Wills – Religious Conditions in Restraint of Marriage – Validity at Common Law and Effect of Shelley v. Kraemer

Testator devised and bequeathed his property to his children, but with a proviso that the gift to any child who should marry a person not born in the Hebrew faith should lapse. Subsequent to the testator’s death, the defendant married a woman who had been born a Roman Catholic. The other beneficiaries brought a proceeding to declare that the defendant had lost his rights under the will by reason of his marriage. The probate court granted a decree substantially as sought by the plaintiffs. On appeal, held, affirmed. This partial restraint on marriage is not so unreasonable as to render it invalid and the judicial enforcement of it does not contravene the First Amendment guaranties of religious liberty, as applied to the states by the Fourteenth Amendment. Gordon v. Gordon, (Mass. 1955) 124 N.E. (2d) 228, cert. den. 349 U.S. 947, 75 S.Ct. 875 (1955).