JUDGMENTBY: MATHEW, CJ, SIR CHARLES MURRAY-AYNSLEY, CJ (S), PRETHEROE, J

MATHEW, CJ This case concerns the construction of a portion of clause 13 of a Chinese testators will. The relevant part reads:--

" ... if he shall not leave any male issue but shall leave a lawful

widow and female issue his share shall go to such lawful widow and

female issue equally if more than one provided such lawful widow shall

remain the widow of such deceased son or nephew and lead a chaste life."

The learned trial judge held that as there was no gift over, the condition in partial restraint of marriage was in terrorem and void.

The law on this subject is extremely difficult. In In re Whitings Settlement (1905) 1 Ch 96 at 115, Vaughan Williams, L.J., said:--

"This branch of the law is one with which it is not very satisfactory

to deal, and I cannot say that I think the mode in which it has been

dealt with is very easy to weld into one consistent whole. We are told

that the law on this point has been partially imported into our system

of law from the Roman Law, and that this was done through the

Ecclesiastical Courts. And then we are told that the Court of Chancery

did not entirely adopt the view of the law adopted by the

Ecclesiastical Courts just as the Ecclesiastical Courts did not adopt

in its entirety the Roman Law. And eventually, as a matter of history,

we find ourselves face to face with this state of things -- the Court

of Chancery had to administer rules of law which they did not think

very fair or very just, and that they were constantly straining the

rules, by which they yet declared that they were bound, in order to

escape from them."

There have been a number of authorities quoted to us which tend to support the passage in Theobald on Wills (10th edition) at page 440, which reads:--

"In the case of personalty ... certain conditions subsequent, though

good in law, are, in accordance with the rules of the Civil Law, held

to be void and in terrorem merely if there is no gift over."

In Marples v Bainbridge 1 Mad 590 at 592, Plumer V.C. says:--

"Where there is a bequest, like the present, of personal property, upon

a condition subsequent" -- that the legatee continues unmarried -- "and

no bequest over in breach of the condition, the condition is considered

only in terrorem."

But I do not think that the question is thereby disposed of completely and that all conditions subsequent with no bequest over are necessarily void. There may be circumstances to rebut the presumption that the condition is void. The true test to be applied in cases of this kind is, to quote the words of Blackburn, J., in Jones v Jones 1 QBD 279 at 281:--

"The real question seems to be whether the testator intended to

discourage marriage or not."

Was this proviso intended to compel the celibacy of the sons widows? If it was, then this condition is in terrorem and void.

In my view, the testators intention is clear. He provided in his will for the maintenance of the members of his family while they remained in the family and, apart from certain provisions for payments to his daughters on their marriage, the estate was to be applied for the benefit of the members of the family. His intention was not to penalise widows who re-married, but to insure that all members of the family should be provided for, so long as they remained within the family. The failure of the bequests to the widows and daughters of his sons had the effect of increasing the shares of those members of the family who remained within the family, and a failure of a bequest did not create a partial intestacy.

I do not consider that in this case I am compelled to hold that the testator meant something which he did not, and give effect to the exact contrary of his intention. When his intention, as I see it, was not to condemn widows to celibacy

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