Bostick v. Blades

Alvey, J., delivered, the opinion, of the Oonrt. This was an action of ejectment, and the case was tried and determined by the Court below on an agreed statement of facts. There is no question made in this Court, as we understand, as to the nature and extent of the estate taken by Mary Jane Blades, under the will of her mother, nor as to her power to devise the estate so acquired by her. Indeed, it would be difficult to perceive how such question could be made, as by the terms of the will of the mother, the daughter took by clear and unambiguous language, a. fee simple estate in the land in controversy.

The mother died in 1863, and some few months thereafter her will was. duly admitted to probate. In 1872, Mary Jane Blades, the daughter and devisee, married the defendant, "William H. Bostick, and died in 1876. She made and left unrevoked a will executed in due form to pass real estate,, and which was duly admitted to prohate. That will contains the following clause:— “ I give, devise and bequeath unto my husband, the said William H. Bostick, all. my worldly estate, real, personal and mixed, subject to the payment of my said debts,, funeral expenses and legacies, to have and to hold to him for and during the term or period after my death, that he shall remain unmarried; and if he shall not marry, then for and during the term of his natural life, hut in the-event of the marriage of my said husband, after my death, or if he shall not marry, then, upon his death, I give, devise, and bequeath all of my said estate, to my brother, Stansbury Blades, his heirs and assigns forever.” The husband, the defendant in this action, has remained in possession of the real estate devised by the will of the wife up to the present time; but in the year 1880, he married again, and thereupon this action was brought by Stansbury Blades, the brother, and devisee over, to eject, the defendant. ²³³ In such state of case, the question is, as presented by the agreed statement of facts, whether or not the plaintiff is entitled to recover, under the terms and conditions of the devise by the wife,—the husband, the first devisee, having married a second time ?

It would seem to he well settled by a great number of adjudications both in England and in this country, that conditions in general restraint of marriage, whether of man or woman, as a general rule, are regarded in law as being against public policy, and therefore void. But this rule has never been considered as extending to special restraints, such as against marriage with a particular person, or before attaining a certain reasonable age, or without consent. Nor has it ever been extended to the case of a second marriage of a woman; but in all such cases the special restraint by condition has been allowed to take effect, and the devise over held good, on breach of the condition. A condition, therefore, that a widow shall not marry, is, by all the authorities, held not to he unlawful.

Scott vs. Tyler, 2 Dick, 712; Jordan vs. Holkham, Amb., 209; Barton vs. Barton, 2 Vern., 308; 2 Bow. on Dev., 283; O’Neale vs. Ward, 3 H. & McH., 93 ; Binnerman vs. Weaver, 8 Md., 517 ; Gough and Wife vs. Manning, 26 Md., 347 ; Clark vs. Tennison, 33 Md., 85 . In the cases a distinction is taken between those where the restraint is made to operate as a condition precedent, and those where it is expressed to take effect as a condition subsequent; and the decisions have generally been made to turn upon the question, whether there he a gift or devise over or not. But if the gift or devise he to a person until he or she shall marry, and upon such marriage then over, this is a good limitation, as distinguished from condition; as in such case there is nothing to carry the interest beyond the marriage. There can he no doubt, therefore, that marriage may he made the ground of a limitation ceasing or commencing; and this whether the ²³⁴ devisee be man or woman, or other than husband or wife.

Morley vs. Rennoldson, 2 Hare, 570; Webb vs. Grace, 2 Phill., 701 ; Arthur vs. Cole, 56 Md., 100 . In this case, if the devise to the husband had depended alone upon the terms of the first part of the devise, that is to say, the terms “ to have and to hold to him for and during the term or period after my death that he shall remain unmarried,” there could be no doubt it would have been a good limitation, and the.estate devised to him would have terminated upon his second marriage. But we must read the whole clause together, and take one part in connection with the other, and so reading the terms of the devise, the terms that follow those just recited clearly put the devise in the form of a condition subsequent. The estate is given to the husband for life, but in the event of his second marriage it is devised over to the brother of the testatrix; -or, in other words, the devise is to the husband for life, subject to a defeasance in the event of a second marriage.

By the terms of this devise a vested estate passed to the husband for a definite duration, but by the happening of the event that was contemplated as possible, the estate, according to the contention of the plaintiff, became divested and passed over to the plaintiff. Now, there being no question of the power of a husband to effectually impose such a condition in restraint of a second marriage of his widow, the question here is, whether a wife by a devise or gift to her husband can effectually impose a like condition in restraint of his second marriage ? Upon this precise question the books furnish but little direct authority. In our own reports the nearest case to the present is that of Waters vs. Tazewell, 9 Md., 291 .

In that case a deed of leasehold property in trust for the sole and separate use of a feme covert, contained a provision that in case the husband should survive the wife, he and his ²³⁵ assigns should have the rents and profits “ during his natural life only, to and for his own use and benefit; provided, he should continue unmarried after the death of his wife, then living,- and from and immediately after his decease,” then over. This proviso was held void; but it was because, as stated by the Court, that the gift over was not upon the marriage of the husband,.but “from and immediately after his decease.” As the Court said, it was not, in terms, a gift over, based upon the event of a second marriage. “If allowed to limit or reduce the life éstate, it would be giving effect to a provision, in reference to personal property, imposing, not a partial, but a general restraint upon marriage, by means, not of a precedent, but of a subsequent condition, in the absence of any limitation over, on a failure to comply with the condition.” That case, therefore, is not an authority to control in determining the present question. It is to be observed, however, that there.is no suggestion or intimation by the Court that there is, or could be urged, a distinction between the case of a condition as applied to a woman, and a like condition as applied to a man, in restraint of a