Gough v. Manning

Bowie, C. J., delivered the opinion of this Court. This case was carefully considered in the Court below where an elaborate opinion was filed with the decree appealed from, to which we might properly refer' for the law without further comment, but for tbe presentation of some points that have been urged in this Court, and do not appear to have been decided. Among these, it is insisted, the complainant’s bill being framed on the theory that the estate devised to the widow, has been forfeited by her marriage, the parties Bhould be left to their legal remedy, since Courts of Equity never aid in enforcing a forfeiture. This objection, If intended as a plea to the jurisdiction, could only be entertained if it had been first made in the Court below, as the 5tli Article of the Code enacts, no defendant to a suit in equity, in which an appeal may be taken, shall make any objection to tbe jurisdiction of the Court below, unless it shall appear by such record that such objection was made in said Court.” Instead of objecting to the jurisdiction in tbe Court below, the respondents, in their answers, concur in the prayer of the bill, that a true construction might be given to the will and the rights of the parties adjudicated.

The general rule, that equity never enforces a forfeiture, has never been applied to cases of conditional limitations, such as the present, where the question is, whether -the proviso operates as a condition subsequent divesting the prior estate, or as a limitation over. ³⁶² It applies to penalties and forfeitures, absolute and certain, upon failure to do some act to be performed, or the-performance of some act prohibited, or the occurrence of some event over which the defendant had no control. Such were the cases in 4 John. Ch. Rep., 431, and 2 Md. Ch.

Dec., 510. If, according to the true construction of the will, the appellee is entitled to the personal and real estate in question, she is entitled to an account of the assetts and rents and profits, and the parties having submitted their rights to the Court below, they cannot be heard now to object to the jurisdiction of the Court in that respect. Whether an account for rents and profits of real estate would lie before a recovery at law, is not so clear. Mr. Eonblanque asserts, that Courts of Equity will sometimes decree it where the party has not already established hia right at law. 1 Story’s Eq.

Jur., 509. The Court below, in this case, considered the question of title exclusively, as auxiliary to the complainant’s right to an account of the personal estate and for the rents and profits of the real estate; the judge distinctly disclaimed any jurisdiction over the possession of the land, remitting the complainant to the Courts of Law for relief in that particular. The leading'authorities upon devises with conditions in restraint of marriage, are cited and reviewed by the Court below, and in our opinion correctly applied. The appellants contend, that however settled the doctrine-may be in England? a devise to a widow “durante viduitate’ ’ is not established by the decisions in this State; for which they rely on 8 Md. Rep., 511, 524 . 9 Md. Rep., 292 , 309.

Our deduction from those cases is- directly the reverse of that of the appellants. In the first of those cases, Bannerman vs. Weaver, 8 Md. Rep., 517 , the bequest was of personal property with©ut any express limitation over to the children.. The Court ³⁶³ thought it doubtful whether the limitation to other administrators and guardians was not intended only in case she should depart this life or should get permanently diseased, and as no intent in behalf of the children was expressed, the Court held none was implied, and the condition in restraint of marriage was, under those circumstances, regarded as against the policy of the law. Speaking of the doubtful intent, the language of the Courtis; “Bathe this as it may, it is clear, that the bequest to the wife, during Ufe, loithovl a bequest over in the event of marriage, is not such a bequest as will defeat the life estate, it being against the policy of the law and in restraint of marriage.” In the case of Waters vs. Tazewell, this Court said : “Although the use to the husband for life is followed by a proviso or condition that he should remain unmarried, yet the gift over is not upon his marriage, but “from and immediately after his decease.” It is not in terms a gift over based upon the event of a second marriage.

If allowed to limit or reduce the life estate, it will he givin g ‘effect to a provision in reference to personal property, imposing not a partial, hut 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.” These extracts suScienily show the exception of limitation over, in the event of marriage, was well known and ^recognised. The validity of a devise of real estate during widowhood, with a devise over to children in the event of marriage, was directly decided by the General Court in 1791, in the case of O’ Neal vs. Ward, 3 H. & McH., 93 . The devise was as follows : “I give and bequeath to my wife, during her widowhood, all my lands, hut in case she should marry, my desire is, that she take one-third only, -and after her decease, I give all my land to he equally ³⁶⁴ divided between my three sons ;. and in case any or either of them die without a will or heirs of their bodies, to be equally divided between the survivors. As to- the rest or remaining part of my estate that is not willed, my desire is, that first, my wife take one-third in what she likes and. the other two-thirds to be equally divided among my children.” The general Court were of opinion,