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In this case the ante-nuptial agreement is set out at full length, and is accompanied with the remarks of the chancellor upon it. Many principles were settled with reference to the French law, which it is unnecessary to notice in this place. It was said that when parties marry with reference to the laws of a particular state or country, as their intended domicil, those laws govern in the construction of a marriage contract entered into between them, so far at least as their rights of personal property are concerned. But the remedy to secure such property, and to protect the rights of the parties to the contract, must be according to the law of the country, in the courts of which such remedy is sought.
In De Barante v. Gott, (6 Barb. 492,) the ante-nuptial contract was executed in France with the solemnities required by the laws of that country, and was executed with reference to a marriage of the parties, which took place two days after. In one branch of the articles, it was stipulated that in case of the death of the wife, without having children, her husband receiving the real estate of which she should die possessed in the United States, should be immediately sold, and the proceeds remitted to her husband. It was held that this possession operated as a grant to the husband, contingent upon the event which happened. Independent of the ante-nuptial articles, the husband would not have been entitled, by the law of this country, to succeed to the real estate belonging to his wife at the time of her death. Yet full effect was given to the marriage articles.
In that case there was no trustee appointed by the marriage articles by whom the real estate of the wife, on her death, could be sold and the proceeds remitted to the husband. This, however, was held to be no obstacle, as equity never suffers a trust to fail for want of a trustee, and land directed to be sold and converted into money is, for all purposes, on the principles of equitable conversion, to be treated as if so converted. (See also Craig v. Leslie, 3 Wheaton, 563; Gott v. Cook, 7 Paige, 534, on the subject of equitable conversion.) The subject of marriage contracted in France, under the law of community, was also considered, in Vail v. Vail,(17 Barb. 226.)
In affording relief in matrimonial contracts made with reference to the laws of another country, courts are governed by the law of comity. (Story's Conflict, ch. 2.) But no aid, it is presumed, will be granted in carrying out matrimonial engagements made with reference to a foreign country, when the principles sought to be enforced are against sound morals and the settled laws and institutions of the country whose courts are resorted to for relief. Thus, agreements based on the principles applicable to polygamy, though the parties contemplate a residence in a country where polygamy is authorized by law, will not be aided by our courts.
It is, however, mainly with reference to cases arising in this country that the conveyancer will be called upon to act. A settlement made by the wife before marriage is in derogation of the marital rights of the husband, and if made without his knowledge, is fraudulent and void. The fraud consists in disappointing the hopes and expectations raised by the marriage treaty. The proper way is, to have the intended husband and wife join in the articles which convey the estate to the trustee, then both are bound by it. Such instrument should contain the trusts by which the property is held, and the powers which are intended to be reserved or conferred upon the wife. Of course the settlement here spoken of, is of the property of the wife.
But marriage articles often provide for vesting in the trustee for the benefit of the wife property belonging to the husband. Both parties should join in such instrument. We have seen in a previous chapter, in what manner a wife may bar her right to dower, by an ante-nuptial agreement, and in what cases she is put to her election between her jointure and her dower. (1 R. S. 741, SS 9-12. McCartee v. Teller, 2 Paige, 511, 561. Ante, p. 66, 69.) It will not be necessary to repeat what was there said.
We have seen that the husband has only a qualified interest in the wife's chattels real. He may reduce them to possession; but if he fails to do so and dies, they survive to the wife, both at law and in equity. Now the wife's contingent right of survivership may be barred by a settlement, made upon her before marriage, or by a settlement after marriage, in pursuance of an agreement before marriage. Such a settlement, if adequate to the wife's fortune, has been considered as a purchase of it, though there was no agreement between the parties to that effect. (Blois v. Lady Hertford, 2 Pern. 501. Clancy, 102.) The wife cannot have her jointure and fortune both. The one is supposed to be the equivalent of the other.
Previous to the revised statutes of 1830, and as the law stood at that time, an absolute conveyance in fee, to a married woman, whether by deed or devise, carried with it a present life estate to the husband, and an estate by curtesy, if there was issue born alive of HOW SETTLEMENT MADE WITHOUT A TRUSTEE. 289 the marriage. A parent or friend, who wished to vest in the wife the uncontrolled disposition of the fee, could not do it by a direct grant or devise to her in fee. It was to enable him to do so and to prevent the consequences which resulted from her ownership of real estate during the marriage, that the 80th section of the article on powers was passed. If the grantor wished that the husband should have no control or interest in the property in right of his wife, he had only to annex to the grant or devise a power to the married woman, authorizing her to dispose, during her marriage, and without the concurrence of her husband, of the lands so conveyed or devised to her in fee. This power the owner of the fee has a right to confer; and it precedes the interest which the husband would otherwise have in it; and on being executed by the wife, overreaches any inchoate rights which as husband he would have at common law. Under such a power a wife could, even before the laws of 1848, 1849 and 1860, relative to the rights of married women, take a conveyance in fee to her separate use, with a power to convey to any one whom she might choose, for her own benefit; and thus a very proper marriage settlement could be made without the intervention of trustees. (Wright v. Talmadge, 15 N. Y. Rep. 313.)
We have seen in a preceding chapter, (see Part 2, ch. 2,) that by the 110th section of the article on powers, the disability of coverture, in respect to the execution of powers, is completely taken away, and a married woman may without the concurrence of her husband, execute, during coverture, any power which may be lawfully conferred upon any person, unless the instrument creating the power forbids its execution during marriage.
The 80th section, before adverted to, relates to a general and beneficial power, given to a married woman, &c. What constitutes a general and beneficial power is sometimes open to controversy. In Jackson v. Edwards, (22 Wend. 498,) where an estate was granted during the joint lives of a husband and wife, with power to the wife of appointing the fee either by deed or will; and if she died before her husband, without executing the power, the estate to go to her issue; and in default of issue, to her right heirs—she taking the absolute fee if she survived her husband; it was held that the wife had a general and beneficial power, within the provisions of the statute, of appointing the fee. (S. C. 7 Paige, 386. Frazer v. Western, 1 Barb. Ch. 240. Wright v. Talmadge, supra.)
We have seen that trusts in marriage settlements may be so creWILL.-19
ated that the property is inalienable until the purposes of the trust have been accomplished. In such a case the wife is relieved from all importunity from her husband, because such importunity would be fruitless. But in a country like ours, where the condition of affairs is constantly changing, and where the interests and happiness of all parties may be greatly benefited by a change of domicil from one part of the country to another, it may well be doubted whether there is not more lost than is gained by the unalterable stability of a settlement. Few persons desire to be absolutely confined to one spot, however desirable in itself, and no one can anticipate all the exigencies that may arise in the affairs of any family. In settlements where the wife has the disposition of her estate during coverture, as well as in cases arising under the late acts of 1849 and 1860, she can always, by uniting with her husband in the deed, convey an indefeasible title to the estate. She may execute a mortgage of her own estate, under a power reserved to her in a marriage settlement executed previous to the marriage. (Leavitt v. Pell, 27 Barb. 322.). In the last mentioned case, the wife, by a marriage settlement executed in 1827, in effect reserved the right and power to sell and dispose of her real estate included in the settlement as she should think proper, and as if she were a feme sole; and to revoke the uses and trusts contained therein, and to declare new uses and trusts, by deed under the hands and seals of herself and her husband. In 1834, a tripartite indenture was executed by P. the husband, as party of the first part, Mrs. P. of the second part, and S., the trustee of the wife, of the third part, by which, after reciting the seisin of S. in trust for Mrs. P. of certain lands, subject to powers of revocation and appointment of new trusts, the employment of her separate estate to buy the same, and an agreement to revoke such trusts, and that the same should be held by S. upon the trusts thereinafter mentionedthe parties of the first and second parts to carry such agreement into effect by virtue of all the powers vested in them, revoked all existing uses, estates, trusts, powers and limitations, in respect to such lands, other than those intended to be executed, limited and appointed to the use of S. the said premises upon the trusts therein mentioned ; and conveyed the same to him in fee, upon such trusts, to wit: 1. To receive the rents thereof and apply the same to Mrs. P.'s separate use, free from the control, debts or engagements of any husband of her's. 2. After her death, to convey such premises as she should direct by last will and testament, &c. and in default of such
appointment, to receive the rents thereof and pay the same to Mrs. P. for life. 3. After the death of both Mr. and Mrs. P. and in default of such appointment by her, to her issue, and in default of issue to her heirs. This instrument also contained this proviso, viz: That Mrs. P. might, notwithstanding her coverture, with the consent of Mr. P. if living, or alone if he were dead, by deed, mortgage, charge, or make chargeable, such premises, with and for the payment of any sum and sums of money, &c. It was held by the supreme court in the first district, that this deed or instrument was a disposition and revocation within the meaning of the marriage settlement of 1827, as to the premises mentioned therein; and that by it, and as a part of such disposition and revocation, Mrs. P. reserved the power to mortgage the said premises with the consent of her husband. And the husband and wife, and S. the trustee, having subsequently joined in executing a mortgage to the North American Trust and Banking Company; it was further held, that such mortgage was a proper execution of the power, and was valid; the assent of the busband being shown by his executing the same, and the legal title being conveyed by S.'s execution thereof.
In general the marriage articles should be executed by parties able to contract. The rule seems to be universal that all deeds, or instruments under seal, executed by an infant, are voidable only, with the single exception of those which delegate a naked authority, which alone are void. (Bool v. Mix, 17 Wend. 119. Gillett v. Stanley, 1 Hill, 121.) The objection to the validity of a marriage settlement on the ground that the parties were infants, can only be made by the parties themselves. It cannot be raised by the trustee. Such instrument is not void, but voidable only. (Jones v. Butler, 30 Barb. 641.)
Although the whole real and personal estate of the wife be secured to her separate use, the husband is notwithstanding bound to maintain her and family during coverture. (Meth. Ep. Church v. Jaques, 1 John. Ch. 450.) Nor do either of the acts of 1848, 1849 or 1860, relieve the husband from his liability for the torts of his wife, or derogate from his power of personal control over her. (Hasbrouck v. Weaver, 10 John. 247.)