The Hawaiian gazette., 1872-07-17

S5N that with respect 70 VIE, OF a
stranger, a teStStor NAV give an annui-
ity to continue 81 long as she remains
single and unmarried, and "thst the
law recognizes in the husband thar Spe-
cieS Of interest in the widowboOd Of
the wife IS makes 1t lawful for him 10
restrain s second marriage.
\ writer in the Albany Law journal
SAYS very truly. that g conditions in re
Suaiut Of marriage have given most
trouble to our Courts, nor Is the law on
these questions quite Vet settled,
The Supreme Court, in the case Of
Parsons and wife vS. WiuSlow, 8 Mass.
loo, Ssy that a devise 10 the teSutorS
wife Of an annuity during her widow
hood and life. was held 10 cease upon
her second marriage by the teSutor'S
intention but it was further held, that
such intention being is tsgTorsm and
against the policy Of the law, as in re
StEtint OF marriage, Il could not take
effect, and that the wife was entitled
10 the annuity during her life time, not
wlthStanding her second marriage. the
Sjme not being expressly devised over,
except TO the reSiiuary legatee. who
was the heir at law to the teStator."
Jarman. in his valuable work on
Wills, says, vol. l, page $50, that 1t Is
impossible that the reader should re-
ceIye, without some degree Of jealousy,
a plan for reconciliug the cases where
this question Is involved where an en-
ineut Judge expressed an opinion that
they were 50 contradictory as TO justify
the Court in coming 10 any decision it
might think proper
Redfeld, second part of his work on
Wills, saws that il depends wholly up.
on the enquiry whether the condition
Is reasonable in itself. He saws fur
Their, that the question as TO what con-
ditjou> affecting marriage are valid,
must depend upon the circumstances
Of each particular case. and will be
very materially affected by the conSid-
Grafton now far the condition was IN
fairly applicable to the relation Of the
parties and the peculiar views and sit
uatiou of the donor and douee.'
Amidst the conflict Of authorities on
this subject. there Is no more Just rule
than that stated by Redheld, that the
conditions which affect marriage shall
depend upon the circumstances of each
particular case.
In this case, as appears by the evi-
dence. the husband had become diSSi-
pltsd and conducted his affairs reck-
IesSlv. 80 that his wife became alarmed
lest the estate might be ruined. In adj
dIrion. sue feared that he might allen
ate 1t from herself and their children,
as be 1T times had threatened to do.
In this frame Of mind. she was solicit
Gus 10 have the property secured from
what she feared would be entire loss.
and the condition Is inserted in the
deed of trust, that she shall lose the
one third interest for life IN the Hotel
premises If she mBrries. Does not the
husband attempt to exercise his control
TO au improper extent2 By the stat
ute. she was entitled to the same inter
est in the Hotel premises as given by
trust deed, during life and the husband
had mo- power TO defeat 1t. 1t may be
said that she could have made her cleo
ton aud surrendered her rights under
the deed of trust, and claimed her dow
er. but in that case. the advantages by
the deed of trust. of a home for the
children and more resources for the
Of the debts. and the ultimate
security of the estate for the children.
would have been endangered and per-
maps sacrificed.
Under the circumstances OF the case,
the deed of trust made a wise provis-
i0u for the wife and children, and l re-
gard This condition of forfeiture Of the
one third interest IN the Hotel premis-
Is. In case of marriage, as void.
It Is contended by the counsel on the
part Of the compliments, that the deed
d trust was evidently intended to
meet q present emergency or exIgency,
demanded by the peculiar circumstan-
ces Of the case.
While this is admitted, it may well
be asserted that its provisions we're
we'll calculated not only to secure the
from the bad management Of
Mr. Booth, and perhaps unwise aliena-
ton by him, but to save it for the sup
port Of the complainant and her child
rem. aud 10 secure the ultimate owner .
ship of the estate. free from incumb-
RANGES, TO the legal heirs. 1t Is said
that Mrs Booth was under unnatural
excitement, and therefore, she should
not be held to all the provisions Of the
Heed, but virtually only for those which
make for her benefit. 1t must be taken
together and sustained as a whole, I'M
e. there may be illegal conditions.
Il is claimed by the compliments
that Mrs. Long Is entitled to dover in
the estate. because there Is no relin-
7uishment Of dover in express terms.
In the case Of Adsit V. Adsit.
Johns Oh. Rep. $50, which the coun-
:eI has cited, and to which they have
the especial attention Of the
Court. Chancellor Kent says that the
sgscy Is not declared by any express .
words in the VIII. to be be in lieu Of .
lower. The inquiry then is, whether
.uch All intention in the testator Is 10 .
De- collected BY clear and manifest i'm
iIiczti0n from the provisions OF the .