sion of not obtaining gain, so in testaments the same ought to be made with all freedom, not only divested from the fear of incurring loss, but also without any prospect of gain or reward.". With due deference to those reasons, it seems that the law of England allows every person to dispose of his property as he chooses, provided his will be not contrary to legal policy; and fraud is never presumed without proof. No solid objection, therefore, arises to qualify this liberty, in instances where two persons are desirous to create by their testaments a contingent benefit, in favour of the one, who may happen to survive the other, where no deceit has been practised by either party. It seems, however, settled, that if two persons enter into a fair and definite agreement to leave each other a sum of money, or to settle by their wills the property of each for the benefit of the survivor, a court of Equity will enforce a performance of such agreement.(i) And with respect to the second class of captious bequests, it should seem that A.'s legacy would vest immediately upon B. signifying his assent; and nothing is more frequent in practice, than dispositions in trust for A. for life, with a limitation after A.'s death to such persons as he shall appoint; the validity of which limitation has never been questioned. 4. Of subsequent conditions. A subsequent condition is, where any estate or interest is so given as to vest immediately in the legatee, subject only to be devested by some act or event at an after period. (k) Technical words are not required to create such a condition; it will be sufficient, if the testator appear, from the contents of his will, to have intended an immediate interest to pass to the object of his bounty. In addition to the instance given in the beginning of this chapter of a subsequent condition, the following examples are produced. If a legacy be given to A., to be paid at twenty-one, and if he die under that age, then to B.; the interest of A. will vest immediately upon the death of the testator, subject to be devested upon A.'s demise under twenty-one.(1) So in the case of a bequest to A. generally, and if he die before C., then to D. The legacy will vest in A. immediately, liable to be devested upon the happening of the contingency. Also, if a legacy be given to A., payable at twenty-one or marriage, but if he marry under that age without the consent of executors, then to C., the legacy will vest immediately in A., and the condition is subsequent.(m) It is to be remarked, that although by the Civil and Common laws it is the general rule that precedent conditions must be literally performed, still that rule is not so rigorous, at least in the Civil law, as not to admit of exceptions, when the conditional terms are so far complied with as to fulfil the intention of testators in imposing the conditions.(n) Whereas, in conditions subsequent, since they are in defeasance of interests already vested, courts of law and equity are Lord Walpole v. Lord Orford, 3 Ves. 402. Hinckley v. Simmons, 4 Ves. 160. (k) Sce Ughtred's case, 7 Rep. 10 a. (1) Nicholls v. Osborn, and Taylor v. Johnson, 2 P. Will. 420. and 504. And see ante, Chap. X. sect. 5. p. 403. (m) Garret v. Pritty, 2 Vern. 293. (n) Swinb. pt. 4. sect. 7. art. 4. Voet ad Pand. lib. 28. tit. 7. s. 25. Cod. lib. 6. tit. 46. Dig. lib. 32. tit. 1, lex. 11, s. 11. 1 strict in requiring the very event to happen, or the act to be done, with all its particulars, which is to defeat the interest previously vested. As this has been shown in the tenth chapter, (o) we shall proceed to treat SECT. II. Of the PERFORMANCE of Conditions. 1. Of performance, when the conditions are precedent. A.-When the performance is not within the time mentioned in the condition. Where a condition is precedent, it ought regularly to be strictly performed in the manner required, as before observed; yet it seems, that both by the Civil law and by our own, if the testator's intention be satisfied by an execution in substance, i. e. cy pres, the performance will be sufficient. The Civil law held, inconsistently indeed with its admitted exceptions to the general rule of strict performance, and which are hereinafter noticed, that where 100l. was given to B. if he paid C. 20l. within a certain period, and C. died before the time; payment to his executors upon the day would be insufficient.(p) It seems, however, that the Common law would not require such a literal performance of the condition, but permit the execution of it cy pres; viz. by allowing payment of the 50l. to C.'s executors to be a good performance ; (q) and it is presumed that a court of equity would hold the same doctrine.(r) Upon a similar principle with that of cy pres performance, the Civil law has admitted of a very extensive limitation to its general rule of strict performance; viz. in all cases where it is apparent that testators paid more regard to the end or fulfilment of the condition than to the means prescribed for the execution.(s) So that, if A. bequeathed a legacy to B., in case he erected a monument for A. within three days after A.'s death; although B. should not literally comply with the condition, yet he would be entitled to the legacy upon building the monument within a reasonable time, since the erection would be considered as the motive and essence of the bequest, and the time appointed for the building but a mean to expedite the business.(t) And it is presumed that courts of equity would act upon the same principle in similar cases. Thus in Simpson v. Vickers, (u) Mr. Simpson bequeathed to his brother Michael 1000l., to be paid within six calendar months after his (the testator's) decease, upon his then executing to the executrix a release of all claims and demands; and if he refused or declined to do so, the testator revoked the bequest, appointing his sister Elizabeth sole executrix. It seems that Michael did not give the release within the time prescribed; nevertheless Sir W. Grant declared him to be entitled to the legacy, upon his releasing all demands. So in Taylor v. Popham, (x) Mr. Taylor bequeathed to his son Paris two annuities of 100l. and 2001. There being subsisting accounts between them, the testator gave to Paris 600l. a year, upon (o) Ante, p. 414. and see Jones v. Suffolk, 1 Bro. C. C. 529. 6 Mad. 137. (p) Swinb. pt. 4 sect. 7. (q) Co. Litt. 205, b. (8) Swinb. pt. 4. sect. 7. art. 4. (u) 14 Ves. 341. 348. (t) Swinb. pt. 4. Jones v. Bromley, (r) 2 P. Will. 613. sect, 6. art. 10. (x) 1 Bro. C. C. 168. and see Franco v. Alvares, 3 Atk. 342. in which the Court held that the bill filed within the time was a sufficient performance. condition that he within three months executed a release of all demands on his estates, stating his assurance that there was nothing due to him on those accounts. A release was tendered to Paris, which improperly included the two annuities, and he refused to execute it. The persons beneficially interested under the will insisted that, by such refusal, Paris had broken the condition upon which he was to take the annuity of 600l. But he contended that he was not obliged to execute a release, until the accounts were taken and settled, and the balance ascertained. It appears, however, that the three months elapsed, and no release was given. Lord Thurlow determined, that the tendered release being improper, Paris was not obliged to execute it. He was also of opinion, that Paris was not entitled to have the accounts taken, since it appeared to have been the clear intention of the testator to prevent that proceeding, or to give any election to Paris. (y) And notwithstanding the expiration of three months mentioned in the condition, his Lordship gave liberty to Paris to execute a release, which he having refused to do it was declared that he was not entitled to the 600l. a year. Such determinations as the last upon precedent conditions do not appear to be founded upon relief against forfeiture, as is generally supposed, but upon the principle of their having been substantially performed within the meaning of the testator's imposing them. When the condition is precedent, there is nothing to forfeit, since no interest can vest previously to the literal or substantial performance of the condition. The question in all those cases appears to be, have the conditions been duly performed? In resolving such questions, it is presumed that the following distinction is material to be regarded. When there is no disposition upon non-compliance with the terms of the condition, either in time or collateral circumstances, a liberal construction is to be put upon the performance, under authority of the testator's intention, inferred from the absence of any disposition over, that he meant the legatee to receive the legacy, upon the condition being performed cy pres, or in substance, as in the preceding cases. But when there is a limitation over of the legacy on non-compliance with its specific terms, the construction is less liberal, a strict and literal performance being required; as it is presumed, from the disposition over of the legacy to another person, that the testator meant, if the terms which he imposed were not literally fulfilled, the second object of his bounty should succeed to the bequest by way of conditional limitation. That this is the true principle applicable to these subjects will appear, if we proceed to consider the cases establishing the proposition. That the times appointed for performing conditions may be so material to be observed, as for ever to prevent the title of the legatees, upon their permitting the periods to elapse without a performance. In illustration of this Suppose a condition, upon which a bequest is made, depends upon the legatee (then abroad) returning to England within three years, and personally applying for his legacy. His arrival in this country within that time is essential to his title; and if he omit to (y) But Lord Northington held in Vernon v. Bethell, that the filing of such a bill for the purpose of election was a forfeiture, 2 Eden, 110. 114. do so, then, although he may shortly afterwards return, and for the first time receive notice of the bequest, and upon that information make immediate application for the legacy, the defect in the literal performance of the condition cannot be remedied; and for the following reasons. • The time allowed for performance is not, as in the instances before given, a mere secondary consideration, but it seems to have been in the particular contemplation of the testator at the date of his will, and intended by him to be punctually observed. Being uncertain whether the legatee was living, or should be so at his death, and wishing to benefit him if he happened to be then in existence; the testator, for the convenience of his executor, might have required the personal appearance of the legatee within the above period, which he considered a sufficient allowance for that purpose. A court of equity, therefore, cannot upon any rational principle enlarge the period for claim, which the testator himself thought proper to determine. Accordingly, in the case of Burgess v. Robinson, (z) the testator bequeathed 200l. charged upon his real estate, to each of his three nephews, to be paid to them as soon as they arrived in England, or claimed the same, provided the claim was made within the first three years next after his decease. And the testator directed, that if only two of his nephews so arrived or made their claims within the above period, each of them was to be paid 250l.; but if only one arrived and claimed he was to receive 400l. and the residue was to be considered part of his (the testator's) residuary estate; so also was to be considered the sum of 500l. (part of the three legacies,) if neither nephew arrived in England nor made claim within the time before mentioned. The testator then disposed of his residuary property. None of the nephews literally complied with the condition. And it appeared that one of them came to England at the end of four years, subsequently to the testator's death; after which, being informed for the first time of the will, he claimed the benefit intended for him by the testator. But Sir W. Grant M. R. determined against his title; observing, that the testator having imposed on the legatee a condition, with which he had not complied, although the non-compliance was the effect of the latter's ignorance of the provision, yet the consequence must be that he was not entitled to the legacy.(a) In a preceding case, Lord Eldon acted upon the principle before stated, and in conformity with the last determination, holding that the legatee's arrival in England, and personally claiming the legacy within the time and in manner prescribed by the condition, could not be dispensed with. The case alluded to is Tulk v. Houlditch, (b) in which the testator gave his son John, at Malaga, in Spain, a specific legacy of 2000l. stock, stating, that as he had not heard from John for a considerable time, and the probability was that he was then dead, he therefore declared the legacy to be given upon condition that John should not be entitled to it unless he returned to England and personally claimed it from his executors or administrators, or in the (z) 3 Meriv. 7. 1 Mad. 172. : (a) Not so by the Civil Law. Swinb. pt. 4. sect. 14, art. 15. porch of the parish church at Waltham, in the presence of two witnesses. The testator then directed, that if John did not return and make such claim within seven years after his decease, he should be presumed to be dead, and the legacy considered to be lapsed, and fall into the residue. The executors were ordered to continue the stock in the bank for the above period after the testator's death, until sufficient proof was produced of the demise of John, or until it should be claimed by him, within the time, in manner before required. And the intermediate dividends were to accumulate, which, with the capital, were to be paid to John, in case he claimed the legacy in the manner and within the period before stated, or the whole was to belong to the residuary legatee. John was living at the date of the will, and did not return to England, but died at Malaga within seven years from the death of the testator. He was regularly informed of the bequest, and intended to comply with its terms, but was prevented by the illness which occasioned his death. His executor claimed the legacy, contending that it was meant for John if he happened to be living, a fact which being clearly ascertained in the affirmative, although not in the manner prescribed by the testator, the substantial part of the condition was performed, which entitled the personal representative of John to the legacy. In support of the argument, the civil law was referred to; but Lord Eldon determined against the claim, and said. " I think this legacy is not due under the circumstances. The cases cited from the Civil law are distinguished in this respect. In those cases where the legacy was considered due, the means by which the party appeared to be living were not thought to be essential, if the fact were otherwise established it was sufficient; but there is in this will language plainly showing that the testator did not mean the legacy to be taken, unless the fact that the party was living was pointed out by the means by which the testator required that demonstration. The consequence is, that the bill must be dismissed without costs." The two cases of Simpson v. Vickers and Taylor v. Popham, before mentioned, (c) are examples of strictly precedent conditions, and in which the Court of Chancery considered the periods for executing releases as merely ancillary to the accomplishing of those objects, and the procurement of those instruments the end and substance of the conditions. The two other cases last stated were determined upon particular circumstances connected with the times of performance, and which could not be in the least departed from, consistently with the obvious intention of the testators; yet the legacies were limited over upon non-compliance with the particulars enumerated in the conditions, circumstances which, it is presumed, would of themselves, in ordinary cases, have procured similar de crees in favour of the second class of legatees. However, the decision of Sir W. Grant in Simpson v. Vickers, upon the will of Mrs. Simpson, establishes the proposition, that in cases where there is a limitation over of the legacy or devise, upon the legatee or devisee not performing a condition within the time prescribed for that purpose, if the terms be not literally complied with, the condition will |