We are of opinion, therefore, that the daughter's marriage without the consent of her mother, was a breach of the condition. The consent of the executor alone, was not sufficient The testator required the consent of both the mother and the executors. In Clarke v. Parker, 19 Ves. 17, Lord Eldon said: " There is no case, in which it has been held, that, the consent of three trustees being required, that consent, which, if there were only two, would have been quite sufficient, would do, the third not having been at all consulted. There was a discretion in him as well as in the others; and there is no authority that, if the consent of three is required, a marriage with consent of two only is that which the will has prescribed." The remarriage of the mother did not dispense with the necessity of her consent to her daughter's marriage. The will does not provide that in the event of the mother's marriage, her consent shall be no longer necessary. The testator transferred the custody and guardianship of his children to his executors in the event of the remarriage of his wife. He probably deemed it prudent, to put it out of the power of a second husband to intermeddle with the persons or estate of the children. But he uses no language indicating any intention to dispense with the mother's consent to the daughter's marriage before twenty-one, in case the mother married. Her natural love and duty may well have been regarded by the testator as affording a sufficient guaranty that the power to give or withhold consent would not be abused.
The condition, therefore, of the legacy to the daughter having been broken by her marriage without consent, the question remains, whether the condition is effective to limit the legacy to the sum of $5,000. If the question depends upon the general rules of law applicable to conditions, it is plain that the daughter, by breach of the condition, forfeited the primary legacy. A condition prohibiting marriage before twenty-one without consent, is by the common law valid and lawful. It is otherwise of conditions in general restraint of marriage, they being regarded as contrary to public policy, and the "common weal and good order of society." But reasonable conditions designed to prevent hasty or imprudent marriages, and to subject a child, or other object of the testator's bounty, to the just restraint of parents or friends during infancy, or other reasonable period, are upheld by the common law, not only because they are proper in themselves, but because by upholding them the law protects the owner of property in disposing of it under such lawful limitations and conditions as he may prescribe. Story's Eq. Jur. § 280 et seq., and cases cited. Now it is the general rule of law that a breach of a lawful conditon annexed to a legacy either divests it, or prevents an estate therein arising in the legatee, depending upon whether the condition is precedent or subsequent. In accordance with this general principle, it was held in In re Dickson's Trust, 1 Sim. (N. S.) 37, that a condition subsequent that the legatee should not become a nun was valid, and that the legacy was forfeited by breach of the condition, although there was no gift over. But it has been the settled law of England for a long period, that a condition subsequent annexed to a legacy, in qualified restraint of marriage, although the restraint was lawful and reasonable, nevertheless did not operate upon breach to divest the title of a legatee, unless there was an express gift over on breach of the condition, or a direction that the legacy should fall into the residue, and pass therewith, which is deemed equivalent to a gift over. The condition where there is no devise over, is said to be in terrorem merely, a convenient phrase adopted by judges to stand in place of a reason for refusing to give effect to a valid condition. Harvey v. Aston, supra; Reynish v. Martin, 3 Atk. 330; Wheeler v. Bingham, Id. 364; Lloyd v. Branton, supra; Stackpole v. Beaumont, 3 Ves. Jr. 89; In re Dickson's Trust, supra; Marples v. Bainbridge, 1 Mad. 590. In Lloyd v. Branton, Sir William Grant, referring to the subject, says, "Whatever diversity of opinion there may have been with respect to the necessity of a devise over in the case of conditions precedent, I apprehend that, without such a devise, a subsequent condition of forfeiture on marriage without consent has never been enforced. "It is not necessary to state at length the reason of the apparent anomaly in the law upon the subject. This is fully explained in the judgment of Lord Thurlow, in Scott v. Tyler, 2 Bro. Ch. 432, and of Lord Loughborough, in Stackpole v. Beaumont. Suffice it to say, that it grew out of the adoption, by the English ecclesiastical courts and the courts of equity, of the rules of the civil and canon law, by which all conditions in restraint of marriage (with very limited exceptions), or conditions requiring consent, were held to be void. The ecclesiastical courts, having jurisdiction to enforce the payment of legacies, adopted the rule of the civil law in all cases, without considering that by the common law reasonable conditions in restraint of marriage were valid. The distinction made in cases where there was an express devise over does not seem to be founded upon any principle, and may possibly have grown out of an effort to partially restore the harmony of the law.
It is a clear proposition, therefore, that according to the settled law of England, the legacy in this case, if it is regarded as a purely-personal legacy, was not forfeited by the marriage of the testator's daughter without consent. There was no devise over on breach of the condition. The only gift over was in the event of the daughter's dying unmarried before twenty-one. It has been frequently decided that a general gift of a residue is not a gift over within the rule. Wheeler v. Bingham, supra; Lloyd v. Branton, supra. The condition, therefore, in this case would be in terrorem only within the cases cited.