THE LIBERTY OF BEQUEST.

Evening Star, Issue 5588, 4 February 1881, Page 2

THE LIBERTY OF BEQUEST.

The ‘ Daily News ’ furnishes the following report of a case—Turner v, Turner—heard before Yice-Chancellor Sir James Bacon in tho Chancery Division of the High Court cf Justice on November 13, and referred to recently in our columns j A novel and interesting question was raised in this case—namely, whether a condition la a will that the owner of a life estate in real proparty under the will, with remainder to his children, should forfeit bia .estate in tho event of his marrying a domestic servant, was a valid condition and binding In law; or whether it was illegal and void as being in restraint of marriage. Miss Msry Elizabeth Turner* spinster, of Hopton, Mirfield, Yorkshire, devised the real estates in question to trustees upon trust for her father in life, and then to her brother John William Turner, for life, with remainder to faia first and other sons in tail, and remainders over. She then bequeathed the proceeds of htr residuary personalty In trust for her brother Jehu William Turner absolutely, “ But,” she continued, “if my said brother shall marry during my life without my consent in writing” (which did not happen), “or if he shall already have married” (which was not the fact), “or shall hereafter marry a domestic servant, or a person who is, or has been, or who shall at any previous time have been a domeJic servajut," then she declared the real estate ■ should go in favor of persons who wore the present plaintiffs ; and tho personalty was to go to the owner of a part of the same real estates. The will was proved in February, 1863, The testatrix’s father died in September, 1871, and on the 17th of December, 1872, the testatrix’s brother, John William Turner, who was a solicitor, having come into possession ef the real estates as life owner, married Mary Ann ; e Sowcrby. Oa the 20th of July, 1870, John William Turner died, leaving two children. The plaintiffs claimed the real estates on the ground that J. W. Turner had forfeited them by having married a domestic servant. The defendants, one of whom was one of the children, and the others were Mary and Annie Tamer, the widow and executrix c-f J, W- Turner, and her coexecutor, denied that Alary Annie Sowcrby was, or had been, a domestic servant; but their counsel, after evidence, preferred to rest their case on the legal ground that the estates had not become forfeited, by reason that the condition, being in restraint ef marriage, was illegal ard void. Sir H Jackson, Q C., M P„ and Mr WoLtenholme argued the case f ;r the plaintiffs, and relied upon the authority of a decision in the time of Lord KUenbo;dugh and the Court o' Quean’s Burch, that a condition voiding a devise in tho event of the donee ir arrying a Scotchman was held valid. Mr Hemming, Q.C., and Mr B. B. Rogers, fgr the dtf in dants, contended that after an estate in b nd had onca vested in possession it could uot be

dcvcetid by a condition in restraint of marriage with a member of a particular classol the ct mrnrn ity. A y*.-»ipw-. «n 'th* Ug"l viewj-depieu by Lonl E I'. ’ >u \l, f<t purple treated at*» * • 'g* Sir EE, J ick.iou was hoard in reply. The \ median collor, having tskoa tunc to consider the case, delivered j alp men t subsequently. His lord. hip cist rved that upon the question of fact the specific and circumstantial statements of the plaintiffs’ witnesses were conclusive. They stated that, having bad opportunities for observing, they knew that Mary Annie Sower by was, both during the lifetime of the testatrix’s father and afterwards, a domestic servant, whether called a housekeeper or not; and that she was a domestic servant when she married John William Turner. The only question, then, was whether tho condition was illegal ancl void, as being in undue restraint of marriage. It wrs conceded that rules governing the disposition of peisonal property did not apply to realities, and hence the only mmining point was—whether the condition was valid as applicable to real estate. Upon this question there was, in the opinion of the Court, no reasonable doubt. There was no reason for saying that a testator might not declare his gift forfeitable on the marriage of the donee with any particular Individual by name, wfth a parson of any particular nation, or with a member of any partic rlar class. The point had, in fact, been decided by distinct, express, and binding authority in the case of Perrin v. Lyon (9, East’s Reports), where lands were devised to the testator’s di lighter in fee, with a limitation over in case she married a Scotchman, and the daught<fr having masried a Scotchman, the devhe <rver was held to be valid. His I rdship was opinion, therefore, that the plaintiffs had eatSrolished their case, and had made good their title to the property they ola’med.