legacy was intended for the executor in a distinct character? otherwise it was the prima facie presumption, that it was given to him as executor. His Honour remarked, that there was something in the circumstances, that the testator had put those legacies together, and that, in both the codicils, the legacies to the executors were precisely of the same amount. It seemed to him, as if the testator considered the legatees in the character of executors, and he therefore thought the plaintiff was not entitled. The recent case of Dix v. Reid,(z) is an instance, wherein the legacy was considered not to be given to the legatee in his character of executor; and accordingly, he was decreed entitled to the legacy, notwithstanding his renunciation of probate. In that case, a testator bequeathed thus: "I give to. William Reid and John Baugley 501. each, whom I nominate and appoint executors in trust to this my will: the said bequests to be upon condition of their taking upon them the trusts hereinafter mentioned." In a subsequent part of the will, the testator added, "I give unto my cousin Thomas King the sum of 50l. whom I appoint as joint executor in trust in this my will." Reid and Baugley proved the will: but King declined proving it, and did not interfere in the trusts. It was insisted he was not entitled to the legacy of 50l. The Master reported the legacy to be due, but an exception was taken to the report. And Sir John Leach, V. C. over-ruled the exception, observing, that he considered the gift rather intended in respect of the legatee's relationship, than of his office. The circumstance that the two other executors had the same legacies could not be brought in aid of the exception, because those legacies were expressly annexed to the office of trustees. His Honour, however, considered the case as very doubtful. Primâ facie legacies to executors were considered as annexed to the office, and they were to show circumstances to repel the presumption. With respect to precedent conditions in restraint of marriage, their performance in connexion with subsequent conditions of the same kind will be separately treated of under the third subdivision of this section. We shall next consider, 2. The performance of conditions which are subsequent. Those conditions are construed with great strictness, as they are intended to divest estates already vested. It is, therefore, required, as previously observed, for the very event to happen, or the act to be done with all its details, in order to deprive the legatee of his legacy.(a) · A. It is a consequence from this rule of construction, that if the subsequent condition cannot be performed from being impossible or illegal, the condition is void, and the legacy single and absolute.(b) Accordingly, in the case of Sir James Lowther v. Lord Charles Cavendish, (c) the testator, after settling his real estates in Cumberland on the plaintiff in tail, expressed a desire that his burgage tenures in Cockermouth should be limited in the like manner. He therefore devised them to Sir William Lowther in fee. The testator then signified his opinion, that it would be right for the plaintiff to have (z) 1 Sim. & Stu. 237. (b) Co. Litt. 206. Plowd. Com, 132. (a) See ante, p. 414. et. seq. all the estates of Sir William in Cumberland, and for the latter to have all the plaintiff's estates in Yorkshire. In order to accomplish that purpose, the testator gave 30,000l. stock to trustees, in trust for the plaintiff to receive the dividends, until Sir William conveyed to him in fee all the Cumberland estates, and the plaintiff had made over the Yorkshire estates to Sir William; which, if either of them refused or neglected to do within eight months after the plaintiff came of age, such person should not have any part of the stock; but if the exchange were completed by both of them, that fund was to. be divided between them; and he appointed Sir William sole executor and residuary legatee. Sir William died before the exchange could be made, in consequence of the infancy of the plaintiff'; and the defendant, the executor and residuary legatee of Sir William, claimed the 30,000l. upon the ground, that in the event which had happened, the fund was undisposed of, and formed part of the residue bequeathed to Sir William. . On the other hand, the plaintiff claimed the stock, upon the principle, that he took a vested interest in it at the testator's death, only to be devested upon his neglect or refusal to concur in the exchange, neither of which circumstances could be imputed to him. And, since the exchange had become impossible by the act of God, the bequest to him, which was originally qualified, became single and absolute. And of that opinion was Lord Northington, C. and directed accordingly.(d) B. There is a species of illegal conditions termed repugnant. They are so called from their inconsistency with the interest of legatees in the subjects of bequest, i. e. from the imposition of restraints incompatible with the enjoyment of the legacies in so large and ample a manner as the law allows, when dispositions are so made. This may happen, where the condition restrains a legatee from spending or disposing of his legacy, when his interest in it is absolute. Such condition being void, the observance of it is unnecessary.(e) The following is an example of this class of conditions: " In Bradley v. Peixoto, (f) the testator bequeathed to his son Henry Bradley the dividends of 1620l. bank stock for his support during life; and at his death the principal and interest where given to his heirs, executors, administrators, and assigns." But if he attempted to dispose of all or any part of the stock, such attempt should exclude him from any benefit under the will, and be a forfeiture, and the fund should go to the testator's other children. Henry claimed the legacy discharged from the condition, upon the ground, that the restriction was repugnant to the absolute interest which he took in the fund. And Lord Alvanley, M. R. was of that opinion; observing, "it was a rule long established, that, where there is a gift with a condition inconsistent with and repugnant to such gift, the condition is wholly void. It is stated at the conclusion of the report of the last case, that, upon a similar disposition of stock by the same will the Lord Chan (d) See Keates v. Burton, 14 Ves. 434. stated ante, p. 416. S. P. also Aislabie v. Rice, 3 Mad. 256. stated infra. (e) With respect to conditions of this description, .see Co. Litt. 146. 206. 222. 223. Mildmay's case 6 Rep. 43. Hob. 170. Shailard v. Baker, Cro. Eliz. 744. Portington's case, 10 Rep. 38. Gulliver v. Ashby, 4 Burr. 1929. King v. Burchell, Ambl. 382, 1 Eden, 434. S. C. 8 Term. Rep. 61. (f) 3 Ves. 324. cellor was of opinion that the interest was absolute, and decreed accordingly. A prohibition annexed to an absolute bequest, against the legatee's spending the money, is equally repugnant to his interest in it, as a general restraint against alienation. The condition, therefore, is void, and a forfeiture will not be incurred by non-compliance with it. So also, if the absolute estate of the legatee be made defeasible, upon his not disposing of the fund during life, the condition will be repugnant to the interest previously given and vested in him. For where absolute property is once given to an individual, it cannot be subjected during his life to a condition, that if he do not use or dispose of it, his interest shall cease, and go over to another person. In Ross v. Ross,(g) the testator gave to his son James Ross 2000l. to be paid to him at the age of twenty-five, or at any time between the ages of twenty-one and twenty-five, if his executors thought proper; the intermediate interest to be applied for James's support and education. But if James should not receive or dispose by will or otherwise, in his lifetime, of the money, it should return and be paid to the heir in tail for the time being in possession of a particular estate. James, after surviving the testator and attaining the age of twenty-five, died intestate, not having received the 20001. And Sir Thomas Plumer, M. R. was of opinion, that the condition or proviso was repugnant and void; an opinion, which procured a decree for the legacy in favour of the administrator of James, in preference to the heir in tail, the legatee over. It will have been noticed in the perusal of the last cases, that they prove, where the conditions are subsequent, and either impossible or illegal, although there be a limitation over of the legacies upon non-compliance with the terms, still the interests or the original legatees remain undisturbed and absolute; the bequests being considered the same as if no such conditions had been annexed.(h) It is presumed, upon the principle of the last cases, that if a legacy were given to A. for life, with a proviso for its determination if A. made any disposition of his life interest, the condition would be repugnant and void. For to such an estate the jus disponendi is incident by law, and cannot be totally forbidden.(i) The decision before considered being founded upon the inconsistency between the property in the subject bequeathed to the legatee, and the qualifications and restraints attempted to be annexed to it, it follows, that a condition, restraining the disposal of a legacy, will be good, when the gift and restraint are not repug nant. Suppose, then, a bequest to A., either absolutely or for life, but if he dispose of his interest to a particular person, the bequest to him. shall cease, or the property shall go to B. The condition is valid; for it does not prohibit A. from making any disposition of his interest, () 1 Jac. & Walk. 154. (4) And see Co. Lit. 206. 223. see also Poor v. Mial, 6 Mad. 32. VOL. I. but merely imposes a partial restraint upon him, which may be equitable and proper.(k) Upon the same principle, if a legacy were given to B., to be paid at twenty-five, provided, if he aliened the same before that age, his interest should cease, and go over to C.; the condition is good; and if not observed, C. will be entitled to the money.(1) So, when it appears that the proviso against alienation by a legatee for life was not meant to operate as a strict condition, in derogation of the legal powers and incidents to that estate, but as a conditional limitation, (m) determining his interest, and giving it to another person upon alienation; in that case, if the legatee do not comply with the terms of the bequest, his interest will cease, and go over as directed by the will. Lord Eldon expressed himself on this subject to the following effect: "If property be given to a man for life, the donor cannot take away the incidents of a life estate. A disposition to a man, until he shall become a bankrupt, and after bankruptcy over, is quite different from an attempt to give to him for his life, with a proviso that he shall not sell or alien it. If that condition be so expressed, as to amount to a limitation, reducing the interest short of a life-estate, neither the man nor his assignees can have it beyond the period limited."(n) The above sound distinction between condition and limitation appears to reconcile all the authorities relating to testamentary questions upon this subject. Whether the restriction be condition or limitation must be decided by the intention of a testator, as collected from his will.(0) And it should seem, that if the restraint be a condition, then, since a condition not to alien is repugnant and void, the bankruptcy of the legatee, any more than his own particular disposition, cannot be a forfeiture. On the other hand, if the restriction be a limitation; then, whether the alienation be by the act of the party,(p) or by operation of law, as in consequence of bankruptcy, the interest will determine. In truth, there seems to be no foundation for the distinction said to exist in some of the cases, between the voluntary alienation of the legatee being a forfeiture, and the disposition by act of law being no forfeiture; for in each instance, the legatee is the author of the alienation intended to be prevented by the testator, by whatever means effected. In the one case, it is occasioned by his own direct and immediate act; and in the other, by involving himself in debt, which gives rise to the disposition of his interest by act and operation of law. Hence it seems fair to conclude, that, where the interest bequeathed to a person is made to cease upon his alienation, not as a condition annexed, but in limitation of its continuance, the interest will determine, whether the legates directly make the disposition, or the law does it for him in consequence of his own preceding acts. We shall now examine the cases, to ascertain how far they support the above observations. In Dommett v. Bedford,(q) a case sent out of Chancery for the opinion of the Court of King's Bench, the testator bequeathed to his nephew, Mr. Woodham, an annuity of 301. for life, to be paid half(k) Litt. sect. 361. Swinb. pt. 4. sect. 13. art. 6. (1) See Large's case, 2 Leon. 82. (m) Ante, p. 502. (n) 18 Ves. 433. Ante, p. 502. (p) Wilkinson v. Wilkinson, 2 Wils. C. C. 47. 6 Term. Rep. 684. yearly, and with which he charged his real estate. The testator then gave a strict direction, that the annuity should be paid from time to time to Woodham only; whose receipt, under his own hand, and none other, should be a sufficient discharge; the testator's intent being, that the annuity or any part of it should not on any account be aliened for the whole or any period of Woodham's life; and if the same should be so aliened, it should immediately cease and determine. Woodham became a bankrupt after the death of the testator; and the commissioners assigned the annuity to the assignees. The Judges certified their opinion, that by the bankruptcy and assignment the annuity ceased and determined. It is observable, the Court did not say that the annuity was forfeited, which it would have done, upon the breach of a condition. It declared there was a cesser of Woodham's interest in, and a determination of, the annuity. This then was a limitation, not a condition. It was the testator's intention that the annuity should continue only so long as Woodham could receive it; and that, if in any event he were precluded from so doing, the personal benefit intended for him should determine. The case establishes the following proposition; that a general restraint of alienation includes as well a disposition by act of law, as by the specific act of the person prohibited. Doe v. Hawke(r) is a case of similar description with the last. There a farm, held under the Duke of Newcastle for twenty-one years, was devised by the testator to his nephew, Abraham Ibbotson, in the following manner: He gave the tenant-right of it to Abraham, he performing the obligations in the lease, "but not to sell or dispose of such tenant-right to any other person. And if he refused to dwell there himself, or keep it in his own possession, his nephew John was to have the tenant-right." After Abraham was in possession of the farm, he deposited the lease with a Mr. Crookes as a security for a debt, and it was afterwards delivered over to another creditor, who discharged the demand for Abraham, and received from him a warrant of attorney to confess a judgment, which was entered up, and execution taken out. Under that execution, the lease was sold, and assigned by the sheriff, and the purchasers (defendants) immediately put into possession of the farm. Abraham left the farm on the morning before the sale, and from that day he ceased to dwell there, or to have any possession of it Under those circumstances, John, the devisee over, claimed the farm; a claim which was established by the opinion of the Court of King's Bench. The last case was decided upon the devise being a conditional limitation, and not simply a condition. It was the clear intention of the testator (and as appeared from the terms of the devise) to give the lease to Abraham, so long only as he continued to live on the farm. If he quitted it, his interest was to determine at that period, and to go over to John. All that was necessary for John to show to complete his title, was the abandonment of possession by Abraham. This he was enabled to do, as, from the time of the sale by the sheriff, Abraham neither resided on the farm, nor retained the possession of any part of it. The event happened upon (r) 2 East. 481. |