CHAPTER XXXV. CONDITIONS PRECEDENT-VESTING. CONDITIONS DISTINGUISHED. 1. THE Court is never astute to construe a testator's words Chap. XXXV. as importing a condition if a different meaning can be fairly given to them. Young v. 10 W. R. Thus, a devise " upon condition" that the devisee makes Condition and certain payments within a given time will, as a rule, be trust. construed as a trust, and not as a condition. Grove, 4 C. B. 668; Wright v. Wilkin, 9 W. R. 161; 403; see A.-G. v. War Chandlers, L. R. 6 H. L. 1; Merchant Taylors, 6 Ch. 512; and see Bird v. Harris, 9 Eq. 204; Foot v. Cunningham, I. R. 11 Eq. 306; Re Cowley; Sonch v. Cowley, 58 L. T. 494; Re Oliver; Newbald v. Beckitt, 62 L. T. 533. A.-G. v. limitation. 2. In some cases a condition apparently precedent has been Condition and read as forming part of the original limitation. Thus, a devise to M. and the heirs of her body, on condition that she marry and have issue male by S., was held to give an estate in special tail to M. Page v. Hayward, 2 Salk. 570. Similarly, an estate to arise upon a condition which cuts down a previous estate will, if possible, be construed as a remainder by looking upon the condition as forming part of the limitation of the previous estate. Thus, a devise to A. for life if she should not marry again, but if she should, to B., will be construed as a devise to A. for life or till marriage. Luxford v. Cheeke, 3 Lev. 125; Lady Ann Fry's Case, 1 Ventr. 203; Gordon v. Adolphus, 3 B. P. C. 306. Chap. XXXV. Devise for life subject to a proviso. Estate of trustees to preserve. General test of condition precedent. Condition So, too, if the gift for life is made "subject to the proviso hereinafter contained," the proviso is incorporated into the original limitation. Webb v. Grace, 2 Ph. 701. And a bequest to A. for life, if she should so long remain unmarried, will be construed in the same way. Heath v. Lewis, 3 D. M. & G. 954; In re Moore; Trafford v. Maconochie, 39 Ch. D. 116. On the other hand, if the condition is so penned that it cannot be connected with the previous limitation for life, it must take effect as a condition. Sheffield v. Lord Orrery, 3 Atk. 282; see Allen v. Jackson, 1 Ch. D. 399. In such a case, however, it may appear that the original estate was only meant to last till the condition takes effect, if, for instance, the rents are directed to be paid to a woman, which could only be done till her marriage, the estate not being given to her separate use. Meeds v. Wood, 19 B. 215. Upon the same principle, the ordinary limitation to trustees to preserve contingent remainders is a vested remainder, the prior estate being looked upon as lasting till forfeiture by the prior taker. Smith d. Dormer v. Parkhurst, 18 Viner, fol. 413; 7 Mad. 366; 3 Atk. 135; 4 B. P. C. 353; Fearne, C. R. 333. CHARACTERISTICS OF CONDITIONS PRECEDENT. Whether a condition is subsequent or precedent must depend on the language in which it is framed, and very little help can be derived from decided cases on the point. It may, however, be noticed, that when the condition requires something to be done, which will take time, the argument is in favour of construing it as a condition subsequent. Popham v. Bampfield, 1 Vern. 79; 1 Eq. Ab. 108, pl. 2; Peyton v. Bury, 2 P. W. 626 ; Duddy v. Gresham, 2 L. R. Ir. 443. On the other hand, a condition, which involves anything in the nature of consideration, is in general a condition precedent. Acherley v. Vernon, Willes, 153; In re Wellstead, 25 B. 612; Fitzgerald v. Ryan, (1899) 2 Ir. 637. If a devise be made to take effect only on performance of some particular duty by the devisee, or upon some particular impossible, event, there is no gift unless the condition is fulfilled. And precedent whether or illegal, it makes no difference that the event is impossible in its Chap. XXXV. creation, as to go to Rome in three days, or impolitic, or illegal. impolitic, See Co. Litt. 206b; Shep. Touchstone, p. 132; Egerton v. Earl Brownlow, 4 H. L. 1; Priestley v. Holgate, 3 K. & J. 286; Caldwell v. Cresswell, 6 Ch. 278. must be ful filled in the case of realty. In personalty condition But as regards personalty, a gift made upon a condition precedent involving a physical impossibility, such as to drink up precedent the ocean, takes effect, notwithstanding the condition. See involving a 1 Swin., Part IV., sec. 6, p. 257; Co. Litt. 206b. physical impossibility is invalid. charged by But if the condition precedent, though in fact impossible at the date of the will, or becoming impossible by subsequent events, involves no physical impossibility, the gift will not take effect. Lowther v. Cavendish, 1 Ed. 99, 116; 3 B. P. C. 186; Robinson v. Wheelwright, 21 B. 214; 6 D. M. & G. 535. As regards personalty, a condition precedent which becomes Condition disimpossible by the act of the testator is discharged; for instance, a gift of rents of leaseholds to A. if she should choose to reside at Battens when the testator sells Battens, or a gift to A. if he repays the debt he owes me, when the testator afterwards accepts a composition and releases the debt. Darley v. Langworthy, 3 B. P. C. 359; Gath v. Barton, 1 B. 478; Walker v. Walker, 2 D. F. & J. 255. testator. mores. It is said that as regards personalty a condition precedent Condition precedent which is contra bonos mores, for instance, a gift to A. if she contra bonos should live apart from her husband may be rejected, leaving the gift absolute, and there is some not very satisfactory authority in support of the proposition. Brown v. Peck, 1 Ed. 140; Wren v. Bradley, 2 De G. & S. 49. See 39 Ch. D. 116. On the other hand, a gift to A. if living with his wife, and if not, half to him and half to her, is valid. Shewell v. Dwarris, Jo. 172. A gift to A. if he does not marry under a certain age, or if he marries B., does not vest unless the condition is performed and the consent of the testator to a marriage under that age, or to a marriage with C., does not alter the case. Yonge v. Furse, 8 D. M. & G. 756; Davis v. Angel, 4 D. F. & J. 524. See Smith v. Cowdery, 2 S. & St. 358. Condition precedent as Chap. XXXV. Marriage with consent. Consent of the consent. Consent of testator to a marriage to take place after his death. Condition of marriage with consent is satisfied by With regard to a condition precedent requiring marriage with consent, it seems that the consent may be disregarded if there is no gift over. Reeves v. Herne, 5 Vin. Ab. 343, pl. 41; Reynish v. Martin, 3 Atk. 330; see Clarke v. Parker, 19 Ves. 1. But the consent only, and not the marriage, can be dispensed with; the legacy, therefore, will not vest till marriage. Garbut v. Hilton, 1 Atk. 381; Gray v. Gray, 23 L. R. Ir. 400. On the other hand, if there is a gift over, marriage without consent will not vest the legacy. Harry v. Aston, Com. 726; Malcolm v. O'Callaghan, 2 Mad. 349; revd. on other grounds, Coop. t. Brougham, 73; Gardiner v. Slater, 25 B. 509. And if the consent required is to a marriage under a certain age the condition must be complied with. Stackpole v. Beaumont, 3 Ves. 89; see Gray v. Gray, 23 L. R. Ir. 399. And the condition must also be complied with if the legatee is provided for as well in the case of marriage without as in the case of marriage with consent. Creagh v. Wilson, 2 Vern. 572; Gillett v. Wray, 1 P. W. 284; Holmes v. Lysaght, 2 B. P. C. 261; In re Nourse; Hampton v. Nourse, (1899) 1 Ch. 63. Where the condition is marriage with consent, whether precedent or subsequent, the consent of the testator to a marriage in his lifetime satisfies the condition. Clarke v. Berkeley, 2 Vern. 720; Parnell v. Lyon, 1 V. & B. 479; Wheeler v. Warner, 1 S. & St. 304; Tweedale v. Tweedale, 7 Ch. D. 633; see Violett v. Brookman, 5 W. R. 342. And the condition does not apply to a subsequent marriage. Hutcheson v. Hammond, 3 B. C. C. 128; Crommelin v. Crommelin, 3 Ves. 227. But in such a case the consent of a testator to a marriage to take place after his death does not obviate the necessity for the consent of the persons named in the will. Lowry v. Pattison, I. R. 8 Eq. 372. It seems, that where there is a gift upon marriage with consent, the legatee has her whole life to perform the condition and the legacy is not forfeited by a first marriage without marriage with consent. Randall v. Payne, 1 B. C. C. 55; Beaumont v. Squire, 17 Q. B. 905. Clifford v. Beaumont, 4 Russ. 325, was decided a second consent. on the ground, that the gift was only upon a marriage with Chap. XXXV. consent, which had not in fact been obtained. See, too, Duddy v. Gresham, 2 L. R. Ir. 443. But if other provision is made for the legatee in the event of marriage without consent, the condition must be limited to a first marriage. Lowe v. Manners, 5 B. & Ald. 917. requiring the consent of several per sons, how In the case of a condition requiring the consent of several Condition persons, if the consent required is that of executors or trustees, the consent of those who renounce or do not act is not necessary. Worthington v. Erans, 1 S. & St. 165; Boyce v. performed. Corbally, Ll. & G. t. Plunkett, 102; Ewens v. Addison, 4 Jur. N. S. 1034; White v. M'Dermot, I. R. 7 C. L. 1; see Clarke v. Parker, 19 Ves. 1. But if there is only a single executor who renounces, his consent must, it seems, be obtained. Graydon v. Hicks, 2 Atk. 16; but the case is doubtful. And a condition requiring the consent of several persons is performed by obtaining the consent of the survivors. Ewing v. Anderson, 7 W. R. 23; Dawson v. Oliver Massey, 2 Ch. D. 753. If the consent of guardians is required, guardians must be appointed if there are none. In re Brown's Trusts, 18 Ch. D. 61. consent. If the testator imposes his own consent to a marriage as a Testator's condition, this will, if possible upon the construction of the will, be limited to a marriage before his death. Booth v. Meyer, 38 L. T. 125; Curran v. Corbet, (1897) 1 Ir. 343. Daley v. Where the testator does not prescribe any formalities, it is VESTING OF REAL ESTATE. in favour of vesting. It has sometimes been said that the Court leans in favour Court leans of early vesting: see per Best, C.J., Duffield v. Duffield, 3 Bl. N. S. p. 331; 1 D. & C. 311. According to the modern doctrine, however, the Court has no leaning. It construes the will fairly, and gives effect to the intention expressed without any preconception as to what the testator ought to have or has |