Greene, Deceased; Greene v Kirkwood

• Jurisdiction: Ireland
• Judgment Date: 05 June 1894
• Date: 05 June 1894
• Docket Number: (1894. No. 18.)
• Court: Court of Appeal (Ireland)

Greene, Deceased;

Greene

and

Kirkwood.

M. R.

Appeal.

(1894. No. 18.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Will — Condition in restraint of marriage — Gift over in the event of a daughter marrying beneath her.

A gift over of real estate in the event of the devisee marrying a man “beneath her in life, that is to say, below her in social position,” is good.

Evidence having been taken as to the social position of the devisee and her husband at the time of the marriage, it was held that the gift over took effect.

Adjourned Summons.

This was an originating summons to take the opinion of the Court upon the construction of the will of the Rev. Godfrey Samuel Greene, deceased.

The will of the testator, dated 25th January, 1889, was as follows:—“The freehold land in my possession, known as the near and far White Hill, Peggy's Island, and the Madam's meadow, I leave and bequeath, share and share alike, to my two daughters unconditionally. My chattel property, consisting of money in house and bank, money lent on mortgage, and promissory notes, stock, crop, and farm implements, cars, carriages, and harness, household furniture, and all other chattel property whatsoever, I leave and bequeath to my wife unconditionally. The freehold land in possession of tenants I leave and bequeath for the term of her life to my wife, and after her death, share and share alike, for the term of their lives, to my two daughters, and to their issue, as they shall appoint, and failing issue of survivor, I leave and bequeath said freehold, share and share alike, to my two sons and to their issue, as they shall appoint; and I appoint my said wife and my two daughters my joint executors and residuary legatees.” On 21st May, 1890, the testator executed the following codicil:—“If at any time my daughter Sarah shall marry a man beneath her in life, that is to say, a man below her in social position, I hereby revoke my will regarding her, and what ought to have been her share I leave and bequeath, share and share alike, between my two sons; and if at any time my daughter Alice shall marry a man below her in life, that is to say, below her in social position, I hereby revoke my will regarding her, and what ought to have been hers, I leave and bequeath, share and share alike, to my said two sons.”

The testator died on 9th June, 1893, leaving his wife and his two sons, Robert Saunders Greene and Godfrey George Greene, and his two daughters, Sarah and Alice, him surviving. On 28th September, 1891, his daughter Sarah married, without the knowledge of her family, William John Kirkwood, who was then an office apprentice in a mill. The marriage having become known after the testator's death, his two sons claimed the share of their sister Sarah under the will, on the ground that she had forfeited it by marrying W. J. Kirkwood, and instituted these proceedings against their sisters Sarah and Alice for a declaration to that effect.

The facts of the case as disclosed in the affidavits and in the evidence of W. J. Kirkwood and Sarah Kirkwood, who was examined in Court, are sufficiently stated in the judgment of the Master of the Rolls.

Ronan, Q.C., and Henry, for the plaintiffs.

Kenny, Q.C., and Bates for the defendant, Sarah Kirkwood.

The following authorities were referred to during the argument:—Keily v. Monck (1); Egerton v. Brownlow (2); Clavering v. Ellison (3); Duggan v. Kelly (4); Fillingham v. Bromley (5); Bullock v. Bennett (6); Hodgson v. Halford (7); Jenner v. Turner (8); Viscount Exmouth v. Praed (9); Duddy v. Gresham (10).

Ronan, Q.C., and Henry, for the plaintiffs.

Kenny, Q.C., and Bates for the defendant, Sarah Kirkwood.

The Master of the Rolls:—

[Having read the will and codicil, proceeded as follows:—]

The devisee, Sarah Barker Kirkwood, was unmarried at the date of the will, and also at that of the codicil. The will is dated the 25th January, 1889, the codicil, 21st May, 1890, and her marriage took place on the 28th September, 1891. The testator lived till the 9th June, 1893.

The first question then is, whether the marriage which took place in the testator's lifetime, though after the codicil, assuming it to be such a marriage as is aimed at in the instrument, can raise the question at all, since, for some purposes, a will or codicil dates from the death of the testator, and the codicil here speaks of the marriage as a future event (“shall at any time”). I am quite clear that it can, and does, raise the question, for it is only “with reference to the real and personal estate comprised in it,” that, under the 24th section of the Wills Act, the will is to operate as if executed immediately before the death of the testator. Lord Justice Turner, in Bullock v. Bennett (1), says of these words:—“I understand this to mean, not with reference to the objects of the testator's bounty, who are to take the real and personal estate, but with reference to the real and personal estate which is to be taken by those objects.” I had occasion recently to consider the authorities bearing on this question in King's Trusts (2), and there is no doubt about the law on this branch of the case. A marriage in the testator's lifetime, but after the date of the codicil, is within the terms of it. The point for decision is therefore narrowed to the construction and legal effect of the clause in question in relation to the actual marriage between Sarah Barker Greene and William John Kirkwood.

The words are, “if at any time my daughter Sarah shall marry a man beneath her in life, that is to say, a man below her in social position, I hereby revoke my will regarding her.”

It is to be determined whether the condition introduced by this language is one to which the law will give effect, and if so whether the facts bring the marriage in question within the condition.

There is little doubt but that the testator intended, or expected, the condition to operate as a condition subsequent, if at all; that is, to defeat a previously vested estate. He did not think that the event would happen in his lifetime, and the estate conferred by the will was immediate. In express terms, the event was to “revoke” the gift in the will, that is, to defeat it if it had vested. And it is now unnecessary to inquire how, if it had been a simple condition, it would have operated in the events which have happened, the divesting event having occurred before the estate could vest, and whether in that case it would have become a condition precedent, preventing the possibility of vesting, or whether, which is probably the correct view, the vesting and divesting would have both occurred in that order, but both in the same indivisible instant of time. This inquiry is unnecessary, since the event is not merely a condition, but by the terms of the codicil revokes the devise ab initio, where it happens in the testator's lifetime, and before any interest has been acquired.

Is such a condition illegal? It is to be borne in mind in considering this question that it arises in reference not to personal but to real estate, as to which the rules not of the civil but of the common law prevail. A condition connected with a devise of lands imposing a partial restraint upon marriage is not on that account invalid, certainly if accompanied by a gift over as here, and it can hardly be said that the condition here, is in any view equivalent to a total prohibition of marriage. Keiley v. Monck (1), to which I referred during the argument, is an authority that a restriction may be actually in total restraint of marriage, though not expressly or literally so; and that such a restriction would be invalid even as regards realty, or a fund produced by realty. The proviso there was “or in case my said married daughters, or any of them, shall intermarry with any person or persons, not being at the time of such intermarriage seised of an estate in fee, or of a freehold perpetual, of the clear yearly value of £500 sterling, over and above every charge and incumbrance that shall then affect the same, that then the said legacy hereby bequeathed to such daughter so offending shall be forfeited as to her and them.” The Lord

Chancellor, Lord Clare, there says, at p. 261:—“I take the principle to be settled that the law allows reasonable restraints upon marriage; but that conditions prohibiting marriage, or leading to a probable prohibition of marriage, are condemned upon principles of sound and general...