Definition
A testamentary condition requiring a beneficiary — typically a widow, daughter, or other legatee — to obtain the approval of named persons (such as trustees, relatives, or guardians) before marrying, as a prerequisite to receiving or retaining a bequest or legacy. The condition is embedded in a will and operates as a qualification on the gift: if the beneficiary marries without obtaining the specified consent and approbation, the gift may be forfeited, reduced, or shifted to alternate takers, depending on how the testator structured the provision.
The condition answers two distinct questions: (1) consent — whether the beneficiary has received permission to marry at all from the named approvers; and (2) approbation — whether those approvers have affirmatively approved the specific choice of spouse. Courts historically treated these as overlapping but not identical requirements. Approbation implies a more active, substantive endorsement of the intended match, not merely a passive non-objection.
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Common Confusion
"Consent" and "approbation" are not redundant terms joined for rhetorical emphasis. Consent speaks to authorization of the act of marriage; approbation speaks to approval of the particular person to be married. A will requiring both erected a higher bar than one requiring consent alone. Courts construing such clauses were attentive to whether trustees or guardians had actually assessed and approved the proposed spouse, not simply declined to object. Researchers who treat the pairing as a single unified requirement risk misreading eighteenth- and nineteenth-century probate disputes where the distinction drove the outcome.
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Why It Matters in Research
This term appears almost exclusively in testamentary and probate contexts from the eighteenth and nineteenth centuries. It is a creature of the law of conditions on legacies, and its meaning cannot be extracted from contract or family law sources without distortion.
The primary research trap is assuming the condition was automatically void as a restraint on marriage. English and American courts in equity distinguished between conditions that totally restrained marriage (disfavored) and conditions that merely regulated whom a beneficiary might marry or required procedural approval (often upheld). A provision requiring consent and approbation was frequently litigated on this line. Whether a court found the condition valid or void depended heavily on the jurisdiction, the period, and the precise language of the will.
The Rapalje & Lawrence entry cites Amb. 256, 259, which refers to Ambler's Reports — a collection of English Chancery cases from the mid-eighteenth century. Ambler's Reports are not widely digitized and require access to English equity reporters. Researchers working with colonial American or early republic wills may find parallel language litigated under English Chancery precedent that American courts adopted, modified, or rejected. Tracking which strand of authority a nineteenth-century American court followed is essential to understanding outcomes in those cases.
Corpus researchers should also note that the phrase appears in wills with significant variation: "consent and approbation," "consent and approval," "approbation and consent of trustees," and similar permutations. Searching any single formulation will miss many relevant instruments. The semantic field matters more than the exact string.
Finally, this condition connects to the broader law of marriage settlements and the role of trustees in managing family property across generations. A will imposing this condition often operated in tandem with a trust structure, and understanding who the named approvers were — and what fiduciary duties they owed — is essential context for evaluating any dispute over compliance.
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Historical Dictionary Support
Rapalje & Lawrence provide only a compressed entry, reducing the term to its testamentary context and citing Ambler 256, 259 without elaboration. The citation points to English Chancery practice and confirms the term's equity provenance, but the dictionary does not address whether the condition was generally upheld or voided, how courts measured compliance, or what happened when named approvers died before the beneficiary sought to marry — all questions that arose frequently in litigation.
Older legal dictionaries generally do not isolate this phrase as a standalone term. It appears instead as an illustrative example within broader discussions of conditions annexed to legacies, restraints on marriage, and the law of wills. Researchers should treat Rapalje & Lawrence's entry as a pointer to equity reporters rather than a self-contained source of doctrine.
What historical dictionaries uniformly miss is the procedural dimension: courts were frequently asked to determine not just whether consent was required, but what form it had to take, whether it could be inferred from conduct, and whether unreasonably withheld consent excused performance. These questions generated substantial case law that no general legal dictionary of the period captures.
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Jurisdictional Note
English Chancery decisions were the primary authority in early American probate courts, but American courts diverged over time, particularly regarding conditions courts would enforce as against public policy. By the mid-nineteenth century, some American jurisdictions were more willing than English courts to void conditions that restricted a widow's freedom to remarry. Researchers should not assume uniform treatment across Atlantic jurisdictions.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: MARRIAGE CONDITIONS; RESTRAINT ON MARRIAGE; LEGACIES, CONDITIONS ON
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