Ordronaux v. Rey.

ORDRONAUX v. REY.

By a marriage contract executed in France by parties domiciled there, on the eve of their marriage, the wife under the provisions of the French law, put one-third of her fortune into community, and excluded the residue therefrom, which residue was to belong to her and be re-taken by her. The parties removed to New York, and the husband died there twenty years afterwards. He had taken and used in his business, the whole residue of his wife's property, as well as that of the community. At his death, he was in equity seised of and entitled to real estate in New York.

On a bill filed by his widow, claiming that the marriage settlement operated as a mortgage on his whole estate, and that she was entitled to priority of payment of all her demands arising under the settlement,

Held, 1. That according to the laws of France, if the parties had remained there, she would have had no preference over other creditors of the husband in respect of his movables, nor any lien by way of privilege over his immovables. She would have had a mortgage upon his immovables.

2. That although the courts here, construing the settlement according to the lex loci contractus, will give to her the same rights as a creditor, that the French law would confer; they cannot and ought not to yield to her over real estate situated here, a lien or priority unknown and repugnant to the laws and regulations of the country rei sitæ.

3. Creditors here are entitled to rely upon those laws for the administration of their debtor's estates.

4. The French Civil Code refuses to contracts made in a foreign country, the force of a mortgage in France; and international comity does not require us to pursue a different course.

5. That therefore the complainant, whatever was the extent of her rights as a creditor by reason of the contract of marriage, had no lien upon her husband's estate, nor priority over his other creditors.

August 2, 1844.

THE bill in this cause was filed on the 11th day of May, 1842, by Elizabeth Ordronaux, the widow of John Ordronaux, deceased. It set forth the marriage of those parties at Paris in the kingdom of France on the 13th of September, 1815; and that on the 1st day of September, 1815, in contemplation of that event, they entered into marriage articles or a settlement, before two notaries at Paris, in conformity to the laws of France. Both parties were natives of France, and were then residing there, though the husband was a sea-captain, residing usually at New VOL. II.

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Ordronaux v. Rey.

York. The first article of the settlement provided that the betrothed lady and gentleman would hold in common property they might acquire, according to the provisions of the French Civil Code, by which Code their community should be managed, regulated and divided, in whatever country they might subsequently reside or acquire property.

By the second article, they agreed that each should pay their respective debts contracted before marriage, and the same should not be a charge either upon the property of the other party, or on that of the community. The third article declared that the future husband brought to the marriage and constituted as his portion, 300,000 francs, viz. 298,000 in cash, and 2000 in the value of his clothing, &c. in use, which amount the future wife thereby acknowledged.

The fourth article declared that she brought to the marriage as her portion, 300,000 francs, viz. 294,000 in cash, and 6000 in the value of her clothes, laces, jewels and diamonds, &c. in her use; and the future husband thereby consented to be charged with the amount of such dowry.

The fifth to the eighth articles were as follows:

"Article Fifth. Of the said property each party shall contribute to the community heretofore established, the sum of one hundred thousand francs, which will make a fund of two hun dred thousand francs; and the surplus of the said portions together with what may subsequently come to each of the couple in personal or real property, by inheritance, gift, bequest, or otherwise, shall be excluded from the said community and belong to that one of the two who is entitled to the same, and be re-taken, besides his or her share, by him or his heirs or representatives.

"Article Sixth. The survivor of the future husband and wife, shall have and take as a preciput and before the division of the personal property of the said community, such articles as she may select, to the amount of sixty thousand francs, according to the appraisement in the inventory which shall then be made, or may take that sum in money at the election of the said survivor. The amount of the said preciput is not to be deducted from the gift hereinafter made.

"Article Seventh. If during the marriage, any inheritance or

Ordronaux v. Rey.

rents belonging to either of the said parties separately should be sold, or the said rents should be re-purchased, the money arising therefrom shall be re-invested in the purchase of other real estate or rents, which shall belong to the party whose property was sold, and to his or her heirs and representatives-however, if the said re-investment should not be made on the day of the dissolution of the said community, it shall be made in the property thereof, and should that not be sufficient for the re-investment of the funds of the future wife, she shall have them invested in the individual property of the husband. The action for which reinvestment shall be deemed a real action, and shall be the individual property of the party who shall be entitled to institute it, and his or her heirs and representatives.

"Article Eighth. The future wife and the children to be born of the marriage, shall have the right by renouncing the community at the time of its dissolution, should this community prove more onerous than profitable, to retake the whole amount of the portion brought by the said wife as herein before mentioned, together with whatever may have been acquired by her, during the continuance of the said community, in personal or real property, by inheritance, gift, bequest or otherwise, and should the wife herself make this renunciation she shall retake in addition to the preciput herein before agreed upon, the whole to be taken free and clear of the debts and mortgages due by the said community, even though it should be charged with or sentenced to the payment thereof, in which case the wife and her children shall be discharged therefrom, and secured and indemnified therefor by the husband, and out of his personal or individual property which is legally mortgaged for the entire fulfilment of the clauses and stipulations of this contract."

By the ninth article, each party made a gift to the other in case of survivorship, of all the property of the one who should first die; to be held by the survivor as a usufructuary for life, but without giving security or investing, and merely on giving a receipt and an inventory. In case there should be one or more children of the marriage living when the gift opened, then it should be reduced to one-fourth in full and entire ownership, and another fourth for life only to be held as before mentioned.

Ordronaux v. Rey.

By the tenth and last article, each party reserved the right of taking 50,000 francs from the gift stipulated in article ninth, to be disposed of by a last will and testament.

The bill further stated that the parties resided in France till 1818, when contrary to the complainant's wishes, they removed to the city of New York. There were several children of the marriage. That her husband converted all her property and the joint property to his own purposes, without her consent, and made investments in the names of others, to defraud her of her rights under the settlement. That for this purpose, he purchased in 1837, lot 24 Leonard-street in this city for $4000, and took the title thereof in the name of John B. Rey, who knew of his object in so doing. That in 1839, Ordronaux left the United States and died abroad in 1841, leaving a will made in 1827 of which his wife was the executrix, and by which he bestowed all his property as if he had died intestate. That all his estate was insufficient to make good to her the 300,000 francs which she brought to the marriage, or even the 200,000 which she kept for herself out of the community, and that she has other claims also growing out of the marriage articles. That she renounced the community after his death, by a proper instrument filed with the Surrogate in New York.

That Rey admits he has no interest in the lot in Leonard-street, except as trustee for John Ordronaux the son of the complainant and her deceased husband.

The bill prayed for an account by Rey, and that the title of the house and lot be couveyed to the complainant.

She subsequently filed a supplemental bill making Chastellain and Ponvert defendants, as lessees of the premises under Rey, who were indebted for rents accrued. Her son John was also made a party to this bill.

The answer of Rey admitted the principal matters stated in the bill. He alleged that the title of the house and lot was vested in him by Ordronaux, in trust for his son John. That he and the complainant lived unhappily, and were separated many years before his death. That he made the lease, and managed the premises himself till he left the country, and the rents have since accumulated, so far as they have been paid. Rey traversed the

Ordronaux v. Rey.

complainant's right and claim in all its parts; and he also set up as a bar, the statute against fraudulent conveyances.

Chastellain and Ponvert also denied her rights in their answer. They admitted the purchase of the house and lot by Ordronaux in Rey's name, and claimed the same under a lease for seven years from May 1, 1838, at $550 annually. That on the 1st of August, 1842, there was unpaid $1198 44 of rent, against which they claimed to set off a note they held against Ordronaux for $1830 41, dated in 1835. That Rey had distrained for the rent, and they had brought replevin for the goods seized, which action was still pending.

The marriage contract and articles were proved by testimony taken in Paris on a commission, and the Code Napoleon was made evidence by a stipulation. It was also proved that $60,000 was paid to John Ordronaux from the maternal estate of the complainant in June, 1815, in anticipation of the marriage.

The statements in the answers were substantially proved; and it was conceded that Ordronaux died insolvent if the complainant were a creditor for the 200,000 francs.

W. Curtis Noyes, for the complainant, made the following points.

I. By the contract of marriage and the laws of France which it adopts to the exclusion of all others, the plaintiff became and was at the death of her husband, and after the renunciation set forth in the bill, a preferred creditor to the amount of the original sum brought by her to the marriage, being 300,000 francs, (under article 8th,) and to the 60,000 francs, provided for in article 4th, together with her accumulations; and also to one-fourth of all his estate in absolute ownership, and to another fourth for life, under article ninth. (Code Napoleon, Civil, articles 1421, 1081 to 1090, 1441, 1442, 1453 to 1459, 1492 to 1495, 1503, 1514, 1515, 1525, 1597; Le Breton v. Miles, 8 Paige, 261; Decouche v. Savetier, 3 J. C. R. 190; Clancy's Rights of Women, 494, chap. 4.)

II. To secure to her these sums, and the other provisions of the marriage contract the whole estate was "legally mortgaged" to her by the concluding part of the ninth article of the mar