66 'pany 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 "sitæ (b). 66 (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 pro"hibit such arrangements; for, if it do, as every nation "has a right to prescribe rules for the government of ali persons and property within its own territorial limits, its own Law, in a case of conflict, ought to prevail” (c). 66 66 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 [before the special legislation on this subject presently referred to], all the Personal Property of the wife, whether it accrued to her before or after her coverture, was conferred by marriage, in the absence of express contract, upon the husband. Practically, however, this rule of the Common Law seldom operated to the injury of the wife; for the Courts of (a) Story, s. 186. (b) Ibid. s. 187. Equity allowed the wife to have a separate and independent estate in whatever property or interest was secured to her through the medium of a trustee; provided, that the intention of the grantor were distinctly declared, that she should have it to her sole and separate use. And, if the wife became, during her coverture, entitled to any equitable property, not settled to her sole and separate use, though the Courts of Equity allowed the husband to claim it as his own, they would not assist his claim, except on the condition of his making an adequate provision for her out of the fund, unless she already enjoyed a competent settlement, or freely consented to its being paid over to him without condition. CCCCLXI. As to that peculiar portion of Personal Property called chattels real, the law was, that, as to terms of years and other chattels real, of which the woman was possessed at the time of the marriage, or which accrued to her during coverture, the husband became, by the marriage, possessed of them in her right; and he was entitled, not only to the profits and the management during their joint lives, but he also might dispose of them as he pleased by any act during the coverture; and they were liable to be taken in execution for his debts; and, if he survived her, they were absolutely his; but he could not devise them by will: and, if he made no disposition of them in his lifetime, and she survived him, they remained to her at his death, by virtue of her original title, and did not go to his executors (d). CCCCLXII. As to Real Property, the law was, that all freeholds of which the wife was seised at the time of the marriage, or afterwards, were by law vested in the husband and wife, during the coverture, in right of the wife. During their joint lives, the husband was entitled to the profits, and had the sole control and management; but could not convey or charge the lands for any longer period than while (d) Stephen's (Blackstone's) Comm. Book iii. chap. ii. his own interest continued. If her real estate were an estate of inheritance, whether fee simple or fee tail, and he had had actual seisin thereof, and there had been a child of the marriage born alive and capable of inheriting the property, the husband, upon the wife's decease, became solely seised of such estate for his life, and was said, in that case, to be tenant by the curtesy of England. But, subject to these limited rights of the husband, the freeholds of the wife were not affected by the marriage, and continued to belong to her and her heirs (f). [CCCCLXII.A. The law was in some respects modified by the two Married Women's Property Acts of 1870 and 1874, which among other provisions enacted that any property coming under an intestacy to a wife married after 9th August, 1870, and any earnings gained by a wife, should belong to her independently of her husband. Both these Acts were repealed by the Married Women's Property Act 1882 (g), which abrogated the ancient rule of the Common Law and practically placed a married woman with regard to acquiring, holding, and disposing of real or personal property, and making contracts binding such property, on the footing of a feme sole. The Act left untouched previously acquired interests of the husband in the case of a marriage contracted before the commencement of the Act (January 1st, 1883), and did not interfere with existing marriage settlements, nor with the power (except as to one point in favour of creditors of the wife) to make them in future. The Act applies to Ireland, but not to Scotland, the law of which country is regulated by a separate Act, passed in 1881, and containing analogous provisions (h). The passing of these Acts has so materially altered the law that it has been thought desirable to state all the (f) Stephen's (Blackstone's) Comm. ubi sup. [(g) 45 & 46 Vic. c. 75. (h) 44 & 45 Vic. c. 21.] propositions in §§ CCCCLX, CCCCLXI, & CCCCLXII in the past tense, though there are still transitional cases to which the old law applies.] CCCCLXIII. In England there are two modes of providing for the wife out of the husband's real estate :1. By Dower. 2. 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 (i):-" 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 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 66 'severalty by metes and bounds, for 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." [CCCCLXIV.A. (k) Before 1834 the right of Dower attached only to the legal and not to the equitable estates of the husband, and advantage was taken of this to defeat it by various devices of conveyancing. By 3 & 4 Will. IV. c. 105, Dower has been extended to equitable estates, but is made completely dependent upon the will of the husband. The law of Dower is now rarely called into force, being commonly superseded by the express contract of the parties. CCCCLXV.A. 2. What is known as a legal "Jointure " was first authorized by the 6th section of the Statute of Uses (1), under which Dower might be barred by the wife's (i) Section 36. (k) $$ cccclxiv. and cccclxv. of the former edition have been omitted, as the law to which they referred is obsolete. (1) 27 Henry VIII. c. 10. acceptance in satisfaction thereof, previously to marriage, of a competent livelihood of freehold lands and tenements to be enjoyed after the death of the husband for the life of the wife at least. This method fell into desuetude, and the section was repealed in 1863 by the Statute Law Revision Act. in Provision for the wife is now made, as a general rule, by express contract contained in settlements drawn up each case previously to the marriage.] 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 (p)-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 (q), 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, a domiciled Scotchman is entitled, in Scotland, by virtue of a Marriage Contract executed there, and in the Scotch form, to receive whatever property accrued during coverture to his wife, this Court will enforce his right, as against any such property coming within its jurisdiction, and will not raise an English equity for a settlement in favour of the wife, in opposition to the provisions of the Scotch contract. CCCCLXIX. In Byam v. Byam, in 1854, Sir John (p) Jacob's Rep. p. 544. (q) 2 Mylne & Keene, p. 513. |