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.'"
"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
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