Nos. 16, 17.- Bradley v. Peixoto; In re Dugdale.

Notes.

estate to his son and his heirs, and then declared that in case his son should die without leaving lawful issue, then and in such case the estate should go to his son's next heir-at-law, to whom he gave and devised the same accordingly. The testator died in 1881, and the son, who was married, but had no issue living, contracted to sell the estate. The question whether he could make a good title was submitted to the Court under the Vendor and Purchaser Act, 1874. The VICE-CHANCELLOR held that the executory devise over was void, and was further of opinion that the devise over was only intended to take effect on the death of the son in the lifetime of the testator. The Court of Appeal held that the intention of the devise over was not confined to death in the lifetime of the testator, but referred to death at any time; that the gift over was repugnant and void, and that the devisee took an absolute estate in fee simple. Lord Justice FRY, in a judgment with which Sir J. HANNEN and BOWEN, L. J., concurred, after stating the opinion that the intention of the will was that the heir-at-law under the gift over should take as a purchaser and not by way of limitation, said: "The testator's son is devisee in fee, and on his death either one of his issue will be his heir or some one else. If his heir be his issue, such issue will take under the original devise, and the gift over does not arise; if his heir be some one not his issue, such heir would take equally under the original devise and under the gift over; so that the operation of the gift over, if it be valid, is not to alter the devolution of the estate, but only to fetter the power of alienation during the lifetime of the son. That was an illegal device, and consequently the gift over is void."

The same principle was applied to an equitable gift in fee, subject to a proviso that the estate should go over in case of alienation, by the Court of Appeal, affirming the decision of BUTT, J., in Corbett v. Corbett (1888), 14 P. D. 7, 58 L. J. P. 17, 60 L. T. 74, 37 W. R. 114. The above cases may be contrasted with the case where a life interest is given subject to a gift over or clause of cessor on bankruptcy which is valid. Lockyer v. Savage (1733), 2 Str. 947. The only point discussed in modern cases is whether such a clause includes a bankruptcy existing at the date of the will. Trapper v. Meredith (1871), L. R. 7 Ch. 248, 41 L. J. Ch. 237; Metcalfe v. Metcalfe (C. A.), 1891, 3 Ch. 1, 60 L. J. Ch. 647, 65 L. T. 426. And see West v. Williams (C. A.), 1899, 1 Ch. 132, 68 L. J. Ch. 127.

In Scotch law a different effect has been given to an absolute gift to A. and his heirs, followed by a declaration that if A. dies childless and intestate the estate shall go to others. Such a gift over was given effect to, according to its terms, in the case of Barstow v. Black, Pattison & Henderson (H. L. 1868), L. R. 2 H. L. Sc. 392. This is.

Nos. 16, 17. Bradley v. Peixoto; In re Dugdale.

explained by Lord CAIRNS, L. C., as follows: "The position of an unlimited fiar (owner) with a conditional gift over is unknown to the English law; but the position of an unlimited fiar- that is, a fiar with unlimited power of ownership and disposition, followed by substitutions or limitations over- is well known to the Scotch law. It would, in my opinion, have been a perfectly good disposition to settle these estates on A., his heirs and assigns, with a limitation to other persons in the event of A. dying childless. Under such a settlement, A. would have had an absolute power of disposition over the estates. And, in my opinion, the words of apparent contingency, in the event of his not disposing of the estates,' are no more than a recognition of that power of disposition which was by Scotch law inherent in the estate given to A.”

AMERICAN NOTES.

In a devise of real estate in fee, or in an absolute bequest of personalty, a condition that the devisee or legatee shall not sell the property, is void. Cushing v. Spalding, 164 Massachusetts, 287, citing Winsor v. Mills, 157 id. 362; Todd v. Sawyer, 147 id. 570; Gleason v. Fayerweather, 4 Gray (Mass.), 348, 353; Hawley v. Northampton, 8 Massachusetts, 3, 37; and see Potter v. Couch, 141 United States, 296; Hunt v. Hawes, 181 Illinois, 343; Jones v. Port Huron Engine, &c. Co., 171 id. 502; Smith v. Kenny, 89 Illinois App. 293; Van Horne v. Campbell, 100 New York, 287; Lovett v. Gillender, 35 New York, 617; Williams v. Herrick, 19 Rhode Island, 197; Kaufman v. Burgert, 195 Pennsylvania State, 274; McIntyre v. McIntyre, 123 id. 329; Rea v. Bell, 147 id. 118; Conger v. Lowe, 124 Indiana, 368; Fowler v. Duhme, 143 id. 248; Zillmer v. Landguth, 94 Wisconsin, 607; Ernst v. Shinkle, 95 Kentucky, 608; In re Thomas, 30 Ontario (Canada), 49. Such a condition is not mitigated by adding to it a provision that the land shall be built upon, or be used as a farm, or for any other specified purpose. Cushing v. Spalding, 164 Massachusetts, 287. A condition against alienation for a specified term of years is also void. Fowlkes v. Wagoner, Tennessee (1898), 46 S. W. Rep. 586; Jones v. Port Huron &c. Co., 171 Illinois, 502; Mandlebaum v. McDonell, 29 Michigan, 78. And so is a condition that land devised absolutely shall not be alienated without the consent of a person named. Muhlke v. Tiedemann, 177 Illinois, 606.

A condition that a legatee or devisee to whom an absolute estate has been given under the will, shall dispose of the property after his death in a certain way, is repugnant and void. Howard v. Carusi, 109 United States, 725; Wilson v. Turner, 164 Illinois, 398; Wolfer v. Hemmer, 144 id. 554; Law v. Douglass, 107 Iowa, 606; Burleigh v. Clough, 52 New Hampshire, 267; Ide v. Ide, 5 Massachusetts, 500; Hall v. Palmer, 87 Virginia, 354; Benz v. Fabian, 54 New Jersey Equity, 615; Ramsdell v. Ramsdell, 21 Maine, 288; Good v. Fichthorn, 144 Pennsylvania State, 287; Rea v. Bell, 147 id. 118; Clay v. Wood, 153 New York, 134; In re Gardner, 140 id. 122; Den v. Blackwell, 15 New Jersey Law, 386; Johnson v. Johnson, 48 South Carolina, 408.

Nos. 16, 17.

Bradley v. Peixoto; In re Dugdale. — Notes.

A condition subsequent that the interest of a devisee shall cease, and the property shall go over to another in case it is taken upon execution for the devisee's debts, or is assigned in bankruptcy, is valid. Thornton v. Stanley, 55 Ohio State, 199; Bryan v. Dunn, 120 North Carolina, 36. But a devise over or a trust is essential to the validity of such condition. Hobbs v. Smith, 15 Ohio State, 419; 1 Underhill on Wills, s. 526.

In America the authorities, contrary to the English ruling case, In re Dugdale, supra, p. 613, and other English decisions, generally hold that a testator may legally create an estate in trust, with a provision that the income shall not be alienated by the beneficiary, or be subject to be taken by his creditors in advance of its payment to him, even in case there is no cessor or limitation of the estate in such an event. Hyde v. Woods, 94 United States, 523; Nichols v. Eaton, 91 id. 716; Broadway Nat. Bank v. Adams, 133 Massachusetts, 170; Baker v. Brown, 146 id. 369; Sears v. Choate, 146 id. 395; Claflin v. Claflin, 149 id. 19; Billings v. Marsh, 153 id. 311; Wemyss v. White, 159 id. 484; Roberts v. Stevens, 84 Maine, 325; St. John v. Dann, 66 Connecticut, 401; Anthony v. Anthony, 55 id. 256; White v. White, 30 Vermont, 338; Barnes v. Dow, 59 id. 530; Wales v. Bowdish, 61 id. 23; Garland v. Garland, 87 Virginia, 758, 24 Am. St. Rep. 682; Smith v. Towers, 69 Maryland, 77; Reid v. Safe Dep. & Trust Co., 86 id. 464; Campbell v. Foster, 35 New York, 361; Steib v. Whitehead, 111 Illinois, 247; King v. King, 168 Illinois, 273; Meek v. Briggs 87 Iowa, 610; McCormick Harv. Mach. Co. v. Gates, 75 Iowa, 343; Linn v. Davis, 58 New Jersey Law, 29; Frazier v. Barnum, 19 New Jersey Equity, 316; Rife v. Geyer, 59 Pennsylvania State, 393; Shankland's Appeal, 47 id. 113; Handy's Estate, 167 id. 552; Seitzinger's Estate, 170 id. 500; Baeder's Estate, 190 id. 606; Wanner v. Snyder, 177 id. 208; Handy's Estate, 167 id. 552; Lampert v. Haydel, 96 Missouri, 439, 9 Am. St. Rep. 358; Partridge v. Cavender, 96 Missouri, 452; Jourolmon v. Massengill, 86 Tennessee, 81; Patten v. Herring, 9 Texas Civ. App. 640; Pace v. Pace, 73 North Carolina, 119; Hill v. McRae, 27 Alabama, 175.

In Broadway National Bank v. Adams, 133 Massachusetts, 170, 173, Chief Justice MORTON, for the Court, said: "We do not see why the founder of a trust may not directly provide that his property shall go to his beneficiary, with the restriction that it shall not be alienable by anticipation, and that his creditors shall not have the right to attach it in advance, instead of indirectly reaching the same result by a provision for a cessor or a limitation over, or by giving his trustees a discretion as to paying it. He has the entire jus disponendi, which imports that he may give it absolutely, or may impose any restrictions or fetters not repugnant to the nature of the estate which he gives." Affirmed in Wemyss v. White, 159 Massachusetts, 484.

In a few cases, as in Thornton v. Stanley, 55 Ohio State, 199, a provision in a trust to protect the trust property from the creditors of the beneficiary is not effectual unless a discretionary power is given to the trustees, or there is a limitation over. See also Tillinghast v. Bradford, 5 Rhode Island, 205; Mebane v. Mebane, 4 Iredell Equity (N. C.), 131; Heath v. Bishop, 4 Richardson Equity (S. C.), 46.

Ir performance of a condition subsequent is rendered impossible, the estate to which it is annexed becomes absolute.

[170] If the condition is made impossible by act of God, it is not broken.

One devised to his eldest daughter, upon condition she should marry his nephew on or before she attained the age of twenty-one. The nephew died young, and the daughter never refused, and indeed never was required to marry him. After the death of the nephew, the daughter, being about seventeen, married J. S. And it was adjudged in C. B. that the condition was not broken, being become impossible by the act of God; and the judgment was afterwards affirmed in error in B. R.

ENGLISH NOTES.

An "Anonymous" case is thus reported by Salkeld (p. 170): "Condition was to make obligee a lease for life by such a day, or pay him £100. Obligee died before the day, and adjudged that his executor shall have the £100, per TREBY, Ch. J."

In Davis v. Angel (1862), 31 Beav. 223, there was a bequest in trust for A. in case he should marry C., and after his decease, in trust, &c. But if he should not marry C., then the testator directed that the bequest should not take effect, but go over. The condition of marrying C. was held a condition precedent.

AMERICAN NOTES.

Where a condition annexed to a devise becomes impossible of performance, the estate given upon condition ceases to exist, and the prior estate to which it is annexed becomes absolute, the principal case being the law as held by the American decisions. Thus where a testator devised real estate to his son, on condition that he should support his brother, and in case of a breach of the condition the estate should go to another upon the same condition, upon the

death of the brother in the lifetime of the testator, the condition became impossible, and it was held that the son took an absolute estate. Parker v. Parker, 123 Massachusetts, 584. In this case there was a manifest intention of the testator to benefit the son, subject to the charge, and, therefore, the devise did not fail because of the previous death of the brother. Where a testator gave a sum of money to one for life, which after his death was to go to a town to support a clergyman, "failing which it shall revert to my heirs-atlaw," and the town could not lawfully support the clergyman as required, it was held that the gift to the town failed, and the limitation to the heirs-atlaw took effect immediately. Bullard v. Shirley, 153 Massachusetts, 559.

It is the rule that when a condition subsequent was impossible of performance at the time of the execution of the will, or at the testator's death, or subsequently to his death, it becomes impossible of performance, the condition is void, and the devisee or legatee takes the bequest or devise discharged and free of the condition. United States v. Arredondo, 6 Peters (U. S.), 691; Merrill v. Emery, 10 Pickering (Mass.), 507; Birmingham v. Lesan, 77 Maine, 494; Morse v. Hayden, 82 Maine, 227, 230; Madigan v. Burns, 67 New Hampshire, 319; Calkins v. Smith, 41 Michigan, 409; Hammond v. Hammond, 55 Maryland, 575; Burnham v. Burnham, 79 Wisconsin, 557; Howe v. Hodge, 152 Illinois, 252; Hoss v. Hoss, 140 Indiana, 551; Bryant v. Dungan, 92 Kentucky, 627; Burleyston v. Whitley, 97 North Carolina, 295; McKinnon v. Lundy, 21 Ontario App. 560. Where a testator gave his grandnephew an estate "for the purpose of securing to him a liberal education" at a specified university, but providing that the property shall pass from him, if, "through his own disinclination or incapacity, or the indifference of his parents or guardians, he should fail to carry out these intentions," the death of the grandnephew while in college, thereby making it impossible to perform the condition, did not divest the estate so as to prevent its descent to his heirs-at-law and next of kin. The performance becoming impossible by the act of God, it is dispensed with, and the estate vested absolutely. Ellicott v. Ellicott, 90 Maryland, 321, 48 Lawyers' Rep. Annot. 58.

No. 19. — STACKPOLE v. BEAUMONT.

(1796.)

RULE.

A CONDITION in restraint of marriage under twenty-one without consent of trustees is valid.