PROPERTY RIGHTS UNDER MARRIAGE.

BESSE v. PELLOCHOUX, 73 ILL. 285, (1874).

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Messrs. BICKFORD, BOWEN, & MALONEY, for the appellant. Messrs. BUSHNELL, BULL & GILMAN, for the appellees. Mr. JUSTICE SCOTT delivered the opinion of the Court:

In 1850, at the residence of the parties in Switzerland, appellant entered into an ante-nuptial agreement with Marie Elizabeth Pellochoux, whom he afterwards married. It was executed and attested with all the usual formalities, and was doubtless valid by the laws of the canton where it was made.

The three principal paragraphs are as follows:

"Ist. The future husband associates and renders his future wife partaker of half the property acquired during their marriage. "2d. The furniture of the contracting parties once inherited and inventoried, will be confounded and divisible into two equai parts, between the conjoints.

"3d. Joseph Nicolas Besse, as well for his wife, Marie Madeline Metroz, as himself, both present, and natives of Orsieres, where they now live, desiring to prove to the young couple their approval of re-union to be contracted, give to their son, Joseph Nicolas, half of their immovable as well as movable property, on the close conditions that the conjoints will work the other half still retained and belonging to said parents. The parents of the groom now forsake all claim to what they will acquire from this day in favor of the conjoints-the whole being gratefully accepted by the receivers.

"The parties, bringing a modification to clause No. 2, have agreed that the furniture inherited or now inherited will be divided the couple, without any regard to their production, from the time of their marriage.

"The bride's parents, both present, take upon themselves the obligation to leave their daughter Marie a share of their succession, equal to a share of each of the children of the same bed."

Other relatives were present, who made gifts to the bride and

groom, but the givers reserved the possession during their lifetime.

Within a few years after their marriage, appellant and his wife came to this State. On their arrival in this country they had no considerable property or money. The real estate in controversy was all acquired after the change of domicil, by their united industry, the title to which was taken in the name of appellant. In 1869 Marie Elizabeth died, never having had any children. Appellees are her heirs at law, being her brothers and sister. Under the provisions of the ante-nuptial contract, they claim they are entitled to one-half of all the property, both real and personal, acquired by appellant previous to the death of his wife.

The original contract is written in the French language, and if the translation found in the record is correct, it must be conceded there is much obscurity in its provisions. Appellees having presented it, the translation must be taken as correct for the purposes of this decision.

The words that are supposed to create an estate in the wife equal to one-half of all the property acquired during marriage, are of doubtful meaning. They have no definite signification, like well understood legal terms. The language is, he "associates and renders his future wife partaker of one-half the property acquired during marriage." How is she rendered "partaker?" Is she given the use of the property during the marriage relation, or is she to be invested with the title of an undivided half as of an absolute ownership? No words are used which, in their ordinary or legal import, define what estate she takes, and none are used that convey the idea the estate, whatever it is, shall descend to her heirs. If we concede the view of the law contended for, that the ante-nuptial contract is operative and binding as to property acquired after the change of the matrimonial domicil, the decision could be rested on the construction, it was only intended to make the wife "partaker" in the use of one-half of the property acquired during marriage, and that no intention was manifested to invest her with an estate of inheritance, in case she should die before her husband, that would descend to her heirs. This view

is strengthened by reference to the 3d clause, where the parents of the groom give to their son, not to the future wife, one-half of their immovable and movable property, "on the close conditions the conjoints will work the other half still retained and belonging to said parents."

It could not have been the intention to continue a community of interest between their son and the heirs of the future wife, in case she should die first. The construction insisted upon would produce this result, however irrational it may appear to be. But, independently of this construction of the contract, the law itself would not continue a community of interest between the husband and the heirs of his wife. In Murphy's Heirs v. Murphy, 5 Martin, 83, it was decided, when persons intermarried in a country where the local laws create a community of goods, and remove to a country where that principle does not prevail, the community will not continue between the husband and their children after the death of the wife.

It will be observed, the parents of the bride take upon themselves the obligation to leave to their daughter Marie a share of their succession, equal to a share of their other children. This would clearly be the separate estate of the wife. Thus it will be seen, when all the provisions of the instrument are read together, it was the intention the husband and wife should each have separate property. It was so expressly stated in the contract, and what the husband rendered the wife "partaker" of, must have been the use of the property during the marriage relation, and not the absolute ownership of any distinct portion.

But, regarding the other construction as the true one, that the words "render her partaker," give the wife an undivided interest in all the property that should be acquired during marriage, still we do not see upon what principle the position assumed by counsel can be maintained.

The contract associating the parties thereto as joint partakers in the property to be acquired during marriage, does not specify any place where it is to be performed. But we are not left in doubt on this point. An examination of its provisions shows it could not be fully performed at any place other than the place

where it was entered into, viz.: at the place of the matrimonial domicil. This is apparent from the provisions of the third paragraph.

But the property which is the subject of this litigation, was all acquired after the husband and wife had changed their domicil, and taken up their permanent abode in a country foreign to the matrimonial domicil. The question that presents itself is, whether the after acquired property will be affected by the provisions of the ante-nuptial contract, or whether the law of the actual domicil in a foreign country will govern as to all future acquisitions.

What effect is to be given to ante-nuptial agreements, where parties have changed their domicil and made new acquisitions, has been the subject of much discussion. There is great confusion and contradictory statements in the opinions of jurists, in all countries, on this question.

The general doctrine is, no doubt, as stated by the text writers: Where there is an express ante-nuptial contract, it will generally be admitted to govern all the property of the parties, not only in the matrimonial domicil but in every other place, unless it contravenes some law or principle of public policy of the country where it is sought to be enforced. Story Con. Laws, sec. 143; Wharton Con. Laws, sec. 197.

But, Mr. Justice Story adds: "Where there is no express nuptial contract at all, or none speaking to the very point, the question what rule ought to govern is surrounded with more difficulty." The author then enters upon an elaborate review of the whole subject, and among others reaches these conclusions:

"Ist. Where there is a marriage between parties in a foreign country, and an express contract concerning their rights and property, present and future, that, as a matter of contract, will be held equally valid everywhere, unless, under the circumstances, it stands prohibited by the laws of the country where it is sought to be enforced. It will act directly on movable property everywhere, but as to immovable property in a foreign country, it will, at most, only confer a right of action, to be enforced, according to the jurisprudence rei sitae.

"2d. Where such an express contract applies, in terms or intent only, to present property, and there is a change of domicil, the law of actual domicil will govern the rights of the parties as to all future acquisition." Story Con. Laws, secs. 184 and 185.

The doctrine of the text has, for its support, the best considered cases on this subject, so far as we have examined them. In Louisiana, cases involving these principles have been the most elaborately discussed of any arising in this country. The jurisprudence of that State is founded on the principles of the French and Spanish laws, which create a community of interest between husband and wife as to all acquests and gains, and the frequent removals from and into States where that principle does not prevail, has produced litigation involving the principles we are considering. The decisions of the courts of that State evince great learning and research.

As was said in Gale v. Davis' Heirs, 4 Martin: "Though it was once a question, it seems now to be settled, that where a couple emigrate from the country where their marriage was contracted, into another, the laws of which are different, the property which they acquire in the place where they have moved is governed by the laws of that place."

This principle was again recognized in Murphy's Heirs v. Murphy, supra. This latter case is an authority for the first proposition cited from Judge Story's work. The second proposition rests upon the principle of Gale v. Davis' Heirs, supra, and Saul v. His Creditors, 5 Martin, (N. S.) 569.

The latter proposition might be somewhat more comprehensively stated. Not only where there is no contract speaking directly to the point, but where it clearly appears it was to apply to personal property only, or to be performed only in the country where made, and there has been a change of the matrimonial domicil, the law of the actual domicil will control as to all property thereafter acquired. Thus, in Fuss v. Fuss et al. 26 Wis. 256, where there was a post-nuptial contract as to property between persons married and domiciled in Prussia, who then owned no property elsewhere, and it did not appear they contemplated a change of domicil, nor that there was any intention manifested to