the condition prevents the estate from vesting, no matter how restrictive of marriage it may be; if it be subsequent, the effect depends on whether or not it is reasonable and valid. The nature of the property disposed of, whether real or personal, has no effect in determining whether a condition is precedent or subsequent.52 51 § 1060. The Same Subject: A Limited Restraint Is Valid. At common law, conditions in general restraint of marriage were contrary to public policy and void. There was not, however, any prohibition against testamentary conditions in restraint of marriage to specific persons or to a particular class of persons;54 for a partial or reasonable restraint of marriage could be validly imposed by a testator who had the right to concern himself with the settlement of the donee for life.55 Thus, a provision 51 Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8-S. E. 241. 52 Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241; Meek v. Fox, 118 Va. 774, 88 S. E. 161. 53 Reves v. Herne, 5 Vin. Abr. 343, 344, pl. 41; Crawford V. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Otis v. Prince, 10 Gray (76 Mass.) 581; Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143; Maddox v. Maddox's Admr., 11 Gratt. (Va.) 804. 54 Davis v. Angel, 4 De Gex, F. & J. 524; Finlay v. King's Lessee, 3 Peters (U. S.) 346, 7 L. Ed. 701; Matter of Seaman, 218 N. Y. 77, 112 N. E. 576; Daboll v. Moon, 88 Conn. 387, Ann. Cas. 1917B, 164, L. R. A. 1915A, 311, 91 Atl. 646. "Conditions not to marry a papist or a Scotchman; not to marry any but a Jew . . . . . . have also been held to be good."-2 Jarman, Wills (6th ed.), 47; cited in Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241. 55 Stackpole v. Beaumont, 3 Ves. 89; Haughton v. Haughton, 1 Molloy (Ir.) 611. At common law a remainder limited after a life estate was defeated by the determination of the estate of the life tenant prior to his death, but this rule has been modified by statute in some jurisdictions so that the remarriage of the widow will not defeat the re designed to prevent the marriage of the testator's daughter with a particular individual named in the will has received the sanction of judicial authority.56 A condition is not unlawful which requires the testator's son to marry the daughter of a certain person, even though this requires him to break an engagement to marry entered into before he knew of the provisions of his father's will.57 § 1061. The Same Subject: Limited Restraint. Where an estate or interest is definitely conveyed and annexed thereto is a condition subsequent in general restraint of marriage, the condition will be held void as contrary to public policy and morals and as violative of the principles of social and domestic life.58 But conditions which restrain marriage are permitted where they are reasonable and do not unduly restrict a just and proper freedom of choice, or are for any bona fide reason other than to discourage marriage.59 mainder. See: S. D. Civil Code, §§ 236, 237; Estate of Merrigan, 34 S. D. 644, 150 N. W. 285. 56 Matter of Seaman, 218 N. Y. 77, 112 N. E. 576. 57 Graydon's Exr. v. Graydon, 23 N. J. Eq. 229. 58 Stackpole v. Beaumont, 3 Ves. Jun. 89, 30 Eng. Repr. 909; In re Alexander, 149 Cal. 146, 9 Ann. Cas. 1141, 85 Pac. 308; In re Scott's Estate, 170 Cal. 65, 148 Pac. 221; Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Randall v. Marble, 69 Me. 310, 31 Am. Rep. 281; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Parsons v. Wins low, 6 Mass. 169, 4 Am. Dec. 107; Williams v. Cowden, 13 Mo. 211, 53 Am. Dec. 143; Graydon's Exrs. v. Graydon, 23 N. J. Eq. 229; Meek v. Fox, 118 Va. 774, 88 S. E. 161; Maddox v. Maddox's Admr., 11 Gratt. (Va.) 804; Hogan v. Curtin, 88 N. Y. 162, 42 Am. Rep. 244; In re Miller's Will, 159 N. C. 123, 74 S. E. 888; Goffe v. Goffe, 37 R. I. 542, Ann. Cas. 1916B, 240, 94 Atl. 2. 59 Jones v. Jones, 24 Week. R. 274; Randall v. Marble, 69 Me. 311, 31 Am. Rep. 281; Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241; Maddox v. Maddox's Admr., 11 Gratt. (Va.) 801. A condition not to marry into a particular family is Jew,& § 1062. The Same Subject: Condition Invalid if Annexed to Gift of Personalty Unless There Is a Gift Over. The same rule applies to bequests of personalty as well as to devises of realty,67 except it is generally held that as to gifts of personalty the condition is invalid unless there is a limitation over to another on failure 60 Phillips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241. 61 Graydon's Exrs. v. Graydon, 23 N. J. Eq. 229, 237. 62 Hodgson v. Halford, 11 Ch. Div. 959. A condition imposing a prohibition to marry any other than a member of the Society of Friends has been held an undue and unreasonable restraint upon the choice of marriage. — Maddox v. Maddox's Admr., 11 Gratt. (Va.) 804. But a condition that the beneficiary shall marry a Protestant has been upheld. In re Knox, L. R. 23 Ir. 542. 63 Shackelford v. Hall, 19 Ill. 212. 64 Jenner v. Turner, L. R. 16 65 Stackpole v. Beaumont, 3 Ves. 66 Fry v. Porter, 1 Mod. 300; 67 Gardiner v. Slater, 25 Beav. 509; r of the condition. The general rule is that although the condition be partial and reasonable, and one which the testator had a right to impose, yet if a condition subsequent and annexed to a gift of personalty, the question of its validity will depend upon whether or not there is a gift over.68 But it is generally held that a gift over is not essential to render a condition subsequent operative as to realty. A residuary clause is not equivalent to a bequest over in rendering a provision requiring consent in marriage operative,70 unless there is an express provision that on marriage without consent the bequest shall sink into the residue." If the gift over prove invalid it will not operate to render the condition effective.72 69 § 1063. The Same Subject: Words of Condition or of Limitation. Often the question arises as to whether the words used are those of condition or of limitation. Where they cir 68 Marples V. Bainbridge, 1 Madd. 590; Wheeler v. Bingham, 3 Atk. 364; In re Nourse, L. R. (1899) 1 Ch. 63, 69; Shackelford v. Hall, 19 Ill. 212; Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598; Binnerman v. Weaver, 8 Md. 517; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Parsons v. Winslow, 6 Mass. 169, 4 Am. Dec. 107; Middleton v. Rice, 6 Law J. (Pa.) 229; In re Hough's Estate, 13 Phila. (Pa.) 279; McIlvaine v. Gethen, 3 Whart. (Pa.) 575; Hoopes v. Dundas, 10 Pa. St. 75. As to conditions against contesting the will annexed to gifts of personalty, if no gift over, see §§ 1055, 1056. As to condition that beneficiary marry only with consent, if no gift over, see § 1069. 69 Fahs v. Fahs, 6 Watts (Pa.) 213; Bennett V. Robinson, 10 Watts (Pa.) 349; In re Stahl's Appeal, 2 Pa. St. 301; In re McCullough's Appeal, 12 Pa. St. 197. 70 Semphill v. Bayly, Prec. Ch. 562; Crawford v. Thompson, 91 Ind. 266, 46 Am. Rep. 598. 71 Lloyd v. Branton, 3 Mer. 108, 117; Wheeler v. Bingham, 3 Atk. 364. See, also, In re Mickey's Estate, 46 Pa. St. 337. 72 Otis v. Prince, 10 Gray (76 Mass.) 581; Heard v. Horton, 1 Denio (N. Y.) 165, 43 Am. Dec. 659. See, also, Jones v. Haber cumscribe the continuance of the estate and mark the period which is to determine it, they may be said to be words of limitation; when, however, they render the estate liable to be defeated before the estate given would otherwise terminate, they are words of condition.73 For example, a devise to A until she marries and then to B, is a limitation and valid; a devise to A for life on condition that if she marries the property shall pass to B, is a condition and void as in general restraint of marriage. So a devise to a daughter declaring that she shall have certain property forever except that she should marry, is not the same as saying until she should marry." A. sham, Fed. Cas. No. 7465, 3 Woods 443. 73 Meek v. Fox, 118 Va. 774, 88 S. E. 161. See § 1038, 1039. As to limitations and conditional limitations, see § 1016. "Limitations differ from conditions in this: A limitation marks the ultimate time of continuance of an estate; a condition marks some event which, if it happens in the course of that time, is to defeat the estate."-1 Minor, Real Prop., § 540. 74 Morley v. Rennoldson, 2 Hare 570; Webb v. Grace, 2 Phillim. 701; Arthur v. Cole, 56 Md. 100, 40 Am. Rep. 409; Meek v. Fox, 118 Va. 774, 88 S. E. 161. A devise to a daughter if she remained unmarried, but if she married, part of the property was to go to others, was held to vest absolutely in the daughter at the testatrix's death, the daughter being then unmarried. This under the statute providing that words of death or survivorship in a will relate to the time of the testator's death.-Estate of Alexander, 149 Cal. 146, 9 Ann. Cas. 1141, 85 Pac. 308. "But, while this distinction is logical, it is dry, technical logic, with no basis of substantial reason for application in the affairs of life. It is a reproach to the law that, of two donors intending to do exactly the same thing, one shall succeed and the other fail, as a violator of law, merely because one scrivener knew what he was about, and wrote 'so long as the donee remains unmarried,' while the other was ignorant or careless, and wrote, 'for life, if so long the donee remains unmarried. "In re Holbrook's Estate, 213 Pa. St. 93, 110 Am. St. Rep. 537, 5 Ann. Cas. 137, 2 L. R. A. (N. S.) 545, 62 Atl. 368. |