In the one case he takes which these entails are created are more frequently made distant heirs The descent of real estate to distant heirs, and the Descent and devolution of personalty to distant kindred, involve an devolution to amount of learning and litigation, the abolition of which and kindred. would perhaps be desirable. The family and near re Π lations of an intestate have generally claims upon his bounty, which ought not to be disappointed by the accident of his decease without making a will. But distant relatives have seldom any such claims, nor consequently any expectation of such claims being fulfilled. To withhold from them, therefore, that which they had never expected to enjoy, would not be to inflict a loss. Under the present system, the property of an intestate who has no near relations, is not unfrequently frittered away in expensive contests between opposing claimants, or else it devolves unexpectedly upon persons who, for want of previous education, are unable to make use of it with benefit either to themselves or to the community. In a country so heavily burdened as our own, any addition to the public income, not having the pressure of a tax, would be a very desirable acquisition. Such an addition might, as it appears to the author, be very properly made by the devolution to the public of the properties of intestates having none but distant relatives. country in which a man has lived, and in which his property has been acquired, or at any rate protected, has certainly some claims upon him,-claims which seem preferable to those of the man who, in the case of real estate, founds his title on his descent from the most remote male paternal ancestor of the intestate (7), or who claims a share in the personalty because he chances to be a survivor amongst the multitude standing in the fifth or sixth degree of a series of kindred which increases, as it grows distant, in geometrical progression (m). (1) See Principles of the Law of Real Property, 78, 1st ed.; 83, 2nd ed.; 87, 3rd and 4th eds.; 92, 5th ed.; 98, 6th ed.; 101, 7th ed. The (m) The author's attention has since been called to a similar proposal in Mill's Political Economy, vol. 1, pp. 272, 273, 2nd ed. CHAPTER V. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. MARRIAGE, being essential to the welfare of the community, and also involving important consequences to the individuals concerned, is not on the one hand allowed to be unduly restrained, nor on the other to be brought about by unfair means. Amongst the many striking differences between the Restraints on laws of real and personal property, by which our legal marriage. system is complicated, will be found the rules relating to attempted restraints on marriage. Real estate is governed by the rules of the common law; but personal estate, when bequeathed by will, has, as we have seen (a), long been subject to the jurisdiction of the ecclesiastical courts. These courts have adopted, with some modification, the rules of the civil law, which is more favourable than the common law of England to liberty of choice in marriage. Hence it follows that some restrictions on marriage, which are valid when applied to a gift of real estate, are void when attempted to be imposed on a gift of personal property. The rules respecting real and personal estate so far agree that a condition annexed to a gift of either, that a person shall not marry at all, is void (b). But a gift of either by a husband to his wife during her widowhood is valid (c); neither would a gift of the income of property to a single person until marriage, with a gift over on mar (a) Ante, p. 313. (b) Shep. Touch. 132; Perrin v. Lyon, 9 East, 170, 183; Rishton v. Cobb, 9 Sim. 615; 5 My. & Cr. 145; Morley v. Rennoldson, (c) Barton v. Barton, 2 Vern, out consent. Marriage with- riage, appear to be invalid (d). When, however, a gift is made, with a condition that it shall be forfeited if the donee marry without the consent of certain trustees or other persons, the difference between the laws of real and personal estate becomes conspicuous. If the gift be of real estate, or of money charged on real estate, it will cease on the event of marriage without the required consent (e). But if it be a bequest of personal property, the condition is regarded as merely in terrorem and void (f), unless accompanied by a bequest over to some other person on the marriage taking place without consent (g); so that the legatee will be entitled to retain the legacy, notwithstanding his or her marriage without consent, unless on that event it be expressly given in some other manner. Such conditions in bequests of personalty, when unaccompanied by a gift over, are called in terrorem, because, says Lord Eldon, "they are supposed to alarm persons, when we know they contain no terror whatsoever" (h). Marriage bro cage. In order to prevent marriages from being unfairly obtained, it is a rule in equity that all contracts for reward for procuring marriages (called marriage brocage) are void (i). And if a parent or guardian should stipulate for any private benefit for the marriage of his child or ward, such stipulation would be void, and money actually paid under it would be decreed to be refunded (j). (d) See Right d. Compton v. Compton, 9 East, 267; Morley v. Rennoldson, 2 Hare, 570, 580; Webb v. Grace, 2 Phil. 701; Lloyd v. Lloyd, 2 Sim. N. S. 255; Heath v. Lewis, 3 De Gex, M. & G. 954; Erans v. Prosser, V. C. W., 10 Jur. N. S. 385. (e) Reynish v. Martin, 3 Atk. 330, 333. (f) Bellasis v. Ermine, 1 Cha. Ca. 22. (g) Stratton v. Grymes, 2 Vern. 357; Harvey v. Aston, 1 Atk. 361; Clarke v. Parker, 19 Ves. 1, 13. (h) 19 Ves. 13. (i) Hall v. Potter, 3 Levinz, 411; Shower's Par. Cas. 76. (j) 1 Fonblanque on Equity, 262; Smith v. Bruning, 2 Vern. 392. tlements. ment as to in age. Few marriages are now contracted between persons Marriage setpossessing any amount of property, without a previous settlement of such property being made, in some stipulated manner, for the benefit of the intended husband and wife and the children of the marriage. As marriage is a valuable consideration (k), such settlements are binding on both parties if of full age. And an act of parlia- New enactment has recently been passed (1), enabling every infant, fants. not under twenty if a male, and not under seventeen if a female, to settle his or her property, whether real or personal, upon marriage, provided the sanction of the Court of Chancery be obtained. But if the settlement be not Not binding made under the provisions of this act, and either hus-on party under band or wife should be under age, the settlement will not be binding on him or her (m), although the other party, if of full age, will be bound by it (n). And if both of them should be under age, neither of them will be bound by it. The circumstance of the settlement of an infant's personal property being fair and reasonable, and made with the approbation of his or her guardians, was formerly considered as giving it validity (o); but this circumstance seems now to have no weight. It has, however, been decided that a competent legal jointure (p) settled on the intended wife, then an infant, with the concurrence of her guardians, in lieu of her right to dower out of her husband's freehold lands, and in lieu of her distributive share of his personal estate in the event of his intestacy, was sufficient to deprive her both of her dower and of her distributive share in her husband's (k) Ante, p. 72. (1) Stat. 18 & 19 Vict. c. 43; Re Dalton, 6 De Gex, M. & G. 201, extended to the Court of Chancery in Ireland, by stat. 23 & 24 Vict. c. 83. (m) Ellison v. Elwin, 13 Sim. 309; Le Vasseur v. Scratton, 14 Sim. 116. (n) Durnford v. Lane, 1 Bro. C. C. 106; Milner v. Lord Hare- (0) 2 Roper's Husband and (p) See Principles of the Law of Real Property, 174, 1st ed.; 184, 2nd ed.; 191, 3rd ed.; 192, 4th ed.; 201, 5th ed.; 211, 6th ed.; 216, 7th ed. |