In Re Will of Miller

Hoke, J., after stating the ease: The question chiefly presented oil this appeal has been very much discussed by the courts and there seems to be a great contrariety of decisions concerning it. Without attempting to explain or even refer to many of the cases on the subject, we consider it as established, certainly by the weight of authority, that where an estate or interest is definitely conveyed, with a condition subsequent annexed in general restraint of marriage, that is, without limitation as to time or person, the condition, as a rule, will be disregarded. Watts v. Griffin, 137 N. C., 572; Otis v. Prince, 76 Mass., 581; Harmon v. Breron, 58 Indiana, 207; Hopkins on Real Property, p. 173. The principle does not ordinarily obtain in the case of an estate upon limitation or a conditional limitation; where, by the terms of its creation, an estate is so defined and limited that it terminates of itself on the happening of the contingent event without entry or other action on the part of the grantor or his proper representative, an estate not infrequently instanced where a testator has made a devise or bequest in favor of his widow while she remains unmarried. Bostick v. Blades, 59 Md., 23; Coppage v. Alexander Heirs, 41 Ky., 315; Hibbits v. Jack, 97 Ind., 570; Holtzs Estate, 36 Pa. St., 422; Pringle v. Dunkly, 22 Miss., 16; Mordecai’s Law Lectures, pp. 521-522; 4 Kent’s Commentaries, pp. 125-126. Íf Even though the words used may, in strictness, be those of condition subsequent, if there be a limitation over to a third person, the courts are inclined to consider it as aji estate upon limitation rather than one upon condition. It seems that this fact of a limitation over is only allowed as controlling in cases of bequests of personalty. See notes to case of Coppage v. Alexander Heirs, supra, reported in 38 Am. Dec., p. 159; but both Blackstone and Kent speak of it as prevailing in devises of realty also. 4 Kent, p. 126; 2 Blackstone, p. 155. But whether made 'determinative in cases of real property or otherwise, and whether the facts bring the present case within the principle or not— and we are inclined to think they do (see Stillwell v. Knapper, *127 69 IncL, 558) — tbs fact that there is such a limitation over should always be given full and proper weight in arriving at the mind and will of the testator and determining whether the disposition made of the property shall be considered an estate upon limitation or a condition in terrorem,, void as being in general restraint of marriage. Pursuing this suggestion, there i is well-considered authority to the effect that, although the terms used, may ordinarily import a condition if, from a peru.4 sal of the entire will and the facts and circumstances permissi-i ble in aid of a proper interpretation, it appears that the testator1 intended to make provision for a beneficiary while she remained single, and that the words were not used and intended as a restraint upon marriage, the qualifying words will be giveii effect according to testator’s devise as intended and expressed in the will. Chapin v. Cook, 73 Conn., 72; s. c., reported and annotated in 84 Am. St., pp. 139-149; Mann v. Jackson, 84 Mo., 400; Estate Margaretta R. Holbrook, 203 Pa. St., 93; s. c., 5 Anno, cases, p. 137, a position approved in 2 Jarmon on Wills, p. 572, making citations from Jones v. Jones, 1 Q. B. D., 279; 1 Underhill on Wills, sec. 505; Tiedeman on Real Property, sec. 281. In the citation to Underhill the author says: “The authorities distinguish between a provision for a legatee ‘until he or she shall marry,’ or ‘while she is unmarried,’ and an estate upon condition subsequent terminating by the marriage of the legatee. The distinction is largely technical, depending upon the exact language used; but the test is, ‘What was the purpose of the gift? What did the testator intend to accomplish?’ If it is apparent from the will that he did not intend to prevent a marriage or to condemn the legatee to a life of celibacy, but that he intended solely to provide for her support while unmarried, and that, as soon as she was in a, position to be supported by her husband, he desired the provision to cease and the property to be devoted to others, it is valid. The law will regard it as an estate upon limitation, not as an estate upon condition, and the gift over will go into effect as a conditional limitation.” *128 Applying tbis, in our opinion, tbe controlling principle on tbe facts presented, we bold tbe devise in question to be an estate upon limitation, and, on tbe marriage of tbe daughter,, tbe estate passed to tbe son and bis wife and tbeir children,, as' expressed in tbe will. Here was a testator, owning a small 'tract of land, on wbicb he.and^his wife and daughter bad lived and, from a consideration of the circumstances and a perusal j of tbe entire will, it was bis desire and intent to provide a borne for bis widow and daughter while they lived or remained unmarried, and, in case either married, the survivor was to hold; and on tbe death or marriage of both, the estate should go to. tbe son, bis wife and their children, tbe design evidently being that if tbe widow or daughter married, they should thereafter look to tbe husband for support. True, tbe testator at first uses apt words of condition: “But in case either or both marry again, tbis becomes void,” but be immediately adds: “In case of tbe marriage of one, tbe remaining one will bold till her death or marriage,” showing that an estate upon limitation was meant; and this, in connection with the devise over to bis son for life and then to bis wife for her life or widowhood, and then to their children as purchasers, on principle and authority, gives clear indication that tbe qualifying words may not be properly construed as words in terrorem, void because intending to restrain marriage, but as a provision for tbe support of tbe devisees until tbe marriage occurred. Tbe case is very similar to that of Jones v. Jones, supra, cited by Mr. Jarmon, and finds support, also, in Martin v. Seigler (S. C.), 10 S. E., p. 1073. There is error, and tbis will be certified, that judgment be entered for tbe ultimate devisees. Reversed.