Graydon's Executors v. Graydon.

5. The only direct and positive dispositions made, besides the money legacy and the annuity, are as to the proceeds of the personal property directed to be converted into money. The money, and securities for money, and the real estate or its proceeds, are not included in this disposition. The language of the fifth clause, which contains the operative words of bequest, is clear and precise. After directing all the rest of his estate, not already in money or securities, to be converted into money, and disposing of the interest until the youngest child shall be twenty-one, it directs that, "then the said principal shall be divided between them, share and share alike." And all the other provisions, except those in the fifth and eighth clauses, relate to the shares of the four children in this fund.

The only disposition of any rest or residue of his estate is that contained in that part of the eighth clause, which directs his executors, in case of John's marriage to A. I. Cameron's daughter, to dispose of his estate as if John had died in his lifetime intestate, and without issue, but subject in other things to the provisions of the will.

If John had died in testator's lifetime, the bequests to him. would have lapsed; and if there had been a residuary bequest, would have fallen into the residue and been thus disposed of. But as there is no residuary gift, the testator, as to these lapsed bequests, is intestate. Had the principal of the fund been given to his children as joint tenants and John had died, the survivors would have taken the whole. But the bequest to them, "equally to be divided between them, share and share alike," made them tenants in common, and the share of one dying would lapse. Had it been given to the children by the name of children, or as a class, without naming them, then it would have gone to those who constitute that class at testator's death, or the time for division, but here they are enumerated by name in the bequest. And the effect is the same as if it had been given to each by name only. As to the share of John in the fund arising from this conversion of personal estate into money, I am of opinion that the testator

Graydon's Executors v. Graydon.

also died intestate, except so far as the words of the eighth clause excludes John from any part of it. It must be equally divided among the three other children. The words "subject in other things to the provisions of this my will," do not apply to this lapsed share. He was here speaking of his whole estate. He had made certain provisions as to the shares of each child in the fund directed to be invested, and only in regard to shares in that fund. The general direction to dispose of his whole estate as if John were dead in his lifetime, might, without this saving clause, have been construed to affect the shares of the others. These words cannot be construed to extend these provisions further than they are applied in the will. Nor can directions or limitations as to John's share, be applied to the issue of the other children. Indeed, the words "in other respects" seem to exclude John's share from this clause. That had just been declared forfeited, and was the only thing to be distinguished and excluded by the word "other."

The above conclusions are founded on the language used by the testator, and are the only conclusions that can be arrived at consistent with that language, according to the rules adopted for construing language. There is nothing in any provision of any part of the will, or any intention expressed by the testator to lead to a different result, or to cause any doubt as to this interpretation. Yet, as a matter of speculation, it is not difficult to suppose that the testator intended to dispose of all his property, and has failed to use words to express that intention. On the other hand, it is possible that he intended to leave the proceeds of his real estate and chattels, and his money and securities, free from the strict, long limitation with which he has tied up the special fund. He freed the shares of his sons in that fund beyond. $12,000, from that limitation. When we look outside of the will for intention, and use speculation and probabilities to ascertain what a testator intended and did not express, we repeal the statute of wills and make testaments by the imagination of the judge.

Graydon's Executors v. Graydon.

6. As to the right of John Graydon, it is urged that the person whom John is not to marry is not designated with sufficient certainty; the words are, "a daughter of A. I. Cameron, of Ridgewood." Besides Alexander I. Cameron, whose daughter John married, there was living at Ridgewood one Alpin I. Cameron, who usually wrote his name A. I. Cameron, and was known by that designation. This is a latent ambiguity, or one that does not arise upon reading the will, but upon facts outside of it. It therefore may be cleared up by evidence dehors the will. Alpin I. Cameron, who was a son of Alexander I. Cameron, has never been married, and, therefore, could not, at the date of the will, have been intended as having a daughter of a marriageable age in 1879. Besides, it is shown that John had paid his addresses to Jessie Cameron before 1868, in testator's life, and with his knowledge, and seemingly without his disapprobation until John became a Romanist, as was supposed by the testator, through her influence or that of her family. There can be no doubt but that testator meant a daughter of Alexander I. Cameron, who had marriageable daughters, and not a daughter of Alpin I. Cameron, who not only had no daughter, but could have had none marriageable in 1879.

It is further contended that this condition is void, because it is in restraint of marriage, and because it requires John to do an illegal and immoral act; to violate his engagement with his present wife, made and entered into before he knew of this provision in his father's will, and, in fact, before the will was executed.

Although the law as to the validity of conditions in restraint of marriage, may be considered to a great extent unsettled, both in England and this country, yet some points are settled so as to be beyond controversy. The general rule is, that a condition in restraint of marriage in general, or of marriage to any person whatever, is void, and the devise or bequest takes effect. But any one may limit a gift to his wife to her widowhood, or may annex a condition that it shall go over on her marriage; this is a well-established exception

Graydon's Executors v. Graydon.

to the rule. So also where provision is made for the support of daughters as long as they continue unmarried and need support, where the evident intention is not to restrain marriage, but to provide support.

On the other hand, in a gift to one as long as she continues to live separate from her husband, or on condition that she live separate from her husband, the limitation or condition is void and the gift is absolute. So any condition is void that is criminal, illegal, or contra bonos mores.

So also it is held that a father, to whom the law gives positive control over the marriage of his children while minors, and who is at all times their proper and natural adviser and counselor in marriage connections, may annex to a gift a condition that it shall be void if his child shall marry a particular person, or one of a specified class, as a Scotchman, a Papist, or a Baptist. And without question, the condition in this case that John should not marry a daughter of A. I. Cameron is valid, if it does not require him to do an illegal or immoral act, to violate a legal and binding contract to marry.

There is, perhaps, no adjudication that a condition which requires the violation of a binding legal contract to marry is a void condition, or that it is a valid one. And it is not necessary here to consider or determine that. As John was a minor until after his marriage, the contract was not legal or binding. The common law and the law of this state favor the control of a parent over the marriage of minor children. Such marriage, without consent of a father in his lifetime, is forbidden, and although not declared void, it subjects the person solemnizing it to a penalty. It is against the policy as well as the provisions of our law to allow a contract by a minor to marry to be declared valid or binding, so as to make a condition in a father's will to defeat it void, and a regard to the spirit of that law cannot be contra bonos mores.

On the contrary, it is the duty of the courts to favor this or any other legal means which a father may adopt to enforce the authority which the law, for wise purposes, has given to him over his minor children, and that regard for his wishes VOL. VIII.

Q

Slack and Page v. Bird.

and counsel in the more important concerns of their lives after maturity, which the untrammeled testamentary power conferred by our law is calculated to secure.

I am of opinion that the condition is certain and is a legal and valid condition, and makes void the bequests to John; and that the direction to the executors to dispose of the estate as if John were dead in testator's life, gives to the three other children, absolutely, both the share of the fund bequeathed to John and his issue, and that part of testator's property outside of this fund, which, by the law of succession, would have gone to John but for this provision.

SLACK and PAGE, trustees, rs. BIRD and others.

1. Under a devise to trustees of a house and lot in trust for the use, benefit, and profit of M. C., R. L., and W. S. L., during their natural lives, with a further direction that upon the death of the last survivor of said three persons, the trustees should dispose of said house and lot and divide the proceeds equally among the surviving children of W. S. L. and R. L., held, that the word "surviving" refers to the period of distribution, and not to the time of testator's death.

2. A child of a deceased daughter of W. S. L., the last survivor of the tenants for life, who survived the testator, but died in the lifetime of W. S. L., is excluded from the gift.

3. Costs of the trustees, who have properly asked the direction of the court, and the surviving children who have answered, must be paid out of the trust fund; the daughter's child must pay her own costs.

Argued on final hearing, upon bill, answer, and proofs.

Mr. A. Browning, for defendant Egbert.

Mr. W. B. Williams, for Aitken and others.