A conditional
divorce pronounced
in
ficknefs, does
not cut off the
wife from her
inheritance,
unlefs the
Condition be
her own a£t;
eftablifhed in the latter circumftance, but not in the former.— There
are various cafes recorded correfponding with thefe at prefent recited;,
and which proceed upon the fame rules.— It is to be obferved, however,
that what is here faid, v iz. “ where he dies that way, oris
“ flain,” thews that there is no effential difference between the two
cafes, where, he dies in the way mentioned, or in any other way,
the fame as a hufband confined to a lick bed, who happens to be
flain.
T f a man, being in health, fay to his wife “ when the firfl of
“ fuch a month arrives” — (or)— “ when you enter this houfe”_
(or)— “ when fuch an one repeats evening prayers” — (or)— “ whea
“ fuch an one enters this houfe,”— “ you are under divorce,” and
the thing mentioned take place at a time when he is fic k , fhe does
not inherit of h i mb u t i f he were to make fuch a condition upon his
deathbed, fhe inherits in all thefe cafes except one, namely, “ when
“ you enter this houfe.”— It is to be obferved that the fufpenfions
now treated of are of four different kinds;— f ir s t , where divorce is
fufpended upon the arrival of a fpecified time;— secondly, where it
is fufpended upon the adt of a ftranger;— th ir d l y , where it is fufpended
upon the aft of the hufband himfelf;— and fourthly , whereit is
fufpended upon the adt o f the woman; and each of thefe again are o f two
defcriptions; one, where the fufpenfion is declared in health, and the!
condition occurs in ficknefs; the other, where both take place in fick-
nefs. In the two f r f l inftances, namely, where the hufband fufpends
the divorce upon the arrival of a fpecified time, by faying “ when the
“ firfl of fuch a month arrives you are under divorce,” or where he
fufpends it upon the adt of a ftranger, by faying “ when fuch an one
“ enters the houfe,” (or) “ when fuch an one repeats evening
“ prayers,” if the fufpenfion and the condition both occur in ficknefs,
the woman is entitled to inherit of her hufband, becaufehis intention here
appears to be evafion, from the circumftance of his fufpending divorce
at a time'when the wife’s right is infeparably connedted with his property
: but if the fufpenfion take place in health, and the condition in
ficknefs,
ficknefs, the woman does not inherit of him.— Ziffer fays that in this
laft cafe alfo fhe inherits, becaufe whatever is fufpended upon a condition
takes place on the occurrence o f that condition, and is then like
the fulfilment of a promife; jnd alfo, becatffe in this cafe divorce occurs
during ficknefs.— The argument of our doctors is that the antecedent
fufpenfion induces divorce at the time of the occurrence of the
condition confequentially, but not defignedly, and injury is not eftablifh-
ed but from defign; the adt of the hufband, therefore, is not to -be fet
afide by the annulment of its effedt, namely, non-inheritance.— And,,
in the third inftance, (that is, where the hufband fufpends the di-<
vorce upon his own adt,) he is confidered as an Evader, and the
woman inherits o f him, whether the fufpenfion take place in. health,
and the condition in ficknefs, or both occur in ficknefs; and alfo,
whether the adt be of an avoidable or an unavoidable nature; the reafon
of which is, that the hufband on this occafion evidently defigns to defeat
his wife’s right, whether by the fufpenfion, or by producing the
condition during, a mortal illnefs.
O bjection..— It would feem that the hufband, is not an evader
where the condition is an adt o f an unavoidable nature.
R e p l y .— In. the cafe now under confideration, although the adt
of condition be unavoidable by him, yet it is in his power to avoid
the fufpenfion of divorce upon that adt,. and hence his adt is fet afide,
in order that the woman may not be injured.-— And in the fourth « S m tl,at
. . . . 1 . I n J J ■ aft be of an
tnltance, (that is, where the hufband fufpends divorce upon an adt o f awidahk
the wife,) i f the fufpenfion and condition both occur in ficknefs, and nature"
fhe adt be of fuch a nature as may be avoided by the woman, (fuch'
as fpeaking to Zeyd, for inftance,) fhe does not inherit, as fhe in this
cafe confents to the divorce; but i f the adt’be of a nature unavoidable
by her, (fuch as eating and drinking, or prayer, or converfing with her
parents,y fhe is entitled to inherit of her hufband, as fhe is compelled
to the performance of fuch adts, fince, i f fhe were not to perform
them, there is fear of her perifhing-either in this world or the next;
and confent cannot exift where fhe adts from unavoidable neceflity;
but