CHAPTER XXXVII.

CONDITIONS SUBSEQUENT.

Chap. XXXVII.

IN the case of conditions subsequent, if the condition is impossible, impolitic, or illegal, the gift remains, at any rate, where there is no gift over. Thomas v. Howell, 1 Salk. 170; subsequent,

Conditions

impolitic, or illegal, are ineffectual,

Walker v. Walker, 2 D. F. & J. 255; Wilkinson v. Wilkinson, impossible, 12 Eq. 604. And it seems, even where there is a gift over, but the per- whether there formance of the condition has become impossible, the previous is a gift over gift remains. Graydon v. Hicks, 2 Atk. 16; Jones v. Suffolk, 1 B. C. C. 528; Collett v. Collett, 35 B. 312; Sutcliffe v. Richardson, 13 Eq. 606; and see Wedgwood v. Denton, 12 Eq. 290; In re Bird; Bird v. Cross, 8 Mews R. 326.

In most of these cases, however, the condition, being marriage with consent, became, by the death of the person, whose consent was required, a condition in general restraint of marriage. See, too, Yates v. University College, London, L. R. 7 H. L. 438.

A condition forfeiting a legacy in the event of the legatee marrying a certain person without the testator's consent has been limited to a marriage in the testator's lifetime. Booth v. Meyer, 38 L. T. N. S. 125.

A condition must be so framed that it may be capable of ascertainment at any moment whether it has or has not taken effect. Thus, where a bequest of chattels to the owner of a title was followed by a direction that no person was to take an absolute interest till the expiration of twenty-one years after the death of all persons living at the testator's death and afterwards attaining the title, the direction was held void for uncer

or not.

tainty.

In re Viscount Exmouth; Viscount Exmouth v. Praed, 23 Ch. D. 158.

A condition subsequent requiring the consent of several persons becomes impossible and is discharged by the death of all, or even of one of them, though in the latter case it would seem the condition is satisfied by the consent of the survivors. Peyton v. Bury, 2 P. W. 625; Grant v. Dyer, 2 Dow, 73; Jones v. Suffolk, 1 B. C. C. 528; Aislabie v. Rice, 3 Mad. 256; see Dawson v. Oliver Massey, 2 Ch. D. 753.

Where the consent of guardians is required and the testator appoints no guardians, an application should be made to the Court for the appointment of guardians, and the consent of a guardian appointed by the infant would not be sufficient. In re Brown's Will, 18 Ch. D. 61.

So where the consent of parents or guardians is required and the parents are dead, guardians must be appointed to give their Ib.

consent.

A condition subsequent not performed owing to the ignorance of the legatee of its existence, nevertheless works a forfeiture, where the property is given over, whether in the case of personalty or of realty. Hodges' Trusts, 16 Eq. 92; Porter v. Fry, 1 Vent. 197; Astley v. Earl of Essex, 18 Eq. 290.

But this does not apply, where the devisee is the heir who has a title independent of the will. Doe d. Kenrick v. Lord Beauclerk, 11 East, 667; Doe d. Taylor v. Crisp, 8 Ad. & E 778; Murphy v. Lineham, I. R. 9 C. L. 123.

So, when there is a clause forfeiting a legacy, if not claimed within a given time, the forfeiture takes effect, if the legacy is not claimed, though the legatee received no notice of the legacy or of the death of the testator. Burgess v. Robinson, 3 Mer. 7; Tulk v. Houlditch, 1 V. & B. 248; Powell v. Rawle, 18 Eq. 243.

It has been held that the filing of a bill for the administration of the estate before the time appointed is equivalent to a claim by the legatees, though they may not be parties to the suit. Tollner v. Marriott, 4 Sim. 19.

But when the gift was to persons who should within a year establish their title as next of kin, an order made shortly after

the testator's death, an originating summons directing inquiries as to the persons entitled was held not to let in next of kin who made no claim within the year. In re Hartley; Stedman v. Dunster, 34 Ch. D. 742.

In the case of realty a valid condition subsequent is effectual even where there is no gift over. Cooke v. Turner, 15 M. & W. 727; 14 Sim. 493; 15 Sim. 611; 16 Sim. 482; and see Evanturel v. Evanturel, L. R. 6 P. C. 1. In Cooke v. Turner there was a gift over, but the case seems to have been decided at common law independently of the gift over. And a condition subsequent may operate to destroy a contingent, as well as to divest a vested estate. Egerton v. Earl Brownlow, 4 H. L. 1.

Chap. XXXVII.

A condition without a gift over in the case of realty.

is effectual

follows the

With regard to personalty, a condition subsequent is effectual Personalty without a gift over, except as far as the rules of the civil law rule as have been adopted with regard to certain classes of conditions, modified by see post, p. 500. Dickson's Trust, 1 Sim. N. S. 37; Craven v. of in terrorem. Brady, 4 Eq. 209; 4 Ch. 296.

As to what conditions are valid, it has been said, that Test of validity of a nothing can be made the subject of a condition in a will, which condition. could not be made the subject of a contract or wager in life. See per the Lord Chief Baron, Egerton v. Earl Brownlow, 4 H. L. 1, p. 150.

must be

defined.

Perhaps no general rule can safely be laid down; but, inde- Condition pendently of the question whether a condition involves anything clearly illegal or impolitic, in order that it may be effectual the meaning of the testator must be reasonably clear and precise; and, therefore, conditions to reside in a certain house, and to educate children in England, have been held too uncertain to work a forfeiture. Fillingham v. Bromley, T. & R. 530; Clavering v. Ellison, 3 Dr. 451; 7 H. L. 707.

A gift over in the event of a change of religion by the legatee is valid. Hodgson v. Halford, 11 Ch. D. 959.

Conditions decreasing an annuity if the annuitant again lives with her husband, or increasing a legacy to a husband in the event of a separation from his wife, are invalid. Bean v. Griffiths, 19 Jur. 1045; Cartwright v. Cartwright, 3 D. M. & G. 982.

T.W.

K K

Chap. XXXVII.

Condition not to dispute a will.

Computation of time.

A condition not to dispute a will is valid in law if the will is unsuccessfully disputed, though it will not avail to make an invalid disposition good. Cooke v. Turner, 15 M. & W. 727; Evanturel v. Evanturel, L. R. 6 P. C. 1; Stevenson v. Abingdon, 11 W. R. 935; see Warbrick v. Varley, 30 B. 347; Hope v. International Financial Society, 4 Ch. D. 327; Phillips v. Phillips, W. N. 1877, 260; see Massy v. Rogers, 11 L. R. Ir.

409.

On the other hand, a condition not to institute legal proceedings touching the estate and effects devised, is too general, and is bad. Rhodes v. Muswell Hill Land Co., 29 B. 561.

A clause forfeiting an annuity if the annuitant should interfere or attempt to interfere in the management of the testator's estate is good, and takes effect if the annuitant brings an action against the trustees without reasonable cause. Adams v. Adams, 45 Ch. D. 426; (1892) 1 Ch. 369.

A condition that trustees shall not pay over the shares of legatees without taking from them bonds, that they will not intermarry or illegally cohabit with certain persons, will not be enforced. Poole v. Bott, 11 Ha. 33.

As to the rules for computing time, within which a condition is required to be performed, see Lester v. Garland, 15 Ves. 248; Miller v. Wheatley, 28 L. R. Ir. 144.

Condition

subsequent in restraint of marriage is good in realty.

But not as regards an estate tail.

Condition in restraint of marriage is

void in personalty.

CONDITIONS IN RESTRAINT OF MARRIAGE.

A condition in restraint of marriage applies only to a lawful marriage. In re M'Laughlin, 1 L. R. Ir. 42.

A condition subsequent in restraint of marriage, where the estates are for life or in fee, is, it seems, valid as regards realty. Jones v. Jones, 1 Q. B. D. 279; Bellairs v. Bellairs, 18 Eq. 510.

But such a condition is void, if imposed upon a tenant in tail, as repugnant to the estate. Earl of Arundel's Case, 3 Dyer, 342 b.

It is clear, that in the case of personalty a condition subsequent in general restraint of marriage is void, whether the condition forfeits or only reduces the gift. Morley v. Renno'd

son, 2 Ha. 570; W. N. (1894) 174; W. N. (1895) 26; Re Bellamy; Pickard v. Holroyd, 48 L. T. 212.

Chap.

XXXVII.

And the same rule applies to a mixed fund arising from the Mixed fund. proceeds of sale of realty and pure personalty. Lloyd v. Lloyd,

2 Sim. N. S. 255; Bellairs v. Bellairs, 18 Eq. 510.

It would seem that the rule applies to real and personal estate given together. Duddy v. Gresham, 2 L. R. Ir. 443.

And it seems, that a legacy out of the proceeds of land Legacy out of proceeds of directed by the testator to be converted would follow the same sale of land. rule. See Hart's Trusts, 3 De G. & J. 195; Bellairs v. Bel

lairs, supra.

marriage is

good.

On the other hand, a limitation to a person till marriage is Limitation till good, the intention being to provide for the person while he remains unmarried, and not to prevent him from marrying. Potter v. Richards, 24 L. J. Ch. 488; Heath v. Lewis, 3 D. M. & G. 954; In re King's Trusts, 29 L. R. Ir. 401.

partial

And conditions in partial restraint of marriage are valid, both Conditions in with regard to realty and personalty, though with regard to the latter the further question arises whether they are in terrorem

or not.

Thus, conditions restraining a widow or widower, whether of the person making the will or of a stranger, from marrying again : Evans v. Rosser, 2 H. & M. 190; Newton v. Marsden, 2 J. & H. 356; Allen v. Jackson, 1 Ch. D. 399; or requiring a marriage with consent: Sutton v. Jewks, 2 Ch. Rep. 95; or restraining marriage before a certain age: Stackpole v. Beaumont, 3 Ves. 89, are good as conditions, though they may be ineffectual if there is no gift over, on the principle hereafter mentioned.

So conditions against marriage with a Scotchman, or in a manner not in accordance with the rules of the Quakers, or with a person of a particular religion, or a domestic servant, are valid. Perrin v. Lyon, 9 East, 170; Haughton v. Haughton, 1 Moll. 611; Duggan v. Kelly, 10 Ir. Eq. 295, 473; Hodgson v. Halford, 11 Ch. D. 959; Jenner v. Turner, 50 L. J. Ch. 161; 29 W. R. 99; In bonis Knox, 23 L. R. Ir. 542.

In the case of real estate such a condition is valid even if there is no gift over. Haughton v. Haughton, 1 Moll. 611. A condition defeating a vested interest on marriage applies

restraint of marriage are

good though they may be ineffectual.