Phillips v. Medbury , 7 Conn. 568 ( 1829 )

Daggett, J.

Charles Phillips, the plaintiff, claims the demanded premises, as residuary devisee under the will. He also insists, that as heir at law to his brother John, he is entitled to one sixth of the lands demanded, if not under the residuary devise.

The defendant urges, that the plaintiff cannot recover under the will, because lie has not complied with the condition, by paying the debts, legacies, &c. ; and also, that no part of the estate devised to John passed under the will of the father, but was vested in John, to be by him enjoyed, when he arrived at the age of twenty-one years.

In my judgment, it is not necessary nor proper to decide either of those points last suggested. It is not necessary, because if the widow, by her intermarriage, forfeited all right to the land in question, then the plaintiff is entitled to judgment on this special verdict for the whole ; for she is a stranger, and her husband, the defendant, also ; and the plaintiff at least is entitled, as heir at law, to one sixth, as tenant in common with his brother and sisters. This being his condition, he can recover the whole against one who has no right; and the recovery shall enure to the benefit of himself and his co-tenants. This is the doctrine of our courts. Barrett & ux. v. French, 1 Conn. Rep. 354.

It is also improper to decide, whether the plaintiff can recover under the residuary devise, because that might affect brothers and sisters, who are not parties to this record, so that a decision would not bind them.

The only question, then, now to decide, is, whether all the right of the widow under this devise, is gone, by her intermarriage.

If the intention of the testator is to govern, there can be no doubt. That intention is very clearly manifested. One half the real estate mentioned is given to her until John arrives at the age of twenty-one years, “ should she so long remain my widowthen and after that, she is to have the use and improvement of only one third “ so long as she remains my widow” The limitation is repeated in explicit language, to the end that there might remain no doubt of his intention. It also appears, that he had, by the same clause of the will, given to her, absolutely, one cow and all his in-door moveables. The option, then, of taking under the will, subject to a limitation that she should not marry, or if declining to acijppt the provision made by the will agreeable to the 4th section of the statute, (p. 181. tit. 26.) and be at liberty to marry, was fairly presented to her. She chose the first alternative. Why should she not be bound by it ?

It is, however, insisted by the counsel for the defendant, that limitations of this kind, when introduced into a will, are merely in terrorem, and shall not work a forfeiture of the estate devised. They are also compared to bonds given not to marry, which are always void on the ground of public policy. A bond not to marry, or not to marry any one except the obligee, is doubtless void. Marriage should be free; should proceed from choice, not from compulsion. This is a salutary rule of the common law. Lowe v. Peers, 4 Burr. 2225. Hence, also, all marriage-brokage contracts are discountenanced. But declaring restraints upon marriages in wills void, as made in terrorem, is another and different doctrine. It is not a doctrine of the common law, but introduced into the court of chancery in England from the canon law. As that court is considered as possessing the power over legacies, it'has adopted the rule of the canon law to a certain extent. It has declared, for example, in many cases where the de-visor has imposed an unreasonable restraint upon a young male or female, and annexed it to a devise, that it should be deemed {n terrorem; and therefore, that the devise should, notwith-jake But in all these cases, it is admitted, that this power is not given by the common law ; nor is it ever exercised in relation to real estate, but only as to personal estate, which is, in the case of legacies, subject to the controul of a court of chancery. Nor is it applied to a widow. It would seem very reasonable, that a man leaving a widow with seven children, as is the present case, should be permitted to encourage her, by suitable provision in his will, to remain single, and not subject his own offspring to the probable evils of a step-father, to waste her substance, and thereby render her less able to support and educate them.. Indeed, it entirely accords with reason, as it appears to me, that she should have an option to take such provision, and remain unmarried, or refuse it, and be thrown upon the general provision of law, — her dower. Nor have I been able to find any case, or any dictum of any judge or chancellor, in opposition to these principles. In Amos v. Horner, 1 Eq. Ca. Abr. 112. and in Scott v. Tyler, 2 Bro. Chan. Rep. 487, 8. they are expressly recognized. In the latter case, Lord Thurlow, after a very elaborate discussion, by very able counsel, in which all the cases are examined, declares the result to be, that “ a condition that a widow shall not marry, is not unlawful. An annuity during widowhood, — a condition to marry or not to marry Titius, is good.”

I am satisfied, therefore, that Lois Phillips, by her intermarriage with the defendant, lost all her right in the land devised ; and that the superior court be advised, that judgment be given for the plaintiff to recover the whole of the demanded premises.

The other Judges were of the same opinion.

Judgment to be given for the plaintiff, for the whole of the demanded premises.