
    WILLS.
    [Jefferson (7th) Circuit Court,
    December Term, 1911.]
    Norris, Pollock and Metcalfe, JJ.
    Joshua Moores, Exr. v. Olive Holmes Gwynne et al.
    Legacy Rendered Invalid by Conditioning its Enjoyment ppon the Separation of Husband and Wife.
    A condition in a will making the receipt of a legacy dependent on a separation of husband and wife is contrary to public policy and void, and the legatee takes the legacy absolutely.
    
      Mansfield & Merryman, for plaintiff.
   METCALFE, J.

The plaintiff, as executor and trustee of the will of Sarah Viers Croskey, seeks a construction of a clause in said will.

The fourth item in the will giv§s one-half of the residue of the testator’s property to her brother, James M. Viers, during his life. Then follows this provision:

‘1 The remaining half of the residuum of my property shall be invested in a fund, the income of which shall accumulate from year to year and be added to the principal thereto for and during the natural life of Lenore Boyer Viers, or so long as she remains the wife of my brother, Basil W. Viers; then at her death, if my brother Basil W. Viers be living, or at her legal separation from my brother Basil W. Viers, if such occurs, my brother, the said Basil W. Viers, shall receive the accumulated income of this one-half of the residue of my estate absolutely, and thereafter shall receive the income of this said fund for and during his natural life.”

By the provisions of this clause Basil W. Viers can only receive the legacy therein given upon the happening of one of two events, that is to say, at the death of his wife or his separation from her. She must either die or he must get a divorce. He is offered a pecuniary inducement to separate from her. A condition in a will designed to effect the separation of husband and wife is contrary to public policy and is absolutely void. The authorities are practically unanimous in so holding. Conrad v. Long, 33 Mich. 78; Hawke v. Euyart, 30 Neb. 149 [27 Am. St. Rep. 391]; Cooper v. Carson, 3 Johns. Ch. (N. Y.) 521; Cooper v. Remsen, 5 Johns, Ch. (N. Y.) 459; 2 Jarman, Wills 524; 29 Am. & Eng. Enc. Law (1 ed.) 445.

We, therefore, hold that the provision in item four of the will making the legacy to Basil W. Viers dependent upon his separation from his wife is void and he takes the legacy absolutely. 1

Norris and Pollock, JJ., concur.  