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general, and is bad. Rhodes v. Muswell Hill Land Co., 29 B. 561.
A condition that trustees shall not pay over the shares of legatees without taking from them bonds that they will not intermarry or illegally cohabit with certain persons will not be enforced. Poole v. Bott, 11 Ha. 33.
CONDITIONS IN RESTRAINT OF MARRIAGE.
is void in
A condition in restraint of marriage applies only to a lawful marriage. In re M Laughlin, 1 L. R. Ir. 42.
A condition subsequent in restraint of marriage, where Condition the estates are for life or in fee, is, it seems, valid as re- in re
subsequent gards realty. Jones v. Jones, 1 Q. B. D. 279; Bellairs v. straint of
marriage Bellairs, 18 Eq. 510.
is good in But such a condition is void, if imposed upon a tenant But not as
realty. in tail, as repugnant to the estate. Earl of Arundel's Case, regards an 3 Dyer, 342 6.
It is clear, that in the case of personalty a condition Condition subsequent in general restraint of marriage is void. Morley straint of v. Rennoldson, 2 Ha. 570.
marriage And the same rule applies to a mixed fund arising from personalty. the proceeds of sale of realty and pure personalty. Lloyd fund.
Mixed v. Lloyd, 2 Sim. N. S. 255; Bellairs v. Bellairs, 19 Eq. 510.
It would seem that the rule applies to real and personal estate given together. Duddy v. Gresham, 2 L. R. Ir. 443.
2 And it seems, that a legacy out of the proceeds of land Legacy out directed by the testator to be converted would follow the
of sale of same rule. See Hart's Trusts, 3 De G. & J. 195; Bellairs land. v. Bellairs, supra.
On the other hand, a limitation to a person till marriage Limitation is good, the intention being to provide for the person while
riage is he remains unmarried, and not to prevent him from marry
ing. Potter v. Richards, 24 L. J. Ch. 488; Heath v. Lewis,
3 D. M. & G. 954. Conditions And conditions in partial restraint of marriage are valid, in partial restraint of both with regard to realty and personalty, though with marriage are good
regard to the latter the further question arises whether though they are in terrorem or not. be ineffec- Thus, conditions restraining a widow or widower from tual.
marrying again, whether it be the widow of the testator or of a stranger : Evans v. Rosser, 2 H. & M. 190; Newton v. Marsden, 2 J. & H. 356; Allen v. Jackson, 1 Ch. D. 399; or requiring a marriage with consent: Sutton v. Jewks, 2 Ch. Rep. 95; or restraining marriage before a certain age: Stackpole v. Beaumont, 3 Ves. 89, are good as conditions, though they may be ineffectual if there is no gift over, on the principle hereafter mentioned.
So conditions against marriage with a Scotchman, or in a manner not in accordance with the rules of the Quakers, or with a person of a particular religion, or a domestic servant, are valid. Perrin v. Lyon, 9 East, 170; Haughton v. Haughton, 1 Moll. 611; Duggan v. Kelly, 10 Ir. Eq. 295, 473 ; Hodgson v. Halford, 11 Ch. D. 959; Jenner v. Turner, 50 L. J. Ch. 161; 29 W. R. 99.
. In the case of real estate such a condition is valid even if there is no gift over. Haughton v. Haughton, 1 Moll.
611. Doctrine In the case of personalty, certain conditions subsequent, of in
though good in law, are, in accordance with the rule of the terrorem.
Civil Law, held to be void, and in terrorem merely, if there is no gift over.
It seems the doctrine that certain conditions are in terrorem merely applies to real estate when it is included with personalty in the same gift. Duddy v. Gresham, 2 L. R. Ir. 443.
Of this nature are the conditions in partial restraint of marriage already mentioned. Marples v. Bainbridge, 1
Mad. 590; Reynish v. Martin, 3 Atk, 330; Wheeler v.
And the same rule applies to a condition not to contest the will. Powell v. Morgan, 2 Vern. 90.
But if there is a gift over, these conditions are effectual, the gift over being considered sufficient evidence, that they were not meant to be in terrorem merely. Cleaver v. Spurling, 2 P. Wms. 526; Tricker v. Kingsbury, 7 W. R. 652; Charlton v. Coombes, 11 W. R. 1038; Craven v. Brady, 4 Eq. 209; 4 Ch. 296. On the question whether the doctrine of in terrorem Whether
the docapplies to conditions precedent, the cases show: 1. A condition precedent, requiring consent to marriage plies to
conditions generally, without limitation of age, is effectual if there is a precedent. gift over. Malcolm v. O'Callaghan, 2 Mad. 349; Gardiner v. Slater, 25 B. 509.
2. The gift of a smaller sum, in the event of marriage without consent, has the same effect. Creagh v. Wilson, 2 Vern. 572; Gillett v. Wray, 1 P. Wms. 284.
3. A condition precedent, requiring consent to marriage if under a certain age, is good if there is no gift over. Stackpole v. Beaumont, 3 Ves. 89.
4. A condition precedent not to marry under a certain age is good, though there is no gift over. Yonge v. Furse, 8 D. M. & G. 756.
5. A gift to a legatee, if he marries a particular person, only takes effect in that event. Davis v. Angel, 4 D. F. & J. 524. Quære whether Smith v. Cowdery, 2 S. & St. 358, is overruled.
6. But it seems a condition precedent requiring marriage with consent generally, and without a gift over, would be considered in terrorem merely. Reeves v. Herne, 5 Vin. Ab. 343, pl. 41; Reynish v. Martin, 3 Atk. 330; see Clarke v. Parker, 19 Ves. 1.
In cases under 4 and 5 the conditions can only be Waiver of
conditions waived testamentarily, and no consent of the testator to a by the
marriage in his lifetime, not within the condition, will make
the gift good. Consent of But where the condition is marriage with consent, the testator to a mar
whether precedent or subsequent, the consent of the tesriage in his tator to a marriage in his lifetime satisfies the conditior. satisfies a Clarke v. Berkeley, 2 Vern. 720; Parnell v. Lyon, 1 V. & condition requiring B. 479; Wheeler v. Warner, 1 S. & St. 304; Tweedale v. consent.
Tweedale, 7 Ch. D. 633; see Violett v. Brookman, 5 W. R. 342.
And the condition does not apply to a subsequent marriage. Hutcheson v. Hammond, 3 B.C. C. 128; Crommelin
v. Crommelin, 3 Ves. 227. Consent of But in such a case the consent of a testator to a marriage testator to a marriage
to take place after his death does not obviate the necessity to take
for the consent of the persons named in the will. Lowry place after his death. v. Pattison, I. R. 8 Eq. 372.
And, where the gift is till marriage, the consent of the testator to a marriage does not extend the gift. Bullock v. Bennett, 7 D. M. & G. 283; sce Cooper v. Cooper, 6 Ir.
Ch. 217. Condition It seems, that where there is a gift upon marriage with of marriage with con consent, the legatee has her whole life to perform the consent is
dition, and the legacy is not forfeited by a first marriage satisfied by a second without consent. Randall v. Payne, 1 B. C. C. 55; marriage with con. Beaumont v. Squire, 17 Q. B. 905. Clifford v. Beaumont,
4 Russ. 325, was decided on the ground, that the gift was only upon a marriage with consent, which had not in fact been obtained. See, too, Duddy v. Gresham, 2 L. R. I. 443.
But if cther provision is made for the legatee in the event of marriage without consent, the condition must be limited to a first marriage. Lowe v. Manners, 5 B. &
Ald. 917. Condition In the case of a condition requiring the consent of
several persons, if the consent required is that of executors requiring or trustees, the consent of those who renounce or do not sent of act is not necessary. Worthington v. Evans, 1 S. & St. 165; Boyce v. Corbally, Ll. & G. temp. Plunkett, 102; Ewens v. Addison, 4 Jur. N. S. 1034; White v. Al' Dermot, I. R. 7 C. L. 1; see Clarke v. Parker, 19 Ves. 1.
But if there is only a single executor who renounces, his consent must, it seems, be obtained. Graylon v. Hicks, 2 Atk. 16; but the case is doubtful.
And a condition requiring the consent of several persons is performed by obtaining the consent of the survivors. Ewing v. Anderson, 7 W. R. 23; Dawson v. Oliver Massey, 2 Ch. D. 753.
Where a testator directs, that if a certain sum should Apportionbe applied in favour of A., A. should apply a sum of condition. different amount in favour of B., the condition will be compulsory on A. only if the whole of the sum in question is applied in his favour, and the condition will not be apportioned. Caldwell v. Cresswell, 6 Ch. 279; Fazakerley v. Ford, 4 Sim. 390.
A condition in a will must be performed accord- Right of ing to its terms, and the Court has no power to relieve
tion. the legatee from any of them. Thus a right of preemption given to a person, if he pays a sum of money within a given time, followed by a disposition of the property if the money is not paid within the time, must be strictly complied with. Brooke v. Garrod, 3 K. & J. 608; 2 De G. & J. 62; Austin v. Tawney, 2 Ch. 143 ; see Evans v. Stratford, 10 L. J. N. S. 713.
A right of pre-emption at a fixed price is not destroyed by a compulsory purchase under the Lands Clauses Act, and the person to whom the right is given may take the purchase money paid by the company less the fixed price. Re Cant's Estate, 4 De G. & J. 503.
Trustees directed to give a particular person a right of