Chap. XXXVII. Doctrine of in terrorem. Whether the doctrine applies to conditions precedent. if the marriage takes place after the date of the will but during the testator's lifetime. Bullock v. Bennett, 7 D. M. & G. 283; In re King's Trusts, 29 L. R. Ir. 401. In the case of personalty, certain conditions subsequent, though good in law, are, in accordance with the rule of the Civil Law, held to be void, and in terrorem merely, if there is no gift over. It seems the doctrine that certain conditions are in terrorem merely applies to real estate when it is included with personalty in the same gift. Duddy v. Gresham, 2 L. R. Ir. 443. Of this nature are the conditions in partial restraint of marriage already mentioned. Marples v. Bainbridge, 1 Mad. 590; Reynish v. Martin, 3 Atk. 330; Wheeler v. Bingham, 1 Wils. 135; 3 Atk. 364; W. v. B., 11 B. 621. And the same rule applies to a condition not to contest the will. Powell v. Morgan, 2 Vern. 90. But if there is a gift over, these conditions are effectual, the gift over being considered sufficient evidence, that they were not meant to be in terrorem merely. Cleaver v. Spurling, 2 P. W. 526; Tricker v. Kingsbury, 7 W. R. 652; Charlton v. Coombes, 11 W. R. 1038; Craven v. Brady, 4 Eq. 209; 4 Ch. 296. On the question whether the doctrine of in terrorem applies to conditions precedent, the cases show: 1. A condition precedent, requiring consent to marriage generally, without limitation of age, is effectual if there is a gift over. Malcolm v. O'Callaghan, 2 Mad. 349; Gardiner v. Slater, 25 B. 509. 2. The gift of a smaller sum, in the event of marriage without consent, has the same effect. Creagh v. Wilson, 2 Vern. 572; Gillett v. Wray, 1 P. W. 284. 3. A condition precedent, requiring consent to marriage if under a certain age, is good if there is no gift over. Stackpole v. Beaumont, 3 Ves. 89; see Gray v. Gray, 23 L. R. Ir. 399. 4. A condition precedent not to marry under a certain age good, though there is no gift over. Yonge v. Furse, 8 D. M. & G. 756. is 5. A gift to a legatee, if he marries a particular person, only takes effect in that event. Davis v Angel, 4 D. F. & J. 524. Quare whether Smith v. Cowdery, 2 S. & St. 358, is overruled. 6. But it seems a condition precedent requiring marriage with consent generally, and without a gift over, would be considered in terrorem merely. Reeves v. Herne, 5 Vin. Ab. 343, pl. 41; Reynish v. Martin, 3 Atk. 330; see Clarke v. Parker, 19 Ves. 1. Where a condition precedent to a legacy requires marriage with consent, then, although as regards the consent it may be treated as in terrorem, yet the legacy will not vest until marriage. Garbut v. Hilton, 1 Atk. 381; Gray v. Gray, 23 L. R. Ir. 399. Chap. XXXVII. In cases under 4 and 5 the conditions can only be waived Waiver of conditions by testamentarily, and no consent of the testator to a marriage in the testator. his lifetime, not within the condition, will make the gift good. testator to a satisfies a But where the condition is marriage with consent, whether Consent of the precedent or subsequent, the consent of the testator to a marriage marriage in in his lifetime satisfies the condition. Clarke v. Berkeley, 2 Vern. his lifetime 720; Parnell v. Lyon, 1 V. & B. 479; Wheeler v. Warner, 1 condition requiring con S. & St. 304; Tweedale v. Tweedale, 7 Ch. D. 633; see Violett sent. v. Brookman, 5 W. R. 342. And the condition does not apply to a subsequent marriage. Hutcheson v. Hammond, 3 B. C. C. 128; Crommelin v. Crommelin, 3 Ves. 227. But in such a case the consent of a testator to a marriage to take place after his death does not obviate the necessity for the consent of the persons named in the will. Lowry v. Pattison, I. R. 8 Eq. 372. And, where the gift is till marriage, the consent of the testator to a marriage does not extend the gift. Bullock v. Bennett, 7 Consent of marriage to take place after his testator to a death. D. M. & G. 283; see Cooper v. Cooper, 6 Ir. Ch. 217. It seems, that where there is a gift upon marriage with Condition of marriage with consent, the legatee has her whole life to perform the condition consent is and the legacy is not forfeited by a first marriage without satisfied by consent. Randall v. Payne, 1 B. C. C. 55; Beaumont v. marriage with Squire, 17 Q. B. 905. Clifford v. Beaumont, 4 Russ. 325, was decided on the ground, that the gift was only upon a marriage a second consent. Chap. XXXVII. Condition requiring the consent of several persons how performed. Apportionment of con. dition. Condition requiring a release. with consent, which had not in fact been obtained. See, too, Duddy v. Gresham, 2 L. R. Ir. 443. But if other provision is made for the legatee in the event of marriage without consent, the condition must be limited to a first marriage. Lowe v. Manners, 5 B. & Ald. 917. In the case of a condition requiring the consent of several persons, if the consent required is that of executors or trustees, the consent of those who renounce or do not act is not necessary. Worthington v. Evans, 1 S. & St. 165; Boyce v. Corbally, Ll. & G. t. Plunkett, 102; Ewens v. Addison, 4 Jur. N. S. 1034; White v. M'Dermot, I. R. 7 C. L. 1; see Clarke v. Parker, 19 Ves. 1. But if there is only a single executor who renounces, his consent must, it seems, be obtained. Graydon v. Hicks, 2 Atk. 16; but the case is doubtful. And a condition requiring the consent of several persons is performed by obtaining the consent of the survivors. Ewing v. Anderson, 7 W. R. 23; Dawson v. Oliver Massey, 2 Ch. D. 753. If the consent of guardians is required, guardians must be appointed if there are none. In re Brown's Trusts, 18 Ch. D. 61. Where the testator does not prescribe any formalities, it is enough if the consent is substantially given. Daley v. Desbouverie, 2 Atk. 261; In re Smith; Keeling v. Smith, 44 Ch. D. 654. Where a testator directs, that if a certain sum should be applied in favour of A., A. should apply a sum of different amount in favour of B., the condition will be compulsory on A. only if the whole of the sum in question is applied in his favour, and the condition will not be apportioned. Caldwell v. Cresswell, 6 Ch. 279; Fazakerley v. Ford, 4 Sim. 390. A condition requiring a release within a given time, with a gift over, if the release is not given within the time, must be literally complied with. Simpson v. Vickers, 14 Ves. 341, 348. But if there is no gift over, a release given within a reasonable time will satisfy the condition. Simpson v. Vickers, 14 Ves. 341; Taylor v. Topham, 1 B. C. C. 168; Paine v. A legacy given on condition of conveying real estate to a third person gives a legatee who has conveyed no lien upon the land for the legacy. Barker v. Barker, 10 Eq. 438. Chap. XXXVII. carry on A condition of forfeiture, if legatees cease to carry on the Ceasing to testator's business, takes effect if they sell it to a company, business. although they become managing directors and in substance sole shareholders of the company. In re Sax; Barned v. Sax, 62 L. J. Ch. 688; 68 L. T. 849; 41 W. R. 584; 3 R. 638. arms clause. As to the performance of conditions to take a particular name Name and or adopt a particular coat of arms, see a valuable note in Davidson's Prec., vol. iii. 356; D'Eyncourt v. Gregory, 1 Ch. D. 441; Austen v. Collins, 54 L. T. 903; Bevan v. Mahon-Hagan, 27 L. R. Ir. 399; 31 L. R. Ir. 342; Re Varley; Thornton v. Varley, 62 L. J. Ch. 652; 68 L. T. 665. residence. As to conditions of residence, see Wynne v. Fletcher, 24 B. Conditions of 430; Walcot v. Botfield, Kay 534; Clavering v. Ellison, 7 H. L. 707, and cases there cited; Parry v. Roberts, 19 W. R. 378; Dunne v. Dunne, 3 Sm. & G. 22; 7 D. M. & G. 207; In re Moir; Warner v. Moir, 25 Ch. D. 605; Tagore v. Tagore, 1 Ind. Ap. 387, 397; In re Arbib and Class' Contract, (1891) 1 Ch. 601; Partridge v. Partridge, (1894) 1 Ch. 351. The effect of sect. 51 of the Settled Land Act, 1882, upon conditions of residence is, that the tenant for life may sell and enjoy the income of the proceeds notwithstanding the condition, but if he does not sell he must perform the condition. In re Paget's Settled Estates, 30 Ch. D. 161; In re Haynes; Kemp v. Haynes, 37 Ch. D. 306. Effect of s. 51 of Settled Land Act. REPUGNANT CONDITIONS. Conditions repugnant to the estate previously given are void. In re Dugdale; Dugdale v. Dugdale, 38 Ch. D. 176; Corbett v. Corbett, 13 P. D. 136; 14 P. D. 7. Chap. XXXVII. Restraints upon alienation. Unlimited restraint. Limited restraint on alienation. Alienation limited in time. Alienation by veyance. Thus, conditions in general restraint of alienation are bad, if absolute interests have been given in the first place. 1. Where there is a devise in fee, followed by an absolute restraint upon alienation, the restraint is void for repugnancy. Co. Lit. 222 b.; Hood v. Oglander, 34 B. 513. But a condition that the feoffee shall not alien "to such a one, naming his name, or to any of his heires, or of the issues of such a one, etc., or the like," is said to be good. Co. Lit. 223 a. Upon this principle, conditions not to sell, except to a sister or sisters or their children, and not to sell out of the family, have been held valid. Doe d. Gill v. Pearson, 6 East, 173; Re Macleay, 20 Eq. 186; see Ludlow v. Bunbury, 35 B. 36; Billing v. Welch, I. R. 6 C. L. 88; see the principle discussed in In re Rosher; Rosher v. Rosher, 26 Ch. D. 801. But a condition not to sell except to one person is bad, since a person might be selected who would be certain not to purchase. Muschamp v. Bluett, Bridg. 137; Attwater v. Attwater, 18 B. 330. And a condition, that, if the devisee in fee should wish to sell in the lifetime of the testator's wife, she should have the option of purchasing at a price, which was about one-fifth of the value of the estate, has been held to be bad. In re Rosher; Rosher v. Rosher, 26 Ch. D. 801. This case also decides, that a restraint upon alienation is bad though limited in point of time. Upon this question, see, too, Renaud v. Tourangeau, L. R. 2 P. C. 4; Large's Case, 2 Leon. 82; 3 Leon. 182; 2 Jarm. 860; Churchill v. Marks, 1 Coll. 445; Kiallmark v. Kiallmark, 26 L. J. Ch. 1; In re Dugdale; Dugdale v. Dugdale, 38 Ch. D. 176; Corbett v. Corbett, 13 P. D. 136; 14 P. D. 7. In the same way, conditions restraining alienation by any particular form of conveyance, as by charge or mortgage, are bad. Willis v. Hiscox, 4 M. & Cr. 201; Ware v. Cann, 10 B. & Cr. 433. Thus, a gift over of so much land as an absolute owner charges or incumbers would be bad. Willis v. Hiscox, supra. The effect of the Settled Land Act, 1882, sect. 51, upon |