Definition
A conditional phrase appearing in devises and wills, typically as part of a gift over or defeasance clause, by which a testator conditions a beneficiary's entitlement — or the forfeiture of it — on whether the beneficiary marries with the approval of her father. The phrase most commonly arises in one of two operative postures: (1) as a condition precedent, where the gift vests only upon marriage with the father's consent; or (2) as a condition subsequent, where the gift is defeated if the beneficiary marries without such consent.
The legal force of the phrase depended heavily on how courts construed the nature of the condition and its object. Courts of equity, particularly the Court of Chancery, scrutinized these clauses closely. A condition against marriage altogether was disfavored as a restraint on marriage and could be struck down as contrary to public policy. A condition requiring paternal consent, however, was generally treated as a partial restraint only — limiting the manner of marriage rather than prohibiting it entirely — and was more readily enforced, provided the restraint was reasonable in scope.
The phrase belongs to a cluster of related testamentary conditions that appear throughout early modern English equity jurisprudence, including MARRY WITH CONSENT OF THEIR MOTHER, MARRY WITHOUT CONSENT OF A., and MARRY WITHOUT A COMPETENT PORTION. Each variant raised overlapping but distinct interpretive problems concerning the nature and duration of the restraint, the identity and authority of the consenting party, and what happened if that party predeceased the beneficiary or refused consent capriciously.
Common Confusion
This phrase is easily conflated with MARRY WITHOUT CONSENT OF A., which is a functionally opposite construction. The former conditions the benefit on obtaining consent; the latter forfeits the benefit upon marrying without it. The practical distinction matters because courts treated conditions precedent and conditions subsequent differently — particularly regarding the burden of proof, the consequences of the consent-giver's death, and the reach of equity's power to relieve against forfeiture. Researchers who conflate the two constructions may misread the operative effect of a clause and reach incorrect conclusions about whether a gift vested or lapsed. Rapalje & Lawrence groups all these variants together precisely because they were litigated as a family of related problems, but each phrase has its own interpretive history.
Why It Matters in Research
This term exists almost exclusively in the context of English equity, primarily Chancery, from the late seventeenth through the early nineteenth century. Researchers working in this period should understand several things:
First, the phrase is not a term of art with a fixed technical meaning. It is a recurrent pattern in testamentary drafting, and its legal effect was worked out case by case. The body of authority is found in the English equity reports — Vesey Senior, Peere Williams, Vernon, Precedents in Chancery, Atkyns, and others — rather than in statutory text or common law pleading.
Second, the identity of the consent-giver matters to the analysis. Where the father predeceased the beneficiary before marriage, courts faced the question of whether the condition became impossible and, if so, whether the condition failed entirely (allowing the gift to pass unconditionally) or whether the gift over took effect. This is a recurring interpretive problem across the related phrase variants in the Rapalje & Lawrence entry.
Third, researchers using historical sources should note that these clauses were gendered by design: the beneficiary is a daughter, the authority figure is a father (or in related variants, a mother). The legal framework assumed coverture and the social regulation of women's marital choices through family authority. Modern legal research into analogous conditional gifts will encounter entirely different doctrine and constitutional constraints.
Fourth, the corpus connection to MARRY WITHOUT CONSENT OF A. is critical. The citation clusters in Rapalje & Lawrence overlap significantly across these variants, and a case decided under one formulation was often cited as persuasive authority for another. Researchers should treat the full citation apparatus across all of these variants as a unified body of Chancery authority, not as discrete silos.
Historical Dictionary Support
Rapalje & Lawrence does not provide a standalone entry for MARRY WITH CONSENT OF HER FATHER as an isolated term. Instead, the entry appears as part of a grouped series of related conditional phrases — MARRY WITH CONSENT OF HER FATHER AND MOTHER, MARRY WITH CONSENT OF THEIR MOTHER, MARRY WITHOUT A COMPETENT PORTION, and MARRY WITHOUT CONSENT OF A. — presented together because they share a common doctrinal context and were frequently litigated against the same body of Chancery precedent.
The citation in the Rapalje & Lawrence entry directs readers to 9 Mod. 210–211 (Modern Reports) for the father-and-mother variant. The MARRY WITHOUT CONSENT OF A. variant is the most heavily cited in the group, drawing on Atkyns, Peere Williams, Vernon, Vesey Junior, Precedents in Chancery, and Modern Reports — a range that reflects both the frequency of litigation and the unsettled state of doctrine across the period. Rapalje & Lawrence does not itself synthesize the doctrine; it functions as a finding tool, directing researchers to primary authority.
What the historical dictionary does not provide is any analysis of how courts resolved the key interpretive problems — the effect of the consent-giver's death, the distinction between conditions precedent and subsequent, or the equity of relief against forfeiture. Researchers must engage the underlying reports directly.
Jurisdictional Note
The doctrine developed primarily in English equity and was absorbed to varying degrees into American law as states built their own equity jurisprudence. American courts in the nineteenth century sometimes applied similar reasoning to analogous testamentary conditions, but the specific English Chancery authority is not universally binding. Researchers working in American jurisdictions should verify whether the relevant state courts adopted or modified the English approach.