§ 1054. Conditions against contesting will. § 1055. The same subject: Where annexed to gifts of personalty: § 1056. The same subject: Where probable cause for contest § 1057. exists. What amounts to a contest. $1058. The same subject. § 1059. Conditions in restraint of marriage. § 1060. § 1061. The same subject: A limited restraint is valid. § 1062. The same subject: Condition invalid if annexed to gift of personalty unless there is a gift over. § 1063. § 1065. The same subject: Words of condition or of limitation. The same subject: Intent of testator governs whether condition or limitation. Condition in restraint of re-marriage of widow. § 1066. Condition in restraint of re-marriage of widower. § 1067. Conditions predicated upon divorce or separation. § 1068. § 1069. § 1070. The same subject. Condition that beneficiary marry only with consent of certain persons. § 1074. or class: English decisions. The same subject: American decisions. Restraining alienation until donee reaches a certain age. § 1076. Restrictions on alienation do not follow the land. § 1077. Construction of provisions restraining alienation. § 1031. Conditions Precedent and Subsequent Defined. A conditional legacy or devise is one which takes effect or continues to be effective by reason of the happening or non-happening of some certain event.1 12 Williams, Exrs., *1080; 1 Roper, Legacies (3d ed.), 645. As to conditional or contingent wills, see ch. 4, §§ 102-115. Conditions fall into the two well known divisions of conditions precedent and conditions subsequent. The former is one which must be performed before the interest can vest; the latter is one by which a vested interest may be divested, or a contingent interest defeated before it vests.2 §1032. No Particular Language Required to Create a Condition. No particular language in a will is required to create a condition. It is sufficient if such an intention may be collected from the whole instrument; but a condition will not be presumed from ambiguous expressions; the testator's intention must be evident. §1033. Condition Is Precedent or Subsequent According to Testator's Intention. There are no technical words to distinguish between conditions precedent and conditions subsequent, the distinction being a matter of construction. The same words may be used to create each, according to the intent of the person creating the condition. A condition is to be considered precedent or subsequent according to the fair intention of the maker, to be collected from the whole instrument, and technical words, if any there be, yield to intention. If the language of the particular clause, or 2 Goff v. Pensenhafer, 190 Ill. 200, 60 N. E. 110; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255. 3 Worman v. Teagarden, 2 Ohio St. 380. 4 Hawkins v. Hansen, 92 Kan. 740, 142 Pac. 280; Creswell's Lessee v. Lawson, 7 Gill & J. (Md.) 227; Burdis v. Burdis, 96 II Com. on Wills-40 Va. 81, 70 Am. St. Rep. 825, 30 5 Ellicott v. Ellicott, 90 Md. 321, 48 L. R. A. 58, 45 Atl. 183; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, 30 S. E. 462. 6 Porter v. Shephard, 6 Term Rep. 665, 668; Finlay v. King's Lessee, 3 Pet. (U. S.) 346, 7 L. Ed. 701. the whole will, shows that the act on which the estate. depends must be performed before the estate can vest, the condition is precedent, and unless it can be performed, the devisee can take nothing. If, on the contrary, it may be collected from the whole will that the act need not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent." . § 1034. Examples of Conditions Precedent and Subsequent. Where the condition attached to the gift is that the beneficiary shall part with some consideration, it is held to be precedent. When security is required to be given for the performance of the condition, it is construed as a condition precedent to taking the estate. And a devise conditioned upon the devisee giving bond within a certain time not to marry a designated person is upon condition precedent.10 A condition that the devisee do, or abstain from doing, a certain act is a condition precedent; as, for example, that he marry, or that he do not marry 7 Marshall, C. J., in Finlay v. King's Lessee, 3 Pet. (U. S.) 346, 7 L. Ed. 701. See, also, In re Stickney's Will, 85 Md. 79, 102, 60 Am. St. Rep. 308, 35 L. R. A. 693, 36 Atl. 654. 8 Large v. Cheshire, 1 Vent. 147; Acherley v. Vernon, Willes 153. Where a daughter devised in these words: "In event I die unmarried, leaving my mother surviving, I devise and bequeath her all my property . . . upon the express condition, however, that she devise, by will to be executed before receiving this bequest, so much thereof as shall remain un disposed of or unspent, at the time of her decease, to such charitable institution for women, in said city of Chicago, as she may select," there was created a condition precedent.-Mills v. Newberry, 112 Ill. 123, 54 Am. Rep. 213, 1 N. E. 156. Legacies given for a valuable consideration not subject to abatement. See § 697. As to legacy to pay debt owing by testator to legatee, see § 758. 9 Jackson v. Wight, 3 Wend. (N. Y.) 109; Hogeboom v. Hall, 24 Wend. (N. Y.) 146. 10 Lester v. Garland, 15 Ves. Jun. 248. without the consent of trustees," or that he marry into a certain family,12 or that he give up low company and frequenting public houses.13 Where the will imports a present interest in the devisee, duties to be performed by him will be considered. conditions subsequent.14 Thus, a bequest to a religious corporation, on condition that within three years it shall erect a chapel, is on a condition subsequent.15 When "dying without issue" is construed to refer to so dying after the decease of the testator, a gift over in that event is in the nature of a condition subsequent.16 § 1035. General Effect of Conditions Precedent. The general rule is that a devise or bequest upon a condition precedent does not become effective until the condition is performed. It is the essence of the disposition that it shall not become operative until the condition precedent is fulfilled, and the estate can not vest where the performance is not accomplished, no matter the reason for non-fulfillment.17 When a condition precedent einbraces several requirements, the estate does not vest until all of them have been complied with.18 A legacy upon a condition precedent 11 Ellis v. Ellis, 1 Schoales & L. 1; Stackpole v. Beaumont, 3 Ves. Jun. 89. 12 Randal V. Payne, 1 Bro. C. C. 55. 13 Tattersall v. Howell, 2 Mer. 26; Markham v. Hufford, 123 Mich. 505, 81 Am. St. Rep. 222, 48 L. R. A. 580, 82 N. W. 222. 14 Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. 15 Tappan's Appeal, 52 Conn. 412. 16 Finlay v. King's Lessee, 3 Pet. (U. S.) 346, 358, 375, 376, 7 L. Ed. 701; Nellis v. Nellis, 99 N. Y. 505, 3 N. E. 59. 17 Roundell v. Currer, 2 Bro. C. C. 67; Sprigg v. Sprigg, 2 Vern. 394. A condition precedent can not be dispensed with even by the testator's consent.-Davis v. Angel, 8 Jur. N. S. 709; s. c., affirmed, 8 Jur. N. S. 1024. 18 Taylor v. Mason, 9 Wheat. not performed, falls into the residue, or, in the absence of a residuary gift, will pass to the next of kin as estate undisposed of by the will.19 Where a prior devise depends upon a condition precedent which fails so that the particular estate never vests, an ulterior limitation over will also fail.20 § 1036. General Effect of Conditions Subsequent. An estate devised upon condition subsequent vests immediately upon the death of the testator, subject to be defeated upon breach of the condition.21 Thus, where land is devised to one on condition that he shall pay the testator's debts and a certain legacy, the estate will vest in the devisee immediately upon the testator's death, payment of the debts and legacy being a condition subsequent.22 Where a devisee takes upon condition subsequent, upon a breach thereof the devisor's heirs may enter for forfeiture although the will contains no provision to that effect.23 If there be a gift over upon the non-performance of a condition subsequent attached to a prior estate devised, the gift over will take effect upon failure of the condition unless the failure be due to the illegality of the condition or the impossibility of performance.24 Condi (U. S.) 325, 350, 6 L. Ed. 101; As to whom the benefit of lapsed see 20 Boyce v. Boyce, 16 Sim. 476; Roundell v. Currer, 2 Bro. C. C. 67. 21 Petro v. Cassiday, 13 Ind. 289. 22 Horsey's Lessee v. Horsey, 4 Har. (Del.) 517. 23 Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151. As to illegal and impossible conditions, see §§ 1040-1042. As to impossible conditions, see §§ 1043-1045. 24 Ridgway V. Woodhouse, 7 Beav. 437; Thomas v. Howell, 1 Salk. 170; United States v. Arre |