MARRIAGE 93 back/ which option she has exercised after her husband's death so as to exclude community ; or (c) a clause prohibiting the husband from ahenating property brought into the marriage by the wife, and the husband has never- theless alienated the property, or part of it, without her knowledge and consent.^ In the last case she will also, it seems, be able to vindicate her property in the hands of third parties to whom the husband has made it over.^ But if the wife, having retained and reserved the possession and administration of her own property, knowingly allows her husband to deal with it, she will lose her hypothec and preference over creditors, just as if she had renounced these rights by a contrary stipulation.* The ante-nuptial pacts above described have all been Ante- directed to the exclusion or modification of the common contracts law consequences of marriage.^ It remains to speak of some- stipulations of another kind, namely those which may serve the be generically described as ' settlements '. Under this Pl""P°s<' head may be included : (1) gifts made to one or other of riage set- the spouses, but more especially to the wife, either by the husband or by some third party, and taldng effect imme- diately upon the conclusion of the marriage ; (2) contracts whereby the wife or husband is to receive something by way of gift at some future date, usually upon the death of the other spouse ; (3) provisions regulating the devolution ^ Gr. 2. 12. 10 ; Voet, 23. 4. 53 ; Neostad. depact. antenupt, Obs. 9 ; Groen. uU sup. ; V. d. K. Th. 250. ^ Van Leeuwen, 4. 13. 14 ; Neostad. op. cit., Obs. 21. ' Voet, 23. 4. 21 and 50. This consequence does not follow from a clause merely securing the wife's property to herself. De Haas ad Gens. For. 1. 1. 12. 5 ; Groen. de leg. abr. ad Cod. 6. 12. 30. But where there is exclusion of profit and loss such a clause gives her a tacit hypothec and preference over post-nuptial creditors. Groen. loc. cit. ; V. d. K. Dictat. ad Gr. 2. 12. 9. According to Van Leeuwen (4. 24. 4), even a prohibition of alienation by the husband will not entitle the wife to recover the property from third parties unless the prohibition has been publicly proclaimed (openbaarlyk afgekondigt). ^ Van Leeuwen, 4. 13. 14 ; MosteH's Trustees v. Mostert (1885) 4 S. C. 35. ^ Before passing to another part of the subject it may be well to warn the reader that every ante-nuptial contract raises its own problem of construction. The rules stated in the text must not be supposed to be inflexible.
tlements.