devise or bequest by a husband to his wife "so long as she remains my widow" is a gift upon limitation and not upon condition, for the words clearly specify widowhood as the utmost time for the continuance of the estate.75 A testamentary disposition for the time during which the beneficiary remains unmarried, is quite common. Such a provision is clearly one of limitation and not of condition.76 Where, also, the devise or bequest to one so long as she remains unmarried, with a limitation over in the event of her marriage, is an estate upon limitation, and the gift is valid since there is in fact no condition in restraint of marriage."

While it is true that a distinction is taken between cases where the restraint is made to operate as a condition precedent and those where it is expressed to take effect as a condition subsequent, and that the decisions as to personalty have generally turned on whether or not there was a gift over, there is no doubt that a gift or a devise until either a man or a woman shall marry is a valid limitation as distinguished from a condition. In such a case there is nothing to carry the interest beyond the event of the marriage. Thus, marriage may be made the ground of a limitation; it does not impose a condition in restraint of marriage.78

75 Summit v. Yount, 109 Ind. 506, 9 N. E. 582; Nagle v. Hirsch, 59 Ind. App. 282, 108 N. E. 9.

As to devises "during widowhood" or "until marriage" conferring life estate, see § 964.

76 Estate of Alexander, 149 Cal. 146, 9 Ann. Cas. 1141, 85 Pac. 308. As to limitations and conditional limitations, see § 1016.

77 Nash v. Simpson, 78 Me. 142,

3 Atl. 53; Maddox v. Yoe, 121 Md. 288, Ann. Cas. 1915B, 1235, 88 Atl. 225; Harlow v. Bailey, 189 Mass. 208, 75 N. E. 259; Courter v. Stagg, 27 N. J. Eq. 305; Bruch's Estate, 185 Pa. St. 194, 39 Atl. 813.

78 Roberts v. Lewis, 153 U. S. 367, 38 L. Ed. 747, 14 Sup. Ct. 945, overruling Giles v. Little, 104 U. S. 291, 26 L. Ed. 745, and following Little v. Giles, 25 Neb. 313, 41

§ 1064. The Same Subject: Intent of Testator Governs Whether Condition or Limitation.

The intent of the testator must be sought as to whether or not a testamentary disposition should be considered as giving an estate upon condition or upon limitation. While the terms used may ordinarily import a condition, yet, if from a perusal of the entire will and the facts and circumstances permissible to be considered in aid of construction, it appears that the testator meant to provide for the beneficiary only while she remained single, and that the words used were not intended as imposing a restraint upon marriage, the qualifying expressions will be given effect according to the testator's intent.7" Thus, although the testator uses apt words of condition, yet if his purpose is to provide a home or maintenance for a beneficiary while she remains unmarried, and not

N. W. 186; Vaughn v. Lovejoy, 34 Ala. 437, 439; Helm v. Leggett, 66 Ark. 23, 48 S. W. 675; Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739; O'Harrow v. Whitney, 85 Ind. 140; .Opel v. Shoup, 100 Iowa 407, 37 L. R. A. 583, 69 N. W. 560; Labarre v. Hopkins, 10 La. Ann. 466; Haseltine v. Shepherd, 99 Me. 495, 59 Atl. 1025; Bostick v. Blades, 59 Md. 233, 43 Am. Rep. 548; Gibbens v. Gibbens, 140 Mass. 102, 54 Am. Rep. 453, 3 N. E. 1; Boyer v. Allen, 76 Mo. 498; Morgan v. Morgan, 41 N. J. Eq. 235, 3 Atl. 63; Beekman v. Hudson, 20 Wend. (N. Y.) 53; Redding v. Rice, 171 Pa. St. 301, 33 Atl. 330; Martin v. Seigler, 32 S. C. 267, 10 S. E. 1073; Reid

v. Hancock, 10 Humph. (29 Tenn.) 368.

79 Chapin v. Cooke, 73 Conn. 72, 84 Am. St. Rep. 139, 46 Atl. 282; Mann v. Jackson, 84 Me. 400, 30 Am. St. Rep. 358, 16 L. R. A. 707, 24 Atl. 886; In re Miller's Will, 159 N. C. 123, 74 S. E. 888; Estate of Holbrook, 213 Pa. St. 93, 110 Am. St. Rep. 537, 5 Ann. Cas. 137, 2 L. R. A. (N. S.) 545, 62 Atl. 368.

"Whether the restraint be by limitation or condition, is, in a vast majority of cases, the effect of accident, depending on the turn of expression habitual to the scrivener, who seldom knows anything of the technical difference between them."-Chief Justice Gibson, in Commonwealth v. Stauffer, 10 Pa. 350, 357, 51 Am. Dec. 489.

to prevent her marriage, they will be construed as words of limitation.80

If it be conceded that the prohibition of the law upon conditions in general restraint of marriage is aimed at the testator's intent to restrict marriage and not at the restriction itself, an actual restraint or discouragement of marriage carries with it the prima facie presumption that such restraint was intended, and the burden rests upon him who alleges the contrary to prove the real intention.81

§ 1065. Condition in Restraint of Remarriage of Widow.

The present state of the law as regards conditions in restraint of a second marriage of a woman is an exception to the general rule that conditions in restraint of marriage are void. It has been a matter of gradual growth, at first being applied where the testator was the husband. A restraint upon the remarriage of a widow, annexed to a devise or a bequest by the husband, is valid whether the restraint be in the form of a limitation defining the duration of the widow's interests, or of a condition subsequent abridging or defeating it after it has vested. This is the rule by the great weight of authority both in England and in the United States.82

80 In re Miller's Will, 159 N. C. 123, 74 S. E. 888.

81 Meek v. Fox, 118 Va. 774, 88 S. E. 161.

82 Loyd v. Loyd, 2 Sim. N. S. 255; Grace v. Webb, 15 Sim. 384; O'Neale v. Ward, 3 Har. & McH. (Md.) 93; Barton v. Barton, 2 Vern. 308; Scott v. Tyler, 2 Dick. 712; Jordan v. Holkham, Amb. 209; Moore v. Waller's Heirs, 1

A. K. Marsh (8 Ky.) 488, 492; Haseltine v. Shepherd, 99 Me. 495, 59 Atl. 1025; Binnerman V. Weaver, 8 Md. 517; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Boyd v. Sachs, 78 Md. 491, 28 Atl. 391; White v. Sawyer, 13 Metc. (54 Mass.) 546; Dilliard v. Connoway, 25 Miss. 230; Gaven v. Allen, 100 Mo. 293, 13 S. W. 501; Graydon's Exrs. v. Graydon, 23

It has been said that "reason and experience, as well as the adjudicated cases, sanction the idea that a man has an interest in his wife remaining a widow."'88

The same policy or reason does not exist against a restraint upon a second or third marriage as against a first; nor do such marriages, especially when there are children, result so favorably for the interests of the parties or the public. A husband may well desire that his widow and the mother of his children should not remarry, fearing that the children would not be so wel! protected if his widow became the mother of a second family.85

Although the interest of a husband in his wife, and family considerations, may have been the origin of the rule allowing restraints upon the widow's remarriage, and although the rule was at first limited to those cases where the husband was the testator, it was afterward extended to the case of a son making a will in favor of his mother, and later the rule was applied irrespective of relationship.se 86

Where, however, an estate in fee is devised by a testator to his widow, a subsequent restraint and disposition over in the event of her remarriage is repugnant to the estate given, and is void for such reason.87

§ 1066. Condition in Restraint of Remarriage of Widower. There is no good or substantial ground for maintaining a distinction between a condition in restraint of a second marriage of a woman and a like condition in re

wealth v. Stauffer, 10 Pa. 350, 355, 51 Am. Dec. 489.

84 Coppage v. Alexander's Heirs, 2 B. Mon. (Ky.) 313, 315, 38 Am. Dec. 153.

$5 Allen v. Jackson, L. R. 1 Ch. Div. 399 (1874).

86 Newton v. Marsden, 2 Johns.

& H. 356; Allen v. Jackson, L. R. 1 Ch. Div. 399; Overton v. Lea, 108 Tenn. 505, 68 S. W. 250.

87 Becker v. Becker, 206 III. 53, 69 N. E. 49; Langman v. Marbe, 156 Ind. 330, 58 N. E. 191.

See 1071, conditions repugnant to estate granted.