then to B. The mother dies before the marriage; the condition is discharged. Example of a condition against the policy of the law. Devise to A. for life with remainder to his heirs male, but if A. shall not obtain during his life the grant from the Crown of a particular title, then to B. Earl Brownlow (1853), 4 H. L. C. 1. The condition is void. Egerton v. Devise and bequest to A. "provided that he does not enter into the military services of the country," and if he does, then to B. Condition subsequent, absolutely void as to realty and personalty, leaving the devise and bequest absolute. In re Beard (1908), W. N. 18. Example of impossibility. Devise to N. after a life interest upon condition subsequent that he should "take and use the testator's name on becoming entitled in possession. N. died before becoming entitled in possession. Held, that he had been prevented by act of God from performing the condition and that it was discharged, leaving the gift intact. In re Greenwood, [1903] 1 Ch. 749. But ignorance of the condition does not discharge a person from performing it, and the condition will take effect to defeat the estate. (b) Upon a gift of personalty. The rule is the same as that for realty, with this exception, that certain conditions subsequent are not valid as to personalty (though they are as to realty) unless supported by a gift over, that is to say, certain conditions subsequent which merely cut short the estate without giving it to someone else will not be supported, though if the estate be given over to some one else upon non-compliance with the condition they will be good. Such conditions without a gift over are said to be in terrorem only; for instance, a condition subsequent in partial restraint of marriage, such as marriage with consent, or a prohibition to marry a particular person is in terrorem unless supported by a gift over. Certain conditions are absolutely void, whether they are precedent or subsequent, whether attached to realty or personalty, and whether followed or not by a gift over on non-performance or non-observance. (1) Conditions in total restraint of marriage or in such restraint of marriage as to be an undue restraint. A testator may make it a condition that the person the object of his bounty shall not marry any particular person by name, or any person of a particular nation or belonging to any specified class (e.g. domestic servants). Such conditions are in partial restraint only; no precise line of division between a partial and an undue restraint of marriage has been laid down. (2) Repugnant conditions. A power of alienation is an essential incident of all kinds of property, and therefore, where there is a gift with a condition that the donee shall not sell, mortgage, &c., the condition is absolutely void and repugnant. The question is whether a particular condition is such a restraint upon alienation as to be equivalent to a total restraint; if so, it is bad, even though the restraint is limited in point of time. Example.-A testator devised an estate to A. in fee, provided that if A. or his assigns desired to sell during the life of B., the latter should have the option to purchase at a price which the Court held to be so inadequate as to amount to a total restraint upon alienation. Held, that the condition was bad. In re Rosher (1884), 26 C. D. 801. A testator gave property to A. and directed, in effect, that if she chose to sell, but not unless, she should pay B. £1,000 and C. £500 out of the proceeds. Held, a repugnant condition. In re Elliott, [1896] 2 Ch. 353. A condition touching the property itself, as that certain parts shall be left uncultivated, is bad. So a gift over on bankruptcy after an absolute interest is repugnant. In re Dugdale (1888), 38 C. D. 176. But a proviso for cesser of a life interest on bankruptcy or alienation is good if followed by a direction to pay the income to other persons after that event. It is somewhat uncertain how far partial restraints upon alienation are good (In re Rosher, ubi supra); at all events a condition that a donee of property shall not sell to named persons is good, and so is a condition that on a sale the property is first to be offered to named persons at a price which is sufficiently adequate. APPENDIX. Meaning of certain words in this Act. "Will." "Real estate." "Personal estate." Number, THE STATUTE OF WILLS. 1 VICT. c. 26. AN Act for the Amendment of the Laws with respect to Be it enacted, &c., that, The words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows: (that is to say) the word "will" shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power; and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of (two Acts, 12 Car. 2, c. 24 and 14 & 15 Car. 2 (Ireland) ), and to any other testamentary disposition; and the words “real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents and hereditaments, whether freehold, customary freehold, tenant-right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal or personal, and to any undivided share thereof, and to any estate, right or interest (other than a chattel interest) therein; and the words "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. 2. (Repeals.) Gender. All property may be dis posed of by will. Comprising freeholds and copyholds, without and before admittance, and also customary surrender such of them as cannot now be devised. 3. It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heirat-law, or customary heir of him, or if he became entitled by descent, of his ancestor, or upon his executor or administrator; and the power hereby given shall extend to all real estate of the nature of customary freehold or tenant-right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this Act, if this Act had not been made; and Estates pur also to estates pur autre vie, whether there shall or shall autre vie. not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant-right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or Contingent other future interests in any real or personal estate whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for con22 M.W. interests. |