Page:The English Reports v1 1900.pdf/480

By a marriage-contract, dated the 4th of April 1665, made in France, between the respondent Turst and Susan Menois his late wife, it was, inter alia, stipulated as follows: viz.

The intended man and wife shall be joint and common in all goods moveable, and acquisitions immoveable, pursuant to the custom of Paris: nevertheless, they shall not be bound for the dobts of each other, made and contracted before the celebration of the said marriage; and if there be any, they shall be paid by the party that has made and contracted them out of his own estate; and that the other party, nor his estate, shall be any wise obliged thereunto. In consideration of which marriage, the said Dannett, mother to the said intended wife, does promise to give down with her said daughter, as a marriage portion, the sum of 1200 livres tournois, besides cloaths, linen, and suitable apparel of her the said intended wife, for her, and for her own use; all which shall be delivered and paid unto him the said intended husband the night before the nuptials, One-third of which sum of 1200 livres tournois shall be cast in the community or joint stock; the other remaining two-thirds shall be the proper estate of the said intended wife, and of her heirs of her part; as also all which shall or may hereafter come to her the said intended wife, by succession, donation, or otherwise whatsoever. The survivor of either of the said intended husband and wife shall have and take by preciput, out of the moveable goods of the said intended community, the sum of 300 livres tournois, according to the estimate or inventory which shall be thereof made, without raising the value of such goods, or else the said sum in money, which shall be left to the survivor's choice. In case the said intended wife shall survive her said intended husband, it shall be lawful to and for her and her heirs, to renounce the said community, and take back all which she brought at her marriage, and what shall or may have come to her during the same, by donation, succession, or otherwise whatsoever as also, in case the said intended wife shall survive, neither her jointure or preciput shall be liable to the payment of the debts of the said community, although she should have obliged herself thereto, or had been condemned thereto.

The marriage soon afterwards took effect; but there being no issue of it, nor a probability of any, the husband and wife, in June 1680, entered into a second agreement; whereby, in order that the survivor might have the more plentiful subsistence, it was [130] agreed, that the survivor should have and enjoy the whole estate that was in common between them, according to the custom of Paris, provided there was no issue.

In the year 1689, Turst and his wife, on account of the persecution which then raged in France, fled over to England; and having been successful in trade, they brought part of their property along with them, to the amount of about £6000 sterling; but were obliged to leave a considerable part of it behind, and which was consequently lost.

In August 1694, Mrs. Turst died in England without issue, leaving her husband surviving and in Michaelmas term 1699, the appellants, as being her next relations, brought their bill in Chancery against the husband, to have the 800 livres, according to the marriage contract, and to have a moiety of all the estate in common; suggesting, that the subsequent agreement in 1680 was void, by reason of the defendant's not going within the limited time after his wife's death to Paris, and there delivering in an inventory of his estate.

The defendant by his answer insisted, that he was well entitled to the whole joint, or common estate, by virtue of the second agreement in June 1680, whereby the first