straint of a second marriage of a man.88 So a wife may, by her will, limit the usufruct or the estate given to her husband until his remarriage, as such a condition is neither opposed to public policy nor contrary to good morals.89 § 1067. Conditions Predicated Upon Divorce or Separation. 90 It is well settled that conditions annexed to a testamentary gift, the tendency of which is to induce a husband and wife to live separate or to become divorced, are void as being contra bonos mores and against public policy. Even though the condition be not in so many words, it has such an effect if the gift becomes operative only when such separation or divorce is suffered or procured. If the end desired by the testator is that a married couple shall separate or become divorced, 88 Allen v. Jackson, 1 Ch. Div. 399, overruling s. c., L. R. 10 Eq. 631; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548; Overton v. Lea, 108 Tenn. 505, 68 S. W. 250. 89 Labarre v. Hopkins, 10 La. Ann. 466; Stivers v. Gardner, 88 Iowa 307, 55 N. W. 516. 90 Wren v. Bradley, 2 De Gex & S. 49; Tennant v. Braie, Toth. 141; Cartwright v. Cartwright, 3 De Gex, M. & G. 982; Wilkinson v. Wilkinson, L. R. 12 Eq. 604; Coe v. Hill, 201 Mass. 15, 86 N. E. 949; Conrad v. Long, 33 Mich. 78; Witherspoon v. Brokaw, 85 Mo. App. 169; Wright v. Mayer, 47 App. Div. (N. Y.) 604, 62 N. Y. Supp. 610; Matter of Haight, 51 App. Div. (N. Y.) 310, 64 N. Y. Supp. 1029. Where the testator provided that if his niece lived with her husband she should have two pounds per month from the estate, but if she lived apart from him and with her mother she should have five pounds per month, the latter legacy was held good and divested of the condition, which was held to be contra bonos mores.-Brown v. Peck, 1 Eden Ch. 140. A devise "for and during the term of his natural life, or while he shall live separately from his present wife," is void.--Whiton v. Harmon (Whiton v. Snyder), 54 Hun (N. Y.) 552, 8 N. Y. Supp. 119. A condition against cohabiting with one's wife, or supporting her, is void, and the devisee will take free from the condition.-In re Potter, 3 Demarest (N. Y.) 108. the means employed are objectionable, whether expressed directly or by mere inference. The law will not sanction the result sought.91 But there is a wide difference between a testamentary gift to one during separation, as an annuity to a daughter while living from her husband, the two not cohabiting at the time of the execution of the will. In such a case a separation is not procured by the condition, since it already exists.92 § 1068. The Same Subject. While it may be taken as good law that any condition which tends to induce or compel a husband and wife to live separately, or to become divorced, is void as being against public morals and public policy, this rule can not always be strictly adhered to. There may be circumstances which will take a particular case out of the rule, as, for example, where a life estate in the son of the testator was to become a fee simple in the event he should become divorced from his wife, where for several years prior to the execution of the will the son and his wife had lived apart and divorce proceedings were already pending.93 Where the manifest object of the condition is not to induce or invite a divorce or separation, but to make a provision for support upon the happening of either event, the provision is valid. Thus, a parent might deem it unnecessary to provide for a daughter who was being supported by her husband, yet wish that if she should become dependent through separation or divorce, she should have additional resources of her own.94 91 In re Haight's Will, 51 App. Div. 310, 64 N. Y. Supp. 1029. 92 Cooper v. Remsen, 3 Johns. Ch. (N. Y.) 382, 5 Johns. Ch. 459. 93 Ransdell v. Boston, 172 ni. 439, 43 L. R. A. 526, 50 N. E. 111. 94 Walker v. Walker's Exr., 9 Wall. (U. S.) 743, 19 L. Ed. 814; Either a husband or wife has the right which the law confers to secure a divorce for the misconduct of the other. The voluntary exercise of such a right will not render void a testamentary gift, the language of which shows that the testator had in mind that such a contingency might arise." It may be claimed that such a condition might induce a husband or wife to exercise his or her legal right to procure a divorce which he or she might otherwise not have done, but it can hardly be said that it is against public policy to attach to a testamentary gift such a condition as will tend to induce a beneficiary to do a lawful act in a lawful way.96 And Born v. Horstmann, 80 Cal. 452, "The first object is to ascertain, if possible, what the intention of the testatrix was; and we find no difficulty in reaching the conclusion that it was to have her estate disposed of just as it has been by the probate court. It was a wise and prudent provision to make for her daughter. While she should remain a wife her husband would be under obligation to support her, and hence the income only was absolutely left her during the continuance of that relation; but when she should cease to be a wife, and so become dependent upon her own resources, it was just and wise to provide that she should have the entire estate."Thayer v. Spear, 58 Vt. 327, 2 Atl. 161. 95 Born v. Horstmann, 80 Cal. 452, 5 L. R. A. 577, 22 Pac. 169, 338; Daboll v. Moon, 88 Conn. 387, Ann. Cas. 1917B, 164, L. R. A. 1915A, 311, 91 Atl. 646; Ransdell v. Boston, 172 Ill. 439, 43 L. R. A. 526, 50 N. E. 111; Winn v. Hall, 1 Ky. L. Rep. 337; Cowley v. Twombly, 173 Mass. 393, 46 L. R. A. 164, 53 N. E. 886; Coe v. Hill, 201 Mass. 15, 86 N. E. 949; Witherspoon v. Brokaw, 85 Mo. App. 169; Cooper v. Remsen, 5 Johns. Ch. (N. Y.) 459; Thayer v. Spear, 58 Vt. 327, 2 Atl. 161. 96 Born v. Horstmann, 80 Cal. 452, 5 L. R. A. 577, 22 Pac. 169. Most of the cases involve gifts to daughters, but the principle is the same where the beneficiary is a son.-Ransdell v. Boston, 172 Ill. 439, 43 L. R. A. 526, 50 N. E. 111. where a child of the testator is living separate and apart from her husband, or his wife, as the case may be, and divorce proceedings are pending between them, there is nothing contrary to public policy to impose a condition whereby an estate given should be increased in the event of divorce.97 While inducing the separation of a husband and wife is against public policy, yet the law provides for and sanctions divorce, and there is no more reason for holding that a divorce will be wrongfully procured in order to secure property than that death might be so occasioned. There is a difference in such a case from one where the gift is made upon condition that the beneficiary should lose the property if he did not secure a divorce.98 And where a testator refers to the fact that his daughter may be compelled to leave her husband because of his cruelty, and bequeaths her a legacy to be paid as soon as the executor shall be convinced that it is impossible for the daughter to live with her husband, the condition is not unreasonable in view of the fact that the beneficiary is not the judge as to whether or not she should leave her husband, since the determination is lodged in the executor."9 Although a will is to be construed according to the testator's intention, yet if it does not appear from the terms of the will itself that a provision therein was inserted to induce the testator's daughter to secure a divorce from her husband, such intention can not be shown 97 Ransdell v. Boston, 172 Ill. 439, 43 L. R. A. 526, 50 N. E. 111; Cooper v. Remsen, 5 Johns. Ch. (N. Y.) 459; Wright v. Mayer, 62 N. Y. Supp. 610, 47 App. Div. 604. 98 Cowley v. Twombly, 173 Mass. 393, 46 L. R. A. 164, 53 N. E. 886. 99 Dusbiber V. Melville, 178 Mich. 601, 51 L. R. A. (N. S.) 367, 146 N. W. 208. by extrinsic evidence to the effect that the testator had objected to his daughter's marriage.1 § 1069. Condition That Beneficiary Marry Only With Consent of Certain Persons. A devise or bequest on condition that the donee do not marry without the consent of a guardian, trustee, executor of the estate, or other designated person, there being a gift over upon breach of condition, is not such a general or unreasonable restraint upon marriage as will render the condition void. Such conditions usually refer to the first marriage, and it is sufficient if the beneficiary has obtained consent thereto. With real property, a gift over is not necessary to make the condition valid, but with respect to personalty, a provision that the legatee shall forfeit the bequest upon marriage without the consent of designated persons is generally considered in terrorem only unless there is a gift over upon default of condition. The failure of the testator to make a further disposition upon breach of condition strengthens the idea that the provi 1 Ellis v. Birkhead, 30 Tex. Civ. App. 529, 71 S. W. 31. See, also, Ransdell v. Boston, 172 Ill. 439, 43 L. R. A. 526, 50 N. E. 111. 2 Long v. Ricketts, 2 Sim. & St. 179; In re Stephenson, 13 Week. R. 1066; Fry v. Porter, 1 Mod. 300; Dawson v. Oliver-Massey, L. R. 2 Ch. Div. 753; Collet v. Collet, 35 Beav. 312; Collier v. Slaughter's Admr., 20 Ala. 263. 3 Lowe v. Manners, 5 Barn, & Ald. 917; Randal v. Payne, 1 Bro. C. C. 55. 4 Lloyd v. Branton, 3 Mer. 108; II Com. on Wills-43 Wheeler v. Bingham, 3 Atk. 364, 368; Semphill v. Bayly, Prec. Ch. 562; Shackelford v. Hall, 19 Ill. 212; Gough v. Manning, 26 Md. 347. Compare: Phillips v. Ferguson, 85 Va. 512, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241. As to conditions against contesting the will annexed to gifts of personalty, if no gift over, see §§ 1055, 1056. As to conditions in restraint of marriage annexed to gifts of personalty, if no gift over, see § 1062. |