Bequest upon impossible condition. Bequest upon illegal PART XVI. OF CONDITIONAL BEQUESTS1. 113. A bequest upon an impossible 2 condition is void. Illustrations. (a) An estate is bequeathed to A on condition that he shall walk one hundred miles in an hour. The bequest is void. (b) A bequeaths 500 rupees to B on condition that he shall marry A's daughter. A's daughter was dead at the date of the Will. The bequest is void. 114. A bequest upon a condition, the fulfilment of which or immoral would be contrary to law or to morality 3, is void. condition. Fulfilment precedent Illustrations. (a) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void. (b) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void. 115. Where a Will imposes a condition to be fulfilled before of condition the legatee can take a vested interest in the thing bequeathed, to vesting the condition shall be considered to have been fulfilled if it has been substantially complied with. of legacy. Illustrations. (a) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition *. 1 This Part applies to Hindús etc. in the Lower Provinces and in the towns of Madras and Bombay, Act XXI of 1870. physically or legally, as, e. g. if A bequeath property to a married woman B on condition that she transfer other property bequeathed to her by C to her separate use with a clause against anticipation, A's bequest is void, Robinson v. Wheelright, 6 D. M. G. 535. 3 As to the kind of morality here referred to, see supra, p. 232, note 3Qui tacet satis loquitur. (6) A legacy is bequeathed to 4 on condition that he shall marry with the consent of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled the condition. (c) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition. (d) A legacy is bequeathed to 4 on condition that he shall marry with the consent of B, C and D. A obtains the unconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent. A marries E. A has fulfilled the condition. (e) A legacy is bequeathed to 4 on condition that he shall marry with the consent of B, C and D. A marries without the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition. (f) 4 makes his Will, whereby he bequeaths a sum of money to B if B shall marry with the consent of A's executors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect. (g) A legacy is bequeathed to A if he executes a certain document within a time specified in the Will. The document is executed by A within a reasonable time, but not within the time specified in the Will. A has not performed the condition, and is not entitled to receive the legacy. A and, on 116. Where there is a bequest to one person and a bequest Bequest to of the same thing to another if the prior bequest shall fail, the failure of second bequest shall take effect upon the failure of the prior prior bebequest, although the failure may not have occurred in the manner contemplated by the testator. Illustrations. (a) A bequeaths a sum of money to his own children surviving him, and if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect. (b) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A's death, and if he should neglect to do so, to C. B dies in the testator's lifetime. The bequest to C takes effect. quest, to B. 117. Where the Will shows an intention that the second Second bebequest shall take effect only in the event of the first bequest tended to quest infailing in a particular manner, the second bequest shall not take effect take effect unless the prior bequest fails in that particular first fails in manner. only where particular manner. ditional Illustration. A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The bequest to B does not take effect1. Bequest 118. A bequest may be made to any person with the conover, con- dition superadded that in case a specified uncertain event shall upon the happen, the thing bequeathed shall go to another person; or, happening that in case a specified uncertain event shall not happen, the pening of a thing bequeathed shall go over to another person. In each case the ulterior bequest is subject to the rules contained in Sections 107, 108, 109, 110, 111, 112, 113, 114, 116, 117. or not hap specified uncertain event. Condition must be Illustrations. (a) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains that age, to B. A takes a vested interest in the legacy, subject to be devested and to go to B in case A shall die under 18. (b) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a Will, the estate shall go to B. A disputes the competency of the testator to make a Will. The estate goes to B. (c) A sum of money is bequeathed to A for life, and after his death to B, but if B shall then be dead, leaving a son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be devested if he dies leaving a son in A's lifetime. (d) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one-half of the money, and the representative of B takes the other half. (e) A bequeaths to B the interest of a fund for life, and directs the fund to be divided, at her death, equally among her three children, or such of them as shall be living at her death. All the children of B die in B's lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives. 119. An ulterior bequest of the kind contemplated by the Here the gift over was made dependent on an event (A's surviving his wife) which was not proved to have happened; and it did not become operative from the mere fact of the gift to wife failing to have practical operation, for A indicated no such intention either expressly or impliedly, Underwood v. Wing, 4 D. M. G. 633. last preceding Section cannot take effect, unless the condition strictly fulis strictly fulfilled 1. Illustrations. (a) A legacy is bequeathed to A, with a proviso that if he marries without the consent of B, C and D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift to E does not take effect. (b) A legacy is bequeathed to A, with a proviso that if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B. The bequest to C does not take effect. (e) A legacy is bequeathed to 4, to be paid at 18, or marriage, with a proviso that if A dies under 18, or marries without the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to C' takes effect. filled. 120. If the ulterior bequest be not valid, the original be- Original quest is not affected by it. Illustrations. (a) An estate is bequeathed to A for his life, with a condition superadded that if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the Will 2. (b) An estate is bequeathed to A for her life, and if she do not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the Will 3. (c) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the testator's death, had not had a son. The bequest over is void under Section 92, and A is entitled to the estate during his life *. bequest not affected by invalidity of second. condi 121. A bequest may be made with the condition super- Bequest added that it shall cease to have effect in case a specified un- tioned to certain event shall happen, or in case a specified uncertain cease to event shall not happen. Illustrations. have effect if specified uncertain event shall happen or (a) An estate is bequeathed to A for his life, with a proviso not happen. 1 Conditions subsequent are construed with great strictness, as they go to divest estates already vested. 'Here the condition subsequent is impossible. Here it is void, as being contra bonos mores. VOL. I. D d Here the gift over is void, by reason of being too remote. So if the condition subsequent be too vague for the Court to enforce it, Fillingham v. Bromley, T. & R. 530, where the words were 'live and reside on' a certain estate. Such condition must that in case he shall cut down a certain wood, the bequest shall cease to have any effect. A cuts down the wood; he loses his life-interest in the estate. (b) An estate is bequeathed to 4, provided that if he marries under the age of 25 without the consent of the executors named in the Will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him. (c) An estate is bequeathed to 4, provided that if he shall not go to England within three years after the testator's death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases. (d) An estate is bequeathed to A, with a proviso that if she becomes a nun she shall cease to have any interest in the estate. A becomes a nun. She loses her interest under the Will. (e) A fund is bequeathed to A for life, and after his death to B, if B shall be then living, with a proviso that if B shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She thereby loses her contingent interest in the fund. 122. In order that a condition that a bequest shall cease to not be in- have effect may be valid, it is necessary that the event to which valid under it relates be one which could legally constitute the condition of a bequest as contemplated by the one hundred and seventh section. sec. 107. act for which no Legatee 123. Where a bequest is made with a condition superadded rendering impossible that unless the legatee shall perform a certain act, the subjectmatter of the bequest shall go to another person, or the betime speci- quest shall cease to have effect; but no time is specified for fied and on the performance of the act; if the legatee takes any step formance which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act. nonper of which subjectmatter is to go over. Illustrations. (a) A bequest is made to A with a proviso that unless he enters the army the legacy shall go over to B. A takes holy orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy. (b) A bequest is made to A with a proviso that it shall cease to have any effect if he does not marry B's daughter. A marries a stranger, and thereby indefinitely postpones the fulfilment of the condition. The bequest ceases to have effect. |