clearly express the intention as to residence, otherwise they will be disregarded as uncertain;98 for the devisee might reside on the property for one day, might acquire it as his legal residence but seldom remain there, or he may reside there permanently. A condition requiring residence in a certain house is satisfied by such a residence as is necessary for the creation of a legal domicile;99 and a direction that one whose support is charged upon a devisee shall reside with him, does not require continuous residence.1 It was considered a sufficient compliance with a condition requiring residence in a particular place "for at least six calendar months (but not necessarily consecutively) in every year," that the devisee during one year was in the house altogether for eighteen days only, and during another year for no more than twentyfour days, it being in evidence, however, that he had placed the house in charge of a staff of servants, had paid the rates, had kept poultry and horses in the stables and on the grounds, and that his son who was at college near by had stayed in the house from Saturday until Monday about every alternate week.2

Where the devisee is an infant the condition should not be enforced, since the domicile of a minor is fixed by his parent or guardian;3 but it is otherwise where the devise is to a parent and his minor children jointly upon con

quest was decided to be conditional upon the devisee actually moving upon the farm.-Robertson v. Mowell, 66 Md. 565, 10 Atl. 671.

98 Shuman v. Heldman, 63 S. C. 474, 41 S. E. 510.

99 Walcot v. Botfield, Kay 534; Wynne v. Fletcher, 24 Beav. 430; Dunne v. Dunne, 3 Smale & G. 22;

Attenborough v. Thompson, 2 Hurl. & N. 559.

1 Jackson v. Wight, 3 Wend. (N. Y.) 109; Hogeboom v. Hall, 24 Wend. (N. Y.) 146.

2 Warner v. Moir, 25 Ch. Div. 605.

3 Partridge v. Partridge, L. R. (1894) 1 Ch. 351.

4

dition that they occupy the premises, since the parent can cause a breach of the condition. But a condition requiring a married woman to live at a place other than where her husband resides and has his business, being in effect a condition requiring her to neglect her marital duties, is void."

In England the effect of the Settled Lands Act was that a clause requiring a life tenant to reside on the land and forfeiting the estate in the event of non-residence was inconsistent with his statutory power to sell or dispose of his interest and therefore void." But subsequently it was held that such a clause had the effect of terminating the interest of the life tenant where he failed to fulfill the condition as to residence prior to an attempted disposition of the property.

§ 1051. Conditions as to Change of Name.

A condition annexed to a testamentary gift that the beneficiary shall assume a specified surname, is valid." If the expressed intent of the testator is that the change of name shall be effected by act of the legislature or judicial proceedings as may be required by law, the condition is subsequent.10 But where a change of name only is required, it has been held that an informal and voluntary assumption of the name, without legal proceedings to

4 Harrison v. Foote, 9 Tex. Civ. App. 576, 596, 30 S. W. 838.

5 Wilkinson v. Wilkinson, L. R. 12 Eq. 604.

6 Statute of 45 & 46 Vict., ch. 38, §§ 51, 52.

7 In re Paget's Settled Estates, 30 Ch. Div. 161.

8 Kemp v. Haynes, 37 Ch. Div. 306.

9 Gulliver v. Ashby, 4 Burr. 1929, 1929; Taylor v. Mason, 9 Wheat. (U. S.) 325, 348, 6 L. Ed. 101; Webster v. Cooper, 14 How. (U. S.) 500, 14 L. Ed. 510.

10 Gulliver v. Ashby, 4 Burr. 1929; Taylor v. Mason, 9 Wheat. (U. S.) 325, 349, 6 L. Ed. 101.

validate the change, is sufficient." And generally it may be said that unless the will so require, an act of the legislature or legal proceedings are unnecessary;12 it is sufficient if the beneficiary assume the name by his own act.13 Since a corporation can use only the name authorized in its charter, it is doubtful if this rule would be applicable in such a case.

§ 1052. Conditions Affecting Religious Freedom.

Every one has the right to worship according to his desire, religious freedom being granted to all. But it is neither against public policy nor contrary to law for a testator to dispose of his property on condition that religious observances be complied with. The beneficiary may accept the gift or reject it, but he can not complain that there is any interference with his right to worship according to the dictates of his conscience.14 A condition that the beneficiary, an infant, be educated in some Roman Catholic seminary and reared as a Roman Catholic in the communion and faith of her deceased father, with a gift over in case the condition he not complied with, has been sustained, the court saying that such a condition

11 Davies v. Lowndes, 2 Scott 71. 12 Barlow v. Bateman,3 P.Wms.65. 13 Davies v. Lowndes, 2 Scott 71; Doe v. Yates, 5 Barn, & Ald. 544.

See, however, Barlow v. Bateman, 2 B. P. C. Toml. 272.

In a later English case a condition that a devisee should assume the name of "Jones," with a gift over upon refusal or neglect to comply therewith within a year,

14 In re Knox, 23 L. R. Ir. 542; Ex parte Dickson, 1 Sim. N. S. 37; Franta v. Bohemian Roman Cath. Cent. Union, 164 Mo. 304, 86 Am. St. Rep. 611, 54 L. R. A. 723; 63 S. W. 1100; Vidal v. Philadelphia, 2 How. (U. S.) 127, 199, 11 L. Ed. 205; In re Paulson's Will, 127 Wis. 612, 7 Ann. Cas. 652, 5 L. R. A. (N. S.) 804, 107 N. W. 484

is neither uncertain, impossible, against public policy, nor unconstitutional.15

A devise may be conditional upon the devisee withdrawing from the priesthood of a specified church, or from a society connected therewith, or upon his refraining from forming any such connection. "Whatever may be thought of the opinions of the testator, or his prejudices, the law recognizes his right to make the enjoyment of his bounty dependent upon the condition attached to this case."'16 So, where it was provided that in the event of the testator's daughter taking the veil, she should forfeit all claim to the bequest made her in the will, the condition was sustained as valid." And where a testator left one-third of his estate to trustees, to pay the income to his grandson upon the express condition that he should renounce the priesthood, the validity of the condition was not questioned.18 A condition annexed to a legacy that the beneficiary should not renounce the Jewish faith or marry a Christian has been upheld.19

§ 1053. Conditions Against Making Claims Against Testator's Estate.

A testator may make a valid provision to the effect that if any beneficiary makes any claim against his estate, such beneficiary shall forfeit any devise or legacy made in his favor. Such a condition is lawful and one which a testator has the right to annex to a disposition of his own prop

15 Magee v. O'Neill, 19 S. C. 170, 45 Am. Rep. 765.

16 Barnum v. Mayor etc. of Baltimore, 62 Md. 275, 50 Am. Rep. 219.

17 Ex parte Dickson, 1 Sim. N. S. 37.

To the same effect, see Mitchell v. Mitchell, 14 Md. 405.

18 Spencer v. See, 5 Redf. (N. Y.) 442.

19 Hodgson v. Halford, L. R. 11 Ch. Div. 959.

erty. The beneficiary is not bound to accept the gift, but if he does accept it, he must take it subject to the conditions imposed.20 If the provision is that the amount of any claim shall be deducted from the benefit conferred by the will, a release of the debt is not a condition annexed to the gift, but the beneficiary can receive only the residue after the indebtedness has been taken out.21

§ 1054. Conditions Against Contesting Will.

A condition annexed to a testamentary gift that if the beneficiary contest the will he shall forfeit all right to the property devised or bequeathed him, is a valid condition; and should the beneficiary contest the will, he loses his interest in the property.22 A provision charging all

20 Rogers V. Law, 1 Black (U. S.) 253, 17 L. Ed. 58; Treat's Appeal, 35 Conn. 210; Hyde v. Baldwin, 17 Pick. (34 Mass.) 303; Farnham v.. Barker, 148 Mass. 204, 19 N. E. 371; In re Hollister, 47 Hun (N. Y.) 413; Dunlap v. Ingram, 57 N. C. 178.

Compare: In re Vandevort's Estate, 62 Hun (N. Y.) 612, 17 N. Y. Supp. 316.

Where a testatrix, living in the family of the devisees, wrote in her will, "loath to offend by the word 'pay' the feelings of my friends, whose kindness has been long continued," and bequeathed them a certain parcel of land, it was decided that the words quoted rendered the devise conditional, and that a suit by the devisees against the testatrix for board worked a forfeiture thereof.-Hapgood v. Houghton, 22 Pick. (39 Mass.) 480.

As to the doctrine of election as applied to wills, see §§ 813-839.

As to a testamentary gift to a widow in lieu of dower, see §§ 832839.

As to legacies by debtor to creditor in satisfaction of the debt, see 88 728, 729.

A devise upon condition that the devisee should release the testator's estate from liability on a note held by the devisee, is a condition precedent and no title will vest until the condition is performed.Howard v. Wheatley, 15 Lea (83 Tenn.) 607.

21 Bush v. Cunningham's Exrs., 37 Ala. 68.

22 Evanturel v. Evanturel, 23 Week. R. 32; s. c., L. R. 6 P. C. 1; Cooke v. Turner, 15 M. & W. 727, 14 Sim. 493; Smithsonian Institute v. Meech, 169 U. S. 398, 42 L. Ed. 793, 18 Sup. Ct. 396; Donegan v. Wade, 70 Ala. 501; Estate of Hite,