p. 265pers in the case, that the husband was without property of his own, but that he and his wife lived together, and that he contributed as much as he was able to the support of the family.
W. C. Noyes, for the petitioner.
C. F. Grim,, for A. Robert, the husband.
I have very little doubt that both the petitioner and her husband are acting in good faith in this case ; both intending to carry the ante-nuptial contract into full effect, but each believing that his or her construction thereoi is correct, according to the French law, in reference to which law the contract was undoubtedly made. I have, therefore, bestowed much labor upon the examination of the case, for the purpose of arriving at a correct conclusion; and to save the parties the expense of sending a commission to France to examine witnesses there as to the French law which is applicable to this contract.
So far as the rights of the parties are concerned, independent of the mere security of the property and the proper remedies in our courts to protect those rights, I have no doubt that this ante-nuptial agreement must be governed by the law of France, although it was entered into at New-York, where the marriage also took place. It appears to be a well settled principle of law, in relation to contracts regulating the rights of property consequent upon a marriage, so far at least as personal property is concerned, that if the parties marry with reference to the laws of a particular place or country, as their future domicil, the law of that place or country is to govern, as the place where the contract is to be carried into full effect. And this must certainly be the correct rule where the marriage contract in terms refers to the intended domicil of the parties as the place or country by whose laws their rights under the marriage contract, in reference to property, are to be determined. Here the parties are not only natives of
p. 266France, but they state in their ante-nuptial contract, as one of the reasons for making the same, that they have agreed to leave the United States and go to France to reside; and they then make a contract in terms which clearly indicate their intention to be governed by the French law, as it then was, not only as to the property which they respectively possessed at the time of the marriage, but also as to future acquisitions. By the first article of their agreement they declare that they intend to marry under the law or legal rule of community. The contract must, therefore, be construed in reference to that rule as it existed in the law of France in 1823, when the marriage took place. By a reference to the French civil code, it will be seen that community in France is either legal or conventional; and that in default of special stipulations which derogate from the law of community, or modify it, the legal community and the various rules established in respect to it form the common law of France. (Civil Code, art. 1393.) These rules are embraced in the articles of the civil code from 1400 to 1496 inclusive ; and apply to the contract under consideration, except so far as the legal community has been modified by the stipulations of the parties. One of those rules is, that the husband alone administers the property of the community. (Art. 1421.) And another is, that the husband has the management of all the personal goods of the wife ; (Art. 1428) which term personal there includes immoveables, or real estate, as well as moveables. He is also responsible for all waste which such property may sustain by the neglect of conservatory acts for its preservation. The code expressly declares that conventional community remains subject to the rules of legal community, in all cases where those rules have not been superseded, explicitly or impliedly, by the contract. (Art. 1528.) The code also, in terms, authorizes the parties, in their marriage contract, to stipulate that they will be separate in goods ; the effect of which agreement is to give to the wife the entire management and control of her property, both real and personal, and the enjoyment of the in
p. 267come thereof, in the same manner as if she was a feme sole. But she cannot make any agreement which will authorize her to alienate her immoveable property, during the marriage, without the concurrence of the husband ; or, in case of his refusal, by the authority of the appropriate tribunal.
(Art. 1536, 1538.) The 223d article of the code provides that every general authority, although stipulated by the contract of marriage, is invalid, except as respects the administration of the property of the wife. But it would seem, from the last clause of the 1538th article, that this restriction was not intended to apply to the alienation of the moveables of the wife, under the clause of separation of goods. Whether a general authority to that effect, however, should not be contained in the marriage settlement, in order to take the case out of the operation of the 217th article, is a question which it is not necessary here to determine. For I have satisfied myself, from a careful examination of the ante-nuptial contract, in this case, with the various provisions of the French civil code, that it is not an agreement that the parties should be separate in goods ; so as to give to the wife even the administration of her property which is excluded from the community.
There appears to be a well settled distinction, preserved in the French law, between a mere exclusion of the proper or personal goods of the wife from the community, and a stipulation that the parties shall be separated in their goods. The first case is provided for in the six articles of the civil code which precede the provisions relative to the rights of parties who marry under a stipulation that they shall be separate in goods. Article 1530 declares that marrying without community does not confer lipon the wife a right to administer her property, nor to enjoy the fruits thereof; but that such fruits are deemed to have been given to the husband to sustain the expenses of the marriage. And the next article also declares that, in respect to such property, the husband retains the administration of the moveables and immoveables of the wife, and of consequence, the right to the enjoyment of all the moveable property which she
p. 268brings as dowry or which falls to her during the marriage ; subject to the restitution thereof, which he is bound to make upon the dissolution of the marriage, or upon a decree of separation of goods pronounced by the appropriate tribunal. (See also Durant on Cours De Droit Francaise, Lib. 3, Tit. 5, No. 310.) Masse, in his perfect notary, in treating of the incapacities of married women in a state of community, refers to these two articles of the civil code, in connection with the 1428th, for the purpose of showing that the incapacity of the wife is the same as to the administration of her goods which are excluded from the community, as it is in respect to those which belong to the community. And he adds, “ The income or fruits of the goods propres of the wife commune fall into the community of which the husband is master, and the income of the sole goods [biens personnels] of the wife non commune belong to the husband, to support the expenses of the marriage state ; and it is for these reasons that the one as well as the other is deprived of the administration of her goods.'' (Masse’s Parfait Notarie, vol. 1, p. 128.) Again, he says : “ Wives, on the contrary, who are married not with a simple exclusion of community, but with separation of goods, have the entire administration of their moveables and immoveables, and the free enjoyment of their incomes. (See also 3 Bellot’s Cont. of Marriage, 359, § 2. Biret’s Cont. of Marriage, 161. 1 Burge’s Col. & For. Law, 407.) This distinction, between a single exclusion of the goods which belong personally to the wife, from the community, and a clause in the marriage contract declaring that the husband and wife shall be separated in their goods, was also fully recognized in the discussions which took place in. the legislative body upon the adoption of this part of the civil code of France. In the speech of M. Simeon, in the session of that body of the 10th of February, 1803, he says : “ As people when they marry, place themselves under the law of community by the mere act of marriage, and yet can depart from the legal community by restraining or enlarging it by such stipulations as they wish, they
p. 269can also exclude that community which is of common right but which nevertheless is not absolutely required. The exclusion of the community alone does not establish the rule of dower ; which rule must be expressly assumed. Neither does it give to the wife the administration of her property : for the rights of the husband to that administration are independent of the community. She cannot, therefore, alienate her immoveables without his consent, or by the authorization of the proper tribunal of justice. He will receive all the moveables which she brings into her marriage portion, or which accrue to her during the marriage ; subject to the restitution thereof for which he is liable upon the dissolution of the marriage. And as he enjoys the property, he must pay or satisfy all the charges thereon which are payable by those who have the use of such property. The parties have not only the power to exclude the community, but to marry with a clause or stipulation for a separation of goods. That clause has a greater effect than the exclusion of the community ; it leaves to the wife the entire administration of her goods, and the free enjoyment of her income. In such case, the husband has merely the power which results from the marriage only ; which always prevents the wife from alienating without his authorization, or, upon his refusal, without that of the court.
(Seethe Baron Locre’s Legislation of France,
Vol. 13, p. 468.
See also 4
Guyot’s Rep. de Jurisp. art. Communaute, p. 210; 16 Idem,
art. Separation De Biens; Poth. Traite de la Communaute,
pt. 1,
ch. 3,
art. 8, § 3, 4; 2
Battur’s Community of Goods,
pt. 2,
ch. 11, § 2, p. 189; 2
Toullier’s Civ. Law of France, p. 20.)
The counsel for the petitioner supposes that the language of the contract between these parties, which not only declares that the goods of each shall be out of the community but shall be their own, is equivalent to a clause of separation of goods. In this, however, he is clearly wrong. The word propre, as used in this clause of the contract, was probably only intended by the parties to declare a little more explicitly that the goods acquired by either by suc
p. 270cession during the marriage, or in any other way entirelj independent of the rights which the marriage gave to them jointly, should equally with the property possessed before marriage be excluded from the community; so as to be the personal goods of each. Thus, Masse says,
(vol. 1,
p. 173,) “the goods of the wife, who is commune, that is, who marries under the law of community, as in this case, are either
propres or
conquets. The goods
propres are those which belong
to her personally, and of which the fruits and revenues only enter into the community ; the
conquets are all those of which the principal or capital, as well as the fruits and income which they produce, enter the community. The fruits and income of the propres, as well of the husband as of the wife, are also called
conquets ; because they form a portion of the goods of the community.”
lies propria est qua communis non est. (See 14
Guyot’s Repert. art. Propre; 3
John. Ch. Rep. 212; 1
Burge’s Col. &
Foreign Law, 347.) The conclusion therefore at which I have arrived, in this case, is, that the husband did not intend by this contract to relinquish his marital rights over the property of the wife, which was excluded from the community
; and that he is clearly entitled to the interest or income of the fund in court, for the support of himself and his wife and family, so long as it is properly applied for that purpose. And the marriage contract must be carried into effect, as far as it can be done consistently with our laws, so as to give her the full benefit of the principal of the fund at the dissolution of the
community; subject to the annuity which is secured to him out of the same in case he survives his wife.
The French law has not left the wife entirely destitute of support from the income of her own property, even where she has not secured to herself the administration and the enjoyment of the income by a clause of separation of goods in the marriage contract. For she may apply to the proper tribunal for a decree of separation of goods, so as to give her the administration and income of her Mens propres; not only for the support of herself and family,
p. 271but also for the protection of the fund, where her dowry is in peril. Or where the situation of the husband’s affairs gives room to fear that his property will not be sufficient to satisfy the prior claim and demands of the wife.
(Civ. Code,
art. 1443.) Such a suit cannot, indeed, be maintained in our courts, as the laws of this state do not permit a feme covert to hold separate property free from the control of her husband, except through the medium of a trustee. But this court, in the exercise of its equitable powers, may afford her such relief as the nature of the case requires for the protection of her property, where the husband is himself the trustee for her, as in this case, under this ante-nuptial agreement.
There is nothing in the fact that the husband has lost a part of the property of his wife by an investment thereof in the Dry Dock Bank, to show that he is incompetent to manage the property with ordinary prudence and discretion. It was such a loss as the most judicious men are constantly exposed to, who invest their funds in the stocks of moneyed corporations ; and to which the property of his wife was equally exposed while it remained invested in the stocks of insurance companies. If the property of the husband was such, therefore, as to afford a reasonable assurance to the wife that the loss would be made good to her in case of his death, this misfortune in losing that portion of her dowry, would be no sufficient reason for withholding from him the full possession of the fund, which belongs to her in this suit as a part of her father’s estate. It is evident, however, from his own statement, that he has very little property of his own, and that he has not the means of making good this loss; for which he is liable according to the French law. Under such circumstances, it would be a departure from the ordinary course of this court to permit the fund, which is now within its power, to go into his hands without security. If the parties, therefore, cannot agree upon a mode of investing the same which will be more for the interest of both, it must be invested by the receiver on bond and mortgage, or in public stocks,
p. 272in the name of the assistant register. And the interest or income thereof must be paid over to the husband, for the support of himself and his family, until the further order of this court; with liberty to the wife to apply for further directions if the income is not properly applied for that purpose. I trust, however, that after this decision upon the respective rights of the husband and wife under this marriage settlement, in the construction of which instrument there was certainly room for an honest difference of opinion among those who were not much acquainted with the laws of France, to which their ante-nuptial contract related, they will be able with the advice and assistance of friends to make an amicable arrangement as to the investment of this fund; and for the application of the income thereof for their joint benefit during the existence of the community, so as to save the expense of any farther application to the court on the subject.
The wife has such a separate interest in the subject of this suit as entitles her to appear and protect her rights therein by a separate solicitor and counsel, if she thinks proper. But even in reference to that, as the husband and wife have a common interest in recovering the full share of the wife in her paternal inheritance, I would suggest to both the expediency of employing the same counsel to protect their rights, in any future litigation which may be necessary; so that the property in which they are both interested may not be subjected to any unnecessary and useless expense.