be held not to have been performed within the intent and meaning of the testator. Mrs Simpson devised to her brother Michael (who was her heir) all her real estates, upon the express condition that he, within six calendar months next after her death did, at his own expense, make and execute, or deliver, or tender to her executor a good release for 1000l. bequeathed to him by her brother John, and of all other demands upon John's or her estate on account of her executorship under the will of John. But if Michael refused or neglected to comply with the condition, she declared that at the end of the six calendar months, the devise to him should become void; and from that period she devised her real property to her sister Sarah, whom she appointed executrix. Michael contested the validity of the will, a circumstance which he brought forward in excuse for his omission to execute a release within the six calendar months next after the death of the testatrix. But Sarah (the devisee over) contended, that as the estates were only devised to Michael in the event of his giving the release within the above period, and upon his neglect to do so, then to her (Sarah); she became entitled to those estates upon his non-performance of the condition, by the express limitation of the testatrix. And so Sir W. Grant determined, and said that the devise being a conditional limitation, and not a strict condition, and the event having literally happened upon which that limitation depended, Sarah was entitled to the estates. And his Honour declared, that Michael, not having complied with the condition of giving a release, was not entitled to the benefit of the devise made upon that condition.(d)

B. From what period the time for performance is to be computed. In calculating the time by months, when that word is mentioned generally in the condition, the computation is to be made by calendar not by lunar months.(e) But from the carelessness of legatees, it may happen that they may neglect to fulfil the terms of the condition, until it become a question, whether they have performed that obligation in due time. The point has arrived at that nicety as to require a decision whether the period for computing the space allowed to perform, the condition commenced from the day of the testator's death, or that day was to be excluded. The rule is in this, as in other cases, that the day of the death is inclusive or exclusive, as will best answer the intention of the testator.(f) An example where that day will be considered exclusive may be thus given:

Suppose a bequest to A. if within six calendar months after the death of her brother, she give the security required by the will, and the testator to die on the 12th of January 1805, and the security to be given on the following 12th of July. The condition will have been performed, for the computation is to be made upon and from the day next after the testator's death. Such was the case of Lester v. Garland, (g) decided by Sir W. Grant, M. R.; and upon this reasoning. The day is a sort of indivisible point, so that any act done in the compass of it is no more referrible to any one, than to

(d) 14 Ves. 341. and see Lord Beaulieu v. Lord Cardigan, Ambl. 533. Reported 1 Eden, 349, and commented upon by Sir W. Grant, in the last case p. 347. (e) 3 Atk. 346. (g) 15 Ves. 248.

(f) "Law of Husband and Wife," vol. i. p. 99.

any other portion of it; but the act and the day are co-extensive, and therefore the act cannot properly be said to be passed until the day is passed. Such is the technical rule. That rule then forbidding, in the present case, the hour of the testator's death to be considered as the time of it, since that would be making a fraction of a day, it follows that the day of the death must be the time of it, and that time must be past before the six months can begin to run, which makes the commencement of the period the day following the death of the testator.

C. When the legatee has the whole of his life to perform the condition.

When no period is appointed by the testator for performance of a condition, the legatee will, in general, have the whole of his life to fulfil the terms of it. In this the Civil law and the rule in equity coincide, so that if a legacy be given to A. if he pay 10l. to the poor of a particular place, A. will be allowed by the Civil law the whole of his life to make the payment ;(h) and an instance where a court of equity made a similar decision occurred in the following case:

In Randal v. Payne,(i) Mr. Walsh, after giving legacies to Jane and Martha Wood, declared, that if either of them married into the families of Gosling or Rivington and had a són, he gave all his estate to such son for life, &c. but if they should not marry, the estate was to go the plaintiff for life, &c. The Woods married, but not into the families before named, and the question was, whether, upon such marriages, the plaintiff had not a right to the estate? Lord Thurlow determined in the negative, on the principle that nothing could vest in the plaintiff until the contingency of the Woods not marrying into the particular families became impossible, which could not be decided during their lives, for while they lived, there was a possibility of their performing the condition; consequently the claim of the plaintiff was premature.(k)

In the last case it was obviously the intention of the testator, that if either daughter married into the families of Gosling or Rivington and had a son, that son was to have all his estates; a circumstance which showed his intention, that those estates were not to go over, while the happening of the above event was possible, and which therefore necessarily continued during the lives of each daughter; so that although the daughters might marry into other families than those prescribed, as was the case, yet as their husbands might die and one of the widows marry into one of the families pointed out by the testator, and have a son, the first marriages were not allowed to be a determination of the condition, so as to entitle the person in remainder to the estates upon those events taking place.

But when it appears to have been the testator's intention, that the condition should be restricted to the first marriage of the legatee, that intention will prevail, as in the following case:

Mr. Lowe, after devising all his real estates to trustees, bequeathed a portion of 10,000l. to his daughter Charlotte, one half of it, to be paid upon her marriage, and the remainder in one year afterwards, on condition of her marrying with the consent of any two (h) Swinb, pt. 4. sect. 14. art. 11. (i) 1 Bro. C. C. 55.

(k) See Page v. Hayward, 2 Salk. 570. 8vo, ed.

of his executors, &c. But if she married without such consent, one of his three kinsmen, William, Thomas, or John Drury, he gave to that one kinsman particular estates upon his taking the name of "Lowe," and if that circumstance did not take place with Charlotte, he directed it to be offered to his daughter Ann in every particular; and if neither daughter married as aforesaid, he gave the estates to his kinsman William Drury and his heirs male for ever, upon his and their taking the name of "Lowe." Charlotte married, with the consent of the testator, a person not one of the three kinsmen named in the will, and she received a marriage portion, and then the testator made a codicil and revoked all the devises and bequests in his will in favour of Charlotte, and all the claim and right which her husband might have to any of the testator's real or personal estates, in consequence of the marriage. An act which showed the testator intended, that the condition of either of his daughters marrying one of his three kinsmen, was to be confined to their first marriages; for in lieu of such claim and right, the testator gave to each child of the husband by his daughter (except an eldest or only son) a pecuniary legacy. And by the same codicil the testator declared, that if his daughter Ann married any of the three persons named in his will, then, on condition that such person and his heirs should take and use the name of Lowe only, such person should be entitled to all his real and personal estates absolutely. But if his daughter Ann should not marry any of those persons, or marrying one of them he refused to take and use the name of Lowe, the testator revoked all the devises and bequests he had made to Ann, and gave to her 10,000l. Ann, after surviving the testator, married, but not one of the three kinsmen of the testator, and on that occasion she was paid the 10,000l.; and although it was urged that her husband might die and she afterwards marry one of those three persons, yet the Court of King's Bench was of opinion, that the remainder over to the plaintiff Drury (who had taken the name of Lowe) irrevocably took place.(l)

D.-Right of executors to perform the condition.

Where the condition gives an option to the legatee to perform one of two or more things, within a particular period, previously to the vesting of the bequest, if the legatee die before the expiration of the time without having elected, the right of election may be exercised by his executors.

Accordingly in Eastwood v. Vinke, (m) the testator upon his marriage gave a bond to his wife's trustee, with a condition, that if he, within four months, settled and assured freehold lands of the yearly value of 100l. upon his wife for life, or if his heirs, executors, or administrators should, within the same period after his death, pay to her 2000l. the bond was to be void. The testator died within the four months without making such settlement and the widow claimed the 2000l. but it was contended against her demand, that as the testator died within the period allowed for his election, that right devolved upon his executors. And the Master of the Rolls was of that opinion, ordering the executors to pay the incoming profits of the 100l. per annum to the widow from the (1) Lowe v. Sir William Manners, 5 Barn. & Ald. 917. (m) 2P. Will. 613. 617.

death of her husband, and to settle upon her that annual sum, and he declared them not to be bound to pay her the 20001.

Another instance, where executors will be entitled to perform the condition omitted to be executed by their testator, the legatee, may occur under the following circumstances:

Suppose A. bequeathed to B. 1007. upon condition that he and his executors dispose of certain goods. Now, as B. can have no executor while he lives, the latter member of the condition was impossible. The condition, therefore, must be considered in the disjunctive, so as to enable B. during life, or his executors afterwards, to perform the condition.(n)

E. Where legacies are given to executors or trustees.

When bequests are made to individuals, in the character of trustees or executors, and not as marks of personal regard only, the legacies are held to be given upon an implied condition, viz. that the persons named clothe themselves with the character in respect of which the benefits were intended for them. Thus a trustee must except the trusts, when called upon to act in their execution :(0) and no rule is so clear, as that if a legacy be given to a man as executor, whether it be expressed for care and pains or not, he must, for the purpose of entitling himself to the bequest, invest himself with the character of executor.(p) If he prove the will with an intention to act under it, that will be a performance of the condition; or if he unequivocally manifest an intention to act in the executorship, as in giving directions about the funeral of the testator, and be prevented by death from further entering upon his office, that also will be a performance of the condition.

Accordingly in Harrison v. Rowley, (q) Mrs. Alsager bequeathed to her executors and trustees, 100l. a-piece, for their care and loss of time in the execution of the trusts, together with their reasonable expenses, when called from home on that account. Judith, the sister of Mrs. Alsager, made a testamentary disposition to the same effect, as that just mentioned, and appointed the same persons her executors. John Ford, one of the executors and trustees, survived the testatrixes so short a time, that he was prevented from joining with his co-executors in proving the wills, but he concurred with them in giving orders respecting the funeral of Mrs. Alsager, and he acted in the trusts of both wills, in directing payment of burial fees, the expenses of making the coffins and opening the vault. Under those circumstances, the executors of Ford claimed the legacies under each will; and Lord Alvanley, M. R. determined in their favour, upon the principle, that Ford showed as much as any person could do, his intention to undertake the trusts, and that his being prevented by death from executing them ought not to prejudice his title to the legacies.

Also in Humberston v. Humberston,(r) the testator, as encouragement to his executors to accept the trust and executorship, gave to each of them 100l., and 127. a-piece for mourning and rings, and 101. a year for their trouble. The executors did not act; and Lord Cowper was of opinion, that they were entitled to the rings and mourning as personal gifts, but not to the annuity or legacy of 100%. (n) 2 Roll. Abr. 450. pl. 11. (0) See Brydges v. Wotton, 1 Ves. & Bea. 134. (n) 4 Ves, 216, (9) Ibid. 212. (r) 1 P. Will. 333.

The conduct of an executor, after proving the will, may be of such a kind as to demonstrate that, instead of a bona fide intention to execute the trusts, he procured probate as a mean of enabling him to violate, in the grossest manner, the confidence reposed in him by the testator. In such a case, the mere act of proving the will cannot entitle him to the legacy meant for him.

In Harford v. Browning, (8) Mr. Morris (one of four executors) had a legacy of 1500l., and an annuity of 1001. given to him by the testator, upon proving the will, and taking on himself the execution of it. Morris concurred in the probate, and shortly afterwards eloped with and married abroad Frances, the infant daughter of the testator, who was beneficially interested under the will. With the exception of probate, Morris never acted as executor, and, in consequence of his misconduct, he was restrained by the Court of Chancery from interfering in the trusts of the will. And Lord Thurlow determined, that Morris's concurrence in the probate under those circumstances, did not entitle him either to the legacy or the annuity.

Bequests to individuals, who are executors, are considered primá facie to be given to them in that character; a presumption to be repelled by the nature of the legacies, or other circumstances arising in the will. And when it is once settled, that the bequests are made to them as executors; if they renounce the trusts, refuse to act or are guilty of culpable neglect in not undertaking the executorship,(t) and die before taking upon themselves the trusts, the condition upon which the legacies are given being not performed, they cannot be claimed.

In Read v. Devaynes, (u) legacies were given to persons by the description of "my very good friends ;" who, in another part of the will were desired "to act as executors." A Mr. Smith, one of those persons, said in his answer, that he had not proved the will nor acted as executor, but he, notwithstanding, claimed the legacy. The Master of the Rolls declared, that an executor so appointed could not claim the legacy, without acting, or at least without having proved the will.

So in Abbot v. Massie,(x) the bequest was of 50l. to Mr. Massie, and W. G. " as executors; W. G. refused to act, but claimed the legacy. And Lord Rosslyn said, "as to the 50l. it is impossible it can be allowed, because it is given to him as executor, and he did not prove the will."

Also in Stackpoole v. Howell, (y) the testator devised his real and personal estates to the plaintiff and the defendants Howell and Mabberley, upon various trusts, and appointed them executors. This testator made two codicils, by which he gave to those three persons legacies, not expressly as trustees or executors, but by their names and descriptions; and the legacies by the first codicil were classed together, and of equal amounts, as were those in the second. The plaintiff renounced probate, and he nevertheless claimed the legacies, but without success. Sir W. Grant said, the question was, whether it was not necessary to find circumstances to show, that the

(8) 1 Cox, 302. (x) 3 Ves. 148.

(t) 4 Ves. 216.
(y) 13 Ves. 417.

(u) 3 Bro. C. C. 95.