not become operative until or unless the condition is performed or takes effect.12 And the same rule applies as to the vesting of an estate, made dependent upon the performance of a condition precedent, where the condition is, or becomes impossible.12 The estate which depends upon a condition precedent, cannot vest where the condition fails of performance for any cause.13 9. But in regard to conditions subsequent, where the estate or bequest is made dependent upon their full or continued performance, if such conditions are illegal, or void for any cause, or are, or become impossible of performance, the effect is not to defeat the estate dependent upon them, but that continues, having once vested, the same as if no condition had been attached.14 10. And in regard to estates over, where the first estate depends upon a condition precedent, which for any reason fails to be performed, so that the first estate never vests, it seems to be considered that the estate over will fail also, as being dependent upon that of the first donee.15 11. But in regard to estates over dependent upon the nonperformance of conditions subsequent, where it is expressly provided that the estate shall go over upon the failure of the con 12 2 Jarman, (ed. 1861,) 9, 12; Co. Litt. 206, 206 b; Robinson v. Wheelwright, 6 DeG., M. & G. 535; Earl of Shrewsbury v. Hope-Scott, 6 Jur. N. s. 452, 472; Poor v. Mial, 6 Mad. 32; Ridgway v. Woodhouse, 7 Beav. 437. 13 Roundel v. Carver, 2 Br. C. C. 67. 14 Ridgway v. Woodhouse, 7 Beav. 437; Burchett v. Woolward, Turn. & Russ. 442; 2 Jarman, 10; Thomas v. Howell, 1 Salk. 170. But a condition is not regarded as impossible because it is beyond the power of the devisee to perform it. It is so only when it becomes physically impossible of performance. 2 Story, Eq. Jur. 1305. Where a condition subsequent becomes impossible, by the act of the grantor, its effect is avoided. United States v. Arredondo, 6 Pet. 691, 745; Whitney v. Spencer, 4 Cow. 39. See also upon the general question, McLachlan v. McLachlan, 9 Paige, 534. To the same effect is Cheairs v. Smith, 37 Miss. 646. 15 Boyce v. Boyce, 16 Sim. 476; Philpott v. St. George's Hospital, 21 Beav. 134; 1 Jarman, 10; Roundel v. Currer, 2 Br. C. C. 67. dition, the donor is held to mean precisely what he declares, and the estates over takes effect.16 But this rule is not regarded as at variance with the one before alluded to, in regard to the non-performance of conditions subsequent, where the same become impossible or illegal.17 12. But in regard to personal estate, the English law follows the rule of the Civil Law, which made no distinction between conditions precedent and subsequent. Hence where a legacy is made dependent upon a condition precedent, which becomes impossible, the bequest will vest and become absolute.18 But where the performance of the condition forms the sole consideration or motive for the gift, the failure of such performance will defeat the bequest.19 And where the condition is rendered illegal by means of involving what is malum in se, the rule of the Civil Law was, that both the condition and the gift were thereby rendered void.20 This writer thus expresses the rule," where it is both impossible and dishonest, the disposition is thereby void." 13. It seems to be an universal rule, that where conditions are repugnant to the estate to which they are annexed, they are absolutely void.21 Thus it has been held, that in a devise in fee, upon condition that the land shall forever thereafter be leased, 12 Jarman, 11. "Ante, pl. 9. The courts have allowed constructions to produce results precisely the opposite of the apparent intent, while at the same time they will not allow an estate to take effect or be defeated, in exact and literal contravention of the words of the devise. That seems the only ground upon which the court can dispense with the performance of a condition subsequent, in favor of the first devisee, or where there is no estate over, but will not defeat the estate over, which is declared to vest, in express terms upon the failure of a condition subsequent. 18 Reynish v. Martin, 3 Atk. 330, 332; Gath v. Burton, 1 Beav. 478. "Rishton v. Cobb, 5 My. & Cr. 145; 2 Jarman, (ed. 1861,) 13. Swinb. pt. 4, § 6, pl. 16. 2 Jarman, 14. at a prescribed rent, or shall be cultivated in a particular mode, the conditions are repugnant and void.22 14. But the qualifications of a devise of real estate which are intended for the benefit of particular persons named, have generally been upheld as creating a trust in favor of such persons.23 The most common illustration of repugnant conditions in the devise of real estate, is where the devise is general and unqualified, or is expressed to be in fee-simple, which is the same thing, and this is followed by a general, indefinite provision against the alienation of the estate. The courts have held such a condition void for repugnancy, from the earliest period.24 And the same rule applies to devises in fee-simple encumbered with a restriction against the wife of the devisee being endowed, or the husband of such devisee being tenant by the curtesy,25 or against charging any annuity upon the estate.26 So also a provision that the estate given in fee to the first donee shall go over, if the first donee shall die intestate, or that he shall not alien or devise the estate during his life.27 And a restriction upon the devisee in fee against mortgaging the estate, or levying a fine, or suffering a recovery, is void for repugnancy.28 15. The earlier cases upon the question of restrictions upon alienation, repugnant to a devise in fee, do not seem to discriminate between a general restraint against alienation, and a restriction against aliening, except to one or more persons, or after 22 Jarman, 14; Attorney-General v. Catherine Hall, Jacob, 380, 395. 23 Tibbits v. Tibbits, 19 Vesey, 656. See also the extended discussion of this question, ante, pt. 1, § 43. 24 Co Lit. 206 b, 223 a. Portington's Case, 10 Co. Rep. 35 a; Mildway's Case, 6 Co. Rep. 40 a. 2 Jarman, (ed. 1861,) 15. 2 Ware v. Cann, 10 B. & Cr. 433. See also, as bearing upon the foregoing illustrations, Greated v. Greated, 26 Beav. 621; Barton v. Barton, 3 Kay & J. 512; Doe v. Glover, 1 C. B. 448. The last case is considered by Mr. Jarman as overruled by the others. 2 Jarman, (ed. 1861,) 15, n. (t.) the lapse of a certain period, or the occurrence of a particular event. These last restrictions upon alienation, being provisions in favor of particular persons, are in the nature of trusts in favor of such persons, and being capable of creation, beyond all question, by the use of proper terms, the inclination of the courts more recently is, to give them effect, according to the evident intention of the devisor.29 16. And absolute bequests of personalty are liable to be affected in the same way and to the same extent, by conditions against alienation or use. If the restriction be general and unqualified, it is void as to personalty the same as to realty.30 17. The general rule is, that property cannot be bequeathed in its entirety, with a restriction upon any portion going to assignees in bankruptcy or insolvency, or in any other form to creditors. But it will be found that this rule, like many of the others adverted to under the head of repugnant conditions, is one of form, more than of substance. The question of gifts determinable upon alienation by the donee, whether voluntarily or by act of law, is here very carefully and elaborately considered, and the cases extensively reviewed and explained by the Vice-Chancellor, the present Lord Justice Turner, and the following conclusions reached, which may be regarded as forming the basis of the law upon this point, at the present time. The general propositions to be deduced from this able judgment are: 29 Large's Case, 2 Leon, 82; Churchill v. Marks, 1 Coll. 441, 445; Pierce v. Win, 1 Vent. 321; s. c. Pollex. 435; Doe v. Pearson, 6 East, 173. But if the right of alienation be restricted to a single person, it will be regarded as an arbitrary and unreasonable restraint, and void. Attwater v. Attwater, 18 Beav. 330. Co. Litt. 227 a; Bradley v. Peixoto, 3 Vesey, 324; Rishton v. Cobb, 5 My. & Cr. 145, 153; Green v. Harvey, 1 Hare, 428; Watkins v. Williams, 3 McN. & G. 622; in re Yalden, 1 DeG., M. & G. 53; Hughes v. Ellis, 20 Beav. 193; In re Mortlock's Trust, 3 Kay & J. 456. But alienation within a limited period may be restrained. Churchill v. Marks, 1 Coll. 441; Graham v. Lee, 23 Beav. 388; In re Payne, 25 Beav. 556. Rochford v. Hackman, 9 Hare, 475. (1.) That property cannot be given, either for life, or absolutely, without the power of alienation being incident to the gift. (2.) That either a life or an absolute estate by bequest may be legally so framed as to cease upon the happening of a particular event. And for that purpose it will make no difference whether an estate over is given or not. These estates may as well be made to cease absolutely, as for the purpose of going over. No greater effect can be given to a limitation over, than to an express declaration that the life-interest shall cease. (3.) That there is an essential distinction between a disposition to a man until he shall become bankrupt, and after his bankruptcy over, and a gift to a man for life, with a provision restraining alienation. (4.) There is an important and essential distinction between compulsory and voluntary alienation.32 18. But the courts seem to have required that it should be very clearly expressed in the bequest, that the estate given should cease upon the happening of the event intended to determine it, whether bankruptcy, voluntary alienation, or any other. If there seems a fair doubt whether the event named was intended to limit the estate, or to restrict its use or alienation, the courts seem to have favored the latter construction, with the apparent purpose of getting rid of it altogether on account of repugnance.33 "The learned judge here discusses the point at length, and his opinion is a valuable commentary. * Wilkinson v. Wilkinson, Coop. 259; s. c. 3 Swanst. 515; Lear v. Leggett, 2 Sim. 479; Whitfield v. Prickett, 2 Keen, 608; Graham v. Lee, 23 Beav. 388. See Cooper v. Wyatt, 5 Madd. 482. The more reasonable construction in these cases would seem to be to hold all interests fairly expressed to be dependent upon the donee not encumbering or conveying the estate, as intended to limit their continuance to the occurrence of that event, thus carrying out the intent of the testator, and not the mere technical and arbitrary rules of construction adopted by the courts, as is done in most other cases. We look for the time |