while Grotius holds with Voet that if the children do not exercise their right to dispose, that is, if they die intestate, the succession is regulated by the antenuptial contract of the parents.

462. Where third parties share in the making of an antenuptial contract (such as parents or relatives who contribute to the dotal property of the wife), they are bound, according to Dutch Law, by such a contract, and accordingly cannot make such a disposition of the dotal property as will affect the succession of the property as it has been fixed by the spouses in the antenuptial contract (23, 4 § 67).

463. Where succession to property has been fixed by antenuptial contract, and such succession has not been burdened with fideicommissum, no subsequent testamentary disposition may be made which will have the effect of burdening such property with fideicommissum, if the succession in general has been unconditionally bequeathed without reference to the claim of one heir conjointly with others (a concursus, as Voet terms it), or if a certain thing or a certain amount has been bequeathed. If the spouses have agreed that the survivor shall succeed jointly with the children or other relatives, nothing prevents the portion of the survivor so inheriting from being burdened with fideicommissum, provided the portions of the others who succeed with such spouse are likewise burdened with fideicommissum (23, 4 § 68).

464. When a question arises as to the law which ought to be followed in respect to a change of succession under an antenuptial contract, the law of the place of domicile of the spouses must regulate the disposition of movables, while immovable property will be regulated according to the law of the place where it is situate (23, 4 § 69).

465. If the spouses omit to provide for any contingency in an antenuptial contract, such omissions must be looked upon as express, and what is provided for in one case cannot be extended by implication to another case with regard to which no provision is made. So, if provision be made for a thing in case of divorce, the same provision will not apply if the marriage be dissolved by death. Therefore, if the parties neglect to dispose of certain of their property by antenuptial contract, such property will follow the law of community (23, 4 § 70).

466. Where there is a doubt as to the meaning of parties in an antenuptial contract, the law permits an inquiry into the intentions of the spouses, although the same are not express, but to be inferred by conjectures from the circumstances of the case, and ordinary presumptions of law. So, if it has been expressly agreed that there shall be community between the spouses of acquisitions or gains, one will rightly conclude that the parties desired to exclude the statutory community of all property. Again, if the parties have agreed to exclude the statutory community in favour of their cognates or strangers who are their heirs, they will be presumed to have done so in favour of their own children as well. In case of doubt, where one thing is provided for, its opposite will also be held to have been provided for; and thus, if the parties provide that there shall be community of profits or exclusion of such community, they are presumed to have provided that there shall be community of loss or exclusion of such community. Again, if it is provided that the husband shall have all the profits acquired during the marriage, it follows that he shall also be liable for all the debts contracted during marriage (23, 4 § 71).

See Van Leeuwen (Cens. For. 1, 1, 12, 18).

467. Where a contract is obscure, and the intention of the parties cannot be inferred from surrounding circumstances, the customary form of antenuptial contract should be applied in order to interpret the contract under consideration (23, 4 § 72).

In other words, reference should be made to the form of antenuptial contract in common use to elucidate or explain a contract which cannot be otherwise interpreted or given effect to.

468. If parents give a dowry to their daughter on condition that if she dies during marriage the dotal property shall revert to them, they are, in case of doubt, considered to have intended that the property shall revert if the daughter die without issue; and, in such case of doubt, the dotal property will go to the children of such daughter the main reason for this being that, in Dutch Law, a daughter is, upon marriage, emancipated from the parental power (23, 4 § 73).

469. Antenuptial contracts should, in general, receive such an interpretation as will make it appear that the statutory community of property has been departed from as little as possible, and any form of liberality in such contracts should receive a restrictive interpretation. So, if it has been agreed that all movable property shall remain in possession of the surviving spouse, this will not, in the absence of express terms to that effect, include rights of action, which are not regarded as movables, but fall within the category of incorporeal property (23, 4 § 74).

470. The Cape Antenuptial Contracts Act (No. 21, 1875) provides that antenuptial contracts, whereby one spouse settles on the other spouse, or the children of the marriage, or their descendants, any property, movable or immovable, shall not be valid as against creditors of the insolvent estate of either spouse, where such spouse becomes insolvent within two years from the time of execution of the contract, where the debt or demand of the creditor existed at the date of registration of the contract, provided it is shown that the same was made by the insolvent with intent to defraud or delay the creditors in obtaining payment of his or her debts (§ 3). This enactment has also been made in the Transvaal, under the Insolvency Law of 1895; and in the Orange River Colony by Law 23, 1899, § 1. Where one spouse settles an annuity on the other, or makes a settlement of other property payable at death or any other time, no payment, transfer, or other act necessary to carry out such covenant or agreement shall be valid against creditors of the insolvent estate of one or other spouse, where the debt existed at the date of such payment, transfer, or other act, if it be proved that such payment, transfer, or other act was made with intent to defeat or delay creditors of the insolvent spouse, at a time when the liabilities of such insolvent spouse, fairly calculated, exceeded his or her assets, fairly valued-provided that no such payment, transfer, or other act shall be impeached by creditors after five years from the making thereof, and that this enactment shall not impair or affect the operation of any special conventional hypothecation granted by either spouse at the time of entering into such covenant or agreement in order to secure the same (§ 4). In

the Orange River Colony the period of impeachment is three years (Law 23, 1899, § 2). Where contracts have been registered, the payment by either spouse of premiums on policies of life assurance, settled under such contracts, cannot be impeached by creditors of an insolvent spouse as being undue preferences (Cape Act, § 6).

In Leigh's Trustee vs. Leigh (1 S. C. 75), a husband, by antenuptial contract, settled a sum of money on his wife, which was to become hers if she survived him; but if she did not, the money was to revert to and form part of his estate. It was agreed that the wife should have a preferent claim for the money, payable on the husband's death or insolvency. It was found that the husband was insolvent at the date of the marriage. The wife claimed as a concurrent creditor of her husband. It was decided that the claim of the wife could not be sustained, but that it might be admitted as a contingent claim, payable if she survived her husband. Her claim was, therefore, postponed to the claims of her husband's other creditors. See also Hurley vs. Palier (1 S. C. 154).

(4) DONATIONS BETWEEN SPOUSES.

471. As we have seen, donations between spouses are absolutely prohibited; but if an unconditional donation has actually been made by one spouse to another, the natural possession passes in fact—though not in law-to the donee, to such an extent that the donee has the rights of a bonâ fide possessor to this extent, that he or she may, on ejectment from an estate given to the donee, recover possession by means of the interdict unde vi. But the legal possession does not vest in the spouse who is the donee of such property, whence it follows that the donee cannot acquire ownership of the property by usucapion. From this point of view the donee is a malâ fide possessor, is said to hold in the place of the possessor (pro possessore), and has no valid title to the property, although the donee may enjoy the produce of the property (fructus industriales) gained through the donee's industry (24, 1 §§ 1, 2).

472. It thus follows that the spouse who is the donee has not the dominion over the property or thing donated. The donor, his heirs, successors, or assigns may accordingly vindicate or recover possession of the property donated, even if it has been transferred to other persons. The person vindicating such property must

refund to the donee the amount of money spent on the improvement or maintenance of such property, over and above the value of the produce of the property which the donee has had the use of (fructus percepti). The donee has, however, the option of paying the value of the property donated, on security against eviction being given her. Alienation by the donee to other persons does not become valid until the donation is confirmed by the death of the donor, which event makes the gift retrospectively valid. If the things donated have been consumed (such as perishable produce), the donor or his assign has an action (condictio) to recover the value by which the recipient of the things was enriched up to the time of joinder in issue (litis contestatio). A similar action lies if the recipient-whether donee or donee's transferee—has fraudulently made away with the property donated. A spouse is considered to be enriched, and therefore to stand in the position of a donee, when such spouse has been released from payment of a debt due to the other spouse; or if the spouse's property, which was subject to a servitude in favour of the other spouse, has been released from the burden of such servitude. The donee is not liable to return the produce (fructus industriales) raised by the donee's labour on the farm donated to him or her. The donee is not regarded as enriched where he or she purchases property with a sum of money donated, and the value of the property thus purchased is greater than the amount of money donated; and in such a case the donee is liable to return only the sum of money originally donated. On the other hand, the donor, where the value of the property purchased is less than the sum originally donated, may claim only the property, for which he will have a vindicatory action, even if the donee becomes insolvent (24, 1 § 3).

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In Van der Byl's Assignees vs. Van der Byl and Others (5 S. C. 176), it was said by De Villiers, C.J.: If there is one doctrine more firmly settled in our law than any other it is that, until the death of the donor, gifts between husband and wife, with certain exceptions, are of no force or effect whatsoever as against the donor or his creditors. Let it be known,' says Ulpian (Dig. 24, 1, 3 § 10), 'that a donation between husband and wife is so strictly forbidden that the transaction is ipso jure of no effect. Accordingly, if it be a corporeal thing which has been given, even delivery thereof is of no avail. And if one has entered into a covenant with the other, or made an entry to the credit of the