conveyance or a devise will be construed, if possible, not to be a condition.47 The courts will, by preference, construe language not as creating a condition, but rather as creating a covenant or a trust.469 So the mere fact that the con

468

467 4 Kent, Comm. 132; 2 Cruise, Dig. tit. 13, c. 1, §§ 38-46; Scovill ▼. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Thornton v. Trammell, 39 Ga. 202; Wheeler v. Dascomb, 3 Cush. (Mass.) 285; Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168; Studdard v. Wells, 120 Mo. 25; Cunningham v. Parker, 146 N. Y. 33, 48 Am. St. Rep. 765; Williams v. Vanderbilt, 145 III. 238; Board Com'rs Mahoning Co. v. Young, 8 C. C. A. 27, 59 Fed. 96; Ruggles v. Clare, 45 Kan. 662; Graves v. Deterling, 120 N. Y. 447; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680, and note; City of Portland v. Terwilliger, 16 Or. 465. See digest of cases on the subject in note to Greene v. O'Connor, 19 L. R. A. 262, 18 R. I. 56.

This principle of construction finds an important application “in construing future limitations; as remainders which are to be taken as vested rather than contingent, and executory limitations and de vises which are to be taken as referring to the time of possession, rather than the vesting of the interest." 1 Leake, 238, note (d). See post, §§ 121, 141.

488 Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Skinner v. Shepard, 130 Mass. 180; Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680; Graves v. Deterling, 120 N. Y. 447; Thornton v. Trammell, 39 Ga. 202; Carroll County Academy v. Gallatin Academy, 20 Ky. L. Rep. 824, 47 S. W. 617; Star Brewery Co. v. Primas, 163 Ill. 652; Studdard v. Wells, 120 Mo. 25; Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218; Elyton Land Co. v. South & North Alabama R. Co., 100 Ala. 396: Palmer's Ex'r v. Ryan, 63 Vt. 227; Woodruff v. Woodruff, 44 N. J. Eq. 349.

469 1 Washburn, Real Prop. 445; Stanley v. Colt, 5 Wall. (U. S.) 165; Woodward v. Walling, 31 Iowa, 533; Sohier v. Trinity Church, 109 Mass. 1; Brown v. Caldwell, 23 W. Va. 187, 48 Am. Rep. 376; Mills v. Davison, 54 N. J. Eq. 659, 55 Am. St. Rep. 594; Neely v. Hoskins, 84 Me. 386.

"What by the old law was deemed a devise upon condition would now, perhaps, in almost every case, be construed a devise in fee upon trust, and, by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel

veyance states the purpose for which it is made, or defines the use to which the land is to be applied, does not raise by implication a condition that the grantee's estate shall be defeated if the property is not used in accordance therewith. 470

In some cases, the question whether there is a valuable

an observance of the trust by a suit in equity." 1 Sugden, Powers (8th Ed.) 106. This is quoted with approval in Stanley v. Colt, 5 Wall. (U. S.) 119. This sweeping statement is not, however, supported by the treatment of the subject in the standard English treatises on wills by Mr. Jarman and Mr. Theobald, though no doubt true if confined to a devise subject to the payment of a legacy. In this country, most of the cases involve conditions created by conveyance inter vivos, but they may unquestionably be created by devise, if such is the intention of the testator.

Prof. J. C. Gray says: "For nearly, if not quite, two centuries, the remedy by entry for breach of condition attached to a conveyance in fee simple has been practically obsolete. The prac

tice of entry undoubtedly fell into disuse, because, when the condi. tion was for the payment of money, which it generally was, equity would restrain a forfeiture, and would in many cases enforce the payment as a trust." Gray, Perpetuities, § 282, note. In England, furthermore, the rule against perpetuities greatly restricts the ability to impose conditions in the creation of an estate. See post, § 155.

470 Stuart v. Easton, 170 U. S. 383; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Thornton v. Trammell, 39 Ga. 202; Raley v. Umatilla County, 15 Or. 172, 3 Am. St. Rep. 142; Farnham v. Thompson, 34 Minn. 330, 57 Am. Rep. 59; Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670; Brown v. Caldwell, 23 W. Va. 191, 48 Am. Rep. 376; Nicoll v. New York & Erie R. Co., 12 N. Y. 125, Finch's Cas. 527; Rice v. Boston & W. R. Corp., 12 Allen (Mass.) 141, 5 Gray's Cas. 15; Schulenberg v. Harriman, 21 Wall. (U. S.) 63; Ruch v. Rock Island, 97 U. S. 693; Warner v. Bennett, 31 Conn. 468; Cross v. Carson, 8 Blackf. (Ind.) 138, 44 Am. Dec. 742; Hooper v. Cummings, 45 Me. 359; Guild v. Richards, 16 Gray (Mass.) 309; McElroy v. Morley, 40 Kan. 76; Long v. Moore, 19 Tex. Civ. App. 363; Higbee v. Rodeman, 129 Ind. 244; Faith v. Bowles, 86 Md. 13; Ecroyd v. Coggeshall, 21 R. I. 1; Board Com'rs Mahoning Co. v. Young, 8 C. C. A. 27, 59 Fed. 96; Sum ner v. Darnell, 128 Ind. 38. But see Flaten v. City of Moorhead, 51 Minn. 518.

consideration for the conveyance is regarded, most properly. it would seem, as important in determining whether a condition is created; langurge indicating that the gift is for a particular purpose being sufficient to create a condition in the case of a devise or purely voluntary conveyance which would not have that effect in the case of a conveyance on consideration.471

$69. Co struction of conditions.

On the same principle of hostility to conditions, a condition precedent is construed strictly in favor of vesting the estate, while a condition subsequent is construed strictly against divesting the estate. 472

471 Neely v. Hoskins, 84 Me. 386; Brown v. Caldwell, 23 W. Va. 187. 48 Am. Rep. 376; Field v. City of Providence, 17 R. 1. 803; Ecroyd v. Coggeshall, 21 R. I. 1; Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670.

472 Co. Litt. 218a, 219b; 4 Kent, Comm. 129; 1 Leake, 239; Meadv. Ballard, 7 Wall. (U. S.) 290; Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 330, 5 Am. St. Rep. 680; Bradstreet v. Clark, 21 Pick. (Mass.) 389; Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670; Voris v. Renshaw, 49 Ill. 425, 430; Morrill v. Wabash, St. L. & P. Ry. Co., 96 Mo. 174.

Accordingly, it has been held that, where a condition subsequent provides for the performance of a certain act by the grantee, without mention of his heirs, executors, or assigns, the grantee himself is alone bound thereby, and the condition expires on his death. Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168. Compare Upington v. Corrigan, 151 N. Y. 143, Finch's Cas. 533. And a condition which required the "permanent location" within a year of an institute of learning on the land granted was held to be satisfied by the adop tion within that time by the trustees of a resolution providing for such location. Mead v. Ballard, 7 Wall. (U. S.) 290. So, a condition that land be used for a certain purpose is not violated so as to Justify re-entry by a merely temporary abandonment of its use for that purpose. Carter v. Branson, 79 Ind. 14; Osgood v. Abbott, 58 Me. 73; Mills v. Evansville Seminary, 58 Wis. 135.

Precedent or subsequent.

Though the distinction between a condition precedent and a condition subsequent is obvious enough in its consequences, it is frequently difficult to determine which is intended by the language used, the question being entirely one of intention and not of the particular terms of the limitation.*73 The courts tend to construe a condition as subsequent, rather than precedent, so as to give the grantee or devisee a present estate liable to be divested, rather than to defer the vesting.474 The rule is stated to be that, if the act or event named must necessarily precede the vesting of the estate, it is a condition precedent, while, if the act or event may accompany or follow the vesting of the estate, it is a condition subsequent.475 Furthermore, the fact that the condition involves something in the nature of a consideration for the gift tends to show that it is a condition precedent.*76

478 See 2 Jarman, Wills, 842; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, and note.

474 4 Kent, Comm. 129; Nicoll v. New York & Erie R. Co., 12 N. Y. 121, Finch's Cas. 527; Martin v. Ballow, 13 Barb. (N. Y.) 119; Donnelly v. Eastes, 94 Wis. 390.

Accordingly, a devise to one on condition that he marry a certain person was held to be on condition subsequent (Finlay v. King's Lessee, 3 Pet. [U. S.] 346), as was a devise of land to a town for a school, "provided said schoolhouse is built" on a certain part of the land (Hayden v. Inhabitants of Stoughton, 5 Pick. [Mass.] 528, 5 Gray's Cas. 10). So a conveyance "provided they [the grantees] fence the land and keep it in repair," was held to be on condition subsequent. Hooper v. Cummings, 45 Mè. 359. For other applications of the same rule, see post, §§ 121, 141.

475 Finlay v. King's Lessee, 3 Pet. (U. S.) 346; Nicoll v. New York & Erie R. Co., 12 N. Y. 125, Finch's Cas. 527; Underhill v. Saratoga & W. R. Co., 20 Barb. (N. Y.) 455; In re Stickney's Will, 85 Md. 79, 60 Am. St. Rep. 308; Bell County v. Alexander, 22 Tex. 350; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825.

476 Theobald, Wills (5th Ed.) 492; Acherley v. Vernon, Willes, 153; Fitzgerald v. Ryan [1899] 2 Ir. 637; Burleyson v. Whitley, 97 N. C. 295; Tilley v. King, 109 N. C. 461.

Conditions which are impossible of performance, are il legal, or are repugnant to the nature of the estate are void. If it be a condition precedent, that is, to be performed before the estate vests, the condition being void, the estate dependent thereon never arises. If, on the other hand, the condition be subsequent,—that is, to be performed after the estate arises, the estate becomes absolute in the grantee 177

Impossible conditions.

478

The impossibility rendering condition void may exist either at the time of the limitation of the estate, or may arise subsequently, either by the act of God or of the grantor. Examples of such conditions, as given in the books, are presented by a limitation to a man on condition that "he goes to Rome in twenty-four hours" (an insufficient time), or that "he marries with Jane S. by such a day," within which time the woman dies, or the feoffor marries her himself."TO

477 Co. Litt. 206a, 206b, 218a, 223a; 2 Bl. Comm. 156; 2 Jarman, Wills, 849; Taylor v. Mason, 9 Wheat. (U. S.) 325, 350; Davis v. Gray, 16 Wall. (U. S.) 203; City of Stockton v. Weber, 98 Cal. 433; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682; Ricketts v. Louisville, St. L. & T. Ry. Co., 91 Ky. 221, 34 Am. St. Rep. 176; Cassem v. Kennedy, 147 Ill. 660, 664; Parker v. Parker, 123 Mass. 584; Morse v. Hayden, 82 Me. 227; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, and note. 478 Mahoning County v. Young, 16 U. S. App. 253, 277, 59 Fed. 96; Reed v. Hatch, 55 N. H. 327; Parker v. Parker, 123 Mass. 584; City of Stockton v. Weber, 98 Cal. 433; Hoss v. Hoss, 140 Ind. 551; Burnham v. Burnham, 79 Wis. 557, 567; Harrison v. Harrison, 105 Ga. 517; Morse v. Hayden, 82 Me. 227; Union Pac. Ry. Co. v. Cook, 39 C. C. A. 86, 98 Fed. 281.

4T9 Co. Litt. 206a; 2 Bl. Comm. 156; Roundel v. Currer, 2 Brown, Ch. 67, 6 Gray's Cas. 7.

It is stated by the common-law writers that, if a condition precedent becomes impossible of performance owing to the act of the feoffor, the estate never arises. Co. Litt. 218a; 2 Bl. Comm. 156, 157. But since this would enable the feoffor or his successor in interest