By the bestowal of legacies a rare opportunity is offered to testators
either to gratify some peculiar desire, or to restrain or control some one
who is the beneficiary. It is on the legal principle of _quid pro quo_, a
consideration for a consideration. Accordingly, we find that testators, in
bestowing their bounty by way of legacies, avail themselves of the
opportunity to effect various objects--some to regulate and restrain a
wayward, errant child, some to curb the eager readiness of a widow to find
a new partner, some to check a child rashly rushing into wedlock, and some
to gratify a whim or a prejudice.
The law allows conditions to be annexed to a legacy, provided they are not
against public policy or good morals.
A conditional legacy is defined to be a bequest whose existence depends
upon the happening or not happening of some uncertain event, by which it
is either to take place or be defeated.[135] No precise form of words is
necessary to create conditions in wills; wherever it clearly appears that
it was the testator's intent to make a condition, that intent shall be
carried into effect.
Conditions are subject to the well-known division, into conditions
precedent and conditions subsequent. When a condition is of the former
sort, the legatee has no vested interest till the condition is performed;
when it is of the latter, the interest of the legatee vests, in the first
instance, subject to be divested by the non-performance or breach of the
condition.
Whether a condition be precedent or subsequent, that is, whether it must
be performed before the legatee can be entitled to an absolute interest in
the bequest, or not till after, of course depends upon the words and
intention of the testator. But a testator, in making a bequest, may use
words of condition, which, however, shall not be construed as such, if it
clearly appear that they do not involve the _motive_ and _reason_ of the
bequest.[136] Any consideration exacted from the beneficiary, or any duty
imposed on him, unless it is spread over a very unusual period of time, is
a condition precedent. A condition that the beneficiary shall cease to
resort to public houses is a condition precedent, and is not void for
uncertainty.[137]
In the case of Tattersall v. Howell,[138] a legacy was given, provided the
legatee changed his course of life, and gave up all low company, and
frequenting public houses. And Sir William Grant held that this was a
condition such as the court could carry into effect, and directed an
inquiry whether the legatee had discontinued to frequent public houses,
keeping low company, etc.
Had this been a devise of land, it would have been a void condition, as
will appear in the next chapter.[139]
In Dunstan v. Dunstan, the executors were required by the will to pay to
the legatee annually $200, and also one-fifth of the testator's estate, in
case the legatee should refrain from vicious habits, and conduct himself
with sobriety and good morals. About two years after the testator's death,
the legatee filed his bill against the executors, insisting that he had
reformed, and claiming the payment of his share of the estate. The
defendants had refused to pay over to the claimant his one-fifth of the
estate, not being satisfied of his complete reformation. The provision of
the will was supported, and as the complete reformation of the legatee was
not distinctly proved, and a sufficient time had not elapsed between the
death of the testator and the filing of the bill to enable the executors
to form a sound opinion as to the permanency of the legatee's good
conduct, it was held that the executors were right in refusing to place
the whole property in his hands at that time, and it was referred to a
Master to ascertain and report whether there had been such a permanent
reformation in his character and habits as to entitle him to receive the
whole amount bequeathed to him at that time.
If the condition is at all capable of being construed as subsequent, it
will be deemed to be such. Thus, in Page v. Hayward,[140] lands were
devised to A and B in case they married a person named S. They married
each a person of a different name, yet they were held to take vested
interests, the condition being subsequent, and being capable of being
performed, as their husbands might die, and they might then marry persons
of the coveted name.
A testator declared that if either Jane or Mary married into the families
of Prudence or Resignation, and had a son, then he gave all his estate to
such son; but if they did not marry, then the estate was to go to A. Jane
and Mary married, but not into the families mentioned, and A claimed the
estate; but it was held that during the lives of Jane and Mary the claim
was premature, for one of them might afterwards satisfy the
condition.[141]
The race as well as the religious antipathy of a testator sometimes crops
out in his will.[142] The testator in the following instance must have had
as much dislike to Scotchmen as the celebrated Dr. Johnson. He devised his
real and personal estate to trustees, out of which to pay an annuity to
his wife for life, and out of the residue to pay sufficient for the
maintenance, education, and support of his only daughter until she should
attain the age of twenty-one years, or marry, and then in fee, with a
proviso that if either his wife or daughter should marry a Scotchman, then
his wife or daughter so marrying should forfeit all benefit under his
will, and the estates given should descend to such person or persons as
would be entitled under his will in the same manner as if his wife or
daughter were dead. It was held that such partial restraint of marriage
was legal, and that, the daughter having while under age married a
Scotchman, and died leaving a son, the son could not inherit.[143]
The most interesting inquiry in connection with conditional legacies, is,
as to how far conditions annexed to legacies which restrain marriage are
to be performed, and in what case the neglect or non-performance of them
will forfeit the legacy. The Roman civil law made absolutely void all such
conditions in restraint of marriage, as against the policy of the State;
but our law has not evinced the same impatience of nuptial restrictions,
for a condition inhibiting marriage until majority, or any other
reasonable age, or requiring consent, or restraining marriage with any
_particular_ individual, and in the case of a widow, even a general
restraint, is lawful.[144]
Thus, if an annuity be bequeathed by a man to his wife for so many years,
if she shall remain so long a widow, it is a good conditional bequest,
because of the particular interest every husband has in his wife remaining
a widow, for thereby she will the better take care of the concerns of his
family.[145] But if a stranger gives a legacy upon such condition, it is
not a good condition, for there is no more reason restraining a widow
from marrying than a maid.[146]
In the American States, we permit such a condition to be annexed to a
legacy, as well as in England.[147]
A restraint of this sort, annexed as a condition, occurred in a case in
Pennsylvania,[148] in connection with the will of William Geigley, and, as
a singular instance of a testator's forethought and exactness, together
with an unusual effusion of sentimental argument, very seldom met with in
the sober, well considered decisions of courts, it will be interesting to
refer to it.
The testator provided as follows: "I will and bequeath to my loving wife,
Susan Geigley, all my real and personal estate that I am possessed of,
(with a few exceptions, that I will afterwards bequeath to my brother
George) provided my wife Susan remains a widow during her life. But in
case she should marry again, my will is, she then shall leave the
premises, and receive all the money and property she had of her own, or
that I received of hers.... It is my will and desire, that if my wife
remain a widow during her life on the premises, that after her death all
the money or property that I got or had of my wife's shall be paid to her
friends, whomsoever she wills it to; and all property belonging to me as
my own at my death (not including my wife's part) I will and bequeath to
my father and mother, if living. But if they are both deceased, my will
is that my brother, George Geigley, and my sister, Catharine Geigley,
shall have the whole of that share or part that was my own, to them, their
heirs and assigns, forever."
This condition was held to be good, and, the widow having married, the
mother became entitled to the proceeds of the real estate.
The language of the judge before whom the case was at first heard is
deserving of a place in legal literature, as something rare in these
matter-of-fact, prosaic days. He thought it shocking to his sense of
personal liberty that any such restraint should be valid, and concludes
his decision with the following beautiful effusion:
"The principle of reproduction stands next in importance to its elder-born
correlative, self-preservation, and is equally a fundamental law of
existence. It is the blessing which tempered with mercy the justice of
expulsion from Paradise. It was impressed upon the human creation by a
beneficent Providence to multiply the images of himself, and thus to
promote His own glory and the happiness of His creatures. Not man alone,
but the whole animal and vegetable kingdom are under an imperious
necessity to obey its mandates. From the lord of the forest to the monster
of the deep--from the subtlety of the serpent to the innocence of the
dove--from the celastic embrace of the mountain Kalmia to the descending
fructification of the lily of the plain, all nature bows submissively to
this primeval law. Even the flowers which perfume the air with their
fragrance, and decorate the forests and fields with their hues, are but
curtains to the nuptial bed. The principles of morality--the policy of the
nation--the doctrines of the common law--the law of nature and the law of
God--unite in condemning as void the condition attempted to be imposed by
this testator upon his widow."
It may be considered an unfair partiality in our law that wives are not
allowed the same privilege to prohibit their husbands from marrying again;
for it has just been lately decided in England, in the case of Allen v.
Jackson,[149] that while a restraint of a _widow_ is a good condition and
valid as such, a similar restraint of a _widower_ in regard to his
marriage is invalid, and of no effect. It would seem at first blush that
the same rule should govern in each case; but Vice-Chancellor Wood, in
Newton v. Marsden,[150] suggested a reason which he thinks justifies the
distinction, namely, that a condition restraining the marriage of a widow
is valid, because it is not an arbitrary prohibition of marriage, but the
condition of a gift, made to the widow because she was a widow, and
because the circumstances would be entirely changed if she entered into a
new relation.[151]
While the law sanctions, in this case, the restraint of a second marriage,
it does not tolerate a general restraint of a first marriage; as Swinburne
says:[152] "A prohibition of the first marriage is much more odious in law
than the second." The utmost privilege it has given in this respect is to
permit a restraint as to time, place, or person, as not to marry before
twenty-one, not to marry at York, not to marry a papist. Still, the law is
not indulgent of such conditions, and in some cases will not permit a
forfeiture if the condition is not observed. Thus, if a legacy be given on
condition of asking consent to marriage, if the person marries without
such consent, he does not lose the legacy. Such a condition is said to be
_in terrorem_ only--something like an idle threat, to prevent persons
exercising an imprudent choice.
In Bellasis v. Ermine,[153] a suit was brought for £8,000, given to the
plaintiff's wife. The defendant pleaded that it was given her provided she
married with the consent of A, and, if not, that she should have but £100
per annum; and that she married without the consent of A. It was ordered
that the plea be overruled. And the court all declared that this proviso
was but _in terrorem_, to make the person careful, and that it would not
defeat the portion. But it was said that if the party who gave the
portion had limited it to another, in the case of her marriage without the
consent of A, there it would have been otherwise. We, in this country,
follow the same law.[154] So long, therefore, as the legacy does not go to
another named in the will, in case of a breach of the condition, the
legatee will be entitled, notwithstanding a marriage without consent. The
reason of this is said to be, that the courts cannot relieve against the
forfeiture without doing an injury to the person to whom it is limited
over.[155] Thus, A bequeathed £3,000 to his daughter, the plaintiff
Garret's wife, at twenty-one or marriage, and recommended her to the care
of S, provided that, if she married without the consent of S, her legacy
of £3,000 was to cease, and she was to have but £500, and made the
defendant, his son, executor. The plaintiff married the daughter without
the consent of S, yet the court decreed her the whole £3,000, with
interest from the marriage, and principally because it was not expressly
devised over.[156]
However, courts do not permit this doctrine of _in terrorem_ to apply, in
case the marriage is to be with consent _during minority_. In such a case
the condition is enforced, as it is deemed a safe and proper one for the
protection of youth.
The reason of the application of the doctrine _in terrorem_, is, that if a
consent be withheld after a person has attained majority, it may be for a
long period, either from caprice, willfulness, or some other cause, and
would practically restrain marriage, which is what the law will not
permit.[157]
If a portion be given on condition that the daughter should never marry,
such a condition should be rejected as repugnant to the original
institution of mankind.[158]
So, if a condition be illegal, or contrary to the policy of the law, as,
if a legacy be given to a woman if she does not cohabit with her husband
and lives apart, such a condition is void, and the legatee is entitled
absolutely.[159]