33. It is a settled rule of American as well as English law, that where the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift.56 Thus, a devise to the testator's son P. of certain real and personal estate, and to his heirs and assigns forever, adding, that if P. should die and leave no lawful heirs, what estate he should leave to be equally divided between another son and a grandson of the testator, naming them, it was held the devise over was void, as being inconsistent with the absolute interest in the first devisee.56 This exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property.57

34. But if the first devise lapses by the death of the devisee in the lifetime of the testator, the devise over will take effect, notwithstanding it would have been defeated by the absolute character of the intermediate estate, if that had taken effect.58

SECTION III.

DEVISES AND LEGACIES UPON CONDITION.

1. Definition of conditional bequest.

2. Conditions are precedent and subsequent.

3. Where condition is in the nature of a consideration, it is held precedent.

4. Estates dependent upon marriage held upon precedent conditions.

5. Where condition depends upon time, the day of the decease is excluded. 6. Conditions that devisee do a particular act, or abstain, held precedent.

Ide v. Ide, 5 Mass. R. 500.

Shepley, J., in Ramsdell v. Ramsdell, 21 Me. R. 288, 293. See also Attorney-General v. Hall, Fitzg. 314; Timewell v. Perkins, 2 Atk. 102; Burbank v. Whitney, 24 Pick. 146; Jackson v. Coleman, 2 Johns. 391; Same v. Bull, 10 Johns. 19; Same v. Robins, 15 Johns. 169; Melson v. Cooper, 4 Leigh, 408; Barnard v. Bailey, 2 Harring. 56; Jackson v. Delancy, 13 Johns. 537.

6 Burbank v. Whitney, 24 Pick. 146. See ante, § 50, pl. 15, and cases

7. The American cases maintain the same distinctions. All the particulars to be performed.

8. Conditions precedent, which fail of performance, defeat the estate.

9. But conditions subsequent, becoming impossible or illegal, do not defeat the

estate.

10. And where the estate over depends upon a condition precedent, which fails, that estate fails.

11. But conditions subsequent failing, do not always defeat the estate over.

12. Where the estate is personal, no distinction between conditions precedent and subsequent.

13. Conditions repugnant to the estate are void.

14. Devises in fee incumbered by conditions against alienation or use of the estate. 15. Distinction between arbitrary restrictions and those for the benefit of particular

persons.

16. Bequests of personalty affected the same as those of realty, by conditions against use or alienation.

17. Bequests with a provision against the claim of creditors not favored.

(1.) Property cannot be given absolutely, or for life, without the power of alienation.

(2.) An estate may be so framed as to cease upon a particular event, whether given over to others or not.

(3.) Important distinction between an estate to cease upon bankruptcy and a condition against alienation.

(4.) So also between voluntary alienation and by act of law.

18. But the limitation of an estate bequeathed must be clearly expressed, or the courts will construe it a condition.

19. There is no doubt property may be bequeathed for the sole use of the donee, so that creditors shall have no benefit from it.

20. One properly interested in the person may annex any reasonable condition to the gift of property to such person, although operating in restraint of marriage.

n. 36. Great conflict in the cases. Lord Loughborough's commentary upon them. 21. Such conditions operate differently, whether the property is real or personal. 22. Enumeration of cases where conditions in restraint of marriage held reasonable.

23. Eminent writers and judges question whether the refinements on this subject will be followed.

24. Such conditions subsequent not valid. Dispensing with consent does not with

marriage.

25. Residuary clause not equivalent to bequest over, unless provided to fall into

residuum.

26. Such marriage with consent may not refer to first marriage, but commonly

does.

27. Consent of all required, unless they have refused to act, or have deceased. .

28. Late cases stated. Conditions tending to separation between husband and wife void.

29. Any condition restraining testator's widow from marriage valid.

30. Statement of what conditions restraining marriage are valid.

31. Exposition of the doctrine of in terrorem conditions by Lord Cranworth. Synop

sis of the general rules deducible from the cases.

32. Where the donee is required to assume a new name, it may be done by reputation.

33. Residence in a particular house satisfied by such residence as the creation of

domicil requires.

34. Conditions against disputing will valid, but English cases in confusion.

35. American cases not so numerous, and mere repetitions of the English cases. 36. The character of conditions determined by the general intent of testator.

37. The American cases hold any restraint upon the use or alienation of the estate void.

38. It is easy so to frame a declaration of trust as not to allow the first donee the power of alienation.

39. An absolute condition against alienation void, but may be rendered valid through the agency of a trust. Other illustrations.

40. Conditions in a devise become binding upon devisee by acceptance.

41. Decision of New York Court of Appeals, upholding a trust for exclusive personal use. Subject further discussed.

42. Condition in restraint of marriage void, being no valid gift over.

43. Conditions in the will embrace those in an after codicil.

44. Restrictions against alienee limited to first donee, unless otherwise expressed.

45. Condition for good behavior of devisee, if intelligible, is valid.

46. Words importing present interest in donee render all conditions subsequent.

47. The words must control conditional limitations.

48. Devises of realty on conditions in restraint of marriage valid, but not as to personalty.

49. The legatee upon condition is not bound to elect to accept the legacy until he has full opportunity to know its burdens.

50. The question of the responsibility incurred by accepting conditional legacy further discussed.

51. Where testator prevents performance of condition subsequent, legacy takes effect.

§ 66. 1. A CONDITIONAL bequest is where its taking effect depends upon the happening or not happening of some uncertain event.1

2. Conditions in wills are either precedent or subsequent;

PART II.

2 Wms. Exrs. 1132; 1 Roper, 645.

56

that is, the performance of the condition is required before the estate can vest, or the failure to perform the condition will divest the estate. The distinction between these two classes of conditions is well enough understood by the profession, and still it is not always easy, in practice, to determine with certainty whether a condition was intended to limit the acquisition or the retention of the estate.3

3. It seems to be agreed that in regard to all conditions, whether in a deed or will, or in simple contracts, where the condition is in the nature of a consideration for the concession, its performance will be regarded as intended to precede the vesting of any right.1

4. So, the devise of an estate upon condition of marrying into a particular family, is a condition precedent, and no estate vests until such marriage takes effect. But the devisee has his whole life to perform the condition, and the fact of having married contrary to the requirements of the condition does not render its performance impossible. So a devise upon condition that the devisee, within six calendar months, give security not to marry B., is upon condition precedent."

5. It was here made a question from what period the time allowed for the performance of the condition was to be computed, and it was held that the six months were exclusive of the day of the decease of the testator. Sir William Grant, M. R., here discusses the question and the cases in regard to the computation of time at considerable length, and concludes that there is no uniform rule, whether to include or exclude the day upon which an event happens, when a period of time is

* 2 Jarman, (ed. 1861,) 1, 2.

* Willes, Ch. J., in Acherley v. Vernon, Willes, 153, where the early cases are cited and commented upon.

✦ Acherley v. Vernon, Willes, 153, and cases there cited; Large v. Cheshire, 1 Vent. 147.

'Randal v. Payne, 1 Br. C. C. 55.

• Lester v. Garland, 15 Vesey, 248.

required to be computed from the event, but that such case must depend upon its own peculiar reasons; and that where an election is required to be made within a given time after the decease of the testator, it is reasonable to give the required term after the day of the decease, since it is not presumable that the party could have had the benefit of that day for deliberation in regard to the choice. And this rule has been adhered to in later cases, upon general principles."

8

6. And a devise upon condition that the devisee marry, and does not marry without the consent of the trustees; and a legacy upon condition that the legatee shall change the course of life he has too long followed, and give up all low company and frequenting public houses, are conditions precedent, and such as the court will carry into effect.9

7. The American cases 10 maintain the same distinction between conditions precedent and subsequent, to which we have adverted in the English cases. And where such conditions precedent consist of several terms, all must be performed before the estate vests.11

8. Conditions requiring an illegal act, as in restraint of marriage, are void; but if they are conditions precedent, the estate will not vest, it being of the essence of the bequest that it shall

'Gorst v. Lowndes, 11 Sim. 434, where numerous other cases are cited; Toder v. Sansam, 1 Br. P. C. 468; Godson v. Sanctuary, 4 B. & Ad. 255; Pellew v. Wonford, 6 B. & C. 134; Blunt v. Helsop, 8 Ad. & Ell. 577.

* Ellis v. Ellis, 1 Sch. & Lef. 1. See also Wheeler v. Bingham, 3 Atk. 364; Fry v. Porter, 1 Ch. Cas. 138; Semphill v. Bayly, Prec. Ch. 562; Pulling v. Reddy, 1 Wils. 21; Stackpole v. Beaumont, 3 Vesey, 89; Atkins v. Hiccocks, 1 Atk. 500.

'Tattersall v. Howell, 2 Mer. 26.

10

Finlay v. King, 3 Pet. 346; Johnson v. Reed, 9 Mass. R. 78; Gardiner v. Corson, 15 Mass. R. 500; Barruso r. Madan, 2 Johns. 145; Ross v. Tremain, 2 Met. 495.

"Co. Litt. 206, 218; Taylor v. Mason, 9 Wheat. 325, 350; Moakley v. Riggs, 19 Johns. 71, 72; Wheeler v. Walker, 2 Conn. R. 196; 2 Wms. Exrs. 1131, and Mr. Fish's note.