PART II. T. 1, CH. 2. from conditions subsequent ; from clauses of cesser and acceleration; and from special or collateral limitations in the original sense of limits. By constituting a distinct clause or proviso for the cesser of a prior interest in an event unconnected with the original measure of that interest, they differ from special or collateral limitations in another respect (a). 171. (a) See Smith's Executory Interests annexed to Fearne, § 153-4. CHAPTER III. OF THE PERFORMANCE OF CONDITIONS. in PART II T. 1, CH. Where a fixed time is WHERE a time is appointed for the performance of a condition, and the person who shall perform it dies the meantime, the right to perform it will pass to his heir time is or personal representatives, according to the nature of the case, if at least it is immaterial to the person to whom it was to be performed, whether it is performed by the deceased or by his representatives (a). And where the Month. word month is mentioned generally in a condition, it signifies, a calendar month. Where no particular time is Where no appointed, the person to whom the condition is reserved fixed. must in some cases perform it within a reasonable and convenient time, and in other cases he may perform it any time during his life; but if he dies without performing it, the right is not transmitted to his representatives (b). 172. Where a particular place is appointed for the perform- Where a ance of a condition, the person who is to perform it must pointed. come to that place (c). And if the condition of a bond or a feoffment is to pay money at a certain place at any time during the life of the person who is to pay it, he must give notice to the person who is to receive it, to attend to receive it for otherwise he would have to be in perpetual attendance (d). 173. (a) 2 Cruise T. 13, c. 2, § 7; Litt. s. 334; 5 Vin. Ab. 2nd ed. 113115. (b) 2 Cruise T. 13, c. 2, § 9, 10; Litt. s. 337; 5 Vin. Ab. 2nd ed. VOL. I. 193-5; 2 Pres. Shep. T. 377-8; G place is ap PART II. T. 1, CH. 3. Where no pointed. If no particular place is appointed, and the condition is that a person shall pay a gross sum of money, and not a place is ap rent, in that case he must seek for the person to whom the money is to be paid, if he is within the realm; but if he is out of the realm, then it is not necessary to seek him, and the condition is not broken (a). If no place is appointed for payment of a rent, it is sufficient to tender it on the land (b). 174. Proviso as to assuming surname. How condi. tions precedent must be performed. Under a proviso requiring a devisee to assume the testator's testator's surname, the inserting the testator's surname before his, the devisee's, own, is not a compliance; but adding the testator's surname after his own is a compliance (c). 175. In the construction of personal bequests, where the condition is precedent, and there is no limitation over on its non-fulfilment, it is sufficient if it is performed in substance, when, from unavoidable circumstances, the whole cannot be literally fulfilled (d). But where there is a limitation over of the legacy on non-fulfilment of the condition, a strict and literal performance is required (e). Thus, where a bequest is made upon the precedent condition of the legatee paying a sum of money, or executing a release of all demands within a certain time, and there is no limitation over upon non-compliance, if he pay the money or execute the release, although not within the time, he will be entitled to the legacy. But if the legacy is limited over in the event of the non-payment or the non-execution of the release within the time, the bequest over will take place in that event (ƒ). 176. How conditions sub sequent or Conditions subsequent and mixed are odious, and to be construed with great strictness; so that they must be (a) 2 Cruise T. 13, c. 2, § 13; (b) Co. Litt. 210 b, 211 b. 1 Ch. D. 441. (d) 1 Rop. Leg. by White, 801, 769. (e) 1 Rop. Leg. by White, 769. (f)1 Rop. Leg. by White, 837 -8. T. 1, CH. 3. mixed must be per. formed. strictly performed to be of any avail (a); for it is only PART II. reasonable, that, before a person is deprived of the benefit intended for him, it should be quite certain that the event. upon which the forfeiture was to arise has really happened. And this is especially the case where the estate or interest is vested, that is, actually clothed with the ownership, and the person in whom it is vested may have founded a family, or have made other important arrangements on the faith of it. And, in the case of a conditional limitation, or a condition of cesser and acceleration, there is also the consideration, that it is only reasonable to construe the conditional language in favour of the prior rather than of the secondary object of the grant, devise, or bequest. And hence where a testator limited real and personal estate to his grandchildren, upon condition that they should be educated in England and in the Protestant religion; and if any of them should be educated abroad or not in the Protestant religion, he gave the share of such grandchild to the others; it was held that the condition was too uncertain to enable the Court to say what was meant by "educated in England" or "educated abroad," so that the share of a grandchild who was educated partly in England and partly abroad, was held not to be defeated (b). 177. of consent If in the event of the marriage of a legatee without the Conditions consent of a trustee or trustees, the legacy is to go over to marriage. from such legatee to another person, and such trustee or trustees die before the marriage, without having consented, the interest of the prior legatee becomes absolute (c). So (a) 1 Rop. Leg. by White, 783; Co. Litt. 218 a, 219 b; 1 Pres. Shep. T. 133; Clavering v. Ellison, 3 Drewry, 451, 470; 8 D. M. & G. 662; 7 H. L. Cas. 707. See Dunne v. Dunne, 3 Sm. & G. 22, 27; 7 D. M. & G. 207 ; Curzon v. Curzon, 1 Gif. 248; Walmesley v. Gerard, 29 Beav. 321, 342. As to cases where (b) Clavering v. Ellison, 3 Drewry, (c) 1 Rop. Leg. by White, 802. T. 1, CH. 3. PART II. if a legatee's interest is to go over upon marriage without the consent of an executor, and he renounces or refuses to act, and the legatee marries without obtaining such consent, the interest of the prior legatee becomes absolute (a). 178. How consent must be given. be It is sufficient if precedent conditions requiring marriages with consent are substantially complied with, when they cannot be executed according to the letter. Hence, if a precedent condition requires the consent of three trustees to the marriage of the legatee, and one of them dies, the approbation of the survivors previously to the marriage will be a sufficient compliance with the condition (). And so the consent of a surviving parent will satisfy a condition requiring the consent of the parents (c). 179. As a general rule, when the consent of executors or trustees, or the major number of them, is required to the marriage of a legatee, it must be obtained before or at the time of the marriage (d). Consent to marriage may given conditionally, and the vesting or forfeiture of the legacy will depend upon the performance or non-performance of the condition (e). Consent should be given to the particular match which is made. Yet, if the legatee is of age, and a general consent is given to the legatee's marrying, and the legatee marries without the knowledge of the person whose consent is required, the marriage will be considered to have been solemnized within the true intent and meaning of the condition (f). A condition of consent to a marriage will be deemed to be complied with, if the party to consent acquiesces in addresses to the person married, or if the legatee marries with the approbation of the testator in his lifetime (g). And a Court of Equity will (a) 1 Rop. Leg. by White, 804. (d) 1 Rop. Leg. by White, 798. |