In re Proving the Last Will & Testament of Anonymous

This is a case of construction sought in a proceeding for probate. The will is entitled to probate. Testator by his will bequeaths and devises one moiety of his residuary estate, both real and personal, to his executor on trusts for .the benefit of his natural son, an infant under fourteen years of age. The other moiety is bequeathed and devised by testator to Ms executor on trusts for the benefit of testator’s legitimate daughter, who was then either a widow or a married woman. The remainders over are ' to the son and daughter, or failing them to issue. It appears by the will that the unnatural mother of the infant son had abandoned him, or surrendered or committed the child to his natural father, and that thereafter she had married some one other than the cMld’s father and disappeared. The son was baptized a Catholic and in baptism received the name of his natural or de facto father. In tMs situation testator’s daughter, without her father’s knowledge or consent, formally adopted the infant as her own, and she gave him her husband’s name. It is stated in the will that this adoption was pursuant to the law of tMs state. Whether the daughter was moved by compassion, affection or religious scruples, to adopt the natural son of her father does not appear. That such adoption was without her father’s consent and that he wishes the infant to bear his name does appear in his will. Testator’s will nominates Ms daughter as the guardian of his infant son. In a separate clause of the will, quite distinct from the words of gift, testator provides, in substance, that such adoption of the infant son is to be undone within six months after testator’s decease, unless undone before, and if testator’s daughter fails to have rescinded and annulled and made void and of no

The first question made on the will is, Are such provisions of the will valid or void? and next, if void, Does the daughter take free of 'the void conditions imposed on the different testamentary gifts to her ? It is apparent to me that the adoption under the laws of this state must be assumed for the purposes of this cause to be regular and complete, as the maxim, “Omnia praesumuntur rite et solenniter esse acta donee probetur in contrarium ” applies to any such judicial act of record. It establishes the relation of parent and child. It is also apparent to me that the clause of forfeiture of the testamentary gifts to the daughter, in trust or otherwise, is in the nature of a condition subsequent and not precedent. Thus it is that the daughter’s interests, both legal and equitable, are to be taken as vested. When I speak of testamentary “ gifts,” it is in-accordance with common law usage, although it is well known that there is in law no gift without delivery, and what is really meant by a “ testamentary gift ” is only the right of succession to property of the defunct. Counsel state that they are unable to find any precedent for this case exactly in point and they cite none, but they argue that by analogy the condition imposed on the “ gifts ” to testator’s daughter is void. I must consequently resolve for myself the questions presented for construction.

In all modern systems of law which I have examined “ conditiones turpes ” or immoral conditions, sometimes called “ conditions against morality,” are considered as not inserted in legacies or other testamentary gifts (Tompkins & Jencken, Modern Roman Law of Holland, 225; 1 Troplong, Donations Des Testaments, 308; Pothier, Oeuvres, vol. 5, p. 503). This was so in the classical Roman Law (D. 28, 7, 9) and is still so wherever the Civil Law obtains. Code Napoleon, art. 900. Few other departments of the common law owe more to the civilians than does that concerning conditions. The common law governing legacies and testamentary gifts is also, in the main, but a transcription of the Civil Law. The application alonéis new.

The early common law concerning conditions will be found stated in Bracton, Coke, Sheppard’s Touchstone and Perkins’ “ Profitable Book.” All these writers recognize that a condition to omit a duty or against the law, “ contra legem,” or public policy is void. Bracton, f. 19; Coke, 66a, 206a, 206b, 219a; and see Mr. Butler’s note 99, Coke on Litt.; Sheppard’s Touchstone, 132; Perkins, § 722. These writers in the main restate the Roman law without much, if any, variation. Coke only is regarded as a source of the common law, but all are authoritative in that law. Nothing since has been added to our modern law except the particular applications. Very late adjudications, both in England and with us, depend solely on these early commentators. Matter of Beard, 1 Ch. 1908, 383, 386. It is most apparent that the definitions and distinctions of the common law of conditions are, in the main, taken out of the Civil Law.

With this brief review of our existing law of conditions, we may next consider the modern application of the principles already announced. Mr. Viner, in his Abridgment, gives us the common law cases in his day bearing on conditions against or contrary to law. 5 iner, Abr. 99. That a condition contrary to the donee’s duty or legal obligation, or contra bonos mores, is void is there stated generally as it is in other adjudications now binding in this state. Lord Hardwicke in Earl of Chesterfield v. Janssen, A. D. 1750, 1 Atk. 301; Whiton v. Harmon, 54 Hun, 552 , 555; Wright v. Mayer, 47 App. Div. 604 , 606; Cruger v. Phelps, 21 Misc. Rep. 252 , 265; Potter v. McAlpine, 3 Dem. 108 , 125; Matter of Haight, 51 App. Div. 310 , 313. It is apparent to me from the authorities just cited that a

This being so, as the obnoxious condition is a condition subsequent, it is as if it had never been written in the will. Had this been a condition precedent other principles of law might arise for our consideration. Taylor v. Mason, 9 Wheat. 325 , 350. But it is a condition subsequent with which we are dealing, and the maxim of the Roman or Civil Law obtains: “ Gon'ditiones contra leges vel contra bonos mores pro non scriptis habentur.” In other words, the condition subsequent in question, being contrary to law and public policy, is to be regarded as not written in the will. Whether an invalid condition ought in ethics to be taken as not written in a will, or as invalidating the legacy itself, is a very old dispute among lawyers. In classical times the Proculians contended that the Roman or Civil Law of legacies ought to be the same on this point as the Roman law of contracts, and the legacy void if the condition was void. But the School of the Sabinians triumphed on this point, and in the Roman law the legacy was absolute and the invalid condition treated as if not contained in the will. Grotius, however, among the moderns, disputed the rightfulness of this conclusion. Manuel de la Jurisprudence de Hollande, v. 2, ch. 18. The Code Napoléon followed the Roman law on this

There is one point left unnoticed by counsel on the argument, but which I cannot pass over. The testator in his will obviously desired his son to bear his name, and that was a fixed testamentary intention, almost an obsession on his part which is not to be lightly regarded in this court. What are called “ Name and Arms ” clauses in wills or deeds of gift are entirely valid at common law, but the expression of a condition to bear testator’s name, or arms, requires a high degree of technical skill or it will fail. In this respect this will before me is inartificially expressed. The estate to the son is absolute, and there is no gift over for his failure to take testator’s name, nor is the gift to the son made dependent on the infant’s assumption of the testator’s name, nor is his estate to endure so long only as he bears testator’s name and then over to some one else. Under the circumstances there is no way for the surrogate to effectuate the testator’s evident desire to have his son bear Ms name. Brooke, in re Musgrave v. Brooke, 26 Ch. D. 792.

For the reasons expressed I now hold, as already

Decreed accordingly.