CHAPTER XXXV. CONDITIONS SUBSEQUENT. Conditions IN the case of conditions subsequent, if the condition is subsequent impossible, impossible, impolitic, or illegal, the gift remains, at any impolitic, rate, where there is no gift over. Thomas v. Howell, 1 Salk. 170; Walker v. Walker, 2 D. F. & J. 255; Wilkinson v. Wilkinson, 12 Eq. 604. or illegal, are ineffectual, whether there is a or not. And it seems, even where there is a gift over, but the gift over performance of the condition has become impossible, the previous gift remains. Graydon v. Hicks, 2 Atk. 16; Jones v. Suffolk, 1 B. C. C. 528; Collett v. Collett, 35 B. 312; Sutcliffe v. Richardson, 13 Eq. 606; and see Wedgwood v. Denton, 12 Eq. 290. sent of In most of these cases, however, the condition, being marriage with consent, became, by the death of the person, whose consent was required, a condition in general restraint of marriage. See, too, Yates v. University of London, L. R. 7 H. L. 438. A condition forfeiting a legacy in the event of the legatee marrying a certain person without the testator's consent has been limited to a marriage in the testator's life time. Booth v. Meyer, 38 L. T. N. S. 125. Condition A condition subsequent requiring the consent of several requiring marriage persons becomes impossible and is discharged by the with con- death of all, or even of one of them, though in the latter case it would seem the condition is satisfied by the conbecomes sent of the survivors. Peyton v. Bury, 2 P. W. 625; impossible Grant v. Dyer, 2 Dow. 73; Jones v. Suffolk, 1 B. C. C. several persons of some. 528; Aislabie v. Rice, 3 Mad. 256; see Dawson v. Oliver by death Massey, 2 Ch. D. 753. not per through A condition subsequent not performed owing to the Condition ignorance of the legatee of its existence, nevertheless formed works a forfeiture, where the property is given over, ignorance whether in the case of personalty or of realty. Hodges' takes Trusts, 16 Eq. 92; Porter v. Fry, 1 Vent. 197; Astley v. Earl of Essex, 18 Eq. 290. effect, devisee is But this does not apply, where the devisee is the heir unless the who has a title independent of the will. Doe d. Kenrick, heir. v. Lord Beauclerk, 11 East, 667; Doe d. Taylor v. Crisp, 8 Ad. & E. 778; Murphy v. Lineham, I. R. 9 C. L. 123. a legacy if claimed. So, when there is a clause forfeiting a legacy, if not Condition forfeiting claimed within a given time, the forfeiture takes effect, if the legacy is not claimed, though the legatee received no not notice of the legacy or of the death of the testator. Burgess v. Robinson, 3 Mer. 7; Tulk v. Houlditch, 1 V. & B. 248; Powell v. Rawle, 18 Eq. 243. amounts to But the filing of a bill for the administration of the What estate before the time appointed is equivalent to a claim a claim. by the legatees, though they may not be parties to the suit. Tollner v. Marriott, 4 Sim. 19. tion is 16 without a In the case of realty a valid condition subsequent is A condieffectual even where there is no gift over. Cooke V. effectual Turner, 15 M. & W. 727; 14 Sim. 493; 15 Sim. 611; Sim. 482; and see Evanturel v. Evanturel, L. R. 6 C. 1. gift over in P. the case of realty. In Cooke v. Turner there was a gift over, but the case seems to have been decided at common law independently of the gift over. And a condition subsequent may operate to destroy a contingent, as well as to divest a vested estate. Egerton v. Earl Brownlow, 4 H. L. 1. With regard to personalty, a condition subsequent is Personalty rule as modified by the follows the effectual without a gift over, except as far as the rules of the civil law have been adopted with regard to certain doctrine of classes of conditions, see post, p. 454. Dickson's Trust, interrorem. 1 Sim. N. S. 37; Craven v. Brady, 4 Eq. 209; 4 Ch. 296. Test of validity of a condition. Condition of residence must defined. As to what conditions are valid, it has been said, that nothing can be made the subject of a condition in a will, which could not be made the subject of a contract or wager in life. See per the Lord Chief Baron, Egerton v. Earl of Brownlow, 4 H. L. 1, p. 150. Perhaps no general rule can safely be laid down; but, independently of the question whether a condition involves. be clearly anything illegal or impolitic, in order that it may be effectual the meaning of the testator must be reasonably clear and precise; and, therefore, conditions to reside in a certain house, and to educate children in England, have been held too uncertain to work a forfeiture. Fillingham v. Bromley, T. & R. 530; Clavering v. Ellison, 3 Dr. 451; 7 H. L. 707. Condition pute a will. A gift over in the event of a change of religion by the legatee is valid. Hodgson v. Halford, 11 Ch. D. 959. Conditions decreasing an annuity if the annuitant again lives with her husband, or increasing a legacy to a husband in the event of a separation from his wife, are invalid. Bean v. Griffiths, 19 Jur. 1045; Cartwright v. Cartwright, 3 D. M. & G. 982. A condition not to dispute a will is valid in law if the not to dis- will is unsuccessfully disputed, though it will not avail to make an invalid disposition good. Cooke v. Turner, 15 M. & W. 727; Evanturel v. Evanturel, L. R. 6 P. C. 1; Stevenson v. Abingdon, 11 W. R. 935; see Warbrick v. Varley, 30 B. 347; Hope v. International Financial Society, 4 Ch. D. 327; Phillips v. Phillips, W. N. 1877, 260. On the other hand, a condition not to institute legal proceedings touching the estate and effects devised, is to o general, and is bad. Rhodes v. Muswell Hill Land Co., 29 B. 561. A condition that trustees shall not pay over the shares of legatees without taking from them bonds that they will not intermarry or illegally cohabit with certain persons will not be enforced. Poole v. Bott, 11 Ha. 33. CONDITIONS IN RESTRAINT OF MARRIAGE. A condition in restraint of marriage applies only to a lawful marriage. In re M'Laughlin, 1 L. R. Ir. 42. A condition subsequent in restraint of marriage, where Condition the estates are for life or in fee, is, it seems, valid as re- in re subsequent gards realty. Jones v. Jones, 1 Q. B. D. 279; Bellairs v. straint of Bellairs, 18 Eq. 510. marriage is good in realty. But such a condition is void, if imposed upon a tenant But not as in tail, as repugnant to the estate. Earl of Arundel's Case, regards an 3 Dyer, 342 b. estate tail. in re marriage is void in It is clear, that in the case of personalty a condition Condition subsequent in general restraint of marriage is void. Morley straint of v. Rennoldson, 2 Ha. 570. And the same rule applies to a mixed fund arising from personalty. the proceeds of sale of realty and pure personalty. Lloyd fund v. Lloyd, 2 Sim. N. S. 255; Bellairs v. Bellairs, 19 Eq. 510. It would seem that the rule applies to real and personal estate given together. Duddy v. Gresham, 2 L. R. Ir. 443. Mixed And it seems, that a legacy out of the proceeds of land Legacy out of proceeds directed by the testator to be converted would follow the of sale of same rule. See Hart's Trusts, 3 De G. & J. 195; Bellairs land. v. Bellairs, supra. till mar On the other hand, a limitation to a person till marriage Limitation is good, the intention being to provide for the person while he remains unmarried, and not to prevent him from marry riage is good. in partial ing. Potter v. Richards, 24 L. J. Ch. 488; Heath v. Lewis, 3 D. M. & G. 954. Conditions And conditions in partial restraint of marriage are valid, restraint of both with regard to realty and personalty, though with marriage regard to the latter the further question arises whether they are in terrorem or not. are good though they may be ineffec tual. Doctrine of in terrorem. Thus, conditions restraining a widow or widower from marrying again, whether it be the widow of the testator or of a stranger: Evans v. Rosser, 2 H. & M. 190; Newton v. Marsden, 2 J. & H. 356; Allen v. Jackson, 1 Ch. D. 399; or requiring a marriage with consent: Sutton v. Jewks, 2 Ch. Rep. 95; or restraining marriage before a certain age: Stackpole v. Beaumont, 3 Ves. 89, are good as conditions, though they may be ineffectual if there is no gift over, on the principle hereafter mentioned. So conditions against marriage with a Scotchman, or in a manner not in accordance with the rules of the Quakers, or with a person of a particular religion, or a domestic servant, are valid. Perrin v. Lyon, 9 East, 170; Haughton v. Haughton, 1 Moll. 611; Duggan v. Kelly, 10 Ir. Eq. 295, 473; Hodgson v. Halford, 11 Ch. D. 959; Jenner v. Turner, 50 L. J. Ch. 161; 29 W. R. 99. In the case of real estate such a condition is valid even if there is no gift over. Haughton v. Haughton, 1 Moll. 611. 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 |