
    Ernestine Scheferling (by her next friend) v. William Huffman et al.
    An ante-nuptial contract entered into in Germany, according to the laws of that country, by which the husband, for a valuable consideration, agreed that all the property of the intended wife, which she then owned, or which they might mutually acquire during coverture, should be the property of the wife, is not contrary to the policy of our laws, and will be enforced in this' country.
    Such property can not be taken on execution in this country to satisfy the debt of the husband.
    Upon a bill in chancery, filed by the wife, by her next friend, for the purpose of enjoining a creditor of the husband from selling such property on execution, the court will, by injunction, restrain such sale.
    *Bill in Chancery ; reserved in Montgomery County.
    This bill is filed to restrain the sale of chattels, taken in execution as the property of the husband of the complainant, upon a judgment in favor of Huffman. She claims that the property is hers by virtue of an ante-nuptial contract, entered into in Germany by her and her husband, before they emigrated to this country, a translation of which contract is here inserted:
    [hessian revenue stamp.]
    Obernkirchen, March 31,1838.
    Present, the assessor of the court — Gleim.
    At our court-house appeared the miller and tenant, Henry Christopher Scheferling, from the windmill at this place, a native of Colshorn, district of Burgdorf, and kingdom of Hanover, thirty-two years old, as the betrothed of Ernestine Ebeling, widow of the windmiller Kunnecke, forty-two years old, and also from the windmill at this place, and stated as follows:
    Voluntarily, and without compulsion, we have resolved to enter into a matrimonial connection ; and whereas,
    1. My (Schoferling-’s) right to acquire property, and also that I am tenant at this place, is certified to in Appendix I; and whereas,
    2. My (Scheferling’s) father, the old father Heinecke, Christopher Scheferling, at Colshorn, has given his consent to this marriage, my mother being dead — all of which will appear from Appendix II; and whereas,
    3. My (Ernestine’s) mother, the unmarried Wilhelmine Ebeling, No. 9 at Rolfshagen, has also given her consent to this marriage, as will appear from Appendix III; and whereas,
    
      4. The appointment of a guardian for my (Ernestine’s) children by former marriage, in the person of the master saddler, Dietrich Trebein, and also the demise of my husband some eighteen months ago, is known to the court from the guardian’s docket; and whereas,
    5. The payment of the entrance money by me (Scheferling) appears from Appendix IV, and the payment of the hospital tax from Appendix V; and whereas,
    6. There exists no consanguinity between us:
    Therefore, we pray that this notice of our marriage may be confirmed .by the court.
    In regard to our property we agree as follows :
    1. That if I (Scheferling) should die first, my affianced (Ernestine) shall inherit all my property; but if, at the time of her death, there shall be children or descendants living from this marriage, she shall not deprive them of said property.
    2. That if I (Ernestine) should die first, he (Scheferling) shall receive annually for his support, and in full satisfaction for all claims for property acquired during our marriage,
    *a) The little by-house, for a residence;
    b) The use of the piece of land on which the by-house stands;
    
      cj Annually 20 himten of rye, weighing each from 48 to 49 pounds;
    d) Two himten of wheat, each from 53 to 54 pounds;
    e) Nine himten of barley, 42 pounds each;
    f) Twenty pounds of pealed barley;
    g) Twenty pounds of groats.
    If he, however, shall marry again, all these uses shall cease from the day of such marriage; and, in that case, he shall receive—
    a) One hundred thalers, if we should have been married five years;
    b) Two hundred thalers, if we should have been married ten years; and
    c) Four hundred thalers, if we should have been married fifteen years, and no more.
    Besides this, he shall have the use of his own property, but he shall not deprive the children which we may have of the same; and he shall have no claim whatsoever upon my (Ernestine’s) own property, nor upon that which we may acquire during our marriage.
    Finally, I (Ernestine), in order to prevent contentions between my children of the two marriages, declare it to be my will that all the property I own at present, and all the property which may be acquired during the continuance of this marriage, shall, after my decease, be divided in equal shares between my children of the first and of this marriage.
    Saddler Trebein, the guardian of the children of the first marriage, was present at the above declaration, and approved tbe same-in all respects.
    Read and approved. C. SCHEEERLING, Runneker, Dietrich Trebein, Mark X X X of the mother of Ernestine.
    Subscribed and closed est supra.
    
    
      In fidem. A. Gleim, Ph. Duntz.
    The prayed-for confirmation of tbe court is, salvo jure tertii, hereby granted eod quo supra.
    
    f Seal of Justiciary Court J Justiciary Court of tbe Electorate^ J. of Obernkireben, Elec- [• A. Gleevi, (_ torate of Hessen. J Ph. Duntz.
    Seen and approved by tbe Ecclesiastical Court, Obernkireben,. April 16, 1838. E. Meter, Pastor.
    
    By agTeement of counsel, certain questions touching tbe validity of tbe above contract were referred to tbe counsel for the-^Electorate of Hessen, at New York, who gives bis opinion in writing, as follows:
    “Ante-nuptial agreements are permitted, by the German law, to alter or modify tbe common rules concerning property, hereditary rights, and succession. If made as this agreement, such changes- or modifications are irrevocable by tbe one party, without tbe consent of the other. Stipulations as to tbe acquisitions of tbe married couple becoming the property of tbe wife are lawful, and may be enforced in tbe German courts.”
    
      Conover and Craighead, for complainant, made tbe following-points :
    I. Tbe validity and construction of tbe ante-nuptial contract are-to be determined by tbe laws of tbe country where -it was made. Wilcox et al. v. Hunt, 13 Pet. 178; Bank of United States v. Donnelly, 8 Pet. 361; Blanchard v. Russell, 13 Mass. 1; Story’s Con. Laws, sec. 242, and cases cited; Decouche v. Savatier, 3 Johns. Ch. 190; Story’s Con. Laws, sec. 145, a, secs. 276, 277, 278.
    II. By tbe laws of Germany, where it was made, it was valid,, and irrevocable by either party, without tbe free consent of the other.
    
      III. By the express terms of this contract, the complainant was ■to be, during her natural life, and surviving her husband, as exclu .sivoly as before marriage, the owner of all the property which she had at the time of marriage, and all the acquisitions of the married life; if this be not expressly provided, yet any other ownership of the property is utterly inconsistent with what is expressly agreed between the parties. When, from the terms of the gift, settlement, ■or bequest, the property is expressly, or by just implication, de- . signed to be for the wife's separate and exclusive use, the intention will be fully acted upon. Story’s Eq. Jur., sec. 1381.
    IY. If she did not retain the exclusive ownership, still she *has such an interest and estate in the property during her life, with power of disposition at her death, that the property can not, against her will, and in the absence of fraud on her part, be subjected to her husband’s separate debts.
    Y. Change of domicil does'not invalidate the contract, but, being an express agreement as to the present and future, it will be enforced by the courts of this state, unless it be against the policy of •our laws, in the meaning attached to that phrase by the courts. .Story’s Con. Laws, secs. 222, 246, 258, 259, 183, 184, 185, 187, and note, Secs. 178 and 143; Decouche v. Savatier, 3 Johns. Ch. 190.
    YI. Complainant has not voluntarily abandoned her rights under the contract; has not been guilty of active or passive fraud generally, or to respondent Huffman in particular; she was not a party to, or cognizant of, the contract between her husband and Huffman, ,and did not induce the credit to her husband. If she is to be deprived of her property in spite of this ante-nuptial contract, it must be by the mere stern operation of the policy of our laws, and without wrong or fraud on her' part.
    YII. This contract is not, in the accepted sense and force of the phrase, against the policy of our laws, but it is in accordance with the common law, and especially with the spirit and tendency of modern legislation, and decisions in this country and state, in reference to the separate rights and property of married women. Story’s Eq. Juris., secs. 1378, 1379 ; Reeve’s Dom. Rel. 162, note 2, and authorities there cited; Story’s Eq. Juris., secs. 1380, 1381; Reeve’s Dom. Rel. 162, 163, note 1, 164, 172, note 2, and cases cited; Merrit v. Lyon, 3 Barb., N. Y., 110; 13 Peters, opinion, pp. 594, 595; 10 Ohio, 371; Magniac v. Thompson, 7 Pet. 348; Reeve’s Dom. Rel. 1176, note, and cases cited; Ib. 165, 166; Meth. E. Church v. Jaques, 1 Johns. Ch. 450; Same ease, 3 Johns. Ch. 1, and 77; 18 Johns 548; Hardey v. Green, 12 Beaven, 182; 13 Jurist, 77, cited in 7 Harrison’s Digest, 711 (Sup. vol. 3).
    *T. I. S. Smith and Haynes & Howard, for defendant, made the following points:
    The agreement entered into by the complainant and her husband does not'vest in her the acquisitions of her husband; by it she could have no property in them during his life. Everything that is contracted for is upon the event of the death of one or the other of them. It seems clearly to be in the nature of a testamentary disposition. If it was the purpose of the parties to prevent the husband from acquiring any property, to make him his wife’s servant, without any wages, that purpose should appear without any doubt. 2 Story’s Equity, 608. If such a purpose were clearly expressed, a court of equity would hardly enforce the contract. 2 Story’s Equity, 602.
    If the contract is in the nature of a testamentary disposition, it can have no effect upon the husband’s acquisitions, so long as he and his wife are living, and simply disposes of what each has at the time of his or her death. The law of their domicil fixes the ownership of whatever is held or acquired by them, and that vests all in the husband, and is subject to the claims of his creditors.
    There may.be an interest for life in chattels, which is a right to the use only. But the use of such chattels as grain, hay, and fruit consists in the consumption. The use and the property can not exist separately. The right j;o the use of such things is, therefore, an absolute property in them. 2 Kent’s Com. 353. Nearly all the property taken in this case was of that description.
    The ante-nuptial contract has been abandoned and abrogated. The evidence disclosed in the testimony proves most strongly that the parties did not regard the contract as in force, when the levy was made. In equity, a married woman’s agreements with her husband are held valid, and may be enforced. 2 Story’s Equity, 601. Her rescission of such a contract as this should then be held valid.
    *By our law, a promise in consideration of marriage must be in writing, and signed by the party to be charged therewith, or it is void. This contract, though made in a manner more solemn, ■is not according to our law, not being signed by either of the parties, and should not be enforced in our courts.
    It ought not to be held operative here, because it is against the policy of our laws. Story’s Con. Laws, 158, sec. 182; lb. 95, ■sec. 9; lb. 85, sec. 87; lb. 33, sec. 33; lb. 29, sec. 28. By the policy of our laws, man is the head of our family, and has the ■charge and control of its affairs; all acquisitions of property vest in him. The right to acquire and hold, is an important incentive to industry and exertion. Here it is taken away entirely. Scheferlirig had'sold himself. It may do in Germanyfor a man to place himself in such a position, but when he becomes an American citizen, he should be emancipated, whether he will or not.
   Kenyon, J.

William Huffman obtained judgment in the court ■of common pleas of Montgomery county ag-ainst Henry Runnecke and Henry Scheferling, for about five hundred dollars, loaned to Runnecke, for the payment of which money Henry Scheferling was in fact but surety.

An execution was issued on this judgment, and the sheriff levied upon various articles of personal property, consisting of horses, cattle, etc,, as the property of Henry Scheferling. The bill in this case was filed by Ernestine Scheferling, by her next friend, against her husband, Henry Scheferling, William Huffman, the judgment creditor, and others, claiming that the property thus levied upon was her property, and not that of her husband, and praying that the court might so decree, and enjoin Huffman from making sale of the property.

Huffman answers, denying that the property belonged to the wife, and claiming that it in fact belonged to Henry Scheferling, and was liable to be taken in execution for his debts.

Testimony was taken in the case on both sides, and on the ^hearing in the common pleas, the court found the equity in the complainant, and decreed a perpetual injunction. The defendant, Huffman, appealed, and the case was reserved by the district court of Montgomery for the decision of this court.

In support of the complainant’s exclusive claim to the property levied upon, she introduced and proved by proper evidence, that, in the year 1838, she entered into an ante-nuptial contract with •her present husband, Henry Scheferling.-

This contract was duly entered into before the proper court in Germany, and was valid and binding in that country. The question of its validity in Germany was, by agreement of counsel, submitted to the German consul at New York, who decided that this was a legal and binding contract where made. The validity and interpretation of contracts are to be governed by the laws of the country where made.

When this contract was entered into, Ernestine was a widow of forty-two years of age, and her husband, Henry Seheferling, a man of thirty-two. She had property to the amount of several thousand dollars ; he had little or no property. She was the mother of five children by her first husband.

The contract, after reciting the various facts making it lawful to marry, has, among others, the following provisions: In regard to our property, we agree as follows : 1. That if I, Seheferling, should die first, my affianced Ernestine, shall inherit all my propertv, but if, at the time of her death, there should be children or descendants living from this marriage, she shall not deprive them of said property. 2. That if I, Ernestine, should die first, he, Seheferling, shall receive annually for his support, and in full satisfaction for all claims for property acquired during our marriage, (a) the little by-house for a residence; (6) the use of the piece of land on which the by-house stands ; (c) annually twenty himten of rye, weighing each from 48 to 49 pounds; (d) two himten of wheat, each from 53 to 54 pounds; (e) nine himten of barley, 42 pounds each; (f) 20 pounds of pealed barley; (g) 20 pounds of groats. If, however, he should marry *again, all these uses shall cease from the day of such marriage, and in that case he shall receive (a) one hundred thalers, if we should have been married five years ; (b) two hundred thalers if we should have been married ten years ; (e) four hundred thalers, if we should have been married fifteen years, and no more. Besides this, he shall have the use of his own property, but he shall not deprive the children which we may have of the same ; and he shall have no claim whatsoever upon my (Ernestine’s) own property, nor upon that which we may acquire during our marriage. Finally, I, (Ernestine,) in order to prevent contentions between my children of the two marriages, declare it is my will, that all the property which may be acquired during the continuance of this marriage, shall, after my demise, be divided in equal shares between my children of the first and this marriage.”

Tho first question made on this contract is to determine its proper construction. It is claimed by the respondents, that this contract relates only to a disposition of the property at the time of the decease of either or both the parties; that the contract relates to. property which may bo in existence at the time of the death of one or the other of the parties, and not to the title during marriage. We think such is not tho proper construction of this agreement. It is provided that if she should die first, he shall receive certain things, in full satisfaction for all claims for property acquired during-marriage; and again, if she should die first, and he marry again, he should receive so many thalers, but should have no claim whatsoever on her (Ernestine’s) own property, nor upon that which they might acquire during their marriage. It is very evident from this contract, that if Henry Scheferling had tho j>ower under -it to dispose of Ernestine’s own property, and the property acquired during marriage, the whole object of the contract would be defeated, and there might be nothing left of any kind, and the contract might as. well not have been made. The language of the contract gives her, in equally as strong language, the control and disposition of the-property acquired during marriage as of her own property; and for his relinquishment of *that property, if she should die first, a full satisfaction was provided for him in consideration of ■such relinquishment. But, in construing this contract, we do not feel it necessary to determine to whom belongs the property which he might acquire during marriage with her own means exclusively.

When the parties came to this country, he had little or no property. She had several thousand dollars in money, with which were purchased real estate, and the title; to take that, Scheferling should have a fee simple estate in an undivided portion of tho land after tho death of Ernestine. She made the contract; she had the money and took the deed, according to her views of propriety and right; her money purchased all the personal property, such as household furniture and farming utensils, etc.; and if his labor should, to a-certain extent, bo mixed up in some of the products of the farm,, which have been seized in execution, it is very evident that her own. money and means are also mixed with his labor, and that she has some interest in these articles, which are proposed to be sold as his property. It is property which they acquired by her means and his labor, and which, we think, upon a fair construction of this, contract, belongs to her exclusively.

It is however claimed, that by the sale of the by-house, etc., in Germany, and the conduct of the parties in this country, it maybe fairly inferred that they had abandoned the agreement. Ve are well satisfied, from the whole of the evidence, that the parties intended no such thing; that he considered her the owner of all the property, by virtue of the original contract, and consulted her, and, indeed, was wholly governed by her in all his sales and purchases; that he accounted to her for all the property he sold, of every kind, and that she furnished the money to make all the purchases.

Nor do we perceive that the execution of this contract in this country, according to the original intention, would interfere at all with the policy of our own laws.

*Henry Scheferling, when he entered into this contract, was capable of making such a contract. He considered that he had procured a sufficient consideration for agreeing to give her the whole of her own property, and all the property which they should mutually acquire during the marriage. He is still satisfied with that contract, and no good reason can be assigned why such contract should not be fully carried into execution as between the parties themselves.

Our conclusion is, that the property levied upon belongs to Ernestine.

Decree of injunction accordingly.  