the entire estate having vested in the first donee, as the condition was subsequent; and there being no valid gift over, since no one can have heirs capable of taking an estate, as such, while the ancestor is still living.94

43. A devise upon condition that the devisee shall "comply with what is enjoined upon him in this will," is, prima facie, upon condition that the devisee shall also comply with what shall be enjoined upon him in any codicil to the will.95

44. A restriction upon the devisee, who had lived a long time. in the testator's family, against alienation of the estate to any except the heirs of the testator, held to be personal to the first. devisee, and that one of the heirs of the testator to whom the devisee had conveyed the same, would take it free from all restriction upon the title.96

Otis v. Prince, 10 Gray, 581; Heard v. Horton, 1 Denio, 165. 95 Tilden v. Tilden, 13 Gray, 103.

* M'Kinster v. Smith, 27 Conn. R. 628. It was held at an early day in this state, that a devise of real estate to the testator's widow, so long as she should remain unmarried, was valid upon the ground that the rule against conditions in restraint of marriage was not applicable either to real estate or to a widow. Phillips v. Medbury, 7 Conn. R. 568. And the same doctrine is maintained in Hughes v. Boyd, 2 Sneed, 512. And the attempt to create a remainder, dependent upon the failure of the first donee to dispose of the estate, such donee having by the will the absolute power to do so, is inoperative. Sevier v. Brown, 2 Swan, 112. So the attempt so to frame a bequest that it may be construed either a gift or a loan, as the beneficiary shall secure the property against ever coming to the use of certain proscribed persons or their heirs, is invalid, and the donee may dispose of the estate, by will or otherwise, to the persons excluded by the will, or others, in her discretion. Williams v. Jones, 2 Swan, 620. Bequest of a yearly sum to the testator's widow, upon condition that if she shall marry again the same shall cease, is a valid condition. Cornell v. Lovett, 35 Penn. St. 100. So, an absolute prohibition of marriage of the devisee is reasonable and lawful, and is a valid condition subsequent, the non-performance of which will defeat the estate. But if the devisee should also be heir to the estate, he cannot be held to have forfeited the same until it appear that the breach of the condition was committed with full knowledge of the condition, for being in possession as heir he cannot forfeit the estate under the will,

45. A condition attached to a devise, that the testator's son, the beneficiary, "acquire a good education, and by good conduct and steady habits until the age of twenty-one," &c., is not void for uncertainty, as its performance may be judicially ascertained, and if imperfectly or ungrammatically expressed, it is nevertheless intelligible.97

46. Where the will imports a present interest in the devisee, it is to be construed so that any condition in the same shall be held subsequent and not precedent.98

47. A will, clearly expressed, must receive the interpretation the words compel, and conditional limitations, contingent upon some specified event, take effect only upon the occurrence of the precise event designated.99

48. It seems to be settled, as before stated, that devises of real estate upon conditions in restraint of marriage, are valid in Pennsylvania.100 And this is so without a limitation over. 101 But a bequest to a woman of an annual sum, cannot be restrained by a condition subsequent upon her marriage where there is no gift over, but may be by a conditional limitation.102

49. We have before stated, that if a legatee upon condition accept the legacy, and enter into possession, he must perform

until he is aware of its requirements. Shackelford v. Hall, 19 Ill. R. 212; Kenrick v. Beauclerk, 11 East, 657; Taylor v. Crisp, 8 Ad. & Ell. 779. Where the condition is the payment of a legacy charged upon the land devised, and the legatee predeceases the testator, the devise takes effect, at the decease of the testator, absolutely, the legacy having lapsed. Woods v. Woods, Busbee, Law,

290.

West v. Moore, 37 Miss. R. 114.

Bell County v. Alexander, 22 Texas, 350.
Taylor v. Wendel, 4 Bradf. Sur. Rep. 324.

100 Commonwealth v. Stauffer, 10 Penn. St. 350.

101 McCullough's Appeal, 12 Penn. St. 197. See also Bennett v. Robinson, 10 Watts, 348; Fahs v. Fahs, 6 Watts, 213; Stahl's Appeal, 2 Penn. St. 301. 102 Hoopes v. Dundas, 10 Penn. St. 75; Middleton v. Rice, 6 Penn. L. J. 229; Binnerman v. Weaver, 8 Md. 517.

the condition, however burdensome. But he is not bound to make his election until the condition and the value of the gift are rendered reasonably certain. And it is not sufficient to bind the legatee to the performance of the condition, that he had formed the purpose of accepting the bequest; he may retract such purpose upon obtaining clearer knowledge of the facts, at any time before actual acceptance.103

50. The question of the nature and extent of the responsibility incurred by accepting a devise given upon condition, is extensively and learnedly discussed by Davies, J., in Gridley v. Gridley, and the authorities, both English and American, extensively commented upon.104 The point here decided is, that where a will gave all the testator's real and personal estate, and declared the donee was to pay all the testator's debts and a certain annuity, the acceptance of the gift creates a personal liability, upon which an action can be maintained at law, without any express promise.105

51. In a recent English case,106 where the testator gave his eldest son a legacy of £500, upon condition he conveyed a certain estate to another son, within six months after request, otherwise the legacy to become void; and the testator after the " date of the will, purchased all the legatee's interest in the estate for £300, it was held that the legatee was entitled to the £500, discharged of the condition. But where the legacy was upon condition that the legatee married the testator's niece E, and the testator subsequently consented that he might marry another woman, it was held to be a condition precedent, and not being

103 Wheeler v. Lester, 1 Bradf. Sur. Rep. 293.

104 24 New York Court App. 130.

105 The cases referred to by the learned jndge are the following among others. Spraker v. Van Alstyne, 18 Wend. 200; McLachlan v. McLachlan, 9 Paige, 534; Lord v. Lord, 22 Conn. Rep. 595, 602; Parish v. Whitney, 3 Gray, 516.

106 Walker v. Walker, 2 DeG., F. & J. 255.

performed the legacy failed,107 notwithstanding the testator's consent to the marriage in disregard of it.

SECTION IV.

WHAT WORDS WILL CARRY REAL ESTATE.

1. The words "estate," and "property," generally sufficient to pass real estate.

2. But the word "effects" will not produce that result, unless qualified.

3. Enumeration of some cases, illustrating the preceding rules.

4. To restrict the word "estate" to personalty, there must be a clear expression of intention.

5. It will not have that effect even when associated with words descriptive of personalty only.

6. Cases illustrative of the last preceding rule.

7. Strong case of departure from the maxim, ejusdem generis.

[8. The early rule was to construe these general terms according to their association. 9. Sometimes an enumeration of particulars following the words may limit the

sense.

10. Explanation of some cases where general words in a codicil were restricted. 11. These general words now held to include realty, unless the contrary appear. 12. A devise to the person made executor receives the same construction as one to any other.

13. Some cases have restricted those general terms, by the import of relative terms following.

14. But the rule is now established that such words should have their natural force.

15. Some few cases seem to favor the former construction.

16. Sir J. Romilly favors that view, to some extent.

17. Some of the cases have made a distinction between the devise and the accompanying trusts.

18. Entirely general terms, having no special application to real estate, will pass the title.

19. But some few cases have attempted to restrict the application of such terms. 20. It sometimes happens that words appropriate to personalty may carry realty. 21. "Legacy," and "residuary legatee," used with reference to real estate.

22. Even terms of an exclusively personal import may carry real estate.

23. The courts in America follow the English cases upon these questions. New York.

Davis v. Angel, 8 Jur. N. s. 709, before the Master of the Rolls; affirmed by the Lord Chancellor, 8 Jur. N. s. 1024.

24. The same rule prevails in Massachusetts.

25. So also in Connecticut.

26. And in the Circuit Court; and in Maine.

§ 67. 1. THE Words "estate" and "property," when used in a will in a general sense, have commonly been held sufficient to embrace all the testator's property, real and personal.1 In this case the expression was "all the rest and residue of my moneys, goods, chattels and estate whatsoever," and the case is placed by Lord Hardwicke upon the ground that the words preceding "estate" were sufficient to carry every species of personalty, and therefore that word must have been intended to carry real estate, or else it would have no effect. This general rule has been followed in all the subsequent cases, most of them occurring in regard to a bequest of the residuum of the estate, where the courts have always manifested a strong reluctance to adopt any construction which would result in even a partial intestacy.2

2. The word "effects," although more naturally having reference to personal estate, will carry real estate, when used with the word "real," as "all the effects, both real and personal, which I shall die possessed of."3 But the word "effects" without the word "real," even when followed by the words, "of what nature, kind or quality soever, will not carry real estate.”

1 Tilley v. Simpson, 2 T. R. 659 n. See Jongsma v. Jongsma, 1 Cox, 362. Tirrel v. Page, 1 Ch. Cas. 262; s. c. 1 Eq. Cas. Ab. 209, pl. 11, where the language is very similar to that of the last preceding case. Scott v. Alberry, 1 Com. 337; s. c. 8 Vin. Ab. 228, pl. 14. See also Awbrey v. Middleton, 4 Vin. Ab. 460, pl. 15; s. c. 2 Eq. Ab. 497, pl. 16. See also to the same effect, Jongsma v. Jongsma, 1 Cox, 362; Smith v. Coffin, 2 H. Bl. 444; Roe d. v. Gilbert, 3 Br. & B. 85; Churchill v. Dibben, 9 Sim. 447 n.; King v. Shrives, 4 Moo. & S. 149; s. c. 5 Sim. 461.

Hogan v. Jackson, 1 Cowp. 299; s. c. 3 Br. P. C. 388; Lord Torrington v. Bowman, 22 L. J. ch. 236.

Camfield v. Gilbert, 3 East, 516; Doe d. v. White, 1 East, 33; Macnamara v. Whitworth, Coop. 241; Hook v. Dring, 2 M. & Sel. 448; Doe d. v. Earles, 15 M. & W. 450.