ity not an schools that nationality and not domicil should afford the law by which matrimonial estates should be determined. To Nationalthis it may be enough to say, (1.) that nationality can- adequate not be accepted as determining a law where, as in Eng- test. land and the United States, there is a plurality of jurisprudences under one nationality; and (2.) nationality can be assumed, as an instrument of fraud, far more readily than can domicil. It may be added that even by so earnest an advocate as Fiore, it is admitted that the great weight of authority on the continent of Europe goes to establish domicil and not nationality as giving the law by which matrimonial estates are to be determined. Thus in a case in 1856, before the Court of Paris, cited by him,2 a Sardinian citizen, who married in France, where he had been for some time domiciled, though without the authorization of the government, was decided, in default of a marriage settlement, to hold his estate "sous le régime de la communauté universelle," though the Sardinian Code does not admit such community, unless expressly stipulated. As the parties intended to make France their home, this ruling, is consistent with the position in the text, that the law of the matrimonial domicil should prevail, though in conflict with the rule proposed by Fiore, that nationality should control. And that the domicil which the parties intend to adopt and continue in should give the applicatory law is held, as Fiore admits, by Dumoulin, Voet, Le Brun, Pothier, Troplong, Rocco, as well as by the French Court of Cassation.3 1 See discussion supra, §§ 8 et seq. To same effect see Jour. du droit int. privé, 1876, p. 182. 2 Op. cit. § 331. 3 Dumoulin, Comm. ad Cod. i. tit. i.; P. Voet, De Stat. § 9; c. 9; J. Voet, Ad. Pand. tit. de ritu nuptiarum, No. 85; Le Brun, De la communauté, i. ch. ii. No. 38; Pothier, De la communauté, i. No. 40; Troplong, Mariage, No. 21; Rocco, pt. iii. No. 21; Cass. Franc. 25 Juin, 1816; Sirey, 1817, i. 292; Ibid. 7 Feb. 1843; Ibid. 1843, i. 282; Ibid. 1856; Ibid. 1857, i. 247. It is held in Italy that a woman married abroad has a lien (hypothèque légale) on her husband's property situate in Italy. Jour. du droit int. privé, 1878, p. 54. It is argued, however, that this right should be limited by the law of the nationality of the wife. Ibid. p. 56. 281 Marriage governed by law of matrimo icil. VIII. CONFLICTS AS TO MARRIAGE SETTLEMENTS. § 199. In England, by the statute 27 Henry VIII., “where purchases or conveyances had been or should be made settlements of any lands, tenements, or hereditaments, by or to the use of the husband and wife in tail, &c., or for their nial dom- lives, or the life of the wife, for her jointure, every woman married, having such jointure made, should not claim nor have any title to dower to the residue," &c., of her husband's land. The courts have construed this statute so as to require that the jointure should be as beneficial to the wife as would have been the dower. This statute is now extended to all alien women married to natural born or naturalized subjects.1 The English courts are explicit in declaring that such settlements are to be construed by the law of the matrimonial domicil. Thus Lord Brougham, in 1834, held that where parties, domiciled in Scotland, made in that country a marriage settlement, such settlement was to be construed, by an English court, according to Scotch law. Where the parties were domiciled in England, but the marriage was solemnized in France, it was held, in 1854, that the settlement was to be construed according to English law. A change of domicil, it has been held, both in England and the United States, does not work any change of law; the law to be applied is still that of the matrimonial domicil. And a marriage settlement- such is the general rulewill be interpreted, so far as concerns the mode of performance, in harmony with the law of the matrimonial domicil.5 1 7 & 8 Vict. c. 66. 2 Anstruther v. Adair, 2 Mylne & K. 513; Wright's Trusts, 2 Kay & Johnson, 595; Duncan v. Cannon, 18 Beavan, 128. See Byam v. Byam, 19 Beavan, 62. Este v. Smyth, 18 Beavan, 112. 4 Ibid.; Phil. Int. Law, iv. 311; De Lane v. Moore, 14 How. U. S. 253; Le Breton v. Miles, 8 Paige, 261; Besse v. Pollochoux, 73 Ill. 285; Adams v. Hayes, 2 Ired. 361; Smith v. Morehead, 6 Jones Eq. 360; Hicks v. Skinner, 71 N. C. 539; Glenn v. Glenn, 47 Ala. 204; Murphy v. Murphy, 5 Mart. 83; Saul v. His Creditors, 17 Mart. 605; McLeod v. Board, 30 Tex. 238. 5 Lansdowne v. Lansdowne, 2 Bligh, 60; Anstruther v. Adair, 2 M. & K. 513; Young v. Templeman, 4 La. An. 254. See Duncan v. Cannon, 18 Beav. 128; 7 D., M. & G. 78. In a case decided by the Supreme Court of Louisiana in 1870, it appeared that the husband, at the time of the marriage, was domiciled in Louisiana, and the wife in Mississippi, It is true that Chancellor Kent and Judge Story hold that the rights depend upon antenuptial contracts, and are to be governed by the lex loci contractus.1 But in the case before Chancellor Kent the place of contract was that of the matrimonial domicil; and the reasoning goes to show that if there be a conflict between the two, that of the matrimonial domicil, so far as concerns the mode of performance, would prevail. To this effect is a decision of the Supreme Court of the United States that an antenuptial contract, duly made and recorded in the state of the parties' matrimonial domicil, where the property then was, binds such property as against creditors and purchasers, though it had been removed to another state.2 It is clear that subsequent creditors of the husband, in one state, cannot attach property settled on the wife by antenuptial contract valid in the matrimonial domicil.3 where the wedding took place, and where an antenuptial marriage settlement was executed. The parties immediately after the marriage moved to Louisiana, where they resided until the husband's death. It was held that the question of the capacity of the wife and the form of the contract were to be governed by the lex loci actus, but its effect by the law of Louisiana, which was the intended place of the matrimonial domicil. Wilder, Succession of, 22 La. An. 256. objection, though perhaps in a less degree, applies to Mr. Westlake's test, the law of the husband's domicil. However it may be in England, it is often the case in the United States that marriage is the epoch which the husband selects for a change of his domicil. In the majority of cases, it is true, the husband's domicil, at the time the marriage is solemnized, is that to which the parties propose in future to submit themselves, and in these cases Mr. Westlake's test is just. But where the parties intend to aban 1 De Couche v. Savatier, 3 Johns. don this domicil for another imme C. R. 211; Story, § 376. 2 De Lane v. Moore, 14 How. U. S. 253. See Hicks v. Skinner, 71 N. C. 555. To enforce in all cases the law of the place of celebration would be to impose an arbitrary and sometimes utterly incongruous and subversive test, since marriages are often solemnized in places whose laws the parties have no idea of accepting as their own-laws which may seriously conflict with other arrangements made by the parties. Supra, § 192. The same diately after the marriage, the domicil thus intended must determine the mode of performance. 8 Bank U. S. v. Lee, 13 Pet. 107. That real estate, when put in trust for matrimonial purposes, must be governed in accordance with the laws of the matrimonial domicil, see Besse v. Pollochoux, 73 Ill. 285. See Fuss v. Fuss, 24 Wis. 256. It has been held in California, in the case of an antenuptial marriage contract made in France, where the parties were domiciled, in which the Personal property not included in the settlement, nor subsequently acquired, is governed by the law of matrimonial domicil.1 Where the parties intend to adopt a new domicil after the marriage, we may hold, in view of what has been stated, to the following conclusions: (1.) The verbal interpretation of the contract, so far as concerns ambiguities, is to be governed by the law the parties had in mind and were familiar with, which is usually that of their residence at the time. (2.) The rule locus regit actum determines the mode of solemnizing the contract. (3.) The mode of performance is regulated by the law of the intended matrimonial domicil.2 husband and wife agreed that the survivor should hold all the property which the one first dying should leave, except what the law gives to the children of the marriage, and the survivor died in California, being domiciled there, that the estate would be distributed in accordance with the law of California. Baubichon's Est. 49 Cal. 19. 1 Story, § 185; Watts v. Shrimpton, 21 Beav. 97; Ordronaux v. Rey, 2 Sandf. Ch. 45. Supra, § 196. 2 Collis v. Hector, L. R. 19 Eq. 334, may seem to conflict with the conclusion. In this case the husband's domicil was Turkey, while the marriage settlement was English, and the wife was an English woman. But in this case (aside from the barbarous character of the procedure by which the English settlement had been annulled by the Turkish court without notice to the wife), it was made plain that the wife was made to believe, at the time of the marriage, that the husband intended to make his domicil in England, and that such was at the time his expressed intent. England, therefore, may have been properly held to be the matrimonial domicil; and the case, therefore, sustains the distinction taken in the text. See, also, Van Grutten v. Digby, 31 Beav. 561. As sustaining the text may be cited Davenport v. Karns, 70 Ill. 465, a case of parol settlement, and authorities cited supra, § 194. To same effect is argument of Lord Brougham in Anstruther v. Adair, 2 My. & K. 513. Both in France and Germany the matrimonial estate, so far as concerns the moneyed relations of husband and wife, is determined finally by the law of the matrimonial domicil; nor is there any change in these relations effected by a subsequent change of domicil. The domicil is not necessarily that of the place of marriage. It is the place which the parties at the time of the marriage select as the seat of their married life, and at which, after their marriage, they take up their abode. Jour. du droit int. privé, 1875, p. 281, and cases there cited. That as to formalities of execution of a marriage contract the rule locus regit actum prevails is illustrated in Hicks v. Skinner, 71 N. C. 539, where an antenuptial contract en under which for §200. Whether when there is a provision in a marriage contract that the contract shall be construed by a foreign Limitations law, and not that of the matrimonial domicil, such a provision is valid, is doubtful. In England the validity of such a provision has been affirmed.1 In Louisiana it has been denied. And this is the better rule, unless (1.) the law designated is that of the matrimonial domicil; or, (2.) that of the place where property designated is situated. § 201. Limitations in a marriage settlement, contravening the policy of the state in which the parties are resident, or in which the property to be affected is placed, will not be enforced.3 IX. GIFTS BETWEEN HUSBAND AND WIFE. eign law can be ap plied. Limitations enforced trary to the policy of the law. will not be when con By Roman law, gifts husband between and we invalid. the § 202. By the Roman law all gifts from husband to wife, and from wife to husband, are forbidden. This is a matter of local policy, which is still maintained in several European states; and, from its nature, is to be subject to the laws of the domicil of the parties at the time of the proposed gift. The reason given for this prohibition is the importance of maintaining the unselfishness and purity of the marriage relation; and even those jurists who most insist upon maintenance of this policy regard it, nevertheless, as only nadevant notaire." "Elles ne peuvent recevoir aucun changement après la célébration du mariage." Code Civil, arts. 1394, 1395; but see a judgment of the Court of Appeals at Limoges, August 8, 1809, given in Sirey, 9, 2, p. 386. By the English common law, a married woman is incapable of thus modifying or surrendering her estate. See Fuss v. Fuss, 24 Wis. 256. tered into in New York, and there registered, between a husband domiciled in North Carolina, and a wife domiciled in New York, was held good against the husband's creditors, though the assignment was not registered in North Carolina, to which place the property was moved after the marriage. To the same effect is Wilder, Succession of, 22 La. An. 219. Whether, after marriage, a marriage contract can be changed or amended by the consent of the parties, is a matter as to which the law of the actual domicil must decide. The French law forbids this. "Toutes conventions matrimoniales seront rédigées avant le mariage par acte 1 Este v. Smyth, 18 Beavan, 112. 2 Bourcier v. Lane se, 3 Martin, 587. 8 Infra, § 490; Fergusson on Mar. & Div. 358. 4 Bar, § 97; Savigny, viii. p. 335; Bouhier, ch. 12, No. 95; Demangeat, note to Fœlix, i. p. 228. |