CHAPTER XXXV.

Chap. XXXV.

Condition and trust.

Condition and limitation.

Devise for life

CONDITIONS PRECEDENT-VESTING.

CONDITIONS DISTINGUISHED.

1. THE Court is never astute to construe a testator's words as importing a condition if a different meaning can be fairly given to them.

Thus, a devise "upon condition" that the devisee makes certain payments within a given time will, as a rule, be construed as a trust, and not as a condition. Young v. Grove, 4 C B. 668; Wright v. Wilkin, 9 W. R. 161; 10 W. R. 403; see A.-G. v. Wax Chandlers, L. R. 6 H. L. 1; A.-G. v. Merchant Taylors, 6 Ch. 512; and see Bird v. Harris, 9 Eq. 204; Foot v. Cunningham, I. R. 11 Eq. 306; Re Cowley; Souch v. Cowley, 53 L. T. 494; Re Oliver; Newbald v. Beckitt, 62 L. T. 533.

2. In some cases a condition apparently precedent has been read as forming part of the original limitation. Thus, a devise to M. and the heirs of her body, on condition that she marry and have issue male by S., was held to give an estate in special tail to M. Page v. Hayward, 2 Salk. 570.

Similarly, an estate to arise upon a condition, which cuts down a previous estate will, if possible, be construed as a remainder by looking upon the condition as forming part of the limitation of the previous estate. Thus, a devise to A. for life if she should not marry again, but if she should, to B., will be construed as a devise to A. for life or till marriage. Luxford v. Cheek, 3 Lev. 125; Lady Ann Fry's Case, 1 Ventr. 203; Gordon v. Adolphus, 3 B. P. C. 306.

So, too, if the gift for life is made "subject to the proviso

hereinafter contained," the proviso is incorporated into the Chap. XXXV. original limitation. Webb v. Grace, 2 Ph. 701.

And a bequest to A. for life, if she should so long remain unmarried, will be construed in the same way. Heath v. Lewis, 3 D. M. & G. 954; In re Moore; Trafford v. Maconochie, 39 Ch. D. 116.

On the other hand, if the condition is so penned that it cannot be connected with the previous limitation for life, it must take effect as a condition. Sheffield v. Lord Orrery, 3 Atk. 282; see Allen v. Jackson, 1 Ch. D. 399.

In such a case, however, it may appear that the original estate was only meant to last till the condition takes effect, if, for instance, the rents are directed to be paid to a woman, which could only be done till her marriage, the estate not being given to her separate use. Meeds v. Wood, 19 B. 215.

subject to a proviso.

preserve.

Upon the same principle, the ordinary limitation to trustees Estate of to preserve contingent remainders is a vested remainder, the trustees to prior estate being looked upon as lasting till forfeiture by the prior taker. Smith d. Dormer v. Parkhurst, 18 Viner, fol. 413; 3 Atk. 135; 4 B. P. C. 353.

CHARACTERISTICS OF CONDITIONS PRECEDENT.

Whether a condition is subsequent or precedent must depend on the language in which it is framed, and very little help can be derived from decided cases on the point. It may, however, be noticed, that when the condition requires something to be done, which will take time, the argument is in favour of construing it as a condition subsequent. Popham v. Bampfield, 1 Vern. 79; 1 Eq. Ab. 108, pl. 2; Peyton v. Bury, 2 P. W. 626; Duddy v. Gresham, 2 L. R. Ir. 443.

On the other hand, a condition, which involves anything in the nature of consideration, is in general a condition precedent. Acherley v. Vernon, Willes, 153; In re Wellstead, 25 B. 612.

General test

of condition precedent.

If a devise be made to take effect only on performance of Condition some particular duty by the devisee, or upon some particular whether imprecedent event, there is no gift unless the condition is fulfilled. And possible, impolitic, or it makes no difference that the event is impossible, impolitic, illegal, must

Chap. XXXV. or illegal. See Egerton v. Earl Brownlow, 4 H. L. 1; be fulfilled in Priestley v. Holgate, 3 K. & J. 286; see Caldwell v. Cresswell, 6 Ch. 278.

the case of

realty.

But as regards personalty, a gift made upon a condition precedent involving a physical impossibility, such as to drink up the ocean, takes effect notwithstanding the condition. See 1 Swin., Part IV., sec. 6, p. 257; Co. Lit. 206 b.

But if the condition precedent, though in fact impossible at the date of the will, or becoming impossible by subsequent events, involves no physical impossibility, the gift will not take effect. Lowther v. Cavendish, 1 Ed. 99, 116; Robinson v. Wheelwright, 21 B. 214; 6 D. M. & G. 535.

As regards realty and personalty, a condition precedent which becomes impossible by the act of the testator is discharged. Co. Lit. 206 b., sec. 334; Gath v. Barton, 1 B. 478; Darley v. Langworthy, 3 B. P. C. 359.

In personalty a condition precedent which is contra bonos mores may be rejected, leaving the gift absolute. Brown v. Peck, 1 Ed. 140; Wren v. Bradley, 2 De G. & S. 49.

But this principle does not apply to conditional limitations. In re Moore; Trafford v. Maconochie, 39 Ch. D. 116.

Where a condition precedent is imposed on an infant, and it can be performed by him but is not, the limitation over takes effect; but a proviso defeating a vested estate, if the taker of the estate refuses or neglects to do something, is not applicable to an infant. Bevan v. Mahon-Hagan, 27 L. R. Ir. 399; 31 L. R. Ir. 342; Partridge v. Partridge, (1894) 1 Ch. 351.

VESTING OF REAL ESTATE.

"Whilst

The Courts lean strongly in favour of early vesting. estates remain contingent, those in whom they are at a future time to be vested have no interest in the estates or the rents and profits of such estates. Such estates must descend to the heir, if they are not given to any person to hold until the events happen on which they are to become vested. Testators who create contingent estates often forget to make any provision for the preservation of their estates, and for the disposition of the

rents and profits in the intermediate period between their Chap. XXXV. deaths and the vesting of their estates. In such cases the estates descend to the heirs, who, knowing that they are to enjoy them only for a short period, and that they have obtained the possession of them from the inattention, and not from the bounty of, the testator, or from the mistake of the professional man who drew the will, will make the most that they can of them during the time that they remain theirs, regardless of any injury that the estates may suffer from their conduct. The rights of the different members of families not being ascertained while estates remain contingent, such families continue in an unsettled state, which is often productive of inconvenience and sometimes of injury to them. If the attaining a certain age be a condition precedent to the vesting estates, by the death of their parents before they are of that age, children lose estates which were intended for them, and which their relation to the testator may give them the strongest claim to." Per Best, C.J., Duffield v. Duffield, 3 Bl. N. S. 330; 1 Dow, N. S. 310.

A devise to A. and his heirs "if" or "when" he attains Devise "when" or twenty-one is contingent according to the opinion of Fearne, "i" is conPost. Works, 191. So, too, "a devise in remainder to a class tingent. of children if they attain twenty-one is a contingent remainder. It is also a contingent remainder if it be a devise to a class of children equally at the age of twenty-one. And so also it is a contingent remainder if it be a devise in remainder to children who shall attain the age of twenty-one." Per Stuart, V.-C., in Browne v. Browne, 3 Sm. & G. 587; Alexander v. Alexander, 16 C. B. 59; Love v. Love, 7 L. R. Ir. 306; see Jull v. Jacobs, 3 Ch. D. 703.

a certain age may some

times be

subsequent.

Cases, however, where the condition as to attaining a certain Condition age forms part of the original devise, must be distinguished attainment of requiring the from those cases, where the condition is contained in a separate direction; thus, where there has been an immediate devise followed by a clause directing that the devisee "is not to be of age to receive this " till he attains a certain age, or that it is to become his property on attaining twenty-five, the devisee has taken a vested interest subject to be divested. Snow v. Poulden, 1 Kee. 186; Attwater v. Attwater, 18 B. 330.

Chap. XXXV.

Express direction as to vesting.

Cases in

which a devise to A. at or when or if he attain 21 is vested.

Prior devise till A. attain

21.

Prior devise for life.

Effect of gift

over.

Gift over upon death under

21.

So, too, a devise to A., provided she lives to attain twenty-one, has been held vested subject to be divested. Simmonds v. Cocks, 29 B. 455, where the devise was after a life estate.

Of course, when there is an express direction as to the period of vesting, nothing can vest before the appointed time; though on the other hand the question of vesting is not affected by a direction merely referring to the period of possession. Russell v. Buchanan, 2 Cr. & M. 561; 7 Sim. 628; Montgomerie v. Woodley, 5 Ves. 522; Shrimpton v. Shrimpton, 31 B. 425.

A devise to A., at or when or if he attain twenty-one will be vested :

1. If an estate is given prior to the attainment of twentyone by the ultimate devisee to some third person either for the benefit of the devisee himself, or for the benefit of some other persons to endure during the minority. Goodtitle d. Hayward v. Whitby, 1 Burr. 228; Re Mottram, 10 Jur. N. S. 915; Boraston's Case, 3 Rep. 19a; Manfield v. Dugard, 1 Eq. Ab. 195, pl. 4.

In this case the estate given to the devisee on attaining twenty-one is in fact a vested interest subject to a term.

2. A devise to A. for life, and from and after his decease to B., if he attains twenty-one years will not without more give B. a vested interest. In re Jobson; Jobson v. Richardson, 44 Ch. D. 154.

3. A devise to A. for life, and from and after his death to his eldest son if he attains twenty-one, and in default of A.'s having a son over, may give the eldest son a vested estate. Andrew v. Andrew, 1 Ch. D. 410.

4. If there is a gift over upon death under twenty-one, the gift over shows that the first devisee is to take whatever interest the person claiming under the devise over is not entitled to, that is to say, the immediate interest. Bromfield v. Crowder, 1 B. & P. N. R. 313; see 14 East, 604; Doe d. Roake v. Newell, 1 Mau. & S. 327; 5 Dow, 202; Edwards v. Hammond, 3 Lev. 132; Doe d. Hunt v. Moore, 14 East, 601; Phipps v. Ackers, 3 Cl. & Fin. 691; 9 ib. 583: Whitter v.