Newton v Marsden
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1862 |
| Date | 21 March 1862 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 1094
HIGH COURT OF CHANCERY
S. C. 31 L. J. Ch. 690; 6 L. T. 155; 8 Jur. (N. S.) 1034; 10 W. R. 438. Allen v. Jackson, 1875, L. R. 19 Eq. 632; 1 Ch. D. 406.
Will. Condition. Restraint on Marriage. Widow.
[356] newton v. marsden. March 8, 21, 1862. [S. C. 31 L. J. Ch. 690; 6 L. T. 155; 8 Jur. (N. S.) 1034; 10 W. E. 438. Allen v. Jackson, 1875, L. E. 19 Eq. 632 : 1 Ch. D. 406.] Will. Condition. Restraint on Marriage. Widow. By a will certain trusts were declared for the benefit of the widow of testator's nephew and her children, under which the widow was entitled to certain rents of real estate, and to annuities charged primarily on real estate, and to be made up, if necessary, out of personal estate, with a condition subsequent that the trusts for the benefit of the widow should cease if she married. Held, that the condition was valid. A special case. William Frost, by his will, dated the 1st of November 1859, appointed Caroline Derbyshire, the widow of his nephew, John Derbyshire, and certain other persons, 2J. &H. 357. NEWTON V. MAKSDEN 1095 executrix and executors of his will, and devised certain real estates to the said Caroline Derbyshire for life, remainder to testator's great-nephew, William Derbyshire (son of the said John Derbyshire), charged with legacies of 50 each for four other children, John, Joseph, Caroline and Annie, of the said John Derbyshire; and in case either of the said legatees should die under twenty-one, the legacies to go over to their respective next of kin, exclusive of their husbands or wives and of the said Caroline Derbyshire. The testator devised other real estates to his said trustees, upon trust out of the rents to pay to testator's nephew, Thomas Frost, an annuity of 8 for life, and the residue of the rents to the said Caroline Derbyshire (widow), until his great-nephew, the said William Derbyshire, should attain twenty-one, if she should so long live, for the maintenance and support of herself, [357] and the maintenance, education and support of the said William Derbyshire : and on his attaining twenty-one, then upon trust out of the rents to pay to the said Caroline Derbyshire (widow), an annuity of 6 for life, and subject thereto for the said William Derbyshire absolutely. The testator declared similar trusts of certain other parts of the said trust estate, except that the names of brothers and sisters of the said William Derbyshire were inserted in them respectively in place of the said William Derbyshire and in the event of any of the said great-nephews and great-nieces dying under twenty-one leaving issue, the issue were to take, and in the event of any of the said great-nephews and nieces dying under twenty-one without leaving issue, the survivors were to take. And the testator bequeathed his residuary personal estate upon trust to make up any deficiency in the rents for payment of annuities and, subject to certain legacies, unto and between his said great-nephews and great-nieces in equal shares, and in case of their death under twenty-one to their next of kin exclusive of husbands and wives and of the said Caroline Derbyshire (widow), and of one Ann Ashton. And the will contained the following clause:- "And I declare that if the said Caroline Derbyshire (widow) shall marry again, then that the trusts hereinbefore contained for payment to her, during the infancy of the said William Derbyshire, Frederick Derbyshire, John Derbyshire, Caroline Derbyshire and Annie Derbyshire, of the rents and profits of the hereditaments and premises hereinbefore devised to or in trust for them respectively, and the trusts for payment of the said several annuities hereinbefore given to or in trust for her, the said Caroline Derbyshire (widow), shall thenceforth absolutely cease and be void." The testator died on the 27th of April 1860. [358] The said Caroline Derbyshire intermarried, on the 2d of April 1861, with the Defendant, Benjamin Marsden. The following questions were submitted :- First. Whether, by the said marriage, the trusts for payment of rents to the said Caroline Marsden daring the infancy of the great-nephews and nieces had ceased and become void 1 Secondly. Whether, by the said marriage the trusts for payment of annuities to the said Caroline Marsden had ceased and become void ? Mr. Hislop Clark, for the Plaintiffs the trustees. Mr. Archibald Smith, for Defendants Marsden and wife. This is a condition subsequent in general restraint of marriage, and is invalid. It is admitted on one side, that if the person sought to be restrained had been the testator's widow, the condition would have been good, and on the other, that if she had been a spinster it would have been bad. The principle of the law is public policy, whereby conditions in restraint of marriage are generally void. An exception is a husband in the case of his own wife, or a wife in the case of her own husband, the ground of the exception in the first case being the interest a man has in his wile's remaining a widow; Bacon's...
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