| Ill. | Apr 21, 1898
delivered the opinion of the court:
As will be seen by the foregoing statement, the relief prayed in the bill is based upon the allegation that the condition named in the fourth and fifth clauses of the will of Eli C. Ransdell, upon which the complainant should become the absolute owner of the property mentioned, is contrary to good morals, against public policy, and therefore void. In support of the proposition, the rule announced in 1 Story’s Eq. Jur. sec. 291a, and authorities there cited, 2 Redfield on Wills, 293, Conrad v. Lowry, 33 Mich. 78" date_filed="1875-11-02" court="Mich." case_name="Conrad v. Long">33 Mich. 78, and Pomeroy’s Eq. Jur. sec. 933, note 1, is relied upon. The language of Judge Story is (having spoken of the law as to devises and bequests in restraint of marriage): “So, also, conditions annexed to a gift the tendency of which is to induce husband and wife to live separate or be divorced, are, upon grounds of public policy and public morals, held void.” But he says (sec. 291 e): “This whole subject, as to what conditions in restraint of marriage shall be regarded merely in terrorem and so void, and what ones are valid, is certainly, both in England and in this country, involved in great uncertainty and confusion.” And in section 291 d: “The question as to what conditions affecting marriage are valid must depend upon the circumstances of each particular case, and will be very materially affected by the consideration how far the condition was one fairly applicable to the relation of the parties and the peculiar views and situation of the donor and donee.”
While it must be admitted that the language of the testator used in these clauses of his will impresses one with the belief that he desired his son to obtain a divorce from his wife, and that he conditioned his gift to him with a view to encourage that result, there are certain facts and circumstances which go far to sustain the view that his purpose was simply to secure the gift to his son in the manner which, in his judgment, would render it of the greatest benefit to him in view of the relations then existing between him and his wife. They bad for several years prior to the execution of the will been separated. A divorce suit between them had then been pending for more than two years, in which they each alleged statutory grounds against the other for divorce, and they continued such divorce proceedings and lived'separate and apart from each other for many years after the death of the testator. Certainly, it cannot be said that the condition tended to encourage either the separation or the bringing of a divorce suit, both having taken place long prior to the execution of the will. We do not regard as competent the extrinsic evidence of the declaration of the testator, made some two years prior to the execution of the will, to the effect that he thought as,the son and his wife had separated they had better remain so, and if they lived together he would disinherit the son, and that he could not do much for the son while he lived with his wife. The general rule is, that in the construction of wills parol testimony is competent to prove the circumstances of the testator at the time, the condition of his property, his relations to his family, etc., but never to prove his declarations prior to or after the execution of the instrument. The testimony, however, was of no controlling importance. He did not disinherit his son upon condition that he should live with his wife or should obtain a ¡divorce from her. He simply made one provision for hinr^n case they were not divorced, and another if they wereNv.,,
While it is of the first importance to society that contract and testamentary gifts which are calculated to prevent lawful marriages or to bring about the separation or divorcement of husbands and wives should not be upheld, it is no less important that persons of sound mind and memory, free from restraint and undue influence, should be allowed to dispose of their property by will, with such limitations and conditions as they believe for the best interest of their donees. On the whole case, we are inclined to the view that the condition in this will should not be held as contrary to public policy and void. This view is in harmony with the cases of Cooper v. Remsen, 5 Johns. Ch. 159, Born v. Horstman, 80 Cal. 452" date_filed="1889-09-06" court="Cal." case_name="Born v. Horstmann">80 Cal. 452, and Thayer v. Spear, 85 Vt. 327. It is true that the force r""*’ of the reasoning in these cases is somewhat weakened, as applied to this case, by the fact that there the gift was to daughters, whereas here it is to a son; but the principle involved is the same. .
We do not, however, consider the foregoing conclusion as essential to an affirmance of the decree below, for the reason that, even if the condition should be held void, complainant is not entitled to the relief prayed, on the facts alleged in his bill and the proof made upon the hearing. It is said by Pomeroy in his Equity Jurisprudence (vol. 2, sec. 9336): “It is ordinarily said that all conditions annexed to gifts which prohibit marriage generally and absolutely are void and inoperative. This, however, is a very inaccurate mode of statement, since a condition precedent annexed to a devise of land, even if in complete restraint, will, if broken, be operative and prevent the devise from taking effect.” And in note 1 to the same section the rule is thus stated: “In devises and other gifts of real estate, courts of equity will follow the rules of the common law concerning the operation of conditions generally, and their effect upon the vesting and divesting of estates. In gifts of real estate, therefore, when a condition in restraint of marriage is precedent and is broken, it prevents the estate from vesting at all, whether the restraint be absolute qr partial and whether there be a gift over or not. When the condition is subsequent and void it is entirely inoperative, and the donee retains the property unaffected by its breach.”
We do not understand counsel for plaintiff in error to question the correctness of the rule thus stated. It is contended, however, that the condition here is subsequent, and not precedent. This position is clearly untenable. By the express language of the will the absolute ownership of the property was onty to vest in the donee upon performance of the condition. In other words, by its express terms it is a cordition precedent and the bill designates it as “a condition precedent.” An attempt is made to construe it into a condition subsequent, upon the theory that the trust created in the executors is a mere naked or passive trust, and therefore, the condition being void, the title passed immediately to plaintiff in error, under section 3, chapter 30, of our statute entitled “Conveyances,” and that the limitation over, in case he died childless, to “the other devisees under the will,” is void for uncertainty. It is clear that the trust is not a naked one. (Kirkland v. Cox, 94 Ill. 400" date_filed="1880-01-15" court="Ill." case_name="Kirkland v. Cox">94 Ill. 400; Perry on Trusts, sec. 200; Hill on Trustees,—4th Am. ed.—376.) We are unable to see upon what reasonable grounds it can be said the devise over is uncertain. It seems clear that even if the condition named in the fourth clause should be held void, the title in fee to the lands therein described could not vest in plaintiff in error, the condition being precedent to the vesting of such title and the devise being- of realty.
The same is true as to any real estate devised by the fifth clause. But it is insisted that as to any personalty disposed of by that clause (the condition being void) the ownership in plaintiff in error would become absolute, whether the condition was precedent or subsequent. It is true the distinction between bequests of realty and personalty insisted upon exists; but we are unable to agree with counsel that such distinction can be availed of by the complainant below upon the allegations of his bill and the proof made in support thereof. In the first place, in no event can he have any right or title to the property, personal or real, mentioned in the fifth clause until the death of his mother, Ann Ransdell. She is still living, and, of course, his death may occur prior to hers, and therefore his present interest is, at most, a mere expectancy. But aside from this consideration, the allegations of the bill are entirely too vague and indefinite to support a decree vesting any title, present or future, in personal property devised by the will, and certainly there is no proof in the record to authorize such a decree.
We think the circuit court properly dismissed the bill at complainant’s costs, for want of equity, and its decree will accordingly be affirmed. Decree 'affirmed.