(20)* whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction. Hotham v. E. I. Company, 1 T. R. 645. So in wills, it is fully settled, that a condition is to be construed to be precedent or subsequent, as the intent of the testator may require. The question always is, whether the thing is to heppen before, or after the estate is to vest: if before, the condition is precedent; if after, it is subsequent. Doe, d. Planner v. Scudamore, 2 Bos & Pul. 295. Questions depending on the doctrine of conditions precedent and subsequent, frequently occur on devises to which a condition of marriage is annexed. With regard to which class of cases, it seems settled, that where a gift or devise, to which a condition in resrraint of marriage is annexed, is of land, or a charge on land, if such condition be precedent, it must be strictly performed, in order to entitle the party claiming to the benefit of such gift, Bertie v. Lord Falkland, 3 Ch. Ca. 130. 2 Vern. 338, 339. 2 Freem. 220. Fry v. Porter, 1 Mod. 300. Reeves v. Hearne, M. 4 Geo. 2. 5 Vin. Abr. 343. Harvey v. Aston, 1 Atk. 361. Pullen v. Reddy, Wils. 21. Reynish v. Martın, 3 Atk. 330. 1 Wils. 130. Randall v. Payne, 1 Bro. C. C. 55.; if the condition be subsequent, its validity will depend on its being such as the law will allow to divest an estate. 3 Atk. 377, 8. Pullen v. Ready, 2 Atk. 587. 590. Infra, 206 b. But where the gift or legacy, to which a condition of marriage is annexed, is charged on personal estate, and there is no devise over, such condition is only considered in terrorem, whether it be precedent (Harvey v. Aston, supra. Dalley v. Desbouverie, 2 Atk. 261. Reynish v. Martin, supra. Elton v. Elton, 1 Wils. 159.1 Ves. 4. 3 Atk. 504.), or subsequent. Bellasis v. Ermine, 1 Ch. Ca. 22. Semphill v. Bayley, Prec. Ch. 562. Jervis v. Duke, 1 Vern. 20. Underwood v. Morris, 2 Atk. 184. Pullen v. Ready, 1 Wils. 21. 2 Atk. 587. Marples v. Bainbridge, 1 Mad. Rep. 590. And in such case, if the condition be subsequent, it shall not divest the legacy already vested; but, if the condition be precedent, it will (though in terrorem) necessarily prevent the legacy from vesting, untill the marriage (though without any consent obtained) be performed. Carbut v. Hilton, 1 Atk. 381. Atkyns v. *Hiccocks, 1 Atk. 500. Pullen v. Ready, 2 Atk. 590. Elton v. Elton, 1 Wils. 159. 1 Ves. 4. 3 Atk. 504. Hemmings v. Munckley, 1 Bro. C. C. 303. Knapp. Noyes, Ambl. 662. But if the gift or legacy be given over, in the event of the condition being broken, then the condition will be allowed to prevail. Sutton v. Jewke, 2 Ch. Rep. 95. Piggott v. Morris, Sel. Ca. Ch. 26. Bellasis v. Ermine, 1 Ch. Ca. 22. Stratton v. Grimes, 2 Vern. 357. Aston v. Aston, 2 Vern. 452. Wrottesley v. Wrottesley, 2 Atk. 584. Chauncey v. Graydon, 2 Atk. 616. Scot v. Tyler, 2 Bro. C. C. 431. Long v. Dennis, 4 Burr. 2052. Knight v. Cameron, 14 Ves. 389. Lester v. Garland, 15. Ves. 248. A bequest of the residue is a sufficient devise over to support the condition. Amos v. Horner, 1 Eq. Ab. 112. pl. 9. Scot v. Tyler, supra. Conditions in restraint of marriage being consrdered in an unfavourable light, equity has dispensed with the want of circumstances, where the condition has been performed to a reasonable intent; as where the major part of the trustees or guardians consent(Harvey v. Aston, 1 Atk. 375. Wisemen▾. Foster, 2 Ch. Rep. 23.), or where the trustees give an implied, not an express consent (Mesgret v. Mesgret, 2 Vern. 580. Harvey v. Aston, supra.), or where they have given a conditional consent. Dailey v. Desbouverie, 2 Atk. 261. 4 Burr. 2055. 2 Ves. 535. Secus if they consent conditionally upon the offer of a settlement being made, and afterwards retract that consent on a subsequent refusal to make the settlement, Dashwood v. Bulkeley, 10 Ves. 231; but a consent to marriage being once given, cannot be withdrawn by adding terms that do not go to the propriety of giving the consent; and a settlement made even after marriage, is sufficient, where the consent is given upon the offer of a settlement. Ibid. So where a father or guardian at first encourages proposals, and afterwards without sufficient reason denies his consent. Campbell v. Lord Netterville, 2 Ves. 534. Lord Strange v. Smith, Ambl. 263. So a general permission, given by the trustee after the lega tee attained twenty-one, to contract marriage as she might think fit, and subsequent approbation of a marriage contracted under such general permission, without his knowledge, was held a sufficient compliance with such requisition. Pollock v. Croft, 1 Meriv. 181. So a marriage in the testator's life-time, with his consent or subsequent approbation, has been held to be equivalent to marriage with consent of the executors after his death. Parnell v. Lyon, 1 Ves. & B. 479. Another class of cases to which the doctrine now under consideration frequently applies, are those cases which relate to the vesting of portions and legacies made payable at the future period:-As to which it is a general rule, that where a legacy or portion, charged upon a real estate, is to be paid at a cerain age or time, if the legatee die before that age or time, it shall sink into the land and this rule holds whether the land be the primary or auxiliary fund, and whether the charge be made by deed or will, as a portion or general lagacy, for a child or srtanger, with or without interest. Pawlett v. Pawlett, 1 Vern. 321. Yate v. Phettiplace, 2 Vern. 416. Jennings v. Lookes, 2 P. Wms. 276. Duke of Chandos v. Talbot, 2 P. Wms. 602. Brown v. Abingdon, 1 Atk. 482. Van v. Clark, 1 Atk. 510. Gawler v. Standwick, 1 Bro. C. C. 106 n. Harrison v. Naylor, 3 Bro. C. C. 108. But courts of equity have allowed and established exceptions to this rule in particular instances, as when the condition annexed to the legacy had respect to the circumstances of the estate and not to the person of the legatee, they having considered that a benefit was at all events intended for the legatee, and that the time of payment alone was postponed with a view to the conveniency of the estate. King v. Withers, Forrest. 117. Hutchins v. Foy, Com. Rep. 716. 723. Lowther v. Condon, 2 Atk. 127. Emes v. Hancock, 2 Atk. 507. Sherman v. Collins, 3 Atk. 319. Hodgson v. Rawson, 1 Ves. 44. Tunstal v. Bracken, Ambl. 167. Embrey v. Martin, Ambl. 230. Manning v. Herbert, Ambl. 575. Teal v. Tichener, 1 Bro. C. C. 120 n. Clarke, v. Ross, Ibid. Kemp v. Dary, Ibid. Pawsey v. Edgar, 1 Bro. C. C. 192 n. Thomson v. Dow, 1 Bro. C. C. 193 n. Morgan v. Gardiner, Ibid. Dawson v. Killett, 1 Bro. C. C. 119. Godwin v. Munday, 1 Bro. C. C. 191. With respect to legacies payable out of personal estate, it is observable, that if the legacy be to the legatee, payable to him at a certain age, and the legatee die before he attain such age, yet this is a vested interest in the legatee (for it is debitum in presen præsenti, though solvendum in futuro), and transmissible to his representatives, who however must wait till the time at which the legacy is payable, unless the whole interest be given. Cloberry's case, 2 Vent. 342 2 Ch. Ca. 155. Collins v. Metcalfe, 1 Vern. 462. Gordon v. Raynes, 3 P. Wms. 138. Anon. 2 Vern. 199. So if the legacy be made to carry interest, though the words "to be paid or payable" are omitted, yet it is a vested and transmissible interest. Cave v. Cave, 2 Vern. 508. Cloberry's case, supra. Stapleton v. Cheales, 2 Vent. 673. Hubert v. Parsons, 2 Ves. 263. Fonnereau v. Fonnereau, 3 Atk. 645. But if the legacy be to the legatee generally, at or when he attain such age, it will lapse by the death of the legatee before such age. Cloberry's case, supra. Snell v. Dee, 2 Salk. 415. Onslow v. Smith, 1 Ab. Eq. 295, 6. Dawson v. Killett, 1 Bro. C. C. 119. But this distinction, which is borrowed from the ecclesiastical courts, does not prevail in the construction of devises of real estate, nor is it to be extended or favored in the construction of personal legacies. See Machell v. Winter, 3 Ves. 544. 2 Fonbl. Tr. Eq. 366 n. With respect to legacies charged both upon the real and personal estate, if the legatee die before the time of payment, the legacy will sink into the land, in all cases where it would be held to sink, if the fund consisted of real estate only; and it will be considered vested with regard to the personal estate, in all cases in which the same would be so adjudged, if the fund consisted of personal property only. Sherman v. Collins, 3 Atk. 320. Duke of Chandos v. Talbot, 2 P. Wms. 612. 2 Rop. on Leg. 216. With respect to equitable relief:-It is a general rule, that the court of equity will never vest an estate where, by reason of a condition precedent, it will not vest in law. Popham v. Bamfield, 1 Vern. 83. Lord Falkland v. Bertie, 2 Vern. 333. Ch. Ca. 129. 2 Freem. 220. Where, 23 *Wherein divers diversities are worthy of observa (21)* tion (L). therefore, there is a conditional limitation over in a given event, in such case, (unless the condition be for payment of a certain sum of money (Wheeler v. Whitall, 2 Freem. 9. Wallis v. Crimes, 1 Ch. Ca. 89. Woodman v. Blake, 2 Vern. 222. Bertie v. Falkland, 2 Vern. 389.), or such as the court can put the party in the same situation as if the condition had been performed (Taylor v. Popham, 1 Bro. C. C. 168.), and it is not contained in a voluntary settlement (Bold v. Corbett, Prec. Ch. 84. Woodman v. Blake, 2 Vern. 221. Et vid. 1 Ch. Ca. 52.), the breach of the condition cannot be relieved. Lord Falkland v. Bertie, supra. Clerk v. Lacy, 5 Vin. 87. Simpson v. Vickers, 14 Ves. 341. Sweet v. Anderson, 5 Vin. 93. 2 Bro. P. C. 430. It is, in general, different as to conditions subsequent; for though the court cannot relieve against all conditions subsequent, yet where the court can in any case compensate the party in damages for the "non precise performance of the condition" equity will relieve. Popham v. Bamfield, supra. Northcote v. Duke, Ambl. 514. Et vid. Barnardiston v. Fane, 2 Vern. 366. Grimston v. Lord Brauce, Salk. 156. But, if compensation cannot be given, and the value of the thing for enforcing which the forfeiture is imposed, cannot be estimatted, relief is denied. Hargr. Jurisconsult Exercitations, 2 vol. 194. 1 Mad. Tr. Ch, 37. Fry and Porter's case, 1 Mod. 300.-[Ed.] (L) In considering the effect of impossible conditions, Lord Coke here classes them under four distinct heads:--1st. Where they are possible at the time of their creation, but afterwards become impossible, either by the act of God, or by the act of the party. 2dly. When they are impossible at the time of their creation. 3dly. When they are against law as mala prohibita, or mala in se. 4thly. When they are repugnant to the grant by which they are created, or to the estate to which they are annexed. See these distinctions very well illustrated in Mr. Roper's Treatise of Legacies, chap. 7.- [Ed.] [It should be observed, that a condition is then only considered in the eye of the law as impossible at the time of the creation, if it can by any means take effect. Such is the case put by Lord Coke, that the obligee shall go from the church of St. Peter at Westminster, to the church of St. Peter at Rome, within three hours. But, if it only be in a high degree improbable, and such as is beyond the power of the obligee to effect, it is not then considered as impossible. See the cases of this nature in 1 Roll. Abr. 419, 420.-It is said, that if the condition of a bond be to pay a certain sum, or to do any other act, out of his majesty's dominions, the condition is void, and the bond is single, because the performance of it cannot be tried. See 21 Edw. 4. 10.-It was upon a similar principle, that if a man professed himself a monk in a religious house beyond fear, it was no disability, because the fact could not be tried. For the only method which the law had to know if a man was professed, was to issue a writ in the King's name to the Bishop of the diocese, commanding him to certify, if such a monk was professed in such a house, in such a place within his diocese. But this method could not be used with respect to foreign professions, as the bishop was not bound to obey the King's writ, and might certify either true or false, without subjecting himself to punishment. For this reason no notice was taken in our law of foreign profession. on. Thus de Rolle, 2 Abr. 43. says, "If an Englishman goes into France, and there becomes a monk, he is notwithstanding capable of a grant i in England; for that such profession is not triable; and also for that profession is taken away by the statute; and by our religion now received, such vows and professions are held void. I have heard," continues he, "that this was in 44 Eliz. in one Ley's case, resolved according by all the justices in Chancery Lane. - [Butler, Note 98.] First, between a condition annexed to a state in lands Impossible conditions. or tenements upon a feoffment, gift in tail, &c. and a con- tween a condition anDiversity herein be and a (p) nexed to a feoffment, the bond, being executory. the (p) Pl. Com. 4:56. condition in a dition of an obligation, recognizance, or such like. For if a condition annexed to lands be possible at making of the condition, and become impossible by act of God, yet the state of the feoffee, &c. shall not 14 H. 7. 3. 15 H. 7. be avoided. Wrothe's case. fee 2014. Ε. 4. 3. As if a man maketh a feoffment in upon condition, that the *feoffor shall within one year go to the city of Paris about the affairs of the feoffee, and presently after the feoffor dieth, so as it is impossible by the act of God that the condition should be performed, yet the estate of the feoffee is become absolute; for though the condition be subsequent to the state, yet there is a precedency before the re-entry, viz. the performance of the condition. And if the land should by construction of law be taken from the feoffee, this should work a damage to the feoffee, for that the condition is not performed which was made for his benefit. And it appeareth by Littleton (sect. 334.), that it must not be to the damage of the feoffee; and so it is if the feoffor shall appear in such a court the next term, and before the day the feoffor dieth, the estate of the feoffee is absolute. 38 Η. 6. 2. 3. (22)* 31 H. 6. Barre 60. (g) But if a man be bound by recognizance or bond with (9) 15 H. 7. 18. condition that he shall appear the next term in such a 18 E. 4. 17. 9 Eliz. court, and before the day the conusee or obligor dieth, 262. Dyer, lib. 5. 22. Laughter's case, the recognizance or obligation is saved; and the reason 38 H. 6. 2. of the diversity is, because the state of the land is executed and settled in the feoffee, and cannot be redeemed back again but by matter subsequent, viz. the performance of the condition. But the bond or recognizance is a thing in action, and executory, whereof no advantage Fleta, lib. 4. cap. 9. and Bracton and Britton ubi supra.. can be taken until there be a default in the obligor; and therefore in all cases where a condition of a bond, recognizance, &c. is possible at the time of the making of the condition, and before the same can be performed, the condition becomes impossible by the act of God (M), or (M) But where the condition of a bond was to settle certain lands in such a manor by such a day, and the obligor died before the day, though the bond was saved at law, yet chancery decreed an execution in specie. Hotham v. Ryland, Eq. Ab. 18.-[Ed.] VOL. II. *206 b. (23)* Abr. 420. Cro. Eliz. of the law, or of the obligee, &c. there the obligation, &c. is saved. But if the condition of a bond, &c. be impossible at the time of the making of the condition, the obligation, &c. is single. And so it is in case of a feoffment in fee with a condition subsequent that is impossible, the state of the feoffee is absolute; but if the condition precedent be impossible, no *state or interest shall grow thereupon (N). And to illustrate these by *examples. (1 Leon. 229. 1 Rol. you shall understand: If a man be bound in an obliga291. 864.) 14 H. 8. tion, &c. with condition that if the obligor do go from 28. 10 H. 7. 22. the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, that then the oblifol. 22. Laughter's gation shall be void : the condition is void and impossible, 17 H. 6. Obligat. 18, and the obligation standeth good. And so it is if a feoff case & 75. 5. 5 El. Dier. 222. (*) Pl. Com. Fuller's case, 272. (1 Rol. Abr. 418. Post, 217 b. 218.) ment be made upon condition, that the feoffee shall go as is aforesaid, the state of the feoffee is absolute, and the condition impossible and void. (*) If a man make a lease for life upon condition that if the lessee go to Rome, as is aforesaid, that then he shall have a fee, the condition precedent is impossible and void, and therefore no fee-simple can grow to the lessee (o). (N) Neither can equity relieve. Cary v. Bertie, 1 Vern. 340. Graydon v. Hicks, 2 Atk. 18. Supra n. (K) So in case of legacics, if the condition be precedent, that is, if it is to be performed before the legacy vests in interest, although the condition be void from the impracticability or unlawfulness of the performance, yet, as the legacy is only given upon the terms of complying with the condition, the legacy, as depending upon it, must be also void. Show. P. C. 83. In this instance the common and civil laws differ; for by the latter, if the condition were impossible ab initio it was void, whether precedent or subsequent, and the legatee was entitled to his legacy, unless it was apparent that the testator supposed the condition possible at the time he created it. (Swimb. p. 4. sect. 6. passim. Et vid. as to the difference between the common law and the canon and civil laws, with respect to the doctrine of conditions, Fulb. Paral. p. 2. 7th Dials.) But in all cases of conditions becoming void, if such conditions be subsequent, the legacies will be considered absolute, that is, totally discharged from them. Sir James Lowther v. Lord Charles Cavendish, Ambl. 356. 1 Rop. Leg. 299.-[Ed.] (O) A condition is considered as impossible in its creation, when it is to do a thing which cannot by any means be acomplished; but if it be only improbable, or out of the power of the obligee, it is not in law deemed impossible. As if the condition be, "that a married man shall marry such a woman;" for it is possible that his present wife may die before him and the other woman. 1 Rol. Abr. 419. Or if it be, "that the pope shall be in London within a day." 1 Rol. Abr. 420. So, though it be out of human power; as "that it shall rain tomorrow;" for it is possible. 3 Com. Dig. 93.-[Ed.] |