This was an action to construe the last will and testament of Margaret Pickering as to certain clauses therein. Arthur Pickering the plaintiff herein, is given one-fifth of remainder of the estate, conditioned on Mary Pickering not being his wife at the death of the testatrix. In case Mary Pickering is still the wife of Arthur Pickering, then the Cleveland Trust Gompany is to become trustee. This was substantially one of the clauses in the will. Another is that the income derived from said trust estate is to be paid to Arthur Pickering during his life, and, upon his death, to his three daughters by his former wife; but in no event of death or separation of Mary Pickering. the trust estate shall go to the son and the trust shall cease.
Mary Pickering still being his wife at the .death of the testatrix, Arthur Pickering urges that the provision in the will is in restraint of marriage, and void as being against public .policy. He claims that a provision making the receipt of a legacy dependent on a separation of husband and wife is contrary to public policy and void and the legatee takes the legacy absolutely. Moore v. Guyne, 15 CC., cited.. He contends that if personal property is bequeathed upon a condition which before'the time of the performance becomes impossible of performance, the property, rests in the legatee upon death of the testator, unless it appears that the performance of the condition was the controlling motive for the making of the bequest.
The Court of Appeals held:—
1.It is quite apparent, from the reading of the instrument,, that the performance of the condition, or the happening of the event as i to the death of Mary Pickering, or Arthur Pickering’s legal separation from her, was a controlling' motive for making the bequest.
. 2. . In the case cited above there was no provision for a gift over, of the remainder of th.e estate upon .the death of the legatee, while in the case at bar the will so provides most; explicitly.
3. Nowhere in the will does it provide that if at- any time after the death of the testatrix, Mary Pickering should die, or there should he a legal separation that in that event the estate was to vest in Arthur absolutely. The extept of his estate is fixed by the terms of the will at the death of the testatrix. Nothing remains undisposed of and intestacy does not result. Decree in favor of the Cleveland Trust .Co.