G.R. No.
L-12105 January 30, 1960 It does not appear that the order granting probate was ever questions on appeal.
TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST
CO., executor-appellee,
vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA
BOHANAN, oppositors-appellants.
Jose D. Cortes for appellants.
Ohnick, Velilla and Balonkita for appellee.
LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San
Jose, presiding, dismissing the objections filed by Magdalena C. Bohanan, Mary
Bohanan and Edward Bohanan to the project of partition submitted by the executor
and approving the said project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo,
presiding, admitted to probate a last will and testament of C. O. Bohanan, executed
by him on April 23, 1944 in Manila. In the said order, the court made the following
findings:
According to the evidence of the opponents the testator was born in
Nebraska and therefore a citizen of that state, or at least a citizen of
California where some of his properties are located. This contention in
untenable. Notwithstanding the long residence of the decedent in the
Philippines, his stay here was merely temporary, and he continued and
remained to be a citizen of the United States and of the state of his
pertinent residence to spend the rest of his days in that state. His
permanent residence or domicile in the United States depended upon his
personal intent or desire, and he selected Nevada as his homicide and
therefore at the time of his death, he was a citizen of that state. Nobody
can choose his domicile or permanent residence for him. That is his
exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time
of his death a citizen of the United States and of the State of Nevada and
declares that his will and testament, Exhibit A, is fully in accordance with
the laws of the state of Nevada and admits the same to probate.
Accordingly, the Philippine Trust Company, named as the executor of the
will, is hereby appointed to such executor and upon the filing of a bond in
the sum of P10,000.00, let letters testamentary be issued and after taking
the prescribed oath, it may enter upon the execution and performance of
its trust. (pp. 26-27, R.O.A.).
The executor filed a project of partition dated January 24, 1956, making, in
accordance with the provisions of the will, the following adjudications: (1) one-half
of the residuary estate, to the Farmers and Merchants National Bank of Los
Angeles, California, U.S.A. in trust only for the benefit of testator's grandson
Edward George Bohanan, which consists of several mining companies; (2) the
other half of the residuary estate to the testator's brother, F.L. Bohanan, and his
sister, Mrs. M. B. Galbraith, share and share alike. This consist in the same amount
of cash and of shares of mining stock similar to those given to testator's grandson;
(3) legacies of P6,000 each to his (testator) son, Edward Gilbert Bohana, and his
daughter, Mary Lydia Bohanan, to be paid in three yearly installments; (4) legacies
to Clara Daen, in the amount of P10,000.00; Katherine Woodward, P2,000; Beulah
Fox, P4,000; and Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting
administration expenses) of P211,639.33 in cash, the testator gave his grandson
P90,819.67 and one-half of all shares of stock of several mining companies and to
his brother and sister the same amount. To his children he gave a legacy of only
P6,000 each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children question the validity of the
testamentary provisions disposing of the estate in the manner above indicated,
claiming that they have been deprived of the legitimate that the laws of the form
concede to them.
The first question refers to the share that the wife of the testator, Magdalena C.
Bohanan, should be entitled to received. The will has not given her any share in
the estate left by the testator. It is argued that it was error for the trial court to have
recognized the Reno divorce secured by the testator from his Filipino wife
Magdalena C. Bohanan, and that said divorce should be declared a nullity in this
jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz.,
(Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil.,
855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to recognize
the claim of the widow on the ground that the laws of Nevada, of which the
deceased was a citizen, allow him to dispose of all of his properties without
requiring him to leave any portion of his estate to his wife. Section 9905 of Nevada
Compiled Laws of 1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last
will, dispose of all his or her estate, real and personal, the same being
chargeable with the payment of the testator's debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a
share in the testator's estafa had already been passed upon adversely against her
in an order dated June 19, 1955, (pp. 155-159, Vol II Records, Court of First
Instance), which had become final, as Magdalena C. Bohanan does not appear to
have appealed therefrom to question its validity. On December 16, 1953, the said
former wife filed a motion to withdraw the sum of P20,000 from the funds of the
estate, chargeable against her share in the conjugal property, (See pp. 294-297,
Vol. I, Record, Court of First Instance), and the court in its said error found that
there exists no community property owned by the decedent and his former wife at
the time the decree of divorce was issued. As already and Magdalena C. Bohanan
may no longer question the fact contained therein, i.e. that there was no community
property acquired by the testator and Magdalena C. Bohanan during their
converture.
Moreover, the court below had found that the testator and Magdalena C. Bohanan
were married on January 30, 1909, and that divorce was granted to him on May
20, 1922; that sometime in 1925, Magdalena C. Bohanan married Carl Aaron and
this marriage was subsisting at the time of the death of the testator. Since no right
to share in the inheritance in favor of a divorced wife exists in the State of Nevada
and since the court below had already found that there was no conjugal property
between the testator and Magdalena C. Bohanan, the latter can now have no
longer claim to pay portion of the estate left by the testator.
The most important issue is the claim of the testator's children, Edward and Mary
Lydia, who had received legacies in the amount of P6,000 each only, and,
therefore, have not been given their shares in the estate which, in accordance with
the laws of the forum, should be two-thirds of the estate left by the testator. Is the
failure old the testator to give his children two-thirds of the estate left by him at the
time of his death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in
1944, expressly provides that successional rights to personal property are to be
earned by the national law of the person whose succession is in question. Says
the law on this point:
Nevertheless, legal and testamentary successions, in respect to the order
of succession as well as to the extent of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law
of the person whose succession is in question, whatever may be the
nature of the property and the country in which it is found. (par. 2, Art. 10,
old Civil Code, which is the same as par. 2 Art. 16, new Civil Code.)
In the proceedings for the probate of the will, it was found out and it was decided
that the testator was a citizen of the State of Nevada because he had selected this
as his domicile and his permanent residence. (See Decision dated April 24,
1950, supra). So the question at issue is whether the estementary dispositions,
especially hose for the children which are short of the legitime given them by the
Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada
allow a testator to dispose of all his properties by will (Sec. 9905, Complied Nevada
Laws of 1925, supra). It does not appear that at time of the hearing of the project
of partition, the above-quoted provision was introduced in evidence, as it was the
executor's duly to do. The law of Nevada, being a foreign law can only be proved
in our courts in the form and manner provided for by our Rules, which are as
follows:
SEC. 41. Proof of public or official record. — An official record or an entry
therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy tested by the officer having the legal
custody of he record, or by his deputy, and accompanied, if the record is
not kept in the Philippines, with a certificate that such officer has the
custody. . . . (Rule 123).
We have, however, consulted the records of the case in the court below and we
have found that during the hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially
Section 9905, Compiled Nevada Laws. was introduced in evidence by appellant's
(herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44,
Records, Court of First Instance). Again said laws presented by the counsel for the
executor and admitted by the Court as Exhibit "B" during the hearing of the case
on January 23, 1950 before Judge Rafael Amparo (se Records, Court of First
Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the above-
quoted provision of the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken
judicial notice of by us, without proof of such law having been offered at the hearing
of the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary
dispositions are to be governed by the national law of the testator, and as it has
been decided and it is not disputed that the national law of the testator is that of
the State of Nevada, already indicated above, which allows a testator to dispose
of all his property according to his will, as in the case at bar, the order of the court
approving the project of partition made in accordance with the testamentary
provisions, must be, as it is hereby affirmed, with costs against appellants.
Paras, Bengzon, C.J., Padilla, Bautista Angelo and Endencia, JJ., concur.
Barrera, J., concurs in the result.
 MARGARITE AUTEN, Appellant, v. HAROLD AUTEN, Respondent.
Court of Appeals of New York
308 N.Y. 155; 124 N.E.2d 99; 1954 N.Y. LEXIS 930; 50 A.L.R.2d 246
Argued October 22, 1954.
December 31, 1954, decided
PRIOR HISTORY: [***1]
Auten v. Auten, 281 App. Div. 740, reversed.
APPEAL from a judgment, entered December 1, 1953, upon an order of the
Appellate Division of the Supreme Court in the first judicial department, which (1)
affirmed an order of the Supreme Court at Special Term (SCHREIBER, J.),
entered in New York County, granting a motion by defendant for summary
judgment dismissing the complaint and (2) granted leave to serve an amended
complaint. (See 306 N.Y. 752.)
DISPOSITION: LEWIS, Ch. J., CONWAY, DESMOND, DYE, FROESSEL and
VAN VOORHIS, JJ., concur.
Judgments reversed, etc.
HEADNOTES: Conflict of laws - husband and wife - repudiation of separation
agreement - (1) wife and husband entered into separation agreement in New
York providing that husband pay stated amount monthly for support of wife and
children, that neither should sue in any action relating to separation, and that wife
should not sue in any jurisdiction by reason of prior Mexican divorce; thereafter
wife sued for separation in England; action herein by wife to recover arrears due
her under agreement; husband's motion for summary judgment based on
defense that wife's separation action in England operated as repudiation of
agreement, [***2] denied; law of England applicable and thereunder issue exists
as to effect of commencement of separation action on separation agreement - (2)
under "grouping of contacts" theory of conflict of laws, English law would be
applied - (3) parties could not have expected that law other than English law
would be applied - (4) moreover, under rule that matters of performance and
breach are governed by law of place of performance, English law would control -
(5) husband's contention that wife's commencement of English action amounted
to breach of her covenant not to sue also governed by English law.
1. Defendant husband, who had procured a Mexican divorce, and plaintiff wife
entered into a separation agreement in 1933 in New York providing that the
husband pay a stated amount monthly to a New York trustee for the account of
his wife, for the support of herself and their children; that neither should sue "in
any action relating to their separation", and that the wife should not "cause any
complaint to be lodged against * * * [the husband], in any jurisdiction, by reason
of the said alleged divorce". Immediately after the signing of the agreement, the
wife returned to England, where she [***3] has since lived with the children. In
1934, the wife filed a petition for separation in an English court, but the action
never proceeded to trial. In 1947, the wife brought the present action to recover
arrears allegedly due her under the agreement. Since the law of England must
be applied, and since, at the least, an issue exists whether the courts of that
country treat the commencement of a separation action as a repudiation of an
earlier-made separation agreement, the husband's motion for summary
judgment, based on his defense of an alleged repudiation by the wife of the
separation agreement, should not have been granted.
2. The "center of gravity" or "grouping of contacts" theory of the conflict of laws
emphasizes the law of the place which has the most significant contacts with the
matter in dispute. Examination of the respective contacts with New York and
England indicates that the English law should be applied to determine the effect
to be given the wife's institution of the separation suit in England. The parties
were married in England, had children there and lived there as a family for
fourteen years. The husband allegedly had willfully deserted and abandoned
the [***4] wife and children in England, and was in this country on a temporary
visa when the agreement was signed. The sole purpose of the wife's trip to New
York was to arrange for defendant to agree to support his family, and she
returned to England immediately after the agreement was executed. The
agreement, effecting a separation between British subjects, was drawn with an
understanding that the wife and children would live in England. The only relation
of this state with the matter is that it is the place where the agreement was made
and where the trustee had his office.
3. The parties could not have expected or believed that any law other than that of
England would govern the effect of the wife's institution of a separation action.
4. If the rule that matters of performance and breach are governed by the law of
the place of performance should be applied, the law of England would still
control.
5. The husband's contention that plaintiff's commencement of the English action
amounted to a material breach of his wife's covenant not to sue, barring recovery
on the agreement, is also governed by English law.
COUNSEL: Michael Alexander, Bernard B. Smith and Leonard H.
Steibel [***5] for appellant. I. The effect of the English separation action upon
the separation agreement must be determined in accordance with the rule of law
applied by the English courts. ( Rennie v. Rennie, 287 N.Y. 86; Lynde v. Lynde,
41 App. Div. 280, 162 N.Y. 405, 181 U.S. 183; Swift & Co. v. Bankers Trust Co.,
280 N.Y. 135; Myles v. Cuba R.R. Co., 182 Misc. 169; Lann v. United States
Steel Works Corp., 166 Misc. 465; Matter of Palmer, 192 Misc. 385, 275 App.
Div. 792;Graham v. First Nat. Bank of Norfolk, 84 N.Y. 393; Hutchinson v. Ross,
262 N.Y. 381.) II. Even assuming, arguendo, that the effect of the English
separation action upon the separation agreement must be determined in
accordance with the rule of law applied by the courts of New York, the judgment
of the Appellate Division affirming Special Term cannot be sustained.
( Woods v. Bard, 285 N.Y. 11; Krell v. Krell, 192 Misc. 1; Clark v. Kirby, 243 N.Y.
295; Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div.
472; Chamberlain v.Cuming, 37 Misc. 815; Estin v. Estin, 296 N.Y. 308, 334 U.S.
541; [***6] Gifford v. Corrigan, 117 N.Y. 257; Rosmarin v. Rosmarin, 238 App.
Div. 798; De Brauwere v. De Brauwere, 203 N.Y. 460; Patino v. Patino, 195
Misc. 887, 278 App. Div. 756, 278 App. Div. 921.)
Saul Hammer for respondent. I. The separation agreement sued upon is
governed by the law of the State of New York. ( Bitterman v. Schulman, 265 App.
Div. 486; Stumpf v. Hallahan, 101 App. Div. 383, 185 N.Y. 550; Vander
Horst v. Kittredge, 229 App. Div. 126; Aronson v. Carobine, 129 Misc.
800;Rennie v. Rennie, 287 N.Y. 86.) II. The law of the contract also governs the
interpretation and legal effect of any acts urged as a defense or discharge of the
agreement. ( Benton v. Safe Deposit Bank, 255 N.Y. 260; Pritchard v. Norton,
106 U.S. 124.) III. The law of domicile does not govern. ( Vander
Horst v.Kittredge, 229 App. Div. 126; Graham v. First Nat. Bank of Norfolk, 84
N.Y. 393;Hutchinson v. Ross, 262 N.Y. 381.) IV. Appellant repudiated the
agreement sued upon by instituting suit against respondent for judicial
separation. ( O'Brien v.O'Brien, 252 App. Div. 427; [***7] Hettich v. Hettich, 278
App. Div. 518;Woods v. Bard, 285 N.Y. 11; Krell v. Krell, 192 Misc.
1; Schmelzel v. Schmelzel, 287 N.Y. 21; Dimick v. Dimick, 230 App. Div. 99; Van
Horn v. Van Horn, 196 App. Div. 472.) V. In any event, appellant's breach of the
covenants of the agreement barred any subsequent recovery thereunder.
( Duryea v. Bliven, 122 N.Y. 567; Haskell v. Haskell, 207 App. Div.
723; Muth v. Wuest, 76 App. Div. 332; Matter of Noel, 173 Misc.
844; Cole v. Addison, 153 Ore. 688; Harwood v.Harwood, 182 Misc.
130; Roth v. Roth, 77 Misc. 673; Schmidt v. Schmidt, 74 Misc. 423.) VI. No rights
survive to appellant after her repudiation of the separation agreement.
OPINIONBY: FULD
OPINION: [*158] [**100] FULD, J. In this action to recover installments
allegedly due for support and maintenance under a separation agreement
executed in this state in 1933, the wife's complaint has been dismissed, on
motion for summary judgment, upon the ground that her institution of an action
for separation in England constituted a repudiation and a rescission of the
agreement under New [***8] York law. Determination of the appeal, involving as
it does a question of conflict of laws, requires examination of the facts disclosed
by the papers before us.
Married in England in 1917, Mr. and Mrs. Auten continued to live there with their
two children until 1931. In that year, according to plaintiff, defendant deserted
her, came to this country and, in the following year, obtained a Mexican divorce
and proceeded to "marry" another woman. Unable to come to terms with the
ocean between them, plaintiff made a trip to New York City to see and talk to
defendant about adjustment of their differences. The outcome was the separation
agreement of June, 1933, upon which the present action is predicated. It
obligated the husband to pay to a trustee, for the "account of" the wife, who was
to return to England, the sum of 50 a month for the support of herself and the
children. In addition, the agreement provided that the parties were to continue to
live separate and apart, that neither should sue "in any action relating to their
separation" and that the wife should not "cause any complaint to be lodged
against * * * [the husband], in any jurisdiction, by reason of the said
alleged [***9] divorce or remarriage".
Immediately after the agreement was signed, plaintiff returned to England, where
she has since lived with her children, and it is alleged by her - but disputed by
defendant - that the latter is also domiciled in that country. Be that as it may,
defendant failed to live up to his agreement, making but a few payments under it,
with the result that plaintiff was left more or less destitute in England with the
children. About a year after the agreement had been executed, in August of
1934, plaintiff filed a petition for separation in an English court, charging
defendant with adultery. Defendant was served in New York with process in that
suit on December 4, 1936, and, in July, 1938, an order was entered requiring
defendant to pay alimony pendente lite. This English action - which, we are
told [*159] never proceeded to trial - was instituted upon advice of English
counsel that it "was the only method" by which she "could collect money" from
defendant; it was done, plaintiff expressly declares, to "enable" her "to enforce"
the separation agreement, and not with any thought or intention of repudiating it.
The years passed, and in 1947, having realized [***10] nothing as a result of the
English action and little by reason of the New York separation agreement,
plaintiff brought the present suit to recover the sum of $26,564, which represents
the amount allegedly due her, under the agreement, from January 1, 1935 to
September 1, 1947.
[**101] In his answer, defendant admitted making the agreement, but, by way of
a separate defense - one of several - claimed that plaintiff's institution of the
separation suit in England operated as a repudiation of the agreement and
effected a forfeiture of her right to any payments under it. Following a motion by
the wife for summary judgment and a cross motion by the husband for like relief,
the court at Special Term granted the husband's cross motion and dismissed the
complaint. The Appellate Division affirmed, with leave to the wife, however, to
serve an amended complaint, asserting any cause of action which accrued prior
to the date of the commencement of the English suit. The ensuing judgment,
dismissing all of the wife's claims which accrued subsequent to that date, is a
final judgment of modification, and the wife's appeal therefrom is properly before
us as of right. (306 N.Y. 752; see, also, [***11] Cohen and Karger, Powers of
the New York Court of Appeals, pp. 88-91, 222-223.)
Both of the courts below, concluding that New York law was to be applied, held
that under such law plaintiff's commencement of the English action and the
award of temporary alimony constituted a rescission and repudiation of the
separation agreement, requiring dismissal of the complaint. Whether that is the
law of this state, or whether something more must be shown to effect a
repudiation of the agreement (cf. Hettich v. Hettich, 304 N.Y. 8, 13-
14; Woods v.Bard, 285 N.Y. 11; Butler v. Butler, 206 App. Div. 214), need not
detain us, since in our view it is the law of England, not that of New York, which
is here controlling.
Choosing the law to be applied to a contractual transaction with elements in
different jurisdictions is a matter not free from [*160] difficulty. The New York
decisions evidence a number of different approaches to the question. (See,
e.g.,Jones v. Metropolitan Life Ins. Co., 158 Misc. 466.)
Most of the cases rely upon the generally accepted rules that "All matters bearing
upon the execution, the interpretation and the validity of contracts [***12] * * *
are determined by the law of the place where the contract is made", while "All
matters connected with its performance * * * are regulated by the law of the place
where the contract, by its terms, is to be performed." ( Swift & Co. v. Bankers
Trust Co., 280 N.Y. 135, 141; Union Nat. Bank v. Chapman, 169 N.Y. 538, 543;
see, also, Zwirn v. Galento, 288 N.Y. 428; United States Mtge. & Trust
Co. v. Ruggles, 258 N.Y. 32, 38; Restatement, Conflict of Laws, §§ 332, 358;
Goodrich on Conflict of Laws [2d ed., 1938], p. 293.) What constitutes a breach
of the contract and what circumstances excuse a breach are considered matters
of performance, governable, within this rule, by the law of the place of
performance. (See Richard v. American Union Bank, 241 N.Y. 163, 166-167;
Restatement, Conflict of Laws, § 370; Goodrich, op. cit., p. 293.)
Many cases appear to treat these rules as conclusive. Others consider
controlling the intention of the parties and treat the general rules merely as
presumptions or guideposts, to be considered along with all the other
circumstances. (SeeWilson v. Lewiston Mill Co., 150 N.Y. 314, 322-
323; Stumpf [***13] v.Hallahan, 101 App. Div. 383, 386, affd. 185 N.Y.
550; Grand v. Livingston, 4 App. Div. 589, affd. 158 N.Y. 688.) And still other
decisions, including the most recent one in this court, have resorted to a method
- first employed to rationalize the results achieved by the courts in decided cases
(see Barber Co. v.Hughes, 223 Ind. 570, 586) - which has come to be called the
"center of gravity" or the "grouping of contacts" theory of the conflict of laws.
Under this theory, the courts, instead of regarding as conclusive [**102] the
parties' intention or the place of making or performance, lay emphasis rather
upon the law of the place "which has the most significant contacts with the matter
in dispute". ( Rubin v.Irving Trust Co., 305 N.Y. 288, 305; see,
also, Jones v. Metropolitan Life Ins. Co., supra, 158 Misc. 466, 469-
470; Jansson v. Swedish American Line, 185 F. 2d 212; [*161] Barber
Co. v. Hughes, supra, 223 Ind. 570; Boissevain v. Weil, [1949] 1 K.B. 482, 490-
492; Cook, "Contracts" and the Conflict of Laws: "Intention" of the Parties, 32 Ill.
L. Rev. 899, 918-919; Harper, Policy Bases of the Conflict of [***14] Laws:
Reflections on Rereading Professor Lorenzen's Essays, 56 Yale L.J. 1155, 1163-
1168; Note, Choice of Law Problems in Direct Actions Against Indemnification
Insurers, 3 Utah L. Rev. 490, 498-499.)
Although this "grouping of contacts" theory may, perhaps, afford less certainty
and predictability than the rigid general rules (see Note, op. cit., 3 Utah L. Rev.
490, 498), the merit of its approach is that it gives to the place "having the most
interest in the problem" paramount control over the legal issues arising out of a
particular factual context, thus allowing the forum to apply the policy of the
jurisdiction "most intimately concerned with the outcome of [the] particular
litigation" (3 Utah L. Rev., pp. 498-499). Moreover, by stressing the significant
contacts, it enables the court, not only to reflect the relative interests of the
several jurisdictions involved (see Vanston Committee v. Green, 329 U.S. 156,
161-162), but also to give effect to the probable intention of the parties and
consideration to "whether one rule or the other produces the best practical
result". ( Swift & Co. v. Bankers Trust Co., supra, 280 N.Y. 135, 141; seeVanston
Committee [***15] v. Green, supra, 329 U.S. 156, 161-162.)
Turning to the case before us, examination of the respective contacts with New
York and England compels the conclusion that it is English law which must be
applied to determine the impact and effect to be given the wife's institution of the
separation suit n1. It hardly needs stating that it is England which has all the truly
significant contacts, while this state's sole nexus with the matter in dispute -
entirely fortuitous, at that - is that it is the place where the agreement was made
and where the trustee, to whom the moneys were in the first [*162] instance to
be paid, had his office. The agreement effected a separation between British
subjects, who had been married in England, had children there and lived there as
a family for fourteen years. It involved a husband who, according to the papers
before us, had willfully deserted and abandoned his wife and children in England
and was in the United States, when the agreement was signed, merely on a
temporary visa. And it concerned an English wife who came to this country at
that time because it was the only way she could see her husband to discuss their
differences. The sole [***16] purpose of her trip to New York was to get
defendant to agree to the support of his family, and she returned to England
immediately after the agreement was executed. While the moneys were to be
paid through the medium of a New York trustee, such payments were "for
account of" the wife and children, who, it was thoroughly understood, were to live
in England. The agreement is instinct with that understanding; not only does it
speak in terms of English currency in providing for payments to the wife, not only
does it recite that the first payment be made to her "immediately before sailing for
England", but it specifies that the husband may visit the children "if he should go
to England".
n1. Our decision in Rennie v. Rennie (287 N.Y. 86) casts no light on the problem.
The court did not there consider whether it is the law of the place where the
separation agreement was made or of the jurisdiction where the separation suit
or other judicial proceeding was brought which determines the effect that such
action may have upon the agreement.
[**103] In short, then, the agreement determined and fixed the marital
responsibilities of an English husband and father and provided [***17] for the
support and maintenance of the allegedly abandoned wife and children who were
to remain in England. It merely substituted the arrangements arrived at by
voluntary agreement of the parties for the duties and responsibilities of support
that would otherwise attach by English law. There is no question that England
has the greatest concern in prescribing and governing those obligations, and in
securing to the wife and children essential support and maintenance. And the
paramount interest of that country is not affected by the fact that the parties
separate and provide for such support by a voluntary agreement. It is still
England, as the jurisdiction of marital domicile and the place where the wife and
children were to be, that has the greatest concern in defining and regulating the
rights and duties existing under that agreement, and, specifically, in determining
the circumstances that effect a termination or repudiation of the agreement.
[*163] Nor could the parties have expected or believed that any law other than
England's would govern the effect of the wife's institution of a separation action. It
is most unlikely that the wife could have intended to subject her [***18] rights
under English law to the law of a jurisdiction several thousand miles distant, with
which she had not the slightest familiarity. On the contrary, since it was known
that she was returning to England to live, both parties necessarily realized that
any action which she took, whether in accordance with the agreement or in
violation of it, would have to occur in England. If any thought was given to the
matter at all, it was that the law of the place where she and the children would be
should determine the effect of acts performed by her.

It is, perhaps, not inappropriate to note that, even if we were not to place our
emphasis on the law of the place with the most significant contacts, but were
instead simply to apply the rule that matters of performance and breach are
governed by the law of the place of performance, the same result would follow.
Whether or not there was a repudiation, essentially a form of breach (see
Restatement, Contracts, § 318; 4 Corbin on Contracts [1951], § 954, pp. 829-
834), is also to be determined by the law of the place of performance
(cf. Wester v. Casein Co. of America, 206 N.Y. 506; Restatement, Conflict of
Laws, § 370,Caveat [***19] ), and that place, so far as the wife's performance is
concerned, is England. Whatever she had to do under the agreement - "live
separate and apart from" her husband, "maintain, educate and support" the
children and refrain from bringing "any action relating to [the] separation" - was to
be done in England. True, the husband's payments were to be made to a New
York trustee for forwarding to plaintiff in England, but that is of no consequence
in this case. It might be, if the question before us involved the manner or effect of
payment to the trustee, but that is not the problem; we are here concerned only
with the effect of the wife's performance. (Cf. Zwirn v. Galento, supra, 288 N.Y.
428, 433.)

Since, then, the law of England must be applied, and since, at the very least, an
issue exists as to whether the courts of that country treat the commencement of
a separation action as a [*164] repudiation of an earlier-made separation
agreement, summary judgment should not have been granted n2.

n2. In point of fact, the English lawyers, whose affidavits have been submitted by
plaintiff, unequivocally opine that the institution of a separation suit and the award
of alimony pendente lite did not, under the law of England, constitute a
repudiation of the separation agreement or bar the present action to recover
amounts due under it. [***20]

As to defendant's further contention that, in any event, plaintiff's commencement

of the English action amounted to a [**104] material breach of her covenant not
to sue, barring recovery upon the agreement, we need but say that this question,
too, must be governed by English law, and for the same reasons already set
forth.

The judgment of the Appellate Division and that of Special Term insofar as they
dismiss the complaint should be reversed, with costs in all courts, and the matter
remitted for further proceedings in accordance with this opinion.