37 Barb. 496 | N.Y. Sup. Ct. | 1862
By the Court,
There can be no question, I think, but that the legacy is given upon a condition precedent, and that the plaintiff took no vested interest therein, upon the will becoming operative. It was directed to be paid in one year from the decease of the testator, “ upon the express condition that the plaintiff should at the time be, in the judgment of his wife, worthy of this token of his remembrance.” These are appropriate terms to create a condition.
The case undertakes also to set forth “ the 'facts upon which the controversy dependsand we must assume, therefore, that the legacy to the plaintiff was not given over to any other party, on the failure of the condition. If it had been given over, I should regard Caw v. Robertson (1 Seld. 125)
Judge Willard, in his Avork on Equity Jurisprudence, states the rule thus : “ In case a condition precedent be impossible to perform, a different rule prevails in respect to legacies of personal property from that which obtains in rela
So far as I have .had access to the authorities cited by these learned authors, they seem to justify their deductions.
In Peyton v. Barry (2 Atk. 625) the testator bequeathed the residue of his personal estate to Jane Styles provided she married with the consent" of A. & B. his executors, and if she married otherwise, then the residue to J. IT. One of the Executors died. Jane afterwards married without the consent of the "survivor. ‘ The"master of the rolls held that the condition having become impossible, she might marry and take the legacy. He seems to have regarded the condition in that case as a condition subsequent, but apparently only for ■ the absurd reason, that- it was subsequent in order in the will. The case is, if entitled to any weight, an authority for-holding the condition precedent discharged by the act of God. '
In Thomas v. Howell (Salkeld, 170) one devised to his eldest daughter on condition that she should marry his nephew, on or before she attained the-age of twenty. The nephew died young. The daughter never refused and was never required to marry him. After the death of the nephew the daughter, then being about seventeen, married. Held the condition not broken ; it having become impossible" by "the act of God.
In Lovelass on Wills (p. 334, Law Lib. v. 25, p: 179) it is stated that “ where the condition becomes impossible by the death of the person whose consent was necessary to the marriage, the condition is dischargedciting Graydon v. Hick, (2 Atk. 18.) And see Knight v. Cameron, (14 Ves. 389;) Reynish v. Martin, (3 Atk. 330.)
All the cases I have seen, arose on conditions in restraint of marriage ; and it is not difficult to see that the decisions have been affected and perhaps induced, to some extent by
In my opinion judgment should be given for. the plaintiff.
Judgment ordered accordingly,
Davis, Grover and Hoyt, Justices.]