notice of the will, or at all events that he knew anything of the conditions. The lapse of the devise over to the grandson raises another question-what is there to divest Michael or his devisees of the estate at the end of ten years? But it is hardly necessary now to consider this. There is no evidence that Michael played cards in the sense in which I think it must have been intended by the testator. Two witnesses say they saw him play forty-fives and euchre, apparently on one or two occasions after his father's death, but when, where, or on what occasions they did not say; and if the other part of the condition is valid and may take effect alone, I think it is not established by the evidence.

Three witnesses swore they drank whiskey with Michael on meeting him casually on a few occasions during the four years after his father's death, before he removed to Seaforth; and one of them intimated that he met him there afterwards once, and that they had a drink, perhaps more than once; but they all spoke of it in a vague way, and could name no particular times or places, or whether the last occasion was one, two, or five years before Michael's death. On the other hand, it was proved that he had been for a long time before his death sick with consumption, of which he died, and that the physician who attended him prescribed the use of whiskey for his complaint, and that he took it only medicinally. His widow swore that he was not a drunkard; she had never seen him drunk or the worse of liquor, nor did she know him to take intoxicating liquors except under medical direction.

His mother died in 1881, so that the ten years of his probation had not expired when Michael died in June, 1886. He had still five years of his probation to run, and may be said to have been prevented by the act of God from fulfilling the condition even if it were valid. The condition is of a negative, not positive, character; not something to be done, but something to be refrained from, and by his death he did refrain, though not in the sense intended.

Upon the whole case, I think Michael took the fee simple, and died seised of it, and that he had a right to dispose of it by devise or otherwise. There are certain conditions precedent and subsequent which are frequently mentioned in the books, such as Jarman and Theobald on Wills, Powell on Devises, and Fearne on Contingent Remainders, and many cases in the reports deciding certain points with reference. to them; but amongst English cases I have found only one reported in which the condition is similar to the condition in this case, and in that case it is a condition precedent expressed in clear unequivocal language, and in apt terms.

It is therefore not an authority in this case as regards its effect as a valid condition. I refer to Tattersall v. Howell, 2 Mer. 26. The cases in our own Courts nearest to this are, Pew v. Lefferty, 16 Grant, 408, and Re Fox, 8 O. R. 489. In the former the condition was precedent, and the executors were bound to see the condition was performed before they paid over the legacy; in the latter, though the condition was probably not precedent, it was made certain by constituting the executors judges of its performance or breach.

The natural difference between a condition precedent and a condition subsequent is, if the condition precedent is at the time of its creation void, or afterwards becomes so by the act of God, by the act of law, or by the act of the party who is to benefit by it, the estate which is dependent upon it is defeated: Fearne on Con. Rem. sec. 696, subsec. 6; but if the void condition is subsequent, as the estate to which it is annexed cannot be defeated by it, such estate is absolute in the first instance or becomes so afterwards sec. 697, sub-sec. 11, Blackstone's Com. by Kerr, 133. In my opinion the plaintiffs, as executor and executrix of the last will and testament of Michael, are entitled to the lot of land in the pleadings mentioned, subject, however, to the trusts, conditions and directions of that (Michael's) will, and they are entitled to have the mortgage from the defendant, James Dunn, to the other 35-VOL XIII O.R.

defendants, the loan company, declared null and void, and that the registry thereof be declared of no effect.

The plaintiffs are entitled to the costs of the action, and to any costs they may have incurred on the counter-claim of the defendants."

Notice of motion was given by the defendant James Dunn against this judgment.

February 14, 1887, Lash, Q C., for the defendants, supported the motion. The question is, What is the interpretation of the will of James Dunn the elder? Are the conditions precedent or subsequent, or partly one and partly the other, and if subsequent are they valid? The devise to Michael, which is the one in question, is of the use of the land after the death of his mother. It does not give him the land, for in the same clause of the will it is afterwards said that if ten years after the death of his mother he should observe the conditions therein named then the lot is given to him, his heirs and assigns for ever: Doe d. Egerton v. Brownlow, 4 H. L. Cas. 31; Clavering v. Ellison, 7 H. L. Cas. 707; Theobald on Wills, 3rd ed., 419 to 438, 773-780; 2 Jarman on Wills, 5th Am. ed., 505. The Judge held the first condition void, which is, "that he" [Michael] "abstain totally from intoxicating liquors and card playing," because it was too vague and indefinite. In Re Fox, 8 O. R. 489, the devise was to the testator's son, "but he is to be known as a sober, steady, and industrious man. If at any time during the period of five years after my death it appears to my executors my son James does not remain sober I give them power to sell and dispose of the said property for such charitable purpose as to them should seem meet." Held, there was no such uncertainty in the condition "that the devisee is to remain sober for five years" as disables the executors or the judges from guaging its fulfilment. Bequest to a son, payable on his attaining twenty-one, provided he continued a steady boy, and remained in some respectable family until that

Without

time, with a bequest over if he did not do so. any reason the legatee enlisted as a private in the Army of the United States, while hostilities were going on with the Confederates. Held, the condition was valid, and that the son by such conduct had not performed it: Pew v. Lefferty 16 Grant 408. He referred also to Davis v McCaffrey, 21 Grant 554; Oliver v. Davidson, 11 S. C. 166. "Give up low company," held a good condition: Tattersall v. Howell, 2 Merr. 26. He also cited Marston v. Marston, 47 Maine 495; West v. Moore, 37 Mississ. 114; Pittingham v. Bromley, T. & R. 530; Evers v. Challis, 7 H. L. C. 531. In Re Babcock, 9 Grant 427, it was decided that where the devise is made upon several conditions, one of which is void, the other, though good by itself, being coupled with the void one, will also be rejected; and that the first condition, embracing the use of intoxicating liquors and card playing, not being an objectionable act so long as it was not done in the way of gambling, the whole of that condition was void. It is contended that rule does not apply here. The learned Judge held also the second and third conditions to be void, which required Michael to be kind and obedient to his mother, and that he be known among his friends as an industrious man, as being too vague and indefinite.

R. Cassels, on the same side.

The Judge decided that Michael was not shewn to have had notice of the conditions of the will. Michael had notice of there being a will, and he should have informed himself what the terms of the will were, if he was entitled to notice: Theobald on Wills, 3rd ed., 419; Murphy v. Broder, Irish R. 9 C. L. 123; Hawkes v. Baldwin, 9 Sim. 355; Cary v. Bertie, 2 Vern. 333. As to contingent interests, R. S. O. ch. 105; In Re Cresswell, 24 Ch. D. 102. Osler, Q. C., shewed cause.

The first condition affecting the devise to Michael is, that he "abstain totally from intoxicating liquors and card playing," and there can be no breach of that condition

unless the devisee fails to abstain both from intoxicating liquors and card playing. The violation of one of these acts would not be a breach of the condition. He referred to the cases on this point cited above.

This is a condition subsequent. The conditions are too vague and indefinite to be performed: Maud v. Maud, 27 Beav. 615, 29 L. J. Ch. 312; Fillingham v. Bromley, T. & R. 530; Hamilton v. McKellar, 26 Grant 110; Clavering v. Ellison, 7 H. L. Cas. 707, 29 L. J. Ch. 762; Wynne v. Wynne, 2 M. & G. 8; Leech v. Leech, 11 Grant 572; Morrow v. Jenkins, 6 O. R. 693; 1 Jarman on Wills, 4th ed., 797, 798, 827; 2 Jarman 7, 12, 13, 609. If the conditions were valid and a breach of them was committed by Michael, and no advantage was taken of such breach in his lifetime, advantage cannot be taken of the breach since his death; Leech v. Leech, 11 Grant. 572; R. S. O. ch. 102, sec. 2, subsec. 1; Marriott v. Abell, L. R. 7 Eq. 478; Crozier v. Crozier, L. R. 15 Eq. 282. The heir-at-law is entitled to a notice of the conditions of a will which defeat his estate as heir. Michael was such heir, and it was not shewn he had notice of the conditions which defeated his title as such heir: 2 Jarman on Wills, 4th ed., 13, 57; Sutcliffe v. Richardson, L. R, 13 Eq. 606; Ferguson v. Ferguson, 2 S. C. 498. As Michael did not live till the ten years from his mother's death had expired, and as he had these whole ten years within which to reform and observe the conditions, they are not binding upon him.

Lash, in reply:

The pleadings do not set up want of notice of the conditions to Michael.

See the case In Re Moir, 25 Ch. D. 605, as to a devise subject to residence on the property. Fillingham v. Bromley, supra, shews what will be a substantial compliance with a condition subsequent.

March 11, 1887. WILSON, C. J.-What is the reading of this clause in the will?