
    FRANK v. HIRSH.
    Married Women ; Conflict of Laws ; Practice.
    1. A married woman living in New York and whose earnings are by the laws of that State her separate estate, may maintain an action in this District as sole plaintiff to recover a portion of such earnings loaned the defendant, although by the laws of this District such earnings, if she lived here, would belong to her husband.
    2. Where a case is taken from the jury, upon a motion v.hich is in effect a demurrer to the evidence, not only each fact testified directly to, but also every inference which may be fairly or reasonably deduced therefrom, must be considered as established.
    No. 305.
    Submitted May 25, 1894.
    Decided June 8, 1894.
    
      Hearing on a bill of exceptions by the plaintiff in an action of debt.
    
      Judgment reversed.
    
    The Court in its opinion stated the case as follows:
    By a statute of the State of New York, enacted in i860, a married woman may contract with respect to her separate estate, carry on a trade or business, and perform labor and services on her sole and separate account, and the earnings therefrom shall be her separate property, and may be invested in her own name. This statute is more liberal than the act of Congress regulating the property rights of married women in the District of Columbia, under which it has been held that a wife’s earnings do not become her separate property. Seitz v. Mitchell, 94 U. S., 580.
    Plaintiff, Rose Frank, a married woman then and at the time of bringing suit, lent defendant, SolPmon Hirsh, $1,000 on October 11, 1881, in the city of New York, where she and her husband resided. Upon default in payment after demand, she brought an action in her own name to recover the money loaned, alleging that it was her separate property and estate. If the loan was made of money belonging to her separate estate, she had the right to bring the suit in her own name, without joinder of her husband, in the courts of this District. R. S. D. C., 729.
    The plea of defendant put in issue plaintiff’s claim that the money was her separate estate and property. Plaintiff’s testimony showed that she and her husband were poor when married; that she engaged in the business of dressmaking and earned the money therein which she had saved and invested. There was no attempt at contradiction. The defendant concluded that both the right and the remedy must be determined by the law of the District of Columbia, under which the earnings of the wife, not being her separate estate, could not be recovered in an action by. her. This view prevailing in the court below, the jury were instructed to return a verdict for the defendant, upon which judgment was rendered.
    
      
      Mr. Samuel F Hyman for the plaintiff in error.
    
      Mr. Leon Tobriner for the defendant in error.
    1. The plaintiff’s cause of action being money realized and acquired as the result of her labor and earnings while covert, the suit is not in relation to her sole and separate estate, as defined by the law in this jurisdiction. Sec. 727, R. S. D. C.; Gerald v. McKenzie, 27 Ala., 170; Peckens v. Oliver, 29 Ala., 530; King v. Martin, 67 Ala., 183; Bailey v. Pearson, 29 N. H. Under the laws of this District her earnings, as at common law, belong to the husband, and are not separate property. Married women’s property acts which do not specifically mention her earnings do not change the husband’s common law rights to the same. Syme v. Riddle, 88 N. C., 465 ; Hoyt v. White, 46 Maine, 46 ; Elliott v, Bentley, 17 Wis., 613 ; Bear v. Hays, 36 Ill., 281 ; Farrell v. Paterson, 43 Ill., 57 ; Duncan v. Roselle, 15 Iowa, 502; Cramer v. Redford, 17 N. J. Eq., 377; Merrill v. Smith, 37 Maine, 394; Schouler’s Dom. Rel., Sec. 162. And so the statute in force in this jurisdiction has been construed not to affect the common law right of the husband to the wife’s earnings. Seitz v. Mitchell, 94 U. S., 584, 586; Edwards v. Entwisle, 2 Mackey, 58; McCormick v. Ham-mersley, 1 App., D. C., 313.
    2. If the New York statute of i860, relied upon by appellant, can be invoked (which is, however, denied), there is nothing in the record or proof which discloses that the earnings of the plaintiff were affected by that act, nor is there any proof whatsoever which brings plaintiff within its operation. Woodbeck v. Havens, 42 Barb., 66; Switzer v. Valentine, 4 Duer, 96; Ryder v. Hulse, 24 N. Y., 380; Stokes v. Macken, 62 Barb., 145 ; Savage v. O'Neil, 42 Barb., 378; Waldron v. Ritchings, 9 Abb. Pr., N. S., 360; Arnold v. Bernard, 8 Abb. Pr., N. S., 116. If the wife desires to bring herself within the exceptions and provisions of a “ separate property act,” the evidence must be such as to bring her strictly within its meaning and protection. Neale, Admr. v. Hermanns, 65 Md., 474-477 ; Flynn v. Walsh, 4 Cent. Rep., 157; Poffenberger v. Pof-fenberger, 72 Md., 321. ■
    3. The right of the plaintiff to' sue and recover in her own name involves a question of remedy only, and must be governed by lex fori and not by the law of the domicile or of the place of making the contract. Scudder v. Bank, 91 U. S., 412, 413; Pritchardv. Norton-, 106 U. S., 129; Willard v. Wood, 4 Mackey, 538; Lodge v. Phelps, x John. Cas., 139; Hayden v. Stone, 13 R. I., 106. In the light of 'the New York decisions, comity does not require that an extraterritorial effect should be given the New York statute as against citizens of this jurisdiction. Kansas City Packing Co. v. Hoover, 1 App. D. C., 268.
   Mr. Justice Shepard

delivered the opinion of the Court:

The law of the forum unquestionably governs the form of the action, the manner of enforcing the right and, in fact, all matters affecting the remedy. At the same time it is equally true that the interpretation and validity of contracts, save in exceptional cases not necessary now to be considered, are to be determined by the law of the place where the contract is made. It is hardly necessary to cite authority for these propositions. Bank v. Donnally, 8 Pet., 361 ; Wilcox v. Hunt, 13 Pet., 378 ; Scudder v. Bank, 91 U. S., 406; Pritchard v. Norton, 106 U. S., 124.

For example, if this were admitted to be separate property of the plaintiff, but the law of this District would not permit her to sue in her own name without joining her husband, it would have to be obeyed. Or if the law of New York required that in suits to recover her separate estate the husband should be joined as a party plaintiff, the suit could nevertheless be prosecuted here by her alone, under the provisions of our statute. But the statute or rule of law prevailing here has no bearing whatever upon plaintiff’s right in or ownership of the money which she lent to defendant. She was not a resident of the District of Columbia; she did not earn the money here; she did not even send it here for investment, though had she done so it would not have affected her right. She lived in New York; her earnings were made there, and the law of that State made them her sole and separate property. She had an absolute vested right of property in the money which she loaned to defendant. No subsequent statute of her own State could have taken it away. Holmes v. Holmes, 4 Barb., 295 ; Westervelt v. Gregg, 12 N. Y., 202.

By what authority can it be claimed that the law of this jurisdiction has the effect to change the ownership of this property; to take it from the wife and vest it in her husband? Nothing less than her own voluntary act could divest her title. It is beyond the power of Congress as well as of other legislatures to do so. It is a generally admitted rule of law that the law of the place of the marriage governs the rights of the parties in respect of all personal, movable property wherever situated. Story on Conflict of Laws, Sec. 159; Wharton, Id., Sec. 197. It has been held, too, that where property has passed, or been conveyed, to the wife by an antenuptial contract, executed and recorded in compliance with the law of the domicile, or place where made, the title follows the property into another State, to which the domicile has been changed, and protects it from the innocent purchasers or creditors of the husband, notwithstanding the registration laws of the State to which both the property and the domicile have been removed. De Lane v. Moore, 14 How., 253; Bank v. Lee, 13 Pet., 107; Hicks v. Skinner, 71 N. C., 539. A fortiori, it ought to be held that property, or a right of action for property, vested in the wife by the high authority of the statute of the State itself, in which she and her husband live, follows the property into another jurisdiction where the right'is asserted, not against a creditor or innocent purchaser of the husband, but against the borrower of her money, who, without shadow of excuse, resists the payment of a just debt.' It is conceded that the case in the court below was made to turn upon this question of law alone; hence, probably, the bill of exceptions presents but a meagre statement of the evidence.

The point is now made, for the first time, that without regard to the question of law aforesaid, the evidence is not sufficient to show that plaintiff has brought herself within the protection of the law of her domicile. It is contended that the plaintiff must be held to strict proof of each and every fact and circumstance necessary to show that her claim is within that law. The evidence, as we have said, is rather general and indefinite; but we see no good reason why greater strictness of proof should be required in this case than in others where parties seek to bring themselves within the scope and operation of a remedial statute enacted in furtherance of natural right and justice. On account, however, of the manner in which the question presents itself here, the very opposite of the rule contended for applies. Where a case is taken from the jury, upon a motion which is in effect a demurrer to the evidence, not only each fact testified directly to, but also every inference which may be fairly or reasonably deduced therefrom, must be considered as established. Taking the actual facts as to the residence of the parties, the earning of the money, the time and place of the loan in connection with the age of the statute, it is not unreasonable to assume that the right had its origin since the enactment of the statute — A. D. 1860.

For the error pointed out hereinabove, the judgment must be reversed, with costs to the appellant; and the cause remanded for further proceedings not inconsistent with this opinion; and it is so ordered.  