
    JOHN J. HOGAN, Adm’r, &c., Appellant, v. MARY CURTIN, Adm’x, &c., Respondent.
    
      Wills—condition in restraint of marriage without consent—construction of—when condition precedent.—Marriage with consent, and marriage against consent.
    
    The will of testator contained the following clauses: “I give, devise and bequeath to my daughter, Mary Ann Curtin, the sum of $16,000, to be paid to her by my said executors upon her attaining the age of twenty-oue years, or upon her marriage, before she attains the age of twenty-one years, with the consent of her mother and my said executors, and in case my said daughter should die unmarried, before attaining the age of twenty-one years, then the share hereinbefore bequeathed to her shall go,” &c.,..... “and in the event of my said daughter, Mary Ann, marrying against the consent of my said executors and her said mother, then my will and desire is, that instead of the said sum of $16,000, hereinbefore bequeathed to her, she shall only receive from my said executors the sum of $5,000, in full of her share of the estate.”
    It also contained directions for the sale of real estate, investment of proceeds, and maintenance therefrom of said children, by the executors, “ until they respectively attain the age of twenty-one years, as aforesaid, and until my said daughter shall get married, with their consent and that of her mother, as hereinbefore stated also provisions giving the tuition, custody and control of his children, during their minority, to his widow, so long as she should remain unmarried, and directing that upon her marriage the executors should “ immediately take charge ” of them, and requesting that his exee- ' utors should be appointed, in such event; guardians of his said children. The evidence shows that testator’s said daughter married before she became twenty-one years of age, without her mother’s consent., but with the consent of the sole executor, and died before reaching such age, and that prior to her said marriage her mother (testator’s widow) had remarried.
    
      Held, in an action brought by the administrator of said daughter, that, in such case as above, the provision made for her consisted of a legacy of $5,000; that in case of her marriage before the age of twenty-one years, the joint consent of her mother and the executor to the marriage was a condition precedent; this, though the mother had previously remarried, and, under the will, the executor was thereupon given the custody and control of the children.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.
    
      Decided April 4, 1881.
    Appeal from judgment.
    
      The facts appear in the opinion of the court at special term, as follows:
    “Horace Russell, J.—This action is brought to recover the sum of $16,000, bequeathed to Mary Ann Hogan, by her father, Daniel Curtin, and to compel the administratrix to .sell or mortgage real estate to pay the bequest.
    “The conceded facts of the case 'are: that Daniel Curtin, a resident of the city of New York-, clied January 7, 1870, leaving a will, which was probated March 4. By his will he devised to his executors all his real estate (at Nos. 334 and 336 Bast Forty-Eighth street, and No. 210 Bast Fifty-Fourth street, in the city of New York), and bequeathed to them his personal property in trust, for the purposes mentioned in the will; one of those purposes was to pay the bequest, which is the subject of this action. The bequest to Mary Ann Curtin, of the sum of $16,000, was to be paid ‘ by my said executors upon her attaining the age of twenty-one, or upon her marriage, before she attains the age of twenty-one years, with the consent of her mother and my said executors. And in case my said daughter should die unmarried before attaining the age of twenty-one years, then the share hereinbefore bequeathed to her, shall go to and belong to my said sons, James and Francis, share and share alike. And. in the event of my said daughter Mary Ann marrying against the consent of my said executors and her said mother, then my will and desire is, that instead of the said sum of $16,000, hereinbefore bequeathed to her, she shall only receive from my said executors the sum of $5,000, in full, for her share of the estate.’
    “ Other bequests follow—to the testator’s wife, ■mother, and to various other persons, which it is not material here to state, because they have all been discharged.
    
      “ The eighth subdivision of the will is as follows : ‘ I also hereby authorize and empower my said executors to sell, convey, mortgage, or lease my said real estate, as in their judgment may be most beneficial for my said children, and to invest the proceeds thereof either in some safe and solvent bank at interest, or invest the same in improved real estate in the city of New York or Brooklyn, and out of the proceeds of said real estate to educate, support, and maintain my said children, and each of them, in a manner suitable to their condition in life, until they respectively attain the age of twenty-one years, as aforesaid, and until my said daughter shall get married with their consent, and that of her mother, as hereinbefore stated.’
    “The tenth subdivision of the will is: ‘It is also my will and desire that my said wife, Mary Curtin, shall reside in the house No. 334 East Forty-Eighth street, aforesaid, with my children, as long as she remains my widow and unmarried, and that she shall have the tuition, custody and control of my said children during their minority, as long as she remains unmarried and takes proper care of them. But if she shall die, or marry during the single life or non-age of any one of my said children, or if she shall treat my said children or any one of them, cruelly or unfairly, then it is my will and desire that my said executors shall immediately take charge of my said children and place them under the care of some suitable person to be approved by both of my said executors.’
    “ ‘ 11th. It is also my will and desire that my said executors shall, in the event of the death or marriage of my said wife, be appointed the guardian of my said children, until they respectively attain the age of twenty-one years.’
    “The third subdivision of the will is : ‘I give, devise and bequeath to my sons, James Curtin, now aged about ten years, and to Francis Curtin, now aged about nine months, and to their heirs and assigns, my said real estate of every nature and kind, which I now have, or which I may have at the time of my decease, equally, share and share alike.’
    “Patrick Hogan and Daniel Daly were named as the executors of the will. Letters testamentary were issued to them on March 4, 1870. On January 3,1871, Daly was released and discharged as executor under the will, and has never since acted as such. Hogan continued to act as executor until September 19, 1879, when he was superseded by order of the surrogate, and letters of administration with the will annexed, were issued to the widow, Mary Curtin, the defendant herein. Daniel Curtin left him surviving, his widow, Mary Curtin, two sons, and Mary Ann Curtin, an only daughter. Curtin left personal property of the value of about $500, and real estate of the value of about $40,000. That real estate remains unsold and unincumbered. In the year 1871, Mary Curtin, the widow of Daniel Curtin, married one David Curtin, with whom she has since lived.' On February 14, 1878, Mary Ann Curtin, the daughter of Daniel Curtin, married the plaintiff herein at Jersey City. She died May 29, 1879. Before her death she had been paid the sum of $500 on account of the-bequest to her under the will of her father. There is no property of the deceased Daniel Curtin in existence, except the real' estate, which is now of the value of $40,000. On July 7, 1879, the plaintiff, John J. Hogan, was duly appointed the administrator of Mary Ann Hogan, formerly Curtin, and duly qualified as such.
    “The question of fact in controversy in this case is whether Mary Ann Curtin married the plaintiff with the consent of her mother and the executors of her father’s will. If not with the consent of both executors and mother,; did she have the consent of the executor, and did the marriage of her mother render it unnecessary for the purposes of this bequest that Mary Ann Curtin should obtain the consent of her mother % The question of law is, whether, in case the plaintiff, as the administrator of Mary Ann Curtin, is entitled to judgment for the sum of $16,000, or the sum of $5,000, this court should order the administratrix to sell or mortgage the real estate for the payment thereof ? fío controversy is made against the plaintiff’s right to recover from the administratrix the sum of $5,000, less the $500 already paid, because Mary Ann Curtin was entitled to that sum upon her marriage, even without the consent of the executors or of her mother.
    “ After a careful examination of the evidence, I am of the opinion that Mary Ann Curtin did not obtain her mother’s consent to her marriage, but did obtain the consent of Patrick Hogan, at that time the only executor of her father’s will. While the will indicates the wish of the testator to transfer the custody and control of his children to his executors in case of his widow’s marriage, it nowhere says in terms, or says anything from which we could infer the intent of the testator, that the mother’s consent should not be necessary to the daughter’s marriage, if she married before arriving at twenty-one years of age, in order to entitle her to the full sum of $16,000 upon such marriage. The obtaining of the executor’s consent alone was, therefore, not enough. The condition upon which the bequest was based was, that she should obtain not only the executor’s, but her mother’s consent, before she could obtain the $16,000. The testator, it is true, wished the custody of the children transferred to the executors in case of his widow’s marriage, but did not indicate, even in such case, his wish that the condition of the bequest to his daughter should be relaxed. In point of fact, the executor did not assume the custody of the children on the widow’s marriage. As the condition of the bequest was not complied with, the bequest falls, and returns to the residuary devisees under the will. To the sum of $5,000 Mary Ann Curtin did become entitled upon her marriage, and it passed, of course, as a personal asset to her administrator. In that sum, less the $500 paid • to Mary Curtin in her life-time, he is entitled to judgment.
    “The only remaining question then is whether this court has the power to order the administratrix, with the will annexed as such, to sell or mortgage the real estate for the payment of this bequest. I am disposed to think it has. The real estate was devised by the testator to his executors for the payment of the several bequests contained in the will. It is too old and well settled a proposition of law to need even the citation of authorities in its support, that when a devisor has directed or authorized the conversion of his real estate, even for a particular special purposé, such as distribution, courts .are bound so long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted; and to the extent and for the purpose declared, it is to be treated as money and nót land. Here the devisor left but little personal property. There is no room for doubt of the testator’s intention. In the 13th subdivision of the will he empowered his executors to sell or mortgage his real estate to pay his debts and legacies.
    “The question whether or not-the other children of Daniel Curtin, who by the third subdivision of the will are made residuary devisees, ought to have been made parties to the record in order to have all persons interested in the construction of the will before the court, and so bound by its decision, was not argued before me orally, nor is it discussed in the written briefs submitted to me by counsel. So far as the present defendant is concerned, a defect of parties is waived—not having been taken by demurrer or answer (Code, § 499). But a purchaser or mortgagee under the judgment might wish to have the residuary devisees absolutely cut off.' That, of course, could not be done unless they are parties to the action. If this view should be accepted by counsel, the heirs can be made parties defendant by amendment, and permission to that effect is granted.
    “The plaintiff is entitled to judgment for the sum of $5,000, less the $500 received by Mary Ann Curtin in her life-time, with interest from the date of the marriage, Feb. 14, 1878, and the costs of this action.”
    
      James M. Smith and William Allen, for appellant, urged:
    I. The only question presented to the court for determination is a question of law. “Where the intent of a testator is to be ascertained from, the language of the will alone, or from the language and surrounding circumstances about which there- is no dispute, a question of law for the determination of the court alone is presented. It is the duty of the court to interpret the language of the will as read in the light of those facts (Underhill v. Vandervoot, 56 N. Y. 242).
    II. 1. The bequest is of $16,000, to the testator’s daughter Mary Ann, with a provision as to the time of payment. Under certain circumstances, the bequest is' reduced to $5,000, the difference going with the residuary estate. There is no express devise or bequest over. 2. The provisions as to the time of payment covered the three possible contingencies, viz.:—a. The daughter might reach the age of twenty-one years unmarried. 5. She might marry under that age with the specified consent, c. She might marry under that age, without the specified consent. The provision for payment, on her attaining twenty-one years, covered the first and last of such contingencies. The provision for payment on her earlier marriage with consent covered the second contingency. The possibility of her premature death unmarried, was covered by the devise or bequest over to the testator’s sons, taking effect, however, on their attaining the age of twenty-one years. There is no devise or bequest over, however, in the event of the marriage of the testator’s daughter. 3. The case in which the substituted bequest was to take effect was her marriage, “against the consent of my said executors and her mother;” on this the first question arises. The question is, whether she took the $16,000 bequest, or the substituted bequest of $5,000. This was a bequest of $16,000, liable to be defeated by a condition subsequent. The condition subsequent was the marriage of the legatee against the consent of the executors and the mother (Graydon v. Hicks, 2 Atk. 15). Did she violate this condition % This case has five possible modes in which the question may be raised. 1. She might marry without the affirmative consent of both. 2. She might m&rry in opposition to the express dissent of both. 3. She might marry with the affirmative consent of one alone—the other being silent and not affirmatively assenting. 4. She might marry in opposition to the express dissent of one—the other being silent, and not expressly dissenting. 5. She might marry with the affirmative consent of one, and the express dissent of the other. The case at bar comes under the third mode only. Is it a violation of the condition ? In order to defeat a devise or bequest by non-performance of a condition, it must be strictly construed, and in favor of the devise or bequest. The condition was her marriage against the consent of both. The consent of either justified the marriage. The third mode is not a violation, because, 1. There is a distinction between marrying without the consent of two persons, and marrying against the consent of two persons. In the first, she would have to obtain their consent affirmatively. In the second, the marriage with the consent of one, would not be a marriage against the consent of two. There is a difference between marrying without consent and marrying against consent (Fleming v. Walgrave, 1 Chan. Cas. 58; Creagh v. Wilson, 2 Vernon, 573; Reynish v. Martin, 3 Atk. 330). 2d. Irrespective of the propositions of law hereinafter advanced and qualifications made by the testator in subsequent portions of his will, to sustain the decision of the special term, “and” must be read “ or,” that is—that the condition is broken if the marriage is without the consent of each of them; or is against the consent of either the executor or the mother. “And” may in certain cases be read as “ or,” but not to defeat a devise or bequest made to child of the testator, nor to restrain marriage. It must be to support and carry out the intention of the testator (Roome v. Phillips, 24 N. Y. 468). Conditions in restraint of marriage, without consent, are so far discouraged by the law, that they are construed, strictly, in favor of the persons on whom such restraints are-laid (Greenleaf's Cruise on Real Property—Title XII. Est. on Con. c. 1, § 61, p. 19; Long v. Dennis, 4 Burr. 2052 ; Daly v. Clanrickarde, 2 Atk. 261; Bolton v. Humphries; 1 Story's Eq. Jur., Redfield’s ed„ [ninth] § 286, p. 267 et seq). There being no express or immediate devise or bequest over of the legacy in question, the condition is ineffectual. See section 287 of Story’s Equity Jurisprudence as to distinctions which, have been made in cases where there was a bequest, over, and cases where there is not a bequest over.. “ Where 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 terrorem only, and not to impose a forfeiture, since he has failed to make any other disposition of the bequest upon default in the condition” (Garret v. Pritty, 2 Vernon, 293; Wheeler v. Bingham, 1 Wils. 135 ; Parsons v. Winslow, 6 Mass. 169 ; 1 Jarman Wills, 4 Am. ed. 710 et. seq.; 1 Roper Legacies, 746; Ludlow v. New York & 
      Harlem R. R Co., 12 Bard. 440). “ There is another well-established principle, by which the bequest over is prevented from giving efficacy to the limitation under consideration. The principle is, that the bequest over, to give it the effect now under consideration, must be immediate, so as to take effect at the time of marriage” (Doe v. Freeman, 1 D. & E. 389 ; Parsons v. Winslow, supra). By the seventh subdivision of the will it will be perceived that the shares of the testator’s estate, real and personal, devised and bequeathed to the testator’s sons James and Francis, did not take effect until they attained twenty-one years of age, and in the event of the death of either without lawful issue, the share of the son so dying shall go to and belong to the survivor. See also eighth subdivision of the will, which provides for the executors selling the real estate, investing the proceeds, and out of the proceeds supporting and maintaining the children until the age of twen ty-one years. Thus, at the time of Mary Ann’s marriage, James was about eigh teen years of age, and Francis about eleven years of age, and hence, even if there had been an express bequest of the particular legacy to Mary Ann, to either of his two sons, as it was not to take effect at the time of the marriage, the limitation would be nugatory. The only devise and bequest over made in the case at bar was by the fourteenth subdivision of the will, “I give, devise, and bequeath all the rest, residue and remainder of my said real and personal estate of every name and nature to my said son James Curtin.” The bequest was of $16,000, liable to be partially defeated by a condition subsequent. ■ “Conditions are precedent or subsequent:—“Thus where a condition must be performed before the estate can commence, it is called a condition precedent. But where the effect of a condition is either to enlarge or defeat an estate already created, it is then called a condition subsequent (1 Greenl. Cruise Real 
      Property, Tit. XIII. Est. on Con. § 6 ; Finlay v. King’s Lessee, 3 Peters, 374). In Graydon v. Hicks (2 Atk. 15), Lord Chancellor Hardwicks says: “ Where the condition is become impossible, by the person dying, whose consent was necessary before the marriage, it is an excuse. I am likewise of the'opinion that this is only a condition subsequent, to divest the legacy, in case of a marriage before twenty-one.” The executors in that case were dead, at the time of the daughter’s marriage. In the case at bar, by the action of the mother the daughter was, by the terms of her father’s will, released entirely from her mother’s control, just as much as if she had died in place of married again, as will be perceived by the next point. The case of Peyton v. Bury (2 P. Will. 625), also holds that such a condition is a condition subsequent, and not a condition precedent. It may be claimed under some of the English cases, that where the legacy is charged on the lands, the condition imposed must be strictly complied with, to make the legacy a charge on the lands. That is the rule where the condition annexed to the devise or bequest is a condition precedent, and not a condition subsequent (Reynish v. Martin, 3 Atk. 334 ; Harvey v. Afton, 1 Atk. 443). Under the decisions of the court of appeals of this State, cited under the last point, a bequest, even where it is directly charged on the land, “is to the extent and for the purpose declared to be treated as money and not land.” It is well settled that there is an equitable conversion into personalty at the date of the death of the testator.
    III. On the marriage of the testator’s widow, the operation of the will is equivalent to a revocation of the trust reposed in her by the fourth clause, dispensed with her consent to her daughter’s marriage, and is conclusive on the question, that “and” is not to be read “ or ” to defeat the bequest to his daughter. Such an intent cannot be imputed to him. The motive for the bequest was his affection for his child, not the performance of the condition. “The ties which Connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them” (Smith v. Bell, 6 Peters, 68; Hoppock v. Tucker, 59 N. Y. 202 ; Mann v. Mann, 14. Johns. 1; Hilliard v. Kearney, 1 Bush. [N. C.] Eq. 221; Lines v. Darden, 5 Fla. 51). The testator classes his widow’s marriage with her death. Can it be seriously contended that notwithstanding the directions of the will, the testator still intended that the mother of Mary Ann, his daughter, should control her in her marriage ? Suppose that Mary Ann had gone to her mother and asked her consent to her marriage, and the mother had said no ! Surely that would have been control, and control in a matter the most vital and important to every young woman. “Control” (substantive) means— check, restraint, power, authority, superintendence, government, command. “Control” (verb) means—to place or keep under restraint, to have under command and direction, to restrain, rule, govern or direct. . -
    
      Samuel G. Courtney, for respondent.
    
      
       It does not appear, from the findings of the court below, that such marriage was against her mother’s consent.
    
   By the Court.—Freedman, J.

Granting that the construction of wills the rule is that where the ■effect of a condition is either to enlarge or to defeat an estate already created, it is deemed a condition subsequent ; that in the case of a condition subsequent, where the estate is not given over, it will be considered as only in terrorem; that a condition in restraint of marriage, without consent, must be construed strictly in favor oí the person on whom the restraint is laid ; that the general intent of the testator is to prevail, and that that intent is to be gathered not from a part, but from the whole of the will, so that an intent inferable from the language of a particular clause may be qualified or changed by other portions of the will, evincing' a different intent,-—granting that all these propositions are sound in law in the abstract, and should be made to govern, if applicable—I am nevertheless of the opinion that upon the facts as found, and as to which there is no dispute, the learned judge below arrived at the proper conclusions.

The bequest of $16,000 to Mary Ann, was made to depend on the happening of either of two contingencies, viz. : on her arriving at the full age of twenty-one, or on her marrying before that time with the joint consent of her mother and the executors named in the will. Neither of these contingencies occurred, for she died when she was about eighteen, and she had then been married to the plaintiff for more than one year without the consent of her mother. In the case of her marriage before twenty-one, the joint consent of her mother and the executors to the marriage was a condition precedent. This follows not only from the interpretation of the particular clause creating the bequest, but from the construction of the will as a whole.

- Having married without such joint consent, and died before she arrived at the prescribed age, the provision made for her consisted of a legacy of $5,000, for which, sum judgment has been awarded.

The judgment should be affirmed, with costs, upon the opinion of the learned judge below.

Sedgwick, Oh. J., and Truax, J., concurred. 
      
       The question whether the testator’s daughter, had she lived to the age of twenty-one years, would, under the facts, be entitled to $16,000, was not before the court.
     