CHAPTER XXXVII. CONDITIONS SUBSEQUENT. Chap. XXXVII. subsequent, In the case of conditions subsequent, if the condition is impossible, impolitic, or illegal, the gift remains, though there may be a gift over upon non-performance of the condition. Conditions Thomas v. Howell, 1 Salk. 170; Egerton v. Earl Brownlow, impossible, impolitic, or 4 H. L. 1; Wilkinson v. Wilkinson, 12 Eq. 604; Graydon V. illegal, are Hicks, 2 Atk. 16; Jones v. Suffolk, 1 B. C. C. 528; Collett V. Collett, 35 B. 312; Sutcliffe v. Richardson, 13 Eq. 606; Yates v. University of London, L. R. 7 H. L. 438; and see Wedgwood v. Denton, 12 Eq. 290. A condition must be so framed that it may be capable of ascertainment at any moment whether it has or has not taken effect. Thus, where a bequest of chattels to the owner of a title was followed by a direction that no person was to take an absolute interest till the expiration of twenty-one years after the death of all persons living at the testator's death and afterwards attaining the title, the direction was held void for uncertainty. In re Viscount Exmouth; Viscount Exmouth v. Praed, 23 Ch. D. 158. ineffectual whether there is a gift over or not. Condition requiring consent of several persons becomes A condition subsequent requiring the consent of several persons becomes impossible and is discharged by the death of all, or even of one of them, though in the latter case it would seem the condition is satisfied by the consent of the impossible by survivors. Peyton v. Bury, 2 P. W. 625; Grant v. Dyer, 2 Dow, 73; Jones v. Suffolk, 1 B. C. C. 528; Aislabie v. Rice, 3 Mad. 256; see Dawson v. Oliver Massey, 2 Ch. D. 753. death of some. Where the consent of guardians is required and the testator Consent of appoints no guardians, an application should be made to the guardians. Chap. XXXVII. Condition not performed through ignorance takes effect, unless the devisee is heir. Condition forfeiting a legacy if not claimed. What amounts to a claim. Court for the appointment of guardians, and the consent of a guardian appointed by the infant would not be sufficient. In re Brown's Will, 18 Ch. D. 61. So where the consent of parents or guardians is required and the parents are dead, guardians must be appointed to give their consent. Ib. A condition subsequent not performed owing to the ignorance of the legatee of its existence, nevertheless works a forfeiture, where the property is given over, whether in the case of personalty or of realty. Porter v. Fry, 1 Vent. 197; Carter v. Carter, 3 K. & J. 617; Hodges' Trusts, 16 Eq. 92; Astley v. Earl of Esser, 18 Eq. 290. But this does not apply, where the devisee is the heir who has a title independent of the will. Doe d. Kenrick v. Lord Beauclerk, 11 East, 667; Doe d. Taylor v. Crisp, 8 Ad. & E. 778; Murphy v. Lineham, I. R. 9 C. L. 123. So when there is a clause forfeiting a legacy, if not claimed within a given time, the forfeiture takes effect, if the legacy is not claimed, though the legatee received no notice of the legacy or of the death of the testator. Burgess v. Robinson, 3 Mer. 7; Tulk v. Houlditch, 1 V. & B. 248; Powell v. Rawle, 18 Eq. 243. It has been held that the filing of a bill for the administration of the estate before the time appointed is equivalent to a claim by the legatees, though they may not be parties to the suit. Tollner v. Marriott, 4 Sim. 19. But when the gift was to persons who should within a year establish their title as next of kin, an order made shortly after the testator's death on originating summons directing inquiries as to the persons entitled was held not to let in next of kin who made no claim within the year. In re Hartley; Stedman v. Dunster, 34 Ch. D. 742. As regards a condition to return to England and claim a legacy within a given time such a condition is not discharged by the death of the legatee within the time (a), nor by his embarcation for England when the ship is wrecked and the legatee drowned (b), but it is discharged by the lunacy of the legatee (c). Tulk v. Houlditch, 1 V. & B. 248 (a condition precedent, however) (a); Priestley v. Holgate, 3 K. & J. 286 (b) ; Chap. XXXVII. In re Bird; Bird v. Cross, 8 R. 326 (c). See, too, In re Arbib & Class, (1891) 1 Ch. 601. In the case of realty a valid condition subsequent is A condition effectual even where there is no gift over. Cooke v. Turner, 15 M. & W. 727; 14 Sim. 493; 15 Sim. 611; 16 Sim. 482; and see Eranturel v. Eranturel, L. R. 6 P. C. 1. In Cooke v. Turner there was a gift over, but the case seems to have been decided at common law independently of the gift over. And a condition subsequent may operate to destroy a contingent, as well as to divest a vested estate. Egerton v. Earl Brownlow, 4 H. L. 1. is effectual without a gift over in the case of realty. follows the With regard to personalty, a condition subsequent is Personalty effectual without a gift over, except as far as the rules of the rule as civil law have been adopted with regard to certain classes of modified by conditions, see post, p. 546. In re Dickson's Trust, 1 Sim. of in terrorem. N. S. 37; Craven v. Brady, 4 Eq. 209; 4 Ch. 296. As to what conditions are valid, it has been said that nothing can be made the subject of a condition in a will, which could not be made the subject of a contract or wager in life. See per the Lord Chief Baron, Egerton v. Earl Brownlow, 4 H. L. 1, p. 150. In that case a condition defeating an estate if Lord Alford, the tenant for life, should die without having acquired the title of Duke or Marquis of Bridgwater was held void. the doctrine Test of validity of a condition. husband and wife. A gift over in the event of a change of religion by the Change of religion. legatee is valid. Hodgson v. Halford, 11 Ch. D. 959. Conditions requiring the separation of husband and wife are Separation of invalid, for instance, conditions decreasing an annuity if the annuitant again lives with her husband, or increasing a legacy to a husband in the event of a separation from his wife. Bean v. Griffiths, 1 Jur. N. S. 1045; Cartwright v. Cartwright, 3 D. M. & G. 982; Wilkinson v. Wilkinson, 12 Eq. 604. A limitation to endure during the separation of husband and wife is wholly void. In re Moore; Trafford v. Maconochie, 39 Ch. D. 116. A condition not to dispute a will is valid in law if the will is unsuccessfully disputed, though it will not avail to make an Condition not to dispute a will. Chap. XXXVII. Computation of time. Condition subsequent in restraint of invalid disposition good. Cooke v. Turner, 15 M. & W. 727; Eranturel v. Eranturel, L. R. 6 P. C. 1; Stevenson v. Abingdon, 11 W. R. 935; see Warbrick v. Varley, 30 B. 347; Hope v. International Financial Society, 4 Ch. D. 327; Phillips v. Phillips, W. N. 1877, 260; Massy v. Rogers, 11 L. R. Ir. 409. On the other hand, a condition not to institute legal proceedings touching the estate and effects devised, is too general, and is bad. Rhodes v. Muswell Hill Land Co., 29 B. 561. A clause forfeiting an annuity if the annuitant should interfere or attempt to interfere in the management of the testator's estate is good, and takes effect if the annuitant brings an action against the trustees without reasonable cause. Adams v. Adams, 45 Ch. D. 426; (1892) 1 Ch. 369. A condition that trustees shall not pay over the shares of legatees without taking from them bonds, that they will not intermarry or illegally cohabit with certain persons, will not be enforced. Poole v. Bott, 11 Ha. 33. As to the rules for computing time, within which a condition is required to be performed, see Lester v. Garland, 15 Ves. 248; Miller v. Wheatley, 28 L. R. Ir. 144. CONDITIONS IN RESTRAINT OF MARRIAGE. A condition in restraint of marriage applies only to a lawful marriage. In re M'Laughlin, 1 L. R. Ir. 42. A condition subsequent in restraint of marriage, where the estates are for life or in fee, is, it seems, valid as regards good in realty, realty. Jones v. Jones, 1 Q. B. D. 279; Bellairs v. Bellairs, 18 Eq. 510. marriage is But not as regards an estate tail. Condition in restraint of marriage is void in per sonalty. But such a condition is void, if imposed upon a tenant in tail, as repugnant to the estate. Earl of Arundel's Case, 3 Dyer, 342b. It is clear that, in the case of personalty, a condition subsequent in general restraint of marriage is void, whether the condition forfeits or only reduces the gift. Morley v. Rennoldson, 2 Ha. 570; (1895) 1 Ch. 449; Re Bellamy ; Pickard v. Holroyd, 48 L. T. 212. And a condition in restraint of marriage, may be so restrictive as to be equivalent to a general restraint; for instance, if it prohibits marriage with any person not seised of an estate in fee of the clear yearly income of 500l. a year. Keilly v. Monck, 3 Ridg. P. C. 205. Chap. XXXVII. The same rule applies to a mixed fund arising from the Mixed fund. proceeds of sale of realty and pure personalty. Lloyd v. Lloyd, 2 Sim. N. S. 255; Bellairs v. Bellairs, 18 Eq. 510. It would seem that the rule applies to real and personal estate given together. Duddy v. Gresham, 2 L. R. Ir. 443. And it seems, that a legacy out of the proceeds of land directed by the testator to be converted would follow the same rule. See In re Hart's Trusts, 3 De G. & J. 195; Bellairs v. Bellairs, supra. On the other hand, a limitation to a person till marriage is good, the intention being to provide for the person while he remains unmarried, and not to prevent him from marrying. Potter v. Richards, 24 L. J. Ch. 488; Heath v. Lewis, 3 D. M. & G. 954; In re King's Trusts, 29 L. R. Ir. 401. In such a case if the legatee marries in the testator's lifetime, even with his consent, the gift does not take effect. Bullock v. Bennett, 7 D. M. & G. 283; Andrew v. Andrew, 1 Coll. 690; In re King's Trusts, 29 L. R. Ir. 401. But there may be enough to show that the marriage contemplated is a marriage after the testator's death, as in Cooper v. Cooper, 6 Ir. Ch. 217, where there was a gift to a lady till marriage, and the testator then married the lady and republished his will by a codicil. Conditions in partial restraint of marriage are valid, both with regard to realty and personalty, though with regard to the latter the further question arises whether they are in terrorem or not. Thus, conditions restraining a widow or widower, whether of the person making the will or of a stranger, from marrying again: Evans v. Rosser, 2 H. & M. 190; Newton v. Marsden, 2 J. & H. 356; Allen v. Jackson, 1 Ch. D. 399; or requiring a marriage with consent: Sutton v. Jewks, 2 Ch. Rep. 95; or restraining marriage before a certain age: Stackpole v. Beaumont, 3 Ves. 89, are good as conditions, though they T.W. N N Legacy out of proceeds of sale of land. Limitation ill marriage is good. Conditions in partial restraint of marriage are good though they may be ineffectual. |