1 If there is no marriage contract, the wife's personal property rights are to be governed by the laws of the intended residence, Mason v. Homer, 105 Mass. 116; Mason v. Fuller, 36 Conn. 160. An antenuptial agreement made in one State, the maker of which immediately moves to another, is to be governed by the laws of the latter as to its validity and effect. Davenport v. Karnes, 70 Ill. 465.

2 In Milliken v. Pratt, 125 Mass. 374, it appeared that a married woman domiciled in Massachusetts made by letter sent there a contract of guaranty in Maine, which, under the laws of Massachusetts at the time, she was incapable of making, but which the laws of Maine allowed her to make, and upon which she was sued in Massachusetts. It was held that the action could be maintained. Gray, C. J., in a learned opinion, reviews all the authorities, and arrives at the conclusion that the validity of a contract, even as regards the capacity of the parties, is generally to be determined by the law of the State in which it is made. See Bell v. Packard, 69 Me. 105.

There is one peculiar result of marriage, which seems to be an exception. In some places, if the parents of a child intermarry after his birth, this marriage legitimates him. In England it does not; and it has been held in England, that such subsequent marriage in Scotland, where it legitimates the child, did not so far legitimate him in England as to enable him to take by inheritance land situated in England. (j) The rule would be otherwise as to personal property, the law of the domicil of the parents determining the legitimacy as to that. And we think that such a marriage in Scotland, supposing parents and child afterwards to come to America and be naturalized here, would be held here to make the child an heir, as well as to give him all other rights of legitimacy. (k) We have, however, considered the subject of illegitimate children in our first volume.

The place of marriage does not determine absolutely as to the domicil acquired by marriage. It would be obviously unreasonable * to permit the domicil of the parties to depend upon the mere place where the marriage is celebrated, while the parties are perhaps only in transitu. This question is therefore settled by their actual domicil at the time; the husband's domicil is determined by the two elements of actual residence and intent, as in other cases; while the wife acquires by marriage the domicil of the husband, and changes it as his changes. (l) And in such case the wife's rights in and to the * property of the husband, or her own, would be determined by the law of that domicil, so far at least as relates to the personal property of both, and the real property of the husband. If the wife had real property in the country of her own domicil, hers and her husband's rights in respect to it might now be governed by the lex loci rei sitae.

(i) In the absence of much direct adjudication, we refer the reader to the following authorities, as bearing more or less directly upon this question. Polydore v. Prince, Ware, 402; Drue v. Thorne, Aleyn, 72; Thompson v. Ketcham, 8 Johns. 189; Garnier v. Poydras, 13 La. 177; Potter v. Brown, 5 East, 131.

(j) Doe v. Vardill, 6 B. & C. 438, 9 Bligh, 32.

(k) Such seems very certainly to be the doctrine of the greater number and most authoritative of the civilians. See Story on Confl. of Laws, § 93 a et seq.

1 Wheeler v. Constantine, 39 Mich. 62, decided that an Indiana woman could not evade the payment of notes given by her for goods purchased in Michigan without showing her disqualification under the Indiana laws; and that if the Michigan law authorized such notes, it could not be presumed that they were void, nor could it be conceded that if made in Michigan they were not governed by its laws.

(l) See ante, p. *581, n. (6). But the wife may, to far as the question of divorce is concerned, have a domicil distinct from that of the husband. In Harteau v. Harteau, 14 Pick. 181, Shaw, C. J., after considering certain questions arising in the case which have no direct bearing upon this point, says: "This suggests another course of inquiry, that is, how far the maxim is applicable to this case, that the domicil of the wife follows that of the husband. Can this maxim be true, in its application to this subject, where the wife claims to act, and by law, to a certain extent and in certain cases, is allowed to act adversely to her husband? It would oust the court of its jurisdiction, in all cases where the husband should change his domicil to another State before the suit is instituted. It is in the power of a husband to change and fix his domicil at his will. If the maxim could apply, a man might go from this county to Providence, take a house, live in open adultery, abandoning his wife altogether; and yet she could not libel for a divorce in this State, where, till such change of domicil, they had always lived. He clearly lives in Rhode Island; her domicil, according to the maxim, follows his; she, therefore, in contemplation of law, is domiciled there too; so that neither of the parties can be said to live in this Commonwealth. It is probably a juster view, to consider that the maxim is founded upon the theoretic identity of person and of interest between husband and wife, as established by law, and the presumption, that from the nature of that relation the home of the one is that of the other, and intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to establish separate interests, and especially a separate domicil and home, bed and board being put, a part for the whole, as expressive of the idea of home. Otherwise, the parties in this respect would stand upon very unequal grounds; it being in the power of a husband to change his domicil at will, but not in that of the wife." Mr. Bishop, in his work on Marriage and Divorce, § 780, after quoting from the preceding case, says: "And the doctrine that, for purposes of divorce, the wife may have a domicil separate from her husband, is well established in the American tribunals, although some of the authorities would seem to take the distinction (it is submitted without proper foundation), that a wife cannot lose her domicil by the husband's change of residence after the offence is committed, yet cannot on the other hand acquire a new one. Indeed it has been distinctly laid down, that the wife cannot, by a removal of her habitation after the commission of the offence, acquire a new jurisdiction in which to prosecute her claim for divorce, though it is believed that the preponderance of American authority, as well as weight of argument, is greatly the other way." See further, on this question, Irby v. Willson, 1 Dev.

6 Bat. Eq. 568, 582; Frary v. Frary, 10 N. H. 61; Harding v. Alden, 9 Greenl. 140; Sawtell v. Saw tell, 17 Conn. 284; Brett v. Brett. 6 Met. 233; Tolen v. Tolen, 2 Blackf. 407 ; Jackson v. Jackson, 1 Johns. 425; Maguire v. Maguire,

7 Dana, 181; Pawling v. Willson, 18 Johns. 102,208. If the husband and wife have been separated by a judicial decree, and are living separate, the domicil of the wife is independent of that of the husband. Williams v. Dormer, 2 Robb, Ecc. R. 505, 9 Eng. L. & Eq. 598.