(c) See Ch. XXVI.

gift made upon agreement with the donee for the performance of certain acts during the testator's lifetime might properly be made, and that failure to perform the agreement might disentitle the donee to the bounty. Burleyson v. Whitley, 97 N. C. 295 (citing Lefler v. Rowland, Phil. Eq. 143). See Martin v. Martin, 131 Mass. 547. So, too, if a condition of similar import were brought by the testator to the notice of the beneficiary, it would seem that the same should be valid. But as such a condition would be unusual, it would devolve upon the party seeking to take advantage of it to show the notice. Clearly the donee would not be bound in the first instance (i.e., before evidence of notice) to prove performance of the condition Colwell v. Alger, supra. Of course a testator may in his will provide that a gift shall be conditional, or fail of taking effect, upon some act to be performed by himself personally. Such a provision would not amount to a reservation of a right to alter or revoke the will by an unattested paper (a subject spoken of in Vol. I., p. 98, note). Langdon v. Astor, 16 N. Y. 9, 26. See Yates v. University College, L. R., 7 H. L. 438; s. c. L. R., 8 Ch. 454.

But the mere expression of an intention in the testator to do some act personally (or indeed to have some one else do an act) does not necessarily amount to a condition. L. R., 7 H. L. 438, 444, Lord Cairns. Whether or not a condition has been prescribed is generally (an exception will be mentioned presently), in the absence of unmistakable language, matter of construction to be applied for ascertaining the intention. Id. See Martin v. Martin, 131 Mass. 547. Indeed, it has recently been laid down that to an estate already clearly given, it is not possible to annex a condition from words which are capable of being interpreted as mere description of what must occur before the estate given can arise. Edgeworth v. Edgeworth, L. R., 4 H. L. 35, 41, Lord Westbury.

Description of itself clearly cannot in general amount to condition. Thus, it has been held that a gift to "one of the executors of

The

this my will" cannot be treated as conditional upon the donee's accepting the position of executor. In re Denby, 3 De G. F. & J. 350. Secus, where it is left to the executor "for his trouble as such. Lewis v. Matthews, L. R., 8 Eq. 277; Slaney v. Watney, L. R., 2 Eq. 418; Morris v. Kent, 2 Edw. 174. statement, however, of the Vice-Chancellor in Lewis v. Mathews, and the similar one in Jervis v. Lawrence, L. R., 8 Eq. 345, and in other cases infra, that a legacy given to an executor, and nothing more, is presumed to have been given in respect of his office, so as to be conditional upon his acceptance, appears to be opposed to the express decision of the Lords Justices in In re Denby, supra; a case not noticed either in Lewis v. Mathews or in Jervis v. Lawrence. Statements in other cases, like that in Lewis v. Mathews, were quoted with approval in Kirkland v. Narramore, 105 Mass. 31, where the gift was to a trustee. But the terms of the will there clearly implied a gift to the trustee in office.

It must be admitted, however, that the language of the cases generally supports the proposition fully that a gift to an executor (or perhaps to a testamentary trustee), whether by such designation or not, is presumptively a gift to the party in office; . e., it is conditional upon his acceptance of the position. See Rothmahler v. Cohen, 4 Desaus. 215; Billingslea v. Moore, 14 Ga. 370; Abbot v. Massie, 3 Ves. Jr. 148; Read v. Devaynes, 3 Brown, Ch. 95; Calvert v. Sebbon, 4 Beav. 222; Stackpoole v. Howell, 13 Ves. 417; Hawkins's Trust, 33 Beav. 570; Angermann v. Ford, 29 Beav. 349; In re Reeve's Trusts, 4 Ch. D. 841; s. c. 46 L. J. Ch. 412. Still, where the testator's purpose is not expressly declared, the question is often even here one of construction, and, as the cases supra show, it may be decided upon slight indications of intention. See e. g., Bubb v. Yelverton, L. R., 13 Eq. 131; In re Reeve's Trusts, supra; Brand v. Chaddock, 19 Week. R. 378, Stuart, V.-C.; Gadbury v. Sheppard. 27 Miss. 203. But if the Court cannot decide, the gift fails, according to these cases.

Clearly there can be no presumptive con

dition in the case of a gift to a person under an office or a designation named that he shall assume the same, unless the testator is at least shown to have been interested in having the donee assume it; for there would be no motive for the condition. Parol evidence, it may be added, would doubtless be admissible in all such cases to aid in ascertaining the testator's intention. But though an estate be given in exp ess and apt terms, still if the gift be followed, or indeed if it be preceded, by clear words (not of mere description, but) of condition, the condition must stand if not repugnant to the estate. Edgeworth v. Edgeworth, supra, Lord Hatherley; Maddison v. Chapman, 4 Kay & J. 709,

Where the question is of the existence of a condition or not, and not between a condition and something else, such as a charge, the language of the will is not construed as conditional unless it is clear that the testator in tended that the gift should operate or continue only in a certain event. Skipwith v. Cabell, 19 Gratt. 758, 782. If by reasonable interpretation the testator's language can be regarded as meaning that he referred to the contingent event as the reason merely for making the will, then the gift is not conditional. In re Porter, L. R., 2 P. & D. 22, 24; In re Dobson, L. R., 1 P. & D. 88; In re Martin, id. 380; Skipwith v. Cabell, supra.

In the English cases just cited the question of the condition went to the existence of the whole will; but it was held in Skipwith v. Cabell, supra, that the doctrine declared in them, or rather in In re Dobson, was equally applicable to the case of a particular one of several gifts of a testator. In Skipwith v. Cabell the gift in question was thus expressed: "In case of a sudden and unexpected death, I give the remainder of my property." &c. The clause was construed as not creating a conditio al gift. Upon the subject of conditional wills, see, in addition to the cases above cited, Roberts v. Roberts, 2 Swab. & T. 337; In re Winn, id. 147; In re Thorne, 4 Swab & T. 36; Parsons v. Lanor, 1 Ves. Sen. 90; Strauss v. Schmidt, 3 Phillim. 209; Ingram v. Strong, 2 Phillim. 294; Burton v. Collingwood, 4 Hagg. 176; Jacks v. Henderson, 1 Desaus. 543; Damon v. Damon, 8 Allen, 192: Tarver v. Tarver, 9 Peters, 174; Bonner v. Young, 68 Ala. 35 (legacy for a particular purpose not conditional); Stewart r. Stewart, 5 Conn. 317; Pitkin v. Pitkin, 7 Conn. 315; Card v. Alexander, 48 Conn. 492 (gift to wife not conditional on her remaining such; divorce not avoiding it); Wagner v. McDonald, 2 Har. & J. 346; Likefield v. Likefield, 82 Ky. 539; Dougherty v. Dough

erty, 4 Met. (Ky.) 25: Maxwell v. Maxwell, 3 Met. (Ky.) 101: Augustus v. Seabolt, id. 155; Cowley v. Knapp, 42 N. J. 297; Burleyson v. Whitley, 97 N. C. 295; Morrow's Appeal, 116 Penn. St. 440 (citing Todd's Appeal, 2 Watts & S. 145); Ritter's Appeal, 59 Penn. St. 9: Frederick's Appeal, 52 Penn. St. 338; Ex parte Lindsay. 2 Bradf. 204; Thompson v. Connor, 3 Bradf. 366.

Within the above-stated rule that to constitute a condition it should be clear that the testator intended the gift to take effect or continue only in a certain event, the gift of property to a town "for the support of the Congregational minister, who shall exercise the duties of that office, where the meetinghouse now stands, forever," is not conditional. Brown v. Concord, 33 N. H. 285.

1 There is no distinction in the way of technical words between conditions precedent and conditions subsequent; the distinction is matter of construction, dependent upon the intention of the testator as manifested by the will. See 4 Kent, Com. 124; Finlay v. King, 3 Pet. 346. But if a condition may be performed instanter it is held precedent; while if time is required for performance, it is held subsequent. Tappan's Appeal, 52 Conn. 412. But these rules will yield to intention at variance with them.

The legal result of the distinction is in nothing more striking than in the fact (1) that equity cannot interfere to relieve from the consequence of a failure to perform a condition precedent (4 Kent, Com. 125), while nothing is more common than for that court, acting upon motives of conscience and justice, to grant relief when the unperformed condition is subsequent; and (2) that, according to recent authority, not even the consent of the testator himself who has imposed the precedent condition can dispense with it without remodelling the devise or legacy, while the contrary is true of a subsequent condition. Davis v. Angel, 31 Beav. 223, 226, Sir John Romilly, M. R.; affirmed on appeal, 4 De G. F. & J. 524, Lord Westbury. The case cited is a forcible illustration of this proposition. The condition of the gift was that the donee should marry A., otherwise over. The donee, with the testator's consent, married B., but it was held that the condition was not dispensed with. Westbury, however, conceded that the case would probably be different where a testator contemplating a future event (after his death) should merely give certain directions concerning, e. g., the marriage of A., and then A. should marry in the testator's lifetime with his consent.

Lord