The controversy in this case is over the disposition of a fund of about $70,000 held in trust for the support of a son during life, under the second paragraph of the second clause of the testatrix's will. The clause concludes: "Upon the death of my said son I give, devise and bequeath the said share to my unmarried daughters in equal shares." I concur in the opinion of the Special Term and in the dissenting opinion of INGRAHAM, P.J., in the Appellate Division, that the persons who constituted the "unmarried daughters" were to be ascertained at the death of the testatrix (if not at an earlier time), and not at the death of the son, the equitable life tenant. The general rule is that the law favors vested remainders rather than contingent ones. (Livingston v. Greene, 52 N.Y. 118; Matter of Brown, 154 id. 313.) Where there is no immediate gift, but only a direction to pay, divide or distribute at a future period, the bequest is contingent; not so, however, where there is such a bequest as is found in this case. This rule and the exception are both stated in Matter of Crane (164 N.Y. 71, at p. 77), and the rule readily yields to the exception where its effect would be to divest the share of any issue of a testator. Such was the case inGoebel v. Wolf (113 N.Y. 405); Matter of Tienken (131 id. 391); Matter of Young (145 id. 535), and Matter of Brown (supra), in none of which was there even an immediate gift, yet in each it was held that death before distribution did not divest. I shall not pursue the discussion further, because it is very clear to me that if we assume the construction of the will adopted by the Appellate Division to be the correct one, the judgment below is erroneous for another reason. *Page 170
The majority of the Appellate Division held that the remainders vested at the time of the testatrix's death in her then unmarried daughters, subject as to any of them to be divested by her marriage previous to the death of the son, and, therefore, awarded the fund to those daughters exclusively who remained unmarried at the son's death. The result reached was erroneous because the condition that a daughter should by marriage forfeit the remainder was void. The text writers agree that conditions in general restraint of marriage, except that of widows or widowers, are void as against public policy. (1 Story's Eq. Juris. §§ 274-290; 2 Pomeroy's Eq. Juris. § 993; 2 Jarman on Wills, p. *44et seq.; 2 Williams on Executors, p. 1275.) This doctrine seems to prevail everywhere, and as formulated by Judge Story has been accepted by this court as the law of the state in Hogan v.Curtin (88 N.Y. 162). There is some difference between the text writers as to the effect of the doctrine on devisees of real estate, but none as to its effect on bequests of personalty. The doctrine is tersely stated by Professor Pomeroy (2 Pomeroy's Eq. Juris. [3d ed.] p. 1683): "If a condition is precedent and annexed to a gift of land, it operates as at the common law; when broken, it prevents the estate from vesting, whatever be its nature; when annexed to a gift of personal property, if general or unreasonable, it is wholly void, and the gift takes effect; if partial and reasonable, it is operative. When a condition is subsequent and annexed to a gift of land, if general, it is void, and although broken, the estate of the donee continues; if partial and reasonable, it is operative, and on its breach the estate of the donee is defeated. When a subsequent condition is annexed to a gift of personal property, if general, it is void; if partial and reasonable, and there is a gift over, it is operative, and upon its breach the interest of the first donee ceases and the gift over takes effect; but, if there is no gift over, then the condition is said to be in terrorem merely, and is inoperative." This accords with the view taken by Judge Story, but Mr. Jarman seems to be of opinion that in a devise of real estate *Page 171 a condition precedent will not prevent the devise from taking effect. In regard to the proposition that as to personalty, illegal conditions in restraint of marriage, whether precedent or subsequent, are void and inoperative, all are in accord. Judge Story says (§ 289): "If the condition regard real estate and be in general restraint of marriage, there, although it is void, yet, as we have seen, if there is not a compliance with it, the estate will never arise in the devisee. But if it be a legacy of personal estate under like circumstances, the legacy will be held good and absolute as if no condition whatsoever had been annexed to it."
To constitute a condition in general restraint of marriage, it is not necessary that the restraint should be absolute, universal and continue during the whole lifetime of the legatee. If the restraint is unreasonable, it is in general restraint within the rule. Many special restraints have been upheld, such as an inhibition against marrying a particular individual, or one of a particular race. These are not necessary to consider, as in the case before us, as long as the restraint continues it is unqualified, forbidding any marriage. But it is also well settled that a condition in restraint of marriage must be reasonable in point of time. Thus, Judge Story says (§ 283): "It is obvious that restraints as to time, place, or person may be so framed as to operate a virtual prohibition upon marriage, or at least upon its most important and valuable objects. As for instance a condition that a child should not marry until fifty years of age; or should not marry any person inhabiting in the same town, county or state; or should not marry any person who was a clergyman, a physician or a lawyer, or any person except of a particular trade or employment; for these would be deemed a mere evasion or fraud upon the law." In Hogan v. Curtin (supra) ANDREWS, Ch. J., said: "It is otherwise of conditions in general restraint of marriage, they being regarded as contrary to public policy, and the `common weal and good order of society.' But reasonable conditions designed to prevent hasty or imprudent marriages, and to subject a child, or *Page 172 other object of a testator's bounty, to the just restraint of parents or friends during infancy, or other reasonable period, are upheld by the common law." (p. 170.) In the case in hand the inhibition against marriage was to continue during the lifetime of the testatrix's son. It was entirely possible that he might survive all the daughters and thus each be restrained during life. As matter of fact he survived his mother twelve years. At the time of her death the eldest of the unmarried daughters was 33; the youngest 21 years of age. Therefore, when the eldest daughter first became relieved from the requirement of celibacy she had reached an age at which the great majority of women become incapable of child bearing (Taylor's Med. Juris. pp. 736, 737; 2 Woodhouse Becker's Med. Juris. 649) and other daughters were closely following her. A restraint until such a period is plainly inconsistent with public policy, as one of the great objects of matrimony is the birth of offspring.
I have not discussed the so-called doctrine of "in terrorem" as it is not necessary to the disposition of the case. There is evidently a misunderstanding of that doctrine. It has no application to invalid restraints on marriage which, as already said, in the case of personalty are inoperative, whether precedent or subsequent. The doctrine applies only to valid subsequent conditions, and is to the effect that even such a valid condition will not operate to defeat a bequest unless there is a gift over in case of breach of condition. In other words it is a doctrine of the courts to prevent the operation of valid conditions. (Hogan v. Curtin, supra.) It might be argued that as the legacies vested subject only to be divested by marriage, the gift to the class who should be unmarried at the time was not a sufficient gift over, and, therefore, the condition was inoperative, even if good. But this is unnecessary to pass upon. The statement of Mr. Jarman that a bequest during celibacy, if "for the purpose of immediate maintenance, will not be interpreted maliciously to a charge of restraining marriage" (2 Wills, *886) is misapprehended. It is quoted from the leading case of Scott v. *Page 173 Tyler (2 Dickens, 712), decided by Lord THURLOW. There the chancellor said, citing Godolphin, that "the use of a thing may be given during celibacy; for the purpose of intermediate maintenance, will not be interpreted maliciously to a charge of restraining marriage." This doctrine still prevails, certainly in England, and in at least some of our states, if not generally. (Estate of Bruch, 185 Pa. St. 194.) But, again, this rule has no application whatever to a gift of the principal, but simply to the use or income of the bequest. This distinction is clearly pointed out in the last case cited. Not a penny is here given to any of the legatees for their support and maintenance during celibacy, but the whole fund is bequeathed absolutely if they remain unmarried until the death of the son.
We are now brought to the final argument that the bequest to the daughters who may be unmarried at the time of the son's death is not a condition at all that any who may marry before that time shall not receive her share. I cannot understand this reasoning. It is said that this is not a gift to a class. I am inclined to that opinion myself. But it is certainly either a bequest to a class or to designated legatees, for I know of no other character of bequest, and the result in either case is the same. If the appellants here had not married they would have shared at the son's death in the fund held in trust for him. By their marriage they have forfeited their shares. Surely a bequest to any one if she be unmarried at a certain time is the same as a bequest if she shall not have married before that time. Otherwise the validity or invalidity of a restraint on marriage depends on the mere form of a phrase, as pointed out by Lord THURLOW in Scott v. Tyler (supra). The question, however, has been the subject of express decision. Sterling v. Sinnickson (2 Southard [N.J. Law], 756) was an action on a bond under seal to pay $1,000 in case the obligee was not married in six months from date. It was held that this was a condition in restraint of marriage and hence void. It was there argued that the obligation was simply to pay money on a subsequent contingency which a man had the *Page 174 right to make. To this the court said: "I think this is not a correct view of the case. Where the event, upon which the obligation becomes payable, is in the power of the obligee, and is to be brought about by his doing or not doing a certain thing, it cannot be so properly called a contingency; it is rather the condition meritorious, upon which the obligation is entered into, the moving consideration for which the money is to be paid. It is not, therefore, to be considered a mere contingency." Let us see what results the doctrine contended for would lead to. Suppose a testator having a single daughter (and such might have been the case of this testatrix, as all but one of the daughters might have died intermediate the will and her own death), it would follow that by marriage that daughter could not share in the trust fund upon the decease of her brother and the fund might have been given over to strangers. While if the phraseology of the will had been changed, and the will had provided, if any daughter married before the death of the son, then she should not take the fund, it would be void. Is there the slightest difference in effect between these two testamentary provisions, and is it not a mere question of phraseology? Does it make any difference that instead of her leaving a single unmarried child surviving, she left several? If the testatrix could not provide in the case of a single child for its forfeiture of the remainder by marriage, would she have any greater power from the fact that there were several children? If all the daughters had married prior to the son's death, not one of them could have shared in the trust fund. Such a provision is necessarily a condition in restraint of marriage upon each. If we assume that the bequest was contingent, it would be of no importance, for, as already said, it is settled law as to bequests of personalty that invalid conditions precedent equally with those subsequent are inoperative.
In a note by the editor of the last edition (13th) of Story's Equity Jurisprudence (p. 276) it is suggested that little is left of the doctrine of conditions in restraint of marriage. This *Page 175 suggestion, which is in opposition to the text as written by Judge Story, I think is not justified by the decisions. The general doctrine as stated by the judge seems to be generally accepted throughout the country. (Vaughn v. Lovejoy, 34 Ala. 437;Shackelford v. Hall, 19 Ill. 212; Bostick v. Blades,59 Md. 231; Pringle v. Dunkley, 22 Miss. 16; Dumey v.Schoeffler, 24 Mo. 170; Williams v. Cowden, 13 Mo. 211;Randall v. Marble, 69 Me. 310; Otis v. Prince, 10 Gray [Mass.], 581; M'Ilvaine v. Gethen, 3 Wharton [Pa.], 575;Hogan v. Curtin, 88 N.Y. 162; Graydon v. Graydon, 23 N.J. Eq. 230,236; Hughes v. Boyd, 2 Sneed [Tenn.], 512;Phillips v. Ferguson, 85 Va. 509; Webster v. Morris,66 Wis. 366, 386.) I can find only one state in which it has been questioned, Georgia. (Snider v. Newsom, 24 Ga. 139.) Nor can I find any English authority to the contrary of the doctrine that a condition in general restraint of marriage is invalid, except in the case of the second marriage of widows or widowers. The authority on which the learned editor seems to principally rest the rule which he favors is Jones v. Jones (1 Q.B. Div. 279). He says, referring to the case cited, that the "English Judges reached the point of declaring that the real question in a particular case was whether a testator intended to discourage marrying or not." The devise under consideration in that case was to two women, the testator's sister Jemima and her daughter Mary during their lifetime, with the proviso that if Mary married she should lose her share and the same should be passed to other parties. The remark of the judge quoted above was clearly justified by the rule that has always prevailed and which, as before said, Thurlow quotes from Godolphin, that a bequest of theuse of a thing during celibacy will be regarded as a provision for maintenance and not necessarily as a condition in restraint of marriage. This is made clear by reading the opinions, but the case has no application to a devise in fee or an absolute bequest.
In conclusion I should state what seems to me the true interpretation of the will. It is urged in support of the decision of the Appellate Division that it is unreasonable to *Page 176 suppose that the testatrix intended to cut off any of her daughters who might marry intermediate the date of the will and her death, leaving those who might marry subsequent to her death to share in the fund. I concede this, but it seems to me equally hard to believe that the testatrix intended to cut off those who might marry possibly a few days before her son's death, while leaving the others at liberty to marry thereafter, for it appears on the face of the will in the first subdivision of this clause that the testatrix contemplated the possibility of some of her unmarried daughters not continuing to live with her son, and the bequest is made not at all on the condition that they take care of the son, but that they remain unmarried, and though any of them should desert the son, if she remained unmarried, still she would be entitled to a share in the gift. There is, however, another construction of the will. As a general rule a will speaks as of the time of the death of the testator, but a will may speak from the date of its execution. (Van Alstyne v. Van Alstyne,28 N.Y. 375.) A class is defined in Matter of Kimberly (150 N.Y. 90): "In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number." (p. 93.) I think that the bequest is not to be considered as given to a class within this definition, or if to a class that the class was to be ascertained at the date of the will. In my judgment the use of the expression "my unmarried daughters" was merely to save a recital of each of them separately by name. In other words, it was a bequest to designated persons. (Matter ofKing, 200 N.Y. 189.) So considered the will is not only reasonable but lawful. It is unnecessary to dwell longer on this question, as the result is the same whatever construction of the will be adopted; the condition in restraint of marriage being void, and none of the daughters having married intermediate the date of the will and the death of the testatrix. *Page 177
The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed.
VANN, WERNER and CHASE, JJ., concur with GRAY, J.; HAIGHT and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.
Order affirmed, with costs.