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September 4, 1958


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.

  "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 ...

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