INGRAHAM, J.:

The question submitted is whether the plaintiffs are able to give a marketable title to a certain piece of real estate which they have contracted to sell to the defendant. The question depends upon the validity of a condition as to three-nineteenths of the property in question which arises under the will of one Susan M. Maurer. By that will sixteen undivided nineteenths were devised in fee to the plaintiffs other than Mathilda C. Wright, and three undivided nineteenths were devised to the said Mathilda C. Wright, then Mathilda C. Wightman, by the following clause of the will: "To my daughter Mathilda C. Wightman, wife of Allen S. Wightman, three-nineteenths thereof, to have and to hold the same to her sole and separate use and free from all control of her said husband in fee forever; provided, nevertheless, that if she should rejoin, live with or cohabit with her said husband then the estate herein devised and bequeathed to her shall cease and determine and become vested in my executors hereinafter appointed, to whom I give, devise and bequeath the same in trust, to collect the income thereof, and to pay the same to her during her natural life, and at her death to pay the principal thereof over to such of her children as may be living, share and share alike, to whom I give, devise and bequeath the same in fee forever." By this clause of the will the fee of three-nineteenths of the said property vested in the plaintiff Mathilda C. Wightman, subject to be defeated by the happening of the contingency specified, if the condition was valid, and was thus clearly a condition subsequent. A condition subsequent is defined to be one that "when it does or does not happen, is or is not performed, as the case may be, defeats the estate." (6 Am. Eng. Ency. of Law [2d ed.], 500.) This being a condition subsequent, the title vested absolutely in the devise subject to be defeated by the happening of the event, unless for any reason such condition subsequent was void. It is a general principle, well settled, that conditions annexed to a gift the tendency of which is to induce the husband and wife to live separate, or to be divorced, are, upon grounds of public policy and public morals, void. As was said by the vice-chancellor in Wilkinson v. Wilkinson (L.R. [12 Eq.] 604): "Plaintiff, a married woman, considering that it was her duty to perform the condition so that there should be no forfeiture of the property, has been obliged to neglect another, and more important duty in quitting her husband's house and going to reside elsewhere. The authorities clearly shew that the condition is bad. * * * Such conditions as these the law will always, and without any regard to circumstances, defeat, being concerned to remove all temptations and inducements to those crimes." In Whiton v. Harmon (54 Hun, 552), by the will under consideration, the testatrix gave all her real estate to her son, "for and during the term of his natural life, or while he shall live separately from his present wife." On his decease, "or when he shall again live with his present wife," the testatrix gave the same to her nieces. It seemed that at the time of the making of the will the devisee was living separate and apart from his wife; that subsequent to the probate of the will they resumed matrimonial relations. It was held that the condition was void; and in that case all the authorities are collated and discussed. (See, also, Couger v. Phelps, 21 Miss. 252.) On the other hand, the case of Cooper v. Remsen (decided by Chancellor KENT and reported first in 3 Johns. Ch. 382, and on a rehearing in 5 id. 459) is cited. In that case the testator had made a provision for his daughter by giving her an annuity of $1,000 a year, which sum was made a charge upon his real estate, and was to continue during her separation from William Cooper, her husband. The chancellor held that this was not a condition which tended to produce a separation between husband and wife, but as the parties had lived apart when the will was made the provision was mainly intended to provide a suitable provision for the deserted child. In determining that question the chancellor said: "There is a wide difference between a bequest to a daughter during her separation from her husband, when the separation was then actually existing, without being procured by the testator, and a legacy to her if she lived apart from her husband; for that would be to hold out a temptation to a separation, which would be contra bonos mores. The legacy would be simple and pure in the latter case, according to the decision of Lord NORTHINGTON in Brown v. Peck (1 Eden, 140), but in the former case the legacy depends upon the fact of separation then already commenced, and was in that event a kind and charitable provision." The decisions in this State, therefore, leave the question as to the validity of this condition somewhat in doubt, and as the daughter of Mathilda C. Wright, who would be entitled to a remainder in this property, is not before the court and has not been heard, we think it would be improper to determine this question in this action.

In actions brought to enforce specific performance of contracts for the sale of lands, a purchaser will not be compelled to take a title when its validity depends upon a disputed question of fact or a doubtful question of law. ( Fleming v. Burnham, 100 N.Y. 1, where the court say: "The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication, and could raise the same question in a new proceeding. The cloud upon the purchaser's title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have.") In Abbott v. James ( 111 N.Y. 673) the same principle is restated, and the court held that when the question upon which the validity of the purchaser's title depends is doubtful it should not be decided so as to compel the purchaser to accept a deed, in the absence of and without hearing the heirs at law whose rights depend upon the same question. (See, also, Kilpatrick v. Barron, 125 N.Y. 751. ) We think that such a case is here presented, and without expressing an opinion upon the validity of this condition, we do not think that the question is free from doubt, and that it should not be determined in an action in which the person entitled to the ultimate remainder is not a party and bound by the judgment.

It follows that there should be judgment for the defendant, with costs.

O'BRIEN, J., concurred.

Judgment ordered for defendant, with costs.