marry again, the share bequeathed to her shall go to her son, is valid, as the rule forbidding conditions in general restraint of marriage does not extend to second marriages. The Court said that one of the exceptions to the rule that conditions in general restraint of marriage are void, — "Recognized by the general current of authority, and by the almost universal concurrence of modern judicial opinions, is that such a condition in restraint of marriage does not extend to the case of a second marriage. The principle itself was borrowed from the civil law, in which widows, as observed by Lord Thurlow in the principal case on that subject, were excepted from the Novels (Barton v. Barton, 2 Vern. 308); and this exception has been continued throughout modern English and American authorities. Further, on this question, Mr. Beach, in his work on the Law of Wills (section 234), says: 'The present state of the law as regards conditions in restraint of the second marriage of a woman is this: that they are exceptions to the general rule that conditions in restraint of marriage are void, and the annunciation of that law has been gradual. In the first instance, it was confined to the case of the testator being the husband of the widow. In the next place it was extended to the case of a son making a will in favor of his mother. Then came the case of Newton v. Marsden (2 Johns. & H. 356, decided in 1862), in which it was held to be a general exception, by whomsoever ihe bequest may have been made (Allen v. Jackson, I Ch. Div., 399).' The whole subject will be found discussed by Mr. Beach, in sections 233-237; in Schouler on Wills, sect. 603; Story's Eq. Jur., sect. 276-291; in Pritch. Wills, sect. 155-160; and in the case of Scott v. Tyler, 2 White & T. Lead Cas. Eq., 429-512, and note."
SURGICAL DISCRETION.— A very novel case regard ing the right of a surgeon to go beyond his specific authority in performing an operation was recently tried in London. Miss Beatty, a hospital nurse, submitted herself to Mr. Cullingworth, an eminent surgeon of London, for an operation of ovariotomy. It was admitted by the defendant that she forbade him to go beyond the single operation, but he testified that he refused to perform the operation under that condition and told her she must submit to his discre tion. This she denied. Finding it necessary, in his opinion, to perform the double operation to prolong her life, he did so. He testified that in view of the patient's wish he had hesitated, but he concluded to
overrule her objection. In consequence she felt compelled by conscientious scruples to break off her marriage engagement. The most eminent surgeons testified that they would refuse to operate under such a restriction. Sir Thomas Wells, however, the greatest expert, testified that he thought that the double operation in this case was unnecessary, but he had no doubt the defendant acted conscientiously. The defendant and his assistant testified that the plaintiff would not have lived ten years without the double operation. There was a verdict for the defendant. This of course may have been based on a finding that the defendant had refused to submit to the condition, and that consequently the plaintiff had tacitly assented. If any inference is to be drawn from the case that a surgeon may exceed his specific instructions, not dessented from by him, even if he deems it necessary to prolong or save life, it is bad law. Miss Beatty had a perfect right to prefer to live for only ten years, and to be for that time a wife and possibly a mother, rather than to live the ordinary length of time unmarried, or be a barren wife. The matter is probably less serious to the female sex than a somewhat analogous operation would be to the male but we believe that it would be rather difficult to induce a judge and a jury to justify a surgeon in disregarding explicit instructions of a similar purport on the part of a man. If a second operation in the case under consideration should have proved neces sary, it would have been easy to make it, and not unsex the sufferer at the outset. We confess that we are surprised at the verdict, and that in any view we regard the result as wrong. We have a sympathy with a woman who demands to have her sexual physiology respected despite the custom of surgeons. We fully agree with the New York Law Journal that : " Where a proposed operation is as clearly the subject of definite agreement as the one under consideration, and especially where the worst that could result from following the patient's directions would be the necessity of submitting to a second operation later, we think such directions should be accepted as morally binding upon the surgeon, and held legally controlling by the Courts." If that case had arisen in this country the result would certainly have been to the contrary. The English Courts are tenderer toward dogs, but less considerate of women than the American Courts.
