widower or widow with children and made by a spouse in view of prior death or by a relative above or below in the line of descent"; thus conceding but a single exception to the general rule. Again, the Spanish Code (Art. 793) allows only two exceptions: "A condition absolute against contracting marriage, whether a first or later one, is void, unless imposed on a widower or widow by the deceased spouse or by a relative above or below in the line of descent, or unless contained in a bequest of a life estate, leasehold, annuity, or personal interest during the period of celibacy or widowhood."

In America may be cited the Chilean Code (Art. 1074), providing that "a condition against contracting marriage is void, unless restricted to marriage before the age of 25 years or less." The Venezuelan Code (Art. 904) is identical with the Italian, above quoted. The Code of Argentina (Art. 563) enacts: "The following conditions are illegal: xxx 3, On condition of marrying a particular person, or of marrying with the approval of a particular third person, or of not marrying at all; xx 5, On condition of living in celibacy, with or with limitation of time, or on condition of not marrying a particular person." The Colombian Code (Arts. 11321135) is comprehensive: "A condition that an heir or legatee shall not marry is void, unless limited to marriage before the age of 21 years or less, or to marriage with a particular person. A condition on remaining in widowhood is also void, unless the beneficiary has one or more sons by a former marriage. The foregoing shall not be construed to prevent the making of suitable provision for the subsistence of a woman during celibacy or widowhood by means of a life estate, leasehold, or annuity. A condition on marrying or not marrying a particular person is valid."

3. A much larger number of codes make general provision as to the effect of unlawful conditions annexed to conveyances without consideration, but do not specifically mention conditions against marriage. The codes of Netherlands, Serbia, Roumania, and (among the most modern) of Germany and Switzerland, contain such enactments. In America, the list includes the codes of Quebec, Louisiana, Brazil, and Bolivia.

The French law did not originally pass over this subject without explicit regulation. In the pre-Revolutionary law it was conceded that a condition against marriage with a particular person, or against re-marriage, was valid (Pothiér, "Coutume d'Orléans," Introd. to tit. xvi). But the legislators of the Revolution were set upon eliminating all traces of aristocratic principles, and accordingly sought to remove any obstacles to marriage between the old nobility

and the common people. Hence the law of Sept. 5-12, 1791, which declared void any condition restricting "marriage with a particular person." This provision was repeated in the laws of 5th Brumaire, year II (Art. 1) and of 17th Nivôse, year II (Art. 12), declaring void any condition which "restricts the liberty to marry or re-marry, even with a particular person." But the Code Napoléon did not reproduce these provisions; and they have generally been deemed to be repealed.

4. In so far as there is silence on the subject in the codes, the question remains to be settled on grounds of principle and policy. And in that aspect it is obvious that the problem involves intrinsically a conflict or balancing of two fundamental interests-that of the individual and that of society, for marriage is at one and the same time the most personal of a man's acts, in his reasons for choice, and the most social, in its consequences.

From the individualist point of view, a man or woman in modern times, in making the marital selection, already possesses (after a given age) legal independence enough, both as regards his own family's control, and a fortiori that of any third person. The father can no longer marry off his children against their choice; nay, the children, after a given age, can marry against the parent's will. Logically, then, it would be possible to maintain, in consequence, that any condition in restraint of marriage, whether affirmative or negative, and whether general or specific as to person, should be deemed void. The undertaking touches so closely the interests and inclinations of the individual that, however serious the step, its subjection to the dictate of another would be intolerable.

This purely individualist answer, however, is not sufficient. Above and beyond the individual are the general interests; and these obviously favor marriage. The conclusion to which they lead is that a condition, in a gift, which tends to encourage marriage is indisputably valid.

5. What forms of condition would be valid, on this principle? A condition in general form, "If M. (the donee or legatee) marries," would be valid; so also a condition in specific form, "If M. (the donee or legatee) marries N. (a named person)." This result would impliedly be reached under the provision of some codes

2. ACCORD: Lyons District Court, Mar. 27, 1868, in Sirey's Recueil, 1868, II 307; Demolombe "Droit Civil" XVIII No. 252. CONTRA: Laurent "Droit Civil" XI No. 499. The condition would be void only when it encouraged marriage with a disreputable person, but not merely when the person was a relative within the degrees permitted only by special license: Demolombe ubi supra XVIII Nos. 254, 255.

(France, Art. 1088; Italy, Art. 1068; Portugal, Art. 1168; Netherlands, Art. 1730; Spain, Art. 1333) that "a gift made in favor of marriage lapses if the marriage does not take place." Such a result would certainly be deduced in case the gift had been made after the engagement of marriage, for then the gift would certainly only strengthen the donee's intention to marry; or in case the gift named a specific person before any engagement contracted, for then it might seriously influence the donee in his intention to marry that person rather than another. But these refined distinctions could hardly be carried into rules of law; for the law can deal only within common types of facts susceptible to regulation by general rules.

6. But the type of condition which has chiefly given difficulty in judicial rulings is this: a gift "on condition that M. (donee or legatee) does not marry." Is this void? Against the validity of such a condition two considerations have been urged. In the first place, like all other conditions involving marriage, it imports a restriction on the donee's personal liberty. And, furthermore, it is contrary to the public interest, which favors marriage as an institution fundamental to society. Certainly the decision must rest, in any event, on objective considerations of the utility involved in such marriage limitations, and not subjectively on the quality of the donor's motives. For example, the distinction has been advanced that such a condition should be deemed valid "when the donor's motive was not mere caprice nor an anti-social principle, but a genuinely benevolent interest in the donee's welfare." This point of view is one which always incurs the risk of deciding upon an imperfect knowledge of the facts. On the above principle, a gift on such condition might be held valid because of the donor's good motive, and yet the donee, unknown to the donor, might have a natural child, so that the gift would tend to discourage the laudable act of legitimatizing the child by marriage with the mother.

7. The most one can concede to the subjective point of view is to say that such a condition is void when it is not based upon some motive worthy of special consideration. This sound principle was applied in a rulings upon a gift of an annuity conditioned on not marrying, where the context of the instrument showed that the donor purposed that the donee should during life continue to remain. in the same status as during the donor's life.

8. Taking now the objective point of view, let us examine these conditions against marriage to see whether there are circum

3. Court of Paris, July 13, 1911 (Sirey 1912 pt. 2 p. 56); Court of Cassation April 8, 1913 (Sirey 1915 pt. 1 p. 19).

stances which could be deemed to justify their imposition. It might be urged, to be sure, that this is simply a question of customs and standards, that these vary with time and place, and that the coercion of such conditions may or may not be deemed repugnant, according to local habits of thought.

This argument is sound up to a certain point, but no further. It is indeed true that, in one or another country, considerations might be recognized which sufficed to counterbalance the general policy against restraint of marriage. Nevertheless, in all so-called civilized countries, it seems necessary to concede that distinctions should be made between the various possible purposes of a donor or testator in thus attempting to impose a restraint on marriage.

9. In the first place, the donor's purposes may emanate from a complex of social or moral ideas which are not recognized by the law, or have for one or another reason ceased to be recognized, and yet these ideas may still be viewed with respect by the legislator. It would be an error to assume that, apart from the ideas or principles directly sanctioned by the legislator as the basis for the law's general rules, there are no other ideas or principles capable of being given consideration by him. These might not be suitable for complete and general sanction, and yet might be conceded an exceptional and indirect sanction. In this intermediate zone might be placed the case of a gift by a deceased husband for the benefit of a widow with children, conditioned on not re-marrying. If the purpose of this gift were to insure a better bringing up for the children and to protect them against that distraction of their mother's interest and affection which might ensue if she married again and had other children, such a condition might well be held valid. Second marriages of widows, or of widowers are indeed, as a general policy of law, not to be prohibited. But where there are children by the first marriage, the fear that a second marriage may result to their disadvantage is seen to inspire the legislator in the detailed rules of many codes. And a court cannot well be surprised to see testators exhibiting the same apprehensions perceptible in the text of the codes, nor can it be reproached with giving recognition to them.*

The French Court of Cassation has gone even further. It has held that a condition against re-marriage is in general not to be deemed contrary to public policy, and that it will be void only when its purpose in the particular case is censurable, the burden of proof

4. Demolombe XVIII, No. 250.

5. Civil Branch, Dec. 22, 1896 (Sirey 1897 pt. 1 p. 397). See also Requests Branch Mar. 18, 1867 (Sirey 1867 pt. 1 p. 204).

being on the party opposing the condition to show this. But this seems to us to be conceding too much. The husband's marital authority should not be made to outlast his own life. Such posthumous power conflicts with the modern emancipation of women. Nor is it fitting that either spouse should be allowed to bind the other to (as it were) post-connubial chastity, by a condition imposing a pecuniary forfeit if the viduity ceases to seem inconsolable.

10. In the other common case, however, there is more to be said for the validity of the condition against marriage, viz., where the donee's marriage is allowed if the consent of a particular third person is given.

Occasionally, indeed, it may be open to disparagement as tend ing merely to hinder marriage, e. g., where an uncle bequeaths to his niece on condition that she shall marry only with her brother's consent.R

But certainly a condition requiring the consent of specific relatives is open to no objection when in effect this consent is merely a substitute for the consent already required by law. By French law, for example, the parties to a marriage, if under a specified age, must have their parents' consent; and a testamentary condition, in so far as it prolongs the age, merely imposes a condition, viz., the relatives' consent, analogous to that of the law, with a difference which falls within the spirit though not the letter of the law. Such a condition has been held valid by the Supreme Court."

Yet it is hardly possible to sanction any further restrictions, even when their object is meritorious. In a certain case, a mother, divorced for her own fault, had kept the custody of the daughter after the father's death; the paternal uncle, disliking the bad influence of the mother, had bequeathed a legacy to his niece on condition of the approval of certain near relatives of the father. This condition the Douai Court held to be invalid.8

11. Still less favor can be shown to conditions opposing marriage where the object is no longer to protect those interests specially approved by the law (viz., the welfare of children by a former marriage, the consent of parents, etc.), but merely to prevent a marriage deemed foolish by the donor. No doubt marriages are often ill-assorted, whether by reason of age, social condition, or otherwise. But can such a donor arrogate to himself the certain knowledge

6. Such has been the holding of the Court of Paris: June 7, 1859 (Dalloz, Recueil 1859 pt. 2 p. 151).

7. Chamber of Requests Jan. 22, 1883 (Sirey 1883 pt. 1 p. 25): Demolombe "Droit Civil" XVIII 246.

8. July 22, 1907 (Gazette des Tribunaux Oct. 27, 1907).