Real Property -- 1961 Tennessee Survey

Probably no area of the law is fraught with more confusion than that involving construction of clauses in deeds and wills which impose some restraint on the conduct of grantees or devisees- seemingly not in the best interest of society. Clauses which tend to deter grantees or devisees from marriage or remarriage have constituted a fertile source of litigation for centuries. And though the stated rules of law prohibit and restrict the use of marriage or remarriage as a condition to vest or divest interests in real property, there are very few cases in which the courts in this country or in England, when uncontrolled by statutes, have reached unqualified decisions against the legality of general restraints on marriage. This general result is fully supportable on principle.

Unfortunately, however, the tendency of courts faced with construing such clauses has been to search for precedents; usually they have not been amenable to an independent and thorough analysis of underlying policy nor of the purpose and intent of grantors and testators in attempting such restraints.' We now have, as a result of the decision in Harbin v. Judd, a substantial holding in this jurisdiction that should do much to bring order out of the confusion which has heretofore existed in this area of the law.