(6.) Void conditions and conditions impossible of performance.2
59 Maryland, 231. - 1882.
Alvey, J , delivered the opinion of the court. - * * * It would seem to be well settled by a great number of adjudications both in England and in this country, that conditions in general restraint of marriage, whether of man or woman, as a general rule, are regarded in law as being against public policy, and therefore void. But this rule has never been considered as extending to special restraints, such as against marriage with a particular person, or before attaining a certain reasonable age, or without consent. Nor has it ever been extended to the case of a second marriage of a woman; but in all such cases the special restraint by condition has been allowed to take effect, and the devise over held good, on breach of the condition. A condition, therefore, that a widow shall not marry, is, by all the authorities, held not to be unlawful. Scott v. Tyler, 2 Dick. 712; Jordan v. Holkham, Amb. 209; Barton v. Barton, 2 Vern. 308; 2 Pow. on Dev. 283; O'Neale v. Ward, 3 H. & McH. 93; Binnerman v. Weaver, 8 Md. 517; Gough and Wife v. Manning, 26 Md. 347; Clark v. Tennison, 33 Md. 85.
In the cases a distinction is taken between those where the restraint is made to operate as a condition precedent, and those where it is expressed to take effect as a condition subsequent; and the decisions have generally been made to turn upon the question, whether there be a gift or devise over or not. But if the gift or devise be to a person until he or she shall marry, and upon such marriage then over, this is a good limitation, as distinguished from condition; as in such case there is nothing to carry the interest beyond the marriage. There can be no doubt, therefore, that marriage may be made the ground of a limitation ceasing or commencing; and this whether the devisee be man or woman, or other than husband or wife. Morley v. Rennoldson, 2 Hare, 570; Webb v. Grace, 2 Phill. 701; Arthur v. Cole, 56 Md. 100.
1See also Lane v. King, p. 197, supra, for another illustration of the common-law view of a mortgage. - Ed.
pp. 561 infra, for cases on conditions held void as unreasonably restraining alienation. - Ed.
In this case, if the devise to the husband had depended alone upon the terms of the first part of the devise, that is to say, the terms " to have and to hold to him for and during the term or period after my death that he shall remain unmarried,' there could be no doubt it would have been a good limitation, and the estate devised to him would have terminated upon his second marriage. But we must read the whole clause together, and take one part in connection with the other, and so reading the terms of the devise, the terms that follow those just recited clearly put the devise in the form of a condition subsequent. The estate is given to the husband for life, but in the event of his second marriage it is devised over to the brother of the testatrix; or, in other words, the devise is to the husband for life, subject to a defeasance in the event of a second marriage. By the terms of this devise a vested estate passed to the husband for a definite duration, but by the happening of the event that was contemplated as possible, the estate, according to the contention of the plaintiff, became divested and passed over to the plaintiff.
Now, there being no question of the power of a husband to effectually impose such a condition in restraint of a second marriage of his widow, the question here is, whether a wife by a devise or gift to her husband can effectually impose a like condition in restraint of his second marriage. * * *
In the courts of England the direct question here presented does not appear to have arisen until very recently. In 1875 the case of Allen v. Jackson, L. R. 19 Eq. Cases, 631, was decided by Vice-Chancellor Hall. In that case, the testatrix gave the income of certain property to her niece (who was her adopted daughter) and the husband of the niece during their joint lives, and to the survivor during his or her life, with a proviso that if the husband survived his wife and married again, the property should go over. The husband survived the wife and married again; and the vice-chancellor held, that the attempted defeasance of the husband's life interest, was void as a condition subsequent in restraint of marriage. He said he could not hold the law to be the same as to the second marriage of a man as it is to the second marriage of a woman. That the law as regards the second marriage of a woman is exceptional, and that he did not think he could extend the exception to the case of a man.
That case was taken into the Court of Appeal (1 Ch. Div. 399), where it was fully argued upon all the principal authorities, before the Lord Justices, James, Mellish and Baggallay; and upon full consideration, they all concurred in holding that the proviso was valid as a condition, and that the gift over took effect; and consequently reversed the judgment of the vice-chancellor.
Lord Justice James reasoned the matter upon principle;, and he said that as there was no statute or express decision of any court to the effect, that there is any distinction whatever between the second marriage of a woman and the second marriage of a man, he was unable to see any principle whatever upon which the distinction could be drawn between them. He then shows to what injustice and hardship the distinction would lead. In the case of a widow, he said, it has been considered to be very right and proper that a man should prevent his widow from marrying again; and after stating the probable reasons for the rule, he proceeds to show with what reason and force they apply to the case of a gift or devise to a man with condition that he should not marry again. Suppose, he said, 'we had the case of a married woman having property which she had power to dispose of by her will, and she left it to her husband by reason of his being the widower, and for the purpose of enabling him to perform his duties properly as the head of the family which she may have left; it would be monstrous to say that when she provided for the contingency of the husband marrying a second time, and having a new wife and a new family, she should not be able to say, ' In that case he is to lose the estate, and it is to go over for the benefit of my children.' " " In this particular case," speaking of the case before him, " it was not the wife who was doing it, but it was a person who places herself in the position of the wife - the wife's mother - and who says, making a provision for her adopted daughter, that she gives her the income of her property for her life, and then gives it, after her death, to her surviving husband, evidently in his character of widower, with a declaration that if he should marry again it should go over to the child of the daughter who was the first object she intended to provide for - a most reasonable and proper provision, with respect to which it seems impossible to suggest that there is any ground of public policy against it."