Benning, J.
By the Court. delivering the opinion.
There was a gift, over, “in case” the widow should “marry again.” This gift, over, if in itself, good, put it beyond a doubt, that the widow by marrying lost her legacy.
“It is agreed on all hands that, (however restrictive of marriage,” the condition,) “when the legacy is given over to other uses, the testator shall be deemed to regard those uses.; Lord Thurlow in Scott vs. Tyler, 2 Brown Ch. R. 488.
“Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A. to B., on condition that within two years If intermarry with C. and on failure thereof then to I), and his heirs,) this, the law construes to be a limitation, and not a. condition.” 2 Blacle. Com. 155.
Lloyd vs. Branton, 3 Meriv. 108; Scott vs. Tyler, 2 Bro. C. C. 343; Pyle vs. Price, 6 Ves. 780; Lucas vs. Evans, 3 Atk. 260 ; Hervey vs. Aston, Willes 83, are cases in which the gift was to one, and if he married without the consent o some third person, over. Fitchett vs. Adams, 2 Str. 1128 Sheffield vs. Lord Orracy, 3 Atk. 282, were cases in whic! the gift was to a person, and if she, (a widow,) married again, in general terms, over. And in all these cases, (he decision was, that the donee by marrying lost the gift, and it went over. There are other cases to the same effect. See Cruise’s Dig. Tit. XIII, Sec. 53 et seq., Star. Eq. Jur. Sec. 280, et seq. Lewis on Peop. Sec. 2158. Indeed, I did not understand the counsel for the plaintiff to insist, that, if the gift over was in itself good, the widow did not lose her legacy by marrying again. He insisted, that the gift over was void, and therefore, that it amounted to nothing. In this was he right? His first reason for the position was thus stated by him: “ Because it is a well established rule of law, that a bequest over to support a limitation, must be an express bequest of the particular legacy, and that a mere gift of the residue, will not sustain the limitation.”
But here, the bequest over is an express bequest. The words are; “the whole of my estate, both real and personal, hereinbefore given to her, I give, devise and bequeath to my five children.”
His second reason was thus stated by him, “ Because there is another well established rule of law, that when a testator gives a thing to a person to whom the law gives it, and in the same manner, it is as if it had not been given; and such a bequest is void.”
But here, the gift over is not to the persons to whom the law would give the thing; the gift over is to the children, and the law would give a part only of the thing, to the children ; it would give a part to the widow.
I must say, too, that I am not myself prepared to admit the general principle, here contended for. I doubt whether such a principle is in force in this State, or, at this day, even in England.
His third and last reason was thus stated by him : “Because the bequest over is an attempt to limit a fee on a fee, which cannot be done.”
But a fee may be limited on a fee by an executory devise, if the limitation over is such, that it must take effect, if at all, within a life or lives in being, and twenty-one years afterwards. JBac. Mr. “Devise” (I.) 2 Black. 173.
Besides, “A condition in deed, may be annexed to every species of estate; to an estate in fee, in tail, for life, or years, in any lands or tenements.” Cruise’s Big. Tit. XIII, sec. 9, Fitchetl vs. Adams, 2 Str. 1128.
It is not true, then, that the gift over was void. The gift over, being in itself good, it must follow, then, that the widow, by marrying again, lost her legacy.
But even if the devise over was in itself void, it would still be true, we are strongly inclined to think, that the widow, Toy marrying again, lost her legacy.
There is not an English case, or dictum, I think, countenancing the doctrine, that the rule making conditions in restraint of marriage void, extends to the case in which, the person on whom the condition is imposed, is a widow. There is a broad and strong current of judicial and professional dicta, to the contrary. Jordan vs. Holkham, Amb. 209; Scott vs. Tyler, 2 Bro. Ch. R. 380; 1 Jarm. Wills, 837; Cruise’s Dig. Tit. XIII, sec. 67; 1 Stor. Eq. Jur. sec. 285.
The estate, during widowhood, is as old as the common law. Such an estate is, precisely equivalent in import, to an estate to a widow for her life, on condition that she does not marry again. Is it possible that there can be one law for the former estate, and another law for the latter ?
Widows in a majority of cases, have children. A second marriage must, almost of necessity, interfere with their duties to these. In practice it, frequently, also endangers the peace and the property of the children.
A part of the Actof distributions of 1S04, is in these words: “ If the father or mother be alive, and a child dies intestate and without issue, such father, or mother, in case the father .be dead and not otherwise, shall come in on the same footing as a brother or sister would do. Provided, That such mother, after having intermarried, shall not be entitled to any part or proportion of the estate of a child who shall die intestate and without issue, but the estate of such child shall go to, and be vested in the next of kin on the side of the father.” This indicates a policy in the Legislature, to discourage widows from marrying.
It is true, that ther^jJhl-décfsío»; .in Massachusetts, which seems to sanction the position^ that a-.eOndition in restraint of marriage, can no more be imposed on a widow, than it can, on a woman that has never been married. Parsons and wife vs. Winslow, 6 Mass. But the decision is, so far as this Court is concerned, but matter of judicial dictum, and as such, it is hardly potent enough, to turn back the broad and strong current of judicial and professional dicta, to which I have referred.
The doctrine that conditions in restraint of marriage are void, is one that came from the civil law, if it came at all, of which I have serious doubt.
By the civil law, even a condition that one should not marry without the consent of some third person, was held void; it being so easy a thing, to select, as this person, one who would never give the consent; yet, by the common law, such a condition is held valid. Is not this enough to show, a general repugnancy in the common law to the civil law.
Then, the common law has its estate during widowhood. The civil law, I suppose, would see no difference between such an estate, and an estate to a widow for her life, provided, she did not marry again, and, therefore, would hold such ■an estate an absolute estate during life.
And, the common law, it is admitted on all hands, I believe, never removed this doctrine at all, as to realty. If it be true, that it was ever received as to personalty, the time at which it was so received, must have been long ago, when personalty was nothing, and realty was every thing. Receiving it, as to personalty, and rejecting it, as to realty, at a time when this was so, would have gone but a very little way, towards accomplishing the object of the Roman law, the encouragement of marriage, and would, besides, have been a measure, in itself, of an extremely absurd self-inconsistency. Again, by the common law, a man was owner absolute, of his personalty; he might dispose of it as he pleased; but as to his realty, he was more or less fettered.
Now, these things being so, is it likely, that the common law would reject this doctrine as to realty, and yet receive it as to personalty ?
I say, then, that I doubt, whether this doctrine was ever,, to any extent, received by the common law. I admit, however, that there is high authority, for its having been received by that law, to a very limited extent. But certainly the far greater part has been rejected. And is it not of necessity,, that any principle, to be one that would reject this greater part, would have to be one that would reject the lesser part? It would rather seem to me, so.
We think, that the Court below was right, in holding thais there was no equity in the bill.
Judgment affirmed.