STACKPOLE v. BEAUMONT. [1796, APRIL 14, 15.] CONDITION in restraint of marriage under twenty-one without consent of trustees established both as to a rent-charge out of real estate and a personal legacy. (a) Testator devised his real estates to the eldest of his three natural daughters and her husband for their joint lives and that of the survivor; remainder to her sons successively in tail male; remainder to the second and her husband and issue male in the same manner; remainder to the youngest, or such person as she should first marry, (if under twenty-one, with consent of trustees,) for their joint lives and that of the survivor, with similar remainders: he also gave a rent-charge limited in the same manner to the second, her husband and issue male; and gave a similar rent-charge to the youngest, until she shall marry (under and with the restriction above-mentioned) or for her life; and when she shall marry as aforesaid, upon the same trusts; and having given the second 10,000l. on her marriage he gave the youngest a legacy of 10,000l., payable, 5000l. upon her marriage (with such cousent as aforesaid) and 5000l. two years after. Upon her marriage without consent the condition being established against the husband does not affect her estate for life in the rent-charge, [p. 89.] Husband committed for marrying a ward of the Court, and discharged under particular circumstances on undertaking to make a settlement, was held to that, and not permitted upon her consent to receive her whole fortune; namely, a rent-charge for life, [p. 89.] Ground of the favor to marriage by the civil law, (b) [p. 96.] Husband claiming his wife's fortune in equity; though there was a separate provision, the Court, not thinking it sufficient, made him increase it, (c) [p. 98.] SIR THOMAS BLACKETT devised several real estates in the counties of Northumberland and Durham to John Erasmus Blackett and Thomas Cotton and the survivor and his heirs, upon trust, to the use and behoof of his nephew William Bosville for life, without impeachment of waste; remainder to trustees to preserve contingent remainders; remainder to the use of such one of the sons of William Bos (a) It is not easy to reconcile all the cases bearing on the subject of conditions in restraint of marriage. In general terms, they are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, it will be held utterly void. 1 Story, Eq. Jur. § 280; Keily v. Monck, 3 Ridgw. P. R. 205, 244, 247, 261; 1 Fonb. Eq. B. 1 ch. 4, § 10, note (g). And so if the condition is of so rigid a nature, or so tied up to peculiar circumstances, that the party, upon whom it is to operate, is unreasonably restrained in the choice of marriage. Ibid. As that a child shall not marry until fifty years of age. I Story, Eq. Jur. § 283; or should not marry without consent, or should not marry a man who was not seised of an estate in fee simple of the clear yearly value of 500l. Ib. § 280. But conditions, guarding against improvident matches, especially during infancy, or until a certain age of discretion, or as in the present case, providing that the party should not marry without the consent of parents, or trustees, or other persons specified, are recognized as valid. Ib. § 284, and English cases cited. Malcolm v. O'Callaghan, 1 Coop. Temp. Brough. 73. For the other distinctions on the subject, see 1 Story, Eq. Jur. §278-290; Parsons v. Winslow, 6 Mass. 169. (b) This case contains an interesting account of the introduction into the English law of the doctrines on restraints of marriage. (c) As to the provision which Courts of Equity will require the husband to make for his wife out of any sum to be recovered on her account; see ante, note (d) to Ball v. Montgomery, 2 V. 191. [*90] ville as he should appoint, and of the heirs male of the body of such son; and for default of appointment, or of such issue of such son, then to the use of the 1st, 2d, 3d, 4th, and all and every other son and sons of William Bosville and the heirs male of their bodies successively; and for default of such issue, then to the use of Thomas Richard Beaumont and Diana his wife; "(one of my natural daughters)" for and during their joint natural lives and the life of the survivor without impeachment of waste; remainder to trustees to preserve contingent remainders; and from and after the decease of the survivor, then to the use of such one son of the body of his said daughter Diana, as the survivor of her and Thomas Richard Beaumont should appoint, and of the heirs male of the body of such son; and for default of such appointment, or from and immediately after the decease of such son without issue male of his body, or in case any such shall be, who lives to attain twenty-one, and shall afterwards depart this life without leaving any son or sons of his body, or such son or sons shall also attain twenty-one, and afterwards depart this life without leaving any issue male, then to the use of the 1st, 2d, 3d, and every other son and sons of the body of his said daughter Diana by her present or any future husband successively, and of the several and respective heirs male of their bodies; and for default of such issue, or in case any such shall attain twenty-one, and afterwards die without leaving any son or sons, or such son or sons should die after twenty-one, without leaving issue male, then to the use of *William Lee and Sophia his wife, "(another of my natural daughters)" for and during their joint lives and the life of the survivor without impeachment of waste; remainder to trustees to preserve contingent remainders; and from and after the decease of the survivor of William and Sophia Lee, to the use of all and every the son and sons of the body of his said daughter Sophia, by her present or any future husband, with like power of appointment, and for all such and the like estates and interest, and with the like remainders and limitations, as aforesaid in relation to the said Thomas Richard Beaumont and Diana his wife; and for default of such issue, or in case of their death after attaining twenty-one without leaving any son or sons, or of the death of such son or sons after twenty-one, without leaving issue male, then to the use of Louisa Wentworth "(the other of my natural daughters) or such person, as she shall first intermarry with, if any, (if before she attain the age of twenty-one, by and with the consent and approbation of the said John Erasmus Blackett and Thomas Cotton, or the survivor, and his heirs; and which person shall also previously make a competent settlement upon her, my said daughter Louisa, by deed or deeds in writing, to the' like approbation of the said John Erasmus Blackett and Thomas Cotton,) for and during their joint natural lives, or the life of the survivor of them, without impeachment of waste; and from and after the determination of that estate, then to the use of the said John Erasmus Blackett and Thomas Cotton and the survivor of them, and his heirs, for and during the life of my said daughter Louisa, or any such person as she shall so first marry, if any, and the life of the longer liver of them, upon trust, to preserve contingent remainders, and for that purpose to make entries or bring actions as occasion may require ; but nevertheless to permit and suffer her my said daughter, or such person as she shall so first marry, if any, and the survivor of them, to receive and take the rents, issues and profits, for her, their, or his, own use and benefit;" and from and immediately after the decease of the survivor of his said daughter, and of such person as she should so first marry, if any, then to the use of all and every or any the son and sons of the body of his said daughter Louisa by such first or any after-taken husband, with the like power of appointment, and for all such and the like estates and interests, and with [ *91] the like remainders and limitations as aforesaid, in * relation as aforesaid; and for default of such issue of the body of his said daughter Louisa, or in case of their death after attaining twenty-one without leaving any son or sons, or of the death of such son or sons after twenty-one without leaving issue male, then to the use of Sir John Sinclair, for life without impeachment of waste; remainder to such one of his sons by his present wife and for such estates as he shall appoint; in default of appointment to his eldest son in fee; and as to all other his real estates, he devised them to the same trustees, to the use of Thomas Richard Beaumont and Diana his wife, and of the son and sons of his said daughter Diana and the heirs male of such son and sons, and of William Lee and Sophia his wife, and the son and sons of his said daughter Sophia and the heirs male of such son and sons, "and my said daughter Louisa, and such person as she may so marry, if any, as aforesaid, and of the son and sons of my said daughter Louisa and the heirs male of the body of such son and sons, and of the said Sir John Sinclair, and the son or sons of the said Sir John Sinclair by his said now wife, severally, respectively and successively" upon such trusts, &c. as before declared concerning the estates before devised. The testator then charged all his real estates in Northumberland and Durham, except those devised to his nephew Bosville, with two rent-charges; and gave to John Cockshutt and his heirs one annuity or rent-charge of 3000l. upon trust for the use and behoof of William Lee and Sophia his wife, for and during the term of the joint natural lives of the said William Lee and Sophia his wife, and the life of the survivor; remainder to trustees to preserve contingent remainders; and from and immediately after the decease of the survivor, to the use of all or any one or more of the son and sons of the body of his said daughter Sophia and of the son or sons of such son or sons, in such shares and proportions, manner and form, and for such estate and estates, or chargeable with such sum or sums of money to the other or others of them, as the survivor of William and Sophia Lee should appoint: and in default of appointment, or as soon as the estates appointed shall determine, and as to so much as shall be unappointed, to the use of the 1st, 2d, 3d, and all and every other son and sons of the body of his said daughter Sophia by her present or any future husband severally and successively and of the several and respective heirs male of their bodies; and for default of such issue or in case of their [* 92] death after attaining twenty-one without leaving any son or sons, or of the death of such son or sons after twenty-one without leaving issue male, or in case William Lee and his wife or either of them shall inherit or possess any of the aforesaid hereditaments and premises by the aforesaid devises, then he directed the said rentcharge to sink into the estate so charged with the payment thereof, and to be annihilated; and he gave to John Cockshutt and his heirs another annuity or rent-charge of 3000l. upon trust for the only proper use and behoof of his said daughter Louisa Wentworth and her assigns "until she shall marry (under and with the restriction above mentioned) or for and during the term of her natural life; and when and so soon as she my said daughter shall marry as aforesaid," then upon such trusts, in like manner, and with the like powers, for such estates and interests, and with the like remainders and limitations, and subject to the same contingencies and annihilations, as before declared concerning and in relation to the aforesaid rentcharge devised for the benefit of Sophia. He also gave his daughter Louisa a legacy of 10,000l. "payable and to be paid unto her in manner following; that is to say, the sum of 5000l. upon her marriage (with such consent and approbation as aforesaid) and the sum of 5000l. within two years next afterwards." He gave all his personal estate subject to his debts, legacies, and funeral expenses, to Thomas Richard Beaumont; and appointed him executor. The testator left three co-heiresses at law. Two of them had small annuities by the will. Nothing was given to the third. Upon the marriage of Mrs. Lee the testator had given her 10,0007. The trustees did not act under this will; and upon the death of the testator, Thomas Richard Beaumont took possession both of the real and personal estate. Louisa Wentworth, while an infant and a ward of the Court of Chancery, went to Scotland with William Stackpole; and they were there married without the consent of the trustees. Mr. Stackpole was commited to the Fleet: but being in the army he was discharged upon undertaking to make a proposal for a settlement. [* 93] *The bill was filed by Mr. and Mrs. Stackpole praying, that the trusts of the will might be executed; and that the Plaintiff William Stackpole in right of his wife might be declared entitled to the rent-charge of 3000l. and to the legacy of 10,000l., and to have one moiety of the legacy paid immediately; and that it might be referred to the Master to receive a proposal for a settlement; that the accounts might be taken; and that the arrears of the rent-charge together with one moiety of the legacy with interest from the marriage might be directed to be paid for the use of the Plaintiffs, as the Court should think proper; and that the other moiety might be secured for their benefit till the expiration of two years from their marriage. The issue of the marriage was one son. Mr. Mansfield, Mr. Graham, Mr. Grant, Mr. Anstruther, and Mr. Stanley, for the Plaintiffs. As to the rent-charge the question is, what the words "so" and "such" mean. There is nothing to induce the Court to refer those to the condition, and not to the preceding words. If Mr. Stackpole cannot take, because he does not answer the description, the alternative does not arise; and therefore Mrs. Stackpole's estate for life is absolute; and her children by any husband will be entitled after her death. In the event of a marriage without consent the testator does not take away the provision of his daughter; but only excludes the husband, who has not complied with the condition. Not meaning to punish his daughter he could not mean to punish the children of the first marriage, and carry it over to the children by a second husband. As to the legacy of 10,000l., it is now become a mere question of authority; for none of the cases can be supported by solid reasoning. This is precisely one of those, in which the construction of this Court goes exactly with the Civil Law and the Ecclesiastical Court, that this condition annexed to a personal legacy is only to be considered as in terrorem. All the authorities are in Scott v. Tyler, 2 Bro. C. C. 431 (1). One passage in the Digest puts an end to the distinctions between conditions precedent and subsequent: they are equally void, if the effect is to throw any limitation upon marriage: "Si arbitratu Titii Seia nupserit, hæres meus ei fundum dato. Vivo Titia etiam sine arbitrio Titii eam nu bentem legatum accipere respondendum est; eamque legis sen[*94] tentiam * videri ; ne quod omnino nuptiis impedimentum inferatur." Dig. 35, tit. 1, 1. 72. There are many passages in Godolphin and Swinburne, that totally do away that distinction; and from Mr. Alexander's argument in Scott v. Tyler it appears clearly, that Chief Baron Comyns, who supported it in Harvey v. Aston, For. 212. 1 Atk. 361. Com. 726 (2), was quite mistaken in the passage he cited from the civil law. This is more favorable than some of the cases; for there is first a positive absolute bequest of the legacy but in Scott v. Tyler it was no otherwise given than by the direction to pay. In Harvey v. Aston the charge was upon land, and therefore to be governed by the law of England. In Reynish v. Martin, 3 Atk. 330, 1 Wils. 130, and Wheeler v. Bingham, 1 Wils. 135, the legacy was established. Those cases were against the bias of Lord Hardwicke's mind; for no man was more desirous to prevent improvident marriages. Here there is no bequest over. It is impossible that a general gift of the personal estate can amount to a bequest over of a particular legacy: if so the appointment of ån executor would do. Attorney General [Sir John Scott], Solicitor General [Sir John Mit (1) 2 Dick. 712, from Lord Thurlow's Mss. |