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327*] *one of the co-heirs of Richard Barnes, no act of intention to defeat my will shall be deceased, and her children; and claims on ac- allowed of; and of their refusing to comply count of the profits of his estate, from the de. with the terms above mentioned, if any such fendant, J. T. M., also a co-heir, who claims person may be, then to the son of my late and holds possession of the estate, under the nephew, J. T. M., named A. T. M., on the will of the said Richard.
above-mentioned terms; and on his refusal, to Three instruments of writing, purporting to his brother, J. T. M.; and on his refusing to be the will of the testator, all of them properly comply with the above-mentioned terms, to the authenticated, were exhibited in the record. heirs male of my nephew, A. B. T. M., lawThe first, dated on the 31st day of October, in fully begotten, on the above mentioned terms; the year 1789, gives his whole estate, after pe- and on their refusal, to the male heirs of my cuniary legacies to his other nephews and niece, Mrs. Chichester, lawfully begotten, on niece, to the defendant, J. T. M.
their complying with the above-mentioned In the second will, which is dated the 16th terms; and their refusal, to the daughter of my day of July, 1800, the testator gives his whole nephew, J. T. M., named Mary; so on, to any real estate to J. T. M. during his life, and after daughter he may have, or has.” The testator his death to his eldest son, Abraham, in tail, on then appoints J. T. M. his sole executor, with condition of his changing his name to Abra- a salary of sixteen hundred dollars per year for ham Barnes, with remainder to the heirs of his his life; and adds, and that my will is, that nephew, J. T. M., lawfully begotten, forever, that he shall keep the whole of my property on their changing their surname to Barnes. *in his possession during his life.” The [*329
The third will is without date, but is proved, testator then empowers his executor to manage by its contents, to have been executed after the the estate at his discretion, to employ agents, others, probably in the year 1803. After some and to pay them such salaries as he shall ihink small bequests, the testator says: “I give the proper; to repair the houses, and to build whole of my property, after complying with others, as he may think necessary; to reside at what I have mentioned, to the male heirs of my his plantations, and to use their produce for his nephew, J. T. M., lawfully begotten, forever, support; and adds, “after which, to be the agreeable to the law of England, which was the property of the person that may have a right to law of our state before the revolution, that is, it, as above mentioned.” The testator also rethe oldest male heir to take all, on the follow- quires his executor to take an oath, “ that he ing terms: That the name of the one that may will justly account for the property that he may have the right, at the age of twenty-one, have the power of.”. with his consent, be changed to Abraham Richard Barnes died in April, 1804, and J. 328*) *Barnes, by an act of public authority T. M. proved three several paper writings, as of the state, without any name added; together his last will, and qualified as his executor. The with his taking an oath, before he has posses- testator had one brother, who died in his lifesion, before a magistrate of Saint Mary's time without issue, and one sister, who intercounty, and have it recorded in the office of married with Thompson Mason, and died also the clerk of the county, that he will not make in the life-time of the testator, leaving three any change during his life in this my will, rela- sons, H. T. M., A. B. T. M., and J. T. M., tive to my real property. And on his refusing and one daughter, A. T. M., one of the comto comply with the above-mentioned terms, to plainants, who intermarried with R. W. Chi. the next male heir on the above mentioned chester. The rights of the said A. T. Chichesterms; and so on, to all the male heirs of my ter are conveyed, by deed, to trustees, for the nephew, J. T. M., as may be, on the above benefit of herself and children. J. T. M. had terms; and all of them refusing to comply, in a no son living at the death of the testator, but reaaonable time after they have arrived at the has two after-born sons, who are now alive. age of twenty-one, say not exceeding twelve The Circuit Court dismissed the bill, and months, if in that time it can be done, so that the cause was brought by appeal to this court.
ing a present interest, in a will making no other dis- condition that the son should support the testator's position of the property, on a condition that may be daughters. Held, that the condition attached to performed at any time, the condition is subse- the estate, and that a brench would work a forfeitquent. Finley v. King, 3 Pet. 376.
ure, and vest the title in the testator's heirs. HogeWhere a testator devises his estate to his wife “to boom v. Hall, 24 Wend. 146. hold the same to her and her heirs forever, on con- Conditions precedent and subsequent differ condition, however, that my said wife shall sup- siderably in regard to the effect of events renderport and maintain in a comfortable and suitable ing the performance of them impracticable. ? manner my aged and infirm mother, should my Story, Eq., Jur., s. 1306; 1 Jarman on Wills (2 Am. mother survive me," the devise is upon a condition ed.), 677, iary. p.805. subsequent, and the estate is subject to forfeiture It is clear, that where a condition precedent befor neglect of performance. Marwick v. Andrews, comes impossible to be performed, even though 25 Me. 525.
there be no default or laches on the part of the devThe devisee becomes entitled to enter upon and isee himself, the devise fails. Ib.; Rounded v. enjoy the estate until forfeited; and no one can Cuner, 2 Bro. C. C. 67: S. C. 1 Wils. 159; Bertie v. take advantage of a breach of such condition, and Falkland, 3 Ch. Cas. 129 : 2 Vern. 310; 1 Eq. Ca. Abr. make an entry to create a forfeiture of the estate, 110, pl. 10; Wells v. Smith, 2 Edw. 78; 4 Kent (5th but an heir at law of the devisor. Ib.
ed.), 125. Where a devise of real estate is made on a con- On the other hand, it is clear, that if performance dition subsequent, and, after the devisee becomes of a condition subsequent be rendered impossible, lawfully seized, a breach of the condition happens, the estute to which it is annexed becomes by that the estate thereby passes to the residuary devisee, event, absolute. Thomas v. Howell, 1 Salk. 170; and not the heirs at law. And on the death of the Laughter's case, 5 Rep. 22; 2 P. Wms. 626 ; 2 Story. residuary devisee before condition broken, the es- Eq.
Jur., s. 1304, et seq; ; 4 Kent. (7th ed.) 124 to 127; tate passes to his heirs. Hayden v. Stoughton, 5 McLachlan v. McLachlan, 9 Paige, 534; Merrill v. Pick. 528 : Brigham v. Shattuck, 10 Pick. 306 ; Clapp Emory, 10 Pick. 507; Hughes v. Edward, post, 489. v. Stoughton, 10 Pick. 463.
It is far from clear, however, that this principle The testator devised a farm to his son in fee, upon applies even to conditions subsequent, if the prop
The appellants made the following points in operate as a remainder, vested or contingent, this court:
because there was no preceding estate to sup1. That the third will, whether its disposi- port it; none having been directly given to 330*) tion *be valid or not revokes the other John Thompson Mason by the will, or being two, since it expresses a clear intention on the raised for him by implication. part of the testator, to dispose differently of the 9. That, admitting John Thompson Mason whole estate.
to have a life estate under the will, which might 2. That it gives no estate for life or years, support a remainder, this disposition cannot absolute or in trust, to John Thompson Mason, operate as a vested remainder, because, at the the respondent, but merely the custody and care testator's death, there was no person in existof the property, during his life, as agent or ence who answered the description; nor as a curator, with a salary for his services.
contingent remainder, because it depended on 3. That no estate, for life or years, can be two distinct and successive contingencies: 1st. raised for him by implication, because the orig. That John T. Mason should have a son. 2d. ipal estate did not move from him, and never That this son should live to the age of twentywas in him.
one years, then assume the name of Abraham 4. Consequently, that he has no estate of Barnes, by legislative authority, and take the freehold, with which a subsequent limitation in oath prescribed by the will, which is a possifee could unite, so as to create a fee in him, bility too remote. under the rule in Shelly's case.
10. That this disposition cannot be support5. That if he takes a life estate, it is merely ed as an executory devise, because it was to fiduciary, and not beneficial, for which reason take *effect on two remote and con- [*332 it could not unite with a limitation over in fee, tingent events: 1st. That the eldest son of if there were one, so as to give him a fee under John T. Mason should voluntarily, and after the rule.
he attained the age of twenty-one years, change 6. That the words in this will, "the male heir his name to that of Abraham Barnes, through of my nephew, John Thompson Mason, law- the operation of a legislative enactment; and, fully begotten, forever," as explained and modi. 2d. That he should take an oath, as prescribed fied by the subsequent expressions, designate by the will; which events, if they took place at the “male heir of the body of J. T. Mason," all, might not happen within the life-time of as the person who is to take the estate, and thus John Thompson Mason, and twenty-one years operate as a “ descriptio personw," and not as a and nine months afterwards. "limitation.” Consequently, that they do not The cause was fully argued, upon all these create such an estate of inheritance, as is capa- points, by Mr. Jones and Mr. Harper for the ble of uniting with a life estate, under the rule; appellants, and by the Attorney-General and but must operate, if at all, as a devise, per se, ur. Emmet for the respondents; but, as the 331*) of an estate *in possession or remainder, questions whether an estate tail vested in John or as an executory devise.
Thompson Mason, and whether the last will 7. That this disposition cannot operate as the revoked those which preceded it, were not condevise of an estate in possession, for want of sidered and determined by the court, it has some person, in existence at the testator's death, not been thought necessary to report that part who could then take: 1st. Because the person of the argument. designated, was to be the heir" of John The counsel for the appellants stated, that as Thompson Mason, who was then alive, and I to whether a condition be precedent or subsenemo ext hæres viventis. 2d. Because, as he had quent, it is always a matter of construction, then no issue male, or heir male of his body, depending on the intention of the testator. The there was no person who answered the de principle is, that where an intention appears to scription, taken in its largest and most general create an estate at all events, and merely to ansense.
nex a condition to it, by which it may be de8. That the disposition in question cannot feated, this is a condition subsequent; and if
erty be gicen over on non-performance. 1 Jarm. on A power of alienation is necessarily and insepWills (24 Am. ed.), 679, marg. p. 807 ; 2 Atk. 16; Pey- arably incidental to an estate in fee. If, thereton v. Bury, 2 P. W. 626; King v. Withers, 1 Éq. Ca. fore, 'lands be devised to A and his heirs, upon Ab. 112, pl. 10.
condition that he shall not alien, the condition is A condition, in view of the common law is regard- void. Co. Litt. 206, b, 223, a ; Newkirk v. Newkirk, ed as impossible, only when it cannot, by any 2 Caines, 345; Byng v. Lord Stafford, 5 Beav. 558; human means, take effect. But if it be only in a McWilliams v. Nisley, 2 Serg. & R. 513; Hall v. bigh degree improbable, and such as it is beyond Tuft. 18 Pick. 445; Schemerhorn v. Negus, 1 Denio. the power of the obligee to effect, it is then not 448; Ware v. Cann, 10 Barn. & C. 433. deemed impossible. 2 Story, Eq. Jur., s. 1305.
A condition in a devise of land, that the land If a grant is made on a condition subsequent, shall not be subject to conveyance or attachment, and the performance becomes impossible by the is void. Blackstone Bank v. Davis, 21 Pick. 42; act of the grantor, the condition is void. United Howley v. Northampton, 8 Mass. 3, 6. States v. Arredondo, 6 Pet. 691, 745; Whitney v. But such a partial restraint on the disposing Spencer, 4 Cow. 39.
power of the tenant in fee may be imposed, as that Where, in the event of the testator's lawful heir he shall not alien to such a one, or to the heirs of not being found within a year after his decease, he such a one, or that he shall not alien in mortinain. devised certain lands to A, " upon condition he Co. Litt. 223, a; McWilliams v. Nisley, 2 Serg. & R.513. changes his name to S." A did not change his name A condition in a devise for life, whereby it is to to S, within the year, but did so after a final decree be devested by the marriage of the devisee, is void. in chancery, which gave him the possession of the Parsons v. Winslow, 6 Mass. 169. property; and this was adjudged sufficient. Dav- But if the devise be given over, so as to create an ies v. Lowpdes, 2 Scott, 67.
interest in another immediately on the breach of Conditions that are repugnant to the estate to such condition, the condition is valid. Parsons v. which they are annexed, are absolutely void. Winslow, 6 Mass. 169, 178. Stockton v. Turner, J.J. Marsh. 192; Att'y-Gen'ı Where there is an absolute devise, a subsequent ¥. Hall, Jacob, 395 : Tibbetts v. Tibbetts, 19 Ves. 656; void provision will not defeat it. Martin v. Ballou, 1 Jarm. on Wills (2d ed.), 680, marg. p. 809, 810. 13 Barb. 119.
followed by a limitation over, in case the con bountiful intentions in favor of J. T. M.'s dition be not fulfilled, it makes a conditional family; for they say, this being a condition limitation. But if the intent appear to be, that precedent, the limitation cannot take effect as 333*] the vesting or creation *of the estate a contingent remainder; for then there would shall depend on the condition, then it is prece. be three contingencies, and a possibility on a dent. There could be no dispute as to general possibility necessary to its vesting: It is clear, principles, which were incontrovertibly settled then, that to preserve the testator's primary or by all the authorities. The only question was, general intention, or, indeed, any part of his inas to the application of them to the particular tention towards that family, the terms must not case. They entered into a critical examination be considered as a condition precedent. In a of the words of the last will, to show that the will, no words of condition are too strong to conditions annexed to the estate devised to the bend to the testator's intention. Thus, “if a oldest male heir of J. T. M., were precedent man devises a term to A, and that if his wife and not subsequent.
suffers the devisee to enjoy it for three years, The counsel for the respondents considered she shall have all his goods as executrix, but if the conditions as subsequent and not precedent; she disturbs A, then he makes B his executor. or rather, they considered them as conditional and dies; his wife is executrix presently; for limitations, attached to, and defeating, in each though in grants, the estate shall not vest till instance, the preceding estate, on refusal to the condition precedent is performed, yet it is perform the acts required, and thus creating a otherwise in a will, which must be guided by new estate in tail male. It was said to be laid the intent of the parties; and this shall not be down by the authorities, that there are no pre-construed as a condition precedent, but only as cise technical words required in a deed (a a condition to abridge the power of the execufortiori in a will) to make a stipulation a condi- trix, if she perform it not."5 Although the contion precedent or subsequent. Neither does ditions over may be void, their existence may it depend on the circumstance whether the be used to illustrate the testator's intention, and clause was placed prior or posterior in the deed, to show that this was intended to operate only so that it operated as a proviso or covenant; as a limitation. It was intended that every one for the same words have been construed to having the right, should change his name, and operate as either the one or the other, accord- take the oath, before he had possession; “ ing to the nature of the transaction. Thus, that no act of intention to defeat his will should 334*] *Lord Eldon says, “I take it to be be *allowed of.” Those, then, taking [*336 fully settled that a condition is to be construed by inheritance through the first heir male, were to be precedent or subsequent, as the intention to be subject to this condition, and on their reof the testator may require." And Heath, J., fusing, the estate was to go over. It is imin the same case, adds, ** It has been truly said, possible to contend that those so taking by that there are nó technical words by which a inheritance should be regarded as purchasers, condition precedent is distinguishable from a or that, with them, this should be considered condition subsequent; but that each case is to as a condition precedent; and why should not receive its own peculiar construction, accord the same construction of the testator's intention, ing to the intent of the devisor." Now, let that that must be given with respect to them, be test be applied to the point in question. It is given in the first instance, where the same proclear that the testator intended the estate for viso is used, viz., that it is a conditional limitathe benefit of the sons of J. T. M., after his tion, on the refusal to perform which, the death, and successively for the heirs male. If antecedent estate is defeated, and a new one this be a condition precedent, as is contended arises? Unquestionably the limitation, on reby the appellants, and the will of 1789 be en- fusal to comply, is a conditional limitation. If, tirely revoked, the fee will be in the heirs-at. then, between such conditional limitation and law, from the death of J. T. M., till the condi- a condition precedent, bearing on the same obtion be performed, and the rents, issues and ject (let the words be ever so clear), there be a profits belong to them. Suppose the first heir positive incompatibility, the principle must be male an infant of tender years; the rents, &c., applied, that if words be so inconsistent do not go to his maintenance and education, nor that they cannot possibly stand or be reconciled, yet accumulate for his benefit, as was directed, those words shall be rejected which are least even in the life-time of his father. Let him die consistent with the general intention of the under twenty-two, without having performed testator. The incompatibility between condi. the condition, leaving an infant son; that son tions and conditional limitations, results from must take by inheritance, if at all, and not by this: Conditions can only be reserved to the purchase. Can he take by inheritance from feoffer, donor, lessor, or their heirs, but not to his father, an estate tail that never vested in a stranger;"? and this by implication, without his father? But suppose he can, there is still any words of reservation; and for every [*337 another long enjoyment of the estate by the condition broken, the heir of the donor shall heirs-at-law, for their own benefit. The ap. enter, and by so doing, restore the original pellants seek, by making this a condition prece estate. So that, except in gavelkind and bor335*] dent, *entirely to defeat the testator's ough-English,' and a husband's alienating his wife's estate on condition,' the heir-at-law en
1.-2 Cruise Dig. 3, 4, 5; Cas. temp. Talb. 165; 1
IT. 5.--Jennings v. Gore, Cro. Eliz. 219. R. 645 : 2 Bos. & Pull. 295;2 Vern. 620; Fearne Cont.
6.-2 Fonbl. Eq., c. 3, s. 3 (Note l., p. 69); Haws v. Rem. 424, 425, 502; Coll. Jurid. 378.
Haws, 3 Atk, 521; 1 Vez. 14; Perkins v. Bayntum, 1 2.-1 Plowd. 23; 2 Vern. 660; Cas. temp. Talb. 164; Bro. Ch. Cas. 118; Doe v. Aplyn, 4 T. R. 88. 1 Burr. 38; 4 Burr. 1929.
7.-1 Co. Litt. 214 b. 3.-Hotham v. East India Co., 1 T. R. 645.
8.--Co. Litt. 11, 12. 4.-In Planner v. Scudamore, 2 Bos. & Pull. 295. 9.-Godb. 3.
1 If the estate should yield any surplus profits, ters and holds for his own benefit. This ap- after satisfying the charges placed on it by the plies to conditions subsequent. As to conditions testator, J. T. M. is directed to account for precedent, the estate remains in the heir-at-law, those profits, and they are the property of “the and never vests till the performance of the con person that may have the right,” according to dition, and, during all that time, the heir-at- the language of the will. law holds it beneficially. But the effect of a Are the heirs-at-law the persons “ who have conditional limitation is, that the next devisee the right,” according to this language? alone can enter, and he takes and enjoys for Certainly not. The plain intention of the his own benefit. Now, it is incompatible, that will is to exclude them. They admit this; and the heir-at-law should have the right to hold support their claim by alleging that the will, the estate for his own benefit; and the devisee so far as respects the devises which are to take to hold it for his benefit: and in these incom- place after the death of J. T. M., is utterly patible results, the question, which shall pre- void, the limitations over being too remote. vail, must depend upon which is conformable to The first limitation is to “ the male heirs of the intention of the testator. Thus, it is laid my nephew, J. T. M., lawfully begotten, fordown that “ words of an express condition shall ever, agreeably to the law of England;" that is, not ordinarily be construed into a limitation; the oldest male heir to take all. but where an estate is to remain over for breach If the clause stopped here, there could be no of a condition, which is by express words a question in the case. The person who should condition, yet it ought to be intended as a be the eldest male heir of J. T. M. at the time limitation." And the contrary doctrine in of his death, would take the estate. But the Mary Portington's case has been often denied testator proceeds to prescribe the “terms ” on to be law.
which such *eldest male heir should (*340 338*). *The expression “ before he has pos- take. They are," that the name of the one session," is much relied on, as showing a con- that may have the right, at the age of twentydition precedent. But it must, like other one, with his consent, be changed to Abraham equally strong expressions, bend to the testa- Barnes, by an act of public authority of the tor's general intent, and to the words “who state, without any name added, together with has the right." How “ has the right," if ob his taking an oath before he has possession." taining an act of the legislature and changing that he will not make any change during his the name after twenty-one, be a condition life in this my will, relative to my real property. precedent? For then no estate can vest, and And on his refusing to comply with the above. no right be had, till the condition be perform mentioned terms, to the next male heir, on the ed. So, it is said, the will shows the right is above-mentioned terms, and so on, to all the male not to commence till he has arrived at twenty- heirs of my nephew, J. T. M., as may be, on one. But the age of twenty-one connects itself, the above terms; and all of them refusing to both in sense and grammar, with the act to be comply in a reasonable time after they have ardone, and not with the vesting of the right. rived at the age of twenty-one, say not exceedThe expression “refusing to comply,” and the ing twelve months, if in that time it can be giving over the estate to others, show the re done, so ihat no act of intention to defeat my fusal to be the definite act, by which one estate will shall be allowed of; and on their refusing was to be determined, and the other to com- to comply with the terms above mentioned, if mence. Thus, where similar words were used, any such person may be, then to the son of "on condition that he should in twelve months my late nephew, J. T. M.” &c. after the testator's death, or in twelve months The time allowed the eldest male heir of J. after he attained the age of twenty-one years, T. M. to perform the condition on which his suffer a recovery of an estate in the county of estate would, according to the words of the Warwick, and settle it to certain uses," ihey will, become absolute, is twelve months after were clearly taken to be a condition subsequent, he shall attain his age of twenty-one years. As and not a conditional limitation. Indeed, the J. T. M. might die, leaving no son alive at his words“ before he has possession,” are suscepti- death, but leaving his wife enciente of a son.it ble of another interpretation, consistent with is obvious that the contingency on which the the previous vesting of the estate. The testa- estate depended might not happen within a life, tor did not view all possible contingencies ac- or lives, in being, or within twenty-one years curately. He clearly took for granted that the and nine months after the death of J. T. M. one to take would be an infant, and meant to If, therefore, the estate did not vest until the make a provision accordingly. He probably contingency should happen, the limitation over 339*] used those words to distinguish *the to the eldest male heir of J. T. M., depends on time when a guardian would receive the rents, *an event which is too remote to be [*341 issues and profits, from that when the minor tolerated by the policy of the law, and the rewould come into the actual possession of his mainder is consequently void. If, on the estate.
contrary, the estate is to vest on the death of J. The cause was continued, for advisement, to T. M., to be devested on the non-performance the present term.
of the condition, the limitation in remainder is Mr. Chief Justice MARSHALL delivered the
valid, and the plaintiffs are not entitled to the
account for which the bill prays. opinion of the Court, and, after stating the
The inquiry, then, is, whether the conditions case, proceeded as follows:
1.-8 Co. 43.
3.-10 Co. 35.
4.- Brownl. 65; Roll. Abr. 412; Ventr. 200; 3 Lev. 132; 2 Show. 398 ; 1 Bos. & Pull. 313.
5.-Duke of Montague y. Beaulieu, 3 Bro. Parl. Cas. 277.
annexed to the devise of the remainder, behave described the person who was to perform precedent or subsequent; and this, it is admit- the condition, as already having the right," ted, must be determined by the intention of the if the impression on his mind had been, that testator, which intention is to be searched for no person would have the right until the condiin bis will.
tion should be performed. All the instruments of writing purporting to This expression is entitled to the more inbe his last will, show that his firm and continuing fluence, from the consideration that the condipurpose, from the 31st day of October, in the tion is to be performed by the person having year 1789, to the term of his death, in the the right at the age of twenty-one, or in a conyear 1804, was to preserve his estate entire for venient time afterwards. The devisee might the benefit of a single devisee, and not to per- be an infant at the time of the death of J. T. mit it to be divided among his heirs. The same M. The person who has the right, if an infant, papers, likewise, show that the first object of is allowed till he attains his age of twenty-one his affection and bounty was J. T. M.; and years, and a reasonable time afterwards, to perthe second was the eldest male heir of J. T. M. form the condition. This is inconsistent with An ample and unconditional provision, perhaps the idea that the condition must be performed equivalent to the whole value of his real estate, before the estate vested, before the right acis made for J. T. M. during his life; and on his crued. death, the whole real estate, with any residuum The testator then directs, in addition to the of profit which might possibly be accumulated change of name, that an oath, prescribed in during his life, is given to his eldest male heir. his will, shall be taken, and then proceeds, If these devises should be expressed in ambigu- and on his (the person that may have the ous language, this obvious and paramount in- right) refusing *to comply with the [*344 tention ought to serve as a key to the construc- above-mentioned terms, to the next male heir tion.
on the same terms." The language of the devise in remainder, im. The property is, in the first instance, devised ports an intention that it should take effect on to all the male heirs of J. T. M., the oldest to 342*] the *determination of the particular es- take first. The testator then proceeds to detate. So soon as J. T. M., the first object of scribe the state of things in which the next his bounty, is removed, the eldest male heir of J. oldest is to take. That state of things is the T. M., the second object of his bounty,comes into refusal of the oldest to comply with the terms view: "I give the whole of my property” “to the annexed to the estate given to him. Upon this male heirs of my nephew, J. T. M., lawfully be- refusal, the devise is immediate. No intervengotton, forever,agreeable to the law of England: tion of the heir-at-law is necessary to defeat that is, the oldest male heir to take all,on the fol the title of the oldest, and to vest the property lowing terms,” &c. These words postpone the in the next male heir. But, until this refusal, interest of the devisee no longer than till he the rights of the oldest remain unchanged. can be ascertained; that is, till the death of J. Although the words “refusing to comply" T. M., who was to occupy the premises for his may, in general, have the same operation in life. The eldest male heir of J. T. M. would law as the words “failing to comply” would be known at his death, at which time the par- have, yet, in this case, they are accompanied ticular estate which was carved out of this and explained by other words, which show that general devise, would determine, or at farthest, the word “refusing” was used in a sense which within nine months afterwards. The language might leave the estate in the devisee, though is not such as a man would be apt to use who his name should not be changed. Where the contemplated any interval between the particu- condition to be performed depends on the will lar estate and the remainder. The words im- of the devisee, his failure to perform it is port the same intention as if he had said, I give equivalent to a refusal. But where the condito the eldest male heir of J. T. M. all my prop- tion does not depend on his will, but on the erty, on condition that, at the age of twenty. will of those over whom he can have no conone years, his name be changed to that of Abra- trol, there is a manifest distinction between ham Barnes, by an act of public authority of refusing” and “failing” to comply with it. the state, &c. Such words, it seems to the The first is an act of the will, the second may court, would carry the estate immediately to be an act of inevitable necessity. the devisee, without waiting for the perform- In this case, the name is to be changed by a ance of the condition.
legislative act. Now, the eldest male heir of J. With this general intent, manifested in each T. M. may petition for this act, but the legisof these instruments, and this language, show. lature *may refuse to pass it. In such [*345 ing the expectation that no interest would in- a case, the devisee would not "refuse" to comtervene between the particular estate devised ply with the terms on which the estate was to J. T. M. and that to his eldest male heir,the given to him; those terms would neither be conditions on which that devise was made literally nor substantially violated. If there 343*) must be expressed *in language to show were nothing in the words of the will to give very clearly that they were to be performed be additional strength to this construction, the refore the estate could vest, to justify the court fusal of the legislature to pass the act would in putting that construction on this will. not be a refusal of the devisee to comply with
Let that language be examined. The devise the terms, and would seem in reason to disis of the whole property to the male heirs of J. pense with the condition, as effectually as the T. M., in succession, the eldest to take first. passage of an act to render the condition illeThe condition is to be performed by “ the one gal. Its performance would be impossible, that may have the right.” In the mind of the without any default of the devisee. testator, then, the right was to precede the con- But there are other words which show condition, not be created by it. He would not I clusively that the testator intended, by this ex