annuity; for the first payment was not to be until six months after the testator's decease, and she might as well release her right in six months, as at any future time. Besides, the penning of the clause afforded another very strong argument that this was intended to be a condition precedent; for all the words were in the present tense. The testator willed that this annuity be accepted in satisfaction and upon condition that "she release," which is just the same as if he had said, "I give her the annuity, she releasing," which expression had been always holden to make a condition precedent, as appeared from Large v. Cheshire (h), where a man agreed to pay J. S., 50l., he making plain a good estate in certain lands. Again, in Randall v. Payne (i), where a testator, after giving certain legacies to J. and M., added, "If either of these Other cases of girls should marry into the families of G. or R., and conditions precedent. have a son, I give all my estate to him for life (with remainder over); and if they shall not marry," then he gave the same to other persons. * Lord Thurlow held this to be a [*844] condition precedent; and that nothing vested in the devisees over while the performance of the condition by J. or M. was possible, which was during their whole lives (k); and that their having married into other families did not preclude the possibility of their performing the condition, as they might survive their first husbands. So in Lester v. Garland (1), where L. by his will bequeathed the residue of his personal estate to trustees, upon trust that, in case his sister S. P. should not intermarry with A. before all or any of the shares thereafter given to her children should become payable; and in case his sister should, within six calendar months after his decease, give such security as his trustees should approve of that she would not intermarry with A.; or, in case she should so marry after all or any of the shares bequeathed to her children should be paid to him, her, or them, that she would, within six calendar months after such marriage, pay the amount, or cause such child or children who should have received his, her, or their share or shares, to refund; then and not otherwise, the trustees were directed to pay such residuary estate to the eight children of S. P. at the age of twenty-one or marriage, with benefit of survivorship; and the testator provided, that in case his said sister should intermarry with A. before all or any of the shares should be payable, or should refuse to give such security as aforesaid, then he directed 1,000l. a-piece only to be paid to the children; and subject thereto, gave his residuary Computation estate to the children of another sister. It was agreed of time. (h) 1 Vent. 147. (i) 1 B. C. C. 55. (k) As to this, see Page v. Hayward, 2 Salk. 571, stated infra, p. 846; Lowe v. Manners, 5 B. & Ald. 917: Davis v. Angel, 4 D. F. & J. 524. () 15 Ves. 248, Period allowed for performing condition held to be exclusive of the day of testator's that this was a condition precedent; and Sir W. Grant, M. R., considered that the computation of the six months was inclusive or exclusive of the day of the testator's decease, as the legatee could not reasonably be supposed to have any opportunity of beginning, on the day of L.'s death, the deliberation which was to govern the election ultimately to be made (m). death. So in Ellis v. Ellis (n), where a testator bequeathed to his granddaughter, "if she be unmarried, and does not marry without [*845] the consent of my trustees," the sum of 4007.; one moiety to be paid upon her marriage, if her marriage should be made with consent, and the other in one year afterwards; but if she were then married, or should marry without such consent, then the 400l. to "sink in the personal fortune." Lord Redesdale was of opinion that marriage was a condition precedent, and that the legacy was wholly contingent until that event.1 Cases of conditions subsequent. One of the earliest examples of a condition subsequent in wills is afforded by Woodcock v. Woodcock (0), where W. devised a leasehold house to J. for her life; and if she died before S. then that S. should have it upon such reasonable composition as should be thought fit by his overseers (i. e., his executors), allowing to his other executors such reasonable rates as should be thought meet by his overseers. It was agreed by the Court that this condition was subsequent, as the overseers might make agreement with him at any time.2 (m) See also Gorst v. Lowndes, 11 Sim, 434. (n) 1 Sch. & Lef. 1. Cf. Wheeler v. Bingham, 3 Atk. 364. See further as to conditions precedent, Fry v. Porter, 1 Ch. Cas. 138; Semphill v. Bayly, Pre. Ch. 562; Pulling v. Reddy, Wils. 21; Elton v. Elton, id. 159; Garbut v. Hilton, 1 Atk. 381; Reynish v. Martin, 3 Atk. 330; Long v. Dennis, 4 Burr. 2052; Stackpole v. Beaumont, 3 Ves. 89, s. c. 3 R. R. 52; Latimer's case, Dyer, 596; Atkins v. Hiccocks, 1 Atk. 500; Morgan v. Morgan, 15 Jur. 319, 20 L. J. Ch. 109. (0) Cro. El. 795. 1 The following cases contain examples of conditions precedent: Nevins v. Gourley, 97 Ill. 365; s. c. 95 Ill. 206; Marston v. Marston, 47 Maine, 495; Minot v. Prescott, 14 Mass. 495; Caw v. Robertson, 1 Seld. 125; Ely v. Ely, 20 N. J. Eq. 43; Reynolds v. Denman, id. 218 Campbell v. McDonald, 10 Watts, 179; Maddox v. Price, 17 Md. 413; Isaac v. West, 6 Rand. 652; Vaughan v. Vaughan, 30 Ala. 329; Davis v. Angel, 31 Beav. 228. 2 When a condition subsequent is followed by a gift over upon non-performance or other breach, it becomes a conditional limitation. 4 Kent, Com. 126. See Brattle Square Church v. Grant, 3 Gray, 142; Woodward v. Walling, 31 Iowa, 533; Hanna's Appeal, 31 Penn. St. 53; Fox v. Phelps, 20 Wend. 437. The practical difference following the estate is that the mere condition does not defeat the estate until entry by the party entitled upon the breach, i. e., the heir in the case of a will; while in the case of a limitation over upon the breach, the limitation itself, in the absence of a different intention, defeats the prior conditional estate, as soon as the breach occurs. 4 Kent, Com. 126. Again, at common law only the heir in the case of a will can take advantage of a breach of condition (id. Hooper Cummings, 45 Maine, 359; Bangor v. Warren, 34 Maine, 324); while, of course, a stranger can have the benefit (without entry) of a conditional limitation. Id. See But even a condition may, it seems, be such that a breach will alone, without entry, operate to defeat the estate, where the intention of the testator is sufficiently clear to that effect. See Woodward v. Walling, supra. In the absence of evidence of such an intention, a provision for the benefit of A. to be carried out by B., a devisee, is regarded as creating a trust or charge upon the land in his favor, rather than a limitation upon the estate devised. Id. Fox v. Phelps, 17 Wend. 393; So, in Popham v. Bampfield (p), where one R. devised real estate to trustees for payment of debts, and, after his debts paid, then in trust for A. and his heirs male; but declared that A. should have no benefit of this devise, unless his father should settle upon him a (p) 1 Vern. 79, 1 Eq. Ca. Ab. 108, pl. 2. 8. c 20 Wend. 437; Woods v. Woods, 1 Busb. 290; Taft v Morse, 4 Met. 523; Hanna's Appeal, 31 Penn. St. 53; Luckett v. White, 10 Gill & J. 480; Sands v. Champlin, 1 Story, 376; Ward v. Ward, 15 Pick. 511; Sheldon . Purple, id. 528; Veasey v. Whitehouse, 10 N. H. 409, Jennings v. Jennings, 27 III. 518. See also Meakin v. Duvall, 43 Md. 372; Donnelly v. Edel n, 40 Md. 117. Indeed, a provision imposing a burden upon the devisee B. in favor of A., such, for example, as that B shall pay over to A. a certain portion of the valued amount of the property given him, or merely a certain sum "out of the estate," is treated as amounting only to a charge upon the estate, and not as a condition The breach of which will give the heir a right of entry. Fox v. Phelps, supra; Taft v. Morse, supra. One of the consequences of this is, that the person for whom the burden is created has a remedy to enforce performance both against the devisee or legatee (Livingston v. Gordon, 84 N. Y. 136, vol. i. p. 390, note), and also against all terre-tenants who have purchased the estate with notice of the charge. Taft v. Morse, supra. (A mere charge is not a legal interest in the land and hence, it is said, subsequent holders of the estate would not be liable without notice. Id. Nothing is said, however, of the need of notice to the purchaser in Meakin v. Duvall, 43 Md. 372, or in Donnelly v. Edelen, 40 Md. 117. The record of the will is sufficient notice.) What makes the requirement a charge in such a case, instead of a condition, is that the payment is to be made "out of the estate" devised. Taft v. Morse, supra; Gardner v. Gardner, 3 Mason, 178; s. c. 12 Wheat. 498. The intention of the testator in such a case is deemed to be to provide a security for the payment, but a security only, for nothing more is required. Where, however, the testator has not provided a security for compelling the perform ance of the requirement, then to prevent a failure of his purpose it will be held that the provision amounts to a condition; thus giving a right of entry to the heir upon a breach. Taft v. Morse, supra. It is with this qualification that the rule is to be understood that if a man devise land to another ad faciendum or ea intentione that he should do a particular thing, or ad solvendum, this makes a good condition. Coke Litt. 204, 236; Crickmere's Case, Croke Eliz. 146; s. c. 1 Leon. 174; Boraston's Case, 3 Coke, 20; Portington's Case, 10 Coke, 41; Taft v. Morse, supra. If the heir should refuse to enter, the remedy, it seems, would be against the devisee personally (to compel payment), to be pursued, according to the more common practice, in equity. Eland v. Eland, 1 Beav. 235; s. c. 4 Mylne & C. 420; Taft v. Morse, supra; Swasey v. Little, 7 Pick. 296 ; Fox v. Phelps, 20 Wend. 437, 443; or by an action ex contractu; Gridley v. Gridley, 24 N. Y. 130; Spraker v. Van Alstyne, 18 Wend. 200; Taft v. Morse; Swasey v. Little. Or perhaps equity would decree a sale of the property to make payment. Fox v. Phelps, supra. The mere right, under the will, of an executor to sell upon beach by the devisee of the testator's requirement does not, it seems, make the devise technically an estate upon condition or a conditional limitation, if there be no direction that the estate shall vest in the heir or in the executor on default of the devisee. Hanna's Appeal, 31 Penn. St. 53. Indeed, the effect of the decision referred to is that such a right of sale, without further provision, is by implication inconsistent with a right of entry in the heir. Still, a right of that kind given the executor would no doubt suffice for the legatee in a case in which it was not, as to the legatee, virtually nullified, as it was in Hanna's Appeal, by other circumstances. See infra. The foregoing remarks suppose of course a gift of realty. In the case of a gift of personalty to one who is simply required by the testator to pay a certain sum of money to another, without making the payment a charge or providing for a forfeiture or other penalty upon refusal, the remedy of the intended beneficiary must be confined to proceedings against the donee in personam, since there is no subject-matter for an entry. But there is another aspect of this subject. It sometimes happens that a devise is charged with the payment of legacies, and that there is also left by the testator with his executor a sufficiency of personal assets to pay the legacies. Now it is laid down that the rule even in such a case is that the personalty must, in the absence of evidence of a different intention, be treated as the fund out of which the legacies are to be paid, and it is further held that though such fund be misappropriated by the executor, the disappointed legatee cannot look to the land charged. Hanna's Appeal, 31 Penn. St. 53. The charge upon the land, in this view, appears to be created by way of caution merely, against a possible deficiency of personal assets. But of course this rule will give way to any clear manifestation of intention at variance with it, whether by express language that the land devised is to be treated as the primary fund for satisfying the legacies, or by providing for a forfeiture or a gift over on non-payment. Id. See further as to charging legacies upon land, post. certain estate; and in default thereof, or if A. died without issue, then over. It was held that this was a condition subsequent, and was performed by the father devising his estate to the son. So, in Peyton v. Bury (q), where one bequeathed the residue of his personal estate to S., provided she married with the consent of A. and B., his executors in trust, and if S. should marry otherwise, he bequeathed the said residuum to W. A. died; after which S. married without the consent of B. The M. R. observed, it was very clear that, in the nature of the thing, and according to the intention of the testator, this could not be a condition precedent; for, at that rate, the right to the residue might not have vested in any person whatever for twenty or thirty years after the testator's death, since both of the executors might have lived, and S. have continued so long unmarried, during all which time the right to the residue could not be said to be (beneficially) in the executors, they being expressly mentioned to be but executors in trust (r). Of this case Sir W. Grant ob[*846] served, that the bequest over showed what the testator* meant by making marriage with consent a condition in the previous gift, namely, that marriage without consent was to be a forfeiture (s). The case seems somewhat analogous in principle to those (t) in which a devise or bequest, if the object shall attain a certain age, with a gift over in case he shall die under that age, has been held to be immediately vested. Cases of condition subsequent. Again, in Page v. Hayward (u), where a testator devised lands to M. and the heirs male of her body, upon condition that she married and had issue male by a Searle; and, in default of both conditions he devised the lands to E. in the same manner, with remainders over: it was held that M. and E. took estates tail, which did not determine by marrying another person, inasmuch as they might survive their first husband, and marry a Searle. In this case the limitation was, in effect, and seems to have been regarded by the Court, as a devise in special tail to M. and E. successively, i. e., to them, and the heirs male of their bodies, begotten by a Searle. So, in Aislabie v. Rice (x), where a testator devised certain lands and furniture to H. and her assigns for her life, in case she continued unmarried; and, after her decease, he devised the lands and furniture to such persons as she should by deed or will appoint, and, for want of appointment, then over; but in case H. should marry in the lifetime of the testator's wife, and with her consent, or, after her death, with the consent of A. and B. or the survivor, then H. should enjoy (7) 2 P. W. 626. See also Gulliver Ashby, 4 Burr. 1929, stated post, p. 848. () Nor would the intermediate beneficial interest have belonged to them if they had not. It would have gone in augmentation of the contingently disposed of residue. (s) Knight v. Cameron, 14 Ves. 392. (t) Ante, Vol. I., pp. 766, 767 (u) 2 Salk. 570. (x) 3 Mad. 256. the lands and furniture in the same manner as she would have done if she had continued unmarried. The testator's wife and A. and B. all died; after which H. married. She and her husband sold the property in question; and the purchaser objecting to the title, Sir W. Grant, M. R., sent a case to the Court of Common Pleas, on the question as to what estate H. took under the will. The Court certified that H. took an estate for life, with a power of appointment over the fee, subject, as to her life estate only, to the condition of her remaining sole and unmarried, which condition was qualified by the proviso, that a marriage with the consent of the persons mentioned should not determine her life estate; that the condition was a condition subsequent, and as the compliance with it was, by the deaths of those persons, become impossible by the act of God, her estate for life became absolute (y), and she might Sir J. Leach, V.-C., in conformity to this a specific performance of the contract. The Court must, in this case, have considered the limitation as being, in effect, a devise of an entire estate for life, subject to the condition of marryRemark on ing (if at all) with consent, which being rendered im- Aislabie v. practicable by the death of the persons whose consent was required, the estate became absolute; not (as the language would seem to imply) a devise of two distinct estates, the one to cease on marriage, under any circumstances, and the other to commence on marriage with consent. execute the power. [*847] certificate, decreed Rice. Of course, where an interest is given to certain persons, with a direction that, on a prescribed event, as their marriage without consent, it shall be forfeited, such a direction operates merely to divest, and not to prevent the vesting of the interest so given (z). So where a rent-charge was given to A. for life, or as long as her conduct was discreet and approved by B., it was held, that the gift was vested and that the condition was subsequent (a). And a condition may be subsequent though the estate or interest which it is to defeat is contingent, and can in no case vest before the condition takes effect; for a contingent gift or interest has an existence capable, as well as a vested interest or estate, of being made to cease and become void (b).1 (3) As to this, see infra, p. 850. (2) Lloyd v. Branton, 3 Mer. 108. (a) Wynne v. Wynne, 2 M. & Gr. 8. See Webb v. Grace, 2 Phill. 701. (b) Egerton v. Earl Brownlow, 4 H. L. Ca. 1. This case (which involved also a question of public policy) was decided by D. P., upon the advice of Lords Lyndhurst, Brougham, Truro, and St. Leonards, against the opinion of all but two of the Judges, and overruling the decision of Lord Cranworth, V.-C. (1 Sım. N. S. 464), who as L.-C. retained his original opinion. 1 The following cases may be referred to as containing examples of conditions subsequent Hooper v. Cummings, 45 Maine, 359; Thomas v. Record, 47 Maine, 500; Smith v. Jewett, 40 N. H. 530; Tilden v. Tilden, 13 Gray, 103; Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 306; Hogeboom v. Hall, 24 Wend. 146; Jones v. |