The Orphans Legacy, Part 3 · Chapter 17
CHAP. XVII. Of Legacies and Deviſes in reſpect of Marriage. As alſo Between Husband and Wife.
1. A Condition of Marriage may be annexed to a Legacy; but an unlawful Condition thereof is void, and doth not prejudice the ſame.
2. A Condition of Marriage with the Conſent of a Third perſon, doth oblige the Legatary to Marry, if he will have the Legacy; but doth not oblige him to have ſuch Conſent.
3. A Condition of Marriage with the Advice of another, obliges the Legatary to ask ſuch Advice, if he will have the Legacy, but doth not oblige him to follow it.
4. If a Legatary be Married when a Legacy is given him on Condition of Marriage, it is Material to ſee whether the Teſtator knew ſo much, or not.
5. A Condition againſt Marriage is void, and the Legacy will be good notwithſtanding.
6. If there be given to one, if he ſhall not Marry, a Legacy when he dyes; he ſhall have it preſently and not wait for it till his death.
7. If 200 l. be given to one if ſhe do not Marry, and 100 l. if ſhe doth, and ſhe after Marryeth; What ſhall the Legatary have.
8. What the Wife ſhall have (as to her Legacy) if ſhe Marry after her election to the Contrary.
9. The Diſtinction which the Canon Law makes, in caſe of Conditions directly contrary to Marriage.
10. If the Husband doth Deviſe his Houſe to his Wife quamdiu ſhe ſhall continue a Widdow, and ſhe live and dye ſuch, it ſhall accrew by the Civil Law to her and her Heirs for ever.
11. A Legacy on a Marriage Condition, or made payable at a time to come, and the Legatary dye before the time come, whether and when due.
12. Difference between bequeathing a Legacy to one when he ſhall be of full age, and bequeathing it to him to be paid when he is of full age.
13. A Deviſe made by a Feme ſole to him with whom ſhe after Marries, is void.
14. A Deviſe of Lands generally made by the Husband to the Wife for life, is no Bar to her Joynture, otherwiſe if Deviſed for her Joynture.
15. A Moiety of Goods Deviſed by the Husband to the Wife, is the Moiety of them as they were at his Death, if there be Aſſets enough for his Debts.
1. IF a man bequeath 100 l. to A. B. Provided that he Marry with C. D. the Marriage muſt take effect with C. D. before the Legacy is due to A. B. unleſs there be an Illegallity or too much Indignity in ſuch Marriage; in which caſe the Condition is void in Law, and it ſhall not prejudice the Legatary.aMantic. de Conject. ult. vol. lib. 11. tit. 18. & l. Titio centum. §. 1. De Demonſt. & Condit. & l. haec Conditio. De Demon. & Condit.
2. If I Bequeath 20 l. to E. F. ſo as ſhe Marry with the good liking and Conſent of A. B. ſhe muſt Marry, otherwiſe ſhe hath no right to the 20 l. bMantic. ibid.But ſhe is not oblig'd to have the Conſent of A. B. therein. cl. 72. §. Si arbitratu. ff. De Demon. & Cond.Yea, ſhe ſhall have the Legacy though ſhe Marry not only without his Conſent, but alſo although A. B. be altogether unacquainted therewith, or knowing thereof ſhould contradict it, dVaſq. Controverſ. l. 3. cap. 94. nu. 14.unleſs it be Appointed in the Will expreſly, That in caſe ſhe Marry without ſuch Conſent, the ſaid Legacy of 20 l. ſhall be and enure to ſuch or ſuch pious uſes ſpecially mentioned in the ſaid Will.eMant. ubi Supra.
3. If I Bequeath 100 l. to A. B. ſo as ſhe Marry with the Advice of C. D. In this Caſe A. B. ſhall not have the ſaid Legacy unleſs ſhe require or deſire the Advice of C. D. Albeit, ſhe be not obliged to follow his Advice therein, yet ſhe is obliged to ask his Advice, or ſhe can not hauehave the ſaid Legacy. The reaſon of the Difference in this caſe from the former is, That in the former there may be a total impediment to Marriage it ſelf, in This it is otherwiſe. fMant. ibid. nu. 10. & Graſſus. §. Legatum. q. 50. nu. 11.But if C. D. be Dead, whereby the Condition is rendred impoſſible; In ſuch caſe it is as if it were performed, provided that C. D. were Dead before his Advice could well be ask'd or required.
4. If a man Bequeath 100 l. to C. D. in this manner, viz. I give and Bequeath 100 l. to C. D. if he ſhall Marry. And C. D. was a Marryed man at that time when the Teſtament was made. In this caſe it is Reſolved, That if A. B. the Teſtator were at the time of making the Teſtament Ignorant of C. D's being then Marryed, the Legacy is inſtantly due to him upon the Teſtators death, becauſe the Condition in a Legal Conſtruction is actually performed; But if the Teſtator at the time of his making the Teſtament did infallibly know that C. D. was then Marryed, the ſaid Legacy is not due to him until he be Marryed a ſecond time. gl. Si jam facta. ff. De Cond. & Demon. & Papo. Notar. 1. lib. 9. tit. de Fidei comiſs.which Diſtinction ought to fall under Conſideration with thoſe who hold, That if a Teſtator Bequeath 100 l. to C. D. towards her Marriage, the Legacy may be due to her, albeit ſhe were Marryed at that time when the Teſtament was made.hBald. ad L. ult. C. De Sentent. quae, &c.
5. If I bequeath 10 l. to one, provided ſhe do not Marry, it is a void Proviſo in Law, and ſhe ſhall have the 10 l. although ſhe do Marry. iMant lib. 11. tit. 19. & in l. hoc modo. de cond. & Dem.Otherwiſe it is, if the words be, Provided ſhe do not Marry at ſuch a time, or in ſuch a Place, or with ſuch a Perſon.kPeregr. de Fidei comiſs. art. 11. nu. 118.
6. If a man Deviſe to A. B. in this manner, viz. I give unto A. B. if ſhe ſhall not Marry, my Mannor of D. when ſhe dyes. In this caſe A. B. although ſhe Marry, ſhall have the Mannor preſently, and not expect or wait for it until her death. The Reaſon is, becauſe that Time of her death is not joyned with the Legacy, but with the Condition; as if the Teſtator had ſaid, viz. If A. B. ſhall remain unmarried to her death.lCuiac. in l. inteſtato. §. Sed ſi. De ſuis & Legit.
7. Suppoſe a man doth bequeath 200 l. to A. B. if ſhe do not Marry, and 100 if ſhe do Marry; and after ſhe Marryeth. Some are of Opinion that in this caſe A. B. ſhall have 300 l. viz. 100 l. becauſe ſhe is Marryed, and 200 l. becauſe the Condition of non-marriage or againſt Marriage is void. Others are of opinion, that ſhe can recover but one of the ſaid Legacies, and that is the 200 l.ml. Titia. ff. De Cond. & Demonſt.
8. Suppoſe a man bequeath to his Wife the uſe and occupation of all his Goods, if after his deceaſe ſhe ſhall abide in her Widdowhood; But in caſe ſhe Marry again, that then ſhe ſhall have only 100 l. In this caſe, if at firſt the Wife's Election be to continue in her Widdowhood, ſhe ſhall accordingly enjoy and have the uſe and occupation of the ſaid goods; But if after that ſhe Marry, ſhe ſhall not have the ſaid 100 l. nSurdus. de Alimentis. tit. 9. quaeſt. 16. verſ. Addo.And ſome are of Opinion, That by ſuch ſecond Marriage, ſhe forfeits both the ſaid Legacies, becauſe thereby ſhe nulls her precedent Election whereby ſhe was concluded, and therefore ſhall alſo reſtore or refund the value of the Intereſt of ſuch Goods as ſhe uſed and enjoy'd during her Widdowhood; and ſo it hath been Adjudg'd.oIn Rot. Rom. dicit Matheac. de Legat. in lib. 1. cap. 4. nu. 17.
9. Although a Condition directly contrary to Marriage, annexed to a Legacy in a Will, is a void Condition for that very reaſon; yet the Civil or rather the Canon Law doth diſtinguiſh in this point between a Virgin and a Widdow, and ſayes that ſuch Conditions againſt Marriage (as to a Virgin) are void; but allows them as to Widdows. pMant. lib. 21. tit. 19. & Ranch. Deciſ. part. 1. Conel. 298. cum multis aliis.. Specially if the Legacy be given by a Husband to his own Wife, or by a Son to his Mother.
10. A man bequeaths the Houſe wherein he lives to A. B. his Wife, quamdiu ſhe ſhall continue a Widdow, and dyes; A. B. doth not Re-marry, but lives and dyes a Widdow. In this caſe the ſaid Houſe by the Civil Law comes to A. B. and his Heirs for ever. qDe Praetis. lib. 4. int. 1. dub. 10. nu. 93.Note, that what in the premiſes hath been ſaid touching the invallidity of Conditions againſt Marriage, annexed to Legacies in relation to Females, holds the ſame in Law touching the like illegal Conditions in reference to Males or Maſculines.
11. A man Deviſed to his Daughter 500 l. towards her Marriage. In this Caſe it was the Opinion of the Court, That if ſhe die before Marriage, her Executors ſhall have it, But if the words were [To be paid at the day of her Marriage, or at the age of 21 years.] and ſhe dyeth before both, it is otherwiſe. rPaſch. 37. H. 8. Dyer. 55. in the Lord Latimers caſe. As in Hughs Abridg. tit. Deviſe. Sect. 6. §. 9.The latter part of which Judgment ſeems not to agree with the Civil Law in that point, which ſayes, the time of the age of a Legatary may be joyned either to the ſubſtance of the Legacy, or to the execution and performance of the ſame; if the time of the age of the Legatary be joyned to the ſubſtance of the Legacy, as when the Teſtator doth give thee 100 l. when thou ſhalt be of the age of 21 years; In this caſe if thou dyeſt before that time, thy Executors cannot recover the 100 l. But if the time of the age of the Legatary be joyned only to the execution or performance of the Legacy, as when the Teſtator doth give thee 100 l. which he willeth ſhall be paid when thou accompliſh the age of 21 years; In this caſe, although thou dye before thou accompliſh the age of 21 years, yet thy Executors or Adminiſtrators ſhall recover the ſame, when the time is accompliſhed, wherein thy ſelf (if thou hadſt been then living) mightſt have recovered the ſame.
12. Conſonant whereunto is that which we find Reported, viz. That it was agreed by the Court, That if a man Deviſeth to his Daughter 100 l. when ſhe ſhall be Married, or to his Son when he ſhall be of full age, and they dye before the time appointed, and make Executors, their Executors ſhall not have it. But it is otherwiſe, if the Deviſe were to them, to be paid at their full ages, and they dye before that time, and make Executors, there the Executors ſhall have it. sMich. 9. Jac. in C. B. adjudged acc.Which difference was ſince likewiſe ſo Agreed and Adjudged.tTrin. 1653. in B. R. in Doomlow and Shawes caſe. Vid. 15. Car. in R. R. & Hugh. Abridg. tit. Deviſe Sect. 7. §. 14.
13. A Feme Sole Deviſeth Lands to A. B. in Fee, to whom afterwards ſhe was Married; and during the Coverture Countermands her Will, ſaying, her Husband ſhould not have the Land, nor any other benefit by her Will, and dyes. In this caſe the Husband ſhall not have the Land, not only becauſe of her Countermand, but becauſe of the diſability of a Feme Covert to make a Will, which takes no effect till the parties death. uMich. 31. Eliz. in C. B. Goldsb. 107.And therefore if a Feme ſole Deviſeth Lands to a man, and then takes him to Husband, and dyes: This Inter-marriage is a reverſion of the Deviſe, and the Heir of the Woman ſhall have the Lands, and not the Husband, becauſe after Marriage the Will of the Wife, in Judgment of Law, is ſubject to the Will of her Husband, and a Feme Covert hath not any Will; for the making of the Will is but the Inception thereof, and takes no effect till the death of the Deviſor.wCo. 4. part. 61. Forſe and Hemblings caſe, and Hugh. Abr. tit. Deviſe. Sect. 1. §. 52.
14. If a man Deviſeth Lands generally to his Wife for the Term of her life; It cannot be averred to be for the Joynture of the Wife, and in ſatisfaction of her Dower; But if a man Deviſeth Lands to his Wife for life, or in tail, for her Joynture, and in ſatisfaction of her Dower, the ſame is a good Joynture within the Stat. of 27 H. 8.xCo. 4. part. 4. in Vernons caſe.
15. A man Deviſed the Moiety of his Goods to his Wife, and dyed. It was the opinion of the Court, That ſhe ſhould have the Moiety of them as they were at the time of his death, if his Executors had Aſſets ſufficient to pay his Debts.y5. Mar. Dyer. 164. Vid. 38. H. 8. Dyer. 59. Lord Latimers caſe. adjudg.
If a Legacy be given to a Woman Covert, and her Husband give a Releaſe, and afterwards he and his Wife ſue in the Eccleſiaſtical Court for the Legacy, the party ſued ſhall not have a Prohibition upon the Husbands Releaſe, becauſe the Temporal Judges cannot meddle with a Legacy, nor conſequently determine whether the Releaſe will extinguiſh the ſame. As Hill. 7. Jac. B. R. in Starkey againſt Barton and Gores caſe. …elv. Brook. tit. Deviſe. 18.the Caſe 29 Eliz. Adjudged.
The Husband may Deviſe to his Wife although they are but one perſon in Law, for it takes no effect till after his Death.