T has seen fit to impose.17 Where two conditions are jointly imposed, one of which is void, the other, although valid in itself, must be rejected with the void condition. The reason is that if the testator intended the vesting of the estate in the beneficiary or the taking effect of a gift over should depend upon both conditions, such intention will prevail, and the result is the same as if both conditions were void.48 § 1043. Where Conditions Precedent Are Impossible of Performance. The common law rule is that when a devise is upon a condition precedent, the estate does not vest until it is performed, and it is immaterial that the condition itself is illegal or impossible of performance.49 A condition is not regarded as impossible merely because it is beyond 47 Stevens v. De La Vaulx, 166 Mo. 20, 65 S. W. 1003; Trumbull v. Gibbons, 22 N. J. L. 117; In re Kathan's Will, 141 N. Y. Supp. 705; Shirk's Estate, 242 Pa. St. 95, 88 Atl. 873; Magee v. O'Neill, 19 S. C. 170, 45 Am. Rep. 765. "A vested estate, real or personal, ought not to be trammelled with conditions that should prevent its enjoyment or alienation; but when the estate has not vested, and can only vest upon condition, it is difficult to see upon just what principle the devisee or legatee can ask to have the condition which the owner has seen fit to impose, rejected, that he may enjoy the gift. The election is given to perform the condition or not take the estate; and he should be satisfied, if the condition is such that he can not or choose not to perform it, to let the estate alone."-Caw v. Robertson, 5 N. Y. 125. 48 Re Babcock, 9 Grant's Ch. (U. C.) 427. 49 Coke, Litt., 206, 206b; Robinson v. Wheelwright, 6 De Gex, M. & G. 535; Ridgway v. Woodhouse, 7 Beav. 437; Earl of Shrewsbury v. Hope-Scott, 6 Jur. N. S. 452, 472; Harvey v. Aston, 1 Atk. 376; Vanhorne v. Dorrance, 2 Dall. (U. S.) 304, 1 L. Ed. 391; Stockton v. Weber, 98 Cal. 433, 441, 33 Pac. 332; Shockley v. Parvis, 4 Houst. (Del.) 569; Cassem v. Kennedy, 147 Ill. 660, 664, 35 N. E. 738; Den v. Hance, 11 N. J. Law 244, 257; Winthrop v. McKim, 51 How. Pr. (N. Y.) 323, 327. the power of the devisee to perform it; it is only so "when it can not, by any human means, take effect."'50 Where the performance of a condition precedent annexed to a bequest of personalty has been made impossible by the act of the testator, the condition itself is discharged;51 but this rule does not apply where the condition named is to be performed by the testator himself, and not by the devisee.52 And although the condition precedent be possible of performance at the date of the execution of the will, if it thereafter can not possibly be performed, although such result is occasioned by act of God, the condition is void.53 § 1044. The Same Subject: Statutory Regulations. In some states it is provided by statute that where a testamentary disposition is made upon a condition precedent and the fulfillment thereof is impossible, the disposition shall vest unless the condition was the sole motive thereof, and the impossibility was unknown to the testator or arose from an unavoidable event subsequent to the execution of the will.54 Under the Georgia Code, "conditions which are impossible, illegal, or against public policy are void;"55 and in Louisiana, "in all dispositions inter vivos and mortis causa, impossible conditions, those which are contrary to the laws or to morals, are reputed not written."56 50 2 Story, Eq. Jur., § 1305, citing as example that the obligee shall go from the Church of St. Peter, at Westminster, to the Church of St. Peter, at Rome, within three hours. 51 Frost v. Blackwell, 82 N. J. Eq. 184, 88 Atl. 176. 52 Goff v. Pensenhafer, 190 Ill. 200, 60 N. E. 110; Gath v. Burton, 1 Beav. 478. 53 2 Bl. Com. 156. 54 Stimson's Am. Stat. Law, § 2825, citing statutes of Cal., Dak., Mont., and Utah. 55 Ga. Code, (1882) § 2466. 56 La. Rev. Civ. Code, (1870) § 1045. Where Conditions Subsequent Are Impossible of Per formance. An estate dependent upon conditions subsequent, having once vested, is not defeated by reason of their becoming impossible or being illegal,57 notwithstanding a gift over upon failure, to perform.58 So, too, where the testator himself prevents the performance of a condition subsequent, the gift becomes absolute.59 Likewise, if the condition be imposed upon the devisee for the benefit of another, and such other waives the performance thereof or refuses to accept an offer of performance, the devisee will take the estate free from the condition.60 And failure to pay a legacy charged upon a devisee will not work a forfeiture when the legatee remains out of the state and makes no demand of payment.61 Where a condition subsequent is annexed to a testamentary gift which is impossible of performance at the time of the execution of the will or, if then possible, subsequently becomes impossible of performance either by an act of God, the public enemy, war, law, or of the testator or his representatives, performance is not required and the estate is not defeated by non-performance.62 A § 1519; Succession of McCloskey, 52 La. Ann. 1122, 27 So. 705. 57 Ridgway v. Woodhouse, 7 Beav. 437; Burchett v. Woolward, Turn. & R. 442; Thomas v. Howell, 1 Salk. 170; Jones v. Habersham, Fed. Cas. No. 7465, 3 Woods 443; Merrill v. Emery, 10 Pick. (27 Mass.) 507; Parker v. Parker, 123 Mass. 584; Conrad v. Long, 33 Mich. 78. 58 Collett v. Collett, 35 Beav. 312. 59 Walker v. Walker, 2 De Gex, F. & J. 255; Yates v. University College, L. R. 8 Ch. App. 454; 60 Petro v. Cassiday, 13 Ind. 289; 61 Bradstreet v. Clark, 21 Pick. (38 Mass.) 389. 62 Coke, Litt., 206a, 208b; 2 Bl. Com. *156; In re Greenwood, (1903) 1 Ch. 749; Huidekoper v. Douglass, 3 Cranch (U. S.) 1, 73, 2 L. Ed. 347; Davis v. Gray, 16 Wall. (U. S.) 203, 230, 21 L. Ed. devise upon condition that the devisee will render service or support another is a condition subsequent, and if such other die during the lifetime of the testator, the devisee takes the property by absolute title as if no condition had been attached. A bequest to a son "provided he takes 6 447; Sherman v. American Cong. Assoc., 113 Fed. 609, 51 C. C. A. 329; Jones v. Bramblet, 1 Scam. (2 Ill.) 276; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255; Ellicott v. Ellicott, 90 Md. 321, 48 L. R. A. 58, 45 Atl. 183; Parker v. Parker, 123 Mass. 584; Lusk v. Lewis, 32 Miss. 297; Conrad v. Long, 33 Mich. 78; Cheairs v. Smith, 37 Miss. 646; Jones v. Jones, 223 Mo. 424, 25 L. R. A. (N. S.) 424, 123 S. W. 29; George v. George, 47 N. H. 27; Frost v. Blackwell, 82 N. J. Eq. 184, 88 Atl. 176; Burleyson v. Whitley, 97 N. C. 295, 2 S. E. 450; In re Gunning's Estate, 234 Pa. 139, 49 L. R. A. (N. S.) 637, 83 Atl. 60; Perry v. Brown, 34 R. I. 203, 83 Atl. 8; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, 30 S. E. 462; Burnham v. Burnham, 79 Wis. 557, 566, 48 N. W. 661. Compare: Stark v. Conde, 100 Wis. 633, 76 N. W. 600. A legacy of $12,000 was given a church "for use in building a Sunday-school room and for such other improvements as may be needed" on a piece of land already given to the church by the testatrix. During the settlement of the estate the land was taken for public use under condemnation proceedings. The inability of the church to perform the condition did not forfeit its right to the legacy. New Haven County v. Parish of Trinity Church, 82 Conn. 378, 17 Ann. Cas. 432, 73 Atl. 789. Where beneficiaries were given land to hold in common for a home and support so long as they remained together, but in case one or more left he should take only such as is given individually, and have no share in what was given in common without the consent of the others, in case one or more are forced to remove from the land because of the cruel treatment of the others, the condition imposed becomes impossible of execution, and the use of the land follows the title divested of the condition. -Harrison v. Harrison, 105 Ga. 517, 70 Am. St. Rep. 60, 31 S. E. 455. "The counterpart of the proposition seems to be equally true when applied to a condition precedent."-Stark v. Conde, 100 Wis. 633, 76 N. W. 600. 63 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. A gift to one upon condition that he care for another is rendered impossible by an act of God where care of his mother, if not to those that take care of her," vests absolutely in the son where the mother dies in the lifetime of the testator. A condition that the beneficiary pay an annuity to the testator's wife during her lifetime is discharged by the subsequent death of the wife prior to that of the testator.65 § 1046. Effect of Accepting Gift Burdened With a Condition of Payment, or the Like. However injudicious the conditions annexed to a gift may be, if they are unambiguous and not in themselves unlawful, they may not be rejected. such other dies before the testator.-Hammond v. Hammond, 55 Md. 575. Where a testator left a legacy to his widow on condition that she should educate and bring up his granddaughter until she arrived at the age of eighteen or married, and the widow died shortly after the testator, the nonperformance was excused by the Ideath of the widow.-Merrill v. Emery, 10 Pick. (27 Mass.) '511. A devise to a daughter upon condition that her husband refrain from drinking until one year after the death of the testator, will vest absolutely upon the testator's death, the husband having died in the meantime. The condition is thus rendered impossible by an act of God.-Culin's Appeal, 20 Pa. St. 243. 64 Nunnery v. Carter, 58 N. C. (5 Jones Eq.) 370, 78 Am. Dec. 231. 65 Sherman v. American Congregational Assn., 98 Fed. 495. A devise upon con As to a bequest to suppress the rebellion and restore the union taking effect where a testator died after the rebellion had been suppressed, see Dickson v. United States, 125 Mass. 311, 28 Am. Rep. 230. 66 Morgan v. Darden, 3 Demarest (N. Y.) 203. A bequest "in consideration of being taken good care of and being well treated during the remainder of my life," is not a gift upon condition or contingency, upon which the validity of the disposition shall depend, but only a statement of the motive inducing the testator to make it; and failure of the consideration, harshness, and cruelty, can not defeat the bequest without a canceling or revocation by the testator.-Martin v. Martin, 131 Mass. 547, 548. A condition against giving, paying, or lending any of the property to the devisee's father, refers to a voluntary gift, and does not prevent the father from taking |