New-York daily tribune., 1851-09-29
Contract. or Devises in Restraint Of Marriage.

Contract. or Devises in Restraint Of Marriage.
The recent decision Of the Supreme Court
OF PENNSYLVANIA II the case OF the Comm n"eaHh
rs. Stoufe7 has excited a good deal Of attention
among the members Of the legal profession IN
asrruch rs this decision, which declares ihai
conditions II restraint Of marriage are '4ill "a
deylses of real estate" seems to be at variance
with the principles and the reasoning ADOPTED oY
the Judges of the same Court IL the cases OF
Middleton and Uite IS Rice, (BRICHTLET'S y. P.
Cases 80, and Hoopes -. D'mdos, 10 Barr %
In the case Of Middleton 1t was ably argued
by Mr.. Meredith that all contracts, legacleS or
devises in restraint OF marriage Were VOID, and
Judge Kennedy in his opinion emphaticauy de-
cldes that such conditions are contrary not only
to the law and order OF our nature, but Likewise
contrary to sound policy, and therefore ought to
be considered Illegal ard void" SO IN the case
of Hopes, Chief Justice Gibson himself declares
the condition to be IN tsYrorsm and VOID.
In the case of The Commonwealth VS. S'oiGer'
the testa;or devised his "real and personal es-
tate to his wife provided She remained widow
for life" The case was tried before Hon. Ellis
Lewis at Lancaster and his opinion. which is
given alongside of Judge Gibson's IN Bars Re-
ports. seems to be entirely in accordance with
the opinions in the first two cases mentioned,
and the reasoning curlously IN contrast with that
of the subsequent opinion of the Che Justice.
We hay. ONLY room for an extract from eacd.
Judge Lewis contends that all conditions against
the liberty Of marriage are unlawful, as being
restraint Oh the natural liberty OF mankind. aud
that
Marriage is wise regulation, IL harmony wits
nature and religion and is the only efficient preyen-
tive OF RIGHTEOUSNESS. The happiness OF tne parties,
and the Interests of society require that II should pe
free from either coercion or restraint BOnus 10 pro-
cure and contracts and conditions to restrain are
alike forbidden. Ii Is the appropriate regulation OF
that great instinct OF nature which was designed Dy
the Creator to repenlsh the cdrih.
The principle OF reproduction stands next IN impor-
tauct TO It's eder-b0rn conealye, sefpreservatlon.
and Is equally fundamental law OF existence
Not man alone, but the whole
animal and vegetable kirgdom unGer an imPe-
rious necessity to obey It's mandates.
The principles OF mOrallty-the policy
OF the nau0n-the doctrines OF the common law-the
law Of Nature and the law of God unite IN condemn,
ing as VOID the condition attempted to be imposed
BY this testator upon ms WIDOW
On the other hand, Judge Gibson says
"Jtwould be- extremely difficult 70 say, Why bus
band should not be 81 liberty 10 leave homestead to
his wife without beng COmpeUed 10 let her snare IL
with successor 10 hls bed and TO use II rs nest 10
hatch brood Of strangers TO his blood such is not
the policy Of the statute of wills. 1t may be the
present policy Of the country to encourage repro
duc.ion-thOueh the time viii certainly come Wncn
excess of population VIII be terrific evil here. as 1t
IS elsewhere"
The decision We presume did not turn on the
distinction between devise or legacy OF rel or
personal estate This could not have been the
case. for the Court long since decided that
legacy with devise of residue, makes The legacy
charge on land. e Dai l3l. 6 Bin. 395) This
was the fact IN the case OF Middleton. These
conflicting opinions only afford another lllustra-
ton ofthc GLORIOUS uncertainty OF the law