Gough v. Manning

• Decision Date: 15 February 1867
• Citation: 26 Md. 347
• Parties: JOSEPH T. GOUGH and Elizabeth A. Gough, his wife, v. IDA CAROLINE MANNING, by Her Next friend, Joseph Edwin Coad.
• Court: Maryland Court of Appeals

26 Md. 347

JOSEPH T. GOUGH and Elizabeth A. Gough, his wife, v. IDA CAROLINE MANNING, by Her Next friend, Joseph Edwin Coad.

Court of Appeals of Maryland

February 15, 1867

Appeal from the Circuit Court for St. Mary's County.

James H. C. Manning, by his will dated the 2nd of February, 1854 devised as follows:

"2nd. My funeral and other expenses being paid, I will and bequeath to my beloved wife, Elizabeth A. Manning, all that I now possess or may possess at the hour of my death. All my landed property, money, negroes or whatever else I now possess, or may hereafter possess."

"Provided my said wife, Elizabeth A. Manning, will never marry or give herself in marriage to any man after my death. In case my said wife, Elizabeth A. Manning, should not comply with the above condition, that is, of not marrying after my death, or if she should marry another man, then I will and bequeath all I now possess of landed property, moneys negroes or all I may possess at the hour of my death, to my beloved daughter, Ida Caroline Manning. In case my beloved wife, Elizabeth A. Manning, should die before my daughter, Ida Caroline Manning, I then will and bequeath all my property to my daughter, Ida Caroline Manning."

The testator died in 1855, and in October, 1861, the widow was again married to Joseph T. Gough, the appellant. The bill of complaint in this case was filed by the daughter, being a minor, by her next friend, seeking to obtain possession of the property, real and personal, so devised, praying for an account of the personalty and of the rents and profits of the real estate, and that the court "may declare what is the true construction of said will in relation to said property, and that your complainant may have such other and further relief as her case may require."

The widow did not renounce the will, but entered into possession of the property devised, and used and enjoyed the same from the death of the testator. In the joint answer of the widow and her second husband, Joseph T. Gough, they say that "they admit all the facts stated in the bill of complaint, but that they are advised and insist that by the true construction of the said will of James H. C. Manning the property devised still remains in fee in your respondent, Elizabeth A., notwithstanding her marriage with said Joseph T., and that the devise over in the event of her marriage is void."

The answer continues:

"Your respondents further insist, that if the limitation over is not void, that in any event your respondent, Elizabeth, is entitled to her dower in both the real and personal property of said James H. C.

Your respondent, Elizabeth, is willing and humbly submits the true construction of said will to this honorable court, and prays that all the rights of the parties to this suit may be adjudicated and determined by said court, and that your honor may pass such decree as may be according to the respective rights of the parties."

The court below, (Brent, J.,) decreed, "that the defendants account with the complainant in reference to the personal estate in the proceedings mentioned, and for the rents and profits arising from the real estate," etc., and filed the following opinion:

"This case arising out of the will of James H. C. Manning, of St. Mary's County, has been submitted to the court upon bill and answer, and I have endeavored to examine with great care the very interesting question of law which it presents.

The devise in the will is of all the estate of the testator, real and personal, in fee to the widow, with a limitation over of the whole to the daughter, in case she survives the mother, and with a further conditional limitation over of the whole estate to the daughter upon the contingency of the widow's second marriage.

The widow having married Joseph T. Gough, this bill has been filed by the daughter, through her next friend, she being a minor, for an account of all the property of James H. C. Manning, her father, which remained after the payment of debts and administration expenses, and to declare the true interpretation of the will.

A great deal of fluctuation has occurred in the progress of judicial decisions upon the subject of conditions and limitations in restraint of marriage, both as regards real and personal estate. To attempt an analysis of all the cases would be vain, nor is it required in the case now under consideration. This much however may be asserted as in harmony with the authorities.

If either real or personal estate be devised upon a condition precedent to the vesting of the estate, coupled with a devise over upon breach of the condition, the devise or bequest is good, and the restraint effectual to defeat the estate.

If the estate be real, the condition precedent in restraint of marriage will be good, whether there be a devise over or not, and whether the restraint be general or qualified.

If the estate be personal, the condition precedent, in general restraint of marriage, will be void if there be no limitation over, but if there be a limitation over it will be good.

In regard to conditions subsequent:

If they be in general restraint of marriage, and there is no limitation over, they are void as to both real and personal estate.

If in general restraint of marriage, and there is a limitation over, they are void as to personal estate. But as to real estate the cases are in conflict. The later and better opinion, however, seems to be that even in that case the limitation over should not prevail. If the condition subsequent be in limited and qualified restraint of marriage, it will be good, provided it be accompanied by a limitation over. If there is no limitation over, it will be construed as in terrorem only, and not an imperative condition. To this last class belong the two cases to be found in 8 Md. 517, and 9 Md. 291.

The inquiry arising in the present case is, whether the restriction by a husband upon the second marriage of his wife, accompanied by a devise over in favor of the children of the first marriage, is a condition which will be upheld by the courts as a limited and qualified restraint upon marriage. I think, in view of the authorities, both English and American, and the civil law to which they all confessedly refer as their source, there can be no doubt that the limitation over is good. Waters v. Tazewell, 8 Md. 517, and Bannerman v. Weaver, 9 Md. 291, were both cases of personal property without limitation over, and have, therefore, no circumstances in them which bear at all upon this question.

The text-books, 2 Cruise, 26 Story, secs. 285, 287, 288, 289; Ward on Legacies, 150, all admit that a condition by a husband in restraint of the second marriage of the wife is good. The leading English case of Scott v. Tyler recognizes in the fullest manner the doctrine; and what Lord Thurlow there lays down has never been controverted by any judge or text-writer in England, so far at least as I have been able to extend my examination. At page 172, (marginal,) of 2 Hare & Wallace, he quotes the Novels, 22, ch. 44, to show that by the civil law in the time of Justinian it had become lawful for a husband to impose restrictions upon the second marriage of his wife, and that the rule of the civil law was the rule of the canon law, and as such the rule of the law of England. The doctrine of Lord Thurlow was reaffirmed in 1795 by the Lord Chancellor of Ireland, in Keiley v. Monk, 3 Ridgaway's Parl. Cases, 245, as follows: 'The branch of the lex Julia which made void conditions prohibiting marriage annexed to a legacy, mentions only such as prohibited marriage altogether, and extended equally to widows and maidens.' But in respect to widows it was soon dispensed with, and, therefore, if a man gave a legacy to his wife on condition that if she married it should go to another, the law says: ' Non dubium est quin si nupserit cogenda est restitutio?' Gains' Dig. Lib. 32, Tit. 3, L. 14. Although such a condition is void ' si mulieri legatur.' So Godolphin, part 3, ch. 17, sec. 9. 'Such a legacy given to a virgin is void, but the civil or rather the canon law allows it in a legacy given to a widow, especially by a husband to his wife, or by a son to his mother.' So in Morley v. Rennoldson, 2 Hare, 580, decided in 1843, after the ablest argument the Vice Chancellor said: 'I am satisfied from an examination of the authorities that there is no reason to change my opinion that a gift until marriage, and when the party marries then over, is a valid limitation. In the case of a widow there is no question of the validity of such a limitation.'

The same doctrine is recognized in Grace v. Webb, 15 Simons, 388. 'A man may make a provision for his wife and declare it shall cease on her second marriage, because it is considered that a husband has a sort of interest to preserve the viduity of his widow for the sake of his children.' To the same effect is Lloyd v. Lloyd, 2 Simons, N S. 255. This case is particularly strong in its bearing upon the present one. There was in the same sentence a bequest to the testator's widow and to another woman with the like devise over to the survivor in case either married. It was there held, 'that it was the intention of the testator that if his widow or M. M. Lockley should marry, the whole annuity should go to the survivor. Now, with regard to that which is an apparent condition subsequent annexed to the estate of a tenant for life, by the rule of law it is void as to M. M. Lockley, but according to the authorities such a condition is not void as to the wife, the law recognizing in a husband such an interest in his wife's widowhood as to make it lawful for him to restrain her from making a second marriage, by imposing a condition that on such marriage any provision he may have...