Bostick v. Blades

• Decision Date: 12 January 1883
• Citation: 59 Md. 231
• Parties: WILLIAM H. BOSTICK v. STANSBURY BLADES.
• Court: Maryland Court of Appeals

59 Md. 231

WILLIAM H. BOSTICK v. STANSBURY BLADES.

Court of Appeals of Maryland

January 12, 1883

APPEAL from the Circuit Court for Talbot County.

This was an action of ejectment brought by the appellee against the appellant. The verdict and judgment of the Court below were in favor of the plaintiff, and the defendant appealed. The case is stated in the opinion of the Court.

The cause was submitted to MILLER, YELLOTT, STONE, ALVEY ROBINSON, IRVING, and RITCHIE, J.

I C. W. Powell, and William R. Martin, for the appellant.

F Bateman, and Philip F. Thomas, for the appellee.

ALVEY J., delivered the opinion of the Court.

This was an action of ejectment, and the case was tried and determined by the Court below on an agreed statement of facts.

There is no question made in this Court, as we understand, as to the nature and extent of the estate taken by Mary Jane Blades, under the will of her mother, nor as to her power to devise the estate so acquired by her. Indeed, it would be difficult to perceive how such question could be made, as by the terms of the will of the mother, the daughter took by clear and unambiguous language, a fee simple estate in the land in controversy. The mother died in 1863, and some few months thereafter her will was duly admitted to probate. In 1872, Mary Jane Blades, the daughter and devisee, married the defendant, William H. Bostick, and died in 1876. She made and left unrevoked a will executed in due form to pass real estate, and which was duly admitted to probate. That will contains the following clause:--

"I give, devise and bequeath unto my husband, the said William H. Bostick, all my worldly estate, real, personal and mixed subject to the payment of my said debts, funeral expenses and legacies, to have and to hold to him for and during the term or period after my death, that he shall remain unmarried; and if he shall not marry, then for and during the term of his natural life, but in the event of the marriage of my said husband, after my death, or if he shall not marry, then, upon his death, I give, devise, and bequeath all of my said estate, to my brother, Stansbury Blades, his heirs and assigns forever."

The husband, the defendant in this action, has remained in possession of the real estate devised by the will of the wife up to the present time; but in the year 1880, he married again, and thereupon this action was brought by Stansbury Blades, the brother, and devisee over, to eject the defendant.

In such state of case, the question is, as presented by the agreed statement of facts, whether or not the plaintiff is entitled to recover, under the terms and conditions of the devise by the wife,--the husband, the first devisee, having married a second time?

It would seem to be well settled by a great number of adjudications both in England and in this country, that conditions in general restraint of marriage, whether of man or woman, as a general rule, are regarded in law as being against public policy, and therefore void. But this rule has never been considered as extending to special restraints, such as against marriage with a particular person, or before attaining a certain reasonable age, or without consent. Nor has it ever been extended to the case of a second marriage of a woman; but in all such cases the special restraint by condition has been allowed to take effect, and the devise over held good, on breach of the condition. A condition, therefore, that a widow shall not marry, is, by all the authorities, held not to be unlawful. Scott vs. Tyler, 2 Dick, 712; Jordan vs. Holkham, Amb., 209; Barton vs. Barton, 2 Vern., 308; 2 Pow. on Dev., 283; O'Neale vs. Ward, 3 H. & McH., 93; Binnerman vs. Weaver, 8 Md., 517; Gough and Wife vs. Manning, 26 Md., 347; Clark vs. Tennison, 33 Md., 85.

In the cases a distinction is taken between those where the restraint is made to operate as a condition precedent, and those where it is expressed to take effect as a condition subsequent; and the decisions have generally been made to turn upon the question, whether there be a gift or devise over or not. But if the gift or devise be to a person until he or she shall marry, and upon such marriage then over, this is a good limitation, as distinguished from condition; as in such case there is nothing to carry the interest beyond the marriage. There can be no doubt, therefore, that marriage may be made the ground of a limitation ceasing or commencing; and this whether the devisee be man or woman, or other than husband or wife. Morley vs. Rennoldson, 2 Hare, 570; Webb vs. Grace, 2 Phill., 701; Arthur vs. Cole, 56 Md., 100.

In this case, if the devise to the husband had depended alone upon the terms of the first part of the devise, that is to say, the terms "to have and to hold to him for and during the term or period after my death that he shall remain unmarried," there could be no doubt it would have been a good limitation, and the estate devised to him would have terminated upon his second marriage. But we must read the whole clause together, and take one part in connection with the other, and so reading the terms of the devise, the terms that follow those just recited clearly put the devise in the form of a condition subsequent. The estate is given to the husband for life, but in the event of his second marriage it is devised over to the brother of the testatrix; or, in other words, the devise is to the husband for life, subject to a defeasance in the event of a second marriage. By the terms of this devise a vested estate passed to the husband for a definite duration, but by the happening of the event that was contemplated as possible, the estate, according to the contention of the plaintiff, became divested and passed over to the plaintiff.

Now, there being no question of the power of a husband to effectually impose such a condition in restraint of a second marriage of his widow, the question here is, whether a wife by a devise or gift to her husband can effectually imposed a like condition in restraint of his second marriage?

Upon this precise question the books furnish but little direct authority. In our own reports the nearest case to the present is that of Waters vs. Tazewell, 9 Md., 291. In that case a deed of leasehold property in trust for the sole and separate use of a féme covert, contained a provision that in case the husband should survive the wife he and his assigns should have the rents and profits ...