PART II [ T. 1, CH. 5.

a desire on the part of the judges of the Court of Chancery, in early times, to conform their doctrines to those of the iudges of the Ecclesiastical Courts, who followed the civil law, under which conditions in restraint of marriage were void. But it does not appear that conditions not to dispute a will were void by the civil law; so that there was no need of inventing any such construction as the in terrorem doctrine, with a view of getting rid of them, in order to avoid a conflict with the Ecclesiastical Courts. And such a construction imputes to the testator an improbable intent. To suppose either that he only meant to restrain vexatious litigation, or that if he meant to refer to litigation or contention generally, he only inserted the words as a threat, without intending that they should have any divesting operation, is to suppose that which is contrary to the general principles of election on which so many cases have been decided, especially in modern times -the principle that no one shall claim both under, and in opposition to, the same instrument,-that no one, while he accepts the bounty of a testator with one hand, shall proceed with the other to overturn the disposition which the testator had made in favour of other persons. The cases in which the Court has considered conditions not to dispute a will as only relating to vexatious litigation, or as only added in terrorem, if they are still law, seem to constitute a most anomalous exception to the rule of election. Under the doctrine of election, a person is debarred from accepting the testator's bounty, and yet disputing the will in other respects; and he is so debarred in a number of cases upon a mere implication or tacit or presumed condition, that he shall not claim under and in opposition to the same instrument. Much more, then, should he be debarred from so doing, where there is an express condition that he shall not dispute the will. And as no such doctrine prevails in the case of real estate, it is

PART II.

absurd that it should exist in the case of personal estate, TA, CH. 5. without any real reason for a distinction. And it is not

unlikely that if the question were now to arise before a Court of Appeal, the Court would consider that the few early cases which favoured such a doctrine were overruled by the numerous cases in which the doctrine of election had been established, or were no longer binding, as having been decided merely upon an imaginary analogy to the case of restraint on marriage, or otherwise contrary to sound principle. But until it shall be decided that these cases are no longer law, it will be very important to bear them in mind, and avoid the probability of disappointing the intention of testators, and all chances of doubt and litigation, by limiting over the property on breach of a condition not to dispute a will, if any such condition is desired to be inserted. 254.

as to arbi

Where a testator, after declaring that disputes shall be Conditions referred to arbitration, adds a condition of forfeiture of tration. a devise or bequest, in case the devisee or legatee should commence any proceedings at law or in equity relating to the testator's estate and effects, such condition is void, as uncertain and repugnant; since, if taken in its generality, it might prevent the devisee or legatee from taking any legal proceedings for the protection of his rights (a). 255. A limitation over, whether by deed or will, and whether in favour of an individual or of a lawful charitable use, in case of a gift previously made by the same deed or will for an individual or a charity being void, will be supported (b). 256.

Limitation

over if previous gift

the invali

In the case of real property, and generally in the case Effect of of personal property, if a condition precedent is void, the dity of coninterest which is to vest on the fulfilment thereof cannot

(a) Rhodes v. Muswell Hill Land Co.. 29 Beav, 560.

(b) De Themmines v. De Bonneval,

5 Russ. 289; Carter v. Green, 3
K. & J. 591.

ditions.

T. 1, CH. 5.

PART II take effect (a). If a condition subsequent, or a conditional limitation, annexed to a grant, devise, or bequest of real or personal property, is void, as the estate or interest cannot be defeated by it, such estate or interest is absolute in the first instance, or afterwards becomes so (b). But if the condition of a bond is contrary to the moral law, the bond itself is void (c). 257.

If the void condition is a mixed condition, the preceding estate, intended to be annihilated by it, is absolute in the first instance, or afterwards becomes so; and the estate to arise or be accelerated on the fulfilment of the condition cannot arise or be accelerated. If the condition is of that species which is termed a special or collateral limitation the effect is the same as if it were a proper condition subsequent (d). 258.

(a) 2 Bl. Com. 156-7; Co. Litt. 206 a, b, 218 a; 1 Pres. Shep. T. 129, 132-3; 2 Cruise T. 13, c. 2, § 21; 1 Rop. Leg. by White, 754 -7; 2 Jarm. Wills, 2nd ed. 8, 11.

(b) 2 Bl. Com. 156-7; 1 Pres. Shep. T. 129, 132, 133; Co. Litt. 206 a, b; 2 Cruise T. 13. c. 2. § 21; 1 Rop. Leg. by White, 783; 2 Jarm.

CHAPTER VI.

THE PERIOD TO WHICH THE EVENT OF DEATH, WHEN
MENTIONED IN CONDITIONAL LANGUAGE, AS IF IT WERE

A CONTINGENT EVENT, IS TO BE REFERRED.

T. 1, CH. 6.

Preliminary

WHERE personal estate is bequeathed to a person inde- PART II. finitely or absolutely, with a limitation over to another on the death of the first person, without expressly referring remarks, to any particular period, as the time of his decease, and his death is mentioned in terms applicable to a contingency, and not to a certain event, it becomes a question in what sense the expression as to his death is to be understood. The expression is either defective in not specifying the period to which the death is to be referred, if a contingency was meant, that is, if a death at any particular period was intended; or else it is incorrect in applying words of contingency to an inevitable event, if they refer to death generally, whenever it may happen (a). 259.

And it will be perceived that whatever construction is put upon the words, the Court is involved in this difficulty -that either the expression of contingency referential to death must be translated into a different expression applicable to an event certain, or, if such expression is construed in its natural sense, words must be supplied to specify the period to which the death is to be referred, so as to satisfy the contingent import of the expression. 260.

caution.

These remarks will at once suggest to the draftsman, Practical when he means to refer to death generally, to be careful

(a) See remarks of Sir W. Grant, M. R., in Cambridge v. Rous, 8 Ves. 20, 21. But see contrary view of Lord Thurlow, in Billings v. Sandom, 1 B. C. C. 394, and Lord Loughborough, in Lord Douglas v. Chalmer,

2 Ves. Jun. 504 a. It would be well
if all would deeply reflect that death
is not an event which may happen
to some and not to others, but that
it is a certainty to all.

T. 1, CH. 6.

PART II. not to speak of it in terms which are only applicable properly to a contingent event; and when he means to speak of death at a particular period, to be careful to specify that period. 261.

Rules of

construc

ion in the

case of personal estate.

Indefinite or absolute

gift to one, and "in case of his

But there are many cases in which this caution has not been observed. And in reference to these, certain rules be laid down. 262.

may

I. Let us consider the case of personal estate.

1. Where personal estate is given to a person indefinitely or absolutely, "and in case of his death," or, "and in the event of his death," to another, there, both for the purpose event of his of giving effect to the first indefinite or absolute or

death," or "in the

death," to

another.

apparently absolute gift, as such, and in order to satisfy the contingent import of the words, the testator, in the absence (a) of all indications of a contrary intention, is not held to refer to death generally, whenever it may happen, but to a death at a particular period. 263. And

(1.) Where an immediate interest is given to the person whose death is so spoken of, and there is no other period to which the death can be referred, he is held to refer to the death of the prior taker in the lifetime of the testator; and the prior taker has the absolute interest, with an alternative limitation over, to take effect only in case of the death of the prior taker in the lifetime of the testator. 264.

In some of the decided cases (b), there were special circumstances and considerations in aid of the construction described in this rule. But there have been other cases (c), in which there was no special circumstance, but the construction was governed simply by the contingent import of the expression referential to death. 265.

(a) Milner v. Milner, 34 Beav. 276.

(b) Hinckley v. Simmons, 4 Ves. 160; Cambridge v. Rous, 8 Ves. 12; and Arthur v. Hughes, 12 Beav.506.

(c) Trotter v. Williams, Pre. Ch.

78; 2 Eq. Cas. Ab. 344, pl. 2; Slade v. Milner, 4 Madd. 144; Ommaney v. Bearan, 18 Ves. 291; and Crigan v. Baines, 7 Sim. 40; Schenk v. Agnew, 4 K. & J. 405; Bowers V. Bowers L. R. 8 Eq. 283.