Mr. Chief Justice Alvey
delivered the opinion of the Court:
The will is not by any means artistically drawn; it is greatly wanting in the use of clear and perspicuous terms to express the intention of the testator, and to define with precision the rights that were intended to be conferred upon the beneficiaries of his bounty, in the disposition of a considerable estate. We think, however, with respect to the questions now presented, there is no great difficulty in discovering the testamentary scheme of the testator, as manifested in the several clauses of his will.
There were no answers filed by the defendants to the bill; the facts being undisputed, the question was raised and decided upon a demurrer to the bill. The construction of the will as contended for and alleged in the hill was sustained by the court below, and a decree was passed accordingly. There are two questions presented and necessary to be determined, in order to ascertain what right and estate Mrs. Alexander, the complainant, took under her father’s will,— she having married about a year after the death of her father, the testator, and during the lifetime of the widow, the mother of the complainant.
The first of these questions is, what estate did the daughter, Sarah J. (now Mrs. Alexander), take under the first clause of the will, upon the death of her mother, if any ? and the second question is, whether the terms "so long as she remains unmarried" constitute a condition in restraint of marriage, and therefore void, leaving the estate devised and bequeathed to the daughter unaffected by such condition?
1. The devise and beqpest of the real and personal estate to the widow are, by express terms, to her for life, and this [432]*432limitation is not enlarged by the snperadded power to sell and convey certain lots or parcels of the property in fee simple, at her discretion, for her support and maintenance. But in regard to the next clause, that making a devise and bequest to the daughter, Sarah J., of all the property undisposed of by the widow at the time of her death, there is no express limitation of an estate, but it is declared that the daughter, Sarah J. (so long as she remained unmarried), should occupy and fill the relation, as to the real and personal estate of the testator, held under the will by his wife aforesaid, with all the rights, powers, and privileges, implied or granted to his said wife thereby. This language, though unusual to be employed in a will to limit an estate, where exact and precise terms should be used, would seem to admit of but one interpretation, and that is, that the daughter, Sarah J., should be substituted to the place of the widow, and was invested with a life estate in the property, with all the rights, powers, and privileges implied or granted to the widow. But this estate, thus vested in the daughter, with the powers and privileges annexed, is intended to terminate and be defeated upon the marriage of the tenant for life. She acquires the estate and will hold it for life, unless she, at any time during her life, may determine to get married, upon which event the estate is inténded to become divested and extinct, without any limitation over whatever. In such an event what becomes of the estate before the death of the widow, the son, and the daughter, the event upon which the' remainder takes effect in the grandchildren, if there be such then living ? Whatever may be the effect of this condition as to marriage upon the estate given the daughter, we think there can be no question but that she takes a life estate in the property devised and bequeathed to her, which became vested from the death of the testator, and came into enjoyment from the death of her mother, the widow of the testator.
2. But the question next presented is, whether this life estate in the daughter, Sarah J., with the powers and privileges annexed, is defeated or forfeited by her marriage after the death of her father, and before she was let into the pos[433]*433session and enjoyment of the estate, though there be no gift over? or is the condition of the marriage of the daughter simply in terrorem, and therefore void and without effect to defeat the estate for life?
What constitutes a condition as distinguished from a limitation of an estate, and the effect of the condition if it be one contrary to the established principles or policy of the law, is often a question of some nice discrimination, and hence there is some apparent diversity of opinion upon the subject. The courts have not always been of one opinion as to the precise line of distinction between a condition and a limitation in the devise of an estate.
In the old but authoritative work, known as Sheppard’s Touchstone, edition by Hilliard, chapter on Conditions, pp. 132, 133, the doctrine deduced from the old authorities is thus stated:—
“ If the matter of the condition tends to provoke or further the doing of some unlawful act, or to restrain or forbid •a man the doing his duty; the condition for the most part is void * * * and hence also it is that such conditions as are against the liberty of law, as that a man shall not marry, or the like, are void, and hence also such as are against the public good. * * And in all these cases if the conditions be subsequent to the estate the condition only is void, and the estate good and absolute; if the condition be precedent, the condition and the estate both are void, for an estate can neither commence nor increase upon an -unlawful condition.”
The mere use of certain terms that are ordinarily used’; -to express conditions or limitations are not always a sure test of the true nature of the estate devised, but may be taken,, in the light of the context with which they are used, as ex-; pressing sometimes a condition and sometimes a limitation.1
As laid down by Washburn in his work on Real Property, vol. 2, p. 459, the only general rule, perhaps, in determining whether words are words of condition or of limitation, is 1hat when they circumscribe the continuance of the estate, and mark the period which is to determine it, they are [434]*434words of limitation; bnt when they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate they are words of condition.. And this accords with the view of the Supreme Court of the United States, as expressed in the case of Finlay v. King, 3 Pet. 346. It was there said that “ there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The-same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the-act on which the estate depends, must be performed before-the estate can vest, the condition is of course precedent, and unless it be performed, the devisee can take nothing. If,, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.”
We think, upon the authorities, that it is clear the devise-to the daughter is upon a condition subsequent; and the question is reduced to this, whether the condition, “ so long as she remains unmarried,” operates in restraint of marriage- and is therefore void,— leaving the devise and bequest to-the daughter for life unaffected by the condition.
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Mr. Chief Justice Alvey
delivered the opinion of the Court:
The will is not by any means artistically drawn; it is greatly wanting in the use of clear and perspicuous terms to express the intention of the testator, and to define with precision the rights that were intended to be conferred upon the beneficiaries of his bounty, in the disposition of a considerable estate. We think, however, with respect to the questions now presented, there is no great difficulty in discovering the testamentary scheme of the testator, as manifested in the several clauses of his will.
There were no answers filed by the defendants to the bill; the facts being undisputed, the question was raised and decided upon a demurrer to the bill. The construction of the will as contended for and alleged in the hill was sustained by the court below, and a decree was passed accordingly. There are two questions presented and necessary to be determined, in order to ascertain what right and estate Mrs. Alexander, the complainant, took under her father’s will,— she having married about a year after the death of her father, the testator, and during the lifetime of the widow, the mother of the complainant.
The first of these questions is, what estate did the daughter, Sarah J. (now Mrs. Alexander), take under the first clause of the will, upon the death of her mother, if any ? and the second question is, whether the terms "so long as she remains unmarried" constitute a condition in restraint of marriage, and therefore void, leaving the estate devised and bequeathed to the daughter unaffected by such condition?
1. The devise and beqpest of the real and personal estate to the widow are, by express terms, to her for life, and this [432]*432limitation is not enlarged by the snperadded power to sell and convey certain lots or parcels of the property in fee simple, at her discretion, for her support and maintenance. But in regard to the next clause, that making a devise and bequest to the daughter, Sarah J., of all the property undisposed of by the widow at the time of her death, there is no express limitation of an estate, but it is declared that the daughter, Sarah J. (so long as she remained unmarried), should occupy and fill the relation, as to the real and personal estate of the testator, held under the will by his wife aforesaid, with all the rights, powers, and privileges, implied or granted to his said wife thereby. This language, though unusual to be employed in a will to limit an estate, where exact and precise terms should be used, would seem to admit of but one interpretation, and that is, that the daughter, Sarah J., should be substituted to the place of the widow, and was invested with a life estate in the property, with all the rights, powers, and privileges implied or granted to the widow. But this estate, thus vested in the daughter, with the powers and privileges annexed, is intended to terminate and be defeated upon the marriage of the tenant for life. She acquires the estate and will hold it for life, unless she, at any time during her life, may determine to get married, upon which event the estate is inténded to become divested and extinct, without any limitation over whatever. In such an event what becomes of the estate before the death of the widow, the son, and the daughter, the event upon which the' remainder takes effect in the grandchildren, if there be such then living ? Whatever may be the effect of this condition as to marriage upon the estate given the daughter, we think there can be no question but that she takes a life estate in the property devised and bequeathed to her, which became vested from the death of the testator, and came into enjoyment from the death of her mother, the widow of the testator.
2. But the question next presented is, whether this life estate in the daughter, Sarah J., with the powers and privileges annexed, is defeated or forfeited by her marriage after the death of her father, and before she was let into the pos[433]*433session and enjoyment of the estate, though there be no gift over? or is the condition of the marriage of the daughter simply in terrorem, and therefore void and without effect to defeat the estate for life?
What constitutes a condition as distinguished from a limitation of an estate, and the effect of the condition if it be one contrary to the established principles or policy of the law, is often a question of some nice discrimination, and hence there is some apparent diversity of opinion upon the subject. The courts have not always been of one opinion as to the precise line of distinction between a condition and a limitation in the devise of an estate.
In the old but authoritative work, known as Sheppard’s Touchstone, edition by Hilliard, chapter on Conditions, pp. 132, 133, the doctrine deduced from the old authorities is thus stated:—
“ If the matter of the condition tends to provoke or further the doing of some unlawful act, or to restrain or forbid •a man the doing his duty; the condition for the most part is void * * * and hence also it is that such conditions as are against the liberty of law, as that a man shall not marry, or the like, are void, and hence also such as are against the public good. * * And in all these cases if the conditions be subsequent to the estate the condition only is void, and the estate good and absolute; if the condition be precedent, the condition and the estate both are void, for an estate can neither commence nor increase upon an -unlawful condition.”
The mere use of certain terms that are ordinarily used’; -to express conditions or limitations are not always a sure test of the true nature of the estate devised, but may be taken,, in the light of the context with which they are used, as ex-; pressing sometimes a condition and sometimes a limitation.1
As laid down by Washburn in his work on Real Property, vol. 2, p. 459, the only general rule, perhaps, in determining whether words are words of condition or of limitation, is 1hat when they circumscribe the continuance of the estate, and mark the period which is to determine it, they are [434]*434words of limitation; bnt when they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate they are words of condition.. And this accords with the view of the Supreme Court of the United States, as expressed in the case of Finlay v. King, 3 Pet. 346. It was there said that “ there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The-same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will, shows that the-act on which the estate depends, must be performed before-the estate can vest, the condition is of course precedent, and unless it be performed, the devisee can take nothing. If,, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.”
We think, upon the authorities, that it is clear the devise-to the daughter is upon a condition subsequent; and the question is reduced to this, whether the condition, “ so long as she remains unmarried,” operates in restraint of marriage- and is therefore void,— leaving the devise and bequest to-the daughter for life unaffected by the condition. As will be observed, the condition is general and without qualification; and, as we have said, there is no gift over, upon the-happening of the event creating the condition.
Every testator in the making of his will is supposed to-intend to dispose of his entire estate, and the presumption is against his intention to die intestate as to any part of it,, unless such intention is plainly expressed or necessarily implied, There is nothing on the face of the will before us that justifies the supposition that the testator contemplated' intestacy as to any portion of his estate, or that any provision of the will would produce such a result. If he had intended that the devise to his daughter should operate as a limitation of the estate given her, that is, that she should have the estate until marriage, and upon marriage it should terminate* [435]*435it is fair to suppose that he would have made a disposition of the estate over after the occurrence of the event of marriage. But he gave the estate for life, and it is not improbable that he supposed that the condition that he prescribed, that she could hold and enjoy the estate only soi long as she might be williúg to remain unmarried, would be effectual to keep her in a state of single life or celibacy;’ and hence he made no devise over to meet an event that be did not suppose would occur. Otherwise he must have contemplated that from the event of marriage of the daughter to the time of the death of the widow, son, and daughter, when the devise over to the grandchildren would take effect, the estate would remain undisposed of, except as provided by the law of descent and distribution. He would, as to that interval of time, with respect to the estate devised and bequeathed to the daughter, have died intestate. This result he clearly did not contemplate in the scheme of his will.
It is certainly true that both by the common law and the civil law, all conditions annexed to gifts or devises generally prohibiting marriage, are void, and where there is an attempt to fetter or restrain marriage by unreasonable conditions, such conditions or restrictions are inoperative and void, as being against public policy, or, as declared by Lord Chancellor Thurlow, in the leading case of Scott v. Tyler, 2 Wh. & Tud. Lead. Cas. Eq. 429, “ they are treated at the same time as unfavorable, and contrary to the common weal and good order of society.” And not only conditions actually prohibiting, but also any such as lead to probable restraint of marriage, are void. It would seem to be clearly settled, according to the law as administered in the courts of England, that if a condition in restraint of marriage is general, and also subsequent, then the condition is altogether void, and the party, devisee or legatee, retains the interest given to him or her, discharged of the condition; that is, supposing a gift of a certain duration, and an attempt to abridge or defeat it by a condition in restraint of marriage generally. the condition is at least prima facie void, and the original gift remains. Morley v. Rennoldson, 2 Hare, 571. And [436]*436this will be the case either with regard to a devise of land or the bequest of a legacy. Ib.; 2 Wh. & Tud. Lead. Cas. Eq. 188. The law in England upon this subject appears to be somewhat relaxed, according to a few recent cases, wherein it has been held, that a bequest during celibacy is good; but this is founded upon the deference accorded to the intention of the testator.
We have instances of such cases in Heath v. Lewis, 3 D. M. & G. 954; Webb v. Grace, 2 Phil. 701; also Jones v. Jones, 1 Q. B. Div. 279. These cases, as we have said, proceed upon ¡the ground of the clear intention of the testator. But the [question of intention is not the controlling element of the case in such gifts. If public policy is to be allowed to have effect, and that is what the general rule is founded upon, both in the common and civil law, the mere form of expression, .or the general effect of the restriction of the previous estate given the devisee or legatee, is not material to the result. The general effect is the same, whatever the form of expression may be. As said by Jarman on Wills, vol. 2, p. 573 (5th ed.) : “Public policy is equally violated by a condition the natural effect of which is to promote celibacy, whether the testator intended it so to operate or not; but if it is a question of intention, it is certainly more agreeable to general rules to collect that intention from the whole context than to insist on its being manifested by a particular form of words.” This is said by Jarman by way of criticism upon the cases to which we have referred, and particularly upon the case of Jones v. Jones, supra. The language of the court- in the case of Comm. v. Stouffer, 10 Barr (Pa.), 350, is substantially to the same effect. It was there s-aid, that if a restraint on marriage were essentially contrary to the spirit of the English or American jurisprudence, it must be equally invalid, whether put in the form of a condition in avoidance of the vested bequest, or of a limitation enduring only so long as the legatee should remain unmarried. Eor, in either case, the effect is the same, and the legatee is compelled to choose between remaining unmanned and forfeiting the legacy.” It- would seem, therefore, that in case [437]*437of such conditional limitation or restriction, the literal effect of -which is to cut down and defeat a pre-existing estate for life or in fee, and make it determinable upon the event of marriage, the condition or restriction should be regarded as merely in tevrorem, and therefore should not be allowed to operate a forfeiture of the estate devised or bequeathed.
The modern doctrine of the English courts upon this subject, as in some respects modified by the preponderance of American decisions, is very fully and clearly stated by Mr. Justice Story, in his work on Equity Jurisprudence, in sections 276 to 201. In section 280 the learned author says:—
“ The general result of the modern English doctrine on this subject (for it will not be found easy to reconcile all the cases) may be stated in the following summary manner. Conditions annexed to gifts, legacies, and devises, in restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restrain of marriage generally, then, indeed, as a condition against public policy, and the economy and morality of domestic life, it will be held utterly void. And so, if the condition is not in restraint of marriage generally, hut still the prohibition is of so rigid a nature, or so tied up to peculiar circumstances, that the party upon wThom it is to operate is unreasonably restrained in the choice of marriage, it will fall under the like consideration. Thus, where a legacy was given to a daughter, on condition that she should not marry without consent, or should not marry a man who was not seized of an estate in fee simple of the clear yearly value of £500, it was held to be a void condition, as leading to a probable prohibition of marriage.” And in section 287 the author says:
“ One distinction is, between cases where, in default of a compliance with the condition, there is a bequest over, and cases where there is not a bequest over, upon a like default of the party to comply with the condition. In the former ease the bequest over becomes operative upon such default, and defeats the prior legacy. In the latter case (that is, [438]*438where there is no bequest over), the condition is treated as ineffectual, upon the ground that the testator is to be deemed to use the condition in ierrorem only, and not to; impose a forfeiture, since he has failed to máke any other disposition of the bequest upon default in the condition.” See cases cited in support of the text quoted.
Without referring to the mzmerous cases upon the subject, we shall, for the purpose of showing the various terms employed by testators, which have been construed to operate in restraint of marriage, refer to a few American cases where the question has been considered. In the case of Otis v. Prince; 10 Gray, 581, a testator devised real estate to his grandson in fee, and by a codicil directed the estate to be held in trust to pay over to him quarterly the net income of said estate, so long as he shall remain unmarriedj and, in the event df his marriage or his dying unmarried, to convey the estate to his heirs. It was there held that this devise operated a restraint upon marriage and was against the policy of the law, and that the gift or devise over was void. In the opinion delivered by Judge Thomas, it was said: “ By the original will the estate is given to the plaintiff in fee simple. The codicil devises the estate in trust to pay the net income to the plaintiff so long as he shall remain unmarried, and, in the event of his marriage or dying unmarried, to convey it to his legal heirs.
“ The condition is subsequent, and the restraint upon the marriage of the grandson is without limitation as to time or person. It is therefore clearly against the policy of the law, and void, unless there is a valid gift over/' citing Parsons v. Winslow, 6 Mass. 169; Lloyd v. Branton, 3 Meriv. 108; Morley v. Bennoldson, 2 Hare, 571; 1 Jarman on Wills, 843; 1 Sto. Eq. Jur., Secs. 280, 288.
In the case of Maddox v. Maddox, 11 Gratt. 804, it was held that “ where a condition is in restraint of marriage generally, it is deemed to be contrary to good public policy, at war with sound morality, and directly violative of the true economy of social and domestic life. Hence such a condition will be held utterly void.” The same principle has been [439]*439fully recognized and announced in the case of Hogan v. Curtin, 88 N. Y. 162, 171. In that case it was held that a condition prohibiting marriage before 21, without consent, is by the common law valid and lawful. But that it is otherwise of conditions in general restraint of marriage, they being regarded as contrary to public policy and the common weal ■and good order of society.
In the case of Waters v. Tazewell, 9 Md. 291, there was a •deed conveying leasehold property in trust for the sole and separate use of a feme covert. It contained a provision that in case the husband should survive the wife, he and his assigns should have the rents, issues, and profits " during Ms natural life only, to and for his own use and benefit, provided Tie sTioidd continue unmarried,- after the death of his wife then living, and from and immediately after his decease,” then over. It was held that this proviso was in general restraint of marriage, it being a condition subsequent, and was therefore void, and the husband’s life estate was not terminated by a second marriage.
The same principle is maintained in the previous case of Binnerman v. Weaver, 8 Md. 517. And to the like effect are the cases of Randall v. Marble, 69 Me. 310, and Stilwell v. Knapper, 69 Ind. 558. See also 2 Pomeroy Eq. Jur. 441, and note.
Without referring to other authorities, upon the construction of the will of Joseph C. Gr. Kennedy, deceased, we are clearly of opinion that the devise and'bequest to the daughter of the testator, after the death of the widow, created a vested life estate in the daughter, and that the condition that she should hold the estate only so long as she remained unmarried, without limitation over, was an undue and unlawful restraint of marriage, and therefore void; leaving the life estate devised and bequeathed to the daughter, Sarah J., now Mrs. Alexander, unaffected by the condition or restriction. It follows, therefore, that the decree of the court below must be affirmed; and it is so ordered. Decree affirmed.