United States District Court, Eastern District of Illinois
September 4, 1958
DOROTHY SELLS SHACKLETON, PLAINTIFF,
FOOD MACHINERY AND CHEMICAL CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF DELAWARE, DEFENDANT.
The opinion of the court was delivered by: Platt, Chief Judge.
Plaintiff, Dorothy Sells Landsheft Shackelton, a citizen of
Michigan, filed suit to enforce the provisions of Clause 6 of a
written contract executed October 26, 1928, between her brothers,
Ogden, Millar and Neal Sells, and John Bean Manufacturing
Company, predecessor of defendant, Food Machinery and Chemical
Corporation, an organization incorporated in Delaware. By the
language of the contract the Sells brothers obligated themselves
individually to transfer all the outstanding shares of
Sprague-Sells, a family corporation, in consideration of
$224,985, 2,778 shares of fully paid no par common stock of John
Bean Company, and a provision for employment of Sells brothers
upon specified terms. The First Trust and Savings Bank of
Chicago, Illinois, was nominated escrowee. Clause 6 recites:
"In addition to such purchase price The Bean
Company agrees to pay Mrs. Lottie Sells, the mother
of the Individuals, a royalty of $25 for each
corn-husking machine sold by it or any of its
subsidiaries during her life. Upon her death like
royalties on sales of such machines thereafter shall
be paid to her daughter, Dorothy S. Landsheft,
provided she shall not have theretofore remarried;
such royalties to be paid to her until her death or
From the pleadings, affidavits and depositions the following
facts appear. Ogden Sells negotiated the contract on behalf of
his brothers and managed to secure Clause 6 as a part of the
consideration. At the time the contract was made in 1928,
plaintiff was 30 years of age and living with her mother. Though
she had been informed of the provisions of the contract after it
was executed, she nevertheless remarried in 1944, one year prior
to the death of her mother. The defendant's Sprague-Sells
Division, located at Hoopeston, Illinois, manufactures nearly all
of the defendant's cornhuskers, and it was this Division which
paid to Lottie Sells, the royalties accruing during her lifetime.
Upon these essential facts there is no dispute, and both parties
have presented a motion for summary judgment.
Plaintiff maintains that the conditions of Clause 6 restraining
her remarriage are in violation of public policy, and that the
court should strike them and leave the agreement to pay royalties
in force. Since there is no provision for the payment of
royalties to another should she remarry, plaintiff further
contends that the conditions of Clause 6 violate the "in
terrorem" rule and are therefore void upon this additional
ground. Defendant on the other hand contends that Clause 6
embodies a condition precedent that plaintiff shall not have
remarried prior to the death of her mother, and a condition
subsequent or limitation which alone recites whatever provision
may be in total restraint of marriage. Since plaintiff did
remarry prior to the death of her mother, it is urged that she
did not comply with the condition precedent, that her rights are
therefore barred, and that the question of the validity of the
condition subsequent or limitation is thus made moot. The
defendant further insists that if the condition against
remarriage becomes relevant it is not against public policy. In
support of this position, defendant attempts to convince the
court that the rule with regard to restraints upon marriage
varies from that applicable to the case of remarriage.
Jurisdiction of this case rests upon diversity of citizenship
and therefore the Illinois law of conflicts, the law
of the forum, is determinative of substantive rights. Smith v.
Dravo Corp., 7 Cir., 1953, 203 F.2d 369. In Frankel v. Allied
Mills, Inc., 1938, 369 Ill. 578, 582, 17 N.E.2d 570, 571, the
applicable Illinois law of conflicts is stated to be that
"the validity, construction and obligation of a
contract must be determined by the law of the place
where it is made or is to be performed."
While the evidence does not definitely disclose where the
contract was made, there are indications that it was executed in
Chicago, Illinois, where the office of the escrowee was located.
Also it is apparent that the performance of the contract and
Clause 6 thereof has essentially taken place in Illinois. This
court concludes, therefore, that the Illinois public policy will
govern in determining the validity of the contract here involved.
There are express pronouncements in Illinois that perpetual
restraints of marriage are against public policy, except where
imposed by one spouse upon the other. In Shackelford v. Hall,
1857, 19 Ill. 212, 214, the following clause of a will was
presented to the court:
"`And I will and bequeath all my real estate, money
and personal property, and choses in action to my
wife, Ann H. Hall, during her widowhood, and in case
she does not marry, during her natural life, and at
her death, I will and bequeath to Henry Hall, Eliza
Hall, John P. Hall and Robert Hall, my entire estate,
both real and personal, to be equally divided share
and share about.'"
The court then held:
"By this, the estate vested, absolutely and
immediately upon the death of the testator, in the
devisees as specified; in the widow a life estate, if
not sooner terminated by her marriage, and the
remainder in the four other devisees."
and at page 215 the court stated:
"[W]hoever will take the trouble to examine this
branch of the law attentively, will find that the
testator may impose reasonable and prudent restraints
upon the marriage of the objects of his bounty, by
means of conditions precedent, or subsequent, or by
limitations, while he may not, with one single
exception, [the case of a husband making bequests or
legacies until the remarriage of his wife] impose
perpetual celibacy upon the objects of his bounty, by
means of conditions subsequent or limitations."
The Supreme Court of Illinois reiterated the rule in Glass v.
Johnson, 1921, 297 Ill. 149, 130 N.E. 473, wherein a testator
limited the rights of his wife if she should remarry, and at page
151 of 297 Ill., at page 474 of 130 N.E., the court said:
"This condition, though in total restraint of
marriage, is valid. There is an exception to the rule
that a testator may not impose a total restraint upon
marriage as a condition of a devise in the case of a
husband making a devise to his wife."
The same public policy which invalidates conditions in restraint
of marriage in deeds or wills is applicable where the restraint
is imposed by contract. Fletcher v. Osborn, 1917, 282 Ill. 143,
118 N.E. 446, L.R.A. 1918C, 331. In the light of the Illinois law
it is incumbent upon the court to construe the meaning of Clause
6 of the contract.
The intention of the parties must be ascertained from the
instrument as a whole, with particular regard to Clause 6 and the
attending circumstances in which it was negotiated. Plast v.
Metropolitan Trust Co., 1948, 401 Ill. 302, 82 N.E.2d 155. The
contract was the product of an arms length transaction wherein
each bargained in his own best interest, and the payment of
royalties to the mother and daughter constituted a material part
of the total consideration. This is evident from the deposition
of Ogden Sells, that the provision for Dorothy was obtained after
two hours of negotiation, but the payments to his mother were
agreed upon in five
minutes. Clause 6 contains two conditions precedent; royalties
are payable only if husking machines be sold by the defendant,
and then only in the event that plaintiff is living at the death
of her mother. The life interest created in the mother was to be
followed by a similar but contingent interest in Dorothy. It is
apparent from the terms of the instrument that the contracting
parties, insofar as Dorothy is concerned, had but a single
purpose in view; no royalties were to be paid to her in the event
of her remarriage. Although there are separate phrases it is
obvious that the parties attempted to express but one condition
in two different ways in order to accomplish the same effect.
Though the purportedly separate conditions are separated by a
semicolon, punctuation in a contract while it may shed light on
the meaning of the parties is not necessarily controlling. Allen
v. United States Fidelity & Guaranty Co., 1915, 269 Ill. 234,
109 N.E. 1035. The effect intended was to impose a perpetual
restraint upon Dorothy's remarriage, and it is this intention of
the parties that is given effect rather than the words which are
used. This court will
"look at the substance rather than the form of
contracts, and seek for the real intention of the
parties, from a consideration of all parts of the
contract. The intention thus ascertained is the
essence of the contract, and to this legal effect is
given." Smith v. Riddell, 1877, 87 Ill. 165, 169.
To follow the construction of Clause 6 as defendant suggests
would be to allow indirectly the imposition of a perpetual
restraint upon remarriage which is condemned as against public
policy if attempted directly.
Since the parties intended to impose but one condition, which
is in total restraint of marriage, it is necessary for the court
to determine whether that condition is precedent or subsequent.
"When there is a doubt in regard to the meaning of
words implying a condition, courts do not construe
them as precedent. The words `conditions precedent'
used in a deed by the grantor do not necessarily make
the conditions precedent. (Citing a case.) Whether a
condition in a deed is precedent or subsequent is a
question of intention and not of phrase or
form. * * * [If the condition upon which the estate
depends] does not necessarily precede the vesting of
the estate but may accompany or follow it, the
condition is subsequent." Department of Public Works
and Buildings v. Porter, 1927, 327 Ill. 28, 35,
158 N.E. 366, 369.
In Winterland v. Winterland, 1945, 389 Ill. 384, 388,
59 N.E.2d 661, 663, it is reported that:
"The rule in this State is that the principles
applicable to the vesting of real estate apply
generally in the case of personal property."
In view of these holdings this court feels compelled to hold that
the parties intended to impose an absolute and perpetual
restraint of remarriage by means of a condition subsequent, and
that the condition thus expressed is absolutely null and void as
violative of the public policy of Illinois. Since plaintiff
survived her mother and husking machines have been since sold by
defendant, there has been full compliance with the only
conditions precedent intended by the parties. The contingencies
having obtained, plaintiff's rights have vested. Because the
condition subsequent restraining plaintiff's remarriage is void,
it is entirely inoperative and plaintiff retains her right to the
royalties unaffected by that condition. Eureka College v.
Bondurant, 1919, 289 Ill. 289, 124 N.E. 652.
There are decisions in other states holding that the
prohibition of perpetual restraint upon marriage is not
applicable in the case of remarriage. Stauffer v. Kessler,
81 Ind. App. 436, 130 N.E. 651; Young v. Kraeling, Sup., 134 N.Y.S.2d
109; Phillips v. Ferguson, 1888, 85 Va. 509, 8 S.E. 241, 1 L.R.A.
837; Logan v. Hammond, 155 Ga. 514, 117 S.E. 428; Berry v.
Cooley, 188 Okla. 426,
109 P.2d 1081; Lewis v. Johnson, 212 Mo.App. 19, 251 S.W. 136;
Commonwealth v. Stauffer, 1849, 10 Pa. 350. The text writers have
also announced this rule but in most instances have relied upon
cases involving the validity of perpetual restraints placed by
one spouse upon the other, or upon cases involving antenuptial
contracts. 2 Pomeroy, Equity Jurisprudence, 4th Ed. § 933; 2 Page
on Contracts, 2d Ed., § 930; 35 Am.Jur., Marriage, § 262; 17
C.J.S. Contracts § 233. In cases where spouses are not involved
sound reasoning would recommend that the rule in regard to
restraint upon remarriage should not vary from that applicable to
the case of marriage. To permit the debutante to avoid the
perpetual restraint on marriage but not the young widow is most
inconsistent. The public policy of Illinois is to be found in the
constitution, statutes and decisions of Illinois, and not from
the decisions "of other jurisdictions." Tripp v. Payne, 1930,
339 Ill. 178, 181, 171 N.E. 131, 133; Zeigler v. Illinois Trust &
Sav. Bank, 1910, 245 Ill. 180, 193, 91 N.E. 1041, 28 L.R.A.,N.S.,
1112. Furthermore, from an examination of the law of all the
states it is evident that the whole subject of restraints upon
marriage is buried in confusion. 39 Mich.L.Rev. 1288. This court
is not disposed to rely upon confusion or to declare the views of
another jurisdiction paramount to those prevailing here. This
being a diversity case,
"[a]ny convincing manifestation of local law, having
a clear root in judicial conscience and
responsibility, whether resting in direct expression
or obvious implication and inference, should
accordingly be given appropriate heed." Yoder v.
Nu-Enamel Corporation, 8 Cir., 1941, 117 F.2d 488,
It is anticipated that if this question were presented to the
Illinois Supreme Court the same construction of the contract
would be imposed.
Defendant's motion for summary judgment is therefore denied;
the provisions of Clause 6 as construed by this court entitle the
plaintiff to the royalties which have accrued and which may
Final order may be submitted in accordance with the views
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