Finlay v. King's Lessee

346 COURT. SUPREME Finlay Mitchell, and John Plaintiffs Error Alexander King’s vs. Lessee. The The «In isIt By the Court. Virginia, whole beth’s, to sisters of the whole liam and Rachel Trigg, that his estate ried with Alexander M’Call. real daughters, both of Abraham B. said estate tion wife, importing a-present riage and unless it is There a whole always formed before the estate can quent. The same condition on which act property, construed, or follow if this subsequent. question of testatoVwas case of certainly her require (cid:127) wife, does not father of William estate, lands of his general ; lately blood, dower, are will, vests in the determine wife ^[377] Kentucky, and it, on many that the condition must be having no to such died words have been determined and performed, marrying daughter in case such from will well -Rachel shows that the rule, Trigg. B.,” necessarily precede my Elizabeth, .We a any a condition which certain other ^[374] intention. seised devising, in John very without cases in which the marry settled, wife, Trigg that a devise words imports, whether child, child or have devisee on the death of the testator. the devise to William whom is to and half Finlay; liberal Ohio and Tennessee. After a Mitchell, children, interest, mere circumstance that the estate of a to a child of never had a the wife issue. He survived his giving found no-case in that there are no technical are If devisee can very a devise be on a condition provision bequests; his case of his children, collected from act blood, in trust for the eldest son or issue vest, Elizabeth, in á married, I preference devisee, contrary large of William then leave and upon of John my language King, may should not to their issue.” the condition of course daughter, who contrary vesting for his brother James with the real which the estate having performed before the differently, son of brother one William ot the intent making survived King depended, is a Mitchell, will and performed nothing. which Trigg’s, and wife, only principle the whole age, take wife but had four .personal a child declares : appears, exception making,by his present bequeath all father, one no other him, of said William- place, of John particular a who and the King’s, appropriate general her precedent daughter, has been decided. The If, James estate, and also a sister of an immediate time, depends died Heiskill, is children, I leave life, my of the given sons. It is also Mitchell, question disposition or of sister Eliza- before my clause, time, had niece Kaehel devise in out condition subse- King, may precedent; will, in addition -who words which must be on contrary, provision for brothers the states of said James subsequent. and Rachel condition accompapy him. Wil- part of his condition, on condi-: give can vest. intermar- is bequeath or of the had two estate at whole interest, general always words, been mar- per- A. JANUARY TERM et al. e.s. As ..- The (Hunre. The e , "carry be when decided in this ^[379] at the'death unconditional. The pened; to make and ordain “ queathing be entitled to wife the whole visee of.law, rejectedbr the if the whole rule, two marry visee condition time in case introductory intent considered construed particular intent can be principles that if an estate be the whole as the timé when the devisee respecting.the performs intent B.,if estate is devised to William Did William King-take enures limited, .it of the given of heirs is considerable must pvgpertyis so my in uncontrolled having subsequent'. of of so far as restrained instance. a trustee for the seems worldly estate in the manner clause-in the cause; shall my testator prevail; although éstate from will to William the wife clearly condition, testator shall wife, devisee interest devised. bring'a bill to enforce this to "own given, respects children., influence, in their is the cardinal rule the will belongs given be, to William ^[377] perceived, [3,76] benefit; or others has his be and if opposes heirs of the an application as the time of heir, states, my he require in to a court of the. words, in thén- King, marry life devise tó King, shall'.be entitled to last will question giving effect to question and . The no obstacle “ I, Wason a leave that construction. he, which, takes but the B. at the,execution of the life, son of brother James taking-possession, in the performance. words in the of chancery, and and for the A., arises between followingThese effect fix'the doubtful change contrary in condition construction of postponed to his immediate possession on condition that bequeath my testament, ? thé events existing King, time it, immediately, performance This their possession. Théy some'words should intent, in during to particular (cid:127) question subsequent, may will some state of [378]. literal of- that .of until her leaving thought proper trust. result his life. The King.” acase where wills; positive heir of which no and the de- determined it had’been meaning possession, clause have' words cannot be things, part testator’s and be and ^[383] estate death. it and if these hap- shall of rul also de are are be in (cid:127) for the United States the. district court

ERROR western Virginia. district district in the court ejectment brought

This in involved the question of Virginia,'and .district western of William will to be was the cohstruction given suit in deceased, Virginia. county formerly Washington follow- below, court on in the was argued The cause in court and the being judgment case agreed; ing error, brought the plaintiffs, defendant favour this into court. is the case: agreed .The following the 8th life on this William King We agree departed SUPREME COURT. al. et 1808, first October made duly having day published of] will and which was last afterwards admitted to testament* !inthe court county Washington record county Virginia, resided, and is in the where words and fol- figures lowing!: on the

“Meditating uncertainty life, I, human íiave to make and ordain thought proper testament, last leaving my my bequeathing in the manner to wit: worldly,estate following, “ wife Mary, beloved addition to dower piy To her.légal estate, the house and other dwelling all my buildings numper ten reside, where I Abingdon, now lot together orchard, and that hill fruit garden, part road south of and lands great adjacent plantation Co., to C. Finlay now rented and at my Abingdon, Idecease, those including occupancy father’s road, for her natural life. great sidle north declare, that in and case my beloved wife also or me, a child children hereafter that hafh the said Mary are to be is and sole heirs of orlchildren my whole child one-third of estate, and personal; excepting part speci- r^al and hereinafter mentioned; appropriations fied legacies which, case of will reduce le- my having each ih children* to one-third of after mentioned the amount part heitein gacy and the disposition specified, hereaftef that void. case wholly mentioned as herealfter children, I cpse of then leave and bequeath having “In at thé death of my real estate wife to William King* all my James on condition of his of brother son marrying wife, and of William niece-Rachel my daughter Trigg’s son or in trust for eldest issue of Finlay, lately Rachel said, and in such .should not case marriage; child, said estate to and bequeath I leave giving place, of and that said William Rachel Trigg age, preference or of sister brother James a child my will marry Mitchell, their issue—and wife John and to to- Elizabeth’s, wife, and re- intention tne life time my my during is. carry her do and Jqmes that William Trigg, quest:, mer- and both saltworks on business copartnership, my TERM JANUARY [Finlay et al. vs. King’s Lessee.] shares,' consideration each and chandizing, equal the follow- out same the use capital pay my they ing legacies: of his Mitchell, and car-

“To John assisting usual at the as salary formerly, on business with them rying viz. for from to five years, may $1,000 two per year, they $10,000, sum-'of wish his An additional paya- assistance. after, decease, children ble and each five years my than the upon $1,000 legacy more general coming age héreafter mentioned. of $10,000;

“To a like sum payable Finlay Connally five years. Mitchell and Elizabeth nieces Elizabeth my

“To Finlay with whom I was called my grandmother brought (being in twelve after marriage, provided $10,000 months up) are, not, at the age eighteen; years age; eighteen nieces at other nephews age my to each James, -that is children of brother sisters Naney my eighteen, Elizabeth, each of the $1,000 of my children each —to each, Hannah Samuel half-brother half-sister $300 Hannah, in said sister two.years after aforesaid; my my Samuel, in and to half-brother $1,000; my.said decease at Saltville the manager application my of personal the 1st day January Abingdon, annually executors if not called for on $150; said his life to be day during receipt to.be personally giyen. void for year, wife, wish and my request my Trigg, shall of them that concur in two arty and James-King, all the business, should either on the join young carrying me in reside me be-assisting may men or, furnish with four decease, them or five that are worthy; advance, bn of at reasonable dollars worth thousand goods vears, taking, with to five of from three inte- bonds a credit after one year supply. from rest “ brother continuing James should prefer part- my In Carson, S. with Charles place closing (in nership and legal as soon business and King, King, Carson and my is that Trigg convenient;) my their own business, of each carry wife one-third COURT. SUPREME al. et account, to be third be- equally and the remaining divided^ and my the children brother James sisters .'.Nancy tween Elizabeth. father, his life during “To Thomas leave my hill, he now resides in and occupies together houses Fruit with land said tract north that part my great farm, want with what fruit he may road that he chooses , house orchard; from intended spring being direction to the wash house with the appurtenances, subject orchard, except as also beloved wife my Mary, sum father I also leave and bequeath my aforesaid. if, life, dollars annum of two hundred per during Fipcastle house accidentally, fire destroy annum sum of two hundred dollars per further buildings,' there would cease. his'income from while academy to the Abingdon “I leave bequeath also 1816, in the trustees year of $10,000, the sum payable amount, in said academy vested lands to for ever. thereon or rents the interest “ 1806. 3d of March Virginia, Abingdon, KING.

WILLIAM Test. Wm. Neelson, D. Doherty. Jno. and James William Trigg Abingdon I hereby appoint last will*and testament of my Nashville executors 3d day signed enclosed, written own.hand of March

WILLIAM KING. 3d of March dates said previous wills of “The other 1806, void. being KING.”

WILLIAM death, at the time of We agree of land tracts seventy-six and possessed was seised 19,473 whole in the of Washington, containing said county saltworks, land, tracts is on one which acres annual at the have, death, been leased for since his years, in-the. lots of nineteen also dollars; thousand thirty rent pro- of which nine Abingdon Washington county, town of JANUARY TERM [Finlay King’s et al. vs. Lessee.] duced an annual rent of six hundred and dollars; also sixty of fourteen tracts of.land in the of Wythe, county containing 3,4944; also of of land in eighteen tracts state of Tennes- the - in see, the 10,880; whole also of containing shares in town . lots in several the said towns in.the state of Wé Tennessee. also said agree the survived in William his father the King that will that mentioned; said William had brothers and King sisters, to wit: James whole blood; brother King, óf Nancy, blood; thé whole wife Connally sister Finlay in will Samuel mentioned.; a brother King, blood; half Hannah, blood, wife sister the half Allen; of John brothers and sisters before .which named, survived the said sister ; William that another King of the said blood, William before whole died King, him, and Elizabeth, was named the wife of John Mitchells who is in mentioned the will. that William agree

We the lessor of the King, plaintiff, the same William the son of brother James King, testátor., mentioned in the will. himby

We further agree William Trigg, men- in the tioned, this 4th of 1813, life on departed leav- August mentioned, widow, the will Trigg, Rachel and four ing sons, the borne them to the said Rachel having said William borne him said Trigg, having any daughter time, which said are now sons Trigg, William living; who was the wife William Mary, said of. years, and is now still forty-three living, aged the wife Francis Smith.

We further the lessor agree William King,, Bekem; bad is married Sarah that James. King plaintiff, Eliza, one named Rachel who. now only daughter, Mary Elizabeth, the wife of the wife and that M’Call; Alexander Elizabeth, Mitchell, of John two wit: only daug'hters, to who is Heiskill, who is now the wife of Polly, now wife of B. Trigg. Abraham arid died seised

We agree house declaration mentioned. and lot possessed sup- We lease declaration agree entry ouster SUPREME COURT. et al. and that the are of the house possession defendants posed; and lot mentioned. declaration facts¡, If the lessor of the state upon plaintiff ought time,, at this we that shall to recover be en- agree judgment him; for and that if the court be of that opinion tered shall the he not to recover after the until ought Máry, Smith, he not at Francis that time to or ought any wife.of recover, shall be entered in favour defen- judgment controversy dants. alsoWe that the is agree property worth moré than two thousand dollars. error,

The case was Mr argued plaintiff .the .by Webster, and Mr Sheffy; the Smyth Mr defen- dant, at the last term; and held under advisement by court.

Mr Sheffy to proposed consider the two gene- under ral aspects.

1. tías the defendant error any title estate in question, ás regarding himself. personal title,

2. Has he any the devise be considered. as a trust. is,.contended,-that

It he has no title. That no interest him, whatever the condition vested because presented by has testator been not He has performed. not a married of William daughter Rachel wife. Trigg has a This without precedent, the performance .of which could right vest no devisee. will,is If the construed words literally, employed by are as the' as can bé.. strong they testator He the estate gives “on condition” that the devisee a marry person not in shall being, expected existence, into come Of offspring wife’sbrother and his own niece. He anticipates such may a In this place'. event he directs his whole shall' to such go persons, Other certain among collateral relations, as shall effect give he had in view. object

But it admitted that the question, whether the condi- is precedent tion or subsequent, does' not depend on form expression. depends the testator’s intention.

JANUARY TERM 1830. os. King’s et al. whom, has a bestow his He and on what right so that he condition he established violates'no rule pleases, intention, law. To ascertain we must be.governéd of construction which by those rules have been established a decisions. by series of judicial tous

These decisions general enable determine princi- which character conditions in ples contracts, a give hither conditions sub- precedent devises bequests; sequent. question concerned, So far as the present establish, testatorrequires where devisee to do an act regards important accomplished; which devisee he’prescribes where qualification act, and the attainment óf acquire; performance as .conditions precedent, will be qualification, regarded apparent. unless contrary intention manifest court, children. In before the case qnion between the to effect desire fainily He had strong his real In the disposition of his own. wife and his he object paramount attainment.of contemplated reason There to to all believe considerations.' personal of his was the peculiar that his object nephew it, he withholds from him (cid:127)attachment. So far from (though unless he bounty, he o.wn bore even smallest name) of his iñ the accomplishment become instrumental with a his marriage to daughter purpose. Looking primary wife, as an event which and'Racheh his of William Trigg others, stimulate to endeavoured he might never happen; him, effect the tO” desired same delation- to. standing not dedicate did estate' He families. union .of the two attachment, or to promote in- personal a particular gratify about an event-which bring hut interests.; dividual desired. strongly 833, Vernon; Falkland, 2 strongly The vs. case Bertie by plaintiff contended the construction supports an estate Elizabeth devised the testator error. There “ in case she old married of ten years infant an Willoughby, death.” The mar- years.from lord three Guilford within- on was no fault the- though-there place, did not take riage held to be was The marriage devisee. part U III.—2 Vol.

354 SUPREME COURT. vs. et al. Lord Treby, opi- chief precedent. justice delivering court, Elizabeth’s be- nion of the defendant says, or about willing endeavouring consenting, bring ing could avail be or moment in this marriage, hot .the that the will was formed on ; not the endeavours In parties on event-. agreement marry, Vernon, 783, vs. P. W. the case Vernon Rep. Acherley Wills, lord referred chief by justice by considered The case'before him him as the law. involved the settling The question same whether principle. performance sister, of an act the testator from his was a con- required by dition; which her title to a depended, precedent legacy at whether the her death. It was vested brother’s legacy that the act decided with the being object and. him, was the consideration of the desired legacy, a condition therefore precedent. qf cited,

A all variety authorities great tending might the same refer establishing principle. is.sufficient .to Wilson, Vernon, the court vs. 2 following: Creagh Elton, vs. 572. Elton 1 Ves. vs. 1 Sen. 4. Gillet Wray, Williams, 284. Atkins, 2 16. P. vs. Graydon Graydon, Martin, Atkins, 3 Warren, 333. Reynish Grascott vs. Modern, & Harvey Aston, Wife vs. 1 Atkins, 361. 128. Atkins, Bron. Payne, Cha. 55, 2and 151. Rep. Randal vs. Devises, Cruise, 2 Powell 252. 2 testator; intention should vest uñ-. nothing the condition should manifest, performed, til further will postpones right devisee of the real estate death of his until She was wife.. the date than moré years twenty-five age, he-reasonably that a effect, such as to he wished supposed marriage would before time, her death. In the take mean place the. legal law, to descended heirs at estate' who could hold.it the un testator, event til the contemplated by the should happen. Remainder, 513, on 516. Fearne Fonb. Eq.

It-will said probably the intent though be that in until postponed terms devisee testator’s wife, that it .yet be ought construed into an. immediate interest implication. Such court was the opinión 3$5 TERM 1830.

JANUARY et al.tis. allowed below. sometimes Courts have when implications are in order effect to in- very apparent, give the. they . of the must tention testator. But they necessary, not for the title the heir law probable implications; being obvious,.no and words in a will plain to be construed ought it, to defeat can have Cruise, any signification. Devise, title 2Ó5.

But the devise over shows in that the strongest light did not intend to . with the unless part event which he He sought about bring happen. should directs in case such not marriage place, leáve bequeath the said child estate said William and Rachel child a Trigg, marry brother James or of is immate- King sister Elizabeth.” It law, rial whether the devise could take effect according apd could, not; xestator in thought .intended.that the estate should pass others mentioned event defendant, will. According pretensions nevér could mentioned pass, -.event though clause referred to should it should be happen; decided though that the devise within was Forthe legal ground limitation. is, on which he his claim is rests that on the (as understood) vested, fee, death of the testator he took a contingent would become absolute with daughter marriage Rachel his wife; that as there never Trigg William condition, such he could any. person, perform it, therefore absolved from and holds the If absolutely wife, then son of RachreHiis inter- Trigg ElizabetkMitchell, married of James daughter the defendant would have the ex- against kept law, intention testator. This press cannot be because it is to all reason. with the contrary sporting which the law citizen to right guarantees dispose to whom and on what condition he so property pleases, violates no established rule public policy. contended, that, But it if the estate vested the de- fendant at the death of the that all him be- right came That the death of Trigg. extinguished doubt; as the placed event such beyond SUPREME COURT.. 356- et al. os. [Finlay take could not to the place. As wished promote, testator the, therefore, with his title ceased defendant, possibility of two uniting his families. becoming.instrumental contended,, that, if the will be marriage But it -and .Rachel is a daughter-of Ring .Trigg then the estate discharged subsequent, condition from it; impossible conditipnj.it being perform correctness is not admitted. of-the conclusion was the union of the If primary legal-object the testator’s defendant, on families, if he two devised instrumental should become that he effecting condition that it is immaterial whether condition object; is.prece dent or failure to whether the subsequent, accomplish desired, one cause .or another. The purpose owing intend recurs, did his testator question nephew still that estate, whether the .pre marriage should whole not, failure provided take place scribed'should the testator to him had declared Suppose not attributable ‘l have his should whole his nephew his death that on that fee, daughter William condition married-a it was but. that.whenever ascertained Trigg; and -Rachel from place, not cause take marriage-could such that cease, and that whatever, that all the estate right such person actually designated should go that the Could it be seriously .will. argued impossibility defendant, on the marriage, part such render him, absolute in intention of express against believed could not: the testator? this is yet court, before-the if very case defendant had a vested interest at the of the testator. that the argument absolute acquired es- defendant

tate, whenever it became perform impossible on his the devise has part, support no other the idea except over was the devise as a penalty for not intended him what doing desired, and that there can be no the. pe- when nalty is no there fault. is a This of the obvi- perversion ous of the will. meaning acquainted The testator was fully with all the circumstances; he knew that William and Rachel Trigg daughter, foresaw it was consequently TERM 1830.

JANUARY vs, King's Lessee.] et.al. a., In could place. such possible he had should’ nephew intended state things, a fault in the unless he was guilty disobeying wishes, would the devise have restricted even to not he. he not have occurrence of such fault ? Would indicated the vievvs, to his that it was or indifferehce that resistance should' fault, take the from the it party place a,t the of. The never others. testator such' disposal thought an dear to He wished to heart. If thing. object effect cause,. for effected, he not the was not In-i cared object dividual had the purpose. share personal attachment families was act which the The united meritorious two the with him. only consideration it,is of the In the view subject, material whether was, at the date the afterwards became condition was, if it could Be shown But it that this easily impossible. within neither the classes condition mentioned-in fal]s excused; It where was not a the books performance is. con-- of the will; date the dition-impossible-at.the contrary, it probable quite Trigg Rac.hel wife, were-both would have a very young, daughter-to who. .whom the defendant could be united An matrimony. condition, void, which is considered as is of this impossible be character; is.required that at the time performed, coujd of a its short accomplish performance. nothing miracle 111, .5 down in Viner’s Abridgment, .laid in a that a shall be Rome person go day, it condition but if condition be that the Pope impossible; shall to-morrow, this is not an at Westminster con- impossiblé be dition, ’If the event is a person though improbable; highly be himself for required by qualify orders should arrive time he holy by age on the condition and consideration of twenty-five years, and that should be to him in the interest legacy, paid' time, it a would make vested mean (which legacy), for that his be excuse intellect was allege, legatee an and the unequal necessary attainment learning functions, ecclesiastical there- performance it was ? Most assuredly fore not. impossible SUPREME COURT. (cid:127) al. ns. Lessee'.] et which not a condition

This is became .after impossible non-performance excused; all, Those conditions to cases where belong testator’s accomplish means are in his view purpose and in but Whensubseqüent events being; the exist- change (cid:127) state; of so as to irig essentially things render perform- devise, instance,, if a ance-impossible, made con- dition that the devisee consent to amarry particular person, dies, and that performance rendered person impossible which, event of an the tes- by happening, subsequently, tator never where contémplated; and previ- it, will become such ously absolute the death vested person. , defendant, will be leading and which Howell, the case of Thomas vs. upon* doubtless relied 66. But that case different from Rep. is-essentially Mod. the, this court. There the devised to his one before testator Ldwhorn, an Jane estate on called daughter “ or before the do 'she, twenty-one at con age. years, Thomas, was who marry Theophilus the testator’s sent” he devised Then to his estates two remain nephew. “ ihen this And proviso.: and follows daughters, my ing in case consent *) that Jane shall my daughter wil'l refuse Thomas, at before she marry my nephew Theophilus in mean time age twenty-one years, shall be void.” He person, another the devise shall marry shall proceeds his other suc to devise Lawhorn to daughters “ adds, and then' condition; same case cession, on the said marry my nephew, daughters neither said then them in Lawhorn shall be voidand estate de given estate over to trustees. vises died twelve age Thomas Theophilus Jane years; him, his death, after marry and refused at the never age o,n seventeen, She another had person.. married entered father, and death of was, on the her question Lawhorn divested, was the estate whether contemplated effect. having never taken Three one were first judges opinion, that under the to divest con- Jane must

proviso have refused TERM JANUARY i>s.'King’s [Finlay et al. Lessee.} Thomas; that what followed Theophilus to marry sent” to the clause reference and subsequent same proviso, taken in a sense than the to be larger proviso itself; riot ought decided that the estate Jane ground upon absolute. base, an defendant, instead for the

This being authority shows pretensions. bears It that the strongly against court on the which made the proviso, decided re- “ consent to oí marry” Jane Thomas Theophilus fusal which the devise over should the basis take effect. And arises irresistible -ation from impu then opinion if the case had court, clause, rested the last would have gone trustees.. that, To in the court, case now before the establish defendant acqüired title can be-defeated only by default, would overthrow the voluntary principle well estab- cases of lished conditional many devises limitations. For A to A. an example: estate for the term devises and if at the end of the term he years, has a thirty child fee, to A. but if he should child living, then living, to B. not be the fault of A. had no might child term, vX end it has never living yet been ques- B. tioned that would take the estate. : case, common.

Again suppose which very A testa- tor devises an estate to ; A. his heirs but if A. shall die death, without issue at his B. living and his heirs; law the heir at of A. be permitted to .keep fault, on the that his had committed no ground ancestor that therefore the estate absolute 1 Such a became defence offered. has never been contended,

It is second that the place, defendant .has as no title if we a trust. regard is

There case which in this belief, authorizes the nothing that the testator had for the defen- personal predilection any dant. He son of his mentions him as the brother James King; that, but is refers, there as likewise nothing peculiar same view, and with the all the other children of James and those If we sister Elizabeth. confine our- to the words idea of selves beneficial in- any employed, SUPREME COURT. et al. intended for is terest excluded. being He is estate on take the certain marmge.shall “is but it for eldest son or effect; issue trust If we union of marriage.” regard the two fami- said which the testator object lies as great bring sought in whom then those be finked about; blood of of his both; have been.the objects must favour. peculiar that-a probably thought testator not person The being estate, unless was not take the instru- through could a trustee. Hfe regarded, nephew merely mentality conduit, should flow bounty whom to those through because he considered pre-eminent; whom both the blood of families. inherit trust, be as a the devise considered then the If ques- interest vested on whether trust the death any. tion arises was to when or whether .it arise the marriage devised.; No immediate interest effect 7 expressly took “ ,are, of my the words used the death at. contrary, immediate interest There no reason support wife.”' no because for as the it; thére necessity by implication, vest, could until those who to en- interest were beneficial Besides, the statute of uses- come into it would existence. joy A, use of B. the as a devise a devise same makes of law to devise is in the eldest son point B. so that The doctrine well established or issue of the marriage.” law, to the heir such a case the title descends that in legal issue, when it vests in until the birth and remains case, no such there being possibility him. In this heirs at law is in-trust issue, in the longer the title but is'absolute themselves. purposes sake, the trust vested on argument But admitting, that whenever testator; it is the pos- urged, testator’s nephew of a between sibility extinct, became of William and Trigg Rachel daughter terminated. trust the trustee holds the is, such purpose trust who of those are for the sole and benefit exclusive ..to if no such interested; person- shall beneficially existence, has not disposed into

brought 1830. JANUARY 361 TERM al. vs'. King’s [Finlay et Léssee.] estate; has never because he such a .contemplated state doubted, ever that if No the testator had person of facts. son of to the eldest when estate given born, should son, and William never have to the heirs at law of. testator. go estate that.the Whateyer to show that the might appear manifestations intestate, such die intend to not manifestations did aid than to where the court effect never or when question, is doubtful estate .an donation includes. description But giye general udiat property absolute title to be- merely trustee naked to a was in- fon whom interest person beneficial cause'the born, aiid not not because has been testator did tended , intestate,, is not reason or autho- die supported intend .by considered, the title contrary,- on’the th.e rity; dp unless supported, can will visee always heir law tention him.. against tin clear show a trusts is peculiarly resulting applicable doctrine settled,-that It well case. wherever this part cannpt satisfied, have been or be exe a trust ot purposes at law. 3 P. reverts the heir Wil cuted, Trusts, on 164. Saunders Uses 1 20, 1 liams, 252. 60, Cases, 508, 4 Cases, Brown’s Ch. note. Ch. Brown’s 409. Webster, and Mr for"the

Mr error. Smyth defendant case three questions this’ are presented In consideration. is the condition 1. Whether the real estate is ? subsequent King, precedent given it to be 2. whenMoes the subsequent, Supposing in William King? vesHn possession of the estate when 3. nature vested? What admit, 1. if a condition becomes im Wé preqedent arise; the estate will and equity never possible, we But contend that if a condition be subsequent relieve: defeated, estate will comes not be forfeited. impossible, 156, a, 7 b. 206, Bl. Com. 157. Co. 2 339. 2 Litt. Vern. Williams, on Contracts, 626, 266. 2 Powel 18. P. Atk. Devises, 627. Powel V III.—2

Yol. SUPREME COURT.

n et al. The same words make a condition or subse precedent quent, intent who according person it. .creates Wiiles, 156. 2 Bos. & Pul. 295. 1 East, Durnf. and 645. Caines, 2 352. Devises, Powel on 183. T. T. 166. Cases

Whether the condition or is.precedent de subsequent, on the pends order time in which the intent of the testator requires Wiiles, the performance. 157. 2 297. Bos. & Pul. said, Justice Heath is, “The question whether the always is to thing before or happen after the estate to vestí If. beforé, the after, condition is it is precedent; subsequent.”

In court, the case before the the intention the testator clear, that William have on should the whole estate King the death of Mrs Mrs have within died King. might King á year after the death of testator; yet daughter wife, whom Rachel Trigg King required have marry, been born might twenty years afterwards, and the have at the taken marriage might place end of .more. It could forty years not have in less happened than thirteen more than years, might happened sixty years after the death of the testator. the tes Clearly, intended, tator circumstances, under those the marriage be might subseqUerit ta the of the estate. vesting Unless the intent of the testator that the devisee required should, before the death Mrs a female who marry King, was unborn at the time he made and at the time death, cannot be a condition should precedent. Why it have made difference to the whether the before happened or after the death marriage of Mrs 9King A condition precedent or as the act subsequent, be actj done before or after estate vests. This the mar- was not bé riage, done before necessarily whole which vest A condition be com- possession. might after the time sixty years plied prescribed vesting condi- subsequent whole estate in possession, must.be as act well after before tion. If the be done may estate, All subsequent. con- the condition is vesting ditions in subsequent. wills are either A con- precedent after, is not dition be before either may performed precedent condition, subsequent. condition therefore is a TERM 1830. 363

JANUARY et al. vs. Lessee.'] I then leave says, my wife, William son brother death James of his &c. The whole marrying,” at the death of Mrs But vest Wil in...possession must King. old when the made, was three will was years liam King, who condition. A his whole life to perform marriage fulfilment of Mrs after her condition, as a death.. before There well is condition-subsequent being impossible, fore ] 2 Atk. 18. or forfeited. estate will not defeated Cases 257, Wms, 626. Pow. Dev. 258. 164, 166. 2 P. T. T. Aislabie, Madd. 256, 260. vs. Salk. 170. 4 Mod. Rice which, at view, first reported cases There are some may us; examination, which, seem will be adverse found differ our case. In essentially from of Bertie to was be precedent. the adjudged Falkland(a), for thee to and trustees there years, was There devise was to vest. was a the estate in There years three marriage the a condition obviously precedent; was marriage the" was to in in year?, being take effect three trustees, not vest- the termination was to until thre.e trust, in. was a if A. where years. So there settlement issue, sixteen,.and male, of B. after the marries age j for themselves be to and B. condi the estate shall A- is is for the estate trus expressly tion precedent: given 2 tees, and the birth Vern. 333. until the of issue.. 1, Condition, B. 10. Dig. pl. Com. does the vest of possession When estate William

2. the lessor error of King, the defendant contend, all of estate King, We will,, If all is devised by is devised will. by estate, from the real the death of right possession of. is not devised. King, death the testator Mrs real estate de- Mrs King by implication. devised posr y right takes to William vised King therefore 86, says, Reports, p decision (a) A late note in a edition Freeman’s this lords; the house reversed COURT. SUPREME al, et Mrs unless the life devised King, session during sonie person. that, as to the lands William

We contend King saltworks, the dower of Mrs testator; King, except to Mrs to Thomas King, lands devised King, those passed Academy; devi- see, on the death. immediately testator’s land, tracts’ of

Did the intend hundred lots, town should to his heir descend thirty forty until ? that the testator did his wife We insist the death to his heir for a hife lands mo intend that descend where, will,.the take, from the ment! The heir shall not in of the testator that tention he shall not take appears. The over, one, limitation not to be a although supposed good testator to shows the determination defeat the claim héir, 1 of his Dall. 227. If the estate does not to William pass immediately there bemust either a life estate or descent by implication, heir, to’the of Mrs As the life time during King. Mrs,King lands, has dower and a devised to her in the whole life also take life es them, she cannot part claim a cannot táte in residue She lifé implication. Had William estate in also the whole. parts, King,. devisee, heir, there been no devise been the and had , Mrs at the wife,” him life, by implication. would have estate.for her ah given 572, Bac. Ab. 288. 2 Vern. time of was, making The father-of the testator devised, life, his heir To him presumptive. land, as of acres of many use twenty Cottage, perhaps eat, arid annuity could from:the orchard as he apples land was Mrs death, go his this After piece $200. that the defendant.did devise shows her This life. one hundred heir should take his presumptive not intend testator mani- The Mrs King. the life of during plantations, father, has spoken outlive his wife to festly expected his if that was a doubt. beyond of his The reál tó whole intendéd testator dispose 365 1830. JANUARY TERM et al. vs. “ estate;” estate.. He real speaks disposition “ “ estate,” uses the es worldly my expressions, my “ estate,” tate,” “all whole real estate.” Did the my my as to his intestate hundred testator intend die one plan lots, the life of Mrs thirty during King? forty tations^ to die intestate as He did not intend his part “will, his and bequeathing my estate. He makes leaving If after the use manner in the worldly following.” words, of the testator’s' property clearly of such a part would not omitted, by such part pass it is .the admitted will these words will ; by but is given property if therein Ca. interest is given that all the testator’s signify 297, 1 Wms, 395, 298. Wils. 157, 160, 161. 3 P. T. T. 17, 33. 97, 2

333. 1 1 107. Binney, 226. Wash. Vesey, 543, 545. 1 Call, 132. 1 Munf. Tal Beckwith, lord chancellor In the case of Ibbetson “ estate) words said, these (worldly I opinion

bot .am whole, his his to have had him prove testator) (the but a made view, partial Indeed at that time. might and that taking di will be n; spositio general, spnse be a. will to .complete -in will -make his words one whole,, them whereas the taking, another disposition in that sense which chasm, they taken will shall be create a intent is most to his to be likely disposing agreeable his-whole estate.” “ the duration as estate,” All real descriptive it.includes well of the estate. Therefore as of the extent of Mrs King; before the death right possession, her, after; others well as lands not devised those Wms, 228. 236. P. her life. Salk. 524. 1 Vesey, during estate,” and bequeathing my worldly Leaving means by said. as if testator “Lintend to.give same thing wilt have in the world.” Wils. every this thing this, valuable por said devised the most having others, for her tion of his and to life. wife, at the Then he all his estate to nephew, devised declaration, with his wife. To this make agree world, that he tó will all he had in intended givé construed, devise must so that the devisee decease, on the of the estate immediately, testator's part SUPREME COURT. 366 et al. Lessee.], , another, has not been devised which shall that he death Mrs take, on the the estate portion her, others, devised to and to had been for her life. then, all it because he shall take cannot it all He take sooner. “ words, with the all introductory Taken connection wife,” death my estate at devise the whole my after the death y the estate duration of it to Mrs her life. give implication King, during bymay that the estate not devised to if it has been shown Now- devised, go it is it must as implication, Mrs King by devisee. the specific William King, estate, “All at the death of carries my my wife*” whole, as her but if well before as after death.: there wife, duration, words would divide those the. life, wife her and the devisee specific taking during take, wife cannot these words must When the afterwards. devisee can And satisfied. specific be otherwise residue the death of a part immediately, only all, wife; will take are satisfied. they so.that then is the star in constru the testator polar The intention 537, 1 547. 68. 1 Wash. 102. 4 Mod. Munf. ing wills. 32; The court will execute intention of C. Rep. 2 S. can. far as They transpose words, of will to effectuate intent Let testator. the. read, all” be and the clause made transposed, word the “ estate, at the all, and bequeath leave Call, 132. wife, to William King.” of my from intention of the testa- could Nothing further pf either brothers distribution tor than He' intended that to his nieces. nephews sisters, man,.his eldest ini should vest one nephew, real estate brother,, name, of his only the son own full of his of that or issue The blood, nephew. in the eldest son tp children, or his include Samuel distribution would gave the testator grudgingly annuity brother which half of #150. vest in possession, shall when question* testator, gather from intention

is to decided TERM JANUARY JTinlay King’s et al. os. Lessee.] 1 will. testator from the 342. The Doug. ed whole intended his heir or heirs should not have his plantations. To heir, the from the the of Mrs life during King, and such an requires necessary implication; implication Abr, is here. 4 Bac. 282. 2 Vent. 571. 1 Dall. 227. The devise Thomas the heir at King, presumptive the time will, the of a house and a few acres of land making for life, to Mrs life, remainder her is King during inconsistent real estate William taking large that he is not necessary it, to take implication Mrs during life. King’s

The counsel the other side has said argument, Thomas testator, the father of was an alien. That which, is record, out of the going the tes- appears tator considered his freehold, father capable to take a that he was in fact a of real estate. It has proprietor never been shown that and, Thomas alien; King from in- formation, it is that he probable never was an alien United States.

Either heir or the devisee take; must for the testator cannot the freehold in put abeyance. Doug.

If the condition of is subsequent, which we deem proven, there is no reason for the commence- postponing ment the estate of devisee, King posses- sion, of the real estate not devised for the life Mrs King. If the estate is given on condition subsequent, why may estate, not the except devised what to Mrs others, vest in possession on the testator’s death? immediately >t what To end suspend when it not wait for the per- formance of the ? “ words, These at the death wife,” of my were inserted in consideration of the devise of e use of the saltworks herdife, during dower, and the devise cer- estate, tain portions real words her life. These during effect; have their estate, because a large part of the fair valuable, most cannot, in,the with other clauses consistently to the come possession devisee, William King, until Mrs death. King’s

Suppose that a testator had made his will A. thus: to my COURT, SUPREME et al. os. old,- life, His- father, is. during who years seventy one-three- real, wife,, estate; to B. who my my part

hundredth life, old, real.estate, her one half during my twenty years father, death; after his my devised part including of, real whole estate at the my the. death of my nephew, C. testator.dies, father, heir, surviv- wife; who iny father, heirs, A. the and his court half give aWould ing. to. B; widow, the' life of during when intended and expressed A. should élearly own part life ? only Certainly one-thrée-hundredtb case, words, In such would not. the'death wife,” devised moiety applicable life., The death before father her of the will. this,case, meaning change cannot not vest in possession could real of . All Wil devisee, of the death but all at testator: King, liam ,“ him,: the death my devised'to therefore words then, then, and not till wife,” used; might.vest, are possession.

. intestate, be died having regarded Should decease, lands not devised Mrs until her to King, his as. sisters; to his have his descended and brothers they died, it is him.; aud that he did háving before father apparent those brothers his intend should sisters the life of .Mrs during King. the. he úse of one. gives third King parti To James life,of $10,000 Mrs annually; during King; say saltworks and., annuity ; Allen, Hannah King, an $150 Samuel thus James $1000; sixty-six giving, l£ing a legacy than two hun- as much as to Samuel King, more times but if his as to Allen : ..planta- as much times Hannah dred life MrsKing, during Sapiuel are distributed tions , a will have equal,to part and Hannah-Allen .that King so in the stood unequally affec- although King, James of his It seems bounty.. testatór as ma-. objects tions lands not intend estafe great nifest that did distributed, to, be brothers among pass sisters, of Mrs the life King. during im- to William King, is construed the will give Unless JANUARY TERM 1830.

[Finlay et al. vé. KingVLessee.] lands, mediately, than those devised Mrs during life, the marriage intended have taken might place within fifteen from years deáth, testator’s and the issue the favourite the desired nephew, family King's, might have been without a maintenance for the period of forty as Mrs years; who was old twenty-four years at the death of the so lived might ; while one long hundred plantations town lots thirty woüld forty in the possession the heirs. This cannot have been the intention of the 2 Williams; testator. P. 627. to notice' may proper manner in very imperfect

which the testator himself in this expressed want He devises the legal knowledge. use of his capital; has been construed to be a of his He bequest re- capital. quests that his executors and his wife will on his salt- carry works business in has been construed copartnership; of the saltworks. He $10,000 devises to two hjs that has nieces; been construed devise of $10,000 each of To them. effect the intention of this testa- give tor, the liberal requires aid of the courts. is the What nature of the estate of William

devisee, when vested?

If the condition is has his life time the devisee subsequent, it, perform he forfeits; before even where performance And if it impossible. becomes without de- impossible, fault, or never becomes we ne- contend that he will possible, forfeit. Had Mrs died within a ver after the death year the the whole real estate would have vested of Wil- William the King, possession, although daughter was unborn. The would liam devisee have life Trigg condition, if time even William perform Trigg daughters. ten Even William had stood and if married, those ten time to seen he would daughters have for he of them a widow. one when perform; might marry woman, even Should he would still another he marry have time ; widower he when a perform might perform condition. void, none. is An as condition is the same impossible . .

and that there there can be no It is breach impossible Von. III. —2 W COURT. SUPREME et al.

.[Fiplay desired: therefore as the amárriage be.such ra was there holds as marriage.; takes and devisee is void. condition, for the condition was no ther, if there that.this, not was contended on the other side counsel The Was the mar ; for probable an condition impossible con The law nothing probable had. says be. riage might asked, iso what is more impossible ditions. And than into, came, come, who-never and never can amarry person existence? do no one under any can be thing,

If isit impossible it. condition do The not.possible obligation when and;.never and made, became being subsequent, possible; If condition had is'absolute. been estate possible made, will was- and afterwards when became impossible default, God, devisee, without óf act by the Wms, 628. Com. also absolute. P. Dig. would . Condition, 1, 4. D. Pow. Con. 265 pl. Had been born to had the William daughter Trigg, have taken-the taken place, King Would William over, There no in the issue. having dévise profits,without riot The event of. having'issue. application profits such, issue, : would been another to the use of impossi- hold keep ble profits, conditiontherefore trust,, from the estate discharged performance legal of whieh impossible. Was If the ap- subsequent impossible, mnd directed, impossible; also profits,

plication condition, and exone- must bp held-.discharged trust Which'cannot be. When the performed... from.a rated the, out of the stricken trust impossible condition Opt is to with it. devise arise The goes. thereon condition, to an ex- impossible subject impossible . ; and .a- limitation yet the ecutorytrust, legal void opa fee, him. devisee in void condition. remains He.is void, is'void. whole condition every The . being part of.il We takes benefi- the-devisee; contend cially, keeps unquestionably profits. for, event,-that ; one one a beneficial marriage.and hav- deyised issue, over, is' the estate ing profits 1830. JANUARY TERM 371 et al. vs. .[Finlay

would Why the devisee. profits.be belong taken There are from the devisee ? rione who seem better entitled will. This devise made only under the eldest, óf his testator to his favourite son nephew; only blood, and heir brother of the full of his.name. The attached was obviously principle primo to names. To two of geniture, regard his paid great each, $10,000 nieces he were because named gave Did he mean to after his give nothing grandmother. own name ? nephew his He who bore cannot intended. his, should be mere trustee his favourite nephew tocommissions, event, heirs; entitled,only testator’s to his Did he mean favourite receipts. devisé that, more, on trouble, and nephew nothing he condition favouritg the daughter marry brother-in-law Í niece -

A of him : required consideration was. marriage. He therefore condition entitled imposed, to. shall be no other if;performance possible, condition; on. such, ¿and to. take if , children .profits for there if hot; that,-,had for his own use. This consideration shows effect, taken could devisee not have been regarded trustee. Here is also mere consideration blood, which is of nearness of question, decisive often whether a takes or as a devisee mere beneficially, trustee. 150, See 2 Atk. Loyd Spillet, Hobart vs. The Countess Suffolk, Vern. Will the estate on the determine death William King devisee, in of his not consequence con- performing the dition ?

The words of the devise convey fee,simple; takes a fee takes simple, at all. What would he. be the will,, construction should the void clause be stricken out? That it(cid:127) conveys.an absolute in fee simple. out clause, the void and the read, Strike. Jn children, having, arid bequeath leave my wife, the death of to.William son brother. James King.”" The.failureof issue not made on which SUPREME COURT. King’s et os. al. Lessee.} over. the devisee shall Consequently pass ' after without profits, and issue. And the estate marriage, contend, that as soon as vests in he the estate possession, we will take the without profits marriage, being It is a devise to him sim- fee subsequent impossible.. are and there none whom the directed are. ple ; profits intended, beneficial was A devise him paid. is the heirs. favour implication there “is, by does the estate pass The important question legal heir The so, If is no for the heirs. the devise ?” there trust here but another: is not given real estate entitled de- is The estate estate is from heir. the real given over, question vised on failure the condition. A perform arise, is Whether whether that devise over good. may yet we, not, that we have a right is contend good devise is unless it decided The heir cannot prevail, recover. over, and the are to William devise void; both some class cases which have analogy There is a different court;' essentially are before although a to are question it. The referred those from cases wherein heir, executor, the. heir and next between the has arisen is, or kin, or heir is not a ; and devisee whether there for trust resulting heir. lands for are devised to be sold of debts payment

Where of debts in trust for the legacies, payment lega apd has cies, the devisee or stranger, executor or. is a residue; and there there trust for resulting legacy, heir, if there him given by especially nothing Ip le this case the devisee is-no has-no stranger,, will. Wms, 309. 2 and there is no residue. Atk. 1 P. gacy, 2 1 Vern. 644. Meriv. 301. 150. will that benefit designed

But from the appears devisee, executor or a relation, being and.especially will;.there the heir where has some other benefit from heir, will be no trust there is.a. although resulting : a relatión benefit residue. In is a this case devisee will, him, for by-the are intended and the heirs provided Wms, North vs. 3 P. 193. See vs. Rodgers Rodgers, 373 TERM 1830. JANUARY vs. [Finlay et al. Melish, vs. 1 196. Ca. Coningham Eq. Cha.

Crompton, vs. Malabar, Ca. 273, 31. Malabar or Prec. Cha. Abr. Ca. trust, 78, tyas yet case the devise T. T. in which there Hill vs. The Bishop the heir. was no trust resulting .for East, 282. London, 619, 618, 620. Smith 1 Atk. Abbot, 4 Kennell vs. Ves. will, can- rule, heir, a benefit by that an taking trust, have a would excludé the heirs resulting heir at the testator; not.only presumptive of;

time also those who were making heir3 at. the time of ; one of take benefits his decease every them the will. consideration,

Wherever is a be no there can result there 7 143. Bac. Here was ing Abr. required; trust.. and the have waited might devisee twenty years perform the condition. Had a been born to Wiliiám daughter Trigg, when was twenty-five- years and age, he waited for her and died,, fifteen she had years, surely claim would have ; been it would yet been strong have better than it is;. because the now words and meaning the will would have been the same. If in that case the claim the devisee is' been in good, good this case.

This is not like that of a devise trust upon to páy debts legacies case, Meriv. for in such (1 there 301), be a residue but may ; here is the wholeestate devised away, condition, and, upon condition, upon failure devised over. Thus no residue is left for the heir to claim. The trust is of equal of duration with point extent legal No estate. trust part remains of. It undisposed would be difficult to express more an intention that clearly the heir shall not take. The estate devised in fee on condition, and, on failure to condition, devised perform over.

if But plaintiff trustee, a mere he has a to re right cover in ejectment. 2 722. 5 East, 1 Doug. 138. Schoales & 67. Lefroy,

A mere trustee may recover him who claims the against

374 SUPREME COURT. et al. »«. trust, of the where &

benefit not clear. 4 Bos. right 171. Pull. that.the will elucidate hoped opinion court ascertain the parties real estate rights claiming the

qf testator;, to what are know certainly they entitled.

Mr Chief Justice opinion- Marshall delivered Court. is a writ of to a. rendered brought This .error judgment United, thepourt States, the West- ejectment .the on

ern district of.Virginia. pronounced The.judgment bar: a case been agreed. Three.questions have made at the Is T. the condition -has the.testator devised .which real trust to William a condition .King, precedent subsequent at what subsequent, does the estate vest pos- time If session estate,

3. What is the when nature vested ‘l 1. Is the condition or subsequent?' precedent, vyordsof are, children, “-In case of having-no then, -'all at the death of I leave bequeath my son of brother James wife William my con- dition daughter marrying Trigg trust, wife, niece Rachel his Rachel lately. Finlay, the- issue, sqn eldest of said and'in case such mar- marriage, said bequeath should not take leave and place, riage child, William Rachel preference age, any .giving bf James a child my brother marry King’s, will Trigg Mitchel, Elizabeth’s, of John and their issue.” of sistér wife well It was and is admitted in certainly argument, settled(a), which are no. words that there technical appropriate always a precedent whether a be oh condition determine words The have been differ subsequent. determined .sarne intention. and-the If question question ently; always clause, will, the. or of the whole of the particular language 645. 295. 1 E. Bos. Pul. D. & Willis, & 156. (a) TERM JANUARY et al. that, bp state which must depends, shows the act on vest; the estate can condition is before the performed ; and bé ihe performed, course-precedent devisee unles§ - If, contrary, on the the act can take does not ne- nothing. estate, cessarily precede vesting may-accom- .it, or follow is to be collected' from the whole pány. this subsequent. condition consideration,' In the testator under not does to William his give terms his.real marrying and Rachel but at Trigg, daughter wife, his his, on condition of the testator’s marrying and Rachel of William Whatever Trigg. doubt daughter lands be riot may entertained respecting given life,,the intention, wife has his expressed clearly encumbered life the.lands estate should wife’s of William come at her death. He possession Ring time, the estate at without gives ihat that the requiring con should, bp dition to it annexed previously performed. The e estat then vests possession, ..in condition' whether which it was to. be or not depend performed. cannot have been .supposed intention that the devisee devise, should take under possession before the interest interest, therefore, vested in The him. must have vested or at the time. The previously, language the testator does, must, not the intention indicate fake of his wife; life nor place during circumstances do.the us parties such intention to justify him. imputing uncertain, The her death time it" follow and might close own The upoh could not contemplated marriage until possibly place lapse years, because many one of into had not come existence. parties time, had, Rachel. at the and never Trigg when, has testator therefore fixed daughter. a time vest, the estate is to which might probably precede hap of the event on its is to pening which continuance depend. This is clearly as to those lands subsequent, which an estate for life is wife the testator. given

Does reason exist authorise a distinction between lands those in which the wife took a life COURT. SUPREME et al. in the made disposition.is. no other present of which

those willl he one gives, In clause no makes distinction. The real.estate, of his at the death whole wife.to “his If, condition,” James King, brother son on &c.:

King, en- indicate; thé devisee would seem the language time, same whole at the of the property to possession titled wife, follow testator’s is, at the that condition, is a on which the .whole depends condition that construed; de- as the If the devise should be subsequent. to. contends, to right give in error fendant which estate.of possession part immediate made, furnish is this circumstance does other no disposition depends of the state opinion, part reason any not. might We think precedent a condition : in case thus construed were expressed if children, I then leave bequeath my no having life, estate, to the devise wife to William my subject James of his my brother son &c. is most This unfavourable manner for marrying,” which error in can be question presented. defendant benefit derived for the waives the time from'fixing pos- It a considerable of-the which part might session the event on which its precede continuance probably very Had even this been depend. made language would, think, the estate the lands we aon depend subsequent. ’condition rule, that a devise words of the

It general present i;f time, as I to A. lands in B. no give imports, contrary immediate interest vests in intent which appears, on the death of also a the testator. .general devisee rule, condition, if an on a for the given per limited, no time is the devisee has his formance Thé result of those two life for principles performance. A., he devise to shall be, on condition that seems words, B.,. efi’ectim uncontrolled takes marfy condition, if ; performs mediately .devisee B. at time The condition sub during marry fife. sequent. in which a We found general

JANUARY TERM King’s et al.es. {Finlay Lessee.] words, wifi, in a interest no in present making importing on a condition which of the property, may disposition time, has construed from at been be mere performed condition, to the estate given require circumstance that before the must be estate can pérformed vest. cases in which the contrary principle There are many has béen then condition on decided(a). We'think devise, which a condition to William depended, King subsequent.

2. is one more Does that difficulty. The second point is not which otherwise dis part of expressly the real estate posed of, or vest in William at the death King immediately, of the testator’s wif e ? are, children, no in cáse having words leave bequeath my wife, to James son brother on condi- William King, tion,”.&c. that the

These words certainly import whole.estate time, vest same at the possession' and.mark precision when that be. This -tii$e shall express provision can be intent, and manifest controlled to strong be col- only by will. But lected from whole the intent the testator of wills; is the cardinal rule in the construction and if that and not intent can perceived, to clearly some contrary law, rule it must positive although effect prevail; giving it or so to same words should be restrained in rejected, their the literal application, materially change .meaning sentence. particular insists that error the in- The counsel the defendant otherwise the real disposed of im- give tent on the to William face mediately apparent will, and must construction of-the clause under control the has been so discussed This fully consideration. proposition bar, that the restate court'need-only principles at the. have been advanced already argument. 164, 166. Wme, Dev. 257. (a) Cases 626. 2 Atk. T. T. 2 P. Pow. on 18. 2 170. 4 Mod. 570. 1 Salk. Salk. III.—2 X. . Vol. COURT. SUPREME n vs, [FiDlay et al. estate left

Of the half, immense about one dower, was her wife given oihers inclqding for her residue was given life: The William King.immediately, mentioned on the trust given by implication wife, was the testator’s to his permitted descend heir at law.

As the devise William was on condition subse- construed, so far as quent, may the time respects as if had been conditional. The condi- taking possession, obstacle tion immediate if the possession, opposes the testator shall intent of require construction. first We will consider the supposed implied wife.

As was riot heir a devise to her death does not him an in necessarily at. estate imply will life; and the itself furnishes reason for herduring strong, wife, this construction. His well rejecting might sup- mind, was first in his and was in posed, mind kept throughout .the dower, He notices her to so as to legal will. avoid right a that what he was possible implication her in lieu of gave dower, to her and secure from the necessity^ofrelinquishing all in the to interest estate her as bequeathed preliminaryto"' She claims her will, her dower. dower under the claiming bequeathed she does other to her. large It not a who was probable that careful to notice person even that to law, which she would have entitled under the been have would omitted totally she very large property could claim under will. He notices the only re- even aof in the. father; mainder small property occupancy his. his will, in other mentions wife parts many manner to add to the improbability having totally name, omitted her when benefit was intended. very large us to be to It seems reason contrary ordinary intend, rules of construction that a large given her by unnecessary to a wife wh'otakes implication dower words; whole, and also large part by We express think it clear there is very implicative no wife.

Does the law the heir at question descend property TERM

JANUARY al. ét JLessee.] % wife Was it the tes- purpose life during it until death her respect die intestate tator to was his that such or that think purpose; cannot We so. say will authorizes court indicates an intention to clause disposé The introductory “ I, William He says, thought all his estate. will and this to be last testa- ordain my

proper make estate in the ment, worldly my leaving bequeathing are entitled to consider- These words manner following.” intent, doubtful case a. in a question influence able arises between question where the given, property the interest devised. The devisee respecting the heir and also clause whole estate carry words of particular as; fixthe death of the testator’s wife heir, from the be entitled to devisee shall possession. time when Children, I then leave and are, having In They wife, estate, at the death of to Wil- my bequeath James &c. brother King,” son liam of. alone, if this clause stood unexplained is admitted not dis the real otherwise parts The law of, descend the heir. to him gives

posed But if other to ’others. provisions, is not given whatever of the heir will that the title show an intent legal in con must be those.other prevail, provisions respected the instrumént(a). struing alive, was made, father

When the testator’s as his heir. He was tobe and was considered consequently him man; made for seems to an old and the provision for the wants of comfortable one only supply contemplated a and lived in habits. simple who had unexpensive up grown him for the houses in which he then life The testator gives farm, resided, choose to what with so land much might as.he to the di- house, want, -the subject fruit he spring might of annum wife; also the sum per during rection his of $200 house, and, his Fincastle if fire should life; destroy his Coke, Wms, Cases, 225. 1 Wils. 333. 1 Ves. (a) 1 3 T. T. 157. 1 P. 143, 145, 97, 107. 1 Wash. 1 132. Munf. Call. COURT. SUPREME et al. annum, while his per of sum fárther income from that $220 This suspended. property source to given of his father. These for life wife moderate pro- heir, for the contemplating ease and visions comfort- only.the man, old of the wants of'an little comport able supply very an immense idea with the leaving consisting among land, of numerous tracts of from each TÓfnote articles difficult other, to de- very probably management, most h'im; It is not estate would be probable scend him the life of Mrs sur- descend to Her left King. him was and the testator she probable, expected viving would survive him. The lands devised to him are given for life. her father, who was the presumptive heir when made, died life the testator. This event during affect the of the will. construction supposed

is not But look for vtfére otherwise; were it supposed might event, to that and sisters brothers contemplate ward ,he heirs-; will furnishes as his probable arguments great did not intend them of the that he opinion, weight support heirs devised to them. The any thing expressly to take death, James at the time were blood, whole a sister Nancy Finlay, brother blood,Elizabeth and whole of Elizabeth Polly, daughters Mitchel, a blood,' sister of the whole Samuel brother Allen, blood, half the half sister of blood; Hannah will. in the For Each of is noticed these persons them, others, made." To less ample provision some to his shown. The bróther sister legacies favour half blood are while his inconsiderable;. bequests of the whole one them is those blood are No omit large. his mindvwas The circumstances that directed clearly ted. each, and that he has measured but bis carefully bounty each, them só as to show between great discriminating affection, inequality against operate powerfully opi nion, that he intended to leave de very large property a. scend of law. upon them the silent operation

The whole will intention of the testator proves primary,

JANUARY TERM al. et his and to immense together, real keep have-been should individual who gift on.some pro- bestow splendid of own of his wife. In family his from union ceed with.that estate, all his children, he at the gives having of William, James, the son his wife, brother bis apd William of marrying daughter Trigg his son or eldest issue of said wife, in trust for mar- Iris Rachel not take said place, gives If should such'marriage riage; child, and. age, of William preference to ady giving éstate James, child Of brother marry who his Rachel Trigg, should William the brother Trigg Elizabeth. of his-sister then is the aof primary object marriage issue wife. His William nephew daughter between wife, niece His his then testator. by Trigg", second which take marriage might place issue object was and Rachel and any child William Trigg, between ány ofor his sister James That his brother Elizabeth. child of sub- have been defeated the course of -by both objects these construction of will. events, does not change sequent the one or expected undoubtedly The:testator , respecting intention imme- take place, them heir, or the descent to the of" thé. devisee diáte interest been as if a Wil- afterwards the same born daughter bad who intermarried Trigg* liam and Rachef will, is -tobe construed in that therefore respect, King. had been actually consum- contemplated if the at probable, date of. very It was- the. mated. fortune this -immense come that the devisee might into nor-that twenty years, than wife in less might existence the. provision In.the whateVer-is live meantime.no fifty years. should what purpose profits To for him. made- intended, be withheld the life him time of during wife, were not.to profits since received the testator’s those death be the On her which lands should event her? Why toher,.sh6uld be was given enjoyed by no intérest once reason why the der perceive ? We devisee at. life, in which she had vise of those lands death; postpaii- reason there no effect her which she derive no from could lands possession ing-the 3¡88 SUPREME COURT. vs. King’s al. et

[Finlay Lessee.] benefit, were given and which not' others the same period. devise over too

The has considerable influence in this be on a question. may contingency too remote to be law; but supported by the testator’s intention is not the less manifested on that He did not account.. suppose it too re- mote; and fact it might happened .in few in :years. devisee, Had the died young, had William died Rachel without Trigg leaving daughter, a fact which has áctually child happened, of William and had married child Rachel of James Trigg or of Eli- King Mitchel, zabeth then the child, whole estate to such given and to issue of the Had either marriage. ofthese- events the estate taken from place, given the heirs. It consists well intention of the very general testator and his mode of as in manifested his thinking, to suppose an that the profits intention accumulate for the benefit o,fthose for whom the was estate we can designed; perceive that,he the will idea, to countenance the nothing con- these lands to his heirs. templated Nothing descent his more than the contrary general could be dis- purpose would the law make his real estate which tribution among be the result of a total' of all failure may his This heirs. will, but' cannot be considered the im- provisions effect, if a contrary mediate intention and if perceived, so construed can be that support words intention. the testator show that words used by nothing The far- his mind than a He partial intestacy. from he has says, ther “will, his to make proper leaving thought and. bequeathing estate manner his worldly followingafter con- making wife, his others provision devising siderable dur- “ life, he his her her real .at gives death” to ing condition, and on failure to perform nephew, con- “ tp said over. dition, estate” about gives Being ali to his bis estate nephelv, wife and knowing life, hold a it others would for her was obvi- large part could not her ous take all till death. nephew But estate, if whole he devised the could taken that.which life, wifeor others for would by pass her the nephew, JANUARY TERM al. et a clear intention the whole will'to appears intercept descent to clause heir; taken although literally, even iti postpone possession, part interest, no death. To has till effect this her inten- wife the,strict tion, words,, the.'court meaning.of. vary and: “ Call, sometimes them. 132. The word all” transpose may read, so that the-clause transposed, may case' having children, all, no leave at the death my wife, &c.< King,” Let clause. be thus read, one could hesitate on its construction. The ; devised William whole possession, of which is wife or others for part given to her till her death. whole will bears is.postpóned life* ma^ks of being aby man whose was far from language written accurate,, being words, and taken whose literally., would intention, instances That some defeat we intentión. think, was to devise his whole to real estate William King, trust, on a subsequent, posses- condition postponing, sion of that it- to of which was the wife and others part given life; for her till her death.

3. The third of interest to point parties. is one great which,- Did estate events take an King William benefit; have enures his own or is in the to ex happened, of isting.state as.a things.to considered trusteesfbr the of heirs the testator 9 thisucahse;

This be decided in question cannot property a will be determined court of and belongs chancery, of bill heirs shall to enforce the when execution bring trust.. We do upon any opinion not mean indicate is, think, whoever title in William King, we The-legal it. interest, is there- claim and the the.beneficial .may judgment affirmed with fore costs.

Mr Justice Johnson dissenting. (cid:127)The in the cdurt defendant here plaintiff ejectment was below, in of of lands, suit to part recover certain William King elder. according

The cause comes stated case up on. COURT. SUPREME - al. King’s et and practice upon Virginia, judgment render- ed. forthe plaintiff. upon recover will right The William depends

. elder, events to defeát occurred and the. -or effect provisions, wifi. give these, The of- will -are In operative words case . children, I and leave my njy bequeath having wife, my son the death William qf-his. James brother King,:on marrying daugh- w,ife, of' niece in. trust "Trigg my ter Rachel sUch for the eldest son or such marriage; issue said place, bequeath leave marriage.should child, of said any preferencé age, giving a child of marry my Rachel' Trigg, brother Elizabeth-, wife sister James to.JohnMitehell.’’ issue, oí devisees died and none without intended be provided description came within the. at law. heir issue-female, the

As Mrs having died-without Trigg the defendant for William marriage became, never conteuiplated 'con-' has one of the marriages neither possible; the issue between in the'alternative taken ternplated, place sister; brother the issue Triggs testator’s that, reinóte and stated although the case appears from contemplated of one the event improbable, marriages is not impossible. in the pre- to be immaterial

These however appear facts that in argument base since has not been ; sent it contended the over upon the William’s depending failure limitation by is limited with of the Triggs, daughter law of by-the term to take within the prescribed effect will life be it could confined Unless devises. executory . isit of William’s Mrs failure marriage, obvious« in esse come might.not that the of that devise over object terminated, and ifiightnot life had in until after every being afterwards, for twenty-one years more than marry I-shall, this however on point, myself Wiihoutcommitting purpbse it for the assumed over; considering only pass it JANUARY (cid:127)385 TERM et al. is. the most present argument. diligent attention After cause, questions cannot help in coming artificial, conclusion, that its difficulties are rather or facti- the true view ; tious that of.it is legal that which is most consistent the truth of case, with simple most to wit; that as the mass of'his estate iñ comprised .thiselause, testator’s views had been baffled wholly events; in favour certain in his offspring marriages failed, own the law must family having altogether dispose no ulterior made his of it having disposition .property, will at lást come the to a and this- nearest probably correct intentions; testator’s for we are view of con- liberty clude,-in the absence of such ulterior disposition, unless in the manner in which the estate vest he had pro- became, it, he it, to vest was indifferent to what posed than leave it to law. If could do no better he had his felt that favourite strong, predilection ne- supposed defendant, which was so much present insisted phew, in upon presumed the interests of argument,, may not have been nephew forgotten. Much use has been made of this assumed predilection, order to inference intention establish William’s favour. mind the will seems calculated to

To.my induce a.con- not a conclusion; there is trary made provision favour, takes, all, if at trust for individually; He eve,n issue, that issue is an ob- only conditionally own with the blood of the ; Triggs, unless mingled ject favour is followed blood up and-the Triggs rejected, .of connexions., to William’s entire exclusion. Nor is into and sister admitted to higher of his brother offspring favour, offspring unless .connected Triggs. clear, then, testator’s

I think it that the primary objects their the children of the offspring; were bounty Triggs, and not William or offspring. term, I intimated

At at the last the close argument argu- been cause that the counsel impression' of conditional it case its I considered ed on true grounds. Y Yol. III. —2 COURT. SUPREME

'386 Lessee.]. et al. vs. reference exclusively it was argued limitation; whereas that the ': maintaining one party of conditions law was a condition and.there- precedent, ever in.him; vested nothing it never took fore, place, subsequent, condition was a other, the marriage him, he become, without default took impossible, having condition; of. but both conceding discharged the estate of on: of conditions. must be the lavy cause disposed that the limitation; but'if a case of conditional is.clearly it.is conditions, 1'aWof of the law on the to be decided instead think there is for abundant-reason contingencies, I maintain- condition, is a case of precedent,, that it not subsequent. ing common conveyance, Were differ- law. think well, known for reasons but in a ently, will profession; in a one case thousand which would there not ever» of a he enter the gives upon when mind interest vests until I feel any. generally, performance. no hesitation it down as the laying ordinary import words of condition a'condition they impose unless precedent, accompanying general pur- words for the condition pose imposing In suggest, contrary. instance,, the' there cannot present be a reason consigned, should-vest in why ány William, interest that mar- prior was to birth to riage give issue that the solé of the testator’s object bounty. It was William for not' whom beneficial intended, interest was but,the issue particular marriage, which the shows’ distinctly the blood of the Triggs We object. favoured was-the must, force words testator simple from their natural before meaning, William can in event become .any than mere trustee in create him why And more interest. At his trustee? too, tender age an event so remote uncertain; persons whose in esse depended coming so upon many contingencies^ must so néceSsarily long arid deferred.; whose interests of law by operation hapds be committed into so much Why more competent.' a trustee, make him who would need himself a guardian? It has been urged, that did declared has intestate, to.die mean as to of his property; arty part

JANUARY TERM al. vs. King’s et [Finlay Lessee.] consideration, a and valuable marriage being must be considered a purchaser.

toAs first of these ibis clear arguments, that the tes intention, tator never lost of his avowed Sight and actually of all his did^dispose not of all property, though vyitH and in-it; so alternatives and many precautions, as man, well have if might ignorant man,, satisfied not any that he not as to die intestate could it. And as part, to William’s a it well purchaser, although be being might denied of his it admitted, before the event yet marriage, advancement, was not his the consideration in own but. view a to that of him That and legal adequate issue. mar-, or consideration, for marrying waiting either child, a is a made for case A riage. purchase excepted. which arise from that trusts when one class resulting in7 consideration, and takes dividual another the title. pays to aré parent. held The natural suffi imputed feelings of the cient take the out rule. Mad. Ch. general case 116, et passim. If this a to be vest present adjudged interest

William, breach of condition, be defeated by subject or absolute rather be rendered waiting performance words, if it is condition; to be in other construed to it must be create subsequent, purpose will, or effect this some purpose testa- carrying into tor can it. But if it be shown it expressed that would William, Be as to all nugatory unnecessary to. interests, fails. the argument

I can conceive of no be involved this interests .can question, be, it 1. over; unless The interests the devisees 2. or, law; Those of Those of William him- the heir self.

Now, first, as to it the most ex- contrary interest, terms to William press give continuing intention, question, interest. it im- any present On too material devise over be too remote not re- whether same, them, mote. as to is the the devise argument creates a interest: are not to take under the trust legal William; in the devise event marriage failing, COURT. SUPREME ns. al. et interest, so that the trust re- legal expressly is of

over creation,. of its arises to the object object stricted are, The words marriage William. only upon effect, such leave child,” &c. So such estate to .any bequeath upon the failure, be, trust was intended to marriage, over, as never though mentioned. been interest This William’s expressly limiting pur- creation, useless, of its ánd idle ex- rendering poses in the event of marriage. cept ask should the at law heir why And invest William interest ? He has need of a an existing legal claim, hiS His to maintain as of undis- an right. WHUam residue, is of. a than trust the better under resulting posed William. devise to the'court a

Or should adjudge why subse- clear, of even William himself? The law is behalf quent no interest this will; he can take Under his case beneficial the im-. strongest against arising any one the possible of a In in favour devisee. the case Wheeler plication 165, 301', Sherval, case in which Mosely, claim- the.executors in the a interest property residue ed beneficial given them trust, court decláres it to be the strongest case possible them, in trust. that-they expressly against Slater, 308, And in the Milnes vs. 8 Ves. case where a claim was it preferred, was held be similar conclusive it, that one of their number was created trustee. against be is. not to or precluded heir postponed, ex- except .upon words, or if not strong, press implication. Here unavoidable are implications who would him against preclude heir, law. then the purpose

If words of the will and the point to the William, for initiation of testator’s boun- interest or no whatever be ty, subserved object by mar-; a interest; it vesting present followsthat the condition, which is the riage, should held a condition precedent.

Nor can I feel' of, force of that a the. in favour argument, present which, William, beneficial is deduced TERM 1830.

JANUARY et al. King’s Lessee.] re. thecircumstance, is made Will by that no provision from of. interval' during the income application birth'of William and 'marriage, must ensue between the interval; which, issue.; many possibility, might art last years.' for,a of that

If.this were an out maintenance applicatiop income,such it cer- weight; implication might have to that inference even tainly goes, point farther:..-and not'unavoidable, Consistent the. since .it perfectly invest, trustee, character and duties of receive rents estate in profits expectancy and. trust the. event, which And no specific them: appropriate where instructions* claim re- him, man will are given prudent ceive court of in. equity, directions protection it is income; every,day’s applying-such practice. .. law does If then-neither the will give imply nor

beneficial, William, there be no interest can reason in him vesting any. before thing marriage. do, í case must be

Believing disposed up- on the if a case of condi- condition,, whether question tion, be subsequent; adjudged precedent ought as the here conclude. But condition precedent; over, what no knowing lias laid and-there is. .been off, may I must it in other go proceed to examine point of view. points

I Willthen next of William examine rights upon the it is a that .subsequent. hypothesis most favour If a condition the subsequent, he cah.only, of his same interests, view in the relations be placed able same that acquire the its rights impossible', by becoming have from the performance Would resulted the condi tion. í d would the condition

Suppose performed, what ? what have been the character On and extent his rights could he be trust from the principle on discharged Would every that thing given, him the gives? ? He .have his issue held to own use or that his. rule not the acquired would have under an tail estate. ¿90 COURT. SUPREME COURT. SUPREME ®s. Lessee et al. J cáse, because he was a trustee; mere his- .Shelly’s eS^ legal' not unite with the use to his could issue So tate to make if would And he held in one estate. trust for his issue hat^e would have been the marriage; by consequence what issue ?(cid:127) The question without dying easily answered. use in the event supposed, reversion never this; from the testator. The the law was disposition passed testator, whole descended upon upon the heir, to of William’s await the event Upon marriage.. he would have became entitled to take and hold marriage, trust of that is the rule issue whát marriage. But law when a trust is created for that never object comes into existence, be,ques- or á that fails? It purpose cannot at, holds to tioned that the trustee then the use of the heir absurd, I will it is does to me not say appear law. with, that I ám acquainted irreconcilable with any principles that a converted into a interest trust should be beneficial which makes trust idle and of an event by occurrence is not reconcilable with rea- without an and it easily object; that an interest which son or with the views retained at law would eveh unquestionably heir the' should be divested after marriage, impossibility should ever take place. marriage There not wanting legal authority maintaining, taken contrary, place, issue, died so as to render it wife without impossible esse, the estate of the trust should ever come objeet at law. I -allude to to the heir have returned immediately 195, Ca. Abr. Eq. of Mansfield Dugard, the case until wife son Fearne, devise was to the 372, which the at thir The son died of twenty-one years. attained age teen, was ruled that wife’s determined and it son’s decease. I bestow timé But is with reluctance upon examining that'this case so am satisfied these questions, thoroughly ' It is a cáse doctrine on the conditions. tiirn does limitation, of upon to be disposed conditional therefore Cases limitation of conditional different very principles; JANUARY TERM [Finlay al. vs. Sing’s Lessee.] et but afe conditions; they nature cases of

partake and to be the principles adjudged upon appli- contingency, Their cable to estates. contingent distinguishing character- are, a condition contain either to divest an istics vested, estate or to of an estate prevent vesting contem- and to over the interest plated, carry another Or party, - tp some Whereas it purpose, heir. is indis- enure, to the idea of a pensable condition it should legal heir, enter, benefit of the that he should the. and that the effect should be restoration of entry original estate,-not of a the creation new A estate. conditional limi- devises, is comprised tation among executory therefore will alone; can be created by estates condition may be created deed or will. As to by the estate to be created over, or -carried as as in those instances which it well or. anticipates prevents from it is vesting, obvious limitations conditional must assimilated to conditions But as the precedent. also contingency may operate taken divest an estate it is obvious presently, equally that it to a condition approximates in. One of subsequent its case, however, In either it is effects. regarded contin- and the it, law conditions is not gency, applied that would'defeat the estate of the purpose second taker. is, so moulded and contrary, applied may.give It. effect to the devise over. condition, whether this is a case question, or of tp limitation,

conditional it decided easily subjecting test. simple obvious very assume for over on Let us that the devisé argument; failure remote, is not too took under William’s committed subsequent, clear breach , event, this,, is a condition. In that law subject conditions, alone could the heir arid enter, his entry estate, not restore the over an to ano- original carry conditions, ther; for it is a canon of the law of that although for condition broken defeat entry one may cannot one, a new estate; create over carry another restore may him condition, the estate of who imposed but does no more. COURT. SUPREME al. King’s et

[Finlay Lessee.] then would become devise over? of What the ?will and of intention ? Wouldbe defeated(cid:127) They and testator’s in hence words condition cases are construed words such 9f condition, limitation, of converted a and into contingency, the the,estate.devised of or failure which the upon happening in and vests the alternative over goes without entry. There mode of into the intention carrying effect of the tes- tator, a by giving language meaning to. that-will that, with intention. in this Comport only difficulty cause, that which the probably pre-occupied. attention conditions, the law with frommere has resulted counsel events, a Series the casualty. By Unanticipated heir at relation, this time thrown the. actually law at into same here, which he would regard in have defendant is, of condition. Stoqd, case had the been That purely one if,the out of the in as-too remote its put devise over.be heir, then, effect, in a creation, entry right if. has own benefit. enter, enure to law the make no change this can But case* pf was the parties, right character legal Whatever it effect of testator’s intention as from was the deduced same, His although will. intention remains that intention from law-mayprevent rules'of arbitrary being pf The rule into words carried law which effect. converts condition, cases,, certain limitation into pro- words intention, cannot affected ceeds.upon- be occur- of that inten- which of incidents execution rence defeat the is one the most familiar frequent and present tion. The books, in which of those instances occurrence taker, nor the first of construction rulé Neither prevails. and in that case lord Hale law; ever was devisee heir “ said, that it a has rule (Fry’s Ventris) did, al- as ever point resolutions has many received used, over word the estate limiting though makes limitation.” to a stranger .a rule of reasons I clearly opinion, For these am when im- law become subsequent, to conditions applicable must is not case. That dispos- possible, govern ed William’s of on the law of conditional limitations

JANUARY TER»! vs. et bL not a is to be condi- as contingency, marriage, regarded tion. this tó be already given my-reasons holding

I which is. to .Or rather a condition precedent, contingency vest, a question and this is interest; divest always in' the testator of intention to from views deduced it is then conditions. condition precedent, If imposing is anticipated, instances which one of those the first vests; simple and never the case a very pláin becomes K. thus, offe, must it read if operate W- resi- of tire daüghter marry, give shall the. Triggs, trust, him &.C.; to in if such due shall over;’’ (cid:127) construed, caft place, thus there give then And sense be doubt Will tire good comes little that nearest the to any. of there‘be the case VieWsofthe Nor can and the testator. case, so William law of the if. construed. in ambiguity the der married; he Would take because never the nothing, remote, the is no to carry, vise too there first taker over being be distri- an then undisposed.residue, estate. the tó the lex loci. view buted of Under according case, certainly against King. must judgment be interest, if he the con-

But took defeasible present upon or dition of amarry contingency refusing daugh'terof is, has it state then what effect Triggs; upon inquiry limitation, of in Of a case conditional that without right fault such condition *? becomes impossible contingency question, On this which is of an point, very authority much be there is a dearth adjudged great acknowledged must cases, in writers. elementary as well as. learning trusts, with decided analogy objects If it bémay then esse.; or never come are failed law, as in favour of the heir at as determined in considered an- If it by of Durham’s case. determined bishop may the happening case of estates endure until alogy I have showed that has then event impossible;, an. become over; the devise it determined favour presently that vs. court Djigard, case of Mansfield declaring thé on be suspended wait for is to ever if may his right event. an impossible III. —2 Z

Von. SUPREME COURT. et al.

[.Finlay if in And absence any established rule we devises, the,testator’s may guided polestqr in- dention, could certainly views, less nothing comport than to an which he looked permit event as forward to certain-cause of of even divesting in- fiduciary terest, to have in him the effect vesting bene- absolute interest, ficial other interest which could stand his own way legal claim representatives. If we submit question test of reason plainest law of limitation and applied contingencies; oyer incontrovertible, it seems when a limitation is made event, certain depend failure of-a the limitation upon ought to take effect it is whenever ascertained that the event fail, must so, when it has become impossible; equally that when interest, a previous although passing presently into possession, awaits its from confirmation the happening event, certain reason for continuing there estate, when it established that the event definitively which it for confirmation can.never These depends happen. were the case of Mansfield vs. recognized principles and I Dugard, think the result all the doctrine reasonable of conditional limitations considered heads three under into which the are distributed. was a usually cases There below, case cited in sustain the argument judgment shall, xyas which so much-reliance it pass not .placed over, Howel, unnoticed. is the of Thomas vs. re It. case Modern, 170 4 in Salkeld and Mod. Salk. ported 66.) (1 . , The in very defectively reported both. report Sal keld the half of the.cáse,; and in 4 does.not give Mod. a of gives very the reasons which unsatisfactory account the facts, An of governed court. attentive the examination however, will case, enable us to understand the and to ex init with the perfect-conformity go plain principles opinion. vern my: case, a mixed law curiously was in which of condi the as,to

tions conditional limitations so were blended have . fathér, severable. It was of scarcely been case a the tenant fee, and his.three law. heirs at daughters, constituting The father devises called to one of a the messuage daughters TERM

JANUARY et aii '[Finlay Krog’s'Lessee.] Lawhorn, T., condition that she T. marry and if upcin she him, over to in trust to marry refuse trustees be co-heiresses, three divided the otherwise among equally became please.” impossible they by the T- twelve, the ündér of T. was which to question, law it, the law of conditions or the of limitations. apply court, four, decided, of Out the three of majority The. the-law' of conditions-. One it'to be it came within held remark, On I would conditional case limitation. conditions, law was well upon disposed .1. That law, heir was over so that devise- effect would broken not have condition defeated the for. entry ; into will, but have carried effect the reason therefore for words of into of limitation did construing words it is was exist, presumable there especially not of uses the statute operation to prevent nothing will, but, over the trust in favour the devisee under was room for doubt the question arising 2-. There trust, if interposing from effect especially was distribution well given of making unequal power heirs have de- trustees; then the.entry held views; arid it to have been feated the testator’s ought dissenting to the limitation, according opinion judge. ar- clear, that alluded to

3.. I think it the case very ,and bench admission of under a and/decided general gued óf-condition, the effect a cáse bar, that if held to would be in favour condition’s becoming impossible, limitation, of conditional heldto takér; first be'a under in favour party claiming that it would bad held to be the same If thre effect been devise over. cases, a ques- idle to raise both it would utterly have béen will. tion upon come

And That when the in that casé lastly. judges condition, that'it was conclusion limits casé a condi- tion, question,'whether proceed examine mo- to the leading tion with a view precedent subsequent, phraseo- tive of .the little any particular regarding address T. yiew T. And to induce. with .a certainly logy. SUPREME COURT. et al. its. more the will daughter, beneficially her operated behalf, would be the greater inducement out; held it a make accordingly subsequent. But a here, reason fór the contrary operates motive is not leading the establishment William but the formation and advancement of connexion. It would particular family best with this views comported testator’s super- add the inducement of necessity, ordér to.incline William to the matrimonial proposed connexion.

There could have been no un- reason it to him giving took effect; til it would have been to let marriage better it accumulate in the hands executors, of the con- especially his tender at the date of sidering age the will. satisfied, whole I am Upon to be case is Conditions, of on law of there disposed in the nothing will or the views testator that should make it a condi- ; tion precedent nothing certainly occurred since has make it it that necessary give ; character for had he mar- ried, there would have been a trust in favour of resulting if the issue, heirs failed to produce and that would have left the heir at law now, where he is only without results, to the aid of a any trust. owing thing Whence it have, it would been useless and idle have vested any in- in William at terest timé. ¿mIBut perfectly satisfied that the case one to which the law of limitations and alone contingencies applicable, and that that class according principles govern cases, the' impossibility does not con- contingency firm the taker, estate in the first but defeats it.

I am therefore of opinion, that the below should judgment bp reversed.-

Case Details

Case Name: Finlay v. King's Lessee

Court Name: Supreme Court of the United States

Date Published: Feb 18, 1830

Citation: 28 U.S. 346

Court Abbreviation: SCOTUS