In Re Will of Miller , 159 N.C. 123 ( 1912 )

after stating the case: The question chiefly presented on this appeal has been very much discussed by the courts and there seems to be a great contrariety of decisions concerning it. Without attempting to explain or even refer to many of the cases on the subject, we consider it as established, certainly by the weight of authority, that where an estate or interest is definitely conveyed, with a condition subsequent annexed in general restraint of marriage, that is, without limitation as to time or person, the condition, as a rule, will be disregarded. Watts v. Griffin,137 N.C. 572; Otis v. Prince, 76 Mass. 581; Harmon v. Breron, 58 Indiana, 207; Hopkins on Real Property, p. 173. The principle does not ordinarily obtain in the case of an estate upon limitation or a conditional limitation, where, by the terms of its creation, an estate is so defined and limited that it terminates of itself on the happening of the contingent event without entry or other action on the part of the grantor or his proper representative, an estate not infrequently instanced where a testator has made a devise or bequest in favor of his widow while she remains unmarried. Bostick v. Blades, 59 Md. 23; Coppage v. AlexanderHeirs, 41 Ky. 315; Hibbits v. Jack, 97 Ind. 570; Holtz's Estate, 36 Pa. St., 422; Pringle v. Dunkley, 22 Miss. 16; Mordecai's Law Lectures, 521-522; 4 Kent's Com., 125-126.

Even though the words used may, in strictness, be those of condition subsequent, if there be a limitation over to a third person, the courts are inclined to consider it as an estate upon limitation rather than one upon condition. It seems that this fact of a limitation over is only allowed as controlling in cases of bequests of personalty. See notes toCoppage v. Alexander, supra, 38 Am. Dec., 159; but both Blackstone and Kent speak of it as prevailing in devises of realty also. 4 Kent., 126; 2 Blackstone, 155. But whether made determinative in cases of real property or otherwise, and whether the facts bring the present case within the principle or not — and we are inclined to think they do, Stillwell v. Knapper, 69 Ind. 558 — the fact that there is such (127) a limitation over should always be given full and proper weight in arriving at the mind and will of the testator and determining whether the disposition made of the property shall be considered an estate upon limitation or a condition in terrorem, void as being in general restraint of marriage. Pursuing this suggestion, there is well-considered authority to the effect that, although the terms used may ordinarily import a condition if, from a perusal of the entire will and the facts and circumstances permissible in aid of a proper interpretation, it appears that the testator intended to make provision for a beneficiary while she remained single, and that the words were not used and intended as a restraint upon marriage, the qualifying words will be given effect according to testator's devise as intended and expressed in the will.Chapin v. Cook, 73 Conn. 72; s. c., annotated in 84 Am. St., 139-149; Mannv. Jackson, 84 Mo., 400; Estate Margaretta R. Holbrook, 203 Pa. St., 93; s.c., 5 Anno. Cases, 137, a position approved in 2 Jarmon on Wills, 572, making citations from Jones v. Jones, 1 Q. B. D., 279; 1 Underhill on Wills, sec. 505; Tiedeman on Real Property, sec. 281.

In the citation to Underhill the author says: "The authorities distinguish between a provision for a legatee ``until he or she shall marry,' or ``while she is unmarried,' and an estate upon condition subsequent terminating by the marriage of the legatee. The distinction is largely technical, depending upon the exact language used; but the test is, ``What was the purpose of the gift? What did the testator intend to accomplish?' If it is apparent from the will that he did not intend to prevent a marriage or to condemn the legatee to a life of celibacy, but that he intended solely to provide for her support while unmarried, and that, as soon as she was in a position to be supported by her husband, he desired the provision to cease and the property to be devoted to others, it is valid. The law will regard it as an estate upon limitation, not as an estate upon condition, and the gift over will go into effect as a conditional limitation."

Applying this, in our opinion, the controlling principle on (128) the facts presented, we hold the devise in question to be an estate upon limitation, and, on the marriage of the daughter, the estate passed to the son and his wife and their children, as expressed in the will. Here was a testator, owning a small tract of land, on which he and his wife and daughter had lived and, from a consideration of the circumstances and a perusal of the entire will, it was his desire and intent to provide a home for his widow and daughter while they lived or remained unmarried, and, in case either married, the survivor was to hold; and on the death or marriage of both, the estate should go to the son, his wife and their children, the design evidently being that if the widow or daughter married, they should thereafter look to the husband for support. True, the testator at first uses apt words of condition: "But in case either or both marry again, this becomes void," but he immediately adds: "In case of the marriage of one, the remaining one will hold till her death or marriage," Showing that an estate upon limitation was meant; and this, in connection with the devise over to his son for life and then to his wife for her life or widowhood, and then to their children as purchasers, on principle and authority, gives clear indication that the qualifying words may not be properly construed as words in terrorem, void because intending to restrain marriage, but as a provision for the support of the devisees until the marriage occurred.

The case is very similar to that of Jones v. Jones, supra, cited by Mr. Jarmon, and finds support, also, in Martin v. Seigler, (S.C.), 10 S.E., p. 1073.

There is error. Judgment be entered for the ultimate devisees.

Reversed.

Cited: McCallum c. McCallum, 167 N.C. 312; Gard v. Mason, 169 N.C. 508.