34 Ala. 437 | Ala. | 1859
Conditions operating unduly in restraint of marriage, are utterly null and void, because they are considered contrary to the common weal and good order of society. — Morley v. Rennoldson, 2 Hare, 570; 2 Leading Cases in Eq., pt. 1, 315. In accordance with this principle, it is a well-settled rule, subject to certain clearly established exceptions, that if a condition in restraint of marriage is general, and also subsequent — that is, if the gift be of a certain interest, and there is an at
Accordingly, it has been frequently held, that where an estate is given during widowhood, with a limitation over, the estate is determinable by the second marriage. — Authorities supra; Jordan v. Holkham, Ambler, 204; Fitchett v. Adams, 2 Str. 1128; Miller v. Flournoy, 26 Ala. 724; Willard’s Eq. 531; Lloyd v. Lloyd, 10 Eng. L. & E. 139. And an annuity during widowhood, or celibacy, has also been held good. — Authorities supra; Barton v. Barton, 2 Vernon, 308; Heath v. Lewis, 17 Eng. L. & Eq. 41.
Besides, the rule which avoids a condition subsequent in general restraint of marriage, does not apply to devises or bequests by a husband to his wife. The reasons in which the rule has its origin, apply with greatly diminished force to prohibitions of marriage, when annexed to gifts of property by a husband to Ms widow; and such prohibitions are subject to other considerations, which have very properly induced .the courts to maintain their validity. A husband may well desire to leave the control of the whole or the greater part of his property to his widow, as the best means of keeping his children together, and of providing for their education, comfort and happiness ; and yet very reasonably be unwilling to entrust her with the same power after she has contracted a second marriage, and a stranger has become the head of his household. “It would be extremely difficult to say, why a husband should not be at liberty to leave a homestead to his wife, without being compelled to let her share it with a successor to his bed, and to use it as a nest to hatch a brood of strangers to his blood.” — Commonwealth v. Stauffer, 10 Barr, 355. Reason and experience, as well as the adjudged cases, sanction the idea, that a man has an interest in his wife’s remaining a widow; and although
Nor, under our laws, is there in this rule any hardship, of which the widow can justly complain. By our statute, she may, at any time within twelve months, renounce the provision which her husband has made for her, and take her distributive share of his estate, freed from all restraints denying to her the privilege of a second marriage.
It makes no difference, therefore, whether the form in which the testator has in this case sought to restrain the re-marriage of his widow, is to be deemed a condition subsequent or a mere limitation: it is alike valid, in either aspect. It follows as the result of this, that Mrs. Vaughn has no interest in the slaves named in the bill .and no right to relief.
The decree of the chancellor is affirmed.