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pends on an event which is too remote to be tolerated by the policy of the law, and the remainder is, consequently, void. If, on the contrary, the estate is to vest on the death of J. T. M., to be devested on the non-performance of the condition, the limitation in remainder is valid, and the plaintiffs are not entitled to the account for which the bill prays.
The inquiry, then, is, whether the conditions annexed to the devise of the remainder, be precedent or subseqụent; and this, it is admitted, must be determined by the intention of the testator, which intention is to be searched for in his will.
All the instruments of writing purporting to be bis last will, show that his firm and continuing purpose, from the 31st day of October, in the year 1789, to the time of his death, in the year 1804, was to preserve his estate entire for the benefit of a single devisee, and not to permit it to be divided among his heirs. The same papers, likewise, show that the first object of his affection and bounty, was J. T. M.; and the second, was the eldest male. beir of J. T. M. An ample and unconditional provision, pethaps equivalent to the whole value of his real estate, is made for J. T. M. during his life; and on his death, the whole real estate, with avy residuum of profit which might possibly be accumulated during his life, is given to his eldest male heir. If these devises should be expressed in ambiguous language, this obvious and paramount intention, ought to serve as a key to the construction. · The language of the devise in remainder, im
orts an intention that it should take effect on the
determination of the particular estate. So soon as J. T. M., the first object of his bounty, is removed, the eldest male heir of J.T.M., the second object of his bounty, comes into view : “I give the whole of my property” “to the male heirs of my nephew, J. T. M., lawfully begotten, for ever, agreeable to the law of England; that is, the oldest male heir to take all, on the following terms," &c. These words postpone the interest of the devisee no longer than till he can be ascertained; that is, till the death of J. T. M., who was to occupy the premises for his life. The eldest male heir of J. T. M. would be known at his death, at which time the particular estate which was carved out of this general devise, w Duld determine, or at farthest, within nine mnths afterwards. The language is not such as a man would be apt to use who contemplated any interval between the particular estate and the remainder. The words import the same intention, as if he had said, I give to the eldest male heir of J. T. M. all my property, on condition that, at the age of twenty-one years, his name be changed to that of Abraham Barnes, by an act of public authority of the State, &c. Such words, it seems to the Court, would carry the estate immediately to the devisee, without waiting for the performance of the condition.
With this general intent, manifested in each of these instruments, and this language, showing the expectation that no interest would intervene between the particular estate devised to J. T. M. and that to his eldest male heir, the conditions on which that devise was made, must be expressed
in · language to show very clearly, that they were to be performed before the estate could vest, to justify the Court in putting that construction on this will.
Let that language be examined. The devise is of the whole property to the male heirs of J. T. M., in succession, the eldest to take first. The condition is to be performed by “the one that may have the right.” In the mind of the testator, then, the right was to precede the condition, not be created by it. He would not have described the person who was to perform the condition, as already having “ the right,” if the impression on bis mind had been, that no person would have the right until the condition should be performed.
This expression is entitled to the more influence, from the consideration that the condition is to be performed by the person having the right at the age of twenty-one, or in a convenient time afterwards. The devisee might be an infant at the time of the death of J. T. M. The person who has the right, if an infant, is allowed till he attains his age of twenty-one years, and a reasonable time afterwards, to perform the condition. This is inconsistent with the idea that the condition must be performed before the estate vested, before the right accrued. . The testator then directs, in addition to the change of name, that an oath, prescribed in his will, shall be taken, and then proceeds, “and on bis (the person that may have the right) refusing
1824. to comply with the above mentioned torms, to the Taylor
next male heir on the same terms."
The property is, in the first instance, devised Mason.
to all the male heirs of J. T. M., the oldest to take first. The testator then proceeds to describe the state of things in which the next oldest is to take. That state of things is the refusal of the oldest to comply witb the terms annexed to the estate given to him. Upon this refusal, the devise is immediate. No intervention of the heir at law is necessary to defeat the title of the oldest, and to vest the property in the next male hoir. But, until this refusal, the rights of the oldest remain unchanged..
Although the words “refusing to comply,” may, in general, have the same operation in law as the words “ failing to comply" would have; yet, in this case, they are accompanied and explained by other words, which show that the word “ refusing” was used in a sense which might leave the estate in the devisee, though his name should not be changed. Where the condition to be performed depends on the will of the devisee, his failure to perform it is equivalent to a refusal. But where the condition does not depend on his will, but on the will of those over :whom he can have no control, there is a manifest distinction between “refusing," and "failing" to comply with it. The first is an act of the will, the second may be an act of inevitable necessity.
In this case, the name is to be changed by a legislative act. Now the eldest male heir of J. T. M. may. petition for this act, but the Legisla
ture may refuse to pass it. In such a case, the devisec would not “ refuse" to comply with the terms on which the estate was given to him; those terms would neither be literally nor substantially violated. If there were nothing in the words of the will to give additional strength to this construction, the refusal of the Legislature to pass the act would not be a refusal of the devisee to comply with the terms, and would seem in reason to dispense with the condition, as effectually as the passage of an act to render the condition illegal. Its performance would be impossible, without any default of the devisee
But there are other words which show conclusively that the testator intended, by this expression, to make the devise to the next and other devisees to depend entirely on a'wilful and voluntary disregard, on the part of the eldest, of the terms on which the property was devised to him.
After giving the estate to the male heirs of J. T. M., in succession, the testator proceeds, “And all of them refusing to comply, in a reasonable time after they have arrived at the age of twentyone, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of, and of their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, H. T. M.," &c.'
These words expressly refer to all the male heirs of J. T. M., including the oldest, apply to each particular devise, and fully explain the intention of the testator on the subject of the change of Vol. IX.