
    Hiram Fowler vs. Thomas P. Kell, Guardian of Joseph F. Sessions.
    Upon the principle, that, all other things being equal, the person, or the guardian of the person entitled to the largest distributive share of a deceased person’s estate, will be entitled to the administration thereof, the husband will generally have the right to administer upon his deceased wife’s estate ; but if he be excluded from the right of property, he will also be excluded from that of administration.
    A widow having a child by her first marriage, being .about to contract a second marriage, entered into an agreement with her expected husband, to the effect, that all her property, real and personal, should remain as if the marriage had never taken place ; that she should have the right to sell and dispose of it without his consent; the husband to manage but not dispose of the property, and to account for the profits annually; the parlies married in 1844, and the wife died in 1847, having no child by her second husband ; in a controversy between the second husband and the guardian of the child by the first, for administration upon her estate, the court held, that the guardian of the child was entitled to it; the marital rights of the husband were controlled by the contract; by that the husband was absolutely excluded ; the property was to “ remain as if the marriage had never taken place.”
    And it seems that if the rights of the parties were regulated not by their contract, but by the act of 1839, in relation to married women, as modified by that of 1846, the same result would take place ; the husband took no such vested interest, under the act of 1839, in the property of the wife, as to prevent the operation of the subsequent act of 1846 in relation to it.
    On appeal from the probate court of Franklin county; Hon. James M. Jones, judge.
    Thomas P. Kell, the guardian of Joseph F. Sessions, filed his petition for letters of administration on the estate of Edna Fowler, the mother of his ward. The petition shows that the ward is a child by a former husband; that her husband, Hiram Fowler, still survives; that on the first of February, 1844, Fowler and wife, prior to their marriage, entered into a marriage contract, by which they agreed “ That the property, whether real or personal, belonging to the said Edna, should remain as if the said marriage had never taken place; that the said Edna, by said contract, retained the right to sell or otherwise dispose of the same, without the consent of the said Hiram Fowler. And she also agreed thereby, that the said Hiram Fowler should have the right to the management of the property, and should not sell the same without her consent; but that he, the said Hiram, was to lay opt the net yearly proceeds of such property, for the use and benefit of said Edna, and to account for the same to her.” The petition states by this agreement, “ Fowler relinquished all the present prospective and future interest in the title to the estate of said Edna Fowler, deceased,” and claims all of the estate in distribution after the payment of debts, and prays a grant of letters of administration. An amended petition states that Mrs. Fowler died on the 23d December, 1847, and that Kell is her brother.
    Fowler answered the petition, admitting the facts set forth,, but denying their effect.
    
      He also filed an independent petition, claiming the right to administer.
    The court below decided that the husband was excluded, and he appealed.
    
      J. Marshall, for appellant.
    1. I insist that marriage is a civil contract. That the rights and duties of husband and wife, reciprocally, grow out of this contract, and do not originate in its dissolution. Dixon v. Dixon, 4 La. R.; 4 Wheat. 696.
    That the act of marriage, at the common law, was per se an absolute and unconditional gift and transfer, or legal assignment to the husband, of all the personal property of the wife in possession, or reduced to possession, during coverture. 2 Black. 433; 2 Kent, 134,143; Story’s Conflict of Laws, § 423; Wade v. Grimes, 7 How. 425; 3 Ib. R. 394; Roper on Husband and Wife, (Library ed.) 108.
    2. I insist that in case of special marriage contract, that “The husband takes every thing given by the law, and not expressly or at least necessarily excluded by the special agreement.” 7 S. & M. 806 ; Williams v. Claiborne, 7 lb. 488.
    3. I insist that the marriage agreement in this case, operated, during coverture only, to suspend the husband’s right to the proceeds, and to reserve to the wife a power to dispose of the property, without the consent of her husband. That the first ceased with the death of the wife, and the second never having been exercised by the wife, the property is to be governed by the law, as though no special contract had been made. Kim-ball v. Kimball, 1 How. 532; Stewart v. Stewart, 7 Johns. Ch. R. 229. The contract in the case of Kimball, is, in legal effect, identical with the one at bar. 4 Desauss. Eq. R. 456, and authorities cited.
    4. I insist that the husband having had the possession of the property, and the right thereto, prior to the repeal of the 4th and 5th sections of the act'of 1839, did not and could not lose the right to continue that possession, by the repeal of the law in 1846. 2 S. & M. 165, and 5th section of act of 1839.
    
      I insist that the husband’s common law right, as survivor or in remainder, was vested under the act of 1839, and could be made to yield only in favor of his own child, had there been one, on the death of its mother. Stewart v. Stewart, 7 John. Ch. Rep. “ The right as survivor, is a fixed and stable right.” 4 Kent, Com. 201. '
    I insist that the legislature had no intention of applying the act of 1846 to a case such as this; to a marriage which had taken place, and to property which had been acquired, and possessed, prior to its passage. Snyder v. Snyder, 3 Barbour’s N. Y. S. C. R. 621; Magee v. Ford, 5S.&M. 769.
    That’ the act of marriage, in 1844, was an entire disposition of the property, as well after as. during the coverture. It, (the marriage,) under the act of 1839, appointed a successor, and left nothing for the statutes of descent or distribution to perform.
    The act of marriage, under the act of 1S39, constituted the husband and wife joint tenants by entireties with all the incidents of that estate, at the common law. ■ 2 Kent, 132 ; 4 lb. 362; 2 Black. 182; Rogers v. Benson, 5 John. Ch. Rep. 437; Shaw v. Hearsey, 5 Mass. Rep. 520; Fox v. Fletcher, 8 Mass. 274; Green v. King, 2 Black. Rep. 1211; Coke on Litt. 326 a; 5 T. R. 652.
    Marriage is a contract which imposes a multitude of duties on the husband, and,' on principles of natural justice, his rights should be of no stinted nature. “ The laws in existence, at the time a contract is made, are necessarily referred in all contracts, and form a part of them, as the measure of obligation to perform them by the one party, and the right acquired by the other.” 2 How. S. C. R. 612; 4 S. & M. 496; Dixon v.' Dixon, 4 La., and 4 Wheat, first cited.
    Had there been an express contract, in the absence of the act, embracing literally the act of 1839, it is impossible to doubt but the husband would hold the property. But there was an implied contract, equally binding, and one which the petition shows was executed before the repeal.
    By the very letter of the law, or the express terms of the executed contract, the property on the death of the wife was to remain with the husband, or -go to his children, had there been any; to the one or the other of these, at all events, and against every contingency. 4th sect, of act of 1839.
    By the act of 1846, the husband in this case is excluded in toto, and the property acquired and held under the faith of previous laws, without any default of the husband, without any notice to him, is transferred to one, who, under all previous laws, was excluded, and carefully, too, as an entire stranger. •
    To give the act such an effect is to make it operate retrospectively,— a construction universally condemned. Gilmore v. Shooter, 2 Mad. Rep. 310-; Elliot v. 1/yell, 3 Call’s Rep. 279; Aiken v. Rob, 12 Serg. & R.; U. States v. Sch. Peggy, 1 Cranch, 103; Dash v. Vankleelc, 7 John. 477; 1 How. (Miss.) Rep. 192; Hooker v. Hooker, 10 S. & M. 599; Steivart v. Davidson, lb. 351; Whitman v. Hapgood, 10 Mass. Rep. 444.
    The legislature, had they intended it, had no power to make the law apply. Const. U. S. Art. 1, § 10; Const, of Miss. Art. 1, 319; Fletcher v. Peck, 6 Cranch, 89; Terreit v. Taylor, 9 lb. 43; Wilkinson v. Leland, 2 Peters, 657; Society, &c. v. New Haven, 4 Wheat. 464. Opinion of Justice Story, as to a marriage under the faith of existing laws, and the effect of a repeal. Dartmouth College case, 4 Wheat. 696 ; 8 S. & M. 56 ; Dixon y. Dixon, 4 La. Rep.
    
      Montgomery and Boyd, for appellee.
    The right of Sessions, the ward of Kell, the petitioner, to be regarded as the representative of his mother, is clear,
    1. Under the law.
    The 6th section of the act of 1846, Hutch. Code, 498, altered the rule of descent enacted in 1839. Hutch. Code, 497, § 4.
    The only question, then, would seem to be, Was this her separate property ? and that leads to the second ground of Sessions’ claim.
    . 2. Under the marriage contract, this property was the separate property of Mrs. Fowler before her marriage; and until her death, the law of “descents,” (which is the word used in the acts of 1S39 and 1846,) was liable to any change the legislature might choose to make. No right by descent can accrue, till the death of the party; and till that time, the law is subject to any change the law-making power considers expedient. The husband, claiming under the act of 1839, or the act of 1846, before quoted, must claim by “ descent,” and not by purchase.
    But besides being the separate property of the decedent, prior to her marriage, it was expressly saved to her by contract, and not left to the general law.
    The only inquiry under the contract, and upon this point, is, What would have been the right of Sessions, if his mother had died, without “said marriage ever taking place?” Precisely this right is secured by the marriage contract, so far as the property, or the distribution of it, is concerned.
    3. It does not require a conveyance, to secure a Separate estate to the wife. A covenant is as good as a conveyance; it estops the husband from claiming.
    4. The doctrine which controls this case, was settled at the last term, in a case involving the construction of the married woman’s laws of 1839 and 1846. Clark v. McCreary, 12 S. & M. 347.
    
      Mr. Marshall, for appellant,
    replied at length.
    
      D. Mayes, also, for appellant,
    reviewed the argument of Montgomery and Boyd.
   Mr. Chief Justice ShaRKEy

delivered the opinion of the court.

The question to be determined in this case, is, yiho is entitled to the administration on Mrs. Fowler’s estate 1 Her husband, the appellant, or the appellee, who is a brother of the deceased, and guardian of her only son, by a former marriage. The right of administration has been discussed, with reference to the ultimate right of distribution, which depends upon the construction of a marriage contract. Mrs. Fowler was a widow, with one child, and prior to her marriage with Fowler, they entered into an agreement which provides that the property owned by her, whether real or personal, shall remain as if the marriage had never taken place, and that the wife should have the right to sell or otherwise dispose of the same without the consent of the husband. Fowler was to have the management of the property) but no right of disposition, and was bound to account for the profits annually. Mrs. Fowler had no children by her last husband, and died without having made any disposition of her property; and it is contended, that, as she failed to do so, her husband is entitled to it in preference to her son.

In the case of Langan et ux v. Bowman, 12 S. & M. 715, it was settled, that all other things being equal, the person, or the guardian of the person, entitled to the largest distributive share, was entitled to the administration. The husband, it is true, is generally entitled to administration, because of his right to the chattels real and personal property of the wife. Clancy, 11. But if he be excluded from the right of property, it would seem to follow that he should be excluded from the right of administration. In this case, both parties seem to be anxious to make the right of administration dependent upon the right of distribution, and in view of the decision referred to, we may with propriety place the right to administration on this ground.

It is contended, that the marriage contract only secured the property to the wife during her life, and that as she failed to dispose of it, under the power reserved to her by the marriage agreement, the right of the husband attached at her death. Under a contract less comprehensive and explicit, this rule might apply. But we must have a due regard to the language of the instrument. This is not an ordinary contract, by which the property of the wife was secured to her, with a power of disposition. If the language employed is to have any effect, it is something more. It was agreed that the property, whether real or personal, of the wife, should remain as if the marriage had never taken place. This language, it is said, was not appropriate for the purpose of passing or securing title. That may be true, but it operated as an entire renunciation by Fowler, of his marital right over the property, not only during the cover-ture, but afterwards, for that must be the effect of an agreement that the property should remain as though the marriage had never taken place. It will not do to say that this language was only intended to secure to the wife a separate property during marriage, because different language would be necessary to convey that idea, —something was necessary to qualify the general expression. There seems to be no room for construction, or doubt. These are words of entire exclusion. But it is said the language is qualified, and its meaning explained by the subsequent provisions. There is nothing, however, in them inconsistent with the intention that the husband should be entirely excluded. In the succeeding clause, the wife reserves the right to dispose of her property without the consent of the husband. This provision strictly accords with the idea of exclusion, and indeed gives strength to the previous expressions. Then again his power over the property was limited to the mere management, without the power to sell, and with an express provision that he was to account for the yearly profits. Although it be generally true that nothing is to be taken against the husband by intendment, yet it is equally true that in agreements made before marriage, in regard to the wife’s property, she being then able to contract, full effect must be given to the agreement, according to the intention. 2 Roper, on Husband and Wife, 179. Here we cannot mistake the intention. It certainly was not the intention to reserve a mere power of disposition.

It is not necessary to consider of the effect of the acts of 1839 and 1846, in relation to the rights of married women. This contract is the law of the case. But if these acts alone controlled the case, the result would probably be the same, as the husband had no such vested interest under the act of 1839, as that claimed for him. Clark v. McCreary, 12 S. & M. 347.

Judgment affirmed.  