| Mo. | Jan 15, 1850
The plaintiffs in error brought their suit in the Boone Circuit •Court, against the defendant, for partition of a tract of land. The petition alleged that in the month of August, 1845, Joseph Cowden died seized of the tract in fee, and that prior to his death he made and published his will, whereby, amongst other things, he gave and bequeathed to his son Montgomery, and his daughter Louisa, in equal moieties, the tract of land in suit, with provision, however, that if his said daughter should marry or die, the land should belong to his said son exclusively. It is further alleged in the petition, that at the commencement of this suit, the said Montgomery was living and married, and that on the 26th day of January, 1847, the plaintiffs intermarried with each other. The petition concludes with the allegation that the said Montgomery and the said Louisa are each entitled to the equal undivided half •of the land, and prays for judgment of partition or sale accordingly. The Circuit Court having sustained the defendant’s demurrer to the petition, the plaintiffs present tire legal questions involved in that decision, for the examination and decision of this court.
The question being a new one in the jurisprudence of our State, and the authorities to which we have been referred apparently irreconcilable, we ¡have bestowed upon it such analysis and reflection as has resulted in the conclusion, that upon all just principles of reason and analogy, the legal effect of the will in question, so far as it can be inferred from the pleadings before us, was to vest the real-estate therein specified, at the death of the testator, in his two children, as tenants in common ; and that the condition subsequent, respecting the marriage of his daughter, was not such an one as the law will divest such an estate. Viewing the case thus, neither the distinction which seems to be somewhat relied on, where there is and where is not a “ bequest
Upon the general proposition, the preservation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality and filial obedience and reverence, are deemed to be objects too important to society, to be weighed in the scale against individual or personal will. In this case, it need scarcely be more specifically intimated, that'the clause in question, however well intended, virtually presented and held up a continued reward for that species of immorality to avert which the institution of marriage was so divinely ordained and has been so wisely upheld. By its terms, no offense but that of marriage, however suitable ; no crime even, could divest his child of the estate bequeathed her. Surely society has not been organized thus to uphold a direction to property, which is not its creature, and which could not be acquired or transmitted without its aid and protection, but which it must be obvious might thereby undermine and overthrow the main foundation upon which it reposes. It is admitted that this may bo regarded, in one sense, as an isolated case, but to this it must be answered, that courts can pass upon it only as a parcel of a system in contravention, with the one out of which has grown the right to pass upon it at all.
Judge Story, in his admirable commentaries upon equity jurisprudence, after remarking upon the cases which even lie cannot reconcile, states the general result of the modern English doctrine in these words : '“Conditions, annexed to gifts, legacies and devises, in restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage.generally, then, indeed, as a condition against public policy and the due economy and morality of domestic life, it will beheld utterly void.”
Mr. Eonblanque1 has also with great propriety remarked, that “the only restrictions which the law of England imposes, are such as are dictated by the soundest policy, and approved by the purest morality. That a parent, professing to be affectionate, shall not be unjust; that, professing to assert his own claim, he shall not disappoint or control the claims of nature, nor obstruct the interests of the community; that what purports to be an act of generosity shall not be allowed to operate as a temptation to do that which militates against nature, morality or sound policy or to restrain from doing that -which would serve and promote the essential interests of society — -these are rules Which cannot reasonably be reprobated, as harsh infringements of private liberty, or even reproached as unnecessary restraints on its free exercise.”
G-odolphin, likewise, has very correctly laid down the general principle, that “all conditions against the liberty of marriage are unlawful” — so that the marvel would seem to be that courts should have so differed in the application of such obvious principles, as to leave perhaps the preponderance of that description of authority in favor of the opinion which we have thus reversed.(
(a) Walsh v. Mathews, 11 Mo. R. 131; Dumey v. Schœfler, 24 Mo. R. 170; Dumey v. Garse, 24 Mo. R. 177; Commonwealth v. Hauffer, 10 Pa. R. 350.