"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 moveable property everywhere. But, as to "immoveable property in a foreign territory, it will, at most, "confer only a right of action, to be enforced according to "the jurisprudence rei sita (y).

(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 (z).

(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 moveables have no situs, or rather, that they accompany "the person everywhere. As to immoveable property, the "Law rei sita will prevail (a).

(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 moveable property; and, as to all immoveable property, the law rei sita (b).

(6.) "And here also, as in cases of express contract, the exception is to be understood, that the Law of the place "where the rights are sought to be enforced, do not prohibit such arrangements; for, if they do, as every nation has a right to prescribe rules for the government of all persons " and property within its own territorial limits, its own Law, "in a case of conflict, ought to prevail (c)."

(y) Story, s. 184.

(2) Ib. s. 185.
(a) lb. s. 186.
(b) Ib. s. 187.
(c) Ib. s. 188.

CCCCLIX. It remains to consider the Law of England upon the subject of this Chapter, which is not, in every respect, identical with the propositions laid down by Story.

The effect ascribed by that Law to a foreign marriage, must be considered, both as to Personal and Real Property. And, first it may be well to state, briefly, the Domestic Law of England-independently of any express contract-upon an English marriage with respect to both kinds of Property.

CCCCLX. Speaking generally, by the Common Law of England, all the Personal Property of the wife-how large that category is will be considered hereafter-whether it accrues to her before or after her coverture, is conferred by marriage, in the absence of express contract, upon the husband.

Practically, however, this rule of the Common Law seldom operates to the injury of the wife; for Courts of Equity allow the wife to have a separate and independent estate in whatever property or interest is secured to her through the medium of a trustee; provided, that the intention of the grantor be distinctly declared, that she should have it to her sole and separate use. And, if the wife become, during her coverture, entitled to any equitable property, not settled to her sole and separate use, though the Courts of Equity allow the husband to claim it as his own, they will not assist his claim, except on the condition of his making an adequate provision for her out of the fund, unless she already enjoys a competent settlement, or freely consents to its being paid over to him without condition.

CCCCLXI. As to that peculiar portion of Personal Property called chattels real, the law is, that, as to terms of years and other chattels real, of which the woman is possessed at the time of the marriage, or which accrue to her during coverture, the husband becomes, by the marriage, possessed of them in her right; and he is entitled, not only to the profits and the management during their joint lives, but he also may dispose of them, as he pleases, by any act during the coverture; and they are liable to be taken in execution for his debts; and, if he survives her, they are absolutely his;

but he cannot devise them by will: and, if he makes no disposition of them in his lifetime, and she survives him, they remain to her at his death, by virtue of her original title, and shall not go to his executors (d).

CCCCLXII. As to Real Property, the law is, that all freeholds of which the wife is seised at the time of the marriage, or afterwards, are by law vested in the husband and wife, during the coverture, in right of the wife. During their joint lives, the husband is entitled to the profits, and has the sole control and management; but cannot convey or charge the lands for any longer period than while his own interest continues. If her real estate be an estate of inheritance, whether fee simple or fee tail, and he had actual seisin thereof, and there has been a child of the marriage born alive and capable of inheriting the property, the husband, upon the wife's decease, becomes solely seised of such estate for his life, and is said, in that case, to be tenant by the courtesy of England. But, subject to these limited rights of the husband, the freeholds of the wife are not affected by the marriage, and continue to belong to her and her heirs (e).

CCCCLXIII. In England there are two modes of providing for the wife out of the husband's real estate :I. By Dower.

II. By Jointure or Settlement; that is, what has been called express contract.

1. Dower is the provision made by the Common Law, for the support of the wife, and the nurture and education of younger children.

It is thus described by Littleton (ƒ):-"Tenant in Dower "is, where a man is seised of certain lands or tenements "in fee simple, fee tail general, or as heir in special tail, "and taketh a wife and dieth, the wife, after the decease

(d) Stephen's (Blackstone's) Comm. vol ii. p. 300.

(e) Ib. p. 299.

(f) S. 36.

"of her husband, shall be endowed of the third part of "such lands and tenements as were her husband's at any "time during the coverture, to have and to hold to the

same wife in severalty by metes and bounds, for the term "of her life, whether she hath issue by her husband or no, "and of what age soever the wife be, so as she be past "the age of nine years at the time of the death of her "husband" (h).

CCCCLXIV. 2. The other mode of providing, in England, for the wife's maintenance, is by jointure, or settlement. "The rule of the Common Law, that the widow's acceptance "of a collateral satisfaction of or out of lands in which she "was not dowable, was no bar to her title to dower in those "to which that title attached (i), united with the inconve"nience which would have ensued after the passing of the

Statute of Uses (k), induced the Legislature, by that act. "to enable the husband to bar effectually the wife's right "to Dower, by making a provision for her before marriage "in lieu of it, and which is known by the name of her Join“ture" (1).

The statute enacted that where purchases or conveyances had been, or should be, made of any lands, tenements, or hereditaments, by or to the use of the husband and wife in tail, or to, or to the use of, one of them in tail, or for their lives, or the life of the wife, for her jointure, every woman married, having such jointure made, should not claim, nor have any title to Dower to the residue of the lands, &c., which at any time were her husband's by whom she had jointure" (m).

In the construction of this Statute, Courts of Law, having reference to the widow's title to Dower, in lieu of which

VOL. IV.

(h) Bright's Husband and Wife, vol. i. p. 321.

(i) Co. Littleton, 36 b.

(k) 27 Hen. VIII. c. 10, s. 6.

(1) Bright's Husband and Wife, vol. i. p. 433.
(m) Ib.

X

jointures were substituted, have required the jointure, as in time of commencement, certainty, interest, &c., to be as beneficial to the widow as her dower (n).

CCCCLXV. As to the application of this Law to aliens, it is to be observed that, formerly, in England, the wife of an alien, unless she was Queen Consort, was excluded from Dower. And, if she were made a denizen, her Dower did not attach upon estates previously disposed of by her husband, denization having no retrospective effect; but it was otherwise, if she were naturalized. Afterwards, all alien women, married by license of the king, were, by special statute, entitled to Dower in the same manner as English women. And now, by recent statute (o), the rights of natural born subjects are extended to all alien women married to any natural born subjects or persons naturalized (p).

CCCCLXVI. The decisions of the English Tribunals establish, as a maxim of English Jurisprudence, that where there is an express contract, it is governed, as to its construction, by the Law of the Matrimonial Domicil.

CCCCLXVII. In Dues v. Smith (q)-one of the early cases the Master of the Rolls, in 1822, made an Order that money belonging to the wife be paid to the husband, the parties being subjects of Denmark, and the Law of that country not requiring a settlement.

CCCCLXVIII. In the case of Anstruther v. Adair (r), it was decided by Lord Chancellor Brougham, in 1834, that where a contract is made between persons domiciled in a foreign country, and in a form known to the Law of that country, the Court, in administering the rights of parties under it, will give it the same construction and effect as the foreign Law would have given to it. Where, therefore,

(n) Bright's Husband and Wife, vol. ii. p. 435.

(0) 7 & 8 Vic. c. 66.

(p) Bright, on Husband and Wife, 322.

(9) Jacob's Rep. p. 544.

(r) Anstruther v. Adair, 2 Mylne & Keene, p. 513 (A.D. 1834).