Knost v. Knost

• Decision Date: 14 June 1910
• Citation: 229 Mo. 170,129 S.W. 665
• Parties: KNOST v. KNOST et al.
• Court: Missouri Supreme Court

129 S.W. 665

229 Mo. 170

KNOST v. KNOST et al.

Supreme Court of Missouri, Division No. 1.

June 14, 1910.

1. WILLS (§ 647) — DEVISES — CONDITIONS SUBSEQUENT — VALIDITY — RESTRAINT OF MARRIAGE.

In a will vesting an estate in testator's daughter a condition subsequent that she should receive a lesser share than the other children received if she should marry is void.

2. MARRIAGE (§ 1)—NATURE OF RELATION.

While under Rev. St. 1899, § 4311 (Ann. St. 1906, p. 2370), marriage is merely a civil contract, it creates a status in which the state has a vital interest, both in its creation and dissolution.

3. CONTRACTS (§ 111)—VALIDITY—RESTRAINT OF MARRIAGE.

As a general rule, contracts in restraint of marriage are void as against public policy.

4. DEEDS (§ 148)—CONDITIONS SUBSEQUENT —VALIDITY—RESTRAINT OF MARRIAGE.

A condition subsequent in a deed in total restraint of marriage is invalid, except as to widows.

5. WILLS (§ 647)—CONDITIONS SUBSEQUENT —VALIDITY—RESTRAINT OF MARRIAGE.

A condition subsequent in a will in total restraint of marriage is invalid, except as to widows.

Appeal from St. Louis Circuit Court; Dan. D. Fisher, Judge.

Suit by Anna Marie Louisa Knost against Louisa Knost and others. From the decree, plaintiff appeals. Reversed, with directions.

Wm. Hilkerbaumer, for appellant.

LAMM, P. J.

Suit in equity to free a devise in a will from a condition in restraint of marriage. Defendants, summoned, defaulted, and the bill was taken as confessed. Non obstante, on the merits, the decree went against plaintiff, and the cause comes up on appeal.

The facts follow: Anton F. Knost died testate, a resident of St. Louis, leaving a widow, Louisa, six children (parties hereto, all adults), and seised of an estate real and personal. By item 1 of the will he devised his residence and certain personal property to his wife Louisa for life, with remainder over to plaintiff, Anna Marie Louisa, his eldest daughter. By item 2 certain lots in Shrewsbury Park in the county of St. Louis were devised to Anna Marie Louisa. By item 3 he gave each of his six children a bequest of $2,000, with certain directions as to time of payment, investment, etc. By item 4 the executor had directions about repairs and taxes on the residence devised to his wife. It was also provided that she, in lieu of dower, should receive for life one-half the income of his whole estate after paying taxes and repairs on his residence and the bequests to his children. Anna Marie Louisa was then made residuary legatee, executrix without bond, and donated power to sell personal assets in accordance with her judgment. One Tontrup is made executor, if Anna Marie Louisa should die before final settlement. The clause on which the case hinges then follows, viz.: "In the event of the marriage of my said daughter Anna Marie Louisa, she is to receive only the same proportion of my estate as each of the other children, and in that event, the income and revenue of my entire estate, after payment of taxes, repairs and insurance on said property, after setting aside the Two Thousand Dollars bequeathed to each of my children, shall be paid to my said wife Louisa, during her life-time, and the remainder of my estate shall be equally divided among my said children, share and share alike." Plaintiff served as executrix, made final settlement, and has not married. The total value of testator's estate is not shown, but it does appear that the estate of Anna Marie Louisa is cut down appreciably by the provision relating to marriage—i. e., if she does not marry, she gets a larger estate than if she does marry.

The point in judgment is single and narrow. We all agree the provision is void. This, because:

(a) While marriage is considered by our statute law a civil contract (Rev. St. 1899, § 4311 [Ann. St. 1906, p. 2320]), yet (in a comprehensive sense) it is something more, viz., it creates a status in which the state has a vital interest, both in its creation and dissolution. Matrimony is a status so vital to the welfare of the state and society that, in the laws of some civilized nations, and in the opinion of many people of refined sensibilities in all civilized nations, it is a holy sacrament, and draws tenderness, beauty, health, and vigor from the solemn sanctions of religion itself. This is shadowed forth by our statute permitting marriage to be solemnized by ministers of the gospel. Rev. St. 1899, § 4314 (Ann. St. 1906, p. 2371). Doubtless even those who stickle for the view that marriage is a mere civil contract, and not a whit more, would hesitate to strip it of the sentimental significance of grounding it on, or, more accurately speaking, solemnizing it by, religious rites as our present statute allows. It was said of an old Greek, whose name I have forgotten, that, being shipwrecked, and swimming to an unknown shore, he presently discovered geometrical figures sketched upon the sand, whereat he fell upon his knees and thanked his gods that in his extremity of fortune he had reached a land inhabited by Greeks. If such reasoning castaway had reached a land where there was no regulation of marriage by manners, maxims, customs, ordinances, and laws, he would have known by that token he had come to one of stark savagery or barbarism. The old Roman maxim was that marriage ought to be free. "Matrimonia debent esse libera." 2 Kent, Com. 102. The Roman idea was broad enough to include voluntary divorces, with the voluntary right following the voluntary divorce to take another wife—a loose application of the maxim utterly abhorrent to modern civilization as a whole—one now entertained only by those whimsical and inconsequent dreamers, who, amusing themselves with theories beyond the boundary of common sense, like Dr. Holmes' silly hen that often cackled when she laid no egg, cackle when they revamp some outworn and exploded notion, and dub it reform, progress, or whatnot. But the Roman maxim involved the idea of freedom on another side, viz., the right to freely marry, subject to reasonable regulations, and this wise view of it has come down to us as a settled and cherished doctrine. Says Montesquieu (2 Montesquieu's Spirit of Laws, Nugent's Translation, book 23, c. 21): "By the ancient institutions, the natural right which every one had to marry and beget children, could not be taken away. Thus when they received a legacy on condition of not marrying, or when a patron made his freedman swear that he would neither marry nor beget children, the Papian law annulled both the condition and the oath. The clauses, `on continuing in widowhood,' established amongst us, contradict the ancient law, and descend from the constitutions of the emperors, founded on ideas of perfection." The learned author naively adds (by way of philosophical reflection): "God forbid that I should here speak against celibacy, as adopted by religion; but who can be silent when it is built on libertinism, when the two sexes corrupting each other, even by the natural sensations themselves, fly from a union which ought to make them better, to live in that which always renders them worse? It is a rule drawn from nature that the more the number of marriages is diminished the more corrupt are those who entered into that state, the fewer married men, the less fidelity is there in marriage; as when there are more thieves, more thefts are committed." I find the real philosophy of the matter nowhere formulated in a sounder or more scholarly disquisition than in note "q" to section x, book 1, Fonbl. Eq. (4th Am. Ed. by Laussat, p. 196), viz.: "It may be laid...