“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]
Section 4.—Payment of Legacies.