The opinion of the Court was delivered by
Blacií, J.A married woman died intestate and possessed of personal property. The question is whether it goes to her husband or to her collateral heirs. The law gives it to the husband, unless the other parties can show some special facts which take the case out of the rule. This they have tried to do. There was an agreement before marriage by which the husband covenanted that the wife should have her property to her own use as long as *329sbe lived, and dispose of it by ber will to whom sbe pleased. He also bound himself not to sell or convert to his own use any portion of it.
The husband might have agreed to such marriage articles as would have cut him off from the succession to his wife’s goods after her death, by limiting them to other persons. The promise to let her have the separate use of her property means no kind of provision about the succession. The agreement that it shall go to whomsoever she pleases to designate as her legatee is not a covenant that the husband will give it to her relatives if she makes no will. She had the power to make the will, but she did not exercise it. The presumption is that she was satisfied with the disposition which the law would make. She probably would have bequeathed all she had to her husband, if she had not known that he would take it anyhow.
By what title do the next of kin claim the property now in dispute ? Not by the marriage articles, for there they are not so much as mentioned or alluded to. Not by any gift of the wife during her life, for no such thing is pretended. Not by a will, for no will was ever made. Not by the intestate laws of the state, for they give it to the husband. They have no title at all, and yet they must show a good title before they can demand it.
The plaintiffs rely much on the fact that the covenant of the husband not to convert the wife’s goods was made directly to her executors and administrators. Without such a covenant, express or implied, the others would have been nugatory. She could not sue him, if she had a hundred covenants; and her power to make a will would have been worthless if her executor or administrator cum testamento annexo could not have brought an action to compel him to account for any property of hers which he sold or converted to his own use during her life. We think this no reason for believing that the parties intended more by the marriage settlement than what they said in words.
The husband also covenanted that he would not at any time thereafter sell or otherwise convert to his own use any part of her property. If this were a sound argument against the defendant’s right to take under the intestate laws, it would be equally good to show that he could not take under a will; but it is not pretended that the latter proposition is true. We must either suppose that this covenant simply provides against a conversion by the husband of the wife’s property injurious to her rights as the separate and sole owner, or else Aye must go the wild length of declaring that it rendered him totally incapable of ever getting, having, or holding anything that was hers, however clear his title to it might afterwards become.
There is another provision in the articles, of which something was said at the bar. It was agreed that he should be indemnified *330out of her estate for any debts he might have to pay for her. The husband, seeing that he had given his wife absolute control over her property during the coverture, and the full power to dispose of it by will, and knowing also that he was nevertheless liable for her debts, thought proper to reserve the right to demand reimbursement for all he might pay, in case she would will what she had to another person. There is nothing in this to defeat the operation of the intestate laws.
Where an ante-nuptial agreement limits the wife’s property to certain persons other than the husband, the husband of course cannot claim it against the right of the parties upon whom it is settled. Where it indicates in terms tolerably clear that the husband intended to relinquish all the rights which he had or could have in the wife’s property, not only during but after the cover-* ture, then it descends to her next of kin, and they take it under the intestate laws, just as if she had never been married. If such intention had been apparent here, it would have been equivalent to a settlement of it on such persons as the wife might appoint by will, and, in default of such appointment, on her next of kin. But we do not seo the least glimmer of such a meaning in this contract.
Judgment reversed, and judgment here for the defendant.