7 The exoneration of the personal estate is presumed to have been intended as a personal benefit for the individual legatee; and nothing is more clear than that where an exemption is created for the benefit of a particular person, and not in favour of the estate generally, if that person cannot take it, the benefit will never arise: hence it follows, that if the personal estate be exonerated from debts and legacies in favour of A., and he die before the testator, by which event the disposition lapses; the executors or next of kin of the testator, who accidentally become entitled to the fund, will take it with its primary and natural obligation to discharge the debts and legacies. As an example of the principle of these remarks, the following case is adduced:

Mr. Waring, after bequeathing two annuities, and reciting his purchase of the manor of Ince, which he had mortgaged for the purchase money, devised his interest in the estate (subject to the annuities, and such other annuities, bequests, and directions, as by his will or by codicil he might give, expressly charging his Ince estate therewith) to his wife for life, remainder to such uses as she should appoint, but not to take effect until a mortgage affecting one of his estates should be discharged. The testator, after noticing that his wife had subjected her estate to raise 3000l. to pay 1850l. upon mortgage of his estate at Oswestry, the surplus of which sum he was to receive, directed his trustees to raise the 3000l. and discharge that mortgage, and pay the residue of the money to his wife, to whom he gave the rest of his personal property, in trust to discharge "all his debts, for which at his death he should not have given real securities," and all such bequests and annuities (not including those before mentioned) as he should therein or by codicil give, and with which he should not expressly charge his estate at Ince, and to keep the residue of the 3000l. and of all other his personal estate, to her own use: provided, that if she by other means paid the said mortgage and his debts, and the bequests and annuities (not including those before granted,) the 3000l. should not be raised. The testator's wife died before him; but he married again, and died without republishing his will. Under these circumstances, the question was between the testator's heir and second wife; the former insisting that the personal estate was applicable in exoneration of the real, to discharge the mortgage debt affecting the purchased estate. Lord Alvanley, after admitting that the first wife would have taken the personal fund exempt from debts, for which the testator had given real securities, determined that the exemption was personal to her, and consequently that the privilege determined with her life.(1)

8. We shall conclude this chapter in observing, that the real estate, when effectually charged with the payment of debts or legacies, will be liable to bear the burthen once only; so that creditors or legatees cannot resort to it again, if the persons entrusted with the power to raise and pay the money, raise, mis-apply, and waste it.

Accordingly, in a case, which was ultimately decided in the House of Lords, Mich. 1689, and reported in Salkeld,(m) a man limited an

(1) Waring v. Ward, 5 Ves. 670. and see Hale v. Cox, 3 Bro. C. C. 322, stated ante, p. 490 and Noel v. Henley, 7 Price, 241. 259. S. P.

(m) Anon. 1 Salk. 153. et vide Carter v. Barnadiston, 1 P. Will. 505, 518. S. P.

estate to trustees for payment of debts and legacies. The trustees raised all the money, and the heir prayed to have the land; which was opposed, on the ground of the trustees not having applied the money in conformity with the trust, but converted it to their own use, so that the debts and legacies remained unpaid. But it was resolved, that the heir should have the land discharged, and the legatees be left to their remedy against the trustees; upon the principle, that the estate was debtor for the debts and legacies only, and not for the misconduct of the trustees; whence it followed, that the estate continued liable so long as the debts and legacies should or might be paid, and no longer; and that when the land had once borne its burthen, and the money raised, it was discharged, and the trustees alone were liable.

CHAPTER XIII.

Of Legacies upon Condition

IN preceding parts of this work, certain species of conditional legacies have been noticed; which, from their importance, it was thought.expedient to make the subjects of two distinct chapters.(a) In the present chapter it is proposed to treat of conditional bequests generally under the following heads:

SECT. I. Conditions precedent and subsequent.

1.-When the conditions are precedent, and distinguished from limitations.

2.-When such conditions are impossible.

3. When illegal, and of precedent conditions in restraint of marriage.

4.-Conditions subsequent.

SECT. II. Performance of Conditions.

1.—When the conditions are precedent.

A. Where the performance is not within the time mentioned in the condition.

B. From what period the time for performance is to be computed.

C. When the legatee has the whole of life to per-
form the condition.

D. Right of executors to perform the condition.
E. Where legacies are given to executors or trus-

tees.

2.-When the conditions are subsequent.

A. Where they are impossible.

B. Where they are repugnant and illegal.

C. When they are not to dispute the validity of wills or bequests.

(a) Chap. X. and XI.

D. Where the time of payment of legacy, and the condition to divest it are inconsistent.

3.-When the conditions are in restraint of marriage, whether precedent or subsequent.

A. Where the conditions require marriages with

consent.

(A. 1.) At what time consent ought to be obtained. (A. 2.) And from whom.

(A. 3.) What will be a sufficient consent.

FIRST.-Where the consent is general,
i. e. to marry any person.
SECOND. As to retracting consent.
THIRD.-Conditional assents.

FOURTH.-Importance of legatee's sup-
position that there is no consent, when
it is judicially considered as given.
FIFTH.-Of implied consents.

SIXTH.-Effect of consents by testators themselves to marriages, required by their wills to be had with consent after their deaths.

(A. 4.) Whether conditions requiring consent are fully performed by first marriages with

consent.

(A. 5.) Whether such conditions will be confined to the periods appointed for payment of the legacies.

[a.] And the effect of marriages without consent when the legatee afterwards survives the time when the legacy is payable.

(A. 6.) As to conditions requiring marriages with consent being considered in ter

rorem.

B. Conditions requiring marriages with persons bearing the surnames of testators.

SECT. III. Respecting FORFEITURE generally, by non-compliance with testamentary conditions.

SECT. IV. Necessity of giving NOTICE of conditions. 1.-In regard to personal bequests.

2.-When the devise is of real estate.

A Legacy upon condition may be defined, "a bequest, whose existence depends upon the happening, or not happening, of some uncertain event, by which it is either to take place, or be defeated." In deeds, &c. which are presumed to be made with great care, the

law has ordained certain appropriate words to create conditions ; but in wills, other words are sufficient for the purpose, by reason of the indulgence the same law allows to that imbecility of body and mind, under which it considers testators to labour, at the period of making those instruments. In all cases, therefore, where the intention can be collected, that the bequest should be conditional, and the terms are so definite as to admit of execution, that intent, if legal, will be effectuated by whatever words expressed.(a) This was exemplified in the following instance:

The testatrix, by a codicil, bequeathed to her son (the plaintiff) as follows: "Provided my son changes the course of life he has too long followed, and will give up all his low company, and frequenting public houses entirely, I then leave him, but not otherwise, the interest of 5500l. for life," &c. And if he should not do so, she gave him only 50l. a year for the same period. The evidence of the son having complied with the condition was not satisfactory; and it was contended on his behalf, that the condition was so vague, as to be incapable of enforcement in a court of justice. But Sir W. Grant was of a contrary opinion, and directed the Master to inquire, whether the plaintiff had discontinued, and how long, to frequent public houses, drinking to excess, and keeping low company, according to the codicil.(b)

Conditions admit of a two-fold division, viz. into conditions precedent, and conditions subsequent. The former are such as must generally happen or be performed before the legacy can vest. The latter are such as by non-performance or breach of them will, in most instances, defeat the legacy already vested. So that if a bequest were made to A. upon his marriage with B., or if, or provided, or in case, he married C. or into the family of C. ;(c) or at, or when, or if, or provided, or in case, he attained twenty-one ;(d) the bequest would be made upon a condition precedent to the vesting of the legacy. The condition would be alike precedent, and require completion, if the bequest were made to A. being abroad, "in case he should ever return to England" ;(e) or if a legacy were given to the testator's widow payable in six months after his death, provided she released her right to dower or all demands upon the testator, (f) or paid to C. 201. (g). But if a term of years were devised to D., upon condition that he paid to C. 1000l. at Michalemas next after the testator's death, it would be a subsequent condition, which would devest and defeat the bequest, if omitted to be performed.

SECT. I. Of conditions precedent.

1. Distinction between condition and limitation, and the consequences.

Whenever it appears that the happening of an event, or the performance of an act, was intended to operate as a condition to precede

(a) Swinb. pt. 4. sect. 5. Co. Litt. 204. a. Touchst. 451. Fulbeck's Paral. 62. (b) Tattersall v. Howell, 2 Meriv. 26. and see Neal v. Hanbury, Pre. Ch. 173. stated ante, p. 426.

(c) 1 Bro. C. C. 55. T. Raym. 80. Show. Parl. Ca. 84. Co. Litt. 206. 14 Ves. 392. (d) Ante, p. 383. 2 Vern. 333. 2 Atk. 41. (e) Sprigg v. Sprigg, 2 Vern. 394. (f) Weldon v. Oxendon, cited Forrest, 273. Taylor v. Popham, 1 Bro. C. C. 168, (g) Swinb. pt. 4. sect. 7.

VOL. I.

3 S

the vesting of a legacy or devise, it is essential that the event happens, or the act is done, since no interest will previously vest in the legatee or devisee, (h) as has been shown in the tenth chapter of this Treatise. In addition to the authorities there produced are the following:

In Doe v. Shipphard, (i) land in Essex and Lancaster were devised to trustees, to pay out of the rents to the testator's married daughter, 201. annually, for her separate use for life, and the remainder during her life, and the whole of them after her death to her husband for life. "And in case his daughter survived her husband," the testator limited the estate to the use of his daughter for life, remainder to his grand-son and heir in tail, with remainders over. The testator then devised to the same trustees, other lands to the use of his daughter and her husband, and the survivor of them, until his grand-son attained the age of twenty-five; at which period, or at the death of the survivor of the daughter and her husband, these lands were to be to the use of the grand-son in tail, with remainders over. The daughter died before her husband, and the question was, whether her surviving him was not a condition precedent to the several limitations over of the Essex and Lancaster estates, which not having happened, those estates devolved upon the testator's heir? And the Court of King's Bench decided, that the contingency of the daughter surviving her husband was a condition precedent to the vesting of the limitations, which not having happened, the heir was entitled.

In consistency with the last determination, the same Court, decided the case of Doo v. Brabant, stated in a preceding page.(j)

But whether a contingency, apparently denoting a condition precedent to the devise or bequest, be or be not a condition, must be determined upon a fair collection of the testator's intention from the whole of his will. Hence, although the expression used by him may appear to denote its dependance upon a contingency, which may not happen, still, if the context of the will clearly show his intention, that the event described was not to precede the vesting of the legacy, but the legatee should have it at a particular time, whether the contingency happened or not, the form, in which the bequest is made, will not be permitted to create a precedent condition;(k) for in these and similar cases, courts of justice, in favour of the intention, consider the executory devises as limitations, and not conditions, which are required to be literally performed, previous to the vesting of any interest, as we have seen; whereas limitations being construed according to the sense and intention of testators, it is not necessary that every particular circumstance should take place. Hence have arisen those cases, where a testator devised to the child with which his wife was enceinte, and if it died before twenty-one, then over; the limitation over was held good, although the wife proved not to have been enceinte, and there was no express devise upon that event. The principle is obvious. The intention was clear that the limitation over should take place, if, in any event, the preceding was disappointed. The circumstance, therefore, of there (h) Sprigg v. Sprigg, 2 Vern. 394. (i) Dougl. 75.

(j) Ante, p. 329. and see Davis v. Norton, 2 P. Will. 390.

(k) Ante, p. 387.