The ‘policy’ that invalidates testamentary conditions

Whenever one person’s conferral of a benefit on another is subject to a condition that the conferee not be married to a particular person or to a member of a specified class of persons, the question of whether the condition is enforceable is said to be a question of ‘public policy’. This ‘policy’ question is fundamentally a question of whether enforcing the condition contradicts or undermines any of the norms concerning the conduct of married persons to which the law is committed. It is not a question of whether enforcing or not enforcing the condition in the particular case would advance a more general social goal of encouraging marriage and discouraging divorce. A principle of preserving the coherence of the law—that the law ‘refuses to give by its right hand what it takes away by its left hand’—is the animating principle of both the marriage condition cases and the illegality cases.