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Condition requiring a

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 Davison & Torrens, 17 Ir. Ch. 7.

Similarly, a condition requiring a release within 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.

Performance of

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.

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.

upon alienation.

REPUGNANT CONDITIONS.

Conditions repugnant to the estate previously given are

void.

Restraints Thus, conditions in general restraint of alienation are bad, if absolute interests have been given in the first place.

Unlimited restraint.

1. Where there is a devise in fee, followed by an absolute

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.

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.

Limited

restraint.

by par

In the same way, conditions restraining alienation by Alienation any particular form of conveyance, as by charge or mort- ticular gage, are bad. Willis v. Hiscox, 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.

convey.

ance.

not to raise

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 interest is given, a gift over if the legatee disposes of his interest is void. Bradley v. Peixoto, 3 Ves. 324; In re 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.

Gift over

of personalty on

alienation.

Possibly a gift over upon alienation before a certain Gift over

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. Kiallmark, 26 L. J. Ch. 1.

Gift over on aliena

It is however clear that absolute interests may be given tion before over upon alienation before the period of possession. period of Kearsley v. Woodcock, 3 Ha. 185; Re Payne, 25 B. 556;

distribu

tion.

Gift over if legatee dies intestate.

Pearson v. Dolman, 3 Eq. 315.

2. A gift over, if the devisee or legatee does not dispose of his interest or dies intestate, is void both as regards 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. Greated, 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.

determin

estate tail in part.

A condition intended to determine an estate tail in part Condition only, for instance, a clause directing that the interests of ing an tenants in tail shall cease as concerns the rights and interests of the person making default, but not farther or otherwise, is void. Seymour v. Vernon, 10 Jur. N. S. 487; 12 W. R. 729.

to cease as

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 of Essex, 18 Eq. 290.

were dead.

interest

the donee

But, if an absolute interest has been given, such a con- Absolute 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. Bird v. Johnson, 18 Jur. 976; Catt's Trusts, 2 H. & M. 46; 33 L. J. Ch. 495.

were dead.

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. Vautier, Cr. & Ph. 240; Rocke v. Rocke, 9 B. 66; Re Young's Settlement, 18 B. 199; Gosling v. Gosling, Johns. 265.

Brandon v.

terest must

bank

laws.

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. 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 in- 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

trust for

to the

Life in

terest may be determined on

bankruptcy.

The distinction be

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.

But although life interests are expressly given, they can be determined by a conditional limitation over upon bankruptcy or alienation by the legatee. Rochford v. 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.

It appears to be indifferent whether the original gift is tween con- only till bankruptcy, or whether it is a life interest with a dition and conditional determination upon bankruptcy.

limitation is immaterial.

Effect of

A gift over upon alienation takes effect if the legatee. 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 assigning. Arden v. Goodacre, 11 C. B. 883.

When the life interest is given over upon bankruptcy for main for the maintenance of the bankrupt and his family, half

gift over

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