The questions propounded for advice are in form four in number. As we understand them they resolve themselves in effect into two, both of present importance under conditions which have arisen and now exist. The somewhat elaborate provisions of the will suggest that other questions touching them may come to possess importance as events develop. Were advice asked concerning them, we should hesitate to give it, since the contingencies to which they relate have not arisen, and the persons whose interests would be involved are or may not be in existence. Our advice, therefore, will be confined to the two questions of present pertinence above referred to, to wit: (1) whether the trust which the plaintiff is called upon to administer has been fully executed, or is a subsisting one requiring his continued holding of the trust estate for its execution; and (2) whether or not, if the trust is a subsisting one, the conditions prescribed in the will as conditions precedent to the right of the beneficiaries of income to receive the same as it shall from year to year accrue, are valid and operative. These two questions, it will be observed, are quite independent of each other, so that those portions of the will which give rise to the second or subordinate one may, for convenience sake, be ignored in answering the first.
The testator's son, Clifford, having died and his only children being still living, and the trust, in so far as it was one in his favor as a beneficiary of income, having been fully executed, the existing circumstances are those which are dealt with, and exclusively dealt with, in the first two sentences of the seventh paragraph of the will. The first question to be answered is, therefore, one whose answer is to be found in that portion of *Page 513 the will which is entirely separable from and independent of every other portion of the instrument.
The first pertinent inquiry suggested by these two sentences is occasioned by the opening words which make the provisions of the paragraph operative only in the event of Clifford's death. Did the testator intend to make provision in the event of his son's death at any time, or only in the event of his death before the testator's? A reading of the will in its entirely leaves no room for doubt that the testator's intention was to provide for the contingency of Clifford's death whenever it should occur. Butler v. Flint, 91 Conn. 630, 636, 101 A. 19.
If the first of the sentences stood alone, there could be no question of its validity and sufficiency as entitling Clifford's daughters, Florence and Bertha, as cestuisque trust, to share between them the income of the fund in the plaintiff's hands. It is charged, however, that the next following sentence, which provides that if other children shall be born to Clifford all should share equally, is one which contravenes the rule against perpetuities, and taints the whole limitation over to Clifford's children, including Florence and Bertha. In neither of its aspects is this contention well made. A testamentary gift to children born and unborn, of a living parent, is not invalidated by the rule against perpetuities for the reason that one or more of the children may come into existence more than twenty-one years and the period of gestation after the testator's death. If one or more of the children are living at the death of the testator, the gift will be upheld as a gift to a class, vesting in its members living at the testator's death and opening to let in after-born members. Jones' Appeal, 48 Conn. 60,67; Belfield v. Booth, 63 Conn. 299, 304, 27 A. 585;Hoadley v. Beardsley, 89 Conn. 270, 279, 93 A. 535.
Neither is it true that if the gift, as expressed in the second sentence, were invalid, the prior one to Florence *Page 514 and Bertha would fail. The two sentences embody two separate, alternative provisions, that in the second to be substituted for the one in the first in the contingency of after-births. That contingency never having occurred, the substitutionary provision became ineffective and as though it never were. Sumner v. Westcott, 86 Conn. 217,222, 84 A. 921.
The trust being a subsisting one in favor of Florence and Bertha as beneficiaries of the income of the fund held by the plaintiff, the question propounded for advice as to the validity and effect of the terms attempted to be imposed upon them and their husbands, as conditions precedent to their right to receive from the trustee the income as it annually accrues, becomes one of present pertinence. These conditions, as expressed in the will, are that they and their husbands abstain from the use of tobacco and all kinds of intoxicating liquor as a beverage, and on all occasions when necessary to write or spell the name of Tyrrel they spell it as it is spelled in the will and was spelled by the testator's ancestors.
As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as cestuique trust. He may not, however, impose one that is uncertain, unlawful or opposed to public policy. The conditions here attempted to be imposed, in so far as they are made dependent upon the conduct of husbands, falls within the last named class. It is clearly one opposed to public policy. A consequence of such a condition, were it enforceable, would be that a wife entitled to property or income, might be penalized for conduct which she was powerless to control. A situation would thus be created which would be fraught with infinite injustice to her, provocative of marital discord, and *Page 515 conducive of longings to escape from the marriage relation. Nor is that all. The husband, in such a situation, would be furnished with a ready and oftentimes potent means of exercising a domination over his wife, through her fear of the consequences of noncompliance with his wishes, which, in the interest of right and of domestic harmony and happiness, should not be permitted.
In so far as the conditions are made dependent upon the conduct of beneficiaries of income themselves, in the present instance Florence and Bertha, no one of them can be said to be contrary to public policy or unlawful. Nor is there any uncertainty about the two which concern the use of tobacco and intoxicating liquors. The language in which the third, relating to the spelling of the family name, is couched, was not as happily chosen as it might have been. It, however, sufficiently indicates that the testator's purpose was to contribute to the perpetuation of the ancestral spelling of the surname he bore, and that in furtherance of that end he intended to exclude from the enjoyment of any portion of the annually-accruing income of his estate left in trust, persons who, in so far as they should make use of that name in the designation of themselves or their families, did not habitually use it as thus spelled. Whether or not he was successful in carrying out that intention as to every person who by possibility might become entitled to receive some share of the income of the trust fund, we have no occasion to inquire. His efforts in that direction, appearing in more than one part of the instrument, are apparent, and as far as Florence and Bertha are concerned were successful. As thus interpreted the condition is sufficiently definite to be valid and enforceable.
The Superior Court is advised to render judgment (1) that the trust committed to the plaintiff is a subsisting one, in the execution of which the plaintiff is *Page 516 entitled under present conditions to the continued control and management of the trust fund in his hands, paying over the net income thereof to the defendants Florence J. Tyrrel Marsh and Bertha M. Tyrrel during their joint lives in equal proportions between them; and (2) that the conditions prescribed by the will as prerequisites of the receipt of income as it accrues from year to year by the beneficiaries thereof, including Florence J. Tyrrel Marsh and Bertha M. Tyrrel, are valid in so far as they are made dependent upon the conduct of the beneficiaries themselves, but void in so far as they are made to depend upon the conduct of the husbands of such beneficiaries.
No costs in this court will be taxed in favor of any of the parties.
In this opinion the other judges concurred.