mitation over, if it operates at all, is to divest ; [*] and that a right cannot be divested by implication; but that argument overlooks the word unmarried. Another of the counsel has more plausibly reasoned, that, inasmuch as the limitation over is expressly upon another event, it can only operate, in case of that event, as a limitation over; so that, in this respect, if the mother has any interest at all, it must be in her character of residuary legatee, but that she cannot, in that character, take this interest, because the testator has implied that she is only to have it in a certain event which has failed: but why cannot she be excluded in one view from this interest, and admitted in another which is in alio jure, and which by devolution of law, upon a partial intestacy, falls into the residuum? The counsel adds, that if the mother is excluded, the daughter alone can take this interest. But that is not a correct inference; for if the residue given to the mother must be formed after a deduction of this interest, the part which is deducted will be a residue undisposed of. 2d. The condition is good—even if it were the case of a direct legacy to the daughter, upon condition of a marriage, with consent of the mother before twenty-one. It is a good condition by the civil law, and good in this court, which has not implicitly followed the rule of the civil law as to legacies, nor with an accurate reference either to the reason of that rule, or to the distinction upon it. By the civil law the condition of remaining unmarried is void, and so is the condition which requires any consent, though it be that of the parent. This too with, or without, a limitation over superadded, and, if the general rule which dispenses with a parent's consent be just, the extent of it thus far has very good sense in it. The reason, however, of the rule as given in Swinburne, is perfectly ridiculous. It stands thus: "A restraint upon marriage in general is void. This rule is peremptory and universal. A requisition of consent, which the testator knows will never be given, would baffle the rule; every [*] testator may be guilty of this evasion; every nominal trustee may be an accomplice in it; a testator who is a parent may act in this point against his own child, therefore, says the civil law, we must cut the knot, "rescindi debet quod fraudanda legis gratia ascriptum est." But even the civil law, with all its enmity against the condition, lets in the effect of it in another shape, for if a marriage with consent, is to mark the time at which the legacy will be due, the Ecclesiastical Courts will not anticipate the event, or act upon it by halves. In the case of Hervey v. Aston, Com. Rep. 735., the words of Lord Chief Baron Comyns are these: "If a legacy be given upon a preceding fact, that may or may not be done, or be to be paid at such a time as may or may not "come; if the fact be not performed, or if the time should never come, "the legacy would be lost by the civil law.”— And in page 744., "when "a legacy is given to be paid at a certain time, or upon a certain act "which is to be performed, nothing is due till the time incurred, or the "act performed, by the civil law;" he cites for this Dig. 1. 36. tit. 2. c. 21, 22.-In page 756. he puts the very case of money given to be paid upon marriage with consent, and holds that in that case the legacy would be suspended by the civil law. He seems to consider the marriage and the consent as two events that are indispensable marks of the time at which the gift shall begin to speak. This rule, however, of the civil law, as it respects the mere condition, is not implicitly adopted here, and the reason of it never. VOL. II. Y For 1788. SCOTT against TYLER. [ *444 ] [ *445 ] 1788. SCOTT against TYLER. [*446 ] [*447 ] For here, the condition of a parent's consent is good and meritorious. Lord Hale and Keeling, in Fry and Porter, approve it in very emphatical terms.-Lord Chief Baron Comyns does the same in Hervey v. Aston, Com. Rep. 748. The idea of a condition in terrorem, as 'tis called, is perfectly ridiculous-what is a terror which is never to intimidate? Would a man of sense impose it? Would any but an ideot act upon it? [*] The intention of the restraint is to guard against an improvident marriage, and punish it if it shall have taken place. In this view, which has the soundest policy, the restraint is here stricti juris, to a certain extent, and though it is difficult perhaps to ascertain the limits with accurate precision, they are marked enough to bear directly upon the case before us. According to Lord Chief Baron Comyns, in Hervey v. Aston, page 729., "If money be directly given to A. in consideration that the le"gatee shall not marry without consent, and there is no devise over, "the condition is ineffectual even here," that is, in other words, if an absolute gift is qualified by that condition imposed upon it. But it seems agreed, that if it be a devise of real estate or of a sum charged upon a real estate, the condition would be effectual though without a devise over. These distinctions are not very becoming 9), and they offend one the more, when the degree in which the rule taken from the civil law, is adopted here, has been justified by a view to the uniformity of the two courts though uniformity in the same court is thus overlooked. Suppose portions to A. and B., two daughters, of the same value, and qualified by the same condition, what can be more irrational or incongruous than to repel the condition as to one of the daughters, and adopt it as to the other, because the fund happens to be different? The reason of rejecting the rule where there is a limitation over, is explained by Lord Chief Baron Comyns to be this: he says, the intention is better marked by that circumstance, and he contends, that if a similar intention can be collected aliunde, it should have the same effect. — Lord Hardwicke indeed says, the intention is considered as favouring the the devisee over, and as vesting a right in him—that it is a condition, therefore in that view taken more as beneficial to him, than as prejudicial to the legatee restrained. But if money be given to be paid at twenty-one, or marriage with consent, both courts are agreed that it is a good restraint, and that no money will be due 'till one or other of those events [*] has taken place (10) and a fortiori, if the money be not given to the legatee, to be paid at those periods, but given to another, in trust for that payment. The distinction is taken up in Hervey v. Aston, page 752., and the point itself decided by an obvious implication resulting from the actual judgment in that case. The 2000l. given by that will was personal estate, but it had the same condition imposed upon it which had also fettered a real devise in the same will, and that condition was "a marriage with consent,”—yet, if the condition of requiring assent is void in a personal gift, the marriage, without the consent, would have entitled the legatee. But the argument of Lord Chief Baron Comyns is more direct, 751. "When she marries with consent, I give her 2000l. more." He first argues from a general intention, covering both funds, and pointing at (9) See 3 Ves. 95, &c. (10) See Hemmings v. Munckley, antea, vol. i. 303, 304.; and Stackpole v. Beaumont, 3 Ves. 89, &c. the the time when the gift shall take place: but if the condition were necessarily bad in a personal gift the time could not be so qualified. He then reasons from its being a personal gift, in augmentation of the real devise preceding it, and he lays particular stress upon the want of a gift immediately to the child. He says, that if she were to die before the first portion could be paid, she would have neither of the gifts, and he comes, page 753., to the very point; asserting the import of the will to be, that the 2000l. shall be due to her upon her marriage, with consent, and puts it as if so expressed. He affirnis the condition to be lawful, as a condition precedent, and states that, in every other personal gift, conditions precedent must be performed that even the civil law holds that rule, and that we have no instance the other way, either at common law or in this court. He distinguishes conditions precedent and subsequent with particular care, so as to refuse what had been too inaccurately called precedent conditions, and which he considers in the light of subsequent. [*] The distinction taken by him is between some event preceding the payment of the legacy, (whether coupled with a condition, or importing a condition itself,) and a condition put by way of restraint upon a gift actually made complete, by the will, before the restraint is imposed. (3) But the condition here would be good as enabling a BETTER provision by way of alternative. If a condition of marriage, with consent, is by way of proviso to amplify a gift, there is no case where this condition, remaining unperformed, the additional benefit can be received. "You shall either have 20l., or if you marry with consent, you shall "have 301." shall the legatee marry without consent, and have 30l.? Creagh v. Wilson, 2 Vern. 572. appears to be directly in point. Stress is laid upon this principle, too, in Hervey v. Aston, page 750. The testator in the case before us gives 10,000l. at twenty-five, to his daughter unmarried, but if she marries with consent, before twenty-one, he accelerates the payment and relaxes the condition of unmarried. No case can be found in which a new and ulterior benefit, being the reason for a conditional gift, it can operate in defiance of the terms imposed. 4. If the condition here were in itself absolutely void, either taken as precedent or subsequent, yet it would be good as a mark of the TIME when the legacy should be payable-this too even by the civil law. In other words, if a personal legacy to a daughter is made payable upon an event marked in the time of it, by this condition upon her marringe, the legacy is not payable till the time so described and qualified Lord Chief Baron Comyns, in Hervey v. Aston, is express to this point, page 737. 744. & 756. is come. Swinburne, page 269., states it as no condition if put as an adverb of time quamdiu or dum sola fuerit, &c. Lord Chief Baron [*] Comyns treats it as a limitation of time, and in that view adduces the civil law as being agreed with him. This way of considering it parries the inconvenience of refusing the condition, as annexed to a personal gift and adopting it as a gift of real estate. He distinguishes between a legacy "if, &c." and the same condition preceding the legacy, as the mark of its time. 5. The condition here is good as accompanied with a devise over. The whole 10,000l. is given over to the mother, if the daughter should die unmarried. If the testator had said " unmarried before twenty-one," it would have been more clear; but, even as it is, it is clear that the testator meant un married before twenty-one with consent, not adverting to any marriage after twenty-one and before twenty-five. Y 2 In 1788. Scort against TYLE. [*450 ] [ *451 ] In every other case of the event failing upon which the particular legacy is given, the mother takes by limitation over, nor can a reason be assigned why it should be omitted here, where such peculiar anxiety is marked for the effectual performance of the condition. The local position of the limitation over of the whole 10,000l. is not immaterial. It comes immediately after the gift of the 10,000l. upon a marriage with consent before twenty-one. If this were not the key to it, the absurdity would be extreme, for the testator would then say, "If you should marry before twenty-one without "consent, and die before twenty-five, having so married, it is not to be "given over, though, in failure of all the other events, it is." In Hervey v. Aston, a marriage with consent having preceded in the same will, subsequent words, referring generally to marriage, are bound as referring to a marriage with consent. Thus it appears, that in the case before us, the intention is clear from a conditional gift, the condition too is good in itself-good, as a limitation of time, good, as annexed to a better provision, - and good as accompanied with a limitation over. - [*] Mr. Hargrave (11) for the assignees of Mrs. Tyler.-Two questions occur in this cause; the one as to the bonds deposited with Messrs. Hankeys, with respect to which I am not instructed to interpose: the other concerning the 10,000l. claimed by Mr. and Mrs. Scott, which is a question of great importance, as it involves the general doctrine of the court, as to gifts on condition of marriage being merely in terrorem. Four times has this Court called in the assistance of the judges of the courts of law upon different branches of this doctrine. Lord Clarendon, in the case of Bellasis v. Ermine, [1 Ca. Ch. 22.] 15 Car. 2., was assisted by Lord Chief Justice Hyde and Lord Chief Baron Hale. Lord Keeper Bridgman, in the case of Fry v. Porter, 21 Car. 2., had the three chiefs as assessors. A few years after the Revolution, in Bertie v. Lord Falk land, Lord Somers called in the aid of the Chief Justices Holt and Treby; and, early in the last reign, Hervey v. Aston was heard before the Lord Chancellor, assisted by the Chief Justices Lee and Willes, with Mr. Justice Comyns. But notwithstanding this, and that new cases occurred in the latter part of Lord Hardwicke's time, yet, during the time that the great seal was in commission, the case of Mansell v. Mansell, on a power of jointuring given to a testator for life on condition of his mar rying with consent, came on and underwent great discussion. In the interval between that case and the present time, two cases only seem to have occurred, Randal v. Payne, (ante, vol. 1. p. 55.) and Hemmings v. Munckley, (ante, vol. 1. p. 203.) neither of which appears to have been much debated. The present case induces a necessity of re-examining the principles and authorities of the doctrine in question; I shall, therefore, examine the present cause as far as relates to the condition of marriage with consent annexed to the legacy given by Mr. Key. Under the will in question, Mr. and Mrs. Scott claim, in Mrs. Scott's right, the legacy of 10,000l. South-sea annuities, and found their claim thus: that Mrs. Scott having married under twenty-one years of age, the material part of the contingency in Mr. Key's will, respecting the legacy, has taken effect, and therefore that she is entitled to the stock with the accumulation [*] of interest. Against this the assignees contend that she is not so entitled, because she has married without the consent of her mother. The bill states a kind of consent to have been obtained, but this is totally contradicted by the mother's answer, and there is not a syllable of proof of such consent, so that the fact must be taken to be, that she has married under twenty-one, and without the consent of her mother. The case has been argued on behalf of the plaintiffs in two ways. 1st, That Mrs. Scott's title has accrued within the contingencies under the will. Secondly, and principally, that the condition in the will, as far as it requires marriage with consent of the mother, is a condition in terrorem only, and, as such, null and inoperative. With respect to the first point, it is not much relied upon; the true answer to it will be to state the contingencies. The first contingency is that upon her attaining her age of twenty-one, a moiety of the stock shall be transferred to her, in case she should be then unmarried; the event is, that at twenty-one she was, and still is, married to Mr. Scott: this contingency, therefore, has not happened.-The next contingency, is her attaining twenty-five, and being then unmarried, when the remaining moiety is to be transferred; but to this there is a double answer; she has not yet attained twenty-five, and she is married. The third contingency is, her marrying under twenty-one with consent of her mother: but this contingency neither has happened, nor ever can happen, for she married under twenty-one without consent, and has continued married till after her age of twenty-one. These are the only contingencies in the will, and are so framed that no one of them is complied with. It has, however, been attempted to raise an argument in favour of Mrs. Scott from the devise over to Mrs. Tyler, which gives the 10,000l. to her, only in the event of Mrs. Scott's dying before twenty-five unmarried. But this is inconclusive, because the real question is, as to Mrs. Scott's right, not Mrs. Tyler's; because it vests Mrs. Tyler's right on the devise over, which really depends on the residuary clause, because the title on which each rests depends on the contingencies, and because the implication that Mrs. Scott is entitled to whatever Mrs. Tyler is not, is too violent; 1 therefore proceed to the second and great point in the cause. 1788. SCOTT against TYLER. [*] The position maintained by the plaintiffs is, that it is the rule of [*452] the Court, in case of legacies of personal property, to consider conditions in restraint of marriage as merely in terrorem, unless where upon the breach of the condition the legacy is expressly devised over to a third person. That such a rule should ever have existed appears wonderful, and, if the authorities were out of the case, the rule could not be supported. There is no policy in our law which objects to reasonable restraints on marriage (12), although it will not admit of an absolute prohibition: on the contrary, it prohibits marriage under twenty-one, without consent of parents or guardians. A legacy, therefore, upon those terms, instead of being against law, coincides with and enforces it: the legality of such a legacy has been recognised in several instances, notwithstanding the condition has met with much opposition. It was once contended that, in a devise of land, on condition of marrying with consent, the condition was null but that point was settled in favour of the condition in Fry v. Porter, 1 Ch. Ca. 188., and in Bertie v. Lord Falkland, 3 Ch. Ca. 129. So in the case of a portion to be raised out of land, in Hervey v. Aston, which also settled that the condition is effectual, on a legacy having reference to a portion to be raised out of land: all agree that it is so of a legacy in money, with a devise over. In Mansell v. Mansell, the condition was held effectual, on a power of jointuring with land, by the unanimous opinion of the Lords Commissioners. A question arose before Lord Hardwicke, whether the condition was effectual, with respect to money to be laid out on land. This was in 1743, in the case of Ready (12) See per Lord Thurlow. 2 Dick. 721.; and per Lord Loughborough, 3'Ves. 97, &c. v. Colson, Y 3 |