1824.

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y.

Mason.

name.

It is to be changed in twelve months after the devisee attains his age of twenty-one years, "if in that time it can be done;" and this provision is made, that" no act of intention to defeat his will may be allowed of." The devise over is on "refusing" to comply with the terms on which the estate is given in the first instance, and this "refusing to comply," takes` place only "if it can be done"-exists only where there is" an act of intention to defeat his will." If it "cannot be done," if there be "no act of intention to defeat his will," then there is not that "refusing to comply with the terms" on which the devise over is to take place.

All these provisions appear to the Court to demonstrate that the testator intended the devise to take effect immediately, to be defeated by the devisee's refusing to comply with the terms on which the property was given.

The devisees are, all of them, the coheirs of the testator, and the whole purpose of the will is to prevent their inheriting any part of his estate as his heirs. J. T. M. takes an interest for life, beneficially, to a considerable extent, perhaps to the whole extent of the profits, certainly to the whole extent, if he chooses to expend the whole, except 1600 dollars per annum, in repairs, buildings, and the support of himself and family; and is to take the surplus profits, if there be any, as trustee but as trustee for whom? For his eldest male heir, not for the heirs of his testator.

That eldest male heir takes the whole property, including these possible surplus profits, on

certain conditions, one of which is, the change of his name by act of Assembly. He might possibly, nay probably, be an infant, for J. T. M. had no.male heir at the death of the testator. The event of his being an infant is particularly contemplated, and provided for, in the will. Such infant devisee is allowed twelve months, after at taining his full age, to perform the condition. No provision whatever, if the estate does not vest immediately, is made for his education .ad maintenance. Not even these surplus profits, which are so carefully to accumulate for his use, are given to him. The infant orphan, heir of an enormous estate, who was the particular favourite, and whose future grandeur constituted the pride of his ancestor, is cast, by this construction, on the world, without the means of subsistence, while the whole profits of his estate pass, without account, to those for whom the testator intended nothing.

The estate is devised, in succession, to each of the heirs of the testator, on the same condition; and, if it be a condition precedent, the consequence is, that the same persons who could not take it in succession, as he wished it to pass, would take it in common, as he wished it not to pass. The whole scheme of the will would be defeated, and an object be effected, which all his ingenuity had been exerted to prevent.

In this view of the case, it may be proper again to observe, that the devise over to the second male heir of J. T. M., is limited to take effect on the refusal of the oldest to perform the terms on which the estate is given to him. This must be a volun

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tary refusal, an "act of intention to defeat his will." Now, a failure to perform the condition may take place, although the devisee may have used his utmost endeavours to perform it: the Legislature may refuse to pass the act required.

If it be a condition precedent, the estate, in that event, can never vest, and the whole intention of the testator may be defeated, without the fault of the devisee. But the will was framed with very different views. The testator declares, that each devise over is to take effect on the previous devisee's "refusing" to comply with the terms on which the devise was made to him; on his obtaining the act of Assembly, "if it can be done;" on there being no "act of intention to defeat his will." This construction would make the devise to depend on the will of the Legislature, although the testator declares that it shall depend on the devisee himself.

To take the oath not to make any alteration in the will, so far as respects the real property, is completely within the power of the devisee, and this is directed to be taken "before he has possession." This direction shows the opinion of the testator, that the estate vested immediately, otherwise there could be no necessity for the clause suspending the possession. It would be a very useless declaration, to say, that the devisee should not take possession of an estate to which he had no right. This assists, too, in marking more clearly the distinction taken by the testator, between a condition annexed to the estate, which was in the

power of the devisee, and one not in his power. The pos

session is not postponed until he shall obtain an act of the Legislature for the change of his name, but is postponed until he shall take the oath directed by the will.

In the case of Gulliver v. Ashby, (4 Burr. 1929.) William Wykes devised his estate to several persons in succession, after the death of his wife, and added the following clause: "Provided always, and this devise is expressly on this condition, that whenever it shall happen that the said mansion house, and said estates, after my wife's decease, shall descend or come to any of the persons herein before named, [that] the person or persons to whom the same shall, from time to time, descend or come, [that he or they] do or shall then change their surname, and take upon them and their heirs the surname of Wykes only, and not otherwise."

In giving his opinion on this case, Lord Mansfield said, "First, that this is not a condition precedent. It ean not be complied with instantly. It is 'to take the name for themselves and their heirs.' Now, many acts are to be done in order to oblige the heirs to take it, such as a grant from the King, or an act of Parliament. It is not, therefore, a condition precedent, but, being penned as a condition, it must be a condition subsequent."

All the Judges concurred in the opinion, that it was not a condition precedent. Mr. Justice Yates thought it no more than a recommendation. The other Judges considered it as a condition subscquent.

To the reason given by Lord Mansfield, for

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1824. considering the conditions on which the testator, in the case in Burrow, devised his estates, as conditions subsequert, are superadded, in the case at the bar, others of great weight, which have been mentioned and relied on.

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The case put at the bar, that the eldest male heir of J. T. M. might die within twelve months after attaining his age of twenty-one years, leaving an infant son, deserves serious consideration. If the estate vested in the ancestor, it would descend to him. If the condition be precedent, the estate did not vest, and cannot descend to him. This would be contrary to the general spirit of the will.

If the change of name constituted the whole condition of the devise, the proofs furnished by the will of its being a condition subsequent, are so strong as to dispel all reasonable doubt. But there is another condition, respecting which the intention is less obvious.

The person "that may have the right" is to procure an act of Assembly for the change of his name, "together with his taking an oath, before he has possession, before a magistrate," &c. "that he will not make any change during his life in this my will, relative to my real property."

It has been truly said, that this condition is against law, is repugnant to the nature of the estate, and consequently oid. But if this be a condition precedent, its being void will not benefit the devisee. It becomes necessary to inquire, therefore, whether this also be a condition subsequent, or must be performed before the estate can

vest.