place where the marriage is alleged to have taken place. If the question of legitimacy depends upon whether or not an illegitimate child was legitimized by the after marriage of his parents, the governing law will be that of the domicile of the father at the time such marriage is contracted.

SECTION 27. STATUS OF ADOPTION.

Adoption was not recognized by the common law and exists only in virtue of positive statutory provisions. The result is that all questions relative to the legality of the adoption, and the respective rights and liabilities of the parties interested must be governed by the law of the state or country where the adoption took place. An exception to this general rule is that the right of an adopted child to inherit land must be determined by the law of the place where the land is situated.

SECTION 28. STATUS OF FIDUCIARIES.

The status of fiduciaries has to be considered from two standpoints, from that of the relations between the fiduciary and the beneficiary and from that of the relations between the fiduciary and third persons. This dual nature of the fiduciary status is thus discussed by Minor:"

"It must be carefully observed that every fiduciary occupies two relations; one towards the beneficial owner of the trust estate, and quite a different one toward third persons interested in the administration of the trust fund-for example, creditors.

"Thus an executor, administrator, guardian, or trustee is appointed not only for the benefit of his • Minor on Conflict of Laws, Sec. 102.

legatee, distributee, ward or cestui que trust, but also in order to manage and control the property committed to him, to collect and pay debts, to prosecute and defend suits, to sell and invest property, etc. Third persons, as well as the beneficiaries, may be interested in the trust. And these citizens of other states than that wherein the fiduciary and beneficiaries reside."

"Upon these principles it is now universally admitted that, in the absence of statute, in any case in which third persons are interested, the status of the foreign fiduciary is only local and temporary. He must in general be reappointed and must qualify in every State wherein he desires to administer the property or rights of action committed to his charge. Third persons are entitled to and may demand all the security and protection afforded by the laws of the State where the property is situated. The general rule in these cases is that the law of the forum and situs of the property will regulate the appointment, qualification, rights, title, and liabilities of the fiduciary so far as concerns the relations between them and third persons.

997

"But so far as the relations between the fiduciary and the beneficiaries of the trust are concerned (third persons not being interested), even when the question arises in third States, the law of the domicile of the owner or beneficiary (the legal situs of the owner's person and personal property) will control, both in respect to personal rights, and rights relating to the personal property.

99 9 10

'Vaughn vs. Northrup, 15 Pet., 1; Mackey vs. Coxe, 18 How., 100, 104.

Townsend vs. Kendall, 4 Minn.,

8

412; 77 Am. Dec., 534. Lamar vs. Micou, 112 U. S., 452. 10 Minor on Conflict of Laws, Sec. 102.

Executors and administrators appointed by the courts of one State have ordinarily no power to sue in the courts of another State, without being specially appointed in such State.

CHAPTER V.

SITUS OF PERSONAL PROPERTY.

SECTION 29. IN GENERAL.

In general situs of personal property is that of the legal situs or domicile of its owner.

SECTION 30. SITUS OF DEBTS.

The situs of debts must be considered from a double standpoint. In every debt there is the obligation on the part of the debtor, and the right on the part of the creditor. Voluntary transactions affecting the right of the creditor will be governed by the law of the situs of the transaction, involuntary transactions affecting the right of the creditor by the law of the legal situs of the creditor, and matters affecting the liability of the debtor (in general) by the law of the domicile of the debtor.

SECTION 31. SITUS OF DEBTS FOR THE PURPOSE OF ATTACHMENT AND GARNISHMENT.

At least six different theories1 have been advanced by different courts as to the situs of a debt for the purpose of attachment or garnishment. The most accurate theory seems to be the one that holds the situs of a debt to be wherever service can be obtained on the debtor.

SECTION 32. SITUS OF DEBTS FOR THE PURPOSE OF TAXATION.

No branch of the law is in more hopeless confusion than that relative to the taxation of personal property,

1 See Minor on Conflict of Laws, Sec. 125.

including the various species of debts. While the great mass of personal property of all kinds, including bonds, mortgages, notes and other forms of indebtedness, escape taxation altogether, still, in general, a debt may be taxed both at the domicile of the debtor and of the creditors.

SECTION 33. TRANSFERS OF PERSONAL PROPERTY BY SUCCESSION OR BY WILL.

The transfer of personal property either by succession or by will is regulated by the law of the domicile of the deceased at the time of his death. Thus a will may be rendered invalid, so far as it relates to personal property, by the testator removing from one state into another, requiring different formalities as to the making of wills. Succession and wills relative to real property are determined by the law of the state in which such land is situated.