Sec 396

The policy of the law being to encourage marriage, contracts imposing general restraints On marriage are void.6 A covenant, therefore, to marry no one but the covenantee, without engaging to marry her, has been held inoperative;7 and so of a covenant not to marry within a particular time;8 and so of a bond by a widow conditioned on her not marrying again.1 But a settlement of real estate while the party remains single may be sustained when the intention is not to discourage marriage, but to give a proper support until marriage.2

Contracts in general restraint of marriage void.

2 Hill, 260; Griffin v. Banks, 37 N. Y. 623; Hutton v. Hutton, 3 Barr, 100; Dillinger's App., 35 Penn. St. 357; Hitner's App., 54 Penn. St. 110; Thomas v. Brown, 10 Ohio St. 250; Bettle v. Wilson, 14 Oh. 257; Dutton v. Dutton, 30 Ind. 455; though see, as to refusing to execute deeds of separation, Rogers v. Rogers, 4 Paige, 518; Cham-plin v. Champlin, 1 Hoff. Ch. 55; Simpson v. Simpson, 4 Dana, 140; McCrock-lin v. McCrocklin, 2 B. Mon. 370; Collins v. Collins, Phill. (N. C.) Eq. 153; Bisp. Eq. sec 115.

1 Barron v. Barron, 24 V.t. 375; Smith v. Knowles, 2 Gr. 413; Hutton v. Hutton, 3 Barr, 100; Garver v. Miller, 16 Oh. St. 527; and see, to same effect, Frampton v. Frampton, 4 Beav. 294; though see, contra, Carson v. Murray, 3 Paige, 483; Bettle v. Wilson, 14 Ohio, 257; Simpson v. Simpson, 4 Dana, 140; Watkins v. Watkins, 7 Yergi 283;.

Carter v. Carter, 14 S. & M. 59; and cases cited Wald's Pollock, 270.

2 Smith v. Knowles, 2 Grant, 413.

3 Sanders v. Rodway, 16 Beav. 207; Flower v. Flower, 20 W. R. 231; Wilson v. Wilson, 1 H. L. Cas. 538.

4 Westmeath v. Salisbury, 5 Bli. N. S. 339.

5 See the cases given in Wh. Con. of L. sec 126; and see also H. v. W., 3 K. & J. 382; People v. Mercein, 8 Paige, 47; Bindley v. Mulloney, 7 Eq. 343.

6 Leake, 2d ed. 757; Morley v. Ren-noldson, 2 Hare, 570; Scott v. Tyler, 2 Bro. C. C. 431; 2 Lead. Cas. Eq. 215; Hartley v. Rice, 10 East, 22; Bellairs v. Bellairs, L. R. 18 Eq. 510; Jones v. Jones, L. R. 1 Q. B. D. 279; Williams v. Cowden, 13 Mo. 211.

7 Lowe v. Peers, 4 Burr. 2225; Wil-mot, 371.

8 Hartley v. Rice, 10 East, 22; see Sterling v. Sinnickson, 2 South. 756.

Sec 397

A limitation of property, however, to a man or a woman, in restraint of a second marriage, is not in itself void.3 And restrictions against marrying particular persons have been sustained as not amounting to a general restraint on marriage.4 So far as concerns deeds of realty, conditions in general restraint of marriage will be held valid, although there is no gift over, when the object is to make a provision until marriage. But as to personalty such a condition, if there is no gift over, will be held not to defeat the estate.5 And in England such is now the case as to personalty, even when there is a gift over.6 But a gift durante viduitate, with a limitation over, is valid, the object being to give support during widowhood.7 Such limitations may be applied to widowers as well as to widows.8 But a limitation during widowhood and life, without any bequest over, has been held to give an interest which a second marriage does not defeat.9 - To adopt Judge Story's summary: "Conditions annexed to gifts, legacies, and devises, in restraiut of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of mar-riage generally, then, indeed, as a condition against public policy, and the due economy and morality of domestic life, it will be held utterly void. And so if the condition is not in restraint of marriage generally, but still the prohibition is of so rigid a nature or so tied up to peculiar circumstances, that the party upon whom it is to operate is unreasonably restrained in the choice of marriage, it will fall under the like consideration. . . . But the same principles of public policy which annul such conditions, when they tend to a general restraint of marriage, will confirm and support them when they merely preserve such reasonable and prudent regulations and sureties as tend to protect the individual from those melancholy consequences to which an over-hasty, rash, or precipitate match would probably lead. If parents, who must naturally feel the deepest solicitude for the welfare of their children and other near relatives and friends, who may well be presumed to take a lively interest in the happiness of those with whom they are associated by ties of kindred or friendship, could not, by imposing some restraints upon their bounty, guard the inexperience and ardor of youth against the wiles and delusions of the crafty and the corrupt, who should seek to betray them from motives of the grossest selfishness, the law would be lamentably defective, and would, under the pretence of upholding the institution of marriage, subvert its highest purposes. . . . Such a reproach does not belong to the common law in our day; and, least of all, can it be justly attributed to courts of equity."1 A distinction, however, has been taken, as to limitations in special as well as to those in general restraint, between limitations of real and limitations of personal estate. When the limitation is as to real estate, it must be strictly complied with, supposing the condition to be good. But limitations of personal estate are not binding unless there is limitation over in case of default.2

Partial limitations of marriage may be valid.

1 Baker v. White, 2 Vera. 215.

2 Jones v. Jones, L. R. 1 Q. B. D. 279; see Pollock, 3d ed. 325.

3 Newton v. Marsden, 2 J. & H. 356; Allen v. Jackson, L. R. 1 C. D. 399; Jones v. Jones, L. R. 1 Q. B. D. 279, cited supra, sec 396; Arthur v. Cole, 56 Md. 100.

4 Leake, 2d ed. 758, citing Thurlow, C, Scott v. Tyler, 2 Bro. C. C. 431.

5 Bisph. Eq. sec 227; Hill on Trustees, 496; Story, Eq. Jnr. sec 274 et seq.; Harvey v. Asten, 1 Atk. 370; Jones v. Jones, L. R. 1 Q. B. D. 279; Phillips V. Medbury, 7 Conn. 568; Mcllvaine v. Gethen, 3 Whart. 575; Hoopes v. Dun-das, 10 Penn. St. 75; Com. v. Stauffer, 10 Penn. St. 350; Bennett v. Robinson, 10 Watts, 348; Hotz's Est., 38 Penn.

St. 422; Fox's Est., 1 Leg. Gaz. (Phil.) 53; Waters v. Tazewell, 9 Md. 291; Holmes v. Field, 12 111. 424; Collier v. Slaughter, 20 Ala. 263; though see Gough v. Manning, 26 Md. 347.

6 Bellairs v. Bellairs, L. R. 18 Eq. 510.

7 Bisph. Eq. sec 227; Allen v. Jackson, L. R. 1 Ch. D. 399; Newton v. Marsden, 2 Johns. & H. 367; Mcllvaine v. Githen, 3 Whart. 575; Bennett v. Robinson, 10 Watts, 348; McCullough's App., 12 Penn. St. 197; Vance v. Campbell, 1 Dana, 229; Pringle v. Dunkley, 14 Sm. & M. 16; Hughes v. Boyd, 2 Sneed, 512.

8 Allen v. Jackson, L. R. 1 C. D. 399.

9 Parsons v. Winslow, 6 Mass. 169.

1 1 Story, Eq. Jur. 12th ed. sec 281.

2 1 Story, Eq. Jur. 12th ed. sec 289;.

Hoopes v. Dundas, 10 Penn. St. 75; but see Otis v. Prince, 10 Gray, 581.