Collier v. Slaughter's Adm'r

DARGAN, C. J. William E. Collier, by bis last will and testament, directed, that after tbe payment of 'bis debts, all his estate should be kept together until bis daughter Amy should marry or attain tbe age of twenty-one years, and in tbe mean time she was to be supported and educated from, tbe proceeds of bis estate. After making some provision for tbe father and mother of tbe testator’s deceased wife, tbe will proceeds in tbe following language; “It is also my wish that my three step-children, Ellen E., John R., and Lawrence S. Slaughter, shall be kept, supported, and educated out of tbe [267] proceeds of my estate, until the marriage or mature age, as above stated. When my daughter become of age, or is married, she is to have my farm in Limestone county, on which I now reside, with all the improvements and appurtenances, and one-half of all my personal estate, money on hand, and claims of every kind, due or to become due, for money or personal estate. The other half of my personal estate, as just above stated, I wish and direct to be equally divided amongst my three step children above named, as they respectively become of age, or Ellen may marry with the approbation of her guardian. But in the event that any or all of my step children shall die, before they arrive of age, or Ellen may marry, as aforesaid, then the amount herein devised to them, or either of them, as may happen, is to be divided as follows, to wit; one-half of such share to my daughter, one-fourth to the children of Dr. Young, and the other fourth to the children of C. E. Collier.” The step children named in the will are all older than the testator’s daughter, and Ellen is the eldest of the step children. After the death of the testator, Ellen married George W. Marshall. She was about fifteen years of age at the time of marriage, but had no guardian. Before her marriage, however, she applied to the acting executor of the will for his consent to marry,.but he. refused. She then applied to her grandfather, with. whom she was living, and he also refused to give his consent, and persisted in his' refusal, until he was informed that if he did not consent, the parties would elope and marry elsewhere. He then consented to the issuance of the marriage license, but the parties were not married at his house. Shortly after the marriage of Ellen, Lawrence S. Slaughter died, being a minor at .the time of his death, and his-administrator claims the legacy bequeathed to. him by the testator. These facts give rise to, the material'question in the case, which is this; Was- the legacy so.vested in Lawrence S. Slaughter a,t the time of his, death, as to be transmissible to his. representatives ? • It is too clear to admit of argument, that the legacies did not vest absolutely in the step children by the death of the testator* They could not demand payment until they arrived.at age, [268] or until Ellen F., tbe step daughter, married with the approbation of her guardian; for the will expressly gives the legacies over, if either of the step children died before either of these events. The legacies were then conditional, and became vested in the legatees upon the happening of the one or the other of these contingencies, and if neither of them happened during the life of Lawrence S., his administrator takes no interest in the legacy, nor can he call the executor of the testator to an account, or demand payment of the legacy. As the legatee died before he attained the age of twenty-one, his legacy passed over to those who were to take in that event, unless it became vested by the marriage of his sister, Ellen F.; for by the terms of the will, we think it clear that the testator intended, that if Ellen should marry with the consent of her guardian, before she attained the age of twenty-one, then all the step children named in the will became immediately entitled to their legacies, and the subsequent death of one of them before he attained his majority would not de-vest his title, so as to enable those in remainder to take, but the legacy, being vested by the marriage, passed, upon the death of the legatee, to his representatives. The sole question, therefore, is, did the marriage of Ellen vest the legacies in the step children ? In order to do this, we are all of the opinion that the marriage must have been with the consent of her guardian. This pre-requisite to the marriage, in order to make it have the effect to vest the legacies, the testator, by his will, required, and we do not see how we could hold the pre-requisite unnecessary. It is true, that there are many cases to be found where marriage with consent is held to be in terrorem only, and if the legatee marry without consent, he will not thereby forfeit his legacy: but where marriage with consent is only one of two conditions upon which the legacy is to vest, as where it is to vest upon marrying with consent, or at a particular age, say twenty-one, I have found no case which holds that the consent required by the testator was in terrorem merely, and that the marriage, within itself, and without the required consent, would vest- the legacy. In the case of Hemmings v. Munckly, 1 Coxe, Ch. R. 39, the testator gave a legacy to his daughter on her attaining the age of twenty-eight years, or day of marriage, which [269] ever should first happen, provided his daughter should marry with the consent of his executor in trust. The daughter married without the required consent, and died before she attained the age of twenty-eight. It was held, that the legacy had not vested. The case of Scott v. Tyler, 2 Brown Ch. R. 431, is to the same effect; see also Jarman on Wills, Vol. 1, 838. Nor can such conditions be held invalid, as being in restraint of marriage. The authorities above referred to show this, and besides, many prudential reasons may concur in influencing a parent to desire to restrain the marriage of his child, at least until he attains the age of majority, unless such marriage should take place with the consent of some one whose, experience might be some, protection against an imprudent or improvident marriage. The question, then, is narrowed down to this; did Ellen, marry with the consent of her guardian, within the meaning of the testator? We are of the opinion that the testator meant that she should marry with the consent of her legally appointed guardian, or at least, with the consent of one who in law would be considered such. But the grandfather, as such, is not the guardian of his grandchild, and the marriage with his consent was not a compliance with the condition. It' has, however, been urged, that as Ellen had no guardian, she could not comply with the condition, or more nearly comply than by marrying with the consent of her grandfather, with whom she resided. But according to our law, she could, by her own act, have had one appointed, whose consent would have been a legal compliance with the condition. She therefore could have married during minority, with the consent of her guardian legally appointed, but she has not done this, and therefore has not complied with the condition. The consequence is, that neither of the legacies vested upon the marriage of Ellen; they still remained contingent until the legatees should attain the age of twenty-one, and Lawrence having died before he was twenty-one, his legacy passed over to 'those entitled upon that contingency. It follows, that the decree of the Probate Court must be reversed, as the administrator of of Lawrence is not entitled to the legacy. . Decree reversed, and cause remanded.