11 Mo. 131 | Mo. | 1847
delivered the opinion of the Court.
This was an action of ejectment brought by Mathews & wife against James B. Walsh in the St. Louis Court of Common Pleas, for real estate in St. Louis county. The case involved the construction of the will of Joseph W. Walsh, deceased, and was submitted to the court upon a special verdict, which found as follows: “The jurors aforesaid upon their oaths aforesaid find that Joseph W. Walsh, deceased, late of the city of St. Louis, departed this life in the month of September in the year 1842, leaving his widow Elizabeth, who is co-plaintiff in the action, and two daughters, to-wit: Mary F. Walsh and Margaret S. Walsh, who were then and still are under age; the former being now about eight years of age and the latter about six years of age. That said Joseph W. Walsh, previous to his decease, to-wit: on the fifth September, 1842, made his last will and testament, which is in the following words and figures, to-wit: “In the name of God, amen; I, Joseph W. Walsh, of the city and county of St. Louis, and State of Missouri, being sick and weak of body, but of sound and disposing mind, memory and understanding, considering the certainty of death and the uncertainty of the time" thereof, to the end that I may be prepared to leave this world when it shall please God to call ¡me hence, do make, publish and declare this to be my last will and testament, hereby revoking and making null and void all other last wills and testaments by me heretofore made, and my will is, that after my decease, all my just debts shall be paid by my executors herein aftérnamed, and as to the residue of my estate and property with which it has pleased God to Mess me, and which shall not be required for the payment of my debts,
On the foregoing facts the court declared the law to be for the plaintiff and entered judgment against said defendant. The ease is brought to this Court by writ of error.
It will be found by reference to the will, that the testator gave to his wife nearly the whole of his personal estate, and likewise devised to her a brick house in the city of St. Louis and a farm in the country, with the words, “to have and to hold the said house and farm, with the rights, privileges and appurtenances, for and during her natural life or widowhood.
We are called upon to decide what estate the widow is entitled to under the foregoing clause.
It will be made manifest by an examination of the several clauses in the will, that the testator understood the force and effect of the terms used by him. He devised and bequeathed to his wife all his personal property of every kind, except as therein otherwise bequeathed, devised and disposed of, “to have and to hold the same to her and her heirs, executors and administrators, to her and their use and behoof forever.” Then follows the bequest to his wife of the house and farm to have and to hold the same “for and during her natural life or widowhood.” Filling the elipsis, the sentence would read, “to have and to hold the said house and farm with the rights, &c., for and during her natural life, or to have and to hold the said house and farm with the rights, &c., for and during her widowhood.”
Here then is a limitation on a limitation. The first clause of the sentence limits the estate to the natural life of the wife. The latter clause imposes a limitation on the former and determines the estate upon the happening of a contingency which the testator foresaw might take place, to-wit: the remarriage of his wife. If she did not remarry, then she was to enjoy a life estate; if she did, her remarriage determined her estate in the house and farm. During her widowhood she takes and holds under the first clause, the second being in-operative; but upon her second marriage, force and effect is imparted to the latter clause and her estate is determined thereby. That the testator intended thus to dispose of his house and farm, cannot we think admit of a reasonable doubt.
If the provisions of the will operate harshly or unjustly upon the widow’s rights, her remedy is pointed out by the 10th sec. of the act concerning dower, R. C., 1885, page 229, which provides that she may at any time within one year after the will is proved and recorded, file her declaration
But it is insisted, that notwithstanding the testator has, by his will annexed this limitation to the estate, yet she is still entitled toalife estate, inasmuch as the limitation is in restraint of marriage and so against public policy.
It must be admitted that there is no little conflict of opinion on this question. Much learning andsubility of reasoning have been called into requisition to sustain the contradictory adjudications on the subject; after an examination of the whole subject, as far as we have been able to investigate it, we have arrived at the conclusion suggested by Powell in his treatise on devises, 2 vol., 282:'“That the numerous and refined distinctions which the cases on this subject present, however, do not apply to devises of or pecuniary charges upon land, being confined exclusively to personal legacies; and with regard to the latter, they owe their introduction to the ecclesiastical courts, who, in the exercise of their jurisdiction over personal legacies, it is well known, borrowed many of their rules from the civil law, to which indeed may be traced the origin of most of the distinctions, which at this day exist betweenlegaeies and devises.”
He proceeds further to remark, that “by the civil law all conditions restraining marriage, whether precedent or subsequent, whether there were any gifts over or not, and however qualified, were absolutely void; and marriage simply was a sufficient compliance with a condition requiring marriage with consent, or with a particular individual, or under any other restrictive circumstances.”
He states, however, that the English courts “have not adopted this rule in its unqualified extent, but have subjected it to various modifications. By the law of England, an injunction to ask consent is lawful, as not restraining-marriage generally. A condition that a widow shall not marry is not unlawful. An annuity during widowhood, a condition to marry or not to marry T, is good.” •
In support of the text, he refers to a case decided and reported in 2 Amblers R., 209, and which is stated as follows: “Barret Bowen, by will, 27th October, 1727, devised his land to his wife during her widowhood; and if it shall happen that my wife shall marry again, then my daughter Mary shall enter, provided, if my wife' marry and survive my daughter, the estate shall return to her. Lord HardioicJie took a distinction; when an estate is given during widowhood, with remainder over, in that case she takes an estate for life determinable on her marrying; and the remainder over takes effect on determination of her estate either by death
The next case inferred to by the author is to be found in 2 Vern., 308, and is stated as follows: “Baxter, by his will devised the surplus of his estate (his debts and legacies being paid) to the plaintiff, his wife, and John, his eldest son, equally to be divided between them; and then adds, whom I make my executors; and further wills, that she should continue his true widow but if she marry again, my toill is, she shall render the right of being my executrix to my son Roger, to be partner with his brother John in the executorship.”
The widow having married to one Stone, the question was whether by that marriage she had forfeited her share of the surplus. The Master of the Rolls was of opinion that she had as well lost her share of the surplus, as her right to the executorship.
The text and the cases refered to in support thereof, are in conflict with the principle laid down in the case referred to by the defendant’s counsel, and which is reported in 6 Mass. R., 169. This is a leading American case on the subject, and the opinion of the court is drawn up with much labor and ability, and wre are free to admit the force of some of the arguments used to support the hypothesis in the case; but conceding this, still, when we consider that in this country the mantle of the law is thrown around a widow, and that the husband could not if he would divest her of her legal portion of his estate, as a means of future support^ and when, as in the case now before us, it is seen that the husband has devised to his wife absolutely, nearly the whole of his personalty, which we doubt not was of considerable value; and when we further consider that the construction of the will as contended for by the defendants counsel, would greatly impair the husbands right of disposing of that part of his estate not inhibited by law, we feel constrained to repudiate the principle of that case. Besides, if the principle should be established, ■that a testator cannot devise to his wife any part of his estate to hold ¡during her widowhood, it would instead of being beneficial to the widow, ¡operate an injury; for the testator not being permitted to annex such a 'limitation, would be driven to the alternative of withholding from her the enjoyment of all his estate, except that portion which he should see fit to give her absolutely. There is no necessity to hold either void. Independently they are each good, and together they may stand without conflict; when a conflict does arise, the last limitation must prevail and control the rights of the widow.
In the case of Vance & wife vs. Campbell’s heirs, 1 Dana R., 229, where a testator devised all his estate to his wife, during widowhood, with power, as long as she remained his widow, to sell the real estate, and retain one third of the proceeds, with one third of the personalty for life; the whole to go to the children upon the termination of her estate. She made no renunciation of the provision made for her by the will, within the time allowed by law, and married without having sold the estate; held, that she was not entitled to dower, and that all her rights under the will were terminated by the marriage. The court say, that “the devise to the wife during her widowhood should not be construed as a condition.. in restraint of marriage; but should be deemed only an allowable limitation to the estate devised. The marriage ipso facto terminated the devisee’s right to any portion of the estate as devised from the will.”
In a ease reported in 2 B. Mon., 313, it was held, that a limitation in a devise to a widow that she shall not marry, is not void, though there may be no bequest over. An annuity during widowhood is not against the policy of the law. A devise to a widow by her husband, during life or widowhood, is a limitation expressive of the duration of the estate and not a condition precedent or subsequent.
In delivering the opinon of the court the Judge remarks: “We are aware that it has been sometimes decided that a condition in the bequest or devise of a husband, in restraint of the second marriage of his widow, is, as in other cases where there is no devise over, to be construed in t'errorem, against the policy of the law and void; 6 Mass. R., 169; 1 Mod. R., 590. Yet it has been frequently said, and we incline to think upon good reason, that a condition that a widow shall not marry is not unlawful or void, or an annuity during widowhood. Story’s E., 283; 1 Fonb. E., 210 note: 2 Jltk., 320; 2 Ero. Ch. R., 488; 1 Roper on Legacies, chap-13. So far from its being bad policy to restrict the second marriage of a widow, in many instances it would seem to be the best of policy and redound most to the public interest. Where she has children to raise and educate, it would in the general seem more consonant to good policy and sound morals for her to devote herself to their superintendence, care, moral culture, and education, than to leave them to their fate, placing herself under the government and control of a second husband. Without
It is said,, 2 Cruise’s Digest, p. 26, “A condition restraining a widow from a second marriage generally, is good.”
In Tucker’s notes, book 2, p. 98; where he is discussing conditions against law, he uses the following language: “Of the several kinds of conditions against law above mentioned, that which respects restraints upon the freedom of marriage has been most fruitful of discussion. Conditions in restraint of marriage are considered as odious, and are in construction held to the utmost rigor and strictness. Moreover, if the restraint be total, amounting to an entire prohibition, it seems agreed on all hands that it is void except in the case of a widow, who maybe restrained by condition annexed to a devise in her husbands will from marriage generally on pain of forfeiting his bounty.” 2 Strange, 1128.
Thus fortifited by reason and adjudications, we have no hesitancy in deciding that the Court of Common Pleas erred in deciding the law in favor of the appellees, and its judgment should therefore be reversed,
the same is reversed.