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pre-emption at a fixed price are, it seems, not bound to make a good title, and ought not to incur costs in so doing.
In re Darison & Torrens, 17 Ir. Ch. 7. Condition Similarly, a condition requiring a release within a requiring a release. given time, with a gift over, if the release is not given
within the time, must be literally complied with. Simpson v. Vickers, 14 Ves. 341, 348.
But if there is no gift over, a release given within a reasonable time will satisfy the condition. Simpson v. Vickers, 14 Ves. 341; Taylor v. Topham, 1 B. C. C. 168 ; Paine v. Hyde, 4 B. 468; Hollinrake v. Lister, 1 Russ. 506; see Scarlett v. Lord Abinger, 34 B. 338 ; Ledward v. Hassels, 2 K. & J. 370.
A legacy given on condition of conveying real estate to a third person gives a legatee who has conveyed no lien upon the land for the legacy. Barker v. Barker, 10 Eq.
438. Perform- As to the performance of conditions to take a particular conditions. name, see a valuable note in Davidson's Prec., vol. iii. 356,
to which add D'Eyncourt v. Gregory, 1 Ch. D. 441.
As to conditions of residence, see Wynne v. Fletcher, 24 B. 430; Walcot v. Botfield, Kay, 534; Clavering v. Ellison, 7 H. L. 707, and cases there cited; Parry v. Roberts, 19 W. R. 378; Dunne v. Dunne, 3 Sm. & G. 22; 7 D. M. & G. 207.
Conditions repugnant to the estate previously given are
void. Restraints Thus, conditions in general restraint of alienation are upon alien.
bad, if absolute interests have been given in the first
place. Unlimited 1. Where there is a devise in fee, followed by an absolute restraint.
gage, are bad.
restraint upon alienation, the restraint is void for repugnancy. Litt. 222 b. sec. 630; Hood v. Oglander, 35 B. 525.
But a limited restriction upon alienation is good. Limited
Thus, a condition not to sell except to a certain class of persons is good. Litt. 223 a. sec. 361 ; Doe d. Gill v. Pearson, 6 East, 173 ; Re Macleay, 20 Eq. 186; see Ludlow v. Bunbury, 35 B. 36; Billing v. Welch, I. R. 6 C. L. 88.
But a condition not to sell except to one person is bad, since a person might be selected who would be certain not to purchase. Muschamp v. Bluett, Bridg. 137; Attwater V. Attwater, 18 B. 330.
In the same way, conditions restraining alienation by Alienation any particular form of conveyance, as by charge or mort- ticular
Willis v. Hiscos, 4 M. & Cr. 201; Ware form of v. Cann, 10 B. & Cr. 433.
Thus, a gift over of so much land as an absolute owner charges or incumbers would be bad. Willis v. Hiscox, supra.
Directions that the rents upon property devised are not Direction to be raised have been held invalid. A.-G. v. Catherine rents. Hall, Jac. 395; A.-G. v. Greenhill, 33 B. 193.
These rules apply to personalty, so that if an absolute Gift over interest is given, a gift over if the legatee disposes of his
alty on interest is void. Bradley v. Peixoto, 3 Ves. 324; In re
alienation. Jones's Will, 23 L. T. N. S. 211.
And a gift over upon alienation by a tenant for life with a power of disposition by deed or will is invalid. Re Wolstenholme; Marshall v. Aizlewood, 43 L. T. N. S. 752.
A restraint upon alienation limited in time not followed by a gift over is ineffectual. Renaud v. Tourangeau, L. R. 2 P. C. 4.
Possibly a gift over upon alienation before a certain Gift over
not to raise
on aliena- time not having reference to the period of possession tion before certain would be valid. See Large's Case, 2 Leon. 82; 2 Jarm. period.
17. Churchill v. Marks, 1 Coll. 445; see Kiallmark v.
Kiullmark, 26 L. J. Ch. 1. Gift over
It is however clear that absolute interests may be given on alienation before over upon alienation before the period of possession. period of Kearsley v. Woodcock, 3 Ha. 185; Re Payne, 25 B. 556 ; tion. Pearson v. Dolman, 3 Eq. 315. Gift over
2. A gift over, if the devisee or legatee does not dispose if legatee of his interest or dies intestate, is void both as regards tate.
realty and personalty. Holmes v. Godson, 2 Jur. N. S. 383 ; 25 L. J. Ch. 317 ; Barton v. Barton, 3 K. & J. 512; Lightbourne v. Gill, 3 B. P. C. 250; Re Mortlock's Trusts, 3 K. & J. 456; Re Yalden, 1 D. M. & G. 53; Watkins v. Williams, 3 Mac. & G. 622; Henderson v. Cross, 29 B. 216; Perry v. Merritt, 18 Eq. 152; In re Wilcocks's Settlement, 1 Ch. D. 229.
So a direction following a devise to tenants in common in fee that if no distribution should be made during the lives of the tenants in common the property should devolve to their children is invalid. Shaw v. Ford, 7 Ch. D. 669.
Such conditional gifts over are good according to Scotch law. Barstow v. Pattison, L. R. 1 H. L. Sc. 392.
It has been held that a gift over if the legatee does not dispose of his interest does not become valid by his death in the testator's lifetime. Hughes v. Ellis, 20 B. 193; Greated v. Greateil, 26 B. 621; but these cases were doubted in In re Stringer's Estate; Shaw v. Jones Ford, 6 Ch. D. 1.
3. A gift over in the event of a previous gift being void at law or in equity is good. De Themmines v. De Bonneval, 5 Russ. 288.
4. A tenant in tail cannot by condition subsequent be prevented from barring his estate tail. Dawkins v. Lord Penrhyn, 4 App. C. 51.
to cease as
A condition intended to determine an estate tail in part Condition
determin. only, for instance, a clause directing that the interests of ing an tenants in tail shall cease as concerns the rights and in- estate tail
in part. terests of the person making default, but not farther or otherwise, is void. Seymour v. Vernon, 10 Jur. N. S. 487 ; 12 W. R. 729.
A condition in certain events determining estates tail, Estate tail as if the tenant in tail were dead, will be made good by if the tensupplying the words dead without issue. Astley v. Earl ant in tail
were dead. of Essex, 18 Eq. 290. But, if an absolute interest has been given, such a con- Absolute
interest dition will be ineffectual, since the legatee's interest would directed to not determine with his death, and, therefore, the interest cease as if directed to cease is not the exact interest previously given. were dead. Bird v. Johnson, 18 Jur. 976; Catt's Trusts, 2 H. & M. 46 ; 33 L. J. Ch. 495. 5. So, too, when vested interests have once been given, Conditions
postponing restrictions postponing the enjoyment of the property be- enjoyment yond the age of twenty-one are void, unless the property is beyond 21. otherwise disposed of in the meantime. Saunders v. Vartier, Cr. & Ph. 240; Rocke v. Rocke, 9 B. 66; Re Young's Settlement, 18 B. 199; Gosling v. Gosling, Johns. 265.
6. In the same way life interests must, as long as they Life inlast, be subject to the ordinary legal incidents attaching be subject to property. A person cannot, for instance, be left in the to the enjoyment of property and at the same time exempted ruptcy from the operation of the Bankruptcy Laws. Brandon v. Robinson, 18 Ves. 429; Graves v. Dolphin, 1 Sim. 66.
A mere trust for maintenance during the life of a person Whether a at the discretion of trustees, without giving him any
maintenterest in the subject-matter of the bequest, has been held ance passes not to pass to his assignees upon bankruptcy: Twopenny creditors of
a bankrupt. v. Peyton, 10 Sim. 487; Godden v. Crowhurst, 10 Sim. 642, a very doubtful case. But the better opinion appears now to be, that though the discretion might not be inter
fered with, so much as the trustees think fit to apply for the benefit of the bankrupt would pass to his creditors. See Coe's Trust, 4 K. & J. 199.
If a life interest is given in the first instance, a clause directing the income to be applied towards the maintenance of the legatee after his bankruptcy will not prevent the interest from passing to the assignee. Younghusband v. Gisborne, 1 Coll. 401.
A discretion to trustees to pay or not to pay the income to the legatee for life determines on the bankruptcy of the legatee, unless the trustees are directed to withhold and accumulate the income, and the accumulations are given over. Snowdon v. Dales, 6 Sim. 524; Piercy v.
Roberts, 1 M. & K. 4. Life in
But although life interests are expressly given, they be deter- can be determined by a conditional limitation over upon mined on
bankruptcy or alienation by the legatee. Rochford v. ruptcy. Hackman, 9 Ha. 475; Brooke v. Pearson, 5 Jur. N. S.
781 ; Knight v. Browne, 7 Jur. N. S. 894 ; 30 L. J. Ch. 649.
And a proviso for cesser of the life interest is sufficient without a limitation over. Dommett v. Bedford, 6 T. R.
684; Joel v. Mills, 3 K. & J. 458. The dis. It appears to be indifferent whether the original gift is tinction between con. only till bankruptcy, or whether it is a life interest with a dition and conditional determination upon bankruptcy. limitation is imma- A gift over upon alienation takes effect if the legatee terial.
alienates, though he may not have been aware of the condition. Carter v. Carter, 3 K. & J. 617.
A direction that the receipt of an annuitant shall be the only discharge which the executor shall be bound to accept, and that the annuitant may be required to attend to give receipts, does not prevent the annuitant from as
signing. Arden v. Goodacre, 11 C. B. 883. Effect of When the life interest is given over upon bankruptcy gift over for main for the maintenance of the bankrupt and his family, half