Conditional

legacy:

definition.

have been variously construed and enforced in the United States as a personal charge and liability thrown upon the legatee or devisee-as a charge upon the land or thing devised-and finally as a condition, by non-performance of which the estate of the legatee or devisee is divested. The last of these constructions appears to have been adopted by the courts only as a last resort. In all cases where payment is to be made or support to be provided by the legatee or devisee, whether it be made expressly a condition of the gift or not, the acceptance of the gift creates a personal liability for the payment, support, &c., which will be enforced both by courts of law and of equity, e. g., at law as an implied covenant. Armstrong v. Armstrong, 4 Baxt. 357. So, in equity, in Fox v.

Phelps, 17 Wend. 393, the will "required" the devisee to pay a certain legacy. This was held not to be a condition, but a personal charge upon the devisee, and enforceable as an equitable mortgage against the land devised. So, in Gridley v. Gridley, 24 N. Y 130; Spraker v. Van Alstine, 18 Wend. 200; Mahar v. O'Hara, 4 Gilm. 424; Sands v. Champlin, 1 Story C. C. 376. In these cases a direction that the devisee should pay a debt or legacy was enforced against the devisee as a personal liability arising from acceptance of the devise; and in Lord v. Lord, 22 Conn. 575, a legacy, with direction that legatee pay debts, drew after it the same liability. In the following cases personal liability was implied and enforced from gift" upon condition" that donee pay : Horning v. Wiederspalen, 1 Stew. (N. J.) 387; Wheeler v. Lester, 1 Bradf. 293; Sanders v. Sanders, 3 Bibb 286.

In Birdsall v. Hewlett, 1 Paige 32, a devise, "provided" devisee paid certain legacies, was construed to be a condition with a charge of the legacies upon the land devised, and a personal liability of the devisee if he accepted the devise. See also Sheldon v. Purple, 15 Pick. 528, where the testator devised his whole estate to A., and "required"

effect (e).

66

that B. be supported out of his estate. In Pickering v. Pickering, 6 N. H. 120, a legacy charged upon land was enforced by action against the devisee of the land personally. But a devise to A.," provided he pay " a certain legacy, has been held to be not a condition but a charge upon the land, in Woods v. Woods, Busb. L. 290; Hanna's Appeal, 31 Penn. St. 53; see too, Patterson v. Patterson, 63 N. C. 322; Casey v. Casey, 55 Vt. 518. So, a devise to A., "he paying" certain legacies, Tower's Appropriation, 9 Watts & S. 103; Luckett v. White, 10 Gill & J. 480; or by his paying out of my estate" certain legacies, Taft v. Morse, 4 Metc. 523; see also 12 Wheat. 498, and Gardner v. Gardner, 3 Mass. 178. So, a devise to A., "provided" he should provide a home for his sister, with no limitation over on breach, Woodward v. Walling, 31 Iowa 533; Meakin v. Duvall, 43 Md. 372; or with the support of testator's daughter charged on the devise, Veazey v. Whitehouse, 19 N. H. 409. So, a legacy with direction that the legatee maintain the testator during his life. Colwell v. Alger, 5 Gray 67.

In Rhett v. Mason, 18 Gratt. 541, however, a devise to testator's wife "for her maintenance and support and for the maintenance and support of our children," was held to constitute neither a charge nor a trust for the children; while in Jennings r. Jennings, 27 Ill. 518, a devise to sons if they support their mother, with right to immediate possession "if they comply with these conditions," was construed to be both a condition subsequent and a charge on the land. And a devise of land to five persons for the maintenance and sup

port of them all, the same to be divided when the youngest came of age, was held not to create a charge for the maintenance of one upon the undivided shares of the others. Crandall v. Hoysradt, 1 Sandf. Ch. 40.

Where property is devised to be appraised and taken at a valuation, it amounts to an option only, Wyckoff v. Wyckoff, 4 Dick. (N. J.) 344-no title passing to the devisee if he elects not to make the payment, Ditmas v. Baas, 21 N. Y. Supp. 201; or to a charge on the land, Lancaster Bank Appeal, 127 Pa. St. 214. And personal property so bequeathed goes to the executors who are chargeable with it until so taken by the legatee. of Pollock, 3 Redf. 100.

Matter

In the following cases the words in the will requiring payment, support, maintenance, &c., by the donee, have been held to create a condition:

1st. Condition precedent. Devise to A. 'on payment" by him of a certain legacy, West v. Biscoe, 6 Harr. & J. 468; Estate of Broad, Myrick Prob. 188;

'he paying," Bradstreet v. Clark, 21 Pick. 389; or if he shall pay, Garland v. Garland, 73 Me. 97; Buswell v. Eaton, 76 Me. 392; legacy to A. "on condition" of payment, Beall v. Deale, 7 Gill & J. 216; "if he first execute mortgage to secure legacies," Laurens v. Lucas, 6 Rich. Eq. 217; or pay a note made by testator as surety for him, Thomas v. Northcross, 11 Lea 345; so, an annuity to A. "to bring up B., to whose care I commit her, and at the child's death to the said A.," Pitt r. Pitt, 26 L. T. R. (N. S. 1872) 827.

2nd. Condition subsequent. Devise to A. " on condition" that he pay legacy

unconditionally one year after her death. So, a legacy to testator's widow for life with remainder to his son A. "by him seeing to her." McNeely v. McNeely, 82 N. C. 183.

And so, in general, such expressions as in case of a sudden and unexpected death, &c., I give," Skipwith v. Cabell, 19 Gratt. 758; or "should any accident happen to me that I die from home," Likefield. Likefield, 82 Ky. 589; such words being merely intended to show what induced the testator to make the will or the provision in question, McCarty e. Fish, 87 Mich. 48. But in a devise to A. in these words, "I clearly will that my wife shall have all my property to do with as she pleases, as this is only intended in case we should die while gone," republished by codicil after returning from the contemplated journey, a condition is implied that the wife should not survive testator, and on her surviving him the devise to A. fails. Urey v. Urey, 86 Ky. 354.

Conditional limitations. "Where words of condition are used in connection with a devise, and there is another or subsequent devise of the same premises, on the failure of the first or preceding devise the words of condition are not strictly considered as such, or rather have not the force and effect of condition, and are called words of limitation." Ewing, C. J., in Den v. Hance, 6 Halst. 244. In this case a devise over in case the first devisee should refuse to execute a certain deed and release was held to be a limitation taking immediate effect on the refusal. "If the condition subsequent be followed by a limitation over to a third person in case the condition be not fulfilled, or,

there be a breach of it, that is termed a conditional limitation. Words of limitation mark the period which is to determine the estate, but words of condition render the estate liable to be defeated in the intermediate time if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation." 4 Kent Com. 121; Fearne on Rem. 10; 2 Redfield on Wills 296; 2 Washburn on Real Prop. 21; Taylor v. Wendel, 4 Bradf. 324; Flood on Wills 448. In this latter work the distinction in creating words also is noted thus: "The use of the following words in a will or deed make a condition: upon condition; provided always; so that; that if it happen; and the following words, if used in a will, will create a condition, though not if they occurred in a deed: that he shall do; on his doing; with that intention; to the effect; for the purpose. Proper words of limitation are: while; so long as; until; provided that; so that; as long as; wheresoever; as far as; up to; so long. We thus see that while acts generally form the essence of a condition, time generally forms that of a limitation." In Fox v. Phelps, 20 Wend. 437, Chancellor Walworth makes this distinction: "Where there is a devise upon a condition, and the estate is devised over to a stranger upon the breach or non-performance of the condition, that condition is usually construed to be a limitation." See also 1 Roper on Legacies 750; Newell v. Nichols, 75 N. Y. 78; Magee v. O'Neil, 19 S. C. 170.

26. It is a valid condition precedent to require reform of bad habits. Dustan

v. Dustan, 1 Paige 509. But if the beneficiary dies unreformed within the time fixed for his reformation, an absolute gift to him payable on such reform with no limitation over will go to his next of kin. Burnham v. Burnham, 79 Wis. 557.

27. "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 favor of construing it as a condition subsequent. On the other hand, a condition which involves anything in the nature of consideration is in general a condition precedent." Theobald on Wills, p. 263. Chief Justice Marshall, in Finlay v. King, 3 Pet. 346, lays down the rule with his usual clearness and force in these words: "It is certainly well settled that there are no technical appropriate words which always determine whether a devise be on a condition

precedent or subsequent. The same words have been determined differently and the question is always a question of intention. If the language of the particular clause or of the whole Will shows that the act on which the estate depends must be performed before the estate can vest, the condition is of course precedent; and unless it be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole Will, the condition is subsequent." It is in all cases a question of intention,

sequent :

and not of phrase or form. 4 Kent Com. 124; Flood on Wills 449; 2 Redf. on Wills 283; 2 Washb. on Real Prop. 8; Nicoll v. Erie Railway, 2 Kern. 121; Underhill v. Saratoga R. R., 20 Barb. 455; Barruso v. Madan, 2 Johns. 145; Parmelee v. Oswego &c. R. R., 6 N. Y. 74; Tompkins v. Elliott, 5 Wend. 496 ; Robbins v. Gleason, 47 Me. 259; Burnett v. Strong, 26 Miss. 116; Ward v. New England Screw Co., 1 Cliff. C. C. 565; Cresswell v. Lawson, 7 Gill & J. 240; Stark v. Smiley, 25 Me. 201; Haydon v. Stoughton, 5 Pick. 528; Cheairs. v. Smith, 37 Miss. 646; Jackson v. Kip, 3 Halst. 241; Bowman v. Long, 23 Ga. 247.

Precedent conditions. The following have been held to be valid precedent conditions: if he lives three years, with limitation over if he dies within that time, Buck v. Paine, 75 Me. 582; if he attains the age of twenty-one years, Jones v. Leeman, 69 Me. 489; Kelso v. Cuming, 1 Redf. 392; Bowman v. Long, 23 Ga. 247 (it being sufficient if he does so before testator's death, Eisner v. Koehler, 1 Dem. 277); or although twenty-one and has in the meantime learned a trade and is of good moral character, to be determined by executor, Webster . Morris, 66 Wis. 366; or "shall be desirous and capable of entering into business for himself," Estate of Davidson, 17 Phila. 424; or if he withdraws from the Roman Catholic priesthood, Barnum v. Baltimore, 62 Md. 275; Kenyon v. See, 94 N. Y. 363; S. C. 29 Hun 212; or releases testator's note held by him. Howard v. Wheatley, 15 Lea 607; or survives testator, Gibson v. Seymour, 102 Ind. 485; or if he aid in the defense of a certain suit to