In the reasoning of Lord Justice Mellish he was equally explicit in holding the condition against the second marriage of the husband valid, and the gift over on breach of the condition effectual. And in the concurring opinion of Justice Baggally, the present state of the English law upon the subject is summed up and stated with admirable clearness. He says: " Now the present state of the law as regards conditions in restraint of the second marriage of a woman is this, that they are exceptions from the general rule that conditions in restraint of marriage are void, and the enunciation of that law has been gradual. In the first instance, it was confined to the case of the testator being the husband of the widow. In the next place, it was extended to the case of a son making the will in favor of his mother. That, I think, is laid down in Godolphin's Orphans Legacy, p. 45. Then came the case before Vice-Chancellor Wood of Newton v. Marsden, 2 J. & H. 356, in which it was held to be a general exception by whomsoever the bequest may have been made. Now the only distinction between those cases and the present case is this - that they all had reference to the second marriage of a woman, and this case has reference to the second marriage of a man; but no case has been cited in which a condition has been held to be utterly void as regards the second marriage of a man; and following the analogy of the other cases, there seems no reason at all why a distinction should be drawn between the two sexes as regards this matter. It appears to me that this condition is one which may fairly be treated as valid, and I think so the more for this reason. Here is a gift in favor of a man, which, if he is not deprived of it on the occasion of his second marriage, he may very probably or very possibly settle upon a second wife, and altogether deprive the original family, which was the object of the testatrix's bounty." We have thus stated somewhat at large the reasoning of that case, because of the entire absence of any direct authority in our own courts; and the conclusion of the Court of Appeal, founded as it is upon such cogent reason, and deduced from the principles of the common law, commends itself strongly to our assent. In the absence of any binding authority to the contrary, we are of opinion that there is no good and substantial ground for maintaining a distinction between a condition imposed in restraint of a second marriage of a woman and a like condition in restraint of a second marriage of a man. As the one is valid and effectual, so is the other; and we, therefore, hold that the devise over to the plaintiff in this case, on breach of the condition by the defendant, is valid, and that the plaintiff is entitled to recover. * * *

Judgment affirmed.

Hogan V. Curtin

88 New York, 162. - 1882.

Andrews, Ch. J. - We do not deem it essential to determine the question which has been argued at the bar, whether the condition in abridgment of the legacy to the daughter, in case of her marriage without consent, is precedent or subsequent, as we are of opinion that, while in some cases this would be a controlling consideration, in this case the same result will follow either construction. But we think the condition was subsequent. The gift to the daughter in the fourth clause is immediate, but the payment is postponed until she shall attain the age of twenty-one years, with a provision for the acceleration of the payment on her marriage with consent before that age, and a gift over by way of substitution to the sons, in case of the daughter's dying unmarried during her minority, and a revocation of the gift to the daughter, except as to the sum of $5,000 in case of her marriage before twenty-one, without consent. The time is annexed to the payment and not to the gift. In Garret v. Pritty, 2 Vera. 293, more fully reported in a note to Lloyd v. Branton, 3 Mer. 118, the will contained a provision similar to that in the will in question. In that case the testator bequeathed to his daughter, Elizabeth, 3,000, to be paid in manner following. 2,000 when she should attain the age of twenty-one, or upon the day of her marriage, which should first happen, etc., and 1,000 at the end of two years, etc., and the will provided that in case the daughter should be married before she attained the age of twenty one without consent, etc., then the legacy of 3,000 before given to her should cease and be void, and in lieu thereof, the testator gave her 500 only. In Harvey v. Aston, 1 Atk. 378, Lord Chief Justice Lee, referring to Garret v. Pritty, said: 'In the case of Garrett v. Pritty, the portion was plainly a vested portion, and the proviso comes in afterward and is to be considered as a condition subsequent." In Graydon v. Hicks, 2 Atk. 16, the will was, " I give the sum of one thousand pounds to my only daughter, Mary Graydon. to be paid to her at her age of twenty-one years, or on the day of her marriage, which shall first happen, provided she marry by and with the consent of my executor, but in case she dies before the money becomes payable on the condition aforesaid, then I give the said one thousand pounds equally between my two youngest sons," etc., and Lord Hardwicke said that he was of opinion that this is only a condition subsequent, to divest a legacy in case of a marriage before twenty-It may be observed that in the present case the words " heretofore bequeathed to her, "in the clause providing for an abridgment of the legacy in case of marriage without consent, naturally refer to a legacy which had been given by the preceding clause, which, by the second clause, was to be in part divested by a marriage contrary to the condition. We think the authorities sustain the view that the condition in this case was subsequent and not precedent. See Roper on Legacies, vol. 1, p. 554, and cases cited.

The next question is, whether the marriage of the daughter, under the circumstances stated, was a breach of the condition. The language is, that if the daughter should marry " against the consent of my said executors and her mother," etc. The finding is that she married with the consent of the sole executor, but without the consent of her mother. It is claimed that a marriage without the mother's consent is not a marriage against her consent It was said by Lord Hardwicke in Reynish v. Martin, 3 Atk. 334, that there was a material distinction between a condition that the legatee should not marry without consent, and a condition that she shall not marry against consent. The precise distinction which Lord Hardwicke had in mind is not pointed out. It could hardly be claimed that a condition not to marry against consent could be broken only where there was an affirmative prohibition of the marriage before it took place. Such a construction would permit a clandestine or secret marriage to be contracted, without involving a forfeiture of the legacy. But without undertaking to trace the alleged distinction, it is sufficient to say in this case, as was said by Sir John Leach in Long v. Ricketts, 2 Sim. & Stu. 179, that, " to make the will consistent, the word ' against * here must read in the sense of ' without.' The testator evidently uses the word against, in the last sentence of the fourth clause, as the correlative of with, in the first sentence. In the first sentence he gives the legacy, on the daughter's marriage before twenty-one, with consent, and in the last, he abridges it in case of her marriage against consent, using that word as the synonym of without. This is also rendered clear by the language of the eighth clause, which provides for the daughter's maintenance by the executors, out of the proceeds of the real estate until twenty-one, "and until my said daughter shall get married, with their consent and that of her mother, as hereinbefore stated."