in possession or remainder, or as an executory devise. 7. That this disposition cannot operate as the devise of an estate in possession, for want of some person, in existence at the testator's death, who could then take: 1st. Because the person designated, was to be "the heir" of John Thompson Mason, who was then alive, and nemo est hæres viventis. 2d. Because, as he had then no issue male, or heir male of his body, there was no person who answered the description, taken in its largest and most general sense. 8. That the disposition in question cannot operate as a remainder, vested or contingent, because there was no preceding estate to support it; none having been directly given to John Thompson Mason by the will, or being raised for him by implication. 9. That, admitting John Thompson Mason to have a life estate under the will, which might support a remainder, this disposition cannot operate as a vested remainder, because, at the testator's death, there was no person in existence who answered the description; nor as a contingent remainder, because it depended on two distinct and successive contingencies: 1st. That John T. Mason should have a son; 2d. That this son should live to the age of twenty-one years, then assume the name of Abraham Barnes, by legislative authority, and take the oath prescribed by the will, which is a possibility too remote. 10. That this disposition cannot be supported as an executory devise, because it was to take 1824. Taylor V. Mason. 1824. Taylor V. Mason. March Sd, 1829. effect on two remote and contingent events: 1st. That the eldest son of John T. Mason should voluntarily, and after he attained the age of twenty-one years, change his name to that of Abraham Barnes, through the operation of a legislative enactment; and, 2d. That he should take an oath, as prescribed by the will; which events, if they took place at all, might not happen within the lifetime of John Thompson Mason, and twenty-one years and nine months afterwards. The cause was fully argued, upon all these points, by Mr. Jones and Mr. Harper for the appellants, and by the Attorney-General and Mr. Emmet, for the respondents; but, as the questions whether an estate tail vested in John Thompson Mason, and whether the last will revoked those which preceded it, were not considered and determined by the Court, it has not been thought necessary to report that part of the argument. The counsel for the appellants stated, that as to whether a condition be precedent or subsequent, it is always a matter of construction, depending on the intention of the testator. The principle is, that where an intention appears to create an estate at all events, and merely to annex a condition to it, by which it may be defeated, this is a condition subsequent: and if followed by a limitation over, in case the condition be not fulfilled, it makes a conditional limitation. But if the intent appear to be, that the vesting or creation of the estate shall depend on the condition, then it is precedent. There could be no dispute as to general principles, which were incontrovertibly settled by all the authorities. The only question was, as to the application of them to the particular case. They entered into a critical examination of the words of the last will, to show that the conditions annexed to the estate devised to the oldest male heir of J. T. M., were precedent and not subsequent. The counsel for the respondents considered the conditions as subsequent and not precedent; or rather, they considered them as conditional limitations, attached to, and defeating, in each instance, the preceding estate, on refusal to perform the acts required, and thus creating a new estate in tail male. It was said to be laid down by the authorities, that there are no precise technical words required in a deed, (a fortiori in a will,) to make a stipulation a condition precedent or subsequent. Neither does it depend on the circumstance, whether the clause was placed prior or, posterior in the deed, so that it operated as a proviso or covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction." a 2 Cruise Dig. 3, 4, 5. Cas. temp. Talb. 165. 1 T. R. 645. 2 Bos. & Pull. 295. 2 Vern. 620. Fearne Cont. Rem. 424, 425. 502. Coll. Jurid. 378. b 1 Plowd. 23. 2 Vern. 660. Cas. temp. Talb. 164, 1 Burr. 38. 4 Burr. 1929. c Hotham v. East India Co. 1 T. R. 645. 1824. Taylor V. Mason. Taylor V. Mason. 1824. Thus, Lord Eldon says," "I take it to be fully settled, that a condition is to be construed to be precedent or subsequent, as the intention of the testator may require." And Heath, J., in the same case, adds, "It has been truly said, that there are no technical words by which a condition precedent is distinguishable from a condition subsequent; but that each case is to receive its own peculiar construction, according to the intent of the devisor." Now, let that test be applied to the point in question. It is clear that the testator intended the estate for the benefit of the sons of J. T. M., after his death, and successively for the heirs male. If this be a condition precedent, as is contended by the appellants, and the will of 1789 be entirely revoked, the fee will be in the heirs at law, from the death of J. T. M., till the condition be performed, and the rents, issues, and profits, belong to them. Suppose the first heir male an infant of tender years; the rents, &c. do not go to his maintenance and education, nor yet accumulate for his benefit, as was directed, even in the lifetime of his father. Let him die under twenty-two, without having performed the condition, leaving an infant son; that son must take by inheritance, if at all, and not by purchase. Can he take by inheritance from his father, an estatę tail that never vested in his father? But suppose he can, there is still another long enjoyment of the estate by the heirs at law, for their own benefit. The appellants seek, by making this a con a In Planner v. Scudamore, 2 Bos. & Pul. 295. dition precedent, entirely to defeat the testator's bountiful intentions in favour of J. T. M.'s family: for they say, this being a condition precedent, the limitation cannot take effect as a contingent remainder; for then there would be three contingencies, and a possibility on a possibility necessary to its vesting. It is clear, then, that to preserve the testator's primary or general intention, or indeed any part of his intention towards that family, the terms must not be considered as a condition precedent. In a will, no words of condition are too strong to bend to the testator's intention. Thus, "if a man devises a term to A., and that if his wife suffers the devisee to enjoy it for three years, she shall have all his goods as executrix; but if she disturbs A., then he makes B. his executor, and dies; his wife is executrix presently: for though in grants, the estate shall not vest till the condition precedent is performed, yet it is otherwise in a will, which must be guided by the intent of the parties; and this shall not be construed as a condition precedent, but only as a condition to abridge the power of the executrix, if she perform it not." Although the conditions over may be void, their existence may be used to illustrate the testator's intention, and to show that this was intended to operate only as a limitation. It was intended that every one having the right, should change his name, and take the oath, before he had possession; "so that no act of intention to defeat his will should be a Jennings v. Gore, Cro. Eliz. 219. 1824. Taylor V. Mason. |