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perfectly good. It was unnecessary to decide the question as the ingenious six (who certainly deserved a better fate) were held to be out of Court on another point, but it is somewhat strange, at this time of day, to find six Counsel capable of asserting, and an unusually able Judge capable of taking for granted, as he did in the most explicit and positive manner, the non-existence of what is, we venture to think, the most elementary and fundamental of all the propositions connected with the subject under discussion. Fortunately, we are relieved by a still more recent case before the Lords Justices (Allen v. Jackson, I Ch. D., 399), from the necessity of considering whether the dictum of the Master of the Rolls may not, after all, be well founded. But while we agree that he was not justified in the truly startling conclusion he arrived at, the mere fact that so distinguished a Judge could be led into so grave and fundamental an error, sufficiently shows the unsatisfactory state of the authorities.
It will; we hope, be understood that in passing judgment on the inconsistent and unintelligible mass of authority which, at present, encumbers the question of the validity of conditions in restraint of marriage, we are far from ignoring the extreme difficulty of dealing satisfactorily with so delicate and complex a subject. While we believe that scarcely anything could be worse than the present state of the Law, we willingly admit that the Judges, in undertaking a crusade on behalf of matrimony, embarked upon an enterprise partaking of the nature of a forlorn hope. It is true that by multiplying distinction upon distinction they added obstacles of their own creation to those which were already sufficiently formidable ; but we must not forget the serious character of the impediments which unavoidably obscured the prospect of success. We do not say that the Judges acted wrongly in endeavouring to protect the interests of matrimony against the machinations of crochety testators; we are by no means convinced that if, by the instrumentality of any moderately intelligible code, a testator could be deprived of the power of creating a forfeiture on the marriage, however eligible, of a legatee, such a consummation would not be desirable ; nay, further, if the present Law, with all its defects and absurdities, were successful in securing the object it professes to have in view, if it did, in fact, render it impossible or even difficult to frame a valid condition in general restraint of marriage, we allow there would be some tangible result to set in the balance against the profuse expenditure in litigation occasioned by contradictory decisions and the growth of unreal distinctions, a result that we conceive might be considered by some persons, other than lawyers, as worth, say, a small fraction of the amount netted in costs by the legal profession. But even this set-off cannot be claimed. It is ‘not impossible, it is not even difficult to frame a condition in general restraint of marriage, in such a way as to hold good against the whole Bench of Judges. On the contrary, it is well-known to every country solicitor that nothing is easier than to frame such a condition, and perhaps there is scarcely a country solicitor in good practice who has not framed many of them. The process is delightfully simple,-no elaborate fictions are required, no intricate formalities have to be complied with, such as used to be considered necessary, to throw a decent veil over the proceedings in fines and recoveries,—all that has to be done is, instead of declaring a forfeiture on marriage, to declare that the devisee or legatee shall only enjoy the testator's bounty until marriage, in other words, to turn what is technically known as a condition, into what is technically known as a limitation. It requires no argument to show that the distinction between a condition and a limitation is just as unreal, with reference to the question under discussion, as the distinction between conditions subsequent and precedent. Every condition of forfeiture necessarily implies a limitation until forfeiture,
and it is obviously a mere chance whether a testator, without a lawyer at his elbow, expresses himself in the one form or the other; or as in the case of Webb v. Grace, 2 Ph. 701, in some intermediate form, of which the interpretation is as much a chance as was the original choice of words. The distinctions taken on this head are of course extremely fine. The tendency of the recent decisions has been in favour of construing everything as a limitation. Where, instead of an absolute forfeiture, there is an alternative bequest on marriage, it seems, notwithstanding a very explicit gift for life in the first instance, that effect will be given to the clause of partial forfeiture, by way of limitation.* Indeed, in the recent case of Allen v. Jackson, already referred to on another point, the Lords Justices expressed much doubt as to whether an express limitation during life was not, under the circumstances, cut down by a subsequent clause of absolute forfeiture on marriage, so as only to take effect as a limitation until marriage. If the doubt entertained by the Lords Justices be well founded, we submit that the law relating to conditions in restraint of marriage would die a natural death for want of a subject upon which to operate, for if the words in Allen v. Jackson did not constitute a condition, it is difficult to see how there can be any such thing at all as a condition as distinguished from a limitation. The Lords Justices endeavoured to persuade themselves that the distinction between conditions and limitations was a distinction capable of being decided with reference to the intention of the testator. We would gladly think it were possible to accept this view. It is, however, clearly untenable, the distinction is and must always remain a mere question of phraseology. By creating a forfeiture to take place on the happening of any specified event, the intention of the testator, in whatever terms the clause of forfeiture may be framed, is that the legatee shall enjoy his bounty until the happening of that event, and * But see contra Bellairs v. Bellairs, L.R. 18 Eq. 510, noticed above.
no longer, and such intention is rendered neither more nor less evident by the circumstance of its being expressed in terms importing a limitation rather than a condition. The most disheartening part of the business is that this silly verbal quibble is not a legacy of the past, but, on the contrary, has only been fully established within the last forty years. There are several cases where a condition expressed in terms bearing a remarkably close resemblance to a limitation has been held to be void, and we have been unable to find any definite authority (except some dicta in an old case of Low v. Peers, Wilmot, C.J., 369) affirming the validity of limitations in general restraint of marriage, until the well-known case of Morley v. Rennoldson (2 Hare, 570) before Vice-Chancellor Wigram, in 1843, who says (p. 579): “Until I heard the argument of this case, I had certainly understood that, without doubt, where property was limited to a person until she married, and when she married then over, the limitation was good. It is difficult to understand how this could be otherwise, for in such a case there is nothing to give an interest beyond the marriage. If you suppose the case of a gift of a certain interest, and that interest sought to be abridged by a condition, you may strike out the condition, and leave the original gift in operation; but if the gift is until marriage, and no longer, there is nothing to carry the gift beyond the marriage.”
With all due deference to the learned Judge, we fail to see how any difficulty, much less any insuperable difficulty, can arise from the circumstance “ that in a gift until marriage and no longer, there is nothing to carry the gift beyond the marriage.” On this point we may observe, first, that this remark does not apply to gifts “until death or marriage,” which words are held to create a valid limitation, and, secondly, that when a testator gives an estate until marriage, he must be held to contemplate, even if he has not in terms provided for, the contingency of the donee never perpetrating the proscribed offence of matrimony, and therefore a gift until marriage, although it does not in so many words confer a life interest, is clearly equivalent to an estate until death or marriage. This construction is, in fact, a simple application of the doctrine of estates by implication, a doctrine well known to the Court of Chancery. If there is a gift over on the death or marriage of a donee, the intention becomes, if possible, even more obvious; if, on the other hand, the estate of the donee is enlarged by means of a power or otherwise in the event of his or her dying unmarried, such a disposition is equivalent to an original gift of such enlarged interest subject to a condition in restraint of marriage. But supposing a difficulty might arise, though in no case that we are aware of could any such difficulty have in fact arisen, as to the amount of the estate given in the event of celibacy, surely rather than allow a rule of policy to be evaded by the silliest of quibbles, the difficulty should be boldly faced, as many difficult points of construction have before now been faced, by the Court. We think that the arm of the Court, which is constantly represented as being long enough to reach, and strong enough to defeat, any attempted evasion of its rules whereby a person purports to effect indirectly what he could not have effected directly, has in this case been paralysed by excess of caution. It is not every Judge who regards the present state of the law with as much complacency as Vice-Chancellor Wigram. Lord Justice Knight-Bruce said (Heath v. Lewis, 3 D. M. & G., 954): “It must be agreed on all hands that it is by the English law competent for a man to give to a single woman an annuity until she shall die or be married, whichever of these two events shall first happen. All men agree that if such a legatee shall marry, the annuity will thereupon cease. But this proposition has been advanced-a proposition which, if true (and I do not deny its truth), is perhaps not creditable to this English law—that if a man give an annuity to a woman who has never married, for life, and afterwards