Page images

small part of the qualification necessary for deciding on the validity of conditions in restraint of marriage. We have but put aside all the judicially collected rubbish which impedes us at the threshold of our inquiry. We have learnt only to decide under what circumstances a testator shall be presumed to have meant what he has said, and it remains to be seen how far the Law will permit his intentions when discovered by the Canons of Construction already noticed, to be carried into effect.

It is not every condition in restraint of marriage that is illegal. If a condition is what Equity considers reasonable, it has some chance of being enforced. The delicate task of discriminating between reasonable and unreasonable conditions, has, of course, afforded abundant opportunity for the display of differences of opinion among the Judges. On the whole, however, we do not think that the conclusions arrived at are, as a rule, sufficiently remarkable either for their sagacity or the reverse, to be of any great value, whether by way of example or warning; we do not propose, therefore, to dwell at length on this division of our subject, but only to mention shortly some few decisions which seem especially open to comment.

In the first place, Equity shows no indulgence to second marriages under any circumstances whatever. Widow or widower, young or old, childless or otherwise, Equity sees no reason why any one should not be debarred from marrying again under pain of pecuniary loss. This result seems to have been arrived at by easy stages. It was very early decided that a testator might reasonably hold out a pecuniary inducement to his widow to remain faithful to his memory, whether she had any children by him or not, and there is some authority in the early cases for supposing that sons had the like power of throwing obstacles in the way of the second marriage of their mother. It was, however, reserved for Lord Hatherley, when Vice-Chancellor, and the Court of Appeal, in the Chancery Division, to advance the doctrine as to second marriage by two important stages. Lord Hatherley (Newton v. Marsden, 2 J. & H., 356, 31 L.J. Ch. 690) in a very long and elaborate judgment, decided on the balance of authority, that any one may impede the marriage of a widow to the same extent as her late husband, and it has quite recently been held by the Court of Appeal (Allen v. Jackson, 1 Ch. Div., 399), reversing the decision of Vice-Chancellor Hall, that the second marriage of a widower is not more favoured than that of a widow. In the entire want of sympathy with second marriages evinced by the Judges, they are not altogether in accord with the Civil Law, which only countenanced restraints on second marriage where the interests of the children of the former marriage might be affected. We confess that, in our opinion, the ancient law might have been followed with advantage. It seems a little hard that persons whose first marriage has not been attended with the natural result should be restrained from contracting a second, particularly, as a learned Judge pathetically observed, where the surviving party is still of an age to do good service to the State by the procreation of children. We are aware that there exists some diversity of opinion with regard to the precise degree of merit attaching to such a service, but without entering into that delicate inquiry, it is enough for us to suggest that most of the objections to the marriage of childless widows and widowers apply equally to first marriages.

The Court does not look with any disfavour upon conditions restraining marriage without consent where such conditions are deemed reasonable, and the judges have felt no difficulty in upholding the validity of conditions whether precedent or subsequent requiring the consent of trustees to the marriage of a legatee under age, indeed it has been held by the Lords Justices (Younge v. Furse, 8 D. M. & G., 756), that a testator may legally declare a forfeiture upon the marriage of his daughter (and we presume of any other woman), with or without consent, under the age of 28. This seems a strong decision, and under the circumstances, the testator having himself, shortly before he died, consented to the proposals of the young gentleman, subject only to his daughter's approval, it was particularly hard on the legatee. Even in the absence of any special element of hardship, we think a condition prohibiting the marriage of a woman under 28 can scarcely in fairness be called a reasonable condition. We can quite understand that to elderly gentlemen like the Lords Justices, who were perhaps at the age of 28, only in the first struggles of their professional career, that age should savour of extreme youth, but they should remember that girls are commonly placed in the way of receiving proposals of marriage at the age of 17 or 18, and that to prolong for ten years the inconveniences, of an engagement when they might at once be put an end to by the nearest parson, much to the satisfaction of all parties, is indeed a serious responsibility.

But although a testator may prohibit his daughter, under pain of pecuniary penalties, from marrying under the age of 28 at his own absolute discretion without giving any reason whatever, it would appear from the case of Morley v. Rennoldson, 2 Hare, 579, that he may not altogether prohibit her from marrying even though he gives what most people would consider a good reason for the prohibition. In that case the testator purported to prohibit his daughter from marrying on the ground that she was suffering from nervous debility, which totally unfitted her for the control of herself, nevertheless the prohibition was held to be void. The evidence indeed went to show that the testator was mistaken in his estimate of his daughter's state of health, but the judgment of Vice-Chancellor Wigram goes the length of affirming that nothing short of an absolute incapacity to contract marriage, such as would in itself suffice to render the ceremony void, justifies a condition in general restraint of marriage. Our sympathy in this case is with the testator rather than his daughter, but in general the former has much the best of it. Not only is he permitted, and even encouraged, to hinder a woman from marrying any specified individual whom he may happen to dislike, but the law actually considers it reasonable that he should be empowered to impose a husband of his own choice as the price of enjoying his bounty. When not to marry A. B. is considered a punishable offence, we may conceive with what severity the crime of insisting upon marriage with C. D. is regarded by the judges. Lord Chancellor King (Jarvis v Duke, 1 Vern, 19), waxed very eloquent on the “presumptuous disobedience” of such conduct, and observed that the delinquent highly merited her punishment "she being only prohibited to marry with one man by name and nothing in the whole fair Garden of Eden would serve her turn, but this forbidden fruit.” The judges have experienced great difficulty in dealing with those cases where a testator has made his bounty dependent on marriage with consent, without limiting any time after which the legatee may marry without consent. Here the most refined distinctions have been taken, and the authorities are in a chaotic state of confusion. It is not only that all the before-mentioned inquiries may have to be made, ist as to the nature of the property in dispute, whether realty, personalty, proceeds of sale of realty, or a mixed fund, 2ndly as to the nature of the condition whether precedent or subsequent, 3rdly as to whether there is a gift over, or 4thly an alternative gift-on every one of which points very difficult questions may arise-it is not only that a definite answer has, if possible, to be obtained to some, or perhaps, all of these perplexing inquiries, but that when the required results have with infinite labour been worked out, it often happens that the law applicable to them is involved in so much doubt, and the authorities are so confused and contradictory as to justify the Court in pronouncing a decree for either party it pleases.

The cases on gifts of land, and legacies charged on land, are particularly unsatisfactory and hard to reconcile. We. have seen that in the construction of such gifts the doctrine of in terrorem does not apply. This seems to be the only distinction established beyond all dispute. We seek in vain to discover from the authorities how far, or in what respects, the Law as to conditions in restraint of marriage annexed to gifts of realty differs from the Law relating to legacies out of personalty where there is a gift over, so as to eliminate the in terrorem factor of the problem, or even whether there is any difference at all. It has often been said that conditions precedent annexed to devises must be scrupulously complied with in order to raise the estate, either leaving it to be inferred, or sometimes expressly stating* that conditional bequests of personalty stand on a different footing; we are, however, unable to gather from the cases, taken collectively, in what the difference, if there be any, consists, and we doubt very much whether a condition precedent in restraint of marriage could be framed so as to be valid if annexed to realty, and void, notwithstanding a gift over, if annexed to personalty. In whatever way the Law may be finally settled, as regards conditions precedent, up to a very recent time we considered there could be no reasonable doubt as to one feature, at least, of the Law applicable to conditions subsequent. We used to be clearly of opinion that if any proposition of Law or Equity could be considered to be established beyond all controversy, it was the proposition that conditions subsequent in general restraint of marriage are altogether void, whether annexed to devises of realty or to bequests of personalty. What then was our astonishment when we found that six very learned Counsel had recently succeeded in convincing (Bellairs v. Bellairs, 18 Eq., 510) no less eminent a Judge than the present Master of the Rolls that a condition in general restraint of marriage, whether precedent or subsequent, annexed to a devise of realty, is

* As in the case of Reynish v. Martin, 3 Atk., 330, but see Webb v. Grace, 2 Ph., 701.

« PreviousContinue »