Chapter XIV: Section 3: Conditional Legacies

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]