The appeal in this case presents for our consideration a judgment of the district court sustaining a general demurrer to the petition of the appellants, the plaintifis in that court. It is therefore improper, as well as unnecessary, for us at present to enter upon a discussion of questions not necessary for the determination of the correctness of this ruling of the court on the demurrer; consequently we shall not follow counsel in the argument which has been furnished us on several interesting and important questions which might arise on special exceptions, or in a trial on the merits of the case. ■
The demurrer seems to have been sustained upon the supposition that the clause in the contract, under which the plaintifis set up title, that in case the cestui que trust in the deed should die without issue at the time of her death, and without having disposed, by last will and testament, of the property settled in said deed to her separate use, said trustee should hold the property in trust to convey the same to the heirs at law of the cestui que trust, to be awarded according to the statutes of the State of South Carolina, should be construed as words of limitation, and not of purchase, in favor of such heirs. We deem it unnecessary to enter into a critical examination of this deed to determine whether this is the construction which should be given it. *244It may be admitted that the language used in this deed brings it within the rule in Shelley’s case, and that the entire trust estate vested in the cestui que trust, without condition or remainder. Yet the question still remains, whether by the marriage contract the husband has not excluded himself from all interest in the property, jure mariti, as well after the death of the wife as during her life. That the husband may be excluded, by an express stipular tion, from all interest or participation in the distribution on the death of the wife of property settled by marriage contract to her sole and separate use is not a matter of dispute. Such exclusion unquestionably must be clearly and obviously manifested by the contract; but, when this is the ease, effect must be given to the intention of the parties in this as in other particulars. “A court of equity,” says Chancellor Kent, “will always carry the intention of these settlements into effect, when that intention is explicit and certain.” (Methodist Episcopal Church v. Jaques, 3 Johns., 89.)
The averments of the petition, in respect to the terms and stipulations of the contract in this case, lead unmistakably to the conclusion, that it was the intention of the parties that no interest whatever in the property should vest in the husband by reason of the marriage, either during the life of the wife or at her death. In the case of Ward et al. v. Thompson, 6 Gill & Johns., 349, which turned on the validity and effect of a marriage agreement which did not more plainly exclude the husband from all interest in the separate estate of the wife than is done in the case at bar, the court says: “He, the husband, has not only made a temporary surrender of his marital rights in the estate in question during his wife’s life, but has abandoned them forever.”
In the case of Williams v. Claiborne, property, real and personal, was conveyed in trust by a marriage settlement, executed by Benjamin Williams and Jane Haggatt, on the *245.eve of their intermarriage, to their use during their several lives, and after their deaths to the use of the heirs of the "body of said Jane hy said Benjamin to be begotten, and in default of such heirs, then to the right heirs of said Jane. It was contended by the plaintiff’s counsel that the limitation over to the heirs of Jane Haggatt was void, for the reason that the settlement created a fee tail in the first users, which, under the laws of Mississippi, immediately executed in them a fee simple in joint tenancy. The court, however, was governed by the intention, as gathered from the whole instrument, and decided that Williams, on the death of his wife, had no interest in the property then conveyed, or right to participate in the proceeds, increase, or profits of it. (7 Smedes & Mar., 488.) If deemed necessary, abundant authority to the same effect might be easily supplied. (Bailey v. Wright, 18 Ves., 244; 1 Roper, 328; Robinson v. Brock, 1 H. & Munf., 213; Holmes v. Liptrot, 8 Ga., 279; Hamrico v. Laird, 10 Yerg., 222; Nevis v. Scott, 9 How., 196; Stilley v. Folger, 14 Ohio, 659.)
If by the contract an absolute estate vested in Mrs. Mitchell, and those who take the 'property after her death must claim by descent, and not as purchasers under the contract, a doubt has been suggested whether the rules of international comity would require distribution of personal property to be made by the courts of this State, as stipulated in the contract, according to the statutes of the State of South Carolina, or whether our own law for distribution of intestates’ estates should not be followed. This suggestion might be regarded, in view of the fact that the intention of the parties is the leading consideration in arriving at the proper construction of such agreements as persuasive of the conclusion that the heirs, according to the statutes of South Carolina, should take as purchasers under the contract, and not by descent. But, independently of this view of it, we see no reason why the lex loci contractus may not by positive agreement be made the rule *246for determining the parties who shall take as heirs or distributees on the failure of the wife to dispose of the property hy 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 property acquired after a change of the domicil from that of the marriage. (DeCouch v. Sarstin, 3 Johns. Ch., 190; LeButon v. Miles, 8 Paige, 261.) But, if this is not the fact, we do not see how it can affect this case. The husband having, as we have said, excluded himself by the contract from claiming the property, jure mariti, he can no more claim it hy the law of distribution of Texas than he could under that of South Carolina; and, as the appellant under our law is certainly entitled to claim as an heir or distributee of the estate of her deceased sister, we see no reason why the averments of her petition, that she is the sole heir by the statutes of South Carolina, should bar her recovery, or furnish a ground for sustaining the demurrer.
The judgment is reversed, and the cause
Remanded.