Fuss v. Fuss

Dixow, C. J. Judge Stoby, in his Conflict of Laws (§ 143), speaking of contracts between husband and wife in respect to their property, says: ££ Where there is an express nuptial contract, that, if it speaks fully to the very point, will generally be admitted to govern all property of the parties, not only in the matrimonial domicil, but in every other place, under the same limitations and restrictions, as apply to other cases of contract. But 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 learned commentator then proceeds to examine the question at much length, quoting the opinions of eminent jurists both at home and abroad, and concludes (in §§ 184, 185, 186 and 187) by laying down, among others, the following propositions, which, he says, although not universally established or recognized in America, have much of domestic authority for their support, and none against them. £C (1) Where there is a marriage between parties in a foreign country, and an express contract respecting their rights and property, present and future, that, as a matter of contract, will be held equally valid every where, 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 every where. But as to immovable property in a foreign territory, it will, at most, confer only a right of action, to be enforced according to the jurisprudence rei sit®. ££ (2) Where such an express contract applies in terms or intent only to present property, and there is a change of domicil, the law of the actual domicil will govern the rights of the parties as to all future acquisitions. ££(3) Where there is no express contract, the law of [264] fclie matrimonial domicil will govern as to all the rights of the parties to their present property in that place, and as to all personal property every where, upon the principle that movables have no situs, or, rather, that they accompany the person every where. As to immovable property, the law rei sites will prevail. “(4) Where there is no change of domicil, the same rule will apply to future acquisitions as to present property. (5) But where there is a change of domicil, the law of the actual domicil, and not of the matrimonial domicil, will govern as to all future acquisitions of movable property; and, as to all immovable property, the law rei sites. ” Murphy’s Heirs v. Murphy (1 La. Cond. R. 341) is an adjudication illustrating and fully sustaining the first proposition laid down by Judge Stout. There was an express contract respecting the rights and property of the parties, even though they should afterward reside in countries where different laws should prevail. Castro v. Illies (22 Texas, 479) is an authority which in like manner illustrates and sustains the second proposition, as also the others ; and the doctrines of that case are supported by the decisions in Le Breton v. Miles, 8 Paige, 261; Gale v. Davis’s Heirs, 1 La. Cond. R. 312; and haul v. His Creditors, 5 Martin (N. S.), 569, 604, 605. The opinion of Judge Portee, in the latter case, is a very full and able discussion of the questions. Speaking of the decisions in Louisiana, Judge Stoet (§ 183) says the doctrines there maintained will, most probably, form the basis of American jurisprudence on this subject; that they have much to commend them in their intrinsic convenience and certainty, as well as in .•their equity; and they seem best to harmonize with the known principles of the common law in other cases: This case falls clearly within the second proposition above laid down. There is nothing in the contract which £ £ speaks fully to the very point ’ ’ — nothing which manifests any intention in the parties to regulate or con [265] trol by it, and according to the laws of their matrimonial domicil, their future acquisitions and gains of property in any foreign state or territory, or any property which should be held or owned by them in such state or territory. The contract was obviously made with reference to its operation and effect within the kingdom of Prussia upon the property of the parties situated there, and with no reference to property situated elsewhere. It appears that they had no property elsewhere, and there is no ground for supposing that they at that time contemplated any change of domicil, or a removal to this country or any other. The contract, to have operated upon the rights of the parties abroad, must have been made with express reference to such operation. The real property, therefore, in this state, acquired by the parties after they came into it, and which was held and owned by the husband in his own name, was subject to be disposed of by him, by will or otherwise, according to the laws of this state. The other point urged, as to the equity of the plaintiff to maintain this action because the lands in question were purchased with the money of the plaintiff, or the proceeds of her estate in Prussia, is sufficiently answered by the fact that under the will she has all the real and personal-estate whatever of the testator, her deceased husband, during her life-time. There is no pretense that such is not a full and ample provision for her support and maintenance; and this being so, she has no ground of complaint. By the Court.— Judgment affirmed.