§ 687. In the next place, contracts in restraint of marriage are void, upon grounds of public policy. If a man and woman reciprocally agree to marry each other, the contract is undoubtedly good. But if, by the terms of the contract, one of the parties be restrained from marrying at all, or from marrying anybody, unless it be a particular person, and there be no corresponding obligation on that person, the contract is considered as injurious to the general interests of society, and therefore void.1 Thus, an agreement between a man and a woman, by which he promised to pay her £1000, if he married any person except herself, was held to be void.2 So, also, a bond from a widow not to marry again, was decreed to be delivered up, although there was a counter bond to pay her a sum of money, if she did not.3
§ 688. So, also, a wagering contract for fifty guineas, that the plaintiff would not marry within six years, is prima facie greater, having regard to the subject-matter of the contract, than was necessary for the protection of the purchasers; and it was enforced against the vendors. The decision acknowledges the principle that contracts are void, if their object is to deprive the state of the benefit of the labor, skill, or talent of a citizen. But the court say that, on the other hand, public policy requires that when a man has, by skill or other means, obtained something that he wants to sell, he should be at liberty to sell it in the most advantageous way in the market, and, in order to enable him to do this, it is necessary that he should be able to preclude himself from entering into competition with the purchaser, provided the restriction is not unreasonable. He may not have any more restraint than is necessary for the benefit of the purchasers, but to that extent he may have it.
1 Baker v. White, 2 Vera. 215; Low v. Peers, Wilmot, 364; 4 Burr. 2225; Cock v. Richards, 10 Ves. 429, 438; Key v. Bradshaw, 2 Vern. 102; Atkins v. Farr, 1 Atk. 287; 2 Eq. Cas. Abr. 247, 248; Woodhouse v. Shepley, 2 Atk. 535; 1 Story, Eq. Jur. § 274.
2 Low v. Peers, Wilmot, 364; 4 Burr. 2225; s. p. Cock v. Richards, 10 Ves. 429, 438.
3 Baker v. White, 2 Vern. 215. There is a distinction in the Roman law between general restraints of marriage, and restraint in respect of some particular person; and the former class of cases was held to be contrary to policy, and void; but not the latter. Pothier, Pand. Lib. 35, tit. 1, n. 34; Dig. Lib. 35, tit. 1,1. 63, 64; 1 Story, Eq. Jur. § 277.
§ 689. Conditions annexed to gifts, legacies, and devises, in restraint of marriage generally, are conditions in violation of public policy and that freedom of choice which is the safeguard of marriage, and are all void. So, also, if the condition, although it be not in restraint of marriage generally, narrow down and limit the freedom of choice, so as unreasonably to check and restrain it, it will be void. Thus, where a legacy was given to a daughter, on condition that she should not marry without consent, or should not marry a man who was not seised of an estate in fee-simple, of the clear yearly value of £500, it was held to be a void condition, because it tended directly to prohibit marriage.2
§ 690. Yet if the condition be reasonable in itself, and do not, in point of fact, operate improperly to restrain the contract of marriage, it will be binding; for the law will not break down those conditions which a provident affection has erected to guard the inexperience of youth against the machinations of the crafty and selfish; and while its policy is to encourage entire freedom of choice in marriage, it will also protect the rash and hasty from the consequences of their own folly. Yet a parent, under the pretence of affection and generosity, cannot incumber his gift with conditions that obstruct the real interests of the child, or the claims of society.3 Thus, a legacy given to a daughter, to be paid her at twenty-one years of age, on condition that she do not marry before that time, is valid; for such a postponement would manifestly enure to the benefit of the child.4 So, also, a condition not to marry against the consent of friends,5 or not to marry a particular person; or prescribing a particular place, or particular ceremonies,1 is good; because such conditions are not considered as creating an unreasonable restraint of marriage. The same rule also applies to a condition in the will of a husband, that his widow shall not marry again, or that she shall only receive an annuity while she remains a widow.2 But a condition, that a child shall not marry until fifty years of age,3 or shall not marry any person inhabiting the same town, or county, or State, or shall not marry any person, unless he be of a particular profession or trade, is void; because it operates as a virtual restraint of marriage generally.4
1 Hartley v. Rice, 10 East, 22.
2 Keily v. Monck, 3 Ridgw. P. C. 205, 244, 247, 261; 1 Eq. Cas. Abr. Condition, C, in marg.; 1 Chitty, Eq. Dig. Marriage, IV.; 1 Story, Eq. Jur. § 280.
3 1 Story, Eq. Jur. § 280, 281; 1 Fonbl. Eq. B. 1, ch. 4, § 10, note q; Godolph. Orph. Leg. pt. 1, eh. 15, § 1.
4 Stackpole v. Beaumont, 3 Ves. 96, 97; Scott v. Tyler, 2 Dick. 721, 722, 724.
5 Desbody v. Boyville, 2 P. Wms. 547; Scott v. Tyler, 2 Bro. C. C. 431, 485; 2 Dick. 722; Clarke v. Parker, 19 Ves. 1; Lloyd v. Branton, 3 Meriv. 108; Dashwood v. Bulkeley, 10 Ves. 239.
§ 691. If the condition of a gift or devise be precedent, the party in whose favor it is made must strictly comply with its requisitions. If the condition, however, be subsequent, the necessity of complying with it depends entirely upon its legality. For if it be illegal or void in any way, it is wholly inoperative, and the gift becomes absolute and unfettered by it. But if it be legal, it has the same operation and effect as any other condition, and if it be broken, will destroy the right of the party holding under it.5
§ 692. Again, there is another class of contracts relating to marriage, - namely, where a deed is made between a husband and wife, providing for their future separation, - which are considered void, as being against the policy of the law, and tending to facilitate the separation of husband and wife.6
1 Scott v. Tyler, 2 Bro. C. C. 488; 2 Dick. 721; Godolph. Orph. Leg. pt. 3, ch. 17, § 1 to 10; 1 Story, Eq. Jur. § 285.
2 Scott v. Tyler, 2 Bro. C. C. 488; 2 Dick. 721, 722; Harvey v. Aston, 1 Atk. 379; Marples v. Bainbridge, 1 Madd. 590; Richards v. Baker, 2 Atk. 321; 1 Roper on Leg., by White, ch. 13, § 2, p. 721, 722.
3 1 Story, Eq. Jur. § 283.
4 Scott v. Tyler, 2 Bro. C. C. 488; 2 Dick. 721.
5 1 Story, Eq. Jur. § 288; Co. Litt. 206 a; ib. 217 a; ib. 237 a, and note 152; Bertie v. Faulkland, 3 Cas. Ch. 130; s. c. 2 Freem. 220; 2 Vern. 333; 1 Eq. Cas. Abr. 110, margin; Harvey v. Aston, 1 Atk. 361; 2 Cora. 726; 1 Fonbl. Eq. B. 1, ch. 4, § 10, note q; Graydon v. Hicks, 2 Atk. 16; Long v. Dennis, 4 Burr. 2052; Popham v. Bampfeild, 1 Vern. 83. In the civil and ecclesiastical law there is no distinction between conditions precedent and conditions subsequent in respect to marriage. Harvey v. Aston, 1 Atk. 375; Reynish v. Martin, 3 Atk. 332.
6 Durant v. Titley, 7 Price, 577; Hindley v. Marquis of Westmeath, 6 B. & C. 200, 212.
Thus, a deed conveying lands as a security for the separate maintenance of the wife, in case future differences between husband and wife should arise, and they should cease to live together, is void.1 But a deed contemplating an immediate separation is held to be valid, on the ground that, if a separation is decided upon and inevitable, such a deed serves to save the wife from destitution.2 So, where the husband and wife were already separated, an agreement by the husband to pay a sum of money to the wife during separation, is valid, and may be enforced in chancery.3 So, also, although a deed should purport to be made in contemplation of an immediate separation, yet if, in fact, the parties should continue to live together, apparently as man and wife, it would not be good.4
§ 693. Again, where the separation of man and wife is inevitable and decided upon, a contract to furnish money to defray the expenses of procuring a divorce, would be binding, as not tending to induce a separation, but only to provide means to effect an ultimate decision.5