24 Mo. 170 | Mo. | 1857
delivered the opinion of the court.
Walsh v. Matthews and wife (11 Mo. 134), determined here in 1847, is a direct authority in point, and must control our present judgment. That case is not shaken by the subsequent case of Williams and Williams against Cowden, (13 Mo. 211,) from which it is clearly distinguishable. The first is a condition annexed by a husband to restrain the marriage of his widow, and the second by a father in restraint of the marriage of his daughter. Both were annexed to testamentary dispositions of real property ; and the first was allowed and the second declared to be unlawful as being against public policy ; and although the point is settled by the previous judgment of this ' court, yet as the matter has been argued somewhat at large, we have re-examined the question and are entirely satisfied with the first decision.
The doctrine that all restraints on marriage are against public policy came from the Roman law, and thence through the canon law was partially incorporated into the common and equity law of England ; and by reference to Ayliffe’s Pandect of the Roman civil law (a short extract from which is here inserted), it will be seen that the distinction between first and second marriages, recognized in the two cases to which we have referred, was made at an early day in both the civil and the canon law — “ The ancient law rejected the condition (not to marry) almost without any distinction, as being contrary to the procreation of children, and the advantage of the state, for such was the judgment then that marriage ought not to suffer by any impediment. For though it be for the interest of the state that the testator’s will should be observed in other respects, yet the wisdom of men has thought it more for the advantage of the
In reference to the claim set up by the plaintiffs for the money allowed the widow against the estate by the probate court, enough is not disclosed to enable us to say that she is entitled to it, even if it be admitted that such a demand could be brought forward in this case as a ground of defence. Her rights in this particular will not be precluded by the present judgment, but she will be at liberty to institute such proceedings in reference to them as are appropriate to her case, unprejudiced by any thing done here.
The result is, the judgment must be affirmed.