The opinion of the Court was delivered by

The precise question presented here, has not, that we know of, received any judicial determination, as yet, in this state, which may be regarded as settling any rule to guide us on the subject. If in England, whence we derive our principles of jurisprudence, a rule, decisive of the question, had been settled anterior to, and had obtained down to our revolution, it might be considered as governing this case, unless the peculiarity of our local circumstances should render it expedient to adopt a different one.

The testator, by his will, after giving to his wife, the complainant, all his household and kitchen furniture, for her sole and separate use, declaring it expressly to be his intention, that this bequest, and that which he should thereinafter devise and bequeath to her, should be in full satisfaction and lieu of dower, gave to her “ the yearly sum of six hundred dollars, for and during her natural life, if she should so long remain his widow, to be paid to her quarterly, for her sole and separate use, by his executors, thereinafter named, out of the incomes of his estates, real *583and personal; and if she should marry again this quarterly payment to cease.” The testator had one child, a son, by his wife, the complainant, for whom he made a provision by his will, separate and distinct from that made for his wife; and appointed the respondent, John G-ethen, sole guardian of the person and estate of the son, until the latter should attain the age of twenty-one years. The testator then, after making these and other bequests and devises, gave the residue and remainder of his estate, real and personal, to Allen A., Burt, and others, to be equally divided among them, share and share alike, &c.

The annuity of .six hundred dollars was paid to the wife, for some years after'the death of the testator, as long as she remained a widow; but Laving united in marriage with Bobert MTlvaine, the co-complainant, the respondent became doubtful whether he would be justified in continuing the payment thereof to her or her husband after the marriage, and accordingly refused to do so, until it should be judicially determined that she was entitled to receive the annuity bequeathed to her by her late husband, notwithstanding her subsequent marriage.

According to G-odolphin on Legacies, part I. page 45, ch. 15, sec. 1, all conditions against the liberty of marriage were in his day considered unlawful: if, however, they were only such as did not prohibit marriage altogether, but tended merely to restrain it to time, place, or person, then they were not to be absolutely rejected. He cites the civil law alone in support of this doctrine: and Lord Thurlow, in Scott v. Tyler, 2 Dick. 717, 718, 719, says, that the *civil law ruled all the earlier cases of in His words are: “ The earlier cases refer, in general terms, to the canon law, as the rule by which all legacies are to be governed:” and he then very distinctly admits, that all conditions in restraint of marriage were, by that law, rejected as void; but seems to think, that towards the latter end of the seventeenth and beginning of the eighteenth century, the canon law, instead of being mentioned as furnishing the rule which governed money legacies, that conditions thereto annexed, importing a restraint upon marriage, were treated as unfavourable, and contrary to the common weal and good order of society; and that finally, such conditions, when viewed as conditions subsequent, -were considered and held by the Court of Chancery to be merely in terrorem, instead of pronouncing them, in plain terms, void. To this, however, an exception was established, that whenever the testator directed that the legacy, in the event of a breach or non-performance of such a condition, should go over to another legatee, the condition became available and obligatory; not, however, because it was to be more favoured or countenanced in such case, than in others, but be*584cause it was thought that the Court was bound to protect the interest of the party in whose favour the ulterior limitation was made. Swatton v. Grimes, (2 Vern. 857); Wheeler v. Bingham, (3 Atk. 367); Malcolm v. O‘Callaghan, (2 Madd. 353). But still a mere gift of the residue to a particular person, has been held not to be such a limitation over, unless the testator has also directed that the legacy shall fall into the residue, in case of breach of the condition. Wheeler v. Bingham, (3 Atkyns, 364, 368); Lloyd v. Branton, (3 Merivale, 118). • A condition subsequent in the case of a legacy not exclusively charged on land, as tending to prevent marriage, may therefore be regarded according to the settled law of England, as not affecting the right of the legatee to receive the legacy, whether he continue to observe the condition or not. A distinction, however, seems to have been taken between a condition subsequent in restraint of marriage, and a mere, limitation during widowhood. Upon this latter ground, it would seem as if Lord Hardwicke ruled the case of Richards v. Baker, (2 Atk. 321). There Mr. Richards bequeathed to his wife his goods, furniture, &c., in or belonging to his house at Edmonton, “so long as she continued his widow, and no longer.” And it was held, by Lord Hardwicke, though there was no specific limitation over of the goods, &c., to any other, in the event of the wife’s subsequent marriage, but a disposition of the residue of his personal estate generally, that she was entitled only to the use of the goods during her widowhood. But upon the former ground, Sir Thomas Plumer, in Marples v. Bainbridge, (1 Madd. 590; American ed. 317,) where the testator bequeathed to his wife, “ should she survive and continue unmarried, all his goods, estate and effects, at the time of his death, to use, occupy and Possess same during *the term of her natural life; and from and ionmediately after her death,” he disposed of the same, determined that the words imported a condition subsequent, and not barely a limitation of the gift during her widowhood; and therefore, according to the cases, as he conceived, which had been decided on the subject, the condition was only to he regarded as in terrorem; and that the breach of it, by the wife, did not work a forfeiture of her right to tbe gift under the will. His honour, in delivering his opinion, observes, “It has been argued, that this is not a condition, but a bequest till the second marriage, but that is too refined a distinction; nor will the Court feel disposed to put such a construction on the will, as will occasion a forfeiture. The language imports a condition, just as much as if the words were, if, or provided, she continued unmarried. It must be considered as a condition subse*585quent. The testator’s wife, therefore, is entitled to this property during her life.” .

Now, if it be possible to make widowhood a condition subsequent, in any case, upon the observance of which the wife shall continue to enjoy and receive the gift of the husband by his will, it must be so considered in the case before us. The annuity, in the first place, is given and directed to be paid to the wife expressly for and during her natural life ; and then are superadded words, the most appropriate of all others for making a condition, “if she shall so long remain my widow.” The very Avords are used here, which Sir Thomas Plumer seems to mention, as importing a condition beyond the possibility of a doubt. Godbolt on Legacies, however, page 45, has been cited in opposition to the claim of the plaintiffs. This author, after laying doAvn the broad proposition, that the laAV rejects all conditions made against marriage, or that are impediments thereto, remarks, “ yet an annuity bequeathed by a man to his wife for so many years, if she shall remain after his death a Avidow and unmarried, it is good.” For this he cites the civil law, Digest De conditione et Demonst, without referring to any English adjudication in support thereof. He seems to think that an annuity Ayith such a condition annexed to it, stands on .a different footing from a gift of a gross sum of money, or any specific article in kind; because, in speaking of the annuity he says, “it is an annual and successive legacy, congruous to a vidual state.” The force, however, of this reasoning, is not very obvious, because the ground upon which such conditions are rejected, is, their tendency to restrain and prevent marriage, when it is the interest of the commonwealth to encourage it; and it is very clear, that giving a legacy in the form of an annuity, with such condition annexed to it, does not obviate the ground of the objection, more than in the case of a legacy consisting of a gross sum of money.

Besides the circumstance of the legacy here being given upon a condition subsequent, in restraint of marriage, it is, perhaps, not unworthy of notice, that the testator directs it to be paid “to her, *for her sole and separate usewhich would rather seem to render it somewhat doubtful, at least, whether he intended all further payment thereof should cease immediately upon her subsequent marriage; because it is difficult to conceive why he should have directed it to be paid to her, for her sole and separate use, unless it were Avith a vieAV to enable her to receive it Avithout the consent and control of her subsequent husband, in case she should thereafter marry. We, therefore, upon the AYhole phraseology of the Avill in this case, are inclined to think, that the wife of the testator is entitled to *586receive the annuity of six hundred dollars given to her by the will notwithstanding her marriage. It is not only a' stronger case in her favour than that of Marples v. Bainbridge, decided by Sir Thomas Plumer, but greatly more so than Parsons and Wife v. Winslow, (6 Mass. 169,) where it was held by the Supreme Court of Massachusetts, that a bequest of an annuity to a wife “ during her widowhood and life,” was to be considered in terrorem merely; and that the wife was entitled to the annuity during her life, notwithstanding her second marriage ; the same not being expressly bequeathed over, otherwise than to the residuary legatee, who was the heir at law to the testator.

It has been argued, that because the annuity is charged here upon the real estate of the testator, the rule of the civil law contended for by the plaintiffs, is not applicable; that it is confined, at most, to legacies made payable out of the personal estate. This argument, however, has been, as we think, very fully and satisfactorily answered, by showing, that according to the terms of the will, and the operation of the law upon them, the annuity must be paid out of the personal estate, if sufficient, and that the real estate can only be resorted to, in the event of the personal estate being insufficient. Hence, according to the authorities on the subject, the annuity not being exclusively charged on the real estate, the same rule of decision is applicable to it, as if it had been made payable out of the personal estate alone. Kelly v. Monck, (3 Ridgway’s P. C. 234); Reynish v. Martin, (3 Atk. 330-335; s. c. 1 Wilson, 130).

The following decree was made.

“ This cause coming on the sixth and ninth days of April, 1838, to be heard and debated in the presence of counsel learned in the law, for the plaintiffs and for t£e defendants, and also for the guardian of the daughter of Jane W1 Jones, deceased, formerly Armstrong, and also for Mrs. Burns and Mrs. Burke, legatees in the will of the testator, the substance of the plaintiffs’ bill appeared to be that the said Allen Armstrong, the testator, left a will, duly proved, whereby ho gave, devised and bequeathed to ’w^°'w'> one fh® plaintiffs, in *fnll satisfaction and lieu of dower, the sum of six hundred for and during her natural life, if she should so long remain his widow; to be paid to her quarterly by his executors, out of the income of his estates, real and personal; and if she should marry again, this yearly payment should cease. And that he also by his said will and codicils, gave the sum of six thousand dollars, after payment of his just debts and funeral expenses, to his executors, to purchase a house; and until they should pur*587chase such house, gave the sum of three hundred dollars per annum to- pay the rent of a house for the said Ellen Rosalie, until the testator’s son, Allen, should attain the age of twenty-one years, if she should so long remain his widow — conditioned that she should dwell therein, and keep house, and not otherwise; which rent was not to commence until sufficient moneys were collected and invested to pay that and all other ’annuities mentioned in the will of the testator: and in case she should marry again, the possession of such house to be surrendered: and appointed executors of his said will: and that the said John Gethen is now the sole acting executor and trustee under the said will: and'that the testator left three children at the time of his.death, which happened on the 22d day of March, 1832, viz. Hetty Maria, who since died unmarried and without issue — Jane W. who married a certain William H. Jones, which said Jane is since dehd, leaving her husband and one daughter, her only issue now surviving, of whom the said W. II. Jones is now duly appointed guardian, which two children were by a former wife of the testator; and left by his second marriage with the plaintiff, Ellen Rosalie, one son, Allen Armstrong, the only issue thereof, and appointed the said John Gethen to be the sole guardian of his'person and estate, until he should be of the age of twenty-one : and that the plaintiffs, the said Ellen Rosalie Armstrong, and Robert L. M'llvaine, intermarried rvith each other on the sixth day of June, 1837: and that the said John Gethen, had made to the plaintiff Ellen Rosalie, since the death of the testator, various payments on account of the said annuity; but not so much as is due to her, up to June 30th, 1837, but had made no payments whatever of the whole or any part of the said sum of $300 for house rent, nor had he ever expended the whole, or any part of the said sum of $6000 in the purchase of a house; and that under a just construction of the will of the testator, the said Ellen Rosalie is entitled to the said annuity of $600 during her life; and also to a house of the value of $6000, or to the yearly sum of $300 during her widowhood; and also to all arrears of the said annuity of $600; and of the said sum of

And the bill prayed, that the said John Gethen should set forth a full, just and true account of all payments made by him to the said Ellen Rosalie, and to all other the devisees, legatees, and annuitants named in the will of the testator; and might be to make of the said of $600 during the life of the *said Ellen Rosalie, to the plaintiffs; and also regular payments of the said $300 per annum house rent, or buy a house not exceeding $6000 in value for the natural life of the complainant; and also all arrears of *588the said sum of $300 house rent: and the scope of the plaintiffs’ bill was to be relieved.

Whereto the counsel for the defendant alleged, that by the answer of the defendants it appeared, that the said plaintiffs were not entitled to' any part of the said annuity of $600, since the marriage of the said Ellen Rosalie, and that no arrears up to June 30th 1837, were due thereon: and that they were not entitled to the said sum of $6000, nor to a house to be bought therewith; nor to the yearly rent of $800, nor any part thereof; and that no .arrears 'were due thereon; and that the estate was not, and never had been sufficient to pay the said house rent, nor buy the said house, according to the terms of the will of the testator : and that this Court had no jurisdiction of the matter : and that all the parties interested had not appeared.

Whereupon, and upon debate of the matter, this Court doth decree — That the said defendant, John Grethen, executor and trustee under the will of the said Allen Armstrong, should pay to the said plaintiff R. L. MTlvaine, all arrears of the said annuity of $600 per annum, due since the last payment thereon, to wit, since June 30th, 1837, and interest thereon, taking that the same payments ought to have been made quarterly; and that he continue to pay in equal quarterly payments on the 24th days of June, September, December, and March, in every year during the life of the said Ellen Rosalie, to her, the said Ellen Rosalie, free from the debts, engagements, and control of her said husband, the said annuity of $600. And in case the defendant shall not make the said -quarterly payments, or shall not pay up the ■arrears as aforesaid, then the plaintiff shall be at liberty to apply to this Court, for a sale of a sufficient part of the said real and personal estate, or to have a sufficient part of the said real and personal estate set- apart for securing to'the plaintiffs the growing payments of the said annuity during the life of the said Ellen Rosalie. And that the defendant shall pay to -the plaintiffs their costs of suit out of the estate of the said Allen Armstrong.”

Cited by Counsel, 5 Wharton, 366; 8 Watts, 499; 10 Id. 181; 2 Jones, 197.

.Cited by the Court below, 11 Casey, 103; 2 Wright, 423.

Commented on by Kennedy., J., 2 -Barr, 302.

Cited by the Court, 10 Barr, 354; 3 Grant, 310: 10 Wright, 341, and followed 10 Barr, 77.

See also, 10 Watts, 350; Brightly, 88.