Limitations over upon the marriage of a widow shall be valid unless such limitations are manifestly intended to operate as a restraint upon the free action of such widow in respect to marriage and are not simply prudent provisions for the protection of the interest of children or others in such event, in which case such limitations are void.
(Orig. Code 1863, § 2254; Code 1868, § 2246; Code 1873, § 2272; Code 1882, § 2272; Civil Code 1895, § 3108; Civil Code 1910, § 3684; Code 1933, § 85-712.)
Law reviews.- For comment on Broach v. Hester, 217 Ga. 59, 121 S.E.2d 111 (1961), see 14 Mercer L. Rev. 471 (1963).
JUDICIAL DECISIONS
Estate for widowhood recognized.
- Estate for widowhood, as known to the common law, is recognized in this state and provided for by the terms of this statute. The creation of a fee defeasible by marriage is not necessarily in restraint of marriage, because the beneficiary is submitted to an election between the acceptance of the gift and remarriage, should she prefer to remarry. Logan v. Hammond, 155 Ga. 514, 117 S.E. 428 (1923) (see O.C.G.A. § 44-6-68).
Gift for widowhood not void unless intention to impose penalty manifest and unequivocal.
- Condition imposed by a testator upon a gift to his widow, to the effect that upon her remarriage the devise shall pass to his other heirs named, is not void as being in restraint of marriage. The intention to impose a penalty in terrorem must be manifest and unequivocal. Logan v. Hammond, 155 Ga. 514, 117 S.E. 428 (1923).
Statute applies to contracts as well as to the provisions of a will. Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003) (see O.C.G.A. § 44-6-68).
Cotenant's estate not affected when restraints against widow invalid.
- When an estate was devised to X, and widow during her widowhood, even if the provisions were invalid as being in restraint of marriage, it would not affect the estate granted to X. McCarty v. Mangham, 144 Ga. 198, 86 S.E. 555 (1915).
Estates for widowhood are subject to the same rules as life estates. Among the rules applicable to life estates are the provisions of former Civil Code 1910, § 3666 (see O.C.G.A. § 44-6-83). Lee & Bradshaw v. Rogers, 151 Ga. 838, 108 S.E. 371 (1921).
Agreement to change child custody upon remarriage not void.
- Agreement for the custody of the children to change to the father upon the remarriage of the mother does not manifest an intention that the agreement will operate in restraint of remarriage, and is not void as being in restraint of marriage. Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003).
Cited in McCray v. Caves, 211 Ga. 770, 88 S.E.2d 373 (1955).