ford] and Mr. Richards, for the Defendants. It is clear, Mrs. Stackpole is entitled for her life to the rent-charge; and Mr. Stackpole has no interest in it. The question as to the children the Court will not touch

now.

The legacy is not payable. Underwood v. Morris 2 Atk. 184, was doubted by your Lordship in Hemmings v. Munkley, 1 Bro. C. C. 303; and Lord Thurlow denied its authority (1) in Scott v. Tyler; which is decisive, that the character of the legatee not being such as entitles her, and the restraint of marriage not being absolute, it does not fall into those cases, to which the doctrine of the civil law applies. So far is this condition from being illegal, that the policy of the law approves it.

Mr. W. Agar, for the co-heiresses at law, contended, that they could not be disinherited without express words or necessary implication; therefore under this will Mrs. Stackpole took no estate in the rent-charge; the condition in the parenthesis extending to her interest.

Lord CHANCELLOR [LOUGHBOROUGH]. There is nothing before me now for determination, except the provision to be made for Mrs. Stackpole by a proposal to be made by her husband, and the question upon the legacy. As to the children, it is not proper for the Court to make a declaration upon what will be the construction in cases that have not happened, and as to which perhaps no question may arise. It is very clear, that Mrs. Stackpole is entitled for her life to this rent-charge of 3000l. a year. The construction cannot depend upon the parenthesis inserted by the person, who drew the will. It is impossible from any words to argue, that Mr. Stackpole can have a life estate in that rent-charge; and it goes contrary to my idea of the clear intention of the testator. Though the person, who drew the will, has a very unfortunate style, and it is very confused and perplexed, I have seldom met with a will, in which the intention was more perspicuous. He meant, as far as circumstances would bear it, to put Louisa precisely upon the same footing as Sophia; treating them both as younger children. Mrs. Lee upon her marriage had 10,000l. He gave to her and her husband, whom he knew, a rent-charge jointly for their lives, and the life of the survivor, with remainders to her children. * By words of reference describing the particular provision necessary according to the circumstances, in which he foresaw he should leave Louisa, he directs a settlement for her by reference to the rent-charge for Mrs. Lee. He meant to guard against her marriage under age without consent of the persons, he meant to make her guardians. He meant to impose upon them the necessity of finding the husband, he described for her; and in the event of her marrying such a person he gives him the same estate that he had given to Mr. Lee. In all other respects he puts her upon exactly the same footing as Mrs. Lee. Any second husband would no more have been entitled to

[* 95]

(1) Mr. Sanders in his edition of Atkyns states, that the report of Underwood v. Morris agrees with the Register's Book.

this life estate than any second husband of Mrs. Lee to the estate, he had given to Mr. Lee. Therefore Mrs. Stackpole is entitled to the rent-charge for her life; and her husband must lay a proposal before the Master.

[* 96]

*

As to the legacy, this has been long vexata questio. It is impossible to reconcile the authorities, or range them under one sensible, plain, general rule. There can be no ground in the construction of legacies for a distinction between legacies out of personal and out of real estate. The construction ought to be precisely the same. I do not see more importance in reality in the distinction between conditions precedent and subsequent. The case of all these questions is plainly this. In deciding questions, that arise upon legacies out of land, the Court very properly followed the rule, that the common law prescribes, and common sense supports, to hold the condition binding, where it is not illegal. Where it is illegal, the condition would be rejected, and the gift pure. When the rule came to be applied to personal estate, the Court felt the difficulty upon the supposition, that the Ecclesiastical Court had adopted a positive rule from the civil law upon legatory questions; and the inconvenience of proceeding by a different rule in the concurrent jurisdiction, (it is not right to call it so) in the resort to this Court instead of the Ecclesiastical Court, upon legatory questions, which after the Restoration was very frequent, in the beginning embarrassed the Court. Distinction upon distinction was taken to get out of the supposed difficulty. How it should ever have come to be a rule of decision in the Ecclesiastical Court is impossible to be accounted for, but upon this circumstance, that in the unenlightened ages, soon after the revival of Letters, there was a blind superstitious adherence to the text of the civil law. They never reasoned; but only looked into the books, and transferred the rule, without weighing the circumstances, as positive rules to guide them. It is beyond imagination except from that circumstance, how in a Christian country they should have adopted the rule of the Roman law with regard to conditions as to marriage (1).

First, where there is an absolute unlimited liberty of divorce, all rules as to marriage are inapplicable to a system of religion and law, where divorce is not permitted. Next the favor to marriage, and the objection to the restraint of it, was a mere political regulation applicable to the circumstances of the Roman Empire at that time and inapplicable to other countries. After the civil war the depopulation occasioned by it led to habits of celibacy. In the time of Augustus the Julian law, which went too far, and was corrected by the Lex Papia Poppaa, not only offered encouragement to marriage, but laid heavy impositions upon celibacy. That being established as a rule in restraint of celibacy (it is an odd expression) and for the encouragement of all persons, who would contract marriage, it necessarily followed, that no person could act contrary to it by impos

(1) See the judgment in Pearce v. Loman, post, 139.

ing restraints directly contrary to the law. Therefore it became a rule of construction, that these conditions were null. It is difficult to apply that to a country, where there is no law to restrain individuals from exercising their own discretion as to the time and circumstances of the marriage, their children or objects of bounty may contract. It is perfectly impossible now, whatever it might have been formerly, to apply that doctrine, not to lay conditions to restrain marriage under the age of twenty-one to the law of England; for it is directly contrary to the political law of the country. There can be no marriage under the age of twenty-one without the consent of the parent (1).

This testator places trustees in the room of a parent; and gives quoad the marriage the authority to them. I am now called upon to pronounce, that this condition is bad, because it is illegal to impose a condition in restraint of marriage. What: illegal here ? I have committed this gentleman for marrying without consent. It is impossible to say, that a condition has any stamp of illegality, impolicy, or impropriety, that does no more than add an extension of bounty to induce them to do that, which neglecting to do the husband becomes an object of the censure of this Court and liable to punishment. Therefore I am perfectly free in this Court in a case, where the condition only operates up to the age of twenty-one, and requires no more than the general policy of the law and course of this Court hold to be proper, to say, there is nothing illegal in such a condition; and therefore not to determine, that this legacy, which the testator directs to be paid only under certain circumstances, shall be paid, not only though those circumstances have not happened, but where every thing has been done directly in opposition to and in defiance of the directions of the will. Confined therefore to such cases, where the restraint operates only up to the age, till which by the law and policy of the country consent is necessary, I have no difficulty to say, there is no authority to lead the Court to pronounce a proposition so repugnant to that law, as that such a condition is invalid.

In Scott v. Tyler, there is a very accurate though not a very extended opinion of Lord Thurlow (2), which carries conviction along with it. The question is not, whether any forfeiture has been incurred; but whether the parties, to whom the legacy is given, have put themselves in a situation to answer that description of the person to take. There is no gift here but in the direction to pay; for I cannot stop in the middle of a sentence. He gives her 10,000l.: that is in effect two sums of 5000l. one payable upon her marriage with consent. She has not married with consent. She has married without it. Can she claim the 5000l. under the will? I do not see the great importance of the distinction upon a bequest over of the legacy. It is one of the points

(1) Statute 26 Geo. II. c. 33.

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(2) Lord Thurlow's judgment, from his Lordship's own manuscript, has been since published, 2 Dick. 712.

that occurred to Judges sitting here to deliver them from the difficulty arising from the rule of the civil law, adopted without seeing the ground and the reason of applying it to this country under different circumstances. The authorities stand so well ranged, that the Court would not appear to act too boldly, whichever side of the proposition they should adopt: but I have always upon repeated consideration thought, there was not much reason in any of the determinations founded upon a rule applicable to the laws of the country, from which it is taken, but not to this country; and rejecting these conditions as inapplicable to a country, which adopts them as to real property, and where the restraint imposed is analogous to the political regulations of the country upon the subject; and here I am deciding upon the plainest circumstances; for the condition is restrained to the age, before which by the law of this country a marriage cannot be had without consent. Therefore declare her not entitled to this legacy (1).

For the Plaintiff. It was objected, that this was not a case for a settlement: that the husband was entitled to the income of his wife's fortune and that at least, if she consents, he must have the whole.

Lord CHANCELLOR [LOUGHBOROUGH]. He cannot get it without the aid of equity; and I must take care, that she shall have a separate provision upon a marriage, that is a contempt of the Court. I have always been very anxious upon a run-away marriage to secure a separate provision for the wife. I remember in the case of a natural daughter of Lord though there was a provision, I made the husband increase it, not thinking it sufficient. This gentleman being in the army, I discharged him from custody on his undertaking to make a settlement (2); he must not therefore now say, that upon her coming into Court and consenting he shall take the whole. If he refuses, I will send him back to the Fleet, and then talk to him upon it (3).

1. IN Winch v. James, 4 Ves. 386, a party who had committed a contempt, by marrying a ward of Court, was discharged, upon an undertaking to execute a set(1) Post, 139; O'Callaghan v. Cooper, vol. v. 117; Dashwood v. Lord Bulkeley, x. 230: Clarke v. Parker, Goldsmid v. Goldsmid, xix. 1, 368, Coop. 225; D'Aguilar v. Drinkwater, 2 Ves. & Bea. 225; Pollock v. Croft, 1 Mer. 181; Lloyd v. Branton, 3 Mer. 108; Worthington v. Evans, 1 Sim. & Stu. 165; Marples v. Bainbridge, 1 Mad. 590; Malcolm v. O'Callaghan, 2 Mad. 349; Merry v. Ryves, before Lord Northington, 1 Eden, 1; Keily v. Monck, 3 Ridgw. P. C. 205; Hemings v. Munckley, 1 Cox, 38. Condition for consent of trustees not applied to the marriage of a widow, whose first marriage, in the testator's life, was approved by him; Crommelin v. Crommelin, post, 227: nor to a daughter, married in the testator's life with his consent or subsequent approbation, Parnell v. Lyon, 1 Ves. & Bea. 479; Wheeler v. Warner, 1 Sim. & Stu. 304.

(2) Lespinasse v. Longden, 25th March, 1802, a very favorable case: the husband, having paid his addresses with the sanction of the mother, who died before the marriage, and the executors being unfavorable, the lady's aunt, with whom she lived, being her nearest relation, though she had no guardian, went with them to Scotland, after an attempt to be married by banns prevented by the executors. The lady was eighteen. The bill was filed after they set off. The husband, a military officer, was permitted by the Master of the Rolls, sitting for the Lord Chancellor, to join his regiment, undertaking to make a settlement, on the authority of this case.

(3) Stevens v. Savage, ante, vol. i. 154, and the note p. 155.

tlement directed by the Court. This, it is obvious, is very different from the course pursued in the present case, of discharging the party upon his undertaking to make a proposal for a settlement. The fact, that the offender was an officer, may have had some weight in the present instance, as it had in Green v. Pritzler, Ambl. 602; but in that case the party offered to lay before the Master proposals for a settlement out of his own fortune, and distinctly undertook to secure the fortune of the ward whom he had married, as the Court should think fit. In the case of Bathurst v. Murray, 8 Ves. 79, (a case, certainly, marked by aggravating circumstances,) Lord Eldon refused to discharge the offending husband, on his undertaking to make a settlement. As to the nature of the settlement usually directed in such cases, see, ante, the note to Stevens v. Savage, 1 V. 154.

2. There are no technical words to distinguish precedent and subsequent conditions in a will; the same words may, indifferently, constitute either; according to the intention of the person who creates the condition. Robinson v. Comyns, Ca. temp. Talb. 165; Murray v. Jones, 2 V. & B. 320. Where a legacy is given, to which a condition subsequent, in restraint of marriage, is annexed, the condition is void, and merely in terrorem; Reynish v. Martin, 3 Atk. 332; Hicks v. Pendarvis, 2 Freem. 41; unless there be also a valid devise over of the particular legacy; or, at least, it should seem, unless the will contain an express direction, that such legacy, if the condition annexed thereto be not complied with, shall sink into the residue of the testator's property. Wheeler v. Bingham, 3 Atk. 368; Lloyd v. Branton, 3 Meriv. 118; Malcolm v. O'Callaghan, 2 Mad. 350. A mere general residuary bequest, is not tantamount to a devise over of a legacy given on condition, but leaves such conditional legacy in statu quo, and can have no other effect but that of preventing what proves not to be otherwise well disposed of, from falling, by order of law, to the executor or next of kin. Scott v. Tyler, 2 Dick. 723. 3. Whether a condition, precedent, in restraint of marriage, annexed to personal legacies, can be considered as in terrorem only, where there is no express limitation over, is a point upon which great diversity of judicial opinion has been declared: where there is a valid devise over, there can now be no doubt it will take effect, if the condition be not complied with. Clarke v. Perrier, 19 Ves. 14. And even where there is no express devise over, the preponderance of authority seems to establish, that even as to strictly personal legacies, if the condition is confined within reasonable limits as to time; (Scott v. Tyler, 2 Dick. 723; Graydon v. Hicks, 2 Atk. 16;) and does not go in entire restraint of marriage: and, also, where it is framed only to guard against a connexion with a particular individual, or family, which the testator deems objectionable; (Jarvis v. Duke, 1 Vern. 19;) in all such cases, the condition must be complied with, or the legacy (though not given over) can never vest; or, at least, not be payable. Elton v. Elton, 1 Ves. Sen. 6; Knight v. Cameron, 14 Ves. 392. But conditions which would, virtually, go almost to the total exclusion of marriage, are void. 1 Eq. Ca. Ab. in margin. Keiley v. Monck, 3 Ridgw. P. C. 263.

4. Where legacies are charged upon land, or the gift at all savors of the realty, and is coupled with a condition, that condition must be performed, and the trusts carried into execution with analogy to the common law. Scott v. Tyler, 2 Dick. 719; Long v. Ricketts, 2 Sim. & Stu. 183. Lord Hardwicke held no rule to be better settled than the one which declares that portions charged on lands do not vest till the time of payment comes; and if that time, according to the will, be not until a marriage with consent, his Lordship said, there is no rule, in Law or Equity, which can excuse the want of such consent. In the same judgment it was also intimated, that it was unimportant whether there was or was not a devise over: for the portions there in question, being to arise out of lands, they had nothing testamentary in them, so as to be subject to the jurisdiction of the Ecclesiastical Courts, or the rules of the civil law. Harvey v. Aston, 1 Atk. 378, 379; S. C. Willes, 91. Whether it was wise to adopt those rules at all, may, perhaps, be questionable; (Pearce v. Loman, 3 Ves. 139;) but it has long been well established in point of practice, that a material difference is made, as to portions out of lands and merely personal legacies; and that Courts of Equity, for uniformity of decision in pari materia, follow the Ecclesiastical Courts in the one case, and the common law in the other. Reynish v. Martin, 3 Atk. 333; Pullen v. Ready, 2 Atk. 590; Sheriff v. Mortlock, W. Kelynge, 24; Co. Litt. 206.