
    
      RION vs. RION’S SYNDICS,
    
    
      ante 341.
    Former judgment confirmed.
    In this case, the judgment of the parish court was affirmed, at May term last: but on the application of the plaintiff and appellant a rehearing was granted.
    East’n District.
    Feb. 1817
    
      Livingston for the plaintiff.
    The court seem to think that the estate, brought by the wife in this case, was not dotal, on account of the expression in the contract, les futurs époux déclarent n’avoir quant a présent rien a se constituer. This expression will however, I believe, be found on examination to relate chiefly, if not solely, to the husband, from what follows in the same sentence, as the reason for the declaration, viz. le futur époux, ainsi que le citoyen Rion son père, ne jouissant d’aucun revenu: without saying any thing of the future wife’s want of funds. Then immediately follows a power from her to her husband, to collect the sums that might be due to her, giving him full powers to receive the money and sell her estate, to compound, &c. &c. sans ètre tenu d’en faire emploi, ni donner caution; she contenting herself, de sa solvabilité et de la reconnaissance que le citogen futur époux sera tenu de lui faire, des domines qu il recevra de son chef, sur tous ses biens présents et avenir, sur lesquels, a raison de ce, la citoyenne future épouse aura hypothéque a compter de ce jour.—These dispositions clearly shew that from the moment of the marriage, the husband was invested with the power to recover all the monies due to the wife, and to make use of the same, without investing them for her benefit, sans etre tenu d’en faire emploi ni de donner caution, and without being liable to give any other security than the receipt: la reconnaissance que le citoyen futur époux sera tenu de donner.
    
    This whole transaction then brings the estate of the wife precisely within the definition of the word dot; a sum of money brought by the wife into marriage, and paid to the husband, to support the matrimonial charges, for which his estate is liable after the dissolution of the marriage—quand meme (according to the authority cited by the court) la constitution ne serait pas expresse, qu’on n’aurait employé ni le terme de constitution, ni celui de dot. It is necessary, however, says the same authority, that there should be a contract, from which it may evidently appear that a dot has been paid or promised: whatever may be the terms of such contract. Here there is a contract! And from this contract, it evidently appears that the wife’s estate was to be paid to the husband in a manner, and for purposes not essentially different from a dot; and that he did actually receive and use it for such purposes. If the sums due, to Mrs. Rion, were not paraphernal: they must be dotal. But they were clearly not paraphernal: the essence of that kind of property is that the wife may have the exclusive management of it; but here by her contract she could not do this: suppose she had called on her husband, as soon as he had received it, to invest it for her use, he could reply that she was precluded by the contract, that he was impowered to receive it, sans etre tenu d’enfaire aucun emploi, that she could not even ask security, and she had bound herself to be content with his simple reconnaissance.
    
    The law, then, expressly discarding forms here, not requiring the technical words dot or constitution to be used, but looking only to the substance, there would be a constitution of dot, even if the word had not been used; but it is found in the contract. In the last page we find a covenant that if the husband dies first, the wife shall enjoy the estate and receive the profits, jusqu’a ce qu’elle soit entierement remplie de ses droits dotaux et conventions matrimoniales, Here then is a clear expression of the intent of the parties, even if it were doubtful before.
    In support of the plaintiff's case, permit me to add that there is good authority for the position, that according to the custom of Bordeaux, all the wife's property is dotal. Bien que par la coutume toas les biens de la femme soient censes dotaux. Same point, coutume de deaux 242. Dic. de jurisp. verbo dot. Il est de meme des biens paraphernaux que d’autres biens. Coutume de Bordeaux, 203. This point perhaps might be illustrated by further authorities.
    Another question that may arise, and one of importance is this, whether the wife is obliged to look to the real estate of her husband, which was mortgaged for her rights, when he has alienated it; when there is personal property belonging to his estate, on which there is no particular privilege, sufficient to pay her—one reason for this doubt arises from an authority in the coutume de Bordeaux, 202. Where it is said the wife must first discuss the estate of the husband, before she can recur to the real estate in the hands of a purchaser. Now to what purpose this discussion, unless she could be paid out of the estate?
    
      Seghers for the defendants.
    The plaintiff claims the privilege of receiving the amount of her claim, in preference to the mass of her husband’s creditors: she must therefore be held to a strict proof of the fact upon which this preference is to be obtained—it does not suffice to shew the probable existence of the fact, that there was a dot constituted.
    In our humble opinion, the marriage contract shews, that there was no constitution of dot before marriage, and nothing shews that any was constituted afterwards. The parties expressly declare, that for the present they are without any property to be constituted as a dot. The reason as to the husband is alleged, because neither he nor his father have any revenue. It is true the contract is silent as to the reasons which induce the wife not to constitute any dot to herself. It is, however, clear that none was then constituted.
    The plaintiff’s counsel, however, contends that as the husband was authorised to collect the monies due to the wife, without giving any security, and without being compelled to lay out the money, in the purchase of a real estate, he was authorised to make use of the same, and therefore the said debts constituted a dot.
    
    The dot does not include all the property of the wife; but only such as is constituted in dot, in the marriage contract, or during the marriage: the rest is paraphernal or adventitious. The circumstance of the wife suffering this kind of property to be collected and managed by the husband does not alter its nature: and the right which she has to demand an account of it, and afterwards to receive the proceeds, differs widely from the right which the law gives her for the recovery of dotal property.
    The circumstance of the husband being authorised to collect the wife’s debts, and his exemption from any obligation to give surety, or invest the proceeds in real property, does not at all raise a presumption of any intention of the parties to make it dotal. Had such an intention existed, it would have been easy to make the constitution: for property in action may make part of a dot constituted. But the contract expressly says, that this property in action was not for the present to be constituted as a dot. Nothing shews that any posterior act has made it so.
   Derbigny, J.

delivered the opinion of the court. The object of this court, in granting a re-hearing in this cause was principally to give to the appellant an opportunity of objecting to a quotation from a French work, referred to by the court, tho’ not introduced by either of the parties. At the same time, the claim being represented as of vast importance to the appellant, we consented to have another argument on the whole case.

It is therefore important to decide, whether the coutume de Bordeaux gives to married women a privilege on the estate of the husband for the reimbursement of the dowry, as the plaintiff contended and the defendant seemed to admit on the first hearing of this cause, or whether, as is now asserted no such privilege is enjoyed: altho’ it may be proper to observe, that upon an inspection of the passage, quoted by the appellant from the coutume de Bordeaux, we are inclined to think that no such privilege existed there when the book was written: for the author expressly says, that the law assiduis, C. Qui potior in pign. (the very law which recognises such a privilege) does not prevail in the province.

The appellant has not thought proper to oppose the quotation made by the court from the jurisprudence du parlement de Bordeaux, but her counsel acknowledging it to be law in that country, has endeavored to shew that the general tenor of it is favorable to her cause. We see however, no reason for altering our first apprehension of that authority, and still think that the marriage contract of the appellant contains not what is thereby deemed equivalent to an express constitution of dowry, viz. something from which it may appear that a dowry was brought, given or promised.

It is ordered, that the former judgment of court remain undisturbed.  