Kraemer v. Kraemer

The money used in the purchase of the land was not the separate property of the husband. (Smith v. Smith, 12 Cal. 224 Story’s Conflict of Laws, secs. 186, 454.) In an action for a divorce and division of property the law rei sitce determines the-character of the real estate, as between the parties. Each State-impresses on property within its limits the character which it. may deem expedient. (Story’s Conflict of Laws, sec. 447.) The law of community is a real law. Hence a change of domicile can never affect the interests of the husband and wife in their real property, because those interests in their present property, as well as in their future acquisitions, are determined by the lex loci rei sitce. (Story’s Conflict of Laws, secs. 186, 187, 454; Ibid. sec. 159 to 191; Bouvier’s Law Die. Lex Rei Sites, and authorities there cited; Broom’s Legal Maxims, 4th London ed. p. 385.)

Glassell, Chapman & Smiths, for the Respondent.

Our “ Act defining the rights of husband and wife,” passed April 17th, 1850, is expressly limited in its operation by the 14th and 15th sections thereof, which are as follows:

“Sec. 14. In every marriage hereafter contracted in this State, the rights of husband and wife shall be governed by this act, unless there is a marriage contract containing stipulations contrary thereto.

“ Sec. 15. The rights of husband and wife married in this State prior to the passage of this act, or married out of this State, who shall reside and acquire property herein, shall also be determined by the provisions of this act with respect to such property as shall be hereafter acquired, unless so far as such provisions may be in conflict with the stipulations of any marriage contract.” (Hitt. Dig. arts. 3563, 3576, 3577.)

As to the acquisitions of the spouses in Illinois during the. [304]seven years of their marriage prior to 1850, it is obvious that under no possible construction could our said act have any operation.

As to all acquisition of the spouses, in Illinois after 1850, and until 1867, when they came to “reside and acquire property herein,” it is also obvious that our act had no operation. .

It is, however, unnecessary to draw any distinction as to whether any of the money with which the property in question was bought, was acquired before or after our law was passed. For it is clear upon authority, as well as principle, that in no event could our law extend to the State of Illiuois, so as to alter the property rights of the citizens of that State domiciled there, in regard to property which they had acquired in that,State.