Long v. Hess

Bailey, J.: The defendants, in whose favor the decree was rendered, now urge, with a considerable degree of earnestness, that the court below erred in refusing to suppress the deposition taken in Germany, on the ground that the manner in which it was taken was a clear departure from that prescribed by the statute for taking the depositions of foreign witnesses. All we need say upon that point is, that the question thus raised is not before us for decision. The court below refused to suppress the deposition and considered it as evidence on the final hearing, but upon all the evidence as thus presented the decision of the court was in the defendants’ favor and the complainants have appealed. The defendants have assigned no cross-errors, and they mnst therefore be deemed to be content with tfye decision of their motion to suppress, and so, for all the purposes of this appeal, the deposition, however irregularly it may have been taken, must be regarded as having been rightfully retained and considered as evidence at the hearing. The only question presented by the record is as to the legal effect upon the property acquired by Jacob Hess in this State, of the ante-nuptial contract entered into in Germany between him and his then intended wife. It is claimed that the contract, when considered in connection with the judicial proceedings had thereon, constituted, in legal effect, an adoption of the complainants by Hess, so as to place them upon the same footing, so far as succession to his property and estate was concerned, with the children afterwards born of the marriage then in contemplation; and it is further contended, that by the rules of law in force where the contract was made, and which entered into and formed a part of it, the property then owned by Hess and by his intended wife, as well as that afterward acquired by them, became communal .property, in which the children of the family, both natural and adopted, acquired a vested right, and that Hess could not, by will, divest their right to succeed to such estate as he might leave at his death. After considering all the evidence, we are left in very grave doubt whether the laws of the Grand Duchy of Hesse, upon which reliance is placed, are sufficiently proved. But waiving that point, and assuming that the proof is sufficient, and that the rules of law prevailing in Hesse at the date of the contract were as the complainants contend, the question remains whether the ante-nuptial contract should be enforced in this State as to property, and especially real property, subsequently acquired by Hess in this State. It should be remembered that at the date of the contract the parties were living at Beerfelden, in the Grand Duchy of Hesse, and, so far as appears, were intending to remain there permanently. There is nothing, either in the contract itself or in the evidence, having the least tendency to show that their removal to any other place was then contemplated. The evidence furnished by the contract is all in the direction of showing that their intention was to make Beerfelden their permanent home. The agreement on the part of the bride was, “to receive the groom to live at her house,” and the contract, after certain stipulations as to the property brought into the marriage by the groom, and as to the rights of the children of the bride by her former marriage, concludes with the provision, that “in all other cases not especially enumerated herein the contracting parties subject themselves to the general laws of Germany, especially the rules and customs of the country.” In point of fact, Jacob Hess, after his marriage, took up his residence at his wife’s house and made that his domicil, and thereupon engaged at that place in the business of a baker, which he carried on for five years. He then sold out his property there and emigrated to the United States. It should also be observed that there is a total absence of any express provision in the contract making it applicable to the future acquisitions of the contracting parties. It deals with the property they then possessed, but makes no reference to such as they might afterwards gain. The only language in the contract on which any reliance is placed as having reference to future acquisitions is the following: “As regards their worldly success and subsistence, the bride agrees to receive the groom to live at her house.” If these words are correctly translated from the original German, in which the contract was written, —and we have heard no suggestion that they are not,— they are, to say the least, extremely ambiguous, and we are able to put upon them no rational construction which would make out of them an agreement to subject the future acquisitions of the parties to the provisions of the contract. The most probable and natural interpretation of the words would seem to be, that, with a view to providing for the worldly success and the subsistence of the family, the bride agreed to receive the groom to live at her house. They can not, without importing into them a meaning which does not appear upon their face, be held to have any direct reference to the future acquisitions of the contracting parties, and especially their acquisitions after emigrating from their then residence and making ■ their permanent domicil in a foreign country. The property rights of husband and wife; as affected by the marriage contract itself, or by an ante-nuptial agreement, where the marriage or the ante-nuptial agreement has been entered into in a foreign country, have always presented questions of no little perplexity and difficulty. Story, in his treatise on the Conflict of Laws, (sec. 143,) says : “The principal difficulty is not so much to ascertain what rule ought to govern in cases of express nuptial contract, at least where there is no change of domicil, as what rule ought to govern in cases where there is no such contract, or no contract which provides for the emergency. Where there is an express nuptial' contract, that, if it speaks fully to the very point, will generally be admitted to govern all the 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 author then, after an extended examination of the opinions of the leading law writers in this country and in Europe, and also of the decisions of the Supreme Court of Louisiana, (the only court which, at that time, seems to have given these questions elaborate and careful consideration,) lays down the following propositions, which, as he says, although not universally established or recognized in America, have much domestic authority for their support and have none in opposition to them: “(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 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 territory it will, at most, confer only a right of action, to be enforced according to the jurisprudence rel sitce. (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 the 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 everywhere, upon the principle that movables have no situs, or, rather, that they accompany the person everywhere. As to immovable property the law rel sitce 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 the matrimonial domicil, will govern as to all future acquisitions of movable property, and as to all immovable property the law rel sitce.” Story on Conflict of Laws, sec. 184, et seq. The propositions thus laid down by Judge Story seem to have received the general approval of the courts of this country, so far as there has been occasion to consider them since he wrote. Thus, in Fuss v. Fuss, 24 Wis. 256, parties domiciled in Prussia were married there, and afterward entered into a post-nuptial contract, whereby each granted and transferred to the other all real and personal property which should belong to the donator on the day of his death. The wife, at the time, owned real estate in Prussia, over which, by the laws of that country, she had full control and right of disposal. Several years afterward the property was sold, the husband taking the money and investing it in land in Wisconsin, to which the parties removed, and on which they resided until the husband’s death. He also, during his lifetime, acquired other property, both real and personal, situate in Wisconsin, which he owned on the day of his death. By his last will the husband devised and bequeathed all his property, both real and personal, to his widow for life, with remainder to the brothers and sisters of the testator. On bill filed by the widow, claiming that, by force of the post-nuptial contract, she was entitled to an estate in fee in the lands and to the absolute ownership of the personal property left by her husband, it was held that there was nothing in the contract which spoke to the very point, — that it contained nothing which manifested any intention in the parties to regulate or control by it, according to the law of their matrimonial domicil, the future acquisitions and gains of property in any foreign State or territory or any property which should be held by the husband in such State or territory, and, consequently, that the property acquired and owned by the husband in Wisconsin in his own name was subject to be disposed of by him, by will or otherwise, according to the laws of that State, and that the widow’s rights therein were not determined by the contract. In Castro v. Illies, 22 Texas, 479, substantially the same doctrine was laid down, although, as that case arose out of a controversy between a wife claiming under an ante-nuptial contract and execution creditors of the husband, the decision is not in all respects so directly in point as the one last cited. There parties domiciled in Paris, France, executed an ante-nuptial contract and married in Paris. Some years afterward they emigrated to this country and became domiciled in Texas, where the husband subsequently acquired certain real property. It was claimed that by the rules of the French law the contract vested in the wife a certain interest in the property acquired by her husband which was not subject to seizure for her husband’s debts, but it was held that as there were in the contract no words “speaking to the very point,” — that is, no words making the contract specifically applicable to property subsequently acquired by the husband in a State or country foreign to that in which the contract was made, — it had no operation upon lands subsequently acquired by the husband in Texas. In Besse v. Pellochoux, 73 Ill. 285, an ante-nuptial contract was made between parties domiciled in Switzerland in regard to property to be occupied during the marriage, it appearing that the contract contemplated no change ' of domicil, but was to be performed in the place where it was made, and it was held that the contract did- not affect real estate acquired in this State by the husband after their emigration to this country. In the opinion the doctrine laid down by Judge Story was cited with ■ approval, and it was said that in that case there was nothing in the contract “speaking to the very point,”— that manifested any intention that all future acquisitions of property in foreign countries should be controlled by it. See, also, Lyon v. Knott, 26 Miss. 548; Kneeland v. Ensley, Meigs, 620; Saul v. Creditors, 5 Martin, (N. S.) 569; LeBreton v. Myers, 8 Paige, 261; Gale v. Davis' Heirs, 4 Martin, (O. S.) 645. The case of Decouche v. Savetier, E Johns. Ch. 190, is one where an ante-nuptial contract, entered into by the parties in Paris, was enforced in this country in favor of the wife, to the exclusion of the husband’s relatives. But there the contract expressly provided “that there shall be a community of property between them, according to the custom of Paris, which is to govern the disposition of the property, though the parties should hereafter settle in countries where the laws and usages are different or cofitrary.” There the intention to make the contract applicable to- property afterward acquired in foreign countries was expressly made to appear by “words speaking to the very point.” Considerable reliance is placed by the complainants upon the case of Scheferling v. Huffman, 4 Ohio St. 241, where an ante-nuptial contract entered into by the parties in Germany, in which it was agreed that all the property of the intended wife which she then owned or which should be mutually acquired by the parties during coverture should be the property of the wife, was sustained and enforced, and held to apply to the property acquired by them in the State of Ohio after their emigration to this country. It will be noticed, however, that in that case the contract, by its express terms, was made applicable not only to the property then owned by the intended wife, but also to all property acquired during the continuance of the marriage. It is therefore clearly distinguishable from the present case, where no express provision is made applicable to property acquired in this State after the parties became domiciled here. We are therefore of the opinion that the ante-nuptial contract in this case is not applicable to real property acquired by Hess in this State after his emigration to this country, but that such property was subject to disposition by him, by deed or will, according to the laws of this State. His will, therefore, must be held to be valid, so as to vest in his devisees a title which must prevail over any rights derived by the complainants from the ante-nuptial contract. We are unable to see that any peculiar force is to be given to the fact that the complainants, at the time Jacob Hess and wife emigrated to this country, were infants, and therefore incapable of consenting to a change of their domicil, or of waiving any rights which were secured to them by the contract. As the contract can not be held to have any application to the property sought to be reached in this case, no rights of theirs were affected by their being brought to this country, and they had nothing to waive. Even if it be admitted that, by reason of their legal adoption by Jacob Hess, they would have been entitled to succeed to his estate, at his death, as his heirs-at-law, the ante-nuptial contract furnished no obstacle to the exercise by Hess of his right to dispose of his estate by will, and he having done so, nothing was left to descend to the complainants as his heirs-at-law. Although the complainants may have acquired the status of adopted children and heirs-at-law by the contract and judicial proceedings had in Germany, their inheritance of after-acquired real estate situated in this State must be in accordance with our laws, and by our laws a testator has an absolute right to dispose of his property by will, even to the exclusion alike of his natural or his adopted children. We are of the opinion that the decree of the circuit court is justified by the evidence, and it will accordingly be affirmed. Decree affirmed.