This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
A case, such as that just referred to, in which the estate is subject to a condition precedent of the non marriage of the person to whom the estate is given, is to be distinguished from a case in which the estate is subject to a condition precedent of the marriage of another to whom an estate is previously given by the same instrument, as for instance when an estate is given to A and his heirs, but if A marries then to B and his heirs. Such a condition, operating in restraint of A's marriage by divesting his estate thereon in favor of B, is properly a condition precedent and not a condition subsequent,44 but it is usually referred to in this connection as a condition subsequent and its validity is determined by the same considerations as would apply in case it actually were a condition subsequent to A's estate.45
According to some authorities, the doctrine of the invalidity of conditions in restraint of marrage is confined to limitations of personal property and such a condition, no matter bow absolute the restraint imposed thereby, is valid in connection with real property.46 But the weight of authority is to the effect that a condition subsequent, in the case of real as well as personal property, is void if in restraint of marriage, either absolutely or to an unreasonable extent, as when, to cite the illustrations used by Justice Story, it prohibits the grantee or devisee from marrying till he is fifty years of age, or from marrying a person of the same town, county, or state, or any person pursuing a particular profession or trade.47 If, however, the restraint is reasonable, as where marriage is forbidden until the donee arrives at a certain age, not excessive, such as twenty-one, or where the consent of parents or trustees is required, or where marriage with a particular person is forbidden, the condition is valid.48
44. Ante Sec. 75.
45. See e. g., In re Alexander's Estate, 149 Cal. 146, 9 Ann. Cas. 1141, 85 Pac. 308; Otis v. Prince, 10 Gray (Mass.) 581; Randall v. Marble, 69 Me. 310, 31 Am. Rep. 281; Knost v. Knost, 229 Mo. 170, 49 L. R. A. (N. S.) 627, 129 S. W.
665; Smythe v. Smythe, 90 Va. 638, 19 S. E. 175.
46. 2 Jarman, Wills, 885; Com. v. Stauffer, 10 Pa. St. 350, 51 Am. Dec. 489; Lancaster v. Flowers, 198 Pa. 614, 48 Atl. 896; Phillips v. Medbury, 7 Conn. 568.
It is generally agreed that in a devise by a husband to his wife a condition subsequent divesting her estate on remarriage is perfectly valid,49 an exception which was originally based, perhaps, on the interest which he has, on behalf of the children surviving him, in valid, a special limitation55 until marriage is valid, especially if there is a further limitation in favor of others upon the marriage. Under this view, though a devise to A on condition that he do not marry would be void, a devise to A until he marries, or for so long as he remains unmarried, would be valid.56 This distinction is, however, by no means satisfactory, since a special limitation may be quite as effective to discourage marriage as would a condition, and regarding the matter as one of public policy, the form of the provision is entirely immaterial. It has been remarked, in support of the distinction, that in the case of a limitation until marriage the estate must necessarily come to an end upon the marriage,57 but this is not so if the reference to marriage is entirely ignored, as a condition against marriage would be. For instance, in the case of a devise to one until marriage, if the reference to marriage is ignored, as being in effect, from the point of view of public policy, a condition in restraint of marriage, the devisee acquires merely an estate in fee simple or for life, which endures regardless of his marriage. The asserted distinction between the effect of a condition and limitation has in England been declared to be inapplicable in the case of realty, it being stated that the question should be decided, independently of the form of language used, by determining whether the intention was actually to discourage marriage.58 This view, that it is in each case merely a question of the intention, has also occasionally been asserted in this country59 with the suggestion, apparently, that the fact that the reference to marriage is in the form of a limitation raises a presumption that there is no intention to discourage marriage.60 The introduction of the element of intention in this connection, however, appears to involve a considerable revolution in the attitude of the courts, since, as has been remarked, "public policy is equally violated by a condition the natural effect of which is to promote celibacy, whether the testator intended it so to operate or not."61 As a matter of fact, it can but rarely happen, except in the case of a devise by one spouse to the other, that the condition forfeiting the estate on marriage is introduced with the intention of discouraging marriage by the beneficiary of the devise. It is ordinarily introduced either because the testator thinks that after marriage such beneficiary will not need the property to the same extent as before, or because the testator does not care to have the benefit of his or her bounty shared by such unknown and possibly undeserving person as may happen to marry the devisee.
her remaining a widow.50 The same rule has been applied to a like condition in a devise or bequest by a wife to her husband.51 And there are occasional decisions in which an absolute condition in restraint of marriage of a widow or widower has been upheld when the devise was made, not by the deceased spouse, but by a third person.52
47. 1 Story, Eq. Jur. Sec. 283; 2 Pomeroy, Eq. Jur. Sec. 933; Low v. Peers, 4 Burrow 2225; Kennedy v. Alexander, 21 App. Cass. (D. C.) 424; Shackelford v. Hall, 19 111. 212; Randall v. Marble, 69 Me. 310; 31 Am. Rep. 281; Sullivan v. Garesche, 229 Mo. 496, 49 L. R. A. (N. S.) 605, 129 S. W. 949; Munroe v. Hall, 97 N. C. 206, 1 S. E. 651; In re Miller's Will, 159 N. C. 123, 74 S. E. 888; Maddox v. Maddox's Adm'r, 11 Gratt. (Va.) 804. The English authorities on the subject are collated, with a showing in favor of the invalidity of such conditions, in an article by T. Cyprian Williams, Esq., in 12 Law Quart. Rev. 36.