tions subsequent are strictly construed and must be so expressed as to leave no doubt as to the precise contingency intended.25 § 1037. Construction Favors Conditions Subsequent. Courts will always seek to uphold, if possible, the testamentary dispositions of a decedent, and are adverse to construing conditions to be precedent when they might defeat the vesting of estates under a will.26 And although the words be in the form of a condition precedent, the general intent of the testator as collected from the four corners of the instrument, if showing a different purpose, will prevail.27 § 1038. Limitations Distinguished from Conditions. There is a distinction between a condition and a limitation. Where an estate is so expressly restricted and limited by the words of its creation that it can endure only until the happening of the contingency upon which it is to fail, it is denominated a limitation.28 Thus it is a dondo, 6 Pet. (U. S.) 691, 745, 746, 8 L. Ed. 547; McLachlan v. McLachlan, 9 Paige (N. Y.) 534. 25 Hervey-Bathurst v. Stanley, L. R. 4 Ch. Div. 272, cited, Egerton v. Brownlow, 7 H. L. Cas. 720; Clavering v. Ellison, 3 Drew. 451; Duddy v. Gresham, L. R. 2 Ir. 442, 471. 26 Pennington v. Pennington, 70 Md. 418, 442, 17 Atl. 329. 27 Finlay v. King's Lessee, 3 Peters (U. S.) 346, 7 L. Ed. 701; Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264; Stark v. Smiley, 25 Me. 201; Johnson v. Reed, 9 Mass. 78, 83, 6 Am. Dec. 36; Gar diner v. Corson, 15 Mass. 500, 503; Burnett v. Strong, 26 Miss. 116; Fox v. Phelps, 17 Wend. (N. Y.) 393; Barruso v. Madan, 2 Johns. (N. Y.) 145; Worman's Lessee v. Teagarden, 2 Ohio St. 380. 28 2 Bl. Com. *155; 1 Sanders, Uses (5th ed.), 156; In re Machu, 21 Ch. Div. 838, 843. See, post, §§ 1063, 1064. See, also, Society for Promoting Theological Education v. AttorneyGeneral, 135 Mass. 285; 2 Washburn, Real Prop. (4th ed.), 25. As to limitations and conditional limitations, see § 1016. limitation where land is devised to one until she marry,29 or during widowhood," or "so long as she remain my widow.''31 In some cases the validity of a limitation upon a devise, as by the testator to his wife, "so long as she continued" his widow, or of a bequest of income to the testator's sisters "as long as they remain unmarried," have not even been called into question.32 For in such cases there is nothing to carry the interest beyond the marriage, and the estate terminates as soon as the contingency happens.33 And again, even though there be no words of duration, and though strict words of condition be used, yet if, on breach of the condition the estate be given over to a third person and does not revert to the testator's representatives, this the law construes to be a limitation and not a condition, the gift over being a conditional limitation.34 29 Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548. See § 1063. 30 Doyal v. Smith, 28 Ga. 262; Harmon v. Brown, 58 Ind. 207; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478; Coppage v. Alexander's Heirs, 2 B. Mon. (41 Ky.) 313, 316, 38 Am. Dec. 153; Chapin v. Marvin, 12 Wend. (N. Y.) 538; Vance v. Campbell's Heirs, 1 Dana (31 Ky.) 230; Rodgers v. Rodgers, 7 Watts (Pa.) 15; Hawkins v. Skeggs' Admr., 10 Humph. (29 Tenn.) 31. See, also, King v. Grant, 55 Conn. 166, 10 Atl. 505; Straus v. Rost, 67 Md. 465, 10 Atl. 74; Appeal of McGuire, (Pa.) 11 Atl. 72. See §§ 1063-1065. 31 Hibbits v. Jack, 97 Ind. 570, 573, 49 Am. Rep. 478, where it was held that accordingly such a limitation was good under a statute declaring conditions in restraint of marriage void. See, also, § 964. As to limitations and conditional limitations, see § 1016. 32 King v. Grant, 55 Conn. 166, 10 Atl. 505; Straus v. Rost, 67 Md. 465, 10 Atl. 74. See, also, Appeal of McGuire, (Pa.) 11 Atl. 72. 33 2 Bl. Com. *155; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548. 34 2 Bl. Com. *155; 4 Kent Com. *126; Snider v. Newsom, 24 Ga. 139, 142; Woodward v. Walling, 31 The distinction between a condition and a limitation is one of practical importance, for the next subsequent estate which depends upon a limitation becomes immediately vested upon the happening of the contingency, without any act to be done by him who is next in expectancy; whereas, when an estate is, strictly speaking, upon condition, the law permits it to endure beyond the time when such contingency happens, unless the heirs or next of kin of the testator take advantage of the breach of condition and make entry to avoid the estate.35 § 1039. The Same Subject. Another difference between conditions and limitations which renders the distinction between them important, is that while a substantial compliance with the intention of the testator is a sufficient performance of a condition, a limitation contingent upon a specified event can take effect only upon the occurrence of the precise event designated. Thus, a limitation over in the event that the prior devisee "should marry and thereafter die without leaving lawful issue," will not take effect if the first devisee die without issue, not having been married.37 And a limitation over to others if the legatee die before com Iowa 533; Stearns v. Godfrey, 16 35 2 Bl. Com. *155; 4 Kent Com. **126, 127. See §§ 1016, 1017. One to whom land is devised ing of age or marrying, extends only to the contingency which first occurs, and does not apply in case he marry and die before majority.38 So, again, a devise with a gift over in case the devisee die before he arrives at the age of twenty-one, or before he has heirs of his body, will vest absolutely upon his attaining majority, although he die afterward without issue.39 § 1040. Illegal or Void Conditions. The distinction between conditions precedent and subsequent is important where the condition is illegal or void. A condition may be void because of being in direct contravention of some provision of law or because it is contrary to public policy or good morals. In considering conditions, however, every presumption will be taken in favor of their validity and of the innocence of the testator to do a wrong; there is no presumption of illegality.40 If an illegal or void condition is precedent, the estate can not vest; if such condition is subsequent, the estate or interest in the property will vest absolutely in the beneficiary, discharged of the condition.41 38 Wells v. Wells, 10 Mo. 193. See § 776, as to converting, in such devises, the word "and" into "or" and "or" into "and." 39 Grimball v. Patton, 70 Ala. 626; Williams v. Dickerson, 2 Root (Conn.) 191, 1 Am. Dec. 66; Black v. McAulay, 50 N. C. (5 Jones L.) 375. See, also, Plant v. Weeks, 39 Mich. 117; Woodman v. Madigan, 58 N. H. 6. 40 Daboll v. Moon, 88 Conn. 387, Ann. Cas. 1917B, 164, L. R. A. 1915A, 311, 91 Atl. 646; Winn v. Hall, 1 Ky. L. Rep. 337; Holbrook's Estate, 213 Pa. St. 93, 110 Am. St. Rep. 537, 5 Ann. Cas. 137, 2 L. R. A. (N. S.) 545, 62 Atl. 368. A condition annexed to a gift to a mother, whether adoptive or by nature, that she shall separate herself from her child, and sever the parental relation, and neglect her maternal duties to the child, is immoral, contrary to law, and against public policy. - Anonymous, 80 Misc. Rep. 10, 141 N. Y. Supp. 700. 41 Shep. Touch. 132, 133; Coke, Litt., 206, 206b; Halsey v. God § 1041. The Same Subject: Civil Law Rule. As to bequests of personal property, the rule of the civil law, followed in the English ecclesiastical courts, makes no distinction between conditions precedent and conditions subsequent, and the impossibility or illegality of a condition precedent will not defeat the vesting of an interest in personal property.42 But where the performance of a condition precedent is the sole motive or reason of the testator for making the gift, the failure to perform the condition may defeat the vesting of the legacy.43 And if the testator was not aware, when he made his will, that the condition could not be performed, if precedent, it defeated the bequest;44 likewise, if the condition subsequently became impossible through conditions beyond the testator's control.45 If the condition was malum in se, then both the gift and the condition were void.1o § 1042. Invalid Condition Coupled With Valid One Makes Result the Same as if Both Were Invalid. Beneficiaries under a will must take what is given them, burdened with the conditions which the testator dard, 86 Fed. 25; Carter's Heirs v. Carter's Admrs., 39 Ala. 579; New Haven County v. Parish Trinity Church, 82 Conn. 378, 17 Ann. Cas. 432, 73 Atl. 789; Harrison v. Harrison, 105 Ga. 517, 70 Am. St. Rep. 50, 31 S. E. 455; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255; Morse v. Hayden, 82 Me. 227, 19 Atl. 443; Parker v. Parker, 123 Mass. 584; Jones v. Jones, 223 Mo. 424, 25 L. R. A. (N. S.) 424, 123 S. W. 29; In re Vandevort, 62 Hun (N. Y.) 612, 17 N. Y. Supp. 316; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, 30 S. E. 462. 42 Gath v. Burton, 1 Beav. 478; Reynish v. Martin, 3 Atk. 330, 332. 43 Rishton v. Cobb, 5 Myl. & C. 145; Sherman v. American Congregational Assn., 98 Fed. 495; Nunnery v. Carter, 58 N. C. (5 Jones Eq.) 370, 78 Am. Dec. 231. 44 Swinburne, Wills, pt. 4, § 6, pl. 8, 9. 451 Roper, Leg., 755; Lowther v. Cavendish, 1 Eden 99. 46 Swinburne, Wills, pt. 4, § 6, pl. 16. |