McLeod v. Board

Citations

• 30 Tex. 238

Syllabus

<p>Where property was conveyed in trust by a marriage contract, and the heir of the wife, who claimed the remainder, sued, and averred that the trustee was dead, and his heirs did not reside in the state, although it was urged that the trustee was a necessary party, and the petition was dismissed upon a general demurrer, the court declined to consider the question of parties.</p> <p>See the statement of the case and the opinion for a marriage settlement which might be within the rule in Shelley’s case, and yet the question was whether the husband did not exclude himself from any right as heir.</p> <p>Equity will always carry the intention of a marriage settlement into effect, when that intention is explicit and certain.</p> <p>Where the averment was, that the intention of the settlement was to exclude the husband from any interest in the estate, not only during his life, but after his death, and the deed seemed to bear out that intention, it was error to sustain a general demurrer to the petition of the heir.</p> <p>As to the question of comity in regard to descents and distributions, where there has been a marriage settlement, the lex loai contractus, by positive ante-nuptial agreement, may be made the rule for determining the parties who shall take as heirs or distributees, on the failure of the wife to dispose of the property by will or otherwise, as well as to govern the construction of the contract in all other respects, and especially in respect to its control in the partition and disposal of the property acquired after a change of the domicil from the state of the marriage. (Paschal’s Dig., Arts. 4632, 4639, Kotos 1040, 1046.)</p> <p>Where the husband has, by marriage contract in South Carolina, excluded himself from all interest in the property of his intended wife, both before and after marriage, the averment of her sister, that she was the only heir, was the statement of a good cause of action, although she stated that she was heir according to the laws of