely it does not justify repeal of the basic rules without any felt necessity for such abrogation and with no real proof that even the parties themselves ever intended such a result. Most extraordinary would be the results of a holding that any temporary deposit for emergency safekeeping of personal property in New York vaults puts the property under New York law for all purposes regardless of the ancient maxims, regardless of the law of the domicile and regardless of the intent of the parties.

We would reverse and grant judgment as demanded in the complaint, with costs in all courts.

Order modified and, as so modified, affirmed, without costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O'CONNOR, JJ.

Maurice F. Joyce for the plaintiff.

Christopher C. Tsouros for Charles Burkin.

WILKINS, J.

Mary A. Sullivan, the widow of Ernest G. Sullivan, has exercised her right, under G.L.c. 191, § 15, to take a share of her husband's estate. By this action, she [865] seeks a determination that assets held in an inter vivos trust created by her husband during the marriage should be considered as part of the estate in determining that share. A judge of the Probate Court for the county of Suffolk rejected the widow's claim and entered judgment dismissing the complaint. The widow appealed, and, on July 12, 1983, a panel of the Appeals Court reported the case to this court.^[2]

In September, 1973, Ernest G. Sullivan executed a deed of trust under which he transferred real estate to himself as sole trustee. The net income of the trust was payable to him during his life and the trustee was instructed to pay to him all or such part of the principal of the trust estate as he might request in writing from time to time. He retained the right to revoke the trust at any time. On his death, the successor trustee is directed to pay the principal and any undistributed income equally to the defendants, George F. Cronin, Sr., and Harold J. Cronin, if they should survive him, which they did. There were no witnesses to the execution of the deed of trust, but the husband acknowledged his signatures before a notary public, separately, as donor and as trustee.

The husband died on April 27, 1981, while still trustee of the inter vivos trust. He left a will in which he stated that he "intentionally neglected to make any provision for my wife, Mary A. Sullivan and my grandson, Mark Sullivan." He directed that, after the payment of debts, expenses, and all estate taxes levied by reason of his death, the residue of his estate should be paid over to the trustee of the inter vivos trust. The defendants George F. Cronin, Sr., and Harold J. Cronin were named coexecutors of the will. The defendant [866] Burkin is successor trustee of the inter vivos trust. On October 21, 1981, the wife filed a claim, pursuant to G.L.c. 191, § 15, for a portion of the estate.^[3]

Although it does not appear in the record, the parties state in their briefs that Ernest G. Sullivan and Mary A. Sullivan had been separated for many years. We do know that in 1962 the wife obtained a court order providing for her temporary support. No final action was taken in that proceeding. The record provides no information about the value of any property owned by the husband at his death or about the value of any assets held in the inter vivos trust. At oral argument, we were advised that the husband owned personal property worth approximately $15,000 at his death and that the only asset in the trust was a house in Boston which was sold after the husband's death for approximately $85,000.

As presented in the complaint, and perhaps as presented to the motion judge, the wife's claim was simply that the inter vivos trust was an invalid testamentary disposition and [867] that the trust assets "constitute assets of the estate" of Ernest G. Sullivan. There is no suggestion that the wife argued initially that, even if the trust were not testamentary, she had a special claim as a widow asserting her rights under G.L.c. 191, § 15. If the wife is correct that the trust was an ineffective testamentary disposition, the trust assets would be part of the husband's probate estate. In that event, we would not have to consider any special consequences of the wife's election under G.L.c. 191, § 15, or, in the words of the Appeals Court, "the present vitality" of Kerwin v. Donaghy, 317 Mass. 559, 572 (1945).

We conclude, however, that the trust was not testamentary in character and that the husband effectively created a valid inter vivos trust. Thus, whether the issue was initially involved in this case, we are now presented with the question (which the executors will have to resolve ultimately, in any event) whether the assets of the inter vivos trust are to be considered in determining the "portion of the estate of the deceased" (G.L.c. 191, § 15) in which Mary A. Sullivan has rights. We conclude that, in this case, we should adhere to the principles expressed in Kerwin v. Donaghy, supra, that deny the surviving spouse any claim against the assets of a valid inter vivos trust created by the deceased spouse, even where the deceased spouse alone retained substantial rights and powers under the trust instrument. For the future, however, as to any inter vivos trust created or amended after the date of this opinion, we announce that the estate of a decedent, for the purposes of G.L.c. 191, § 15, shall include the value of assets held in an inter vivos trust created by the deceased spouse as to which the deceased spouse alone retained the power during his or her life to direct the disposition of those trust assets for his or her benefit, as, for example, by the exercise of a power of appointment or by revocation of the trust. Such a power would be a general power of appointment for Federal estate tax purposes (I.R.C. § 2041(b)(1) [1983]) and a "general power" as defined in the Restatement (Second) of Property § 11.4(1) (Tent. Draft No. 5, 1982).

[868] We consider first whether the inter vivos trust was invalid because it was testamentary. A trust with remainder interests given to others on the settlor's death is not invalid as a testamentary disposition simply because the settlor retained a broad power to modify or revoke the trust, the right to receive income, and the right to invade principal during his life. Ascher v. Cohen, 333 Mass. 397, 400 (1956). Leahy v. Old Colony Trust Co., 326 Mass. 49, 51 (1950). Kerwin v. Donaghy, 317 Mass. 559, 567 (1945). National Shawmut Bank v. Joy, 315 Mass. 457, 473-475 (1944). Kelley v. Snow, 185 Mass. 288, 298-299 (1904). The fact that the settlor of such a trust is the sole trustee does not make the trust testamentary. In National Shawmut Bank v. Joy, supra at 476-477, we held that a settlor's reservation of the power to control investments did not impair the validity of a trust and noted that "[i]n Greeley v. Flynn, 310 Mass. 23 [1941], the settlor was herself the trustee and had every power of control, including the right to withdraw principal for her own use. Yet the gift over at her death was held valid and not testamentary." We did, however, leave open the question whether such a trust would be testamentary "had the trustees been reduced to passive impotence, or something near it." Id. at 476. We have held an inter vivos trust valid where a settlor, having broad powers to revoke the trust and to demand trust principal, was a cotrustee with a friend (Ascher v. Cohen, supra at 400) or with a bank whose tenure as trustee was at the whim of the settlor (Leahy v. Old Colony Trust Co., supra at 51). In Theodore v. Theodore, 356 Mass. 297 (1969), the settlor was the sole trustee of two trusts and had the power to revoke the trusts and to withdraw principal. The court assumed that the trusts were not testamentary simply because of this arrangement. The Theodore case involved trust assets transferred to the trust only by third persons. For the purposes of determining whether a trust is testamentary, however, the origin of the assets, totally at the disposal of the settlor once received, should make no difference. See Gordon v. Feldman, 359 Mass. 25 (1971), in which the court and the parties implicitly [869] accepted as valid an inter vivos trust in which A conveyed to himself as sole trustee with the power in A to withdraw income and principal. We believe that the law of the Commonwealth is correctly represented by the statement in Restatement (Second) of Trusts § 57 comment h (1959), that a trust is "not testamentary and invalid for failure to comply with the requirements of the Statute of Wills merely because the settlor-trustee reserves a beneficial life interest and power to revoke and modify the trust. The fact that as trustee he controls the administration of the trust does not invalidate it."

We come then to the question whether, even if the trust was not testamentary on general principles, the widow has special interests which should be recognized. Courts in this country have differed considerably in their reasoning and in their conclusions in passing on this question. See 1 A. Scott, Trusts § 57.5 at 509-511 (3d ed. 1967 & 1983 Supp.); Restatement (Second) of Property — Donative Transfers, Supplement to Tent. Draft No. 5, reporter's note to § 13.7 (1982); Annot., 39 A.L.R.3d 14 (1971), Validity of Inter Vivos Trust Established by One Spouse Which Impairs the Other Spouse's Distributive Share or Other Statutory Rights in Property. In considering this issue at the May, 1982, annual meeting of the American Law Institute the members divided almost evenly on whether a settlor's surviving spouse should have rights, apart from specific statutory rights, with respect to the assets of an inter vivos trust over which the settlor retained a general power of appointment. See Proceedings of the American Law Institute, May, 1982, at 59-117; Restatement (Second) of Property — Donative Transfers, Supplement to Tent. Draft No. 5, at 28 (1982).^[4]

[870] The rule of Kerwin v. Donaghy, supra at 571, is that "[t]he right of a wife to waive her husband's will, and take, with certain limitations, `the same portion of the property of the deceased, real and personal, that ... she would have taken if the deceased had died intestate' (G.L. [Ter. Ed.] c. 191, § 15), does not extend to personal property that has been conveyed by the husband in his lifetime and does not form part of his estate at his death. Fiske v. Fiske, 173 Mass. 413, 419 [1899]. Shelton v. Sears, 187 Mass. 455 [1905]. In this Commonwealth a husband has an absolute right to dispose of any or all of his personal property in his lifetime, without the knowledge or consent of his wife, with the result that it will not form part of his estate for her to share under the statute of distributions (G.L. [Ter. Ed.] c. 190, §§ 1, 2), under his will, or by virtue of a waiver of his will. That is true even though his sole purpose was to disinherit her." In the Kerwin case, we applied the rule to deny a surviving spouse the right to reach assets the deceased spouse had placed in an inter vivos trust of which the settlor's daughter by a previous marriage was trustee and over whose assets he had a general power of appointment. The rule of Kerwin v. Donaghy has been adhered to in this Commonwealth for almost forty years and was adumbrated even earlier.^[5] The Bar has been entitled reasonably to rely [871] on that rule in advising clients. In the area of property law, the retroactive invalidation of an established principle is to be undertaken with great caution. See Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172, 181-182, appeal dismissed, 409 U.S. 813 (1972); Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 636 (1947). Cf. Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282-283 (1980) (insurance contracts); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 97-98 (1979) (covenants not to compete made in deeds and leases); Rosenberg v. Lipnick, 377 Mass. 666, 667 (1979) (antenuptial agreements); Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring) (relative rights as to the flow of surface water). Contrast as to tort law, Payton v. Abbott Labs, 386 Mass. 540, 565-570 (1982). We conclude that, whether or not Ernest G. Sullivan established the inter vivos trust in order to defeat his wife's right to take her statutory share in the assets placed in the trust and even though he had a general power of appointment over the trust assets, Mary A. Sullivan obtained no right to share in the assets of that trust when she made her election under G.L.c. 191, § 15.

We announce for the future that, as to any inter vivos trust created or amended after the date of this opinion, we shall no longer follow the rule announced in Kerwin v. Donaghy. There have been significant changes since 1945 in public policy considerations bearing on the right of one [872] spouse to treat his or her property as he or she wishes during marriage. The interests of one spouse in the property of the other have been substantially increased upon the dissolution of a marriage by divorce.^[6] We believe that, when a marriage is terminated by the death of one spouse, the rights of the surviving spouse should not be so restricted as they are by the rule in Kerwin v. Donaghy. It is neither equitable nor logical to extend to a divorced spouse greater rights in the assets of an inter vivos trust created and controlled by the other spouse than are extended to a spouse who remains married until the death of his or her spouse.

The rule we now favor would treat as part of "the estate of the deceased" for the purposes of G.L.c. 191, § 15, assets of an inter vivos trust created during the marriage by the deceased spouse over which he or she alone had a general power of appointment, exercisable by deed or by will. This objective test would involve no consideration of the motive or intention of the spouse in creating the trust. We would not need to engage in a determination of "whether the [spouse] has in good faith divested himself [or herself] of ownership of his [or her] property or has made an illusory [873] transfer" (Newman v. Dore, 275 N.Y. 371, 379 [1927]) or with the factual question whether the spouse "intended to surrender complete dominion over the property" (Staples v. King, 433 A.2d 407, 411 [Me. 1981]). Nor would we have to participate in the rather unsatisfactory process of determining whether the inter vivos trust was, on some standard, "colorable," "fraudulent," or "illusory."

What we have announced as a rule for the future hardly resolves all the problems that may arise. There may be a different rule if some or all of the trust assets were conveyed to such a trust by a third person. Cf. Theodore v. Theodore, 356 Mass. 297 (1969). We have not, of course, dealt with a case in which the power of appointment is held jointly with another person. If the surviving spouse assented to the creation of the inter vivos trust, perhaps the rule we announce would not apply. We have not discussed which assets should be used to satisfy a surviving spouse's claim. We have not discussed the question whether a surviving spouse's interest in the intestate estate of a deceased spouse should reflect the value of assets held in an inter vivos trust created by the intestate spouse over which he or she had a general power of appointment. That situation and the one before us, however, do not seem readily distinguishable. See Schnakenberg v. Schnakenberg, 262 A.D. 234, 236-237 (N.Y. 1941). A general power of appointment over assets in a trust created by a third person is said to present a different situation. Restatement (Second) of Property — Donative Transfers, Supplement to Tent. Draft No. 5, reporter's note to § 13.7, at 29 (1982). Nor have we dealt with other assets not passing by will, such as a trust created before the marriage or insurance policies over which a deceased spouse had control. Id. at 30, 38.

The question of the rights of a surviving spouse in the estate of a deceased spouse, using the word "estate" in its broad sense, is one that can best be handled by legislation. See Uniform Probate Code §§ 2-201, 2-202, 8 U.L.A. 74-75 (1983). See also Uniform Marital Property Act § 18 (Nat'l Conference of Comm'rs on Uniform State Laws, July, [874] 1983), which adopts the concept of community property as to "marital property." But, until it is, the answers to these problems will "be determined in the usual way through the decisional process." Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring).

We affirm the judgment of the Probate Court dismissing the plaintiff's complaint.

So ordered.

[1] George F. Cronin, Sr., and Harold J. Cronin.

[2]The report to this court states:

"It appearing to the undersigned justices of this court before whom this case was argued that the case presents a question of unusual public and legal significance (G.L.c. 211A, § 10[B]) and may, in light of the recent discussions within the American Law Institute (see Restatement [Second] of Property — Donative Transfers, § 13.7 [Supp. to Tent. Draft No. 5, August 25, 1982]), raise some question as to the present vitality of such cases as Kerwin v. Donaghy, 317 Mass. 559, 572 (1945), the said justices hereby report this case for consideration and determination of the Supreme Judicial Court."

[3]As relevant to this case, G.L.c. 191, § 15, as appearing in St. 1964, c. 288, § 1, provides:

"The surviving husband or wife of a deceased person ... within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her ... claiming such portion of the estate of the deceased as he or she is given the right to claim under this section, and if the deceased left issue, he or she shall thereupon take one third of the personal and one third of the real property; ... except that ... if he or she would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased.... If the real and personal property of the deceased which the surviving husband or wife takes under the foregoing provisions exceeds twenty-five thousand dollars in value, and the surviving husband or wife is to take only twenty-five thousand dollars absolutely, the twenty-five thousand dollars, above given absolutely, shall be paid out of that part of the personal property in which the husband or wife is interested; and if such part is insufficient the deficiency shall, upon the petition of any person interested, be paid from the sale or mortgage in fee, in the manner provided for the payment of debts or legacies, of that part of the real property in which he or she is interested."

[4] The reporter, Professor A. James Casner, recommended the following statement: "§ 13.7 Spousal Rights in Appointive Assets on Death of Donee. The spouse of the donee of a power of appointment is entitled to treat appointive assets as owned assets of the donee on the donee's death, only to the extent provided by statute." Restatement (Second) of Property — Donative Transfers, Tent. Draft No. 5 at 108-109 (1982). This statement is consistent with the principles expressed in Kerwin v. Donaghy, supra. By a vote of 63 to 60, the members rejected the substitution of the following statement under § 13.7, recommended by an adviser to the project, Justice Raya S. Dreben of the Massachusetts Appeals Court: "Appointive assets are treated as owned assets of a deceased donee in determining the rights of a surviving spouse in the owned assets of the donee if, and only if, the deceased spouse was both the donor and donee of a general power that was exercisable by the donee alone, unless the controlling statute provides otherwise." Restatement (Second) of Property — Donative Transfers, Supplement to Tent. Draft No. 5, at 6 and 28 (1982).

[5] In early opinions, this court considered an intent to deny inheritance rights to be a ground for invalidating an inter vivos transfer, but in the first part of this century it abandoned that position. Compare Gilson v. Hutchinson, 120 Mass. 27, 28 (1876) (conveyance to a trustee to defraud spouse of her right to dower, invalid), and Brownell v. Briggs, 173 Mass. 529, 533 (1899) (conveyance to trustee to deprive wife of rights in the husband's property at his death, invalid), with Leonard v. Leonard, 181 Mass. 458, 462 (1902) (Holmes, C.J.) (intent to defeat wife's claim not sufficient to invalidate an otherwise valid transaction), Kelley v. Snow, 185 Mass. 288, 299 (1904) (same), Seaman v. Harmon, 192 Mass. 5, 7 (1906) (surviving wife had no right to dower in real estate purchased by the husband through a straw to defeat the wife's claim), and Roche v. Brickley,254 Mass. 584, 588 (1926) (wife's conveyance to a trustee valid even if she made it to defeat any interest of the husband at her death).

Opinions in this Commonwealth, and generally elsewhere, considering the rights of a surviving spouse to a share in assets transferred by the deceased spouse to an inter vivos trust have analyzed the question on grounds of public policy, as if establishing common law principles. These opinions have not relied in any degree on what the Legislature may have intended by granting a surviving spouse certain rights in the "estate" of a deceased spouse.

[6] At the time of a divorce or at any subsequent time, "the court may assign to either husband or wife all or any part of the estate of the other," on consideration of various factors, such as the length of the marriage, the conduct of the parties during the marriage, their ages, their employability, their liabilities and needs, and opportunity for future acquisition of capital assets and income. G.L.c. 208, § 34, as amended by St. 1982, c. 642, § 1. The power to dispose completely of the property of the divorced litigants comes from a 1974 amendment to G.L.c. 208, § 34. See St. 1974, c. 565. It made a significant change in the respective rights of the husband and wife and in the power of Probate Court judges. See Bianco v. Bianco, 371 Mass. 420, 422-423 (1976). We have held that the "estate" subject to disposition on divorce includes not only property acquired during the marriage from the efforts of the husband and wife, but also all property of a spouse "whenever and however acquired." Rice v. Rice, 372 Mass. 398, 400 (1977). Without suggesting the outer limits of the meaning of the word "estate" under G.L.c. 208, § 34, as applied to trust assets over which a spouse has a general power of appointment at the time of a divorce, after this decision there should be no doubt that the "estate" of such a spouse would include trust assets held in a trust created by the other spouse and having provisions such as the trust in the case before us.

Edward J. Reilly, Jr., Alexander D. Forger and Samuel S. Polk for N. Holmes Clare and another, appellants.

John B. Loughran, as special guardian for infants, in person, and Joseph H. Spain for John B. Loughran, appellant.

John B. Jessup, B. Brooks Thomas and Paul S. Byard for respondent.

Judges BURKE, SCILEPPI, BERGAN, BREITEL and JASEN concur; Judge KEATING taking no part.

[481] Chief Judge FULD.

This appeal poses an interesting and important question concerning a widow's right of election to take against her husband's will. More particularly, may her husband, domiciled in a foreign state, by selecting New York law to regulate his testamentary dispositions, cut off or otherwise affect the more favorable right given his widow to elect by the law of their domicile?

In the case before us, Robert V. Clark, Jr., died in October of 1964, domiciled in Virginia, and there his widow continues to reside. His estate, consisting of property in Virginia and in New York, had an aggregate value of more than $23,000,000 — the bulk of which consisted of securities on deposit with a New York bank. His will, made in 1962, contained a provision that "this Will and the testamentary dispositions in it and the trusts set up shall be construed, regulated and determined by the laws of the State of New York." It devised the Clark residence in Virginia, together with its contents, to the widow and created for her benefit a preresiduary marital deduction trust — under which she would receive the income for life, with a general testamentary power of appointment over the principal of the trust. The residue of the estate, after payment of estate taxes, was placed in trust for the testator's mother. There has been a bi-state administration of the estate. The New York executors are administering the major portion of the estate — consisting, as noted, of securities held in New York during Mr. Clark's lifetime — and the Virginia executors are administering the [482] balance, including the real and tangible personal property located in Virginia.

The testamentary trust for the widow's benefit would satisfy the requirements of section 18 of our Decedent Estate Law. However, it is conceded that, under the statutes of Virginia, the widow has an absolute and unconditional right to renounce her husband's will and take her intestate share (in the absence of issue, one half) of his estate outright (Virginia Code, § 64-16).^[1] Timely notice of the widow's election having been given, the New York executors initiated this special proceeding in the Surrogate's Court, pursuant to section 145-a of the New York Surrogate's Court Act. The petition requests a determination denying the widow any right of election on the grounds that the terms of the will barred her from recourse to Virginia law and that, under New York law, the testamentary provisions in her favor were sufficient. The executors contend that, by declaring that his testamentary dispositions should be construed by the laws of New York, the testator meant to bar his widow from exercising her Virginia right of election and that section 47 of the Decedent Estate Law requires that we give effect to his purpose. That section — replaced, since the testator's death, by a very similar provision (EPTL 3-5.1, subd. [h]) — provided, in essence, that, when a nondomiciliary testator recites in his will that he elects that his "testamentary dispositions" shall be construed and regulated by the laws of New York, "the validity and effect of such dispositions shall be determined by such laws."^[2]

[483] The Surrogate upheld the executors' position. On appeal, the Appellate Division reversed, deciding that the widow's right to take in opposition to the will must be determined by the law of the domicile of the parties. Section 47 — which relates solely to the decedent's "testamentary dispositions" and their validity and effect — was inapplicable, the court concluded, because "the right of a widow to inherit despite the will is not a `testamentary disposition' in any sense" but is, on the contrary, "a restriction on the right to make a testamentary disposition." (28 A D 2d 57.)

We thoroughly agree with the Appellate Division's construction of the statute and with the conclusion it reached.

As already appears, section 47 permits a foreign domiciliary to have the validity and effect of his "testamentary dispositions" construed and regulated by the laws of this State. A regard for the language of the statute, as well as its legislative history and the policy to be served by it, clearly demonstrates that the words "testamentary dispositions" and "the validity and effect of such dispositions" do not encompass the right accorded a spouse to elect to take in opposition to the will.

Indeed, our statutes, in terms, draw a distinction between the two concepts, between the decedent's "testamentary disposition" and the spouse's right to elect. Section 145 of the Surrogate's Court Act (now SCPA 1420) — a statute procedurally related to section 47 — gave the surrogate jurisdiction to determine "the validity, construction or effect of any disposition of property contained in a will".^[3] And, in contrast, section 145-a of the Surrogate's Court Act (now SCPA 1421) gave the court jurisdiction of proceedings for the "determination as to the validity or effect of any election to take an intestate share against the provisions of a will". This latter provision appeared in our law for the first time in 1929 (eff. Sept. 1, 1930) as part of the same legislative package which included the first statute creating a right to elect against a will (L. 1929, ch. 229, §§ 4, 9). It is apparent — and highly significant — that the Legislature deemed it necessary to adopt this new procedural section (§ 145-a), despite the long-time presence on the statute books [484] of the above-mentioned provisions empowering the surrogate to determine "the validity [and] effect of a testamentary disposition". It is also significant that the proceeding now before us was brought, and properly so, under section 145-a, dealing with the "validity or effect of any election" rather than under section 145 which deals with testamentary dispositions.

The difference between the wording of section 145 and the much more recent section 145-a merely reflects the profound differences, in history and design, between the law of testamentary dispositions, of which section 47 of the Decedent Estate Law is a part, and the law of election to take in opposition to testamentary dispositions, embodied in section 18.

Unlike the expressions of intent which constitute testamentary dispositions, the right of election, both in Virginia and New York, is statutory in nature and exists wholly outside of, and in direct contravention to, the provisions of a will. (See Newman v. Dore, 275 N.Y. 371, 375; Matter of Greenberg, 261 N.Y. 474, 478; First Nat. Exch. Bank v. Hughson, 194 Va. 736; Gentry v. Bailey, 6 Grat. [47 Va.] 594.) As the court noted in Matter of Greenberg (261 N. Y., at p. 478), section 18 of the Decedent Estate Law, when enacted in 1929, introduced into this State a "new public policy which no longer permit[ted] a testator to dispose of his property as he please[d]." This being so, it necessarily follows that the widow's right of election — or, more precisely, its availability or nonavailability — is not a "testamentary disposition" whose validity and effect may be controlled by the provisions of a will under section 47. In the words of the Appellate Division, the spouse's right of election, far from being a testamentary disposition, is a "restriction on the right [of the decedent] to make [such] a * * * disposition."

A moment's reflection is all that is necessary to establish the difference between statutes which have to do with restrictions placed on the decedent's testamentary power — for instance, to disinherit his spouse or other members of his family — and those which bear on discerning and carrying out the testator's wishes and desires. Section 47 is an example of the latter sort of legislation. Its earliest version (Code Civ. Pro., § 2694 [L. 1880, ch. 178]) simply reflected the traditional choice of law rules, referring dispositions of personal property to the law of the [485] decedent's domicile. (See Holmes v. Remsen, 4 Johns. Ch. 461; see, also, Fowler, Decedent Estate Law of New York, 324.) It provided that the "validity and effect * * * of a testamentary disposition" of real property were to be regulated by the law of the situs and those of personalty by the law of the domicile; no exception was made for a case in which the testator might express a contrary intent.

Despite this statute, cases decided before (see, e.g., Chamberlain v. Chamberlain, 43 N.Y. 424, 433-434), as well as after (see St. Johns v. Andrews Inst., 191 N.Y. 254, 267; Robb v. Washington & Jefferson Coll., 185 N.Y. 485, 496; Hope v. Brewer, 136 N.Y. 126, 139) its adoption, held that, when personalty had been placed outside the domiciliary jurisdiction, a testamentary disposition of the property which violated (for example) the domicile's rule against perpetuities or its mortmain statute — the cases dealt almost invariably with charitable bequests — would be given effect if valid under the law where the property was situated. The declared purpose of the courts was, if possible, to give effect to, and not frustrate, the testamentary dispositions; the reasoning underlying these determinations was that perpetuities and mortmain affected only the administration of the property in the hands of the recipient and that, therefore, these questions were of concern only to the situs jurisdiction and not to that of the domicile.

Some years later, in 1911, in apparent recognition of this practice of the courts, section 47 was amended, expressly to permit a nondomiciliary to choose to have his testamentary disposition of his property regulated by New York law (L. 1911, ch. 244). The distinction between the decedent's "testamentary disposition" and the spouse's right of election, as well as the inapplicability of section 47 to the present case, is pointed up by the fact that, when this amendment to section 47 was adopted, New York's first right of election statute was still some 18 years in the future (Decedent Estate Law, § 18 [L. 1929, ch. 229, § 4]).

Moreover, consideration of general principles of choice of law serve to confirm the conclusion, at which we have arrived, that it is the law of Virginia as to the widow's right of election, not that of New York, which here controls. As between two [486] states, the law of that one which has the predominant, if not the sole, interest in the protection and regulation of the rights of the person or persons involved should, of course, be invoked. (See Matter of Crichton, 20 N Y 2d 124, 134; Downs v. American Mut. Liab. Ins. Co., 14 N Y 2d 266, 271; Babcock v. Jackson, 12 N Y 2d 473.) Matter of Crichton (20 N Y 2d 124, supra) is illustrative. A domiciliary of New York had placed his personal property in a state (Louisiana) which had a very different method of protecting a surviving spouse. In deciding that the law of the domicile ought to be applied, our court noted that Louisiana had no "interest in protecting and regulating the rights of married persons residing and domiciled in New York." On the contrary, we declared, "New York, as the domicile of Martha and Powell Crichton, has not only the dominant interest in the application of its law and policy but the only interest" (20 N Y 2d, at p. 134).

Although a declaration contained in a will that its law was to control might give a foreign state an interest in the application of its law that it would otherwise lack, this interest would not extend to a matter, such as the right of election, which is completely unrelated to, and indeed in contravention of, the decedent's intent. Thus, in the Crichton case, the court made it exceeding plain that such a declaration would not be given any effect, if to do so would be to "avoid the New York statutory provision for the protection of the surviving spouse" (20 N Y 2d, at p. 137, n. 10). But, urge the appellants before us, even if a testator domiciled in New York could not avoid his spouse's right of election in that way, this State's interest in encouraging nonresidents to invest their funds here ought to be given effect, even at the expense of the rights given to a surviving spouse by the law of the domicile of the decedent and his widow. The authorities upon which they rely, however, fail to support such a proposition.

In Wyatt v. Fulrath (16 N Y 2d 169) and Hutchison v. Ross (262 N.Y. 381) we permitted nondomiciliaries to make dispositions of property located here which would have violated the public policy of their domicile, and it is asserted that a similar result should be reached in this case. Hutchison and Wyatt, however, are inapposite; both involved inter vivos transactions [487] between husband and wife. Such inter vivos dispositions, unlike the unilateral provisions of a will, have traditionally been upheld if permitted under the law of place where the property was located. (See James v. Powell, 19 N Y 2d 249, 256; Weissman v. Banque de Bruxelles, 254 N.Y. 488, 494; see, also, Restatement, Conflict of Laws, §§ 255-257.)^[4]

Indeed, in the Hutchison case (262 N.Y. 381, 391, supra), this court specifically referred to the distinction drawn between inter vivos and testamentary dispositions. After noting that "The rules that both the capacity to make a valid conveyance of tangible chattels and securities and the essential validity of such conveyance are determined by the law of the state where chattel is situated * * * have been generally applied to conveyances inter vivos", the court went on to say that "[t]hey are not generally applied to passage of title by will or the intestacy of a decedent owner. With possible limitations, not relevant to the question here presented [cases cited], the rule is well established that the essential validity of a testamentary trust must be determined by the law of the decedent's domicile" (p. 391).

In point of fact, recent legislative changes serve to confirm our conclusion that a widow of a nondomiciliary cannot be deprived of the right of election given to her by the law of the jurisdiction in which she and her husband were domiciled. In 1965, the Legislature undertook a thorough re-evaluation of the law governing rights of election in this State and, as a result, adopted section 18-b of the Decedent Estate Law, to take effect September 1, 1966. The new section explicitly provided (subd. 4) that the New York provisions "shall not be available to the spouse of a decedent who at the time of his death was not domiciled in this state." In 1966, that same rule was restated as subdivision 6 of section 18-c and, again, [488] as section 5-1.1 of the new Estates Powers and Trusts Law which was to go into effect the following year. Thus, three successive legislative enactments had specifically provided that, regardless of any expression of intent, the spouse of a nondomiciliary was not entitled to exercise a right of election under New York law. The purpose of the provision was undoubtedly to insure that the spouse's rights were to be determined by the law of the domicile (Fourth Report of Temporary State Commission on Estates, N. Y. Legis. Doc., 1965, No. 19, pp. 150-151). This was considered necessary to achieve uniformity between the law which had been applied to real property and the existing law as to personal property which the commission found, "under established rules, is governed by the law of the decedent's domicile" (pp. 150-151).

However, effective September 1, 1967, the spouse of a nondomiciliary was given an additional right; section 5-1.1 (subd. [d], par. [6]) of the new Estates Powers and Trusts Law was amended (L. 1967, ch. 686, § 39) to give to the surviving spouse the opportunity to elect against the will under New York law where the testator made an election to have his testamentary dispositions governed by New York law. "The right of election granted by this section", the amended provision reads, "is not available to the spouse of a decedent who was not domiciled in this state at the time of death, unless such decedent elects, under paragraph (h) of 3-5.1 [formerly Decedent Estate Law, § 47], to have the disposition of his property governed by the laws of this state."

The effect of this provision, quite obviously, was to render the New York right of election "available" — that is, afford an opportunity — to a nondomiciliary to elect the New York right of election where, under prior law, she would have been limited to her rights under the law of the domicile. It was consistent with the policy of uniformity since, where a testator had declared that his will should be governed by the law of a foreign jurisdiction, no interest of the domicile would be prejudiced by extending to the surviving spouse the greater protections which New York law might provide. (See Scoles, Conflict of Laws and Elections in Administration of Decedents' Estates, 30 Ind. L. J. 293, 307.) Be that as it may, though, the statute was certainly [489] not intended to deprive her of any rights afforded by the domicile in a case such as this, where it would provide her with a greater protection than the law of New York. On the contrary, as we have already observed, the amended statute extends an additional protection which she would not otherwise have had. In short, the statute manifests a strong legislative policy to limit the testator's power to deprive his spouse of support; it is designed to complement, not to frustrate, the policies of sister states directed toward the same end.

While Virginia, as well as New York, has demonstrated concern for surviving spouses, the two states have done so in substantially different ways. A right to the income of a trust, sufficient under our law (Decedent Estate Law, § 18), is by no means the equivalent of taking the principal outright as would be the widow's right upon her election under Virginia law. Whether the widow in the case before us would be adequately provided for under the will or our own law is irrelevant, for the same principles must apply to an estate of $23,000 as to one of $23,000,000, and we reject the notion that New York ought to impose upon its sister states its own views as to the adequacy of a surviving spouse's share.

In sum, Virginia's overwhelming interest in the protection of surviving spouses domiciled there demands that we apply its law to give the widow in this case the right of election provided for her under that law. We find nothing in section 47 of the Decedent Estate Law or in the public policy of New York which would permit a decedent, by a mere expression of intent, to change this result.

The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Order affirmed.

[1] In contrast, the New York right of election statute, in effect at the time of this testator's death (Decedent Estate Law, § 18), permits a decedent to defeat his spouse's right by creating a trust of the requisite size for her benefit and giving her the net income therefrom for life.

[2] Section 47 read, in somewhat greater detail, as follows: "The validity and effect of a testamentary disposition of real property, situated within the state * * * are regulated by laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property * * * are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death. Whenever a decedent, being a citizen of the United States or a citizen or subject of a foreign country, wherever resident, shall have declared in his will that he elects that such testamentary dispositions shall be construed and regulated by the laws of this state, the validity and effect of such dispositions shall be determined by such laws." (Emphasis supplied.)

[3] Similar wording also appears in the predecessors of section 47 (Code Civ. Pro., § 2694, as added by L. 1880, ch. 178) and of section 145 of the Surrogate's Court Act (L. 1870, ch. 359, § 11).

[4] Contrary to the appellants' contention, our decision in the Wyatt case (16 N Y 2d 169, supra) may not be read as authority for the proposition that a decedent may unilaterally reduce or impair the spouse's right to the share of his estate assured her by the law of their domicile. Since in Wyatt the respective heirs of both husband and wife were the same persons, they could have received their full "forced shares" in the property as provided for under the law of the domicile (Spain), regardless of the validity of the inter vivos transfers — the sole issue, we note, with which we were concerned.

[342] Ryan, Swanson, Hendel & Cleveland, by Morey G. Priest, for petitioner.

Bruce G. Hand, for respondents.

WILLIAMS, J.

In 1962, Conrad C. Lapp acquired 100 percent of the stock of the Joslyn Fruit Company (Joslyn), a Colorado corporation. In 1975, Conrad Lapp married his present wife, Laura D. Lapp, in Colorado, where both were residents. Under Colorado law, the stock of Joslyn remained Mr. Lapp's sole property, which he could encumber or convey without the consent of his wife. Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698 (1967); Bostron v. Bostron, 128 Colo. 535, 265 P.2d 230 (1953).

By the spring of 1977, Joslyn was in severe financial difficulty and indebted to petitioner Pacific Gamble Robinson Company in the amount of $34,710.70. In an effort to assist Lapp and to enable Joslyn to remain in business, petitioner agreed to continue to supply produce if Lapp signed a promissory note on which he would be personally liable [343] along with Joslyn. On April 14, 1977, the promissory note for $34,710.70 was executed in Colorado by Lapp individually and on behalf of Joslyn. Mrs. Lapp did not sign the note. Under Colorado law, Mr. Lapp's earnings and property alone were subject to that debt, and his wife could not object to the encumbrance. Imel v. United States, 184 Colo. 1, 8, 517 P.2d 1331 (1974).

In July of 1977, Joslyn and Mr. Lapp defaulted on the note. In September, the Lapps moved to Washington. On January 31, 1978, petitioner brought this action in Washington against Joslyn, Conrad Lapp individually, and the Lapp marital community to recover the balance due and owing on the note.

The trial court granted summary judgment against Conrad Lapp individually but refused to hold that the community had incurred any legal obligation. Petitioner appealed from that portion of the judgment dismissing the marital community. In a split decision, the Court of Appeals affirmed the trial court. Pacific Gamble Robinson Co. v. Lapp, 24 Wn. App. 795, 604 P.2d 1300 (1979). We reverse.

This case presents the following issue: Is the creditor on an obligation incurred by one spouse in a foreign, noncommunity property state where both spouses were domiciled, restricted in its recovery to the separate property of the obligor spouse, as the term "separate property" is defined by Washington law, after the couple moves to Washington?

[1] Washington has adopted the so-called "center of gravity" or "most significant relationship" approach to contract choice of law problems. In the absence of an effective choice of law by the parties, the validity and effect of a contract are governed by the law of the state having the most significant relationship with the contract. Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 459 P.2d 32 (1969); Baffin Land Corp. v. Monticello Motor Inn, Inc., 70 Wn.2d 893, 425 P.2d 623 (1967); Restatement (Second) of Conflict of Laws § 188 (1971).

[344] [2] Under the law of this state, a debt is presumed to be a community obligation. Oregon Improvement Co. v. Sagmeister, 4 Wash. 710, 30 P. 1058 (1892). The burden of proving that a debt is not a community obligation rests on the community. Beyers v. Moore, 45 Wn.2d 68, 70, 272 P.2d 626 (1954). If the obligation is incurred by the community, then community property, including the earnings of both spouses, is liable for the debt. Beyers, at 70; RCW 26.16.030. On the other hand, if a debt is characterized under Washington law as separate, or for the benefit of the husband's separate property, then it may not be satisfied from the earnings of either spouse, because earnings during coverture are community property. RCW 26.16.030; RCW 26.16.200.

In Colorado, however, as we explain more fully below, the law subjects only the husband's property, including earnings, to payment of a debt incurred by him alone. Imel v. United States, at 8. This is a result not possible under Washington law. But see deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980).

Accordingly, if this transaction had taken place entirely in Colorado, with the Lapps remaining there as domiciliaries, petitioner would have been entitled to judgment against only Conrad Lapp's property, including his earnings. If the transaction had occurred entirely in Washington, however, regardless of whether the debt were characterized as a community or a separate obligation, petitioner would not be entitled to have its judgment satisfied from Conrad Lapp's wages alone. Depending on how the obligation was characterized, petitioner could alternatively reach the wages and earnings of both spouses, or of neither spouse.

Since the result is different under the law of the two states, we are not faced with a "false conflict", as was found by the court in Pacific States Cut Stone Co. v. Goble, 70 [345] Wn.2d 907, 425 P.2d 631 (1967).^[1] Rather, there is a "real" conflict of laws, making this situation analogous to that faced by this court in Potlatch No. 1 Fed. Credit Union, where we said:

This case presents a single issue ..., and that is whether the community of a cosigner of a note may be held liable on the note although the community derived no benefit therefrom.

Potlatch No. 1 Fed. Credit Union, at 811.

The legislatures and courts of the two states have made conflicting policy decisions with respect to this question. Idaho has chosen to recognize the interests of creditors over the interests of marital property in these situations. Washington has taken the opposite view. These two policy decisions come into direct conflict where, as here, the controversy involves an Idaho creditor and a Washington marital community.

(Italics ours.) Potlatch No. 1 Fed. Credit Union, at 808-09.

[346] In such a case, we apply the most significant relationship test, which is summarized in the Restatement, supra at § 188, p. 575.

(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.

(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203.

[3] As we observed in Potlatch No. 1 Fed. Credit Union, in applying this test we do not merely count the contacts between each state and the transaction at issue. "Rather, these contacts are guidelines indicating where the interests of particular states may touch the transaction". Potlatch No. 1 Fed. Credit Union, at 810. Moreover, "[t]hese competing policies must also be weighed against the justified expectations of the parties." Potlatch No. 1 Fed. Credit Union, at 810. See Restatement, supra at § 188, comment c, p. 578. See also Powers, Formalism and Nonformalism in Choice of Law Methodology, 52 Wash. L. Rev. 27, 60-62 (1976); Sedler, The Contracts Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L. Rev. 279, 311 (1972).

[4] Applying these principles to the present case, we think it plain that Colorado has numerous governmental [347] interests in this transaction. The entire transaction occurred in Colorado. Petitioner was doing business in Colorado, and the Lapps were domiciled in Colorado at the time of the execution of the note, which was signed in Colorado by Mr. Lapp individually and on behalf of a Colorado corporation. Moreover, both parties apparently contemplated that all performance was to be in Colorado. We may assume that Colorado's interest is to ensure the predictability of business relations and to prevent the flight of debtors to other states to avoid payment of otherwise legitimate debts.

What is Washington's interest in the note at issue? Clearly, Washington has a general interest in protection of marital communities from the entirely separate debts of one spouse. RCW 26.16.010, .020.^[2] But Washington had no connection whatever with the present transaction until the Lapps established their domicile here just 2 months after the note went into default. While the record demonstrates no cause and effect relationship between the default and the parties' move to Washington, we may safely assume that this state has no policy interest in maintaining within its borders a sanctuary for fleeing debtors.

[348] Turning to the expectations of the parties, we think that both spouses could reasonably expect at the time the note was executed that the transaction would be governed by Colorado law. Since the Lapps had long been domiciled in Colorado, and remained there some months after the note was signed, they could not justifiably believe that the obligation could be fairly avoided by the device of removing to a state where a husband's wages would not be subject to the debt. See Pacific States Cut Stone Co., at 913.

Petitioner was aware that Joslyn was a Colorado corporation, and had been so at least since 1962 when Conrad Lapp acquired all its stock. Petitioner knew that the Lapps had been Colorado domiciliaries from the time of their marriage up to and including the time the note was signed. As between Colorado, the state of the debtor's domicile, and a later possible domicile, a creditor would reasonably expect that Colorado law would apply. Although petitioner's principle place of business is in Washington, petitioner was doing business in Colorado and had willingly subjected itself to Colorado law by entering into a contract with a Colorado resident and could justifiably assume that the Colorado law would likewise apply to petitioner's business debtor. A creditor need not anticipate that a debtor may avoid a debt merely by moving to any of 49 other states.

It is thus plain that all parties to the contract would undoubtedly have assumed Colorado law to apply, if they had considered the matter. Moreover, it is clear to us that the numerous contacts, competing policies, and justifiable expectations of the parties show Colorado's interest in the contract to be far more significant than Washington's, Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 811-13, 459 P.2d 32 (1969), and we accordingly apply Colorado law. This conclusion is consistent with the Restatement view, which states:

(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203 [not relevant here].

[349] Restatement (Second) Conflict of Laws § 188, at 575 (1971). Moreover, the parties agree that Colorado law applies to determine the validity of the debt; indeed, the debtor pleaded Colorado law.

Our analysis of Colorado law discloses the following: Unlike Washington, Colorado is not a community property state and does not use the term "separate property" when referring to a husband's sole property. Rather, "separate property" is a statutory concept designed to relieve married women of the historic disabilities of coverture under the common law. Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285 (1930); Tuttle v. Shutts, 43 Colo. 534, 96 P. 260 (1908); Palmer v. Hanna, 6 Colo. 55 (1881). All other property not jointly owned is the husband's whether acquired in such a way as to make it either separate or community property under Washington law. A debt incurred by the husband in Colorado without the consent of the wife may not be satisfied from the wife's property, including her wages. Colo. Rev. Stat. 14-2-201, 14-2-203, XX-XX-XXX. It is not accurate, therefore, to state that the husband's "separate property" under Colorado law is subject to the claims of creditors on his separate obligations. Rather, only the wife may own separate property as that term is understood in Colorado. Since application of community property concepts is unknown in Colorado, we do not speak in terms of these concepts when we apply Colorado law.

It follows that, in Colorado, all property of the Lapps would be subject to Mr. Lapp's debt to petitioner except Mrs. Lapp's separate property, including her earnings. Imel v. United States, 184 Colo. 1, 8, 517 P.2d 1331 (1974). Thus, a fair application of Colorado law to this debt in an action brought in Washington is that the same property subject to payment of a debt in Colorado, including Mr. Lapp's wages and acquisitions, is likewise subject to payment of the debt in Washington, notwithstanding such [350] property is characterized as "community" under Washington law.^[3]

The judgment of the Court of Appeals is reversed.

ROSELLINI, STAFFORD, BRACHTENBACH, DOLLIVER, and HICKS, JJ., concur. HOROWITZ, J. (dissenting)

This case considers the remedy available under Washington law for a creditor of a married person who has signed a promissory note for payment of a debt incurred for the sole benefit of his noncommunity property. The trial court reached the correct result in refusing to hold the Lapp marital community liable on this note signed only by Mr. Lapp in Colorado with respect to and for the benefit of his noncommunity property. I therefore must dissent from the majority's reversal of the Court of Appeals decision upholding the trial court's dismissal of Pacific Gamble's claim against defendant Lapps' marital community.

As set forth in the majority opinion, this case concerns a contract debt originally incurred by Mr. Lapp in Colorado while the Lapps were domiciled in that state. The majority correctly notes that "the validity and effect of a contract are governed by the law of the state having the most significant relationship with the contract", i.e., Colorado. Majority opinion, at page 343. I have no quarrel with this conclusion; it appears, at any rate, that under the laws of Colorado or Washington, the note must be considered in [351] default and judgment could be had against it. The contractual basis for an action on the breached contract to pay the debt made by Mr. Lapp is undisputed.

The majority errs, however, in thereafter concluding that simply because Colorado law will determine the "validity and effect" of the contract — i.e., the note's enforceability and the breach of its terms — that Colorado law must also determine whether Pacific Gamble is entitled to collect its debt in Washington from the Lapps' community property, subsequently acquired in Washington, the Lapps' domicile. The majority makes its argument to this effect not on the basis of a Colorado judgment against the Lapps, but merely because of its view that the husband would have had the benefit of property characterized as community in this state to pay the debt had that property been earned in Colorado.

I cannot agree with the majority's analysis. The funds available to satisfy this judgment, even if rendered on the basis of another state's contract law, must be left to the law of the debtor's marital domicile and forum, Washington. In this case, Colorado law cannot be expected to resolve the question of liability of Washington community property for the debt, for no such concept of marital property ownership exists in Colorado. Our courts should look instead to Washington law to determine whether one spouse, acting alone, for the sole benefit of his sole business, can subject community property in Washington to liability on a debt such as that incurred by Mr. Lapp in this case. RCW 26.16.010-.020, and .200 clearly preclude such liability for Mr. Lapp's noncommunity debt.

Under Washington law, a separate debt, created in aid of the husband's separate business, and therefore not incurred for the benefit of the community, cannot be collected out of community property. This state's public policy is to protect the community marital property against a debt not incurred for its benefit. Colorado is not a community property state. Instead, it has a form of common law marital [352] property that prevents a wife's separate earnings and property from being subjected to the payment of her husband's debts.

The majority has compared the public policies of Washington and Colorado in protecting the interests of a spouse who has had no involvement in contracting her marital partner's debt. Then, by misapplying conflict of laws rules, the majority determines that Washington's public policy in this regard must yield to Colorado's, subjecting community property, earned in Washington by Washington domiciliaries, to the payment of the husband's debt, incurred in Colorado, a debt which would be separate in nature under Washington law. For the reasons set out below, I object to the majority's analysis and conclusion.

The case most extensively relied on by the majority, Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 459 P.2d 32 (1969), in fact clearly supports the analysis set forth in this dissent. In Potlatch, this court applied Washington law, which was more protective of community property than the competing Idaho law, in determining the liability of the Washington marital community for a debt incurred by the husband in Idaho. As noted by the majority, our conclusion in Potlatch was based on an analysis of the "conflicting policy decisions" made by the legal systems of the two states. Majority opinion, at page 345, citing Potlatch No. 1 Fed. Credit Union, at 808. For the same reasons set out more fully in this opinion below, we there applied Washington law to determine the liability of the Washington marital community for a debt incurred in another state.

What the majority overlooks in its citation, on the strength of Potlatch, to Restatement (Second) of Conflict of Laws § 188 (1971), is the fact that the appropriateness of the application of a particular state's laws will depend on the issue being considered:

Courts have long recognized that they are not bound to decide all issues under the local law of a single state. See Restatement (Second), Conflict of Laws § 188, Comment [353] d.... Therefore, with respect to the issue now before us of whether the community property of Washington residents is subject to the suretyship obligation of the husband entered into with an Idaho company with no benefit to the community, we hold that the law of Washington has the most significant relationship to that portion of the transaction.

(Italics mine.) Potlatch No. 1 Fed. Credit Union v. Kennedy, supra at 813. Restatement (Second) of Conflict of Laws § 188(1) itself, as cited in the majority opinion at page 346, sets out that the determination of the state with the "most significant relationship to the transaction" is to be accomplished "with respect to an issue" (italics mine) actually contested in the proceeding. Review of the conflict of laws principles with regard to the single issue of the source of funds available to satisfy a contractual obligation should lead to the conclusion, reached in Potlatch, that Washington law will determine the liability of the community property of a couple domiciled in Washington for a debt, wherever incurred, that is sued upon in Washington.

Without clearly identifying the problem presented by the distinction between contractual validity and contractual payment source of funds, Potlatch considered this question of the source of funds available to satisfy a contractual obligation in a manner that clearly draws this distinction in conflict of laws analysis. Neither cases nor commentaries in this country have considered the choice of law issues raised by jurisdictional differences in the classes of property available to satisfy the judgment for a litigant damaged by breach of contract:

In this area which is beset with highly significant differences among the several laws, conflicts problems have been widely discussed abroad. No similar treatment can be found in this country. Thus, for instance, neither interstate nor international conflicts cases seem to have been reported concerning the remedies available for the enforcement of contracts ...

A. Ehrenzweig, Conflict of Laws § 125, at 357 (1962). The few foreign treatises available also offer no guidance in [354] determining how the source of funds for contract damages is to be determined in a case such as this, although most acknowledge the distinction in choosing the law to govern contractual validity and the law to govern the funds available for contractual damage recovery. However, I feel that in this case we should explicitly make this distinction between choice of law in contractual validity and in contractual damage recovery. This case concerns no issue of validity but considers instead only the source of funds for collection of contract damages. We should reaffirm the application of the law of the marital domicile and forum, Washington, to the question of the source of funds available for contract damages, because of the overriding interest this state has in consistent and conscientious application of the policies underlying the law of community property.

This examination of the policies of our community property law is entirely consistent with and necessary to arrive at a decision between the conflicting principles of law presented here. It is in the best tradition of modern conflict of laws analysis, considering the policies for application of one state's law, rather than another's because

[t]he natural desire of every good court [is] to achieve justice by applying what it regards as intrinsically the better rule of law ...

R. Leflar, American Conflicts Law § 4, at 7 (1968). See also Restatement (Second) of Conflict of Laws § 188, comment c (1971) ("The purpose sought to be achieved by the contract rules of the potentially interested states, and the relation of these states to the transaction and the parties, are important factors to be considered in determining the state of most significant relationship.") As noted by Mr. Justice Holmes, law is not a closed system that "can be worked out like mathematics." It is the duty of judges to "weigh considerations of social advantage."^[4]

[355] With this duty in mind, I examine the public policy behind Washington's community property law.

This state has a unique, progressive system of property ownership that affords marital partners equal control over community assets. RCW 26.16.030. Our law generally refuses to allow those assets to be burdened by the noncommunity debts of either spouse.^[5] Washington's community property scheme reflects a policy which should not be subjected to the vagaries of out-of-state debt accrual; all marital communities in this state are afforded the protection and predictability of our community property provisions.

The practical result of the majority's analysis is to permit an out-of-state creditor to collect his debt from assets in this state which our law would forbid to a local creditor who has no claim to community property. As the Court of Appeals pointed out, had Mr. Lapp contracted this debt in Washington, only his separate property would have been subject to the debt. Pacific Gamble Robinson Co. v. Lapp, 24 Wn. App. 795, 800, 604 P.2d 1300 (1979). Joslyn Fruit was Mr. Lapp's noncommunity property, purchased by him prior to his marriage. It would be characterized as separate property under the law of this state. The obligation now sued upon by Pacific Gamble, which was undertaken for Joslyn Fruit's sole benefit, would have created no community liability if incurred in Washington. Piles v. Bovee, 168 Wash. 538, 12 P.2d 914 (1932); Schramm v. Steele, 97 [356] Wash. 309, 166 P. 634 (1917). But by applying Colorado law to determine the remedy available to Pacific Gamble, the majority subjects community property, wages and property earned and owned in this state by Mr. Lapp, to execution. There is no reason or benefit to the people of this state in according such a preference to an out-of-state creditor.

We instead should look at the interests of the parties to this action for recovery of damages and at the policies of the states with which this action is connected. The plaintiff Pacific Gamble's principal place of business is Washington; presumably familiar with the law of this state, it could have prevented the result of which it now complains by, for example, the simple device of obtaining an agreement signed by husband and wife at the time the debt was incurred. Household Fin. Corp. v. Smith, 70 Wn.2d 401, 423 P.2d 621 (1967). The defendants are domiciled here, wholly subject to the benefits and liabilities inherent in our system of marital property ownership. The courts of this state must enforce any judgment for damages, determining the source of funds, the procedure for satisfaction, and all other mechanics of enforcing plaintiff's substantive contractual claim. The law of this state should apply. Washington's interest in this decision and its impact on our citizens' marital property rights is far greater than any continuing interest by Colorado in the remedy available for breach of a transitory contract sued upon in this state. See Potlatch No. 1 Fed. Credit Union v. Kennedy, supra at 813-14 ("We have seriously considered the governmental interest of the state of Idaho in protecting its creditors, but do not believe they are paramount in this case."). See also O'Brien v. Shearson Hayden Stone, Inc., 90 Wn.2d 680, 686, 586 P.2d 830 (1978).

The law of Washington should determine the source of funds from which Pacific Gamble's damages for breach of contract can be had. Washington is the state with the most significant relationship to the single issue of the source of funds available for contract damages. Potlatch No. 1 Fed. [357] Credit Union v. Kennedy, supra at 813. Mr. Lapp's noncommunity debt cannot be satisfied from the marital community's property. We should affirm the dismissal of Pacific Gamble's suit against the Lapp marital community. I therefore respectfully dissent.

UTTER, C.J., concurs with HOROWITZ, J.

[1] The usual meaning of "false conflict" is that there is no conflict between the laws of two states. That is, "[i]f the laws of both states relevant to the set of facts are the same, or would produce the same decision in the law suit, there is no real conflict between them and the case ought to be decided under the law that is common to both states." R. Leflar, American Conflicts Law§ 93, at 188 (3d ed. 1977).

In fact, Pacific States Cut Stone Co. v. Goble, 70 Wn.2d 907, 425 P.2d 631 (1967), was in error in finding a false conflict. The case involved a debt incurred in Oregon by two husbands who were Washington residents. The result under Oregon law would not subject the wives' earnings to the debt, because their wages were separate property, as that term is defined in Oregon. Ore. Rev. Stat. 108.050. The result under Washington law would subject the wives' earnings to the debt, because (1) the debt was a community obligation, (2) community property was reachable to satisfy it, and (3) the wives' earnings were community property in Washington. Thus, a real, not false, conflict was presented in the Pacific States Cut Stone Co. case, although the court failed to recognize it.

In spite of the confusion in the Pacific States Cut Stone Co. opinion, it has been widely heralded, apparently because of its salutary overruling of a long line of precedent which had prevented out-of-state creditors from reaching assets that would have been available to Washington creditors. See Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729, 843 (1974); Trautman, Evolution in Washington Choice of Law — A Beginning, 43 Wash. L. Rev. 309, 312-13 (1967); R. Weintraub, Commentary on the Conflict of Laws 367 n. 57 (2d ed. 1980); R. Leflar, American Conflicts Law § 233, at 474 (3d ed. 1977).

[2] It may be noted, however, that the Washington policy in favor of the protection and predictability of the marital property provisions is not always followed strictly, but has been modified by this court and the legislature in some circumstances. In the case of deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), for example, the court has decided that a tort-feasor's share of community property, including wages, may be available for a judgment on a separate tort. This is so, even though (1) the debt was incurred during the marriage, (2) the debt was characterized as "separate", because it was not incurred for the benefit of the community, and (3) this type of community property has not heretofore been available to a plaintiff in such an action. Moreover, RCW 26.16.200, the so-called "marital bankruptcy" statute, provides that the earnings and accumulations of a spouse shall be available to creditors for the satisfaction of debts incurred by that spouse prior to marriage for a period of 3 years from the date of the marriage. Thus, although neither of these incursions on the traditional community property rule as to separate debts of a spouse applies to the facts of this case, it is clear that neither this court nor the legislature currently adheres to the rule that the marital property, including the wages of a debtor spouse, are under all circumstances to be insulated from the claims of a creditor on a separate debt.

[3] This result is consistent with the reasoning we employed in Potlatch No. 1 Fed. Credit Union v. Kennedy,76 Wn.2d 806, 459 P.2d 32 (1969). Although we there concluded that Washington law should apply to the question whether the community was liable for the husband's suretyship obligation to an Idaho creditor, the result was reached through a careful analysis of all the factors. Had we found that Idaho had the most significant relationship to the transaction, it is clear we would have applied Idaho law and accordingly imposed liability on the Washington marital community.

Potlatch No. 1 Fed. Credit Union thus provides the analytical framework for deciding this case, although our conclusion requires us to apply foreign law. There is no persuasive authority for the view that the property liable on a debt is a question of remedy which must always be decided by the law of the forum.

[4] Quoted in Cook, Oliver Wendell Holmes: Scientist, 21 A.B.A.J. 211, 212 (1925). See also O. Holmes, Common Law 35-36 (1881).

[5] The majority relies on a wholly statutory exception to the rule that community assets are not subject to noncommunity debts. Majority opinion at page 347, footnote 2. RCW 26.16.200 was necessary to change the rule of a long line of cases refusing to allow recovery for antenuptial separate debts from the community property of newly married individuals. See Katz v. Judd, 108 Wash. 557, 185 P. 613 (1919). See also National Bank of Commerce v. Green, 1 Wn. App. 713, 463 P.2d 187 (1969) (refusing to give retroactive application to RCW 26.16.200 because it so clearly overruled earlier case law and altered the very nature of community property rights). The fact that these exceptions were accomplished only by legislation helps demonstrate the general strength and validity of the rule protecting community assets from noncommunity debts. See deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980) (Horowitz, J., dissenting).

[601] Patrick B. Kenney of Miller, Norman & Kenney, Moorhead, MN, for plaintiff and appellee.

Steven A. Johnson (argued), and H. Patrick Weir of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendants and appellants.

VANDE WALLE, Justice.

Ralph W. Thomas and Gateway Chevrolet, Inc. appealed from a district court judgment which granted American Standard Life & Accident Insurance Company's [American Standard] motion for summary judgment. The judgment ordered that American Standard, the garnishor, recover from Gateway Chevrolet, Inc. [Gateway], the garnishee, $138,443.90, plus interest and costs as the result of an Arizona judgment against defendant Thomas, an employee and major shareholder of Gateway. We affirm.

American Standard obtained a judgment against Thomas on October 2, 1991, in Maricopa County, Arizona. The judgment arose from an agreement in which Thomas guaranteed a loan extended by American Standard. The guarantee agreement specified it was to be governed by Arizona law. After the loan was in default, American Standard commenced a proceeding in Arizona to sell the real estate which secured the loan. The real estate was sold but the proceeds did not satisfy the claim, and American Standard successfully sued Thomas for the deficiency. Under Arizona law, the judgment against Thomas for the deficiency was limited to his "sole and separate property."

An authenticated copy of that judgment was filed in Cass County, North Dakota, on January 14, 1992, pursuant to Chapter 28-20.1, NDCC, North Dakota's codification of the Uniform Enforcement of Foreign Judgments Act. Since then, several garnishee summons have been served, most notably against Gateway. The bases for the garnishee summons upon Gateway are that it pays Thomas a monthly salary and pays a rental on land which is leased from Thomas and owned in joint tenancy by Thomas and his wife.

After initially denying holding any money that was the "sole and separate property" of Thomas, Gateway made two garnishment disclosures, and the deposition of Bruce A. Nelson, Office Manager of Gateway, was taken. The disclosures and deposition revealed that Thomas's monthly salary from Gateway was $5,149.00. They also revealed that Gateway entered into a written lease with Thomas, individually, whereby Gateway pays him, individually, $26,500.00 per month for property in Cass County which is owned in joint tenancy by Thomas and his wife. Although acknowledging service of the Garnishment Summons, Gateway has continued to issue salary and lease checks to Thomas and has neither applied nor set off any monthly salary payments or lease payments to Thomas against the amount claimed in American Standard's garnishee summons.

Because of Gateway's failure to apply or set off any money owed to Thomas, American Standard brought a motion for summary judgment for the entire amount claimed in the garnishee summons. See NDCC § 32-09.1-15. The district court granted the motion. The issue before us on appeal is whether North Dakota or Arizona law applies to the wages and lease payments received by Thomas as a result of the Arizona judgment transferred to North Dakota through Chapter 28-20.1, NDCC.

In 1969, North Dakota adopted the 1964 Revised Act of the Uniform Enforcement of Foreign Judgments Act as approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association. Chapter 28-20.1 provides a summary procedure for actions on foreign judgments by providing the enacting state with a speedy and economical method [602] of doing what it is required to do by the Constitution of the United States, that is, to provide full faith and credit to the judgments of courts of other states. NDCC §§ 28-20.1 et seq.; Unif. Enforcement of Foreign Judgments Act (1964) Prefatory Note, 13 U.L.A. 150 (1986).

The Full Faith and Credit Clause of the United States Constitution asserts:

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws proscribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

U.S. Const. art. IV, § 1. In applying the Uniform Enforcement of Foreign Judgments Act, constitutional full faith and credit is afforded to foreign judgments even though a similar judgment could not be obtained in the forum state as a matter of law, Matson v. Matson, 333 N.W.2d 862 (Minn.1983)^[1], or though the judgment could not be obtained in the forum state as a matter of strong public policy. Hamilton v. SCM Corp., 334 N.W.2d 688 (Wis.Ct. App.1983); Medina & Medina, Inc. v. Gurrentz Int'l, 304 Pa.Super. 76, 450 A.2d 108 (1982).

When a properly authenticated foreign judgment is filed with the clerk of any district or county court in North Dakota and notice is properly given to all parties, Beck v. Smith, 296 N.W.2d 886 (N.D.1980), the clerk treats the foreign judgment in the same manner as a judgment of a district or county court of this state. NDCC § 28-20.1-02. "A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court or county court of any county of this state and may be enforced or satisfied in like manner." Id. The local law of the forum determines the methods by which a judgment of another state is enforced. United Bank of Skyline v. Fales, 395 N.W.2d 131, 133 (Minn.Ct. App.1986) citing Jones v. Roach, 118 Ariz. 146, 150, 575 P.2d 345, 349 (Ct.App.1977) ["[P]rocedurally a foreign judgment is subject to the same procedure as a final judgment of this state."]; First of Denver Mortg. Investors v. Riggs, 692 P.2d 1358 (Okla.1984); Restatement (Second) Conflicts of Laws § 99 (1969).

Appellants contend that, because American Standard and Thomas agreed that the guarantee be construed according to the laws of Arizona, Arizona law should be applied to the enforcement of the judgment in North Dakota. Matters of procedure and remedial rights are governed by the law of the forum where relief is sought. Dixon's Extrs. v. Ramsay's Extrs., 7 U.S. (3 Cranch.) 319, 2 L.Ed. 453 (1805). Thus the remedies and procedures to enforce a contract made in another state are the remedies and procedures of the enforcing state. The same reasons to look to the intent of the parties in the case of the substance of the contract do not apply in the case of matters pertaining to the remedy, as the parties presumably do not necessarily consider the remedy when they enter into the contract. They bind themselves to do what the law they live under requires, but since they bind themselves generally, it is as if they had contemplated the possibility of enforcement in another jurisdiction. While the obligation of a contract is always protected by the state and federal constitutions, that which is purely a matter of process or remedy is governed and regulated by the laws of the place where the remedy is sought. The inhibition of the constitution will not be held to apply where there is a change in the form of the remedy, or a modification of it, provided no substantial right secured by the [603] contract is thereby impaired. 16 Am.Jur.2d Conflicts of Laws § 118 (1979).

Although we are bound to give full faith and credit to the substance of foreign state judgments, procedure and remedies are different from substance; and what is procedure and what is substance is determined by the forum. Anderson v. State Farm Mut. Auto. Ins. Co., 222 Minn. 428, 24 N.W.2d 836 (1946). The substance of the contract has already been determined by the Arizona court. The only inquiry we make is how to enforce it, and for this we rely upon North Dakota law.

Here, applying Arizona law which the parties agreed controlled the guarantee agreement, the Arizona court held that American Standard recover from Thomas as to his sole and separate property, a fixed sum plus costs and interest. Relying upon North Dakota law for the methods and procedure of enforcement of its judgment, American Standard initiated garnishment proceedings against Thomas and Gateway to execute upon two sources of income—Thomas's salary and Thomas's rental income. North Dakota law therefore governs the enforcement of the Arizona order in North Dakota.

Chapter 32-09.1, NDCC, provides a method by which a judgment creditor may proceed by garnishing property, real or personal, belonging to the creditor's debtor which would satisfy the judgment creditor's claim. NDCC § 32-09.1-02. A garnishment action is the exclusive procedure which may be used to execute on earnings of a debtor while those earnings are held by a third party employer. Id. We have long held that fundamental in any garnishment procedure, only the actual interest of the defendant can be reached by garnishment proceedings, and the creditor cannot obtain any more than actually belongs to the debtor:

"The rights of the debtor are the source of the creditor's rights. The stream cannot rise higher than its source.... Under no circumstances can the plaintiff be placed in a more favorable, or the garnishee in a worse, position than if the defendant was himself enforcing his claim. For the plaintiff cannot, by garnishment, place himself in a superior position, as regards a recovery, than is occupied by the principal defendant."

Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 700 (1917) [citations omitted]. The procedural law of North Dakota in enforcing a valid judgment by garnishment thereby allows the garnishor to reach only the property in which the defendant has an interest, and only to the extent of that interest. See NDCC § 32-09.1-03. The crux of the matter in this case is whether Arizona or North Dakota law applies in delineating the extent of the interest which Thomas holds and which American Standard may garnish.

Thomas's Wage Income from Gateway

Arizona is a community property state.^[2] The wages Thomas receives from Gateway are personal property acquired during the marriage and are community property and therefore not his "sole and separate property" under Arizona law. A.R.S. § 25-211. Applying Arizona law, the wages would not be subject to the present garnishment actions.

North Dakota is not a community property state. Rozan v. Rozan, 129 N.W.2d 694 (N.D.1964); Matter of Estate of Erickson, 368 N.W.2d 525 (N.D.1985).^[3] Wages and salaries are one's sole and separate personal property,^[4] and wages are subject to garnishment actions.

[604] Arguably, North Dakota law allows foreign laws to reach a party's personal property located within North Dakota by stating that "[i]f there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner and is governed by the law of his domicile."^[5] NDCC § 47-07-01. The source note of section 47-07-01, NDCC, incorrectly states it was derived from section 946 of the California Civil Code,^[6] which in turn was derived from the Field Code.^[7] This section of the Field Code was enacted by the Dakota Territory Legislature in 1865 (Civ.C.1865, § 364). It was subsequently adopted by the North Dakota Legislature where it has undergone only minor changes.^[8]

For the purposes of historical reference and to aid in interpretation, the provisions of the modern Century Code are to be considered as continuations of previously existing sections if the two are substantially similar. NDCC § 1-02-25. Section 47-07-01 is substantially similar to section 364 of the 1865 Dakota Civil Code, which in turn is substantially similar to California's adaptation of the Field Code. In construing statutes, we may look to its legislative history and former statutory provision, including laws upon the same or similar subjects. NDCC § 1-02-39; Furlong Ent. v. Sun Exploration & Prod., 423 N.W.2d 130 (N.D.1988). Therefore, we look to California case law and interpretation of section 946, Cal.Civ.Code, for guidance in interpreting section 47-07-01, NDCC.

Foreign case law interpreting statutes is most persuasive if the cases were decided prior to our own adoption of the statute. Although we find no relevant case law interpreting the Field Code provision, prior to North Dakota's adoption of it, we find relevant interpretations after our enactment; and although not mandatory, California's interpretation of it is somewhat persuasive. E.g., Estate of Zins by Kelsch v. Zins, 420 N.W.2d 729 (N.D.1988).

In In re Lathrop's Estate, 165 Cal. 243, 131 P. 752 (1913), the California Supreme Court stated that section 946, Cal.Civ.Code, is part of the "jus gentium" [law of nations] and that it announces the clearly established rule arising out of consideration of justice and the principle of comity that the law controlling personal property is governed by the law of the domicile of the owner. But this declaration is accompanied by the all-important limitation that the law of the domicile controls "if there is no law to the contrary in the place where the personal property is situated." Id. 131 P. at 754. This limitation of the otherwise universal rule applies when the disposition of the property does violence to the law of the place where the property is located, or where it is contrary to public policy.

The "exception to the rule" was expounded upon in In re Nolan's Estate, 135 Cal. App.2d 16, 286 P.2d 899 (1955), wherein the court stated that section 946, Cal.Civ.Code, was not merely a maxim of law, but a part of the conflict of laws. It held that "[t]he obvious meaning of the statute is that personal property is governed by the law of the domicile of its owner, unless a general or specific law where the property is situated provides that the law of the domicile shall not govern." Id. 286 P.2d at 901 [605] citing In re Barton's Estate, 196 Cal. 508, 238 P. 681, 683 (1925).

In Waite v. Waite, 6 Cal.3d 461, 99 Cal. Rptr. 325, 492 P.2d 13 (1972), the defendant worked in California where he earned retirement benefits. He later became a resident of Nevada, and sued for divorce in Nevada. Subsequently the plaintiff sued for divorce in California, and the California Supreme Court was asked to determine which court had jurisdiction over retirement benefits earned in California—California or Nevada. Acknowledging that Nevada lacked in personam jurisdiction over the plaintiff, the defendant contended that his right to the retirement benefits was a species of intangible personal property,^[9] and that Nevada, as the state of his domicile, could exercise jurisdiction in rem to adjudicate and award that property. In support of his contention, he cited section 946, Cal.Civ.Code. The California Supreme Court concluded that Nevada had no jurisdiction over the relevant benefits and observed that an "intangible, unlike real or tangible personal property, has no physical characteristics that would serve as a basis for assigning it to a particular locality. The location assigned to it depends on what action is to be taken with reference to it." Id. 99 Cal.Rptr. at 329, 492 P.2d at 17 [emphasis deleted]; Atkinson v. Superior Court, 49 Cal.2d 338, 316 P.2d 960, 963 (1957); In re Waits' Estate, 23 Cal.2d 676, 146 P.2d 5, 8 (1944). See also Hanson v. Denckla 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

In American Standard's case, the purpose of assigning a situs to the wages is to establish the jurisdiction in which to garnish them. Within this context, jurisdiction should be determined "in light of the totality of contacts with the state involved" and the "bearing that local contacts have to the question of over-all fair play and substantial justice." Atkinson, supra, 316 P.2d at 965. Accordingly, we enumerate the relevant "contacts" of each state in this action. The wages at issue arise from Thomas's employment at Gateway Chevrolet, a North Dakota corporation doing business in North Dakota. These wages are subject to North Dakota taxes and withholding. The laws of North Dakota, not Arizona or Texas, determine Thomas's right to the wages, and likewise fix the character of the wages as sole and separate property. It is his service in North Dakota that entitles Thomas to the wages. Neither Arizona nor Texas has closer contacts with the wages.

As unpaid wages are intangibles and the action taken with reference to them shows closer connections to North Dakota than any other state, the wages are classified according to North Dakota law. Because North Dakota is not a community property state, the wages are Thomas's sole and separate property. We accordingly hold that Thomas's wages are subject to the garnishment proceeding. Because there is no dispute as to fact, the trial court did not err in granting summary judgment in favor of American Standard in this regard. Rule 56, N.D.R.Civ.P.; Capsco Prods., Inc. v. Savageau, 493 N.W.2d 650 (N.D.1992).

Thomas's Rental Income from Gateway

When a foreign court attempts to affect title to real property located in North Dakota, we have said that:

"It is settled in this State that a court decree or court judgment of another state in its determination of property rights may not directly affect or transfer title to real property situate in North Dakota.... A decree or judgment of a court of another jurisdiction having such a purported consequence will not be accorded [606] full faith and credit under Article IV, Section I, of the Constitution of the United States."

Rozan, supra, at 700. In this case, however, the valid Arizona judgment did not directly convey or encumber North Dakota real estate. Although the Arizona judgment did not affect real property, the garnishment action which executes the Arizona judgment does affect real property by essentially encumbering the property by taking the rentals. In addition we believe the right to receive land lease payments would be classified as intangible personal property. See f.n. 9. We therefore apply North Dakota law to the garnishment of the lease income.

In 1988, the property which forms the basis of Gateway's lease was quit-claimed to Thomas and his wife "as joint tenants, and not as tenants in common." As joint tenants, both Thomas and his wife hold a joint interest in the property. A joint interest is one owned by several persons in equal shares by a title created by a single transfer. NDCC § 47-02-06. Contrary to Thomas's assertions, the land is not, nor ever can be, community property by the mere fact that the marital couple resided in a community property state.^[10] North Dakota is not a community property state and we do not apply community property principles to land within our borders.^[11]

We have held that each joint tenant has the right of enjoyment to the extent of his or her interest. In re Estate of Paulson, 219 N.W.2d 132 (N.D.1974). Although a joint tenant may not convey or otherwise encumber another joint tenant's interest in property without the authorization or consent of the cotenant, one may deal with strangers as freely as owners of property held individually, and may convey or otherwise encumber one's own interest in the property without the consent of the other joint tenant. Olson v. Fraase, 421 N.W.2d 820 (N.D.1988). It follows that during the continuance of the joint tenancy, each joint tenant may have his or her fractional interest taken for the satisfaction of their individual debts. Schlichenmayer v. Luithle, 221 N.W.2d 77 (N.D.1974). As Thomas is free to pledge, encumber, lease, or sell his interest in the joint estate—or have it the subject of a judgment against him—it is his "sole and separate property."

In 1988, Thomas leased the entire property to Gateway. The lease was not signed by the other joint tenant, Thomas's wife. We have held that a joint tenant may not encumber another joint tenant's interest in the property without the authorization or consent of the cotenant. Olson, supra. Though a lease of joint property must be made by the act of all cotenants, if such a lease is made without the cotenant's consent or authority, the lease will in most instances be deemed valid and deemed for the benefit of both joint tenants. Shelby v. Shelby, 212 Ky. 552, 279 S.W. 942 (1926). Even if Thomas's wife did not consent or otherwise ratify the lease, she would be entitled to an equal share of the rents, profits, and income of the joint property. [607] While there is authority that one joint tenant may receive the whole rent of the joint property and is not accountable to his or her cotenant for receiving more than his or her share of the rents and profits, Black v. Black, 91 Cal.App.2d 328, 204 P.2d 950 (1949), we believe the better view is that a joint tenant is liable to account to his or her cotenant for receiving more than his or her portion of the rents and profits. See Falkner v. Falkner, 58 Mich.App. 558, 228 N.W.2d 461 (1975); Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1959). Compare In re Estate of Paulson, supra, [possession by one joint tenant is possession for the benefit of both]. This view is consistent with previous opinions of this court concerning the obligations existing between joint tenants. See, e.g., Fettig v. Fettig, 277 N.W.2d 278 (N.D.1979) [mortgagor who redeems in his own name presumptively redeems for all his cotenants and his holding of title will be in trust for benefit of all cotenants].

This right to accounting, however, is a personal one. In the past, we have held that tenants in common are entitled to an accounting against their cotenants. Stevahn v. Meidinger, 57 N.W.2d 1 (N.D. 1952); Johnson v. Johnson, 164 N.W. 327 (N.D.1917). We agree with the rationale that, absent a statute to the contrary, when one joint tenant collects rents on the property and does not proportionately share the rents with their joint tenants, the other joint tenants do not have a lien on the collecting joint tenant's share of the property. Palpar, Inc. v. Thayer, 115 Cal. App.2d 333, 252 P.2d 51 (1953); Anno. Accountability of Cotenants for Rents and Profits or Use and Occupation, 27 A.L.R. 184 (1923); Anno. Accountability of Cotenants for Rents and Profits or Use and Occupation, 51 A.L.R.2d 388 § 30 (1957). Rather, the liability for rents and profits on a joint tenancy is a personal charge against the joint tenant who holds the rents, and one is not entitled to a lien on the land to secure the sums adjudged to be due. Succession of Grubbs, 182 So.2d 203 (La.Ct. App.1965); Pistole v. Lanier, 214 Ky. 290, 283 S.W. 88 (1926).

Thomas's wife made no appearance to defend her interest. She is entitled to a personal charge against Thomas for her share of the rental income, but it is not our province to apportion the income in order to limit American Standard's access to only Thomas's one-half interest in the income. We accordingly hold that all the rental income received by Thomas is subject to the garnishment proceeding. The trial court did not err in granting summary judgment in favor of American Standard in this regard. Rule 56 N.D.R.Civ.P.; Capsco, supra.

We affirm the trial court's judgment.

ERICKSTAD, C.J., MESCHKE, J., ALLAN SCHMALENBERGER, District Judge, and BERT L. WILSON, Surrogate Judge, concur.

ALLAN SCHMALENBERGER, District Judge, and BERT L. WILSON, Surrogate Judge, sitting in place of LEVINE and JOHNSON, JJ., disqualified.

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[1] Pursuant to section 1-02-13, NDCC, we freely cite to other jurisdictions which have adopted, and whose courts are applying, the 1964 revision of the Uniform Enforcement of Foreign Judgments Act. This section states: "Any provision in this code which is a part of a uniform statute must be so construed as to effectuate its general purpose to make uniform the law of those states which enact it." NDCC § 1-02-13. Conversely, appellant's arguments stemming from the heavy reliance upon California cases will be given minimal weight as that jurisdiction has not adopted the Act.

[2] Section 25-211, A.R.S., states: "All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, is the community property of the husband and wife."

[3] Section 14-07-04, NDCC, negates community property principles in domestic relations by stating, "Separate property—Rights and privileges. Except as otherwise provided by section 14-07-03, neither the husband nor the wife has any interest in the property of the other, but neither can be excluded from the other's dwelling."

[4] Section 1-01-49(4), NDCC, states, "`Personal property' includes money, goods, chattels, things in action, and evidences of debt," and section 47-01-07, NDCC, states, "`Personal property' shall mean and include every kind of property that is not real."

[5] Apparently the domicile of Thomas may have been Texas, but Texas, like Arizona, is a community property state. See Tex.Fam.Code Ann. § 5.01(b) ["Community property consists of the property, other than separate property, acquired by either spouse during marriage."].

[6]The source note of section 47-07-01, NDCC, cites as its derivation section 946 of the California Civil Code, which reads:

"If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile."

[7] The source notes of the North Dakota Century Code incorrectly cite to the Territorial Civil Code of 1877 as the earliest source of Dakota Territory's Field Code. However, Dakota Territory enacted the Field Code in December of 1865. Laws of Dakota Territory, §§ 1-2034. See Furlong Ent. v. Sun Exploration & Prod., 423 N.W.2d 130, n. 15 (N.D.1988).

[8] R.C. 1895, § 3465; R.C. 1899, § 3465; R.C. 1905, § 4901; C.L. 1913, § 5444; R.C. 1943, § 47-0701.

[9] Wages which have been paid and received in the form of money are tangible assets. However, a garnishment action involves the execution "on earnings of a debtor while those earnings are held by a third party employer." NDCC § 32-09.1-02. Not yet having received the wages, the wage-earner only has a "right" to the wages. "Intangible property" is generally defined as "claims, interest and rights," Black's Law Dictionary 1217 (6th ed. 1990), and "property [that] has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes...." Id. at 809. As a right, claim, or interest against the employer, wages yet to be received are intangible property.

[10] Even if we were to apply Arizona or Texas community property law, the result would probably be the same. A common principle of community property law is that a husband and wife can hold property in derogation of their community property status if it clearly appears that the spouses agreed that the property should be taken in that manner. McClennen v. McClennen, 11 Ariz.App. 395, 464 P.2d 982 (Ct.App. 1970); In re Marriage of Berger, 140 Ariz. 156, 680 P.2d 1217 (Ct.App.1983) [joint tenancy allowed in community property state, despite having been purchased with community funds]; Russo v. Russo, 80 Ariz. 365, 298 P.2d 174 (1956) [when spouses own property as joint tenants in community property state, each owns his or her respective interest as separate property]. As the property was deeded to Thomas and his wife as joint tenants, a joint tenancy is presumed and Thomas's interest in his share of the joint estate is his "sole and separate property."

[11] In Rozan v. Rozan, 129 N.W.2d 694 (N.D. 1964), we held that North Dakota real estate purchased with marital community funds by a husband who resided with his wife in a community property state did not alter the land's character to community property. As the land was purchased by the husband with community funds, the couple became tenants in common and a resulting trust for one-half interest in the land developed in favor of the wife. Here, however, the land in question remains a joint tenancy and not a tenancy in common with a resulting trust. See also Matter of Estate of Erickson, 368 N.W.2d 525 (N.D.1985).