As the sanctity of the marriage relation is at the foundation of the welfare of the State, the law has looked with jealous regard at contracts concerning that relation. A contract or a condition in restraint of marriage has been generally held void.69 Such conditions are not infrequently attached to conveyances or gifts by will;70 and in such transfers the general rule is that if the condition is precedent to the vesting of an estate, the estate fails and the attempted transfer is ineffectual; but if the condition is subsequent the estate conveyed is never divested and the transfer is absolute.71 In contracts it is not easily possible for the condition to be subsequent in effect though it may be so in form.72 Consequently if a condition in a contract is in unlawful restraint of marriage, as well as where the promise itself is open to similar objection, no obligation ever arises.73 Some exception to the general principle is, however, admitted.
66 Crocker v. United States, 240 U. 8. 74, 60 L. Ed. 533, 36 S. Ct. 245. See also Wakefield Banking Co. v. Normanton Local Board, 44 L. T. (N. S.) 607.
67 Crocker v. United States, 240 U. S. 74, 60 L. Ed. 533, 36 S. Ct. 245; Chouteau v. Allen, 70 Mo. 290. But see Lindsey v. Philadelphia, 2 Phila. 212.
68 See supra, Sec. 1529.
69 Hartley v. Rice, 10 East, 22; Lowe v. Peers, 4 Burr. 2225; White v. Equitable Nuptial Ben. Union, 76 Ala. 251, 52 Am. Rep. 325; Chalfant v. Payton, 91 Ind. 202, 46 Am. Rep. 586; James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; McCoy v. Flynn, 169 Iowa, 622, 151 N. W. 465, L. R. A. 1915 D. 1064; Boetick v. Blades, 59 Md. 231, 43 Am.
Rep. 548; Lowe v. Doremus, 84 N. J. L. 658, 87 Atl. 459, 49 L. R. A. (N. S.) 632; Conrad v. Williams, 6 Hill (N. Y.), 444.
70 See Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949,49 L. R. A. (N. S.) 605, and note thereto.
71 Story's Equity Jurisdiction, Sec. 288; Hogan v. Curtin, 88 N. Y. 162, 42 Am. Rep. 244.
73 Lowe v. Peers, 4 Burr. 2225; McCoy v. Flynn, 169 Iowa, 622,151 N. W. 465, L. R. A. 1915 D. 1064; Conrad v. Williams, 6 Hill, 444.
Restraint of second marriages has generally been held permissible; 74 and reasonable contracts involving the performance of services which are inconsistent with matrimony have been upheld.75 If the restraint is unreasonable, the fact that it is limited in time will not prevent the contract from being unlawful.76 And it has been held that a contract between third persons to endeavor to prevent a contemplated marriage of a relative was illegal although the woman in question was of bad character.77 Contracts to bring about marriage - so-called marriage brokerage contracts - are likewise invalid.78