Taylor V. Mason. 1824. allowed of." Those, then, taking by inheritance through the first heir male, were to be subject to this condition, and on their refusing, the estate was to go over. It is impossible to contend, that those so taking by inheritance, should be regarded as purchasers, or that, with them, this should be considered as a condition precedent: and why should not the same construction of the testator's intention, that must be given with respect to them, be given in the first instance, where the same proviso is used, viz. that it is a conditional limitation, on the refusal to perform which, the antecedent estate is defeated, and a new one arises? Unquestionably the limitation, on refusal to comply, is a conditional limitation. If, then, between such conditional limitation and a condition precedent, bearing on the same object, (let the words be ever so clear,) there be a positive incompatibility, the principle must be applied, that if words be so inconsistent that they cannot possibly stand or be reconciled, those words shall be rejected which are least consistent with the general intention of the testator." The incompatibility between conditions and conditional limitations, results from this: "conditions can only be reserved to the feoffer, donor, lessor, or their heirs, but not to a stranger;" and this by implication, without any words of reservation; and for a 2 Fonbl. Eq. c. 3. s. 3. (Note 7. p. 69.) Haws v. Haws, S b 1 Co. Litt. 214 b. Taylor Mason. every condition broken, the heir of the donor 1824. shall enter, and by so doing, restore the original estate. So that, except in gavelkind and boroughenglish,' and a husband's alienating his wife's estate on condition, the heir at law enters and holds for his own benefit. This applies to conditions subsequent. As to conditions precedent, the estate remains in the heir at law, and never vests till the performance of the condition, and, during all that time, the heir at law holds it beneficially. But the effect of a conditional limitation is, that the next devisee alone can enter, and he takes and enjoys for his own benefit. Now, it is incompatible, that the heir at law should have the right to hold the estate for his own benefit, and the devisee to hold it for his benefit; and in these incompatible results, the question, which shall prevail, must depend upon which is conformable to the intention of the testator. Thus, it is laid down that "words of an express condition shall not ordinarily be construed into a limitation; but where an estate is to remain over for breach of a condition, which is by express words a condition, yet it ought to be intended as a limitation." And the contrary doctrine in Mary Portington's case,' has been often denied to be law! & Co. Litt. 11, 12. b Godb. 3. c 8 Co. 43. d Page v. Hayward, 11 Mod. 61. 2 Salk. 578. e 10 Co. 35. f Brownl. 65. Roll. Abr. 412. Ventr. 200. 3 Lev. 132. 2 Show. 398. 1 Bos. & Pull. 313. The expression "before he has possession," is much relied on, as showing a condition precedent. But is must, like other equally strong expressions, bend to the testator's general intent, and to the words "who has the right." How "has the right," if obtaining an act of the legislature and changing the name after twenty-one, be a condition precedent? For then no estate can vest, and no right be had, till the condition be performed. So it is said, the will shows the right is not to commence till he has arrived at twenty-one. But the age of twenty-one connects itself, both in sense and grammar, with the act to be done, and not with the vesting of the right. The expression "refusing to comply," and the giving over the estate to others, show the refusal to be the definite act, by which one estate was to be determined, and the other to commence. Thus where similar words were used, "on condition that he should in twelve months after the testator's death, or in twelve months after he attained the age of twenty-one years, suffer a recovery of an estate in the county of Warwick, and settle it to certain uses," they were clearly taken to be a condition subsequent, and not a conditional limitation." Indeed, the words "before he has possession," are susceptible of another interpretation, consistent with the previous vesting of the estate. The testator did not view all possible contingencies accurately. He clearly took for granted that the one to take would be an infant, and meant to make a provision accordingly. He probably used those words to dis a Duke of Montague v. Beaulieu, 3 Bro. Parl. Cas. 277. tinguish the time when a guardian would receive 1824. the rents, issues and profits, from that when the minor would come into the actual possession of his estate. The cause was continued for advisement, to the present term. Taylor V. Mason. Mr. Chief Justice MARSHALL delivered the opi- Feb. 5, 1824 nion of the Court; and, after stating the case, proceeded as follows: If the estate should yield any surplus profits, after satisfying the charges placed on it by the testator, J. T. M. is directed to account for those profits, and they are the property of "the person that may have the right," according to the language of the will. Are the heirs at law the persons "who have the right," according to this language? Certainly not. The plain intention of the will is to exclude them. They admit this; and support their claim by alleging that the will, so far as respects the devises which are to take place after the death of J. T. M., is utterly void, the limitations over being too remote. The first limitation is to "the male heirs of my nephew, J. T. M., lawfully begotten, for ever, agreeably to the law of England;" that is, the oldest male heir to take all. If the clause stopped here, there could be no question in the case. The person who should be the eldest male heir of J. T. M. at the time of his death, would take the estate. But the testator proceeds to prescribe the "terms" on which such 1824. eldest male heir should take. They are, "that the Taylor V. Mason. name of the one that may have the right, at the age of twenty-one, with his consent, be changed to Abraham Barnes, by an act of public authority of the State, without any name added, together with his taking an oath before he has possession;" "that he will not make any change during his life in this my will, relative to my real property. And on his refusing to comply with the above mentioned terms, to the next male heir, on the above mentioned terms; and so on, to all the male heirs of my nephew, J. T. M., as may be, on the above terms; and all of them refusing to comply in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of; and on their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, H. T. M." &c. The time allowed the eldest male heir of J. T.M. to perform the condition on which his estate would, according to the words of the will, become absolute, is twelve months after he shall attain his age of twenty-one years. As J. T. M. might die, leaving no sou alive at his death, but leaving his wife ensient of a son, it is obvious that the contingency on which the estate depended might not happen within a life, or lives, in being, or within twenty-one years and nine months after the death of J. T. M. If, therefore, the estate did not vest until the contingency should happen, the limitation over to the eldest male heir of J. T. M., de |