Year: 1873

pouuty from marrying WIN IOrDlOden per-
sons by name, or with the inhabitants Of
such town, even in his own country. A
restraint of marrying any foreigner of a
particular country is at least as reas enable
as against marrying one of different re-
ligion; and this would apply as we'll to
Scotland, the established religion of which
is different from the Church of England,
and the country is governed by different
law, though united under the same crown.
1t was argued, on the other side, that this
is restraint extending to a whole nation,
and that too forming an integral part Of
the kingdom. If the restraint went to
every person in England, it would clearly
be void upon general principles of policy.
Then why should not the same principles
extend to Scotland? The fact of the tes-
tator having resided in England could not
affect the question of policy. The re-
straints which have been supported in par
ticuiar cases, such as having consent of
parents or guardians, were considered more
as regulations to prevent improvldent mar
rlages but this goes to restrain marriages
whether provident or improvident, which
is unreasonable, and injurious to the in
terests of the public, which is concerned
to promote provident marriages, or at least
not to prohibit them. The case of re-
straining marriage with a person Of differ
ent religion is distinguishabe, not as re-
straint, bnt as regulation, of marriage.
The difficulty of determining in what faith
the children are to be brought up, and the
domestic disputes consequent thereupon,
may class this under the latter head
There may also be distinction on the
ground Of public policy between prohibit
tions of marriage with member of a for
eign nation and with a member of a ma
tion forming part of the kingdom.


The Court was only called upon to GER
tify its opinion on this case without giving
any reasons, so we are at liberty to conjec-
ture how far both the will and the decision
on it were influenced by the unpopularity
of Scotchmen in England toward the end
of the last and the beginning of the pres
ent century. The case shows that the law
is or was different according as the prop
erty Is real or personal the rules as to
the former being our own, while we have
borrowed the rules as to the latter from
the civil law. An interesting argument
might be maintained upon the question
whether, if marriage with a Scotchman
could not, marriage with an lrlshman
could be prohibited. But the Court held
that marriage with a Scotchman could be
prohibited, and not only was the son of the
marriage excluded from the Inheritance.
but also the husband was not permitted to
enjoy the estate for life as tenant by what
is called courtesy. Thus the case in effect
decides that the courtesy of England does
not extend to Scotland.


a case of great hardship occurred few
years ago where a testat0r, providing
that his daughter did rot marry before she
arrived at the age of twenty-eight," gave
her $1,000. a gentleman wrote to the
testator asking his consent to the marriage
of his daughter with the writer, and the
testator wrote in answer that he gave his
qualified CONSENT" but must hear from
his daughter before he could make it alb O.
lutte. The daughter wrote to her father
that she had given her full consent. Then
the father was taken i'll and died, and a
few months afterward the daughter, who
was then only twenty>one, married this
gentleman, who claimed the legacy, insist
ing that the condition annexed by the will
was waived by the consent given to the
marriage. 1t was held that this was a
valid and reasonable condition, that it had
not been waived or discharged testamenta-
rily, and that, if it could be waived or
discharged otherwise than testamentarily,
it had not been waived or discharged. The


law would Of course say that this lady
might have waited till she was twenty
eight, and that if she could not wait, or
the gentleman would not let her wait, they
must content themselves with love, and
give up the $1,000 Another case decd-
ed, with more apparent reason, that a
requlsltlon to marry with consent, imposed
by testator on his daughters, then spin
sters, did not apply to daughter who
afterwards married in the testator's life
time, and was widow at his death. The
contrary construction would have produced
the absurdity OF obliging the legatee tc
marry again In Older to provide for hel
children, if any, by her first husband. In
an old case the devise was on condition
that the devisee married the testator's
granddaughter, and no doubt was enter
tanned OF the validity of it but the judge
thought that the granddaughters refusal tc
marry the devisee was dispensation Of
the condition, as it reasonably ought to be
A condition not to marry papist has
been held valid, but condition not to mar
ry man of particular profession, or q
man who is not possessed of a landed rem
tai of 9500a year, has been said to be toe
general to be legal. A gift during celibacy
is good, but general condition in restraint
of marriage would be bad. A gift during
widowhood is good, but condition i'm
posed by testator on his widow not te
marry again must be accompanied by g
gift over in default of compliance with the
condition, or it will be deemed to be n
terrorem only, and the widow may disre
gard it if she has sufficient resolution tt
brave the vague fear of disobedience to 3
dead husband.


Many wives and a few husbands hav,
desired their consorts to marry again aftel
their own deaths. One of the best knowr
instances of the kind was that of Queer
Carolina. We have all heard what sh,
said to King George H., and what h
answered to her, and she replied to him


Among some example lately published b.
contemporary Of s. curious wills F" is tina


of lady who expressed her earnest wisl


that her darling husband should MARI.


" a nice pretty girl" good housewife