T HAS always been the policy of the law to encourage marriage, as that state has been declared to be the foundation of the family which in turn is the nucleus upon which the nation itself is built. This policy finds little opposition so long as the female to be sacrificed upon the matrimonial altar has not at any time been appropriated by any particular male. But once let the right of possession to said female vest in some male, then, for some unexplainable reason, the said male almost invariably revolts at the thought of the said female ever becoming the property of another of his sex.

Especially strong are his objections when he is about to quit this mortal sphere, leaving behind worldly goods of any considerable value. He does not, as a rule, seem to place so much value on the goods themselves, but appears to abhor the very thought of another of his sex getting the woman,-though goodness only knows why, as he certainly is done with her when he takes his departure, and just why he should seek to extend his sway beyond the earthly plane is somewhat of a mystery.

The testator usually takes the position that he is willing to leave his worldly goods to be enjoyed by his widow, but only on condition that she remain his widow. The thought that she may go unto another man rankles deeply at this time, and in order to prevent this he has, in innumerable cases, pitted his wits against the law in an effort to so word his testament that it would not contravene the law in restraint of marriage. By doing this, he at any rate had the conso

lation of knowing that if his widow did go to the arms of another man she would not take any of his property along with her.

The courts have for the most part strictly construed such wills against the testator, where there appeared any indication of an intention to restrain a second marriage; but in so construing they have in many cases followed devious lanes of reasoning,-reasoning that at times is difficult to understand.

The Indiana statute says: "A devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void." Burns's Anno. Stat. (1908) § 3123. In the case of Summit v. Yount, 109 Ind. 506, 9 N. E. 582, the testator used this expression: "I will and bequeath to my wife Sarah Radcliff,

so long as she remains my widow," etc. The court held the phrase, "so long as she remains my widow," to be words of limitation, and not of condition, therefore there was no condition in restraint of marriage, and that upon remarrying the widow lost the estate.

In Coon v. Bean, 69 Ind. 474, the testator devised to his wife "during her natural life, or so long as she may remain my widow." The court held in this case that the widow took the property for life, and would continue to hold said property even though she did remarry; ruling that if the testator had given her the estate simply so long as she remained his widow, she would then have come within the rule of Harmon v. Brown, 58 Ind. 207, taking only a limited estate, and upon remarrying would have lost it; but that the testator by coupling the phrase, "or so long as she remains my widow," on to, "during her natural life," was attempting to cut the estate by imposing a condition

in restraint of marriage, and that said condition was of course void. Thus the testator in Coon v. Bean was a trifle verbose; and had he simply said, "so long as she remains my widow," he would probably have had his wishes carried into effect. Or maybe he did not intend to impose a condition; possibly he used the last half of the sentence, "or so long as she may remain my widow," as synonymous with, "during her natural life." In that case the court unintentionally gave effect to the testator's real wishes, though in doing so it followed a line of reasoning that must have been foreign to said decedent. But if this is true, then in Summit v. Yount, assuming that the testator in that case also used the phrase, "so long as she remains my widow," as synonymous with, "during her natural life," the court unwittingly defeated his real intentions when it deprived his widow of the estate upon her remarrying.

It is a bit hard to follow the court in its reasoning, and to see how the phrase, "so long as she remains my widow," can be construed as one of limitation, and at the same time give it the effect of one of condition, as was done here.

In construing a will the purpose should be to divine from the words used just what the testator really meant, follow his mental processes if possible, and try to discover what he had in mind and the construction he meant to place on the words. Now, if the testator really meant the words, "so long as she remains my widow," to be words of limitation, he must have thought there might come a time when she would cease to be his widow, and as the only possible way she could cease to be his widow, while in the flesh, would be by remarrying, he must have had this in mind. There can scarcely be any doubt of this, there being no other discernible avenue that his thoughts could have run in. Granting this, then, he certainly meant, by using these words, to intimidate his widow into remaining his widow; the words were then used in terrorem, and as such would be in rerestraint of marriage, and void. Therefore to treat the phrase as one of limitation one must assume that the testator used the term as being synonymous with, "during her natural life," for to give it

any other interpretation is to credit the testator with a condition in restraint of marriage in mind when he wrote it.

If we do not construe it this way, but place it squarely on the grounds of limitation, the boundaries of the said limitation being reached upon the widow remarrying, it certainly amounts to making limitation synonymous with condition, at least in effect if not in word.

Now, if the testator had said, "so long as she does not remarry," that would be clearly in restraint, but does not, "so long as she remains my widow," amount to the same thing, when the identical act, that of remarrying, has the same effect on the widow in both cases, namely, forfeiture of the estate?

The one argument in favor of the present construction, that of limitation, is that the testator used the phrase as one of limitation in that he conceived that upon her remarrying she would no longer need the protection his property gave her; that when she remarried she would thereby acquire a protector in her husband, and that the latter would provide for her wants. In other words, that the testator meant to protect his widow so long as she needed protection, or until she had been provided with a living from another source. But will this argument bear analysis?

If we grant this as being in the testator's mind when he used the phrase, "so long as she remains my widow," it becomes passing strange that he should single out this one relationship as constituting the limitation, and make her enjoyment of the estate contingent on her continuing in the status of his widow. Why did he not say, "until she comes into other property," or, "so long as she needs the property," or, "until she acquires other property of equal property?" as it is, he has singled out one act, that of marriage, the performance of which will result in her losing the estate.

The so-called limitation is bounded by the act of marriage. The second husband may not be able to provide for her, may prove to be worthless, but that does not appear to have entered into the mind of this alleged provident testator. If he had been actuated by the high motives ascribed to him by champions of this line.

of argument, does it not seem reasonable to suppose that he would have made a provision that his widow should enjoy the estate until the second husband proved himself a good provider?

Then, leaving altogether what the testator might have thought or had in mind, does not a limitation of this kind in effect amount to a condition in restraint of marriage? She loses the estate upon remarrying. Is not this fact one to cause her to hesitate before taking the step? Does it not act as a restraint? And the state favors marriage. Then why should this dead husband be permitted to leave a spectre behind that tends to prevent his widow from assuming duties that she owes society, through fear of material want?

The fact is she will lose the estate by the act of remarriage. Who will then say that a limitation of this kind, if we must call it by that name, does not in reality become a condition in restraint of marriage?

However, the holdings on this point are certainly consistent, and the court in adhering to its respective interpretations has followed precedent in deciding the way it did. But in so deciding, by following the line of reasoning it has, it may be questioned whether it could not have followed another line of reasoning with better results to society in general, and to the widows left behind in particular.

Had the court reasoned from a purely literal standpoint, following closely the accepted meaning of the words, we may well ask ourselves if it could not have pronounced the phrase, "so long as she remains my widow," one of limitation in that it was used as synonymous with the phrase, "during her natural life."

Webster says a widow "is a woman who has lost her husband and has not remarried." Very good, then, if the widow should remarry she would cease to be a widow, but she would certainly not cease to be the widow of her first husband. In fact she will always be that, the same being a status she has entered and over which she has no control. Then as long as she lives she will be the widow of her first husband, but not necessarily a widow, as she will cease to be a widow upon remarrying. It is well recognized

that a woman can be the wife of one man, and at the same time the widow of another.

Now, for an analogous situation. Suppose John Jones to be the only legatee of William Jones upon the death of the latter. And being the legatee of William Jones he is also a legatee. But he goes to the bank, where the property of William Jones is deposited, and draws it out, releasing the administrator. The estate of William Jones now being closed, John Jones having received all the property, the said John Jones automatically ceases to be a legatee, he is no longer that; that status was terminated when he received the property. But is he not still the legatee of William Jones, and will he not remain so as long as he lives? For in fact he has entered a status that was made unchangeable by the death of the testator, and he could always be properly referred to as the legatee of William Jones.

And, further, John Jones might become the legatee of a dozen other men in rapid succession, and that fact would not disturb his status as the legatee of William Jones, his first benefactor; though at each successive settlement of the respective estates he would each time cease to be a legatee, while retaining the title of the legatee in his relation to each donor.

The confusing part of this subject seems to lie in the fact that one does not usually take into consideration the dual nature of the position. For example, the relation of the legatee is a personal one existing between John Jones and William Jones, while at the same time time John Jones is a legatee in his relation to the world at large.

Does not this same rule hold good in the analogous case of the widow? The relation of the widow is a personal one existing between herself and her late husband, a relation that she does not hold to anyone else in the world, but at the same time she is a widow in her relation to the world in general. At this period she is both the widow and a widow, one as to her late husband, the other as to the world.

Now, upon her remarriage, her relation to her deecased husband has not