Hogan v. . Curtin

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 subse *168 quent. 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 Vern. 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 mariner 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 Garret 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, a 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 JEabdwicke said that he was of opinion that this is only a condition subsequent, to divest a legacy in case of a marriage before twenty-one. 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 con *169 sent, 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 Hardwiokb 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 6 without.’ ” The testator evidently uses the word agañnst, 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 *170 one, “ and until my said daughter shall get married, with their consent and that of her mother, as hereinbefore stated.” 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 b.een 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 haying 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 *171 being regarded as contrary to public policy, and the K 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 ssy., and cases cited.) How it is the general rule of law that a breach of a lawful condition 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; Lloyds. Branton, supra; Stackpole v. Beaumont, 3 Ves. Jr. 89; In re Dickson's Trusty supra ; Marples v. Bainbridge, 1 Mad. 590.) In Lloyd v. Branton, Sir William Grart, refer- ' ring 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 *172 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 Thublow, in Scott v. Tyler (2 Bro. Ch. 432), and of Lord Logghbobough, in Stachpole 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. Bing ham, supra; Lloyd v. Branton, supra.) The condition, therefore, in this case woxild be ún terrorem only within the cases cited. But the legacy is not a purely personal legacy. The testator charges the lands devised as an auxiliary fund for the payment of debts and legacies, and there is no personalty out of which the legacy can be paid. If it is paid, therefore, it can be only by a sale of the land on which the legacy is charged. This presents a case where the condition must be construed and effect given to it according to the general rules of the common law. Reynish v. Martin, was the case of a legacy .upon a condition in restraint of marriage without consent, charged upon *173 land in aid of the personalty. The legatee married without consent, and afterward suit was brought to compel a sale Of the land to pay the legacy, and Lord Hardwicks denied this relief, saying that “ where a legacy is a charge upon the lands, to be raised.out of the real estate, as the ecclesiastical courts have no jurisdiction, it must he governed by the rules of another fomwri, to which the jurisdiction properly belongs; ” and in Scott v. Tyler, Lord Thurlow said, “ Lands devised, charge^ upon it, powers to he exercised over it, money legacies referring to such charges, money to be laid out in land (though I do not find this yet resolved), follow the rule of the common law and are to be executed by analogy to it.” And Judge Story, speaking of the distinctions between conditions in restraint of marriage, annexed to a bequest of personal estate, and the like conditions annexed to a .devise of real estate, or to a charge upon it says “ In the latter cases (touching real estate) the doctrine of the common law, in respect to conditions, is strictly applied. If the condition be precedent it must be strictly complied with in order to entitle the party to the benefit of the devise or gift. If the condition be subsequent its validity will depend upon its being such as the law will allow to divest an estate.” (Story’s Eq. Jur., § 288; see) .also, Cornell- v. Lovett's Ex'r, 11 Casey, 100; Comm. v. Stauffer, 10 Barr. 350; Williams on Pers. Prop. 341.) On the ground, therefore, that the condition in this case was lawful; and that there is no personal estate to pay the legacy; and that it cannot be enforced as a charge against the real estate by reason of the breach of the condition, we think the judgment should be affirmed. All concur. Judgment affirmed.