99 Mass. 136 | Mass. | 1868
This is a bill in equity by the executors and trustees under the will of Edward V. Childe, of Boston, to obtain the directions of the court as to the construction and effect of the first clause in his will, by which he directs them “ to raise the sum of one hundred and fifty thousand francs, money of France, and to apply the same to the fulfilment of a certain marriage contract,” made in 1853 at Geneva in Switzerland between his daughter and Count Soltyk of Poland, and signed by them and also by Mr. Childe and his wife.
The original marriage contract has not been submitted to us. But, according to a translation which the parties have agreed to be correct, its material articles are as follows: “ The future couple declare that their intention is to marry under the regime dotal.” Mr. Childe assigns and promises to pay to his daughter, and, in case of her dying before him leaving children, to her children, until his death, an annuity of six thousand francs, money of France. “ At the decease of the said Mr. Childe, the said annuity will cease, and will be then converted into a capital of one hundred and fifty thousand francs, which will only be due and demandable in case the future wife, or children issued from the present marriage, should survive the said Mr. Childe. The said capital will only be handed over to the future wife or to her children against a sufficient mortgage, or any other equivalent guaranty, to be given by the future husband.”
In 1862, after the death of the testator, Count Soltyk, by an instrument in writing executed at Vienna, declared that it was unnecessary for him to-give a mortgage or other guaranty for a sum which never came into his hands, and renounced all right in the principal or interest of the sum of one hundred and fifty thousand francs. In 1866, an ecclesiastical court in Cracow in Austrian Poland, where the husband and wife then had their domicil, granted to her, for her husband’s adultery, desertion and squandering his inherited property in gambling, a decree of divorce from bed and board for life, with the right to educate
The wife has appeared and submitted to the jurisdiction of this court; and notice has been given to the husband, and the bill taken for confessed against him, in accordance with the rules of court and the ordinary practice in chancery. The will has been proved in Massachusetts, the trust property is here, the plaintiffs reside here and derive their rights as executors and trustees to hold the property from the courts of this state, and are accountable to those courts for the due performance of their trusts, and one of them is sole residuary legatee of all the property not bequeathed to Countess Soltyk. There can be no doubt, therefore, of the jurisdiction of this court to entertain the bill and to make a decree which will bind all the parties to the suit. Chase v. Chase, 2 Allen, 101. Martinius v. Helmuth, Coop. 245.
The interpretation and effect of the clauses in the marriage contract, by which the parties declare their intention to marry under the regime dotal, and the delivery of the principal fund is made conditional upon the husband’s giving “ a sufficient mortgage or other equivalent guaranty,” depend upon the foreign law, of which this court has no judicial knowledge except from the evidence in the cause. Talbot v. Seeman, 1 Cranch, 38. Di Sora v. Phillipps, 10 H. L. Cas. 624. Knapp v. Abell, 10 Allen, 488. The only evidence which has been submitted is the testimony of competent foreign jurists, who are clearly of opinion that by the law of Geneva, of France, and of Austria, the effect of the contract is to secure the investment of the wife’s dowry in
The question remains, What amount of money is to be set apart as constituting this fund ? As the court does not order the fund to be paid to Countess Soltyk absolutely, the agreement made between her and her brother, one of the plaintiffs, as to the sum at which it should be estimated in that event, does not annlv.
The more difficult question is, By what rule is the amount of dollars to be ascertained, in the present state of the currency of this country ? This question is not affected by the decision in Otis v. Coffin, 7 Gray, 511, for two reasons; because in 1856, when that case was decided, as well as in 1839, when Admiral Coffin made his will and died, there was no lawful tender for the payment of debts here, except gold and silver coin ; and because English and French coins were then current here by law as money. U. S. Sts. 1843, c. 69; 1834, c. 96; 5 U. S. Sts. at Large, 607; 4 Ib. 700. But now no foreign money is a lawful tender in the United States, although the value of French, English, and some other foreign coins for certain mercantile purposes is regulated by law in the absence of agreement. U. S. St. 1857, c. 56; 11 U. S. Sts. at Large, 163. Commonwealth v. Haupt, 10 Allen, 43, 47. Stanwood v. Flagg, 98 Mass. 124. According to recent decisions of this court, even coined money of the United States may under some circumstances be estimated, in making up a judgment, at its market value in treasury notes of the United States. Sears v. Dewing, 14 Allen, 113, Cushing v. Wells, Fargo & Co. 98 Mass. 550. This is ,iot a case of compelling performance of a mere contract for the payment of a sum of money, but of ascertaining and carrying «rat the intention of a testator as to the distribution of his estate between his children — less a case of debt than of trust. French francs are money in France and Switzerland; they are but a
The costs of all parties in this suit, properly brought to clear up an ambiguity in the language of the will, and to enable the plaintiffs to execute their trust, must, like the ordinary expenses of administration, be borne by the residuary assets. Sawyer v. Baldwin, 20 Pick. 388, 389, and cases cited. Rogers v. Ross, 4 Johns. Ch. 608. 2 Dan. Ch. Pract. (3d Am. ed.) 1503, 1506.
Decree accordingly.