public policy and antisocial testators

1315

PUBLIC POLICY AND ANTISOCIAL TESTATORS

Ronald J. Scalise Jr.∗

ABSTRACT This Article challenges the conventional wisdom that “deadhand”

control by testators in certain situations is violative of public policy and should not be enforced. Specifically, it argues that many legacies conditioned on a beneficiary acting a certain way or doing a certain thing, such as not marrying or remarrying, should be enforced. This Article argues that the modern approach of disallowing conditions or restrictions on marital freedom in legacies is a product of a bygone era and that the reasons employed for invalidating such conditions are no longer sufficient justifications in the modern day for the current approach of courts. This conclusion is reached only after an examination of Roman, English, French, German, and especially American primary and secondary sources.

∗ A.D. Freeman Associate Professor of Law, Tulane University Law School. Many thanks to Mark Ascher, Jeanne Carriere, Adam Hirsch, Thomas Gallanis, Melissa Lonegrass, Michael McAuley, and Jeffrey Schoenblum, who have all read and commented on an earlier draft of this Article; and to the participants at the Second Annual Meeting of the Association for Law, Property, and Society for helpful suggestions. A large debt of gratitude is owed to the Max Planck Institute for allowing me the opportunity to spend time there working on this Article. Except as otherwise provided, all translations are my own, as are, of course, all errors.

1316 CARDOZO LAW REVIEW [Vol. 32:4

TABLE OF CONTENTS Introduction........................................................................................ 1316 I. Theories of Testation and Testamentary Conditions............... 1317 II. Kinds of Testamentary Conditions.......................................... 1326 A. Marriage ........................................................................... 1327 B. Religion ............................................................................ 1331 III. Justifications for the Law ........................................................ 1332 A. Historical Reasons............................................................ 1332 1. Marriage...................................................................... 1335 2. Religion....................................................................... 1339 B. Modern Reasons............................................................... 1342 1. Antisocial Conduct ..................................................... 1343 2. Interfering with Important Choices of the

Beneficiary.................................................................. 1348 3. The Societal Importance of the Institutions of

Marriage & Religion................................................... 1358 IV. Concluding Observations ........................................................ 1364

INTRODUCTION

The desire to reach from beyond the grave is common. The specter

of control by the “deadhand” exists in many, perhaps all, cultures and traditions, both present and past. Over the centuries, the focus of the control has changed, but the want for it has not. Once it was popular to order one’s heirs to create monuments honoring the deceased, and now it is not uncommon to make bequests of money conditioned upon a legatee pursuing a specific purpose that one finds important or significant.

The range of conditions is as great as are the people who make them.1 Although some conditions are obviously motivated by beneficent motives (e.g., a disposition only if one supports one’s children), others are clearly inspired by spite or revenge (e.g., a disposition only if one does not marry a person of a particular race). Still others are unclear on their face and might be motivated by good or evil intentions. A disposition to a son if he embraces a certain faith may be made out of a desire to upset a beneficiary’s life by limiting his ability to choose a religion. More likely, however, it could be executed in the hopes of promoting and in an attempt to encourage adoption of a lifestyle and viewpoint deemed important and perhaps holy by the deceased. Irrespective of motivation, however, almost all restrictions seek to control or influence the conduct of the beneficiaries.

1 See, e.g., JANET FINCH ET AL., WILLS, INHERITANCE, AND FAMILIES 106 (1996) (stating that in England “[t]hirty-five per cent of wills attach a condition to at least one bequest”).

2011] ANTISOCIAL TESTATORS 1317

How far a testator can go in controlling or influencing the conduct of his beneficiaries is a vexing question. When the control exerted by a testator reaches too far and seeks to influence or proscribe choices in a beneficiary’s life as personal and intimate as whom he should marry, principles of “public policy” often come to the rescue and invalidate many such dispositions. What policy is being used and what purpose is being pursued are often undeveloped. One hackneyed response is to suggest that these types of conditions are unenforceable because the testator’s conduct is antisocial. This Article rejects such conclusory statements and seeks to discover the real reason underlying courts’ tendency to invalidate certain conditional bequests.

In that vein, Part I of this Article proceeds by examining various theories of testation as a framework for considering and evaluating the permissibility of testamentary conditions. Part II examines the diversity of different kinds of conditions that can be imposed in donations, focusing in particular on two types of restrictions: those affecting marital choices and those affecting religious beliefs. Part III discovers that the treatment of these conditions is largely historically based and that although subsequent justifications for the treatment of certain conditional dispositions have been proposed, the modern explanations fail to withstand scrutiny. After having rejected the traditional analysis of prohibited conditions in Part III, Part IV offers some concluding observations that consider the implications and effects of a theory that would allow testamentary bequests conditioned on personal choices of a beneficiary.

I. THEORIES OF TESTATION AND TESTAMENTARY CONDITIONS

Before testamentary conditions can be discussed, the right of

testation must be briefly examined. If no right of testation exists, then obviously no kind of testamentary condition would be allowable. In that sense, whether a right of testation exists is a logically prior question to what kind of condition a testator may impose. A weak or minimalist theory of testation that views testation as a necessary evil might allow few, if any, testamentary conditions. A robust or strong theory of testation, on the other hand, might recognize this right as a fundamental one, obviously allowing for a broader imposition of conditions.2

For instance, some have argued that testamentary conditions affecting personal and conjugal rights of beneficiaries should not be

2 For more material on freedom of testation, see Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand, 68 IND. L.J. 1, 5-14 (1992).


allowed because testamentary freedom itself should only be minimally allowed and not overly encouraged. Although free testation is important for a number of practical reasons, the concept, at base, is not a preordained one. Allowing the dead to exercise control over the intimate aspects of the lives of living beneficiaries goes too far. The concept of free testation does not mandate so permissive an attitude that the deadhand should be able to govern from the grave.

One of the greatest proponents of utilitarianism, John Stuart Mill, advocated for such an instrumental approach to testation. Although he contended that the right of “bequest is one of the attributes of property,” he equally believed that it “might be limited or varied, according to views of expediency.”3 Similarly, in discussing the question of whether one generation can bind another, Thomas Jefferson is famed for having written to James Madison that “the earth belongs in usufruct to the living. . . . [T]he dead have neither powers nor rights over it.”4 What Jefferson thought was “self evident,” many jurisdictions and systems equally believe to be an appropriate balance with respect to deadhand control. The United States Supreme Court has said as much in the case of Irving Trust Co. v. Day, in which the Court concluded:

Rights of succession to property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.5

Lower courts have echoed this view.6 How then could intrusive testamentary conditions be allowed, if the very right of testation is merely tolerated and deadhand rules allowed “only by sufferance”?

Some scholars have considered this very question and concluded that testamentary conditions should not be allowed. The case against such conditions is made most persuasively by Jeffrey Sherman. In his article Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, he argues, as the title states, for an instrumentalist or functionalist view of testation.7 Put simply, testation should be allowed only to the minimal extent necessary to maximize efficiency. Efficiency is promoted by

3 JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 226-27 (W.J. Ashley ed., Longmans, Green, & Co. 1909) (1848). 4 Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 6 THE WORKS OF THOMAS JEFFERSON 3, 3-4 (Paul Leicester Ford ed., G. P. Putnam’s Sons 1904). 5 Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942). 6 See, e.g., In re Becker’s Estate, 263 N.Y.S.2d 22, 27 (N.Y. Sur. 1965). 7 Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. ILL. L. REV. 1273, 1301; see also Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69 (1990).


allowing testation because of the “widespread desire for it.”8 If testation were not allowed, individuals “would employ other devices to achieve the same result: joint tenancies, life insurance, inter vivos trusts.”9 To effectively preclude testation, then, would require preclusion of those alternative devices, which would itself not solve the problem because individuals would employ “implicit inter vivos transfers,” such as paying for another’s education, and would “be tempted to conceal the breadwinner’s death.”10 Presumably, the social apparatus necessary to preclude these alternative devices would require the use of more societal resources than would be saved by the prohibition. Moreover, if a testator were allowed to pass property to others at his death, a property owner would be less inclined to “make hasty and improvident inter vivos dispositions.”11

Recognizing a minimalist theory of testation, according to Sherman, does not commit one to allowing much more than the bare designation of who should get what property. Any further testamentary rights, e.g., the ability to condition a legacy on a beneficiary’s conduct, would themselves require justification in terms of the creation of new efficiencies. In Sherman’s words, “to [obtain an efficient] result, it is necessary to give the property owner only the right to name successors, not the right to impose restrictions on successors’ personal conduct.”12

Although Sherman’s argument is persuasive, several other arguments militate in favor of allowing a broader conception of free testation and thus for allowing testamentary conditions more expansively. First, in terms of aggregate happiness, testamentary conditions are not even obvious offenders under the minimalist approach. Although it is true that a successor’s enjoyment of an asset may be less because of the condition imposed by the testator, as Sherman admits, that decreased enjoyment must be “offset by the utility the benefactor gains from anticipating the beneficiary’s performance of the condition.”13 And it is at least plausible that

it is good for [aggregate personal satisfaction] if the property owner knows she can regulate the property to the same extent after death as she can while still alive; inasmuch as a living property owner can withhold bounty from her child because she does not like the child’s

8 Sherman, supra note 7, at 1301. 9 Id. 10 Id. 11 Id. at 1303. 12 Id. (emphasis added). 13 See Adam Hirsch, Freedom of Testation/Freedom of Contract, 95 MINN. L. REV. (forthcoming 2011) (manuscript at 21-22), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1605273.


conjugal choices, she ought to be able likewise to condition her posthumous bounty on the child’s conforming to her wishes.14

If all posthumous conditions were prohibited, a testator might decide to leave nothing to a potential beneficiary rather than leave him an unconditional bequest. Moreover, from the beneficiary’s point of view, if the cost of performing the charge exceeds the benefit he will receive, the beneficiary may simply reject the bequest.15 In short, there is no “dead-weight loss”16 and thus no efficiency objection.

Second, as Sherman notes, the minimalist prohibition would invalidate not only what are traditionally considered malignly motivated bequests, but also beneficially motivated ones.17 Just as the minimalist theory does not allow a testator to maliciously leave a large bequest to a legatee conditioned upon his rejecting his lifelong mate, so too the minimalist theory would prohibit a concerned parent from providing support, via a conditional bequest, to encourage a child to leave his abusive spouse. If the minimalist theory rejects conditional bequests for efficiency reasons, the motive underlying the bequest has no role to play.

Third, Sherman distinguishes allowable inter vivos donations that are premised upon a child acting in a way acceptable to the donor from impermissible testamentary ones that condition a legacy upon certain conduct because “[i]f a living person wishes to deny bounty to an adult child because she disapproves of the child’s conjugal choices, she need not enlist society’s aid in denying wealth to the child (beyond society’s general recognition of private property rights).”18 But it is unclear (other than from a point of view of resource usage) why the existence of society’s aid is a legally significant factor. Society’s aid is enlisted to enforce conditional bequests other than those affecting the marital choices of a donee in a variety of contexts. For example, trust provisions, charitable bequests, gifts to universities and cities, and other similar dispositions, which are commonplace, seem to be questionable under a minimalist theory. Incentive trusts, which are reportedly on the rise,19 seek to affect or alter the life choices of a beneficiary by providing monetary support for a beneficiary’s education or training in a certain profession. Charitable bequests that require institutions or individuals to use money for a certain purpose, such as feeding the poor, or educational institutions to use money for the discovery of cures for diseases also require society’s aid in enforcing the testator’s wish from

14 Sherman, supra note 7, at 1304. 15 Hirsch, supra note 13 (manuscript at 22). 16 Id. (manuscript at 21). 17 Sherman, supra note 7, at 1305 (“[A] dead person is no more entitled to enlist society’s aid in posthumously inducing marriage than in posthumously discouraging it.”). 18 Id. at 1304. 19 JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 35-36 (8th ed. 2009).


beyond the grave. It is uncertain whether these provisions, which seem perfectly legitimate and laudatory, would survive the minimalist theory of testation.

Moreover, if the use of society’s aid is a determinative factor of whether a disposition is allowable, then the very factor that was excluded from consideration, i.e., “society’s general recognition of private property rights,” must be examined. That is, the very legal rules, procedures, courts, and officials that protect private property rights are classic examples of societal aid necessary to guarantee one's legal control and authority over one's own property. These aids are as necessary for the enforcement of conditions imposed upon inter vivos gifts as they are for testamentary ones. An executed (rather than executory) inter vivos donation, for instance, requires society’s aid no less than testamentary ones. If A, while alive, gives property to his son, B, under the condition that B not marry, the enforcement of this condition if B marries is no less dependent upon “society’s aid” than is one in which A made an identical disposition in his will.20 Why the existence of societal recourse should be considered for the enforcement of testamentary conditions but not in the inter vivos context is uncertain.

Fourth, and perhaps most fundamentally, although Sherman’s argument admittedly proceeds from a functionalist view of testamentary freedom, other explanations of a more fundamental or “natural” type exist. Sherman concludes that “testation is objectionable, but the consequences of disallowing testation would be still more objectionable.”21 He argues that decedents are not allowed to exercise other rights, such as voting, after death, and that they should similarly not be allowed to control material resources after death through the use of a will, which he characterizes as “an exercise of power without responsibility.”22 Others, however, disagree, and suggest that dead people do have a panoply of rights.23 Dead people can have tort claims brought on their behalf.24 Very often, the contractual rights of

20 Adam Hirsch has recently argued persuasively that conditional bequests should be treated like contracts and should not be considered “true gratuities at all.” See Hirsch, supra note 13 (manuscript at 16). He contends that a conditional bequest is structurally the same as a “unilateral contract offer made at death” and thus should be treated similarly to a “contract offer made during life [but] calling for performance that could continue after death.” Id. 21 Sherman, supra note 7, at 1284. 22 Id. at 1281-85 (citing M. Meston, The Power of the Will, 1982 JURID. REV. 172, 173). 23 See, e.g., LOREN E. LOMASKY, PERSONS, RIGHTS, AND THE MORAL COMMUNITY 213 (1st ed. 1987) (“I wish to maintain that it makes good sense to speak of the dead as having rights and, further, that considerations previously adduced entail that this is a morally sound result.”). For a discussion of the debate about the rights of the dead, see Kirsten Rabe Smolensky, Rights of the Dead, 37 HOFSTRA L. REV. 763 (2009). 24 See, e.g., STUART M. SPEISER & JAMES E. ROOKS, JR., 1 RECOVERY FOR WRONGFUL DEATH § 1.13 (4th ed. 2010) (stating that while wrongful death statutes compensate the survivors of the deceased, survival actions “permit recovery by the decedent’s personal representative, generally on behalf of the estate”); see also Smolensky, supra note 23.


individuals similarly do not expire with their deaths.25 In fact, in France, dead people can even get married, provided governmental approval is obtained.26 With regard to the property of the dead, Grotius concludes that wills and will-making were not instrumental goods but parts of the law of nature, and, therefore, an individual has the authority to alienate his property “not only absolutely but also under conditions.”27 Similarly, Samuel Pufendorf, in his work The Whole Duty of Man According to the Law of Nature, states that an individual’s right to dispose of his own property is a natural right and thus “[t]he Whole . . . of an Estate may . . . upon his Death be pass’d away by his Last Will and Testament.”28

John Locke has argued that with respect to rights, “where the Practice is Universal, ’tis reasonable to think the Cause is Natural.”29 Will-making, some suggest, “has been allow’d by most Nations.”30 Notably, even Sherman’s justification for the minimalist theory of testation is “because of a widespread desire for it” and the fact that would-be testators would engage in all sorts of machinations to reproduce the effects of testation (e.g., life insurance, trusts, and inter vivos transfers, such as joint tenancies).31 Thus, a concession to allow testation is necessary to prevent the “efficiency losses” associated with a prohibition.32 In other words, the very thing that Locke uses to recognize natural rights is the factor that convinces Sherman to acknowledge minimalist ones.

Moreover, fundamental rights are often long-existing, culturally embedded ones, the deprivation of which would rupture the legal balance society has achieved. Today, freedom of testation exists throughout the Western world.33 Historically, “the right to pass on property—to one’s family in particular—has been part of the Anglo-

25 See, e.g., LA. CIV. CODE ANN. art. 1765 (2010); see also Smolensky, supra note 23, at 798-99. 26 Smolensky, supra note 23, at 1 n.1 (citing Craig S. Smith, Paris Journal; A Love that Transcends Death is Blessed by the State, N.Y. TIMES, Feb. 19, 2004, at A4). 27 HUGO GROTIUS, THE LAW OF WAR AND PEACE bk. 2, ch. VI, XIV (Francis Kelsey trans., Clarendon Press & Humphrey Milford 1925) (1625). 28 SAMUEL PUFENDORF, THE WHOLE DUTY OF MAN ACCORDING TO THE LAW OF NATURE bk. I, ch. XII, XIII (Andrew Tooke trans., Liberty Fund 2003) (1691). 29 See JOHN LOCKE, TWO TREATISES OF GOVERNMENT bk. I, § 88, 206 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690). 30 PUFENDORF, supra note 28. 31 Sherman, supra note 7, at 1301. 32 Id. at 1302. 33 See, e.g., Marius J. de Waal, A Comparative Overview, in 5 EXPLORING THE LAW OF SUCCESSION: STUDIES NATIONAL, HISTORICAL AND COMPARATIVE 1, 1-26 (Kenneth G.C. Reid, Marius J. de Waal & Reinhard Zimmermann eds., 2007); Antoni Vaquer, The Law of Successions, in 1 EUROPEAN PRIVATE LAW: A HANDBOOK 555, 557 (Mauro Bussani & Franz Werro eds., 2009).


American legal system since feudal times.”34 In fact, it existed long before then. Blackstone says that the English “have no traces or memorials of any time when [testation] did not exist.”35 Although the Anglo-Saxons did not have the strict concept of a will per se, they did employ methods that transferred property from one person to another after death.36 Similarly, the voluntary transfer of property at death from one person to others existed in Biblical times. When Israel was dying he said to his son Joseph:

Behold, I am about to die, but God will be with you, and will bring you again to the land of your fathers. Moreover I have given to you rather than to your brothers one mountain slope which I took from the hand of the Amorites with my sword and with my bow.37

Solon, sometime in the early sixth century B.C., is said to have introduced will making in Greece.38 The Romans also recognized freedom of testation long before feudalism. In fact, the ability to make a will, testamenti factio, was one of essential components or rights of Roman citizenship.39 In Rome, the content of one’s will was often publicly read and was sometimes a subject of popular debate and discussion.40 According to literary sources, Marc Antony’s famous funeral oration beginning “Friends, Romans, countrymen . . .” was punctuated by demands from the crowd clamoring for “[t]he will, the will! We will hear Caesar’s will.”41 Although the frequency of Roman will-making has been debated, “Cato’s notorious regret, that he had lived one day without a will, reflected the proper [Roman] attitude.”42 Even in the Anglo-American tradition, the philosopher John Locke, whose views were so influential in the formulation of American

34 Hodel v. Irving, 481 U.S. 704, 716 (1987). 35 2 WILLIAM BLACKSTONE, COMMENTARIES *491. 36 See generally ANGLO-SAXON WILLS (Dorothy Whitelock ed. & trans., AMS Press 1973) (1930). 37 Genesis 48:21-22 (emphasis added). For discussion and classification of this Biblical text as well as others, see Richard H. Hiers, Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, 10 J.L. & RELIGION 121, 148-52 (1994). (Admittedly, this disposition is more of a deathbed gift than a testamentary bequest. See id. at 153.) But see RONALD CHESTER, INHERITANCE, WEALTH, AND SOCIETY 11 (1982) (stating that the will was “unknown to the early law of Greece, India, Egypt, Babylon, and Israel”). 38 PLUTARCH, THE LIVES OF THE NOBLE GRECIANS AND ROMANS (Dryden trans.), in 14 GREAT BOOKS OF THE WESTERN WORLD 72 (Robert Maynard Hutchins ed., 1952). 39 See William M. Gordon, Succession, in A COMPANION TO JUSTINIAN’S INSTITUTES 80, 88 (Ernest Metzger ed., 1998) (“The basic rule that only a Roman citizen might [make a will] is taken for granted.”). 40 EDWARD CHAMPLIN, FINAL JUDGMENTS: DUTY AND EMOTION IN ROMAN WILLS, 200 B.C.-A.D. 250, at 19-20 (1991). 41 WILLIAM SHAKESPEARE, JULIUS CAESAR act 3, sc. 2 (William Montgomery ed., Penguin Books 2000). 42 CHAMPLIN, supra note 40, at 21.


constitutional rights, has argued that the right of inheritance is a natural one.43

Furthermore, if a fundamental right of testation exists, one would think that the United States might be the most likely place to find it.44 Wide testamentary freedom has been a hallmark of the Anglo-American tradition since at least 1540 with the enactment of the Statute of Wills, which allowed testators to pass on land at their deaths to individuals of their choosing.45 The Colorado Supreme Court has recently highlighted the importance of testamentary freedom in that state by noting that “a testator ‘may dispose of his property as he pleases, and that [he] may indulge his prejudice against his relations and in favor of strangers, and that, if he does so, it is no objection to his will.’”46

Somewhat surprisingly, even in legal systems whose conception of testamentary freedom is much more limited than in the United States, a fundamental right of testation has been recognized. Civilian conceptions of forced heirship have in the past sacrificed ultimate freedom of testation in the name of other values, such as familial protection and alimentary obligations, whereas the American conception of free testation is of almost paramount importance. Be that as it may, the German Basic Law, the Grundgesetz, guarantees the right of testation as an aspect of “development of personality”47 and as a corollary of the right of inheritance.48 A decision of the German Supreme Court for constitutional matters, the Bundesverfassungsgericht, has confirmed the fundamental nature of this right,49 and the German Civil Code, Bürgerliches Gesetzbuch (BGB), also recognizes the fundamental nature of the right of testation and declares that any contract in restraint of this right is void.50 Moreover, some scholars have noted that the fundamental character of “freedom of

43 See LOCKE, supra note 29, at 206-07. Because [m]en are not Proprietors of what they have merely for themselves, their Children have a Title to part of it, and have their Kind of Right joyn’d with their Parents, in the Possession which comes to be wholly theirs, when death having put an end to their Parents use of it, hath taken them from their Possessions, and this we call Inheritance.

Id. Admittedly, however, this natural right of inheritance is not the same thing as a natural right of testation. 44 Although the United States Supreme Court has recently suggested that the right of inheritance may be an aspect of the fundamental right of property, see, e.g., Hodel v. Irving, 481 U.S. 704 (1987), it has not done so with regard to freedom of testation. 45 Statute of Wills, 32 Hen. 8, c. 1 (1540). 46 Breeden v. Stone, 992 P.2d 1167, 1170 (Colo. 2000) (quoting Lehman v. Lindenmeyer, 48 Colo. 305, 313 (1909)). 47 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, as amended, art. 2(1), BGBl. I. 48 Id. art. 14. 49 See, e.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Apr. 19, 2005, 112 ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 332 (F.R.G.). 50 BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, REICHSGESETZBLATT [RGBL.] 5, § 2302, available at http://www.gesetze-im-internet.de.


testation appears to be itself recognised as . . . being of constitutional significance and probably guaranteed by both the South African Constitution and the European Convention on Human Rights (ECHR).”51 The European Court of Human Rights has stated that “the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property.”52

It is not the goal of this Article, however, to argue for a natural or fundamental right of testation. Such a task and argument is well beyond its scope. Rather the purpose in discussing the “natural” or “fundamental” rights approach to testation is to suggest that a functionalist or minimalist theory of testation is not a necessary one. Adoption of a fundamental rights approach to testation necessitates a rejection of the minimalist theory, but the rejection of a fundamental rights approach does not mandate the adoption of the minimalist approach. Rather, one may reject both the minimalist theory and the idea that the right of testation is a fundamental right and still maintain a robust or strong theory of testation.

In fact, a robust, rather than minimalist, theory of testation is more descriptive of rights of testation as they exist in modern American society.53 Unlike the law of many other countries, the American law of testation provides no mandatory protective devices for children that limit the rights of testation. The broad scope of the American ability to dispose of property after death is evident from allowance of individuals to disinherit their minor children “for any reason or no reason.”54 Courts in various states have noted that there is a “strong public policy” in favor of free testation55 and that freedom of testation in this country is a “jealously guarded right.”56 Some scholars have described American law as having a “love of free testation,”57 while others have noted the permissibility of free testation in America is unparalleled

51 James Chalmers, Testamentary Conditions and Public Policy, in EXPLORING THE LAW OF SUCCESSION, supra note 33, at 99, 104 (citing Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A) 1 (1979)). 52 Marckx, 31 Eur. Ct. H.R. at para. 63. 53 JENS BECKERT, INHERITED WEALTH 71 (Thomas Dunlap trans., 2008) (noting that in comparison to France and Germany, the United States, “without question, . . . [has] the broadest degree of testamentary freedom”). 54 See Adam J. Hirsch, Inheritance: United States Law, in 3 OXFORD INTERNATIONAL ENCYCLOPEDIA OF LEGAL HISTORY 235, 239 (Stanley N. Katz ed., 2009); Joshua C. Tate, Caregiving and the Case for Testamentary Freedom, 42 U.C. DAVIS L. REV. 129, 137 (2008). 55 In re Estate of Feinberg, 919 N.E.2d 888, 895 (Ill. 2009). 56 Am. Comm. for Weizmann Inst. of Sci. v. Dunn, 883 N.E.2d 996, 1002 (N.Y. 2008) (quoting Margaret Valentine Turano, Supplementary Practice Commentaries, in N.Y. EST. POWERS & TRUSTS LAW § 13-2.1 (McKinney 2001)). 57 Ronald Chester, Disinheritance and the American Child: An Alternative from British Columbia, 1998 UTAH L. REV. 1, 32 (1998); see also Ronald Chester, Should American Children be Protected Against Disinheritance?, 32 REAL PROP. PROB. & TR. J. 405, 449 (1997).


throughout the Western world.58 The only real restrictions, aside from a spouse’s elective share rights,59 are those on vices such as fraud, duress, and undue influence, which ensure the disposition is truly a free one.60

Given the long-standing and strongly-held societal belief in the importance of free testation, the burden of proof, then, for those who believe otherwise clearly lies on the advocates of a minimalist theory, which requires not only testation but all advances beyond the mere transmittal of property be justified in terms of efficiency. Having contended above that the minimalist argument fails, the opposite conclusion with regard to curtailment of testamentary rights seems to hold true. That is, the expansion of rights of testation beyond mere transmittal of property not only does not require special efficiency arguments to be justifiable, but rather restrictions on full, complete, and unfettered testation themselves need to be justified by serious and powerful principles.

II. KINDS OF TESTAMENTARY CONDITIONS

Because the United States maintains a robust theory of testation,

American jurisdictions are generally not bothered by testamentary controls or restrictions on the conduct of beneficiaries. The rule or maxim by which testamentary provisions are evaluated appears to be a simple one: Conditions in legacies are usually allowed as long as they are “reasonably definite”61 and not contrary to public policy.62 Regrettably, though, the application of this simple rule proves complex in a variety of situations.

If a testator were to condition receipt of a legacy upon the legatee committing theft or murder, rules of public policy would intervene and invalidate such a disposition. Because theft and murder are illegal, encouraging such illicit activities is no more allowable than the underlying activity itself. The mere fact that the right of testation is important does not mean that it is unlimited and absolute.63

58 Hirsch, supra note 54. 59 UNIF. PROBATE CODE §§ 2-201 to 2-214 (1990) (amended 2008). 60 For an argument that undue influence in American law serves to curtail testamentary freedom and serves many of the same functions as forced heirship in civil law countries, see generally Melanie Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235 (1996), and Ronald J. Scalise Jr., Undue Influence in the Law of Wills: A Comparative Analysis, 19 DUKE J. COMP. & INT’L L. 41 (2008). 61 5 WILLIAM J. BOWE & DOUGLAS H. PARKER, PAGE ON THE LAW OF WILLS § 44.23 (2005) [hereinafter PAGE]. 62 THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 351 (1st ed. 1937). 63 Chalmers, supra note 51, at 100 (“Just as legal systems do not recognise freedom of testation as an absolute right, and so protect certain parties against disinherison by means of


Not all conditional legacies are as clearly violative of public policy as those dependent upon violating the criminal or even civil law. Rather, the kinds of testamentary conditions usually scrutinized by courts—those dependent upon marital or religious choices—tend not to violate any positive law at all. Instead, the public policy used by courts remains a more amorphous and unarticulated one,64 but one that is evaluated and addressed in depth below.65

A. Marriage

Testamentary conditions on marriage can themselves take a variety

of forms. The jurisprudence, in fact, provides examples of cases in which a testator imposes a condition prohibiting all marriage,66 prohibiting marriage at a particular time,67 prohibiting68 or encouraging69 marriage to a particular person or kind of person, or requiring or encouraging divorce, if one is already married.70 The approaches and solutions to these kinds of conditions are not intuitive.

First, as a rule, “[a] condition in general restraint of a first marriage is contrary to public policy and void.”71 This rule, however, admits of many exceptions. That is, even if the restraint on marriage is a general and absolute one that provides a legacy to an individual only if he never marries, the restraint may be allowable if the testator’s motive was pure.72 For example, if a testator wants to support his daughter until she

forced succession or discretionary maintenance provisions, so certain attempts to dictate behaviour may be considered contra bonos mores and thus unlawful.”). 64 See Blathwayt v. Lord Cawley, [1976] A.C. 397 (H.L.) 427 (Lord Simon). 65 See ATKINSON, supra note 62, at 351-52 (discussing these, among others, as common conditions). 66 See, e.g., Mahar v. O’Hara, 9 Ill. 424 (1847) (stating “there are many cases which show that an absolute prohibition of marriage will be disregarded”); Maddox v. Maddox, 52 Va. 804 (1854) (invalidating a restraint prohibiting marriage outside of the Society of Friends). 67 See, e.g., In re Estate of Gehrt, 480 N.E.2d 151 (Ill. App. Ct. 1985); Succession of Ruxton, 78 So. 2d 183 (La. 1955). 68 See, e.g., Taylor v. Rapp, 124 S.E.2d 271 (Ga. 1962). 69 See, e.g., In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009). 70 See, e.g., In re Estate of Gerbing, 337 N.E.2d 29 (Ill. 1975). 71 PAGE, supra note 61, § 44.25. 72 Quebec arguably has one of the most restrictive provisions on marital conditions in donations. Quebec historically allowed such bequests as long as the testator’s motives were acceptable. For example, in Central Guaranty Trust Co v. Lefebvre-Gervais, (1992), 47 E.T.R. 257 (Can. Que. Super. Ct.), the court considered the efficacy of a trust established in favor of a testator’s wife that contained an order to the trustee to stop making payments if his wife remarried a man without substantial money or one who was not employed. The court concluded that the provision did not violate public order or morality because it was imposed to assure adequate support for the testator’s children, not to prevent his wife from remarrying. Id. Now, however, Quebec has taken a much stricter approach and deems unwritten “a clause limiting the rights of the surviving spouse in the event of a remarriage or new civil union.” Civil Code of Québec, S.Q. 1991, c. 64, art. 757 (Can.). In 2009, one Superior Court case, Gosselin v. Gosselin, 2009 QCCS


marries and starts her own family, he can bequeath her money to be paid until she marries. Correspondingly, the Restatement (Second) of Property makes clear that even restraints on first marriages are valid if “the dominant motive of the transferor is to provide support until marriage.”73

Although not dispositive, conditions subsequent tend to evidence such beneficent intentions, while conditions precedent usually demonstrate the reverse. Thus, a provision in a will leaving property to a beneficiary until she marries appears to be more of a disposition made from motives of support and protection than if it were based on conditions precedent (e.g., a disposition to a beneficiary if she never marries), which has a resolute staunchness that is characteristic of punitive motives. Some have referred to certain types of conditions subsequent as “special limitations,” rather than conditions for the effectiveness of a disposition. Thus a disposition given “until marriage” does not purport to condition the receipt or divestiture of the legacy at all, but rather impose a special limitation at which point the legacy will be without effect.74

Second, conditions that merely discourage marriage only at a particular time are not general restraints and are thus allowable. Accordingly, when a testator leaves a bequest to his son, if he is not married at the time of the testator’s death, a court will generally have no problems in maintaining its enforceability. The Louisiana Supreme Court, which considered this exact issue, noted that such a condition was not one that prohibited marriage in the future, “but rather one that is conditioned upon [the beneficiary’s] status at the time of the testator’s death.”75 “Certainly,” the court continued, “such a provision is not against good morals.”76

More recently, an Illinois court in In re Estate of Gehrt held similarly when examining a provision of a testator’s will providing that “in the case [the beneficiary] remarries before the time of my death,

4396 (Can. Que.), available at http://www.jugements.qc.ca (keyword search for “Gosselin” in Superior Court category, between 1/1/2009 and 12/31/2009), made clear just how absolute the Code’s prohibition is. There, a testator left a legacy to her husband but provided that “if he remarries, then he was to give 25% of the movables and immovables from her succession to her children.” Id. The court, with little discussion and employing a straightforward application of article 757, stated clearly that such a clause was “null and not written.” Id. 73 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.1 (1983). 74 Id. § 6.1 cmt. e (stating that if “the limitation is in the form of a condition precedent, there is normally a strong inference against any motive to provide support”). 75 Succession of Ruxton, 78 So. 2d 183, 184 (La. 1955). 76 Id. Curiously, in this case, the court noted that the beneficiary was not deterred from marrying because she was not even aware of the provision in the testator’s will. Id. Although the significance of this fact to the court’s analysis is unclear from the court’s opinion, it seems relevant only if the court is considering the objective effect of the disposition rather than the subjective motives of the testator. For more on this issue, see infra Part III.B.1-2.


then I do not wish the bequest to go to her.”77 By the time the testator died, the beneficiary had already remarried and sought to have the testamentary condition invalidated. In upholding the condition, the court concluded that the will speaks only at the time of death and thus the testator could have always changed his will, cancelled the legacy, or left the provision as it was written.78 Quoting prior jurisprudence, the court emphasized that testators “should be allowed to dispose of their property by will, with such limitations and conditions as they believe for the best interest of their donees.”79

Third, restraints on marriage that are partial rather than general are allowed, at least to the extent the partial restraint is not so broad as to constitute a general one. For instance, a disposition to a son only if he marries someone of a particular religious faith is valid, as long as there are presumably enough potentially eligible mates to give the beneficiary a realistic opportunity for marriage. At least one court has noted that with modern methods of transportation and communication, there might always be a realistic opportunity for marriage within a religious faith, irrespective of where one lives.80

Bizarrely, for partial restraints of marriage, unlike general restraints, “[t]he motive or purpose of the testator is irrelevant.”81 In fact, the Restatement notes that “guidance by parents and other donors, with respect to a particular marriage, validly may be exercised by means of partial restraints.”82 Such “guidance,” which is valued in this instance but not for general restraints, is allowable, “unless the proscribed marriage is so broadly defined that it unreasonably limits the transferee’s opportunity to marry.”83 What kinds of limitations are reasonable and which are unreasonable are factual matters to be determined on an ad hoc basis.84

Similarly, Georgia has enacted legislation stating that “[m]arriage is encouraged by the law . . . [and] [e]very effort to restrain or discourage marriage by contract, condition, limitation, or otherwise shall be invalid and void.”85 Even the Georgia legislation, however, makes exceptions for partial restraints on marriage and provides that “prohibitions against marriage to a particular person or persons or before a certain reasonable age or other prudential provisions looking only to the interest of the person to be benefited and not in general

77 In re Estate of Gehrt, 480 N.E.2d 151, 151 (Ill. App. 1985). 78 Id. at 153. 79 Id. (quoting Ransdell v. Boston, 50 N.E. 111, 114 (Ill. 1898)). 80 Shapira v. Union Nat’l Bank, 315 N.E.2d 825 (Ohio. Ct. C.P. 1974). 81 JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 27 (7th ed. 2005). 82 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.2 cmt. a (1983). 83 Id. 84 Id. 85 GA. CODE ANN. § 19-3-6 (2010).


restraint of marriage will be allowed and held valid.”86 Thus, restrictions on a legacy to a daughter conditioned on the fact that she not marry a particular person whom the testator did “not like and care for in any respects” was perfectly valid.87

Although the above description illustrates a rather hostile approach to general restraints against marriage, the exact opposite is true for conditions restraining remarriage. That is, “[c]onditions in restraint of second marriages are generally held valid.”88 These types of conditions are almost always imposed upon the surviving spouse of the decedent and can be written as conditions precedent or subsequent. Conditions subsequent (e.g., a disposition to a widow until she remarries) seem benevolent and supportive, and, in fact, can be quite common. In some states, this arrangement is created by operation of law. Louisiana, for instance, in many instances of intestacy grants a usufruct or “life estate” to a surviving spouse until “the surviving spouse dies or remarries, whichever occurs first.”89 Conditions precedent (e.g., a disposition to a beneficiary if he never remarries), on the other hand, seem once again to evoke motives of spite or jealousy. Strangely, however, motive makes no difference here, and any type of condition may be upheld irrespective of the testator’s motive.90 If, as is rarely the case, the restraint on remarriage applies not to a former spouse, but to a child or perhaps a son-in-law or a daughter-in-law, then the restraint “must be reasonable under all the circumstances.”91

In fact, even in some states that have statutorily-enacted prohibitions on conditions restraining marriage, exceptions are made for conditions imposed upon a “widow” or a “spouse.”92 For example, in applying a North Dakota statute, the state supreme court has held that a provision requiring payment to a former husband of his equity in the family home upon the former wife’s remarriage would not be a

86 Id. 87 Taylor v. Rapp, 124 S.E.2d 271 (Ga. 1962); see also 8 GA. JUR. Family Law § 2:2 (2010). 88 PAGE, supra note 61, § 44.25; see, e.g., In re 1942 Gerald H. Lewis Trust, 652 P.2d 1106 (Colo. App. 1982); see also Sherman, supra note 7, at 1319 (“Testamentary restraints against remarriage—especially restraints imposed by a husband against a widow’s remarriage—have generally been approved.”). 89 LA. CIV. CODE ANN. art. 890 (2009). 90 Some states, however, have enacted statutes that always focus on the intent of the testator and thus prohibit testamentary conditions concerning marriage, except “where the intent was not to forbid marriage, but only to give the use until marriage.” See, e.g., CAL. CIV. CODE § 710 (West 2009); MONT. CODE ANN. § 70-1-404 (2009). In the recent case of Estate of Guidotti, 109 Cal. Rptr. 2d 674, 677 (Cal. Ct. App. 2001), the court held that under such legislation a “[f]orfeiture of a bequest if the beneficiary remarries may, depending upon the words used, be a restraint of marriage.” Because the testator was “jealous of” his former wife and sought to terminate payments under a trust if she remarried or “live[d] with a man as though they were husband and wife,” the court found the provision invalid. Id. at 677-78. 91 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.3 (1983). 92 N.D. CENT. CODE § 47-02-25 (2009); S.D. CODIFIED LAWS § 43-3-4 (2010).


“restraint” on the wife’s remarriage because “[m]arriage is being used merely as a triggering device.”93 There is no reason why the husband should “help support [his former wife’s] new husband.”94

Fourth and finally, conditions encouraging or promoting divorce from a current spouse are generally viewed as ineffective and contrary to public policy.95 Although old cases tended to uphold these restrictions,96 the modern trend is clearly to find such conditions prohibited by public policy.97 Although there is nothing illegal about divorce, some have argued that “to constrain someone to perform a legal act may be no less objectionable than to constrain her to perform an illegal one.”98

B. Religion

Despite the general prohibition on testamentary conditions that

preclude marriage, somewhat surprisingly, “[c]ourts have almost invariably sustained [conditions restraining religious practice] against public policy challenges.”99 The Restatement (Second) of Property provides that “[a]n otherwise effective provision in a donative transfer which is designed to prevent the acquisition or retention of property on account of adherence to or rejection of certain religious beliefs or practices on the part of the transferee is valid.”100

This approach has substantial support in the case law of various states,101 and appears to be subject to few, if any, qualifications or limitations. A few states strictly construe these types of conditions, but hold them valid nonetheless.102 In fact, conditions on religious beliefs

93 Suko v. Suko, 304 N.W.2d 690 (N.D. 1981) (finding that such a provision inserted in a divorce decree was not against public policy). 94 Id. 95 PAGE, supra note 61, § 44.26; see also FREDERICK K. HOOPS ET AL., 1 FAMILY ESTATE PLANNING GUIDE § 17:24 (4th ed. 2009) (“Any attempt to condition a legacy on a divorce or separation is likely to be invalidated as an inducement to break apart a lawful marriage.”). 96 See, e.g., Born v. Horstmann, 22 P. 169 (Cal. 1889); Daboll v. Moon, 91 A. 646 (Conn. 1914) (upholding a provision in a will that vested only upon death or divorce); see also Sherman, supra note 7, at 1307. 97 See, e.g., Meade v. Pongonis, No. CV89 263416S, 1991 WL 132160 (Conn. Super. Ct. July 9, 1991) (rejecting the rationale of Daboll v. Moon); see also Michele C. Mount, Meade v. Pongonis: Divorce as a Prerequisite to a Bequest, 7 CONN. PROB. L.J. 353 (1993). 98 Sherman, supra note 7, at 1307. 99 ATKINSON, supra note 64, at 362 (“Gifts conditioned on the beneficiary’s adhering to, or abstaining from, certain religious beliefs are generally treated as valid.”); Sherman, supra note 7, at 1312. 100 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 8.1 (1983). 101 See, e.g., Del. Trust Co. v. Fitzmaurice, 31 A.2d 383 (Del. Ch. 1943); U.S. Nat’l Bank of Portland v. Snodgrass, 275 P.2d 860 (Or. 1954); In re Estate of Laning, 339 A.2d 520 (Pa. 1975). 102 See PAGE, supra note 61, § 44.28 (“In other jurisdictions these conditions seem to be treated as valid, though very strictly construed.”).


tend to be invalidated only when they coincide with other prohibited or disfavored devises. For example, a testator concerned about the preservation of his religious faith and its transmission to future generations might bequeath property to a child only if she marries someone of a particular faith. Such a condition may be held invalid if it “unreasonably limit[s] the transferee’s opportunity to marry,”103 but only because it serves to prohibit marriage, not because of the testator’s obvious religious motivation.104

III. JUSTIFICATIONS FOR THE LAW

Although the results in these cases probably comport with

American-style intuitions about allowing testamentary freedom in the absence of extreme conduct, explaining the variety of outcomes in a legal sense is difficult indeed. The general prohibition on restraining marriage via testamentary bequest probably originates with the Romans.105 And the modern rules still have a surprising parallel with the Roman rules of more than 1500 years ago.

A. Historical Reasons

The Roman approach to conditions requires some explanation. In

Roman times, wills served several purposes, not the least of which was to “institute an heir.”106 In fact, at some point in the past this may have been the only function of the will. Gaius writes that with regard to making wills, “above all things, it should be ascertained whether the appointment of the heir was made in regular form,” which could be done with a simple recitation, such as “Let Titius be my heir.”107 As

103 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.2 (1983). 104 Similarly, provisions in wills—religious or otherwise—that tend to disrupt relationships between parents and minor children are often held invalid, given the importance of parental involvement in a child’s development. See, e.g., In re Estate of Laning, 339 A.2d at 523 (noting, however, that the provision at issue was not invalid because “some disruptive effect on familial relationships among adults . . . is of far less social concern”). 105 Olin Browder, Jr., Conditions and Limitations in Restraint of Marriage, 39 MICH. L. REV. 1288, 1288 (1941). 106 W.W. BUCKLAND, A TEXT-BOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN 294 (2d ed. 1932). 107 See, e.g., THE INSTITUTES OF GAIUS, in 1 THE CIVIL LAW 126 (S.P. Scott trans., 1932) [hereinafter GAIUS, INSTITUTES] (stating, in the Second Commentary, that in addition to an appointment of an heir, testamentary capacity and compliance with will formalities and the existence of witnesses were also required); see also THE DIGEST OF JUSTINIAN bk. 28.5.3 (Alan Watson ed. & trans., 1985) [hereinafter DIGEST].


simple as the transaction was,108 its significance was great as it served as the basis under which the deceased’s legal personality continued.109 In addition to the continuation of the deceased’s property rights, the instituted heir had to discharge legacies and pay the debts of the decedent.110

Separate and apart from the institution of heirs was the nomination of legatees. That is, in addition to continuing one’s legal personality, testators often used wills to distribute their property. Popular recipients of legacies included close family members, friends, and servants.111 Although the point of creating legacies was different from the purpose in instituting an heir, sometimes the governing rules were similar. One such example is in the treatment of conditions.112

Although extant Roman texts contain examples of conditional bequests, “more often than not a piece of land, a sum of money, or an annuity was” free of such a restriction and “was the legatee’s to do with as he or she wished.”113 This is not to suggest, however, that conditions were uncommon.114 Examples exist of obligations imposed on an heir to pay pensions to others,115 fideicommissary obligations,116 and obligations to transfer property to others.117

108 Although there was agreement that the institution had to occur at the beginning of the will, the Proculians and Sabinians disagreed as to whether appointments of tutors could precede the institution (a view held by the Proculians) or not (the position taken by the Sabinians). BUCKLAND, supra note 106, at 295. Justinian, however, considered it “unreasonable to follow the order of the writing” and thus “corrected this defect” by providing that bequests could be made before appointments. THE INSTITUTES OF JUSTINIAN, in 2 THE CIVIL LAW, supra note 107, bk. II, tit. XX, § 34 [hereinafter JUST. INST.]; see also BUCKLAND, supra note 106, at 295. Moreover, the appointment of an heir had to be done in the imperative form, rather than a precative request. See, e.g., id.; see also THE RULES OF ULPIAN, in 1 THE CIVIL LAW, supra note 107, tit. XXI [hereinafter RULES OF ULPIAN] (“[A]n appointment made as follows: ‘I appoint Titius my heir’; ‘I make Titius my heir’; is disapproved by the greater number of authorities.”). 109 “The heres stepped, roughly speaking, into the shoes of the deceased, so far as what may be called property rights were concerned.” BUCKLAND, supra note 106, at 316. 110 Id. Justinian’s innovation of the benefit of inventory altered these responsibilities significantly. Id. 111 CHAMPLIN, supra note 40, at 168 (“Most testators did not reach outward beyond their circles of friends and servants to groups in society or to the community at large.”). 112 “Legacies could be given conditionally, the rules being much the same as for conditional institution of heredes.” FRANCIS DE ZULUETA, THE INSTITUTES OF GAIUS, PART II: COMMENTARY 107 (2d ed. 1953); see also BUCKLAND, supra note 106, at 338 (“The law of conditions was much as in institutiones, and the preference for maintaining the gift and annulling the offending modality existed here also . . . .”). Buckland, however, properly observes the irony and lack of justification for this approach, inasmuch as the failure of a legacy would not jeopardize the failure of the will, as would be the case for the failure to institute an heir. Id. He suggested, however, that one reason for the similarity in approach might be the desire to apply the same interpretative techniques to different parts of the will. See id. at 338-39. 113 CHAMPLIN, supra note 40, at 156. 114 Id. at 135. 115 Id. at 133. 116 Id. at 135. 117 Id.


In general, there were two kinds of conditions at Roman law—possible ones and impossible ones.118 Initially, possible conditions were those that by the nature of things could take place; impossible ones could not.119 Over time, however, it was held by the jurists that acts “which do violence to dutiful affection, to fair repute, to respectful modesty, and generally which are opposed to good conduct should be held to be impossible.”120 For example, Julius Paulus stated that prohibitions on marriage, having children, and so on were ineffective for that reason.121

Moreover, legacies subject to a condition had to be distinguished from penal legacies. While the former were often allowable, the latter were invalid. A penal legacy is unlike a conditional legacy because a penal legacy “is left for the purpose of compelling the heir either to do, or to refrain from doing, something which has no reference to the legatee, as, for example, in the following manner: ‘If you should give your daughter in marriage to Titius, pay ten thousand sesterces to Seius’”122 or “for example, where the testator orders that if his heir did not build him a monument within the term of two years he should pay ten thousand sesterces to Titius.”123 As Marcian explains, “[t]he intention of the testator . . . distinguishes a condition from a penalty.”124 In other words, “any testamentary provision based on the last wishes of a testator who intends to inflict a penalty is held to be of no weight, whether the provision relates to the heir’s benefit or to that of some other party.”125 This result was provided for in a rescript of Severus and Antoninus.126

Buckland suggests that this rule “must have created difficulties,”127 so much so that Justinian abolished it.128 In January of the year 528,

118 THE OPINIONS OF JULIUS PAULUS, in 1 THE CIVIL LAW, supra note 107, bk. III, tit. IV(B)(1) [hereinafter OPINIONS OF JULIUS PAULUS]. 119 Id. 120 1 HENRY JOHN ROBY, ROMAN PRIVATE LAW IN THE TIMES OF CICERO AND OF THE ANTONINES 198-200 (1st ed. 1902); see also OPINIONS OF JULIUS PAULUS, supra note 118, bk. III, tit. IV(B)(2) (“Conditions which are contrary to the laws and decrees of the emperors, or are opposed to good morals, are of no force or effect . . . .”). 121 OPINIONS OF JULIUS PAULUS, supra note 118, bk. III, tit. IV(B)(2). 122 RULES OF ULPIAN, supra note 108, tit. XXIV, 17. 123 GAIUS, INSTITUTES, supra note 107, at 143. 124 DIGEST, supra note 107, bk. 34.6.2; see also DE ZULUETA, supra note 112, at 107 (stating that whether a legacy was penal “did not depend on the character of the act demanded”). But see ROBY, supra note 120, at 304 (“A legacy by way of penalty (poenae causa) . . . is when the testator, in order to induce his heir to do or not do something, . . . imposes the duty, in case of non-compliance, of paying a legacy.”). 125 DIGEST, supra note 107, bk. 34.6.1. 126 Id. bk. 34.6.2. An imperial rescript or rescriptum was the Emperor’s response to a written question addressed to him concerning a point of law. See BARRY NICHOLAS, INTRODUCTION TO ROMAN LAW 18 (1962). 127 BUCKLAND, supra note 106, at 341. 128 DE ZULUETA, supra note 112, at 107.


Justinian proclaimed the end to “the superfluous observance of the ancient laws [on penalties] by which the wills of testators are weakened and prevented from being carried into effect.”129 From that time on, “whatever property is left, even though it may have been bequeathed, revoked, or transferred to other persons by way of penalty, shall differ in no respect from other legacies which have been given, revoked or transferred.”130 Thus, while abolishing the outright prohibition on penalties, Justinian did not abolish all limitations on legacies. Rather, he preserved the prohibition against conditions that were “impossible, forbidden by law, or are otherwise worthy of disapproval.”131

1. Marriage

With regard to conditions on marriage, the Digest provides several

examples of the opinions of the Roman jurists on this issue. Julian is reported to have written that “[w]henever a legacy is left to a woman under the condition ‘if she does not marry’ and she is further charged on her honor to make it over to Titius if she does marry, the opportune rule is that even should she marry, she can claim the legacy and need not comply with the further charge.”132 The Roman prohibition on general restraints against marriage, however, was clearly not, as is often the modern rationale, due to the belief that the decision of marriage should be free and not subject to external constraints of forces. Although free consent of the parties to a marriage was important,133 restrictions on the unfettered choice of mate were not uncommon in Roman times. For example, betrothals arranged by the parents of the couple—often years in advance—frequently occurred in classical Roman times.134 In fact, an entire title of the Justinian’s Digest is devoted to juristic commentary on the institution of betrothals.135 Moreover, a provision restricting

129 THE CODE OF JUSTINIAN, in 14 THE CIVIL LAW, supra note 107, bk. VI, tit. XLI, § 1 [hereinafter J. CODE]. 130 JUST. INST., supra note 108, bk. II, tit. XX, § 36. 131 Id. 132 DIGEST, supra note 107, bk. 35.1.22. 133 See, e.g., Charles Donahue, Jr., The Case of the Man Who Fell into the Tiber: The Roman Law of Marriage at the Time of the Glossators, 22 AM. J. LEGAL HIST. 1, 6-11 (1978) (discussing consent in Roman marriage law). Although consent was less important for the more ancient forms of marriage, by the second century, when marriage by confarreatio, coemptio, and usus had died out, consent became the hallmark of marriage. See JÉRÔME CARCOPINO, DAILY LIFE IN ANCIENT ROME: THE PEOPLE AND THE CITY AT THE HEIGHT OF THE EMPIRE 80-85 (E.O. Lorimer trans., 2d ed. 1941). 134 For discussion on the prevelancy of betrothals, see CARCOPINO, supra note 133, at 80-84. 135 See DIGEST, supra note 107, bk. 23, tit. 1. Although the consent of the couple was required for a betrothal to be effective, see, e.g., id. bk. 23.1.7; id. bk. 23.1.11; id. bk. 23.1.13, it appears that the consent of a daughter in power could often be presumed, see, e.g., id. bk. 23.1.7; id. bk.


marriage to a particular individual (e.g., granting a legacy to an individual “if she marry Titius”) was perfectly valid, unless Titius was the kind of person who would “demean her,” such that he would be unsuitable and thus the condition would have the effect of a general prohibition on marriage.136

Rather, Roman texts support the view that these conditions are disfavored because they would discourage procreation. Thus, any condition in a legacy, such as one granting property if a person does not marry in a particular city, would be void if the situation was that the transferee “would not find marriage easy elsewhere.”137 Such a provision would run counter to the “the common good, namely, the procreation of issue.”138 Unquestionably procreation was important in Roman times and was a significant part of Roman marriage. It is not a coincidence that the age of marriage was the age of puberty in Roman times.139 For a variety of reasons, however, childlessness became problematic at the end of the first and the beginning of the second century.140 Legislation further encouraged children by allowing husbands and wives to inherit more from each other if they had children than if they did not.141

23.1.12, and a daughter could “only refuse to give her consent where her father chooses someone who is unfit for betrothal because of his bad behavior or character.” Id. 136 Id. bk. 35.1.63. 137 Id. bk. 35.1.64. 138 Id. Militating against this interpretation, however, is the idea that if procreation were such an important part of Roman society and marriage then the legacies ought not be awardable until procreation had occurred. The contrary, however, was true. Ulpian writes that “[w]here a legacy is left to a woman under the condition, ‘if she marries within the family,’ the condition is treated as satisfied as soon as she is taken to wife, even though she has not yet entered her husband’s bedchamber; for it is consent, not sleeping together, which makes a marriage.” Id. bk. 35.1.15. Other texts from the Digest confirm that consummation was not required for a marriage to be valid. See, e.g., id. at 23.2.6-7. For further interpretation of fragment 6 of Title 2 of Book 2 of the Digest and its application in the medieval times, see Donahue, supra note 133. 139 See, e.g., DIGEST, supra note 107, bk. 23.2.4; JUST. INST., supra note 108, bk. I, tit. X, pr. The Sabinians and Proculians, however, debated the question of when someone had reached the age of puberty. See, e.g., GAIUS, INSTITUTES, supra note 107, at 138. Justinian settled on the objective test of fourteen years of age for boys and twelve for girls. JUST. INST., supra note 108, bk. I, tit. 22, pr. As important as it was, it does not appear that the ability to procreate was an essential element of a Roman marriage, see, e.g., DIGEST, supra note 107, bk. 23.3.39, 1 (discussing the ability of eunuchs who have not been castrated to marry, but denying that castrated eunuchs have such ability); id. bk. 50.17.30 (“Agreement and not sleeping together creates marriage.”); see also JOHN CROOK, LAW AND LIFE OF ROME 90 B.C.-A.D. 212, at 100 (1984). For an interesting discussion of Digest 23.3.29, 1 and other interesting Roman family law texts, see BRUCE W. FRIER & THOMAS A.J. MCGINN, A CASEBOOK ON ROMAN FAMILY LAW 29 (2004). 140 CARCOPINO, supra note 133, at 90. 141 Ulpian discusses this as a consequence of the Lex Iulia et Papia Poppaea. See RULES OF ULPIAN, supra note 108, tit. XVI. For modern scholarship on such legislative incentives, see RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS ch. 6 introductory note (1983); WILLIAM M. MCGOVERN, JR. & SHELDON F. KURTZ, WILLS, TRUSTS AND ESTATES INCLUDING TAXATION AND FUTURE INTERESTS 192 (2d ed. 2001); Browder, supra note 105, at 1288.


If the restraint on marriage, however, was partial, such as a legacy to a woman, “‘if she does not marry Titius’ or ‘Titius, Seius, or Maevius,’” then generally the restraint would be valid and the legacy would be lost if she married any of them.142 Similarly, restraining remarriage appears to have been excepted from the general Roman disfavor for restraints of marriage. A decree from the Emperor Gordian in 242 clearly states that “[w]hen a legacy has been left to a woman under the condition that she shall not marry again after the death of her husband, and, by doing so, she fails to comply with the condition, the legacy can, for this reason, under no circumstances, be claimed.”143

Although some examples of conditions on marriage appear in early Anglo-Saxon will-like transfers,144 English law appears to have adopted many of these Roman results wholesale and then transmitted them to unquestioning and uncritical American courts.145 As Olin Browder has stated: “It seems that the marriage restraint rules first appeared in the ecclesiastical courts. The canon law was based in great part upon the civil law, and in the treatment of marriage restraints the civil law was imported in toto.”146 As early as 1768 for example, English courts noted that contracts generally restraining marriage were void and not allowable.147 Similarly, other courts, citing Justinian’s Digest, concluded that although a restraint on a widow’s remarriage was valid, one that generally restrained future marriages “[wa]s not good, which was the rule in the civil law, as appears from the Digest.”148 Just as in Roman times, the reason for the invalidity of such conditions was that “it is contrary to the Procreation of Children, and repugnant to the Law of Nature, and hurtful to the Commonwealth.”149

With regard to second marriages, English courts, like the Romans, thought it was obvious that “there may be very essential distinctions between a first and second marriage.”150 In Allen v. Jackson, the court upheld a disposition to a niece and her husband and then to the survivor,

142 DIGEST, supra note 107, bk. 35.1.63. 143 J. CODE, supra note 129, bk. VI, tit. XL, § 1. Gordian III, a young Emperor to be sure, was born in 225 and thus would have been seventeen at the time of this proclamation. See generally MICHAEL GRANT, THE ROMAN EMPERORS: A BIOGRAPHICAL GUIDE TO THE RULERS OF IMPERIAL ROME 31 B.C.-A.D. 476, at 149-51 (1985). 144 See, e.g., ANGLO-SAXON WILLS, supra note 36, at 22-25. 145 See, e.g., Scott v. Tyler, (1788) 29 Eng. Rep. 241, 260 (“All the authorities upon the subject are bottomed on the civil law.”). 146 Browder, supra note 105, at 1291. 147 Lowe v. Peers, (1768) 98 Eng. Rep. 160 (KB); see also Scott, 29 Eng. Rep. 241. But see Browder, supra note 105, at 1293 (stating that “no conclusive statement can be made regarding the legality of general restraints by the early common law”). 148 Marples v. Bainbridge, (1816) 56 Eng. Rep. 217, 218. 149 HENRY SWINBURNE, 1 A TREATISE OF TESTAMENTS AND LAST WILLS pt. IV, 282 (7th ed. 1793). 150 Allen v. Jackson, (1875) L.R. 1 Ch. D. 399, 406 (1875) (Eng.).


unless the husband survived and remarried.151 Similarly, partial restraints on marriage were also allowable. Mimicking Roman texts, the court stated, “A condition to marry, or not to marry Titius or Maevia is good,” as is one limiting marriage to a certain age or to certain place.152 For example, where a father leaves his daughter a legacy “if she should not marry one Bacon,” then violation of the condition constitutes forfeiture of the legacy.153

English courts, however, added traditional English concepts and classifications to the Roman rules. Thus, distinctions arose between devises of real property and legacies of personalty: “[D]evises of land, with which the Canon law never had any concern, should follow the rule of the Common law; and that legacies of money, being of that sort, should follow the rule of the Canon law.”154 If a legacy of personal property contained a restraint on marriage in the form of a condition subsequent, the provision had to contain a gift over. Otherwise, it would only be considered in terrorem.155

Furthermore, if a disposition is not made conditionally but rather as a limitation, e.g., if the legacy was awarded “so long as one remains unmarried” rather than “if one does not marry,” then such limitations were “agreeable hereunto are the Laws of this Realm of England.”156 In fact, English law provides a good and prominent example in which “one of the Kings of this Realm did grant his Sister the Manor of D. so long as she did continue unmarried. And this was admitted to be a good Limitation in the Law, but not a Condition.”157 If the legacy were classified as conditional rather than as a limitation, however, no beneficent motive of the testator could save it. Thus, in Morley v. Rennoldson, where a father left his daughter a legacy for “her maintenance and support until she attained twenty-one or married,” the court, after noting that limitations on gifts “until marriage [are] perfectly good,” invalidated the limitation because this case involved a “conditional gift in general restraint of marriage.”158

A later edition of Henry Swinburne’s work, A Treatise of Testaments and Last Wills, published in 1797, confirms these views. “The . . . Rule shall be this, That all Conditions against the Liberty of Marriage, are unlawful . . . if the . . . Legatary were never married before, for the Prohibition of the first Marriage is much more odious in

151 Id. at 406-07. 152 Scott v. Tyler, (1788) 21 Eng. Rep. 448, 452-53. 153 Jarvis and Ux v. Duke, (1681) 23 Eng. Rep. 274. 154 Scott, 21 Eng. Rep. at 452. 155 Marples v. Bainbridge, (1816) 56 Eng. Rep. 217, 219. 156 Catharine Low v. Newsome Peers, (1770) 97 Eng. Rep. 138, 144. 157 SWINBURNE, supra note 149, pt. IV, 285. 158 Morley v. Rennoldson, (1843) 67 Eng. Rep. 235, 236-41; see also Browder, supra note 105, at 1295.


Law than the Second.”159 On the other hand, “when . . . the Prohibition doth only exclude some Persons: As for Example; the Testator doth . . . giveth thee an hundred Pounds, if thou do not marry a Widow; this Condition is not unlawful.”160 By the time William Ward writes his treatise on legacies in 1837, he cites Swinburne and the above cases as established law in addition to stating that “[t]he most usual conditions annexed to gifts by will are those in restriction of marriage.”161

In the early nineteenth century, American courts began to cite English cases on these matters as governing authorities. For instance, in Phillips v. Medbury, the court evaluated a will in which a testator devised his real estate to his wife until his son reached twenty-one, “if she should so long live a widow.”162 After her death, the testator’s residuary legatee filed an action of “ejectment” against the second husband of the testator’s wife.163 In concluding that the “widow, by her intermarriage, forfeited all right to the land in question,” the court evaluated the policy arguments for and against such a conclusion. Citing the English case of Lowe v. Peers, which involved a contract not to marry, the court observed the “salutary rule of common law” that bonds not to marry are “void.”164 Wills, however, were not the province of the common law, but the court of chancery, which, to some extent, adopted the rules of canon law, requiring an examination of the reasonableness of the restraint, at least when legacies of personal property were involved.165

2. Religion

Just as with conditions on marriage, the law on conditions

regarding a beneficiary’s religious choices tends to be a product of history. Unlike modern law, Roman law contains no great examples of testamentary restrictions or conditions regarding religion. This is not surprising given the secular nature of much of private law. Although religion did influence private law,166 “[t]he Romans did not, like the

159 SWINBURNE, supra note 149. 160 Id. pt. IV, 283. 161 WILLIAM WARD, A TREATISE ON LEGACIES: OR BEQUESTS OF PERSONAL PROPERTY 74 (Halstead & Voorhies 1837) (1826). 162 Phillips v. Medbury, 7 Conn. 568 (1829). 163 Id. 164 Id. 165 Id. 166 For example, an early form of litigation procedure, the legis actio sacramento, is believed to have had its origins in religious or sacral law. See, e.g., GEORGE MOUSOURAKIS, THE HISTORICAL AND INSTITUTIONAL CONTEXT OF ROMAN LAW 132-33 (2003). In ancient Roman times, the Roman king often issued legal pronouncements influenced by his religious duties. Id. at 54. Roman wills were often deposited for safekeeping with vestal virgins, young girls or


Hebrews, believe in a divine ordinance of their laws.”167 Moreover, much of Roman private life occurred apart from religious devotion. Roman society, at least until Constantine, was a pagan society.168 Although new gods and religious practices were incorporated or assimilated in Roman religion with some regularity,169 religion in Rome was more public than personal and thus not something likely to preoccupy the internal motivations of testators.170 Even by the time of the second century, the Romans appear to have been outwardly observant of religious practices but religion “had wholly lost its power over the human heart.”171

Relatively early English cases allowed testamentary conditions on a beneficiary’s religion. In Clavering v. Ellison, the House of Lords examined the will of a testator who left property to his grandchildren upon the condition that they “be educated in England and in the Protestant religion according to the rites of the Church of England.”172 The testator’s son had married a Roman Catholic woman from France, and the grandfather not only disapproved of the marriage but was concerned about the upbringing of his grandchildren.173 After the death of the grandfather, the court examined the applicability of the above provision in his will and concluded that the condition was not only enforceable, but that the legacy was properly awardable to the beneficiaries “not only [because there was] an entire absence of evidence of this condition being broken, but [but because] there [wa]s

women who were dedicated to the goddess, Vesta. See, e.g., MOSES DROPSIE, THE ROMAN LAW OF TESTAMENTS, CODICILS, AND GIFTS IN THE EVENT OF DEATH (MORTIS CAUSA DONTIONES) 23 (1892). Entire classes of things (i.e., sacred, religious, and divine) were viewed by the Romans as outside of private ownership. See JUST. INST., supra note 108, bk. II, tit. I, § 7. 167 HANS JULIUS WOLFF, ROMAN LAW: AN HISTORICAL INTRODUCTION 93 (1951). Although jurisprudence is said to be “knowledge of matters divine and human,” see, e.g., JUST. INST., supra note 108, bk. 1, tit. 1, § 1, the role of religion was, to the Roman mind, more a subject of public law than private law. See, e.g., DIGEST, supra note 107, bk. 1.1.1.2 (“Public law covers religious affairs, the priesthood, and offices of the state.”). Private law, however, according to Ulpian, concerns the civil law, the law of nations, and natural law. See id. Natural law, however, must not be equated with religion or divinely inspired law. Rather, Ulpian, defines it as “that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals.” Id. bk. 1.1.1.3. 168 This is not to suggest that Roman society did not contain Christian influences before Constantine. 169 See CARCOPINO, supra note 133, at 121-40. 170 The literature on the debate over the frequency of Roman will-making is well known. See, e.g., CHAMPLIN, supra note 40, at 41-63; David Cherry, Intestacy and the Roman Poor, 64 TIJDSCHRIFT VOOR RECHTSGESCHIEDENIS 155 (1996); John A. Crook, Intestacy in Roman Society, 19 PROC. CAMBRIDGE PHILOLOGICAL SOC’Y 38 (1973); David Daube, The Predominance of Intestacy at Rome, 39 TUL. L. REV. 253 (1964). 171 CARCOPINO, supra note 133, at 122. 172 Clavering v. Ellison, (1859) 11 Eng. Rep. 282, 284 (QB). 173 Id.


the presence of positive and express evidence that it was substantially complied with.”174

Not surprisingly, American courts quickly followed the English lead. In Magee v. O’Neill, the Supreme Court of South Carolina was faced with a challenge to a trust that contained a religious restriction.175 In Magee, a grandfather had left money in trust for his granddaughter to be paid to her at a later time, “provided she is educated in some Roman Catholic female seminary or school, and is reared as a Roman Catholic in the communion and faith of her deceased father.”176 When the granddaughter requested the money, the trustees refused, citing the noncompliance with the condition.177 The granddaughter then attacked the condition as being “void” and “in contravention of public policy.”178 After noting the absence of any express provision of law violated by such a disposition, the court concluded that the testator was free to make such a disposition and that a plurality of religious choices are protected by the United States Constitution.179 Although the disposition may have been “unkind and unnecessary,” the court found nothing “unlawful” or void about it.180

Thus, it is not surprising that Atkinson, writing in the 1930s, unequivocally states, “[g]ifts conditioned on the beneficiary’s adhering to, or abstaining from, certain religious beliefs are generally treated as valid.”181 For example, in In re Estate of Laning, the Pennsylvania Supreme Court, noting that its conclusion was “supported by the weight of authority,” upheld a provision in a will that allowed for the corpus of a trust to be distributed to children upon the attainment of a certain age and provided they be “members in good standing of the Presbyterian Church.”182

To suggest that the modern day approach to testamentary restrictions is historically based is an understatement. The law on religiously conditioned dispositions comes directly from early English cases. The law on maritally conditioned bequests is even older and has evolved little since the time of the ancient Romans. The changes that were made by English law have largely been abandoned in this country, and modern American law on this issue—at least in terms of outcome—looks more Roman than perhaps it ever has. American law now makes

174 Id. at 725. 175 Magee v. O’Neill, 19 S.C. 170, 178 (1883). 176 Id. 177 Id. 178 Id. at 180. 179 Id. at 185-87. 180 Id. at 190. 181 ATKINSON, supra note 62, at 362 (noting, though, that some courts have reached the opposite conclusion). 182 In re Estate of Laning, 339 A.2d 520, 521, 524 (Pa. 1975).


no distinction between legacies of personal property and devises of real property. Similarly, the distinction between a conditional legacy and one subject to a “special limitation” has been largely rejected, with the Restatement noting that “[l]ittle express justification exists for the technical condition-limitation distinction.”183 Although some of the rationales (but not all) have changed, the outcomes are to a large extent identical. Religious conditions are still valid, while prohibitions on first marriages are void. Restraints on remarriage are allowed, as are partial restraints on first marriages, at least to the extent they are not so broad as to constitute general ones.

B. Modern Reasons

Nothing is wrong with a law being old. Old laws are fine. The

civil law, and in fact much of Western law in general, owes a great deal to the Romans. Concepts of Roman pedigree or provenance exist throughout the private law. In fact, congruence between modern and ancient laws demonstrates a deep, shared, and institutional value system that has been transmitted by a people’s cultural ancestors.

Old law is only bad when it enshrines mores and values of a past that no longer fit with current expectations or conceptions of justice. Worse yet are old laws that sit not as relics in a museum of a bygone era but as shackles on the present, with chains of antiquated beliefs. Succession laws, it seems, are particularly susceptible to this problem.184 The prohibition on testamentary conditions is no exception.

Modern expansive theories of testation seem to militate in favor of allowing conditions (the approach taken for religious conditions) rather than invalidating them (the approach often taken for marital ones). Historical reasons for disallowing general restraints on marriage concerned the importance of and the need to encourage, rather than discourage, procreation. In societies involved in constant wars, as the Romans were, such a rationale is understandable. On the other hand, in a time of population explosion and increased population density, such a motive hardly seems necessary, and in fact promotion of such a policy may be viewed as irresponsible.

Testamentary conditions on marriage must be examined anew, not with a view of rejecting the old and replacing it for the sake of change, but with a critical eye and a readiness to jettison old concepts that no longer function in the modern day. In modern times, three theories are

183 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.1 reporter’s note 2 (1983). 184 See, e.g., Ronald J. Scalise Jr., Inheritance and the Surviving Spouse, in 6 MIXED JURISDICTIONS COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 104 (Vernon Valentine Palmer & Elspeth Christie Reid eds., 2009).


often used to invalidate conditions regarding marriage: (1) that the testator’s conduct in imposing such a condition is “antisocial”; (2) that an individual’s decision regarding marriage is of such a personal nature that it should not be influenced by external constraints; and (3) that the institution of marriage is fundamental to society, and thus it should not be discouraged. None of these rationales, however, adequately supports the modern approach. Moreover, when considered in light of the permissive approach to religious conditions in wills, the treatment of marriage conditions is even less persuasive.

1. Antisocial Conduct

Having earlier rejected the minimalist approach to testation and put

aside the historic rationale for disallowing many testamentary conditions, there may be still other legitimate modern reasons for not allowing testamentary conditions on marriage or religious choices. The first rationale might be that to recognize as valid such dispositions would be to validate or sanction, in the words of the Restatement, “antisocial” motives of the testator.185 In other words, to enforce these types of bequest would allow the testator to penalize the beneficiary if he does not adhere to the “socially undesirable” effort of the testator to use his property as a means of “coercing” the beneficiary.186

Even if one adopts such a view, clearly a blanket prohibition of all conditions on marriage or religion would be overbroad. The influence exerted by a testator in making conditional legacies can be for good reasons or bad. A testator may condition a legacy to a beneficiary until he marries as a means of support, or a testator may seek to disrupt a beneficiary’s life by coercing him never to marry. A deep look into the motives or intent of the testator seems necessary to ascertain whether his purpose was a beneficent or malicious one. Or, in the approach of the Restatement, conditions prohibiting marriage are allowed “only when the dominant motive of the transferor is found to have been the provision of support until marriage.”187

This rationale, however, has both practical and theoretical problems. First, the practical problem is obvious. Ascertaining the internal motivations of a deceased testator poses challenges of proof. Although courts, especially probate courts, are accustomed to ascertaining testamentary intent, they are not well-practiced in investigating subjective motivations. Some commentators have

185 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.1 cmt. (a) (1983) (characterizing the testator’s conduct is “socially undesirable” and “antisocial”). 186 Id. 187 Id.


properly criticized this subjective examination by courts as inviting “potentially limitless speculation” by courts.188

French courts deal with this problem regularly. Although ancient law in France declared null clauses imposing celibacy or disfavoring second spouses, clauses of widowhood were upheld.189 After the enactment of the Civil Code, however, all such conditions had to be considered under the ambit of article 900, which now declares that “impossible conditions and those which are contrary to law or morals are deemed not written.”190 Pursuant to that article, the courts in applying article 900 perform a “cause” analysis, which examines the reasons or motives for imposing the condition and upholds such clauses, unless they are immoral.191 As French scholars have observed for over one hundred years, “the illicit or immoral character of a condition or a charge does not depend on the nature of the act that is its object, but it is the intention that governs. It is only illicit or immoral if it urges the commission of an illegal or immoral act.”192

The French experience in this matter is instructive but not easily transplantable to the United States. To begin with, some scholars have noted that the idea of cause “is one of the most difficult for a common lawyer to grasp and this difficulty is exacerbated by the uncertainty, dispute and disparateness which surrounds it.”193 Even if one discounts the nuances of the French doctrine of cause and equates cause merely with motive for acting,194 French judges have much more experience in examining and ascertaining motives in this context than do their American counterparts. While American judges usually limit investigations of intent to tort claims, French courts examine motives regularly in the other areas of private law, such as successions and

188 Sherman, supra note 7, at 1309-11. 189 PHILIPPE MALAURIE, LES SUCCESSIONS, LES LIBERALITES 193 (3d ed. 2008). 190 CIVIL CODE [C. CIV.] art. 900 (Fr.). Although this prohibition in Roman times was limited to wills, the French, for political reasons, maintained the rule and expanded it after the Revolution to include all donations. MALAURIE, supra note 189, at 208. The concern, understandably in some sense, was that conditions or charges would be inserted into donations that would reconstitute a social order that had been rejected by the revolution. Barrère is reputed to have written that to allow such conditions would allow the aristocracy, “the intolerant and the enemy of the Constitution [to] command again from their graves.” Id. at 209 (quoting Merlin). This is similar, but not identical to, the approach taken for illegal, impossible, or immoral conditions in contracts. In that situation, the entire obligation is null. C. CIV. art. 1172 (Fr.). 191 MALAURIE, supra note 189, at 193. 192 Id. at 210. 193 JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 323 (1st ed. 1998) (discussing cause in the contractual context); see also F.H. LAWSON, A.E. ANTON & L. NEVILLE BROWN, AMOS & WALTON’S INTRODUCTION TO FRENCH LAW 166-67 (2d ed. 1963); BARRY NICHOLAS, THE FRENCH LAW OF CONTRACT 118-19 (2d ed. 1992). 194 See, e.g., LAWSON, ANTON, & BROWN, supra note 193, at 167 (stating that French jurists developed theories, which “in their most extreme form, assimilate cause and motive”).


contracts.195 In addition to examining testamentary conditions for motives, breaches of contract in France may sometimes involve examinations of motive—an idea antithetical to American law. Although a breach of contract in the United States is without regard to fault,196 in France, the breach or inexécution of a contract that is a result of the dol (fraud or bad faith) of the debtor may result in increased damages.197 At least in theory, even contractual formation is a subjective inquiry,198 and all contractual breaches in French law (and to a lesser extent in German law too)199 must involve some sort of contractual fault.200 In fact, in French law, cause is an essential element for all juridical acts.201

Even for French courts, however, the nature of this subjective inquiry is problematic, as scholars have noted. Because of the necessity and difficulty of looking into a person’s intent, the judge has almost necessarily been given great power and discretion in deciding these matters.202 And while limiting proof of “illicit motive” to evidence provided on the face of the will could make this subjective enterprise more objective and manageable, French law rejects that limitation and allows extrinsic evidence to be admitted.203 Although this subjective approach for conditional bequests is a hallmark of French law and French-inspired laws, even the Romans abandoned the subjective

195 C. CIV. art. 1133 (Fr.) (defining illicit cause); see also BELL, supra note 193, at 327 (noting the subjective approach to this aspect of cause). 196 See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 235 & cmt. b (1981) (“When performance is due, however, anything short of full performance is a breach, even if the party who does not fully perform was not at fault and even if the defect in his performance was not substantial.”). 197 C. CIV. art. 1153 (Fr.). 198 See generally Wayne Barnes, The French Subjective Theory of Contract: Separating Rhetoric from Reality, 83 TUL. L. REV. 359 (2008) (arguing that, with respect to contract formation at least, great similarities exist between the French subjective approach and the objective approach of much of the rest of the world). 199 See, e.g., Stefan Grundmann, The Fault Principle as the Chameleon of Contract Law: A Market Function Approach, 107 MICH. L. REV. 1583, 1586-89 (2009) (arguing that the new section of the German Civil Code on breach of contract, section 276, like many systems, embodies a nuanced fault approach). For the approach to breach embraced by scholars of European unification, see THE COMMISSION ON EUROPEAN CONTRACT LAW, PRINCIPLES OF EUROPEAN CONTRACT LAW: PARTS I AND II arts. 8:101, 8:108 (Ole Lando & Hugh Beale eds., 2000) (making a breaching party liable for “non-performance,” unless it is excused). 200 See BELL, supra note 193, at 340. 201 C. CIV. art. 1131 (Fr.) (“An obligation without cause, or on a false cause, or on an illicit cause, can have no effect.”). 202 MALAURIE, supra note 189, at 210; FRANÇOIS TERRE & YVES LEQUETTE, DROIT CIVIL: LES SUCCESSION, LES LIBERALITES 254 (3d ed. 1997). 203 MALAURIE, supra note 189, at 193-94. A clause imposing celibacy similarly contains nothing that per se is illegal or immoral, unless it was issued by caprice, reprehensible motives, or inspired by desires contrary to the social order. Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., Nov. 8, 1965, Gaz. Pal. 1966, 1, 55.


distinction between unenforceable “penal” legacies and allowable “conditional” ones because of this proof problem.204

The second problem is less practical but highlights the theoretical inconsistency with this subjective approach as applied in the United States. First, although malign motives matter for clauses restraining marriage, they matter not at all for conditions on religious beliefs, which are generally valid. In addition, outside the strict context of wills, the Restatement (Third) of Trusts also notes that public policy limitations on trust provisions are “generally concerned with the objective effects of a provision rather than with the settlor’s underlying motive(s).”205 Similarly, the Restatement of Contracts, in discussing the allowability of conditions imposed in contracts, “follows an objective standard of reasonability, never taking into consideration why a party to the contract imposed the condition.”206

Similarly, if motives matter so much, “why do we not invalidate a malignly motivated unconditional bequest?”207 The French, of course, do just that. French scholars have noted that, “the judge can annul a liberality if the motive is illicit or immoral.”208 This prohibition was historically most evident in donations made between concubines.209 Although prior to the enactment of the Civil Code in France donations to concubines were prohibited, after 1804 the matter was only regulated by the theory of cause.210 If the cause in making a donation was immoral (e.g., to establish or maintain a relationship outside of marriage), then the donation was null.211 “Little by little the jurisprudence became less rigorous and, most often, the gift was declared valid because proof of an immoral intention was not established.”212 In 1999, however, the Court of Cassation definitely stated that a donation made with the intent to sustain an adulterous relationship was no longer immoral.213 The court iterated the same view in 2004.214 As one French author has stated, “the legal regime governing gifts between concubines has profoundly evolved over time.”215 Although its applicability to donations between concubines is 204 See supra text accompanying notes 122-131. 205 RESTATEMENT (THIRD) OF TRUSTS § 29 cmt. (j) (2003). 206 Hirsch, supra note 13 (manuscript at 16) (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 189-90). 207 Sherman, supra note 7, at 1310. 208 It is not just any hint of immorality, however, that serves as a basis for the invalidity. Rather, the immorality must be the “impulsive and determinative cause.” TERRE & LEQUETTE, supra note 202, at 254. 209 MALAURIE, supra note 189, at 188. 210 Id. 211 Id. 212 Id. 213 Id. 214 Id. 215 Id.


no longer an issue, the subjective theory of cause or motive still undergirds the French law of donations and all other juridical acts.

Furthermore, just as with unconditional donations and conditions on remarriage, in the case of partial restrictions, “antisocial” conduct—or more appropriately internal subjective motivations—are not at issue at all. Rather, both courts and commentators traditionally explain the approach to partial restraints by arguing that they must allow the beneficiary a sufficient number of available candidates for marriage. In other words, “courts often, though not consistently, direct their attention not to the arbitrariness of a restraint’s content but to the extent of its reach.”216 The Restatement allows such partial restrictions if “the restraint does not unreasonably limit the transferee’s opportunity to marry.”217 This rationale is particularly evident when the restraint applies to only one person whom the testator does not want his beneficiary to marry. In such cases, courts would uphold the restraint because “the remaining number of permissible marriage partners is normally adequate.”218

The American approach to partial restraints on marriage is puzzling. The dominant approach seems to treat potential spouses as fungible goods, much the way courts treat commodity disputes in a breach of contract case in which non-breaching parties can go into the open market and easily replace the commodity they were deprived of. Such an approach seems at odds not only with a type of soul mate celebrated in romantic literature219 but also with the Restatement’s earlier view of the personal importance and individual significance of a marriage. Moreover, a will partially restraining marriage from one’s intended can have the same effect as a will prohibiting marriage in toto. In describing the plight faced by a woman prevented from marrying her true love, one seventeenth century court poetically observed that although “she [is] being only prohibited to marry with one man by name, . . . nothing in the whole fair garden of Eden would serve her turn, but his forbidden fruit.”220

The unsatisfactory nature of the subjective approach, then, is evident. From a proof perspective, ascertaining the motive of the testator and evaluating its character is perhaps both futile in its effect

216 Sherman, supra note 7, at 1319. 217 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.2 (1983). 218 Id. § 6.3 cmt. b. 219 See, e.g., WILLIAM SHAKESPEARE, ROMEO AND JULIET prologue (Peter Holland ed., Penguin Books 2000) (making reference to a “pair of star-cross’d lovers”); PLATO, THE SYMPOSIUM, in THE REPUBLIC AND OTHER WORKS 317, 334-37 (Benjamin Jowett trans., Anchor Books 1973) (recounting a speech of Aristophanes, which discusses a story of Zeus splitting creatures of four arms and four legs in half and describing human love as the search for one’s other half). 220 Jarvis and Ux v. Duke, (1681) 23 Eng. Rep. 274.


and wasteful in terms of judicial resources. From a theoretical viewpoint, the approach is no more satisfying. For reasons that are still unclear, here and here alone motives seem to be important. If the bequest is unconditional or if the bequest is less expansive in its marital conditions, the testator’s subjective intent is ignored. Thus, the offending quality behind these conditional legacies must lie elsewhere.

2. Interfering with Important Choices of the Beneficiary

To that end, some have argued that the real problem with marital

conditions in donations is that they interfere with the beneficiary’s ability to make important life choices (e.g., choosing a mate) for himself. The Restatement (Third) of Trusts makes this clear, stating that such conditions are invalid because they impose a “socially undesirable inducement for beneficiaries to exercise or not to exercise fundamental rights that seriously affect their personal interests and lives, and usually also those of others.”221 Here, then, the focus has shifted away from the subjective antisocial motives of the testator and on to the objective effect that such an inducement might have on a beneficiary’s ability to freely make essential decisions for himself.

The right to marry, after all, is a fundamental right.222 It is protected by the Constitution, and intrusion is not allowed. As the United States Supreme Court recognized in the famous case of Loving v. Virginia, in which it struck down a Virginia miscegenation statute:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry may not be restricted. . . . Under our Constitution, the freedom to marry or not marry, a person . . . resides with the individual and cannot be infringed by the State.223

Loving, Skinner v. Oklahoma, and other cases are important in establishing the fundamental status of the right to marry—a right so important that it merits constitutional status and protection from state interference. Be that as it may, private discrimination, i.e., discrimination between private individuals, happens and is allowable for good, bad, and arbitrary reasons. Parties to the marriage themselves undoubtedly discriminate in their selection of mates. Some people prefer tall spouses, while others choose short ones. Some like redheads,

221 RESTATEMENT (THIRD) OF TRUSTS § 29 cmt. f (2003). 222 See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, art. 12. 223 Loving v. Virginia, 388 U.S. 1, 11 (1967); see also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down sterilization penalties).


but others prefer blondes. Racist or bigoted individuals are not attracted to members of other races or religions. As scholars in this country and abroad have noted, “[a]ll donative transfers are inherently discriminatory as will makers choose the objects of their bounty.”224 No specter of unconstitutionality exists in donations motivated by private discrimination because no state action is involved. The due process and the equal protection clauses of the Fourteenth Amendment apply not to private individuals but to the state and federal governments.

Shelley v. Kraemer, however, might suggest that the above analysis is too simplistic.225 In Shelley, the Court invalidated a racially restrictive covenant in a land deed that prevented African-Americans from occupying a residential premise.226 Although that case involved private restrictions imposed by private parties, which were sought to be enforced by neighbors as other private parties, the Court found that the Fourteenth Amendment was applicable nonetheless and thus invalidated the restriction because “the purposes of the agreements were secured only by judicial enforcement by state courts,” which undoubtedly constituted some state action.227

Similarly, then, one might reasonably conclude that a discriminatory testamentary provision imposed by a private actor (the testator) against another private actor (the legatee) and effective “only by judicial enforcement by state courts” might likewise be constitutionally invalid. In the testamentary restriction context, however, courts have limited Shelley to its facts. In every instance in which the constitutional argument under Shelley is brought, the court denies its applicability, usually without much explanation.

For example, in United States National Bank of Portland v. Snodgrass, the Supreme Court of Oregon evaluated a challenge to a will conditioning a donation on a beneficiary neither becoming a member of nor marrying a member of the Catholic church.228 The court noted that the First and Fourteenth Amendments “circumscribe state action . . . and in no way bear on a transaction of the character now before us.”229 In the words of the court,

Shelley v. Kraemer . . . is authority only for the proposition that the enforcement by state courts of a covenant in a deed restricting the

224 Sheena Grattan & Heather Conway, Testamentary Conditions in Restraint of Religion in the Twenty-First Century: An Anglo-Canadian Perspective, 50 MCGILL L.J. 511, 549 (2005) (contending, however, that religious conditions in wills treat one class of people as inferior); see also HEINRICH LANGE & KURT KUCHINKE, ERBRECHT 827 (2001) (stating, in relation to German law, that “voluntary inheritance allows the possibility of unequal treatment”). 225 Shelley v. Kraemer, 334 U.S. 1 (1948). 226 Id. 227 Id. at 13-14. 228 U.S. Nat’l Bank of Portland v. Snodgrass, 275 P.2d 860, 862 (Or. 1954). 229 Id. at 866.


use and occupancy of real property to persons of the Caucasian race falls within the purview of the Fourteenth Amendment as a violation of the equal protection clause.230

It does not, however, “shield against merely private conduct, however discriminatory or wrongful.”231

Similarly, in Gordon v. Gordon, the Supreme Court of Massachusetts upheld against a constitutional challenge a testamentary disposition to beneficiaries provided they marry individuals “born in the Hebrew faith.”232 The court noted that it “was not impressed” with the constitutional arguments because all the “testator did was to make gifts of his own property.”233 Shelley v. Kraemer, according to the court, “seem[s] to us to involve quite different considerations from the right to dispose of property by will.”234 An Ohio court in Shapira v. Union National Bank held similarly when evaluating the same argument with regard to a nearly identical testamentary condition.235 The condition in the legacy did not constitute a restriction on the legatee’s “constitutional right to marry.”236 Instead, it was merely a “restriction upon . . . [the] inheritance” of the testator’s son.237

Most recently, the Illinois Supreme Court in a well-publicized case, In re Feinberg, once again evaluated the will of a testator who sought to ensure his family’s allegiance to his religious faith.238 His will provided that any of his descendants who “married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be ‘deemed deceased’” for purposes of inheriting from him.239 Once again, the court rejected the analogy to Shelley and stated that “because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries.”240 Noting the wide criticism of Shelley, the court concluded that reliance on it was “entirely misplaced” and that Illinois courts had been reluctant to find state action “‘on the mere fact that a state court is the forum for the dispute.’”241

In short, then, in the testamentary restriction context, Shelley has not been extended by analogy. The argument is made frequently but rarely successfully that testamentary restrictions on marriage raise 230 Id. 231 Id. 232 Gordon v. Gordon, 124 N.E.2d 228, 235 (Mass. 1955). 233 Id. 234 Id. 235 Shapira v. Union Nat’l Bank, 315 N.E.2d 825 (Ohio. Ct. C.P. 1974). 236 Id. at 827. 237 Id. 238 In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009). 239 Id. at 891. 240 Id. at 904-05. 241 Id. at 905 (quoting In re Adoption of K.L.P., 763 N.E.2d 741 (Ill. 2002)).


cognizable constitutional issues. As others have argued, perhaps the holding in Shelley can be squared with the above cases because in Shelley the court was faced with the issue of acting discriminatorily by preventing (through state enforcement of a restriction) a “willing buyer and a willing seller” who had agreed on the sale of the property from completing their transaction.242 In the context of testamentary restrictions, however, the court is “acting neutrally, simply distributing the decedent’s property according to the decedent’s wishes, as a court would do in the case of any decedent. The discrimination is the testator’s, not the court’s.”243

In this regard, the constitutional implications of a testator imposing marital conditions in a will are the same as (or very similar to) those arising from the imposition of religious ones. Certainly, from an individual perspective, a person’s freedom of religion is no less constitutionally significant than one’s right to marry the person of his choosing. In fact, freedom of religion is arguably a more historically important and essential right of American citizenship than the right to marry. Courts have noted that “one of the most marked and distinctive features of our institutions is the perfect and unqualified freedom of opinion in matters of religion.”244 Religious freedom was one of the reasons for the creation of the American Republic, while freedom of marriage developed relatively late in American history.245 In contrast to marital freedom, freedom of religion is enshrined in the First Amendment to the Constitution, which prohibits the creation of a “law respecting an establishment of religion, or prohibiting the free exercise thereof.”246

Waxing historical, one court recounted the traditional importance of religious freedom in this country—something the above testamentary provisions might threaten if allowed:

It was the spirit of resistance to such encroachment which filled the sails of the May Flower, and wafted her, with the Pilgrim Fathers upon her decks, to their landing on Plymouth rock. It was the same spirit which brought Huguenots to Virginia and to South Carolina, Catholics to Maryland, Quakers to Pennsylvania, and Presbyterians to several of the colonies. Hence, nothing was more natural or more certain than that when the separation took place from the British crown, and the state of colonial dependence was replaced by a

242 Sherman, supra note 7, at 1316. 243 Id. 244 Magee v. O’Neill, 19 S.C. 170, 187 (1883). 245 See Loving v. Virginia, 388 U.S. 1, 12 (1967) (establishing that the freedom to marry is a basic civil right). 246 U.S. CONST. amend. I. Although the text of the Amendment prohibits “Congress” from making such a law, the Fourteenth Amendment has been held to incorporate the First Amendment and thus provide the same guarantees of freedom against the states. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-05 (1940).


separate and independent government, the rights of conscience and freedom of opinion in matters of religion, should have a prominent and well assured place in the new institutions.247

Although constitutional arguments in opposition to testamentary conditions on religion have been attempted, they have been even less successful than those regarding marriage. Some have argued that the protections afforded by Shelley v. Kraemer should extend beyond racially restrictive clauses and be applicable to religiously conditioned ones too.248 Putting aside the traditional “state action” problem that has historically prevented extension of this case and argument to the context of wills, courts have rejected the applicability of this approach on other grounds. At the outset courts have noted that allowing testamentary conditions regarding religion in no way equates to a “law respecting an establishment of religion.”249 Although a testamentary condition may affect a beneficiary’s “free exercise of religion,” courts have noted “it must be remembered that this does not impose any loss on them, for they never had any claim upon the bounty of the testatrix unless they satisfied the conditions she attached to it.”250

Even if constitutional rights are not implicated, however, arguments that emphasize the primary importance of marriage and religion, their significance in individuals’ lives, and the meaningfulness of an individual’s liberty of conscience in choosing his own mate and religion can still be important considerations. In fact, in both the areas of religious and marital choice, these arguments have had great resonance in Europe. With regard to religiously conditioned donations, French law, which uniformly regards such conditions as null, contains few modern examples or discussion of religiously conditioned legacies.251 The result is apparently so obvious in France that modern French scholars do not even discuss religious conditions when writing about conditional legacies.252 Older sources, however, make clear the reason for such invalidity:

[C]onditions which tend to restrain or constrict the liberty of conscience of the donee, and particularly to deprive him of his liberty to adopt or to change his religion, are considered illicit. . . . [The reason is that] the disposer claims the right to substitute himself for the beneficiary in the direction of his life inasmuch as he has

247 Maddox v. Maddox, 52 Va. 804, 812-13 (1854). 248 See, e.g., In re Estate of Laning, 339 A.2d 520, 525 (Pa. 1975). 249 Id. 250 Id. at 526. 251 Cour d’appel [CA] [regional court of appeal] Paris, 1e ch., Apr. 22, 1921, D.C. Jur. 1921, 49; Cour d’appel [CA] [regional court of appeal] Grenoble, 1e ch., Aug. 11, 1847, D.C. Jur. 1848, II, 113. 252 See, e.g., MALAURIE, supra note 189, at 184-89 (discussing clauses of inalienability, relative to marriage, and between concubines); TERRÉ & LEQUETTE, supra note 202, at 259-64 (discussing clauses of residence, widowhood, and celibacy).


money. There is in this, having regard for the French conception of the right of an individual to choose his own future and to change its direction, such a serious invasion of human dignity that it cannot be said . . . that the beneficiary is free to choose between the advantage of receiving the liberality and the advantage of retaining his complete liberty.253

German courts have similarly invalidated conditions affecting religious choice on these grounds. Conditions relating to a beneficiary’s religion violate section 138 of the BGB, which invalidates transactions that are contrary to good morals (gegen die guten Sitten).254 The test of “good morals” or “public policy” under section 138 is traditionally considered to be one relative to the “objective content of the disposition,” rather than the subjective motivations of the testator.255 If the result would be contrary to a sense of “decency of all fair and right thinking” people, then the disposition is null.256 In the context of religious conditions in particular, the rationale, as explained by scholars, is that such a condition so infringes upon the freedom of an heir to make such an important choice that some describe it actually as hindering one’s ability to freely choose his own religion.257 Article 4, Section 1, of the German Basic Law guarantees the inviolability of the freedom of belief and of conscience, as well as the freedom to adopt a religion and philosophical creed.258 Any impermissible attempt to assert influence on the voluntary decision of a beneficiary on a matter protected by the Basic Law is invalid.259

Older cases in a variety of states follow the European approach of holding a religiously conditioned bequest invalid because it interferes with one’s freedom of conscience.260 For example, in Maddox v. Maddox, the court examined a bequest made to a niece provided she remain a member of the Society of Friends.261 Several years later, she married a man outside the society and thereby ceased being a member

253 AUBRY & RAU, DROIT CIVIL FRANÇAIS, in 3 CIVIL LAW TRANSLATIONS 290, 290 n.14 (Paul Emstein ed., Carlos E. Lazarus trans., 6th ed. 1969). This approach is somewhat surprising because, as discussed above, the French approach with regard to marital conditions focuses more on the testator’s subjective intent than the objective effect on the beneficiary. Some French scholars, however, have criticized the approach of the French courts on these very grounds and advocated for the invalidity of all clauses that have the effect of restraining one’s liberty to marry. MALAURIE, supra note 189, at 194 (citing A. Huet, Les Atteintes à la Liberté Nuptiale dans les Actes Juridiques, REV. TRIM. DROIT CIV. 45-81 (1967)). 254 BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, REICHSGESETZBLATT [RGBL.] 1, § 138, available at http://www.gesetze-im-internet.de. 255 RAINER FRANK, ERBRECHT, IN GRUNDISSE DES RECHTS 49 (3d ed. 2005). 256 Id. at 48-49. 257 ANTJE VON UNGERN-STERNBERG, RELIGIONSFREIHEIT IN EUROPA 271 (2008). 258 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [BASIC LAW], May 23, 1949, Bundesgesetzblatt [BGBl], art. 4, § 1. 259 FRANK, supra note 255, at 49. 260 PAGE, supra note 61, § 44.28. 261 Maddox v. Maddox, 52 Va. 804, 805 (1854).


herself.262 In examining the validity of this condition, the court recited a parade of horribles that might befall society if such conditions were allowed:

[It is] pregnant with evil consequences. It holds out a premium to fraud, meanness and hypocrisy; it tends to corrupt the pure principles of religion, by holding out a bribe for external profession and conformity to a particular sect; and however pure and honest the motives of the beneficiary may be, he is yet rendered an object of distrust and suspicion; . . . it hampers the conscience, holds out inducements to stifle its voice and to resist the force of reason and honest conviction; it tends to destroy true religion, and to replace it with what is false and counterfeit.263

The German approach with regard to marital conditions is the same. Article 6, Section 1 of the Basic Law grants the institution of marriage and the family special protection.264 Attempts by testators to unduly assert pressure on a beneficiary to get divorced, for instance, are invalid and violative of section 138 of the BGB.265 In the words of one German author, “[t]he testator must not promise material benefits for such decisions, which according to general opinion are to be made free from coercion and third party manipulation and which should not be influenced by material considerations.”266

The weakness of the fundamental rights approach is two-fold. First, it is evident from a recent German case from Dusseldorf that the completely objective approach that focuses not upon the testator’s motives but upon the beneficiary’s freedom is in some instances unsatisfactory. There, the court held, despite the general German prohibition, that a mother could validly exclude her daughter from inheriting as long as the daughter remained a member of the Church of Scientology.267 The court did not open the door wide to such restrictions on religion; rather, the court noted that the mother’s reason for imposing the restriction was to ensure the survival of the family firm.268 In other words, the mother had a beneficent motive in imposing the condition upon her daughter’s legacy that furthered her daughter’s best interest. Some have appropriately remarked that this case (and perhaps others) demonstrates an emphasis on subjective intent of the

262 Id. 263 Id. at 814-15. 264 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [BASIC LAW], May 23, 1949, Bundesgesetzblatt [BGBl] art. 6, § 1. 265 FRANK, supra note 255, at 49. 266 HANS BROX & WOLF-DIETRICH WALKER, ERBRECHT 151 (2009). 267 OLG, Düsseldorf NJW 1988, 2615, 2616f; see also VON UNGERN-STERNBERG, supra note 257, at 271. 268 OLG, Düsseldorf NJW 1988, 2615, 2616f; see also VON UNGERN-STERNBERG, supra note 257, at 271.


testator,269 rather than the objective criteria of a “general sense of decency” shared by all right-thinking people. Thus this fundamental rights approach once again returns to a focus on motive that was discussed above and rejected. To the extent the mother’s testamentary disposition in this case was, as the European approach suggests, an infringement on her daughter’s fundamental right to choose her own religion, the testator’s motive ought not matter.

A second problem with the fundamental rights approach to prohibiting conditions is one of characterization. Although testamentary conditions are often referred to as testamentary restraints or restrictions, there is no “restraint” or “restriction” involved in these cases. To be sure, there is pressure; there is influence; and there is persuasion. Restraint or restriction, however, goes too far. The words “restriction” or “restraint” conjure images of a deprivation of freedom. Courts issue “restraining orders” and curtail the liberty of abusers from approaching their victims. The police “restrain” criminals and violent offenders. But giving a gift or leaving a bequest to someone under the condition that they do something is hardly a restraint. In fact, a better description of these situations would be to think of them as gifts with “strings attached” or, in some cases, as the proposal of a contractual relationship.270 In any event, “marital conditions in wills are a far cry from physically coerced marriage (or bachelorhood), which the state has an obvious interest in preventing.”271

Consider the hypothetical example of T, a testator, who leaves to B, his beneficiary, a legacy of $10,000, only if B does not marry. B had $100,000 of net worth prior to T’s death. After T’s death, B has two options. He can renounce the legacy from T and remain status quo—no better and no worse off financially than if he had never met T or than if T had never mentioned him in his will (something T certainly did not have to do). On the other hand, B can accept the legacy and now have a net worth of $110,000, but with an obligation not to marry, which he has voluntarily assumed. In short, in neither situation is B “restrained,” “restricted,” or “worse off” than he was. The only way to view B as in a worse position than he had been is to compare B’s status after having accepted the legacy with B’s status after having received the legacy, if the legacy did not contain a condition. Such a comparison of B’s alternate status might be something that B contemplates (i.e., B may

269 VON UNGERN-STERNBERG, supra note 257, at 257; Bart J. de Vos, Testamentary Freedom, Despotism and Fundamental Rights: A Critical Case Study on Drittwirkung, 5 EUR. REV. PRIVATE L. 801, 809-10 (2008) (noting that the German system in this regard exhibits a “harmonious combination” of the objective and subjective perspectives). 270 Hirsch, supra note 13 (manuscript at 16). 271 Id. at 21.


wish he were able to keep the $10,000 without having to agree not to marry), but it is clearly not a proper basis for comparison.

Barring conceptions of forced heirship that do not exist in America, B has no right to the status of an unconditional legatee and thus no valid right to complain or to object to T’s gift. In a society that allows for robust freedom of testation and the devolution of property after death for reasons other than purely instrumental ones, the beneficiaries have little objection. It is telling that American law classifies testamentary conditions affecting religious choices, unlike those affecting marital decisions, as a mere “inducement,” rather than an interference or restraint.272 Thus, these clauses are entirely allowable, which seems not only directly opposite of the rationale for not enforcing some marital restraints, but entirely compatible with the analysis provided above. After all, the will “does not impose any loss on them, for they never had any claim upon the bounty of the testatrix unless they satisfied the conditions she attached to it.”273

This is not to suggest that in all cases the absence of a positive restraint necessarily equates with freedom or free conduct. Others have persuasively argued that to truly be free one must have a certain minimal level of societal goods. This may include income, property, access to health care, and other goods.274 Debating the merits and demerits of this position is far beyond the scope of this Article. Conceding for the sake of argument that a certain minimum level of wealth is required does not change the general conclusion reached here and is, to a large extent, not relevant to the work of this paper. Simply put, the abject poor do not make wills. Statistical evidence suggests that there is a positive correlation between wealth and testacy.275 Some studies have suggested that less than only 14.7% of people with estates of less than $13,000 have wills.276

The reasons seem obvious. Although individual items of little financial significance often have great emotional importance, those with fewer financial assets have less reason to make wills and fewer assets to pass on. It is true that those making the wills may be wealthier than those taking under them. But a large wealth disparity between a testator and a beneficiary is not the kind of situation that implicates freedom.

272 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 8.1 reporters’ note 5. 273 In re Estate of Laning, 339 A.2d 520, 526 (Pa. 1975). 274 See, e.g., AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999). 275 Alyssa A. DiRusso, Testacy and Intestacy: The Dynamics of Wills and Demographic Status, 23 QUINNIPIAC PROB. L.J. 36, 50-51 (2009); see also generally Ronald J. Scalise Jr., Honor Thy Father and Mothers?: How Intestacy Law Goes Too Far in Protecting Parents, 37 SETON HALL L. REV. 171, 201-02 (2006) (discussing several other studies). 276 Mary Louise Fellows, Rita J. Simon & William Rau, Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States, 1978 AM. B. FOUND. RES. J. 319, 338 (1978).


Rather, the type of deprivation from basic income and social services that may characterize lack of freedom may be more appropriately seen in instances of citizens of underdeveloped countries subject to famine and lack of basic human resources rather than instances in which a rich parent leaves a conditional legacy to a child who has not yet started earning a living. Moreover, because those favored in wills are usually close family members of the testator, 277 as are those usually subject to testamentary conditions, gross and extreme disparities that may be characteristic of deprivation of freedom are unlikely. Even when such atypical cases do exist, they hardly seem appropriate bases to serve as the foundation for a general rule.

Although no “restraint” exists by virtue of a conditional legacy, some find even the influence of money, which most certainly might exist, to be objectionable. Consider, for instance, an individual, A, who arrives in a remote region of the United States and attempts to convert a small village of atheists to Christianity. After years of preaching and Bible study, she discovers that she has made little progress. The atheists have heard her sermons and read her books but not embraced her religion. Frustrated, A resorts to paying the atheists to convert. Any atheist who will embrace Christianity and regularly attend church will receive $1000. Eager to receive the money, the atheists line up to convert. Although such a strategy on A’s part is likely to be a hollow victory in terms of the atheists’ true beliefs, A, by paying the atheists to convert, has clearly not done anything illegal or unconstitutional. Suppose the success of A’s program is so great that the list of potential converts outstrips A’s lifetime, and A, to further promote her missionary work, continues the program in her will or via a trust. This situation, although perhaps foolish, seems no more offensive and intrusive than the very same transaction that occurred during A’s lifetime. In the words of one court, “[n]ot only is a citizen of this country entitled to the free expression of his religious beliefs, but he may by peaceful persuasion endeavor to convert others thereto . . . .”278

277 See, e.g., FINCH ET AL., supra note 1, at 70-73 (noting that in a sample of 735 English testators, “[n]on-kin appear in less than one-fifth of wills” and that only two percent of the wills in the sample bequeathed everything to non-kin); see also id. at 76 (noting that spouses and children are the most frequent categories of legatees in wills). 278 Application for Charter of the Conversion Ctr., Inc., 130 A.2d 107, 110 (Pa. 1957).


3. The Societal Importance of the Institutions of

Marriage & Religion

The third rationale often employed by courts and commentators focuses not so much on the importance of the decisions about marriage to the individual but rather on the importance of the institution of marriage to society. The underlying reason often proffered by courts for refusing to uphold such conditions is that “marriage is central to the preservation of family structure and hence of society and should not be restrained by conditional bequests.”279 It is, as the United States Supreme Court said, “fundamental to our very existence and survival.”280 The Roman orator Cicero has similarly argued that “the first bond” of society is that “between husband and wife” (i.e., marriage).281 Studies suggest that marriage benefits all parties—husband, wife, and children—although in different ways.282 For men, marriage correlates with longer lives, high income, and high education.283 For women, being married corresponds to increased mental health and a lower incidence of domestic violence.284 Moreover, children of married parents arguably have lower high school drop-out rates, lower rates of alcohol and drug abuse, and lower incidence of teen pregnancy and juvenile delinquency.285

Even in the absence of these benefits, some have argued that the law has a “norm-shaping” role to play with regard to marriage286 and that the law is often used as a “symbolic tool” (in the absence of any compulsory enforcements mechanisms for violations of marriage laws).287 Thus, divorce should be discouraged and marriage encouraged because the law has little else it can do in these areas. In terms of wills,

279 Sherman, supra note 7, at 1317. 280 Loving v. Virginia, 388 U.S. 1, 12 (1967) 281 MARCUS TULLIUS CICERO, DE OFFICIIS bk. I, ch. xvii, at 54 (Walter Miller trans., 1913). 282 See, e.g., Steven Stack & J. Ross Eshleman, Marital Status and Happiness: A 17-Nation Study, 60 J. MARRIAGE & FAM. 527, 534 (1998) (concluding that “[i]n 16 out of 17 analyses of . . . individual nations, marital status was significantly related to happiness”). The Stack and Eshleman study also concluded that “marriage increases happiness substantially more than cohabitation.” Id. 283 See LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY (2000). 284 See id. 285 ROBERT I. LERMAN, MARRIAGE AND THE ECONOMIC WELL-BEING OF FAMILIES WITH CHILDREN: A REVIEW OF THE LITERATURE 1 (2002) (reporting empirical evidence on how marriage affects the economic well-being of families with children to the U.S. Department of Health and Human Services). 286 Andrea B. Carroll, Incentivizing Divorce, 30 CARDOZO L. REV. 1925, 1926 (2009). 287 Id. at 1925-26.


this means that the law may help create a pro-marriage culture by not allowing conditions that discourage or preclude marriage.

Similarly, the concept of religion has historically been an important one to society as a whole. Several studies have linked religious participation to “higher levels of ‘life satisfaction,’” perhaps due in part to religion’s help in coping with crises in life.288 A recent study by a Princeton economist analyzing Gallup World Poll data from 146 countries found that, controlling for other variables, religion is generally associated with better health, as well as, for men, higher incidence of marriage and a greater likelihood of being treated with respect.289 Other scholars have found that a child with religiously active parents is less likely to affected by childhood poverty.290 These benefits cannot “be obtained simply by joining a church, or even by undertaking a serious conversion. People who are religious are almost certainly different from non-religious people in ways that go beyond their religiosity . . . .”291

Oddly, however, the American rationale for allowing religious restrictions seems grounded in the societal disinterest in an individual’s religious choices. The Restatement rationale says as much: “Generally, society is not concerned with either the particular religious creed of the individual or the sincerity of his beliefs. The individual is normally free, not only to believe as he chooses, but to promote his theological views among others.”292 Some have explained the tolerance of religious restrictions in wills in terms of the secularization of modern society. That is, “[i]n today’s more secular age, judges, confronted with a testamentary provision requiring a legatee to choose between pecuniary self-interest and sectarian loyalty, may be more inclined to regard the restraint indulgently as a mere unenlightened intrusion rather than an assault on the legatee’s sense of self.”293

Despite the difference between the approaches to marital and religious conditions, the institutions of marriage and religion do not

288 Religion ‘Linked to Happy Life,’ B.B.C. NEWS, Mar. 28, 2008, http://news.bbc.co.uk/ 2/hi/7302609.stm. 289 Angus Deaton, Aging, Religion, and Health 23-25 (July 2009) (unpublished manuscript), available at http://www.princeton.edu/~deaton/downloads/Religion_and_Health_All_August 09.pdf. 290 Rajeev Dehejia et al., The Role of Religious and Social Organizations in the Lives of Disadvantaged Youth, in THE PROBLEMS OF DISADVANTAGED YOUTH: AN ECONOMIC PERSPECTIVE 237 (Jonathan Gruber ed., 2009). Even one of society’s most notorious atheists, Betrand Russell, who viewed religion “as a disease born of fear,” admitted that religion made contributions to society, such as helping “in the early days to fix the calendar . . . and . . . to chronicle eclipses.” Bertrand Russell, Has Religion Made Useful Contributions to Civilization?, in WHY I AM NOT A CHRISTIAN AND OTHER ESSAYS ON RELIGION AND RELATED SUBJECTS 24 (Paul Edwards ed., 1957). 291 Deaton, supra note 289, at 29. 292 RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 8.1 cmt. a (1983). 293 Sherman, supra note 7, at 1314.


obviously have significantly different benefits for society. Just as religion can serve bad ends, such as prompting wars, inquisitions, and persecutions, so too marriage is not an unalloyed good. Marriages can be loveless; marriages can be oppressive; and marriages can be abusive. Although benefits, no doubt, flow to all parties in a good marriage, a bad marriage can “undermine[] psychological well-being” and “may result in even greater depression and lower life satisfaction than being unmarried.”294

For generations, marriage was a source of oppression and subjugation of women. In early Roman times, a woman who married “was said to be in the hand (manus) of her husband.”295 She was considered to fall within his potestas and took on a legal role similar to a daughter.296 At common law, marriage meant, among other things, the “assignment of a wife’s property rights to her husband. . . . The whole of her income, from whatever source it came . . . , belonged to her husband.”297 Early American women perhaps enjoyed a slightly better status, but significant improvement did not occur until the passage of a series of married women’s property acts in various states, beginning in Mississippi in 1839.298 Even later, the feminist movement in America objected to the subjugation of women in traditional marital arrangements, in which a wife was expected to give up a career for the rewards of family life.299 Various authors have described this domestication as “the housewife syndrome.”300 Even today, some suggest marriage provides far more benefits to men than it does to women.301

Furthermore, marriage does not appear to be “fundamental to our existence and survival.” In Cicero’s time, when marriage was a hallmark of a family, such a statement is understandable. John Crook, writing about Roman family law, states: “To the Romans marriage was an honorable estate, for the purposes of concordant life together and the begetting of children . . . .”302 Today, however, approximately one-third

294 Kristi Williams, Has the Future of Marriage Arrived? A Contemporary Examination of Gender, Marriage, and Psychological Well-Being, 44 J. HEALTH & SOC. BEHAV. 470, 485 (2003). 295 NICHOLAS, supra note 126, at 82. Although “free” marriage was the norm in the Empire, until the end of the Republic the “manus” marriage remained. See id. 296 Id. at 82. 297 A.V. DICEY, LECTURES ON THE RELATION BETWEEN LAW & PUBLIC OPINION IN ENGLAND IN THE NINETEENTH CENTURY 371-73 (2d ed. 1914). 298 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 209 (2d ed. 1985). 299 BETTY FRIEDAN, THE FEMININE MYSTIQUE (1963). 300 JESSIE BERNARD, THE FUTURE OF MARRIAGE 46-48 (2d ed. 1982). 301 See id. at 16-22. But see Williams, supra note 294, at 483 (“Research presented here indicates that, with few exceptions, continued acceptance of the existence of gender differences in the effects of marital status and marital quality on psychological well-being is unwarranted.”). 302 CROOK, supra note 139, at 99.


of children born in the United States are born outside of marriage.303 In 2006, for the first time, the number of children born outside of marriage in France exceeded that of those born to married parents.304

Moreover, cohabitation, which was once discouraged, is now commonplace. Between 1977 and 1997, the number of people cohabiting rose by a factor of almost five.305 Even more recently, the numbers have continued to rise. From 1990 to 2000, the number of cohabiting couples rose from 3.2 million to 5.5 million.306 Today, it is estimated that over 12 million unmarried partners live together in over 6 million households.307 Although these and other similar arrangements do not actively discourage marriage, they do provide alternative venues or choices for couples seeking to live together and perhaps raise a family together. Plainly then, raising children outside of marriage has not only become more prevalent but more acceptable.

All things being equal, though, the institution of marriage, on the whole, appears to benefit society. But conceding that the institution of marriage is “good” for society does not necessitate a conclusion that anything that discourages marriage is “bad” and should be prohibited. There are countless examples of perfectly allowable disincentives to marriage. The marriage tax penalty creates a disincentive to marry by subjecting a couple filing jointly to higher tax rates than two single individuals filing separately in a similar case.308 It is arguably no coincidence that the advent of “no-fault” divorce and the ease with which it may be obtained has brought with it a concomitant rise in divorce rates.309 Until 1997, the reduction of welfare benefits (under

303 Table 85: Births to Teens, Unmarried Mothers, and Prenatal Care, U.S. CENSUS BUREAU, http://www.allcountries.org/uscensus/85_births_to_teens_unmarried_mothers_and.html (last visited Mar. 28, 2011) (indicating that between 1994 and 1998 the percentage of births to unmarried mothers ranged from 32.2% to 32.8%). 304 Brian Rohan, Majority of French Children Born to Unwed Mothers, REUTERS (Jan. 15, 2008), http://www.reuters.com/article/idUSL1406071420080115. 305 Lynne M. Casper, Philip N. Cohen & Tavia Simmons, How Does POSSLQ Measure Up? Historical Estimates of Cohabitation fig.1 (U.S. Census Bureau Population Div. Working Paper No. 36, 1999), available at http://www.census.gov/population/www/documentation/ twps0036/twps0036.html. 306 U.S. CENSUS BUREAU, MARRIED-COUPLE AND UNMARRIED-PARTNER HOUSEHOLDS 1, http://www.census.gov/prod/2003pubs/censr-5.pdf. 307 U.S. CENSUS BUREAU, SELECTED SOCIAL CHARACTERISTICS IN THE UNITED STATES: 2005-2007, http://factfinder.census.gov/servlet/ADPTable?_bm=y&-geo_id=01000US&-ds_ name=ACS_2007_3YR_G00_&-_lang=en&-_caller=geoselect&-format=. 308 The Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub. L. No. 108-27, 117 Stat. 752 (2003), effectively eliminated the marriage tax penalty for those in lower income tax brackets. 309 For discussion of requirements and impact of divorce, see generally SANFORD N. KATZ, FAMILY LAW IN AMERICA 76-128 (2003); see also WAITE & GALLAGHER, supra note 283 (arguing that easy divorce laws undermine marriage). The social science data on the effect of no-fault divorce on divorce rates is split. See Leslie A. Whittington & James Alm, The Effects of Public Policy on Marital Status in the United States, in MARRIAGE AND THE ECONOMY: THEORY


the Aid to Families with Dependent Children (AFDC) program) to unwed mothers who marry was yet another example of the law’s discouragement of marriage.310 Some have even argued that various rules in some community property regimes tend to incentivize divorce because they allow creditors to seize “more of the spouses’ property after divorce than was permissible during the marriage.”311 In short, both federal and state laws are replete with allowable disincentives to marriage.312

Secondly, if marriage is such an important good, it is hard to see why remarriage in this context does not receive similar treatment. A second marriage is a marriage nonetheless—a marriage that may be productive of children and all other stabilizing forces. One English court as far back as the eighteenth century observed the anomaly in treating second marriages differently from first marriages: “There is no law to prevent widows from marrying, but they may marry ad infinitum: and yet conditions in a will to restrain them from marrying, have been held to be binding, though young enough to do great service to the publick in point of children.”313

Although second marriages may sometimes involve competition between first and second families, the priority in time does not necessarily create a priority in right. In fact, multiple marriages are so common that the intestacy laws of many states provide for this arrangement.314 Even a special name, the “starter” marriage (reminiscent of starter homes), has been created to describe the common phenomenon of first marriages that last less than five years and produce no children.315

In the context of testamentary conditions, some scholars have suggested that the historical rationale for allowing restraints on remarriage was protecting “the husband’s proprietary interest in his wife and progeny” or the modesty properly befitting a widow, arising from antiquated notions that such remarriages would be inappropriate.316 Certainly such sexist and old-fashioned rationales no longer motivate

AND EVIDENCE FROM ADVANCED INDUSTRIAL SOCIETIES 75 (Shoshana A. Grossbard-Shechtman ed., 2003). 310 See Jeff Grogger & Stephen G. Bronars, The Effect of Welfare Payments on the Marriage and Fertility Behavior of Unwed Mothers: Results from a Twin Experiment, 109 J. POL. ECON. 529 (2001) (finding that “higher benefits lead to longer times to first marriages among whites”). 311 Carroll, supra note 286, at 1927. 312 See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO/GGD 96-175, TAX ADMINISTRATION: INCOME TAX TREATMENT OF MARRIED AND SINGLE INDIVIDUALS (1996), available at http://www.gao.gov/archive/1996/gg96175.pdf; see also Whittington & Alm, supra note 309. 313 Harvey v. Aston, (1737) 26 Eng. Rep. 230, 235. 314 See, e.g., UNIF. PROBATE CODE § 2-102(2)-(3) (1990) (amended 2008). 315 PAMELA PAUL, THE STARTER MARRIAGE AND THE FUTURE OF MATRIMONY (2002). 316 Sherman, supra note 7, at 1319.


courts today.317 Such provisions (although perhaps more commonly imposed by male testators than female ones) now have the same effect irrespective of the gender of the transferor or transferee. Modern motives are probably influenced more by “posthumous jealousy” than by old-fashioned and outmoded conceptions of ownership or modesty.

The significance of the institution of marriage in today’s society has changed not because of testamentary restrictions but because of changing cultural attitudes, mores, economic demands, and a variety of other social forces that now effect subsequent generations. Fighting the national trends in marriage and divorce by restricting marital conditions in wills is at best futile and certainly inconsistent with the otherwise permissive approach to marital termination. At least some courts have begun to acknowledge this disconnect:

[W]e cannot ignore the deterioration of the marital relationship in our society over the last several decades nor pretend blindness to changing social attitudes toward the relationship between men and women. . . . [T]he recent developments in judicial decisions in response to changed attitudes toward marriage, persuade us that the policy of the law favoring marriage is without sufficient vigor to overcome the policy in support of effectuating a settlor’s intention.”318

The above examination has demonstrated the truth of the statement that “public policy is an unruly horse.”319 The judicial approaches with regard to conditions affecting marital and religious choices seem to be primarily a product of history and have thus resulted in rules that are products of rationales from a time now long gone. New rationales have been attempted, but the ad-hoc justifications for these rules do not withstand scrutiny, and it often appears that the judicial approach to testamentary conditions is as arbitrary as the testator’s motivating beliefs. Although the intent of the testator (e.g., in a restraint on marriage) is sometimes relevant as a saving or destructive force of such a condition, at other times (e.g., in a religiously restrictive condition), a testator’s intent is irrelevant. While the objective impact of a condition is sometimes viewed as the litmus test for a condition’s acceptability (e.g., in a partial restraint on marriage), in other instances the effect of a

317 In fact, even some early cases—although certainly not all—recognized the applicability of a prohibition on remarriage imposed by women upon men. See, e.g., Bostick v. Blades, 59 Md. 231 (1883) (“In the absence of any binding authority to the contrary, we are of opinion that there is no good and substantial ground for maintaining a distinction between a condition imposed in restraint of a second marriage of a woman and a like condition in restraint of a second marriage of a man.”). 318 In re the 1942 Gerald H. Lewis Trust, 652 P.2d 1106, 1108 (Colo. Ct. App. 1982) (citations omitted). 319 See Richardson v. Mellish, (1824) 130 Eng. Rep. 294, 304; RESTATEMENT (THIRD) OF TRUSTS § 29 general notes to cmt. c and cmts. i-i(2) (2003) (quoting SCOTT ON TRUSTS 62 (4th ed. 1987)).


condition (e.g., in a restraint on remarriage) is not considered. Thus, the vague and non-specific use of the term “public policy” has obscured the fact that little justification exists for the current treatment of maritally conditioned legacies. In light of America’s robust view of testamentary freedom, the logically consistent approach seems to demand a permissive policy regarding testamentary conditions.

IV. CONCLUDING OBSERVATIONS

It has been argued that the traditional “public policy” arguments

for not enforcing marital conditions in legacies are insufficient to support the modern approach of courts and inconsistent with the robust theory of testation that exists in the United States. Conversely, a strong theory of testation allows myopic and intolerant testators to impose such conditions. Allowing unwise conditions to be imposed in wills, however, does not mean that a flood of such conditions will result. In fact, pragmatic reasons suggest otherwise.

To begin with, most marriage or remarriage conditions apply to spouses. No change in outcome would result in this situation from current law, which already allows such conditional bequests. The proposed approach merely makes clear the rationale that allowing maritally conditioned bequests to spouses is part of a recognition of the broader right of free testation.

Moreover, practical reasons based in part on tax law and elective share rights also suggest no increase in such conditional bequests will occur. Gifts to spouses benefit from favorable tax treatment and thus an unlimited amount of property can be passed from the testator to his spouse tax-free. Section 2056 of the Internal Revenue Code denominates this ability as the “marital deduction.”320 In order to qualify for this favorable tax treatment, however, several conditions must be met, one of which is that the property not be the subject of a terminable interest.321 A terminable interest is one “[w]here, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail.”322 Thus, a gift to a spouse provided she does not remarry is a terminable interest and does not receive favorable tax treatment. In other words, “[c]onditional gifts [that] become effective only under certain conditions or if the spouse expressly agrees to meet certain substantive conditions . . . have been

320 I.R.C. § 2056(a) (2006). 321 Id. § 2056(b). 322 Id.


held to create nondeductible terminable interests” and thus not qualify for the marital deduction.323

Furthermore, almost all states provide a surviving spouse the ability to reject what is offered to him in a will, and elect against it by choosing to take his statutorily guaranteed share of the decedent’s estate, free and clear of all conditions, restrictions, or limitations. This is the so-called “elective share” right.324 Thus, a spouse might be faced with the option of taking a guaranteed statutory share free of all conditions or receiving property under the will, which may include a larger bequest but one subject to conditional provisions regarding her conduct.

Not all marital conditions, however, are imposed upon spouses. Sometimes, as the cases demonstrate, children or even more remote relations may be the recipients of conditional bequests. These restrictions may often be combined with religious ones, such that children receive bequests provided they join a certain church or marry someone of a particular faith. Even here, however, no great increase in the number of conditioned bequests need arise. As scholars have noted: “Religious conditions almost invariably present interpretive problems. How, for instance, does a court, unable to read minds, determine whether a legatee has complied with a condition requiring ‘adherence’ to a particular faith?”325 English courts have invalidated testamentary conditions regarding religion on these grounds,326 but American courts have been more reluctant.327 Imposing strict requirements of “certainty” or “definiteness” for such bequests is one way courts could give recognition to robust rights of testation while, at the same time, limiting vague and expansive impositions on beneficiaries’ conduct.

The above analysis does not necessitate that all conditional bequests be allowed.328 Some will still clearly be invalid. Conditions requiring a beneficiary to violate the law would still not be permissible. A bequest to an individual if he commits murder would, of course, be

323 GEORGE GLEASON BOGERT, GEORGE TAYLOR BOGERT & AMY MORRIS HESS, BOGERT’S TRUSTS AND TRUSTEES § 275.10 (2010); see also Rev. Rul. 82-184, 1982-2 C.B. 215; RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 6.3 cmt. e (1983). 324 See, e.g., UNIF. PROBATE CODE § 2-202 (1990) (amended 2008). 325 Sherman, supra note 7, at 1314. 326 See, e.g., Peter Butt, Testamentary Conditions in Restraint of Religion, 8 SYDNEY L. REV. 400 (1977); Grattan & Conway, supra note 224, at 522-25; Ken Mackie, Testamentary Conditions, 20 U. QUEENSLAND L.J. 38, 48-50 (1998). 327 See Francis M. Nevins, Jr., Testamentary Conditions: The Principle of Uncertainty and Religion, 18 ST. LOUIS U. L.J. 563, 589-600 (1973). 328 For instance, this Article and the above argument do not necessitate acceptance or rejection of conditions requiring destruction of some or all of the testator’s property—a topic of much modern discussion. See, e.g., John H. Langbein, Burn the Rembrandt?: Trust Law’s Limit on the Settlor’s Power to Direct Investments, 90 B.U. L. REV. 375 (2010); Lior Jacob Strahilevitz, The Right to Destroy, 114 YALE L.J. 781, 838-52 (2005). Strong public policy arguments, based in part on economic efficiency, might be made against such conditions.


invalid, as would a trust set up “for the purpose of securing, through bribery, legislation or administrative action favorable to their business activities.”329 Similarly, conditions encouraging the violation of non-criminal laws would also be prohibited. For example, a trust set up or a legacy bequeathed under the condition that the beneficiary “operate a factory on certain land [where] the factory operation would be a tortious nuisance to the owners of the adjoining lots.”330 would thus be unenforceable.

Conditions that would mandate the creation of discriminatory institutions of public accommodation, such as parks, libraries, and the like would similarly be invalid.331 Private educational institutions that were set up, for instance, under the condition that they educate only students of one race would clearly be invalid to the extent such an institution receives public money or funds.332 Moreover, nothing would preclude the elimination of a condition from a trust provision under the cy pres doctrine that allows for modification of a trust consistent with the testator’s charitable purposes to the extent the purpose of the trust has become “unlawful, impracticable, impossible to achieve, or wasteful.”333 Although some have argued that conditional legacies are problematic because a deceased testator, unlike a living donor, cannot “be persuaded to grant an extension or otherwise relax the condition,”334 such an observation does not gainsay the validity of conditional bequests.335 Rather, it argues for a more expansive application of cy pres outside its traditional charitable trust parameters in a way more similar, perhaps, to the approach in France, where judicial revision of the charges or conditions can be obtained when, because of a “change in circumstance, performance of the charge has become very difficult or seriously detrimental.”336

Moreover, in jurisdictions that maintain the Rule Against Perpetuities or at least some form of it, conditions restraining alienation beyond the requisite period would not be allowable. For example, if a

329 RESTATEMENT (THIRD) OF TRUSTS § 29 cmt. c (2003). 330 Id. 331 Evans v. Newton, 382 U.S. 296 (1966). 332 42 U.S.C. § 2000d (2006) (Title VI). Such limitations would apply to discrimination on the basis of gender and disability as well. 20 U.S.C. § 1681 (Title IX); 29 U.S.C. § 794 (Section 504). 333 UNIF. TRUST CODE § 413 (2005). 334 RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 18.6 (5th ed., 1998). 335 See Chalmers, supra note 51, at 102. 336 CIVIL CODE [C. CIV.] art. 900-2 (Fr.). Some have explained this law, enacted in 1984, as a sort of “imprevision” or a legal application of the idea of rebus sic stantibus. See MALAURIE, supra note 189, at 215. Even after such a transfer is allowed, a judge may order that the proceeds of the transfer be used for purposes that are compatible with the intent of the original donor. See C. CIV. art. 900-4. Such revision, however, is only allowable ten years or more from the donor’s death. Id. art. 900-5. In the case in which performance of the charges again becomes possible, the heirs of the donor may request re-imposition. Id. art. 900-7.


testator left a legacy in trust to his children, grandchildren, and great grandchildren if they convert to Judaism, such a provision might violate the Rule Against Perpetuities and thus be unenforceable under various states’ laws. Conditions violative of the Rule Against Accumulations should be treated likewise.

Because comparative analysis has been used throughout this Article, it is fitting that this work ends with a comparative observation. The twin concerns of testamentary conditions are that, on the one hand, allowing conditions allows financial encouragement by one now deceased of conduct by a living beneficiary that likely would not, but for the encouragement, be performed, and that, on the other hand, prohibiting such conditions seems plainly incompatible with broad American conceptions of testamentary freedom.

The dilemma, it is suggested, is due in part to the unease Americans have with testamentary freedom. Although testamentary freedom exists in America to an extent unimaginable in some foreign jurisdictions, broad conceptions of undue influence, for instance, scale back some of the more outrageous testamentary dispositions.337 Somewhat analogously, because American concepts of testamentary freedom are so expansive, public policy limitations on conditional donations are necessary to restrain some of the more intrusive and overreaching conditional dispositions.338

If a system of forced heirship existed, much the way an “elective share” right exists for a surviving spouse, the concern about testamentary overreaching might be muted. Under a system in which a child was guaranteed to receive a percentage or fraction of a parent’s estate, a legatee would have the option, much as a surviving spouse does today, to reject a conditional disposition and elect to receive his guaranteed share. Because America has rejected this approach, limitations driven by ad-hoc rationales have sprung up to cabin the more egregious cases, which almost always seem to involve descendants or spouses of the testator. The above analysis argues that the ad-hoc rationales used to invalidate testamentary conditions are inadequate, and the failure of these ad-hoc rationales inevitably leads to one conclusion: “Eccentricity, foolishness, spite and capriciousness are, . . . sadly, a product of the human condition,”339 and a robust theory of testation includes within it the right to condition legacies on personal, arbitrary, and sometimes ill-advised and foolish motives.

337 See generally Scalise, supra note 60. 338 See generally FINCH ET AL., supra note 1, at 23 (“It seems quite plausible therefore to argue that testamentary freedom can remain the basic principle of the law on inheritance only so long as most people exercise that freedom in ways which are consistent with the public interest, however defined.”). 339 Mackie, supra note 326, at 38.

public policy and antisocial testators

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