A right of way, being an incorporeal hereditament, PART I. T. 2, cannot be devested (x). 149. (x) 3 Cruise T. 24, § 21. As to some other kinds of incorporeal hereditaments, such as offices, dignities, rights to running water, and light, and rights to pews, the reader CH. 2, s. 7. Devestment. PART II. Of the several kinds of Interests constituting the PART II. Preliminary the distinc tions between conditions and TITLE I. OF CONDITIONS AND LIMITATIONS ON WHICH INTERESTS DEPEND, OR BY WHICH THEY MAY BE AFFECTED. (u) "THE mixture of those things by speech which by nature are divided, is the mother of all error. To take remarks on away therefore that error which confusion breedeth, distinction is requisite" (b). "A confusion of terms in any limitations. science tends to confound the science itself, by destroying that precision of ideas, that distinction among its objects, which is the very groundwork of all knowledge. 'Nomina si perdas, certe distinctio rerum perditur'" (c). 150. The subject of the distinctions between conditions and limitations is highly scientific, and although it savours strongly of grammatical or verbal criticism, yet there are many instances in which, if required to construe a will containing these forms of expression, a practitioner not well skilled in the subject would be in the most imminent (a) This is as proper a place as any other for the subject of conditions and limitations, and is practically the most convenient. (b) Hooker's Law of Eccles. Polity, B. III. c. 3, s. 1. (c) 1 Fearne, Coll. Jur. 238. TITLE 1. peril of forming a totally wrong opinion upon the effect of PART II. the instrument. And there are numberless cases in which, if a person were to set about, as a draftsman, to give effect to the intentions of a testator, without an accurate knowledge of this subject, he would be almost sure unconsciously to be sowing the seeds of doubt, litigation, and loss. It is impossible too strongly to impress upon the student and the unlearned practitioner the fact, that, in using words of condition, limitation, restriction, or contingency, the change of the smallest word, however unimportant it may at first sight appear, may, and often does, make the greatest possible difference; he is on the edge of distinctions so refined and shadowy as to be likely to escape his observation, and yet sufficiently settled and substantial in law to prove a source of complete loss of property to the objects of the testator's regard; he is treading upon most perilous ground; he is traversing a land of legal traps, snares, and pitfalls (d). 151. (d) For some illustrations of the importance of an accurate knowledge of the distinctions on this subject, the reader is referred to the great Bridgewater case, Egerton v. Earl Brownlow, 4 H. L. Cas. 1; CHAPTER I. OF THE SEVERAL KINDS OF CONDITIONS. PART II T. 1, CH. 1. Definition A CONDITION is a clause expressed or implied, providing or constructively importing that an estate shall be created, of a condi- enlarged, diminished, or defeated, or the beneficial interest therein shall be suspended, in a given event (e). 152. tion. Conditions. express and implied. Conditions subsequent. Conditions precedent. Conditions, therefore, are either express, that is, expressed in words, which are sometimes termed conditions in deed; or implied, that is, only annexed by construction. of law, which are sometimes termed conditions in law (ƒ). 153. Some conditions are termed subsequent. A condition subsequent, properly so called, is a condition upon which an estate or interest is to be prematurely defeated or determined, and no other estate is to be created in its room. Regularly such a condition is annexed to an estate or interest created by a previous clause or instrument (y). The words "on condition," "provided," "so that," or, in the case of a lease for years, words of similar import, sufficiently denote a condition subsequent, and cause a cesser, without any words expressive of the intention of cesser in the event specified (h). 154. There are other conditions which are called precedent, which are conditions upon which an estate or interest is to (e) Smith's Executory Interests, annexed to Fearne, § 9. (f) Co. Litt. 201 a; 232b; Pres. Shep. T. 117, 118. (g) Co. Litt. 237 a, n. 1; Smith's Executory Interests, annexed to Fearne, § 12; Egerton v. Earl (h) See Litt. s. 328-331; Co. Litt. 204 a; and Smith's Executory Interests, annexed to Fearne, § 15 -19. T. 1, Cu. 1. arise or be created. Regularly a condition precedent is PART II not annexed to an estate or interest created by a previous clause or instrument (i), but it is usually and more properly the introductory part of the clause whereby an estate is created (k). 155. terms neces There, are, however, no precise technical terms required No technical to make a condition precedent or subsequent, even in a sury. deed, and much less in a will (1). 156. ditions. There are some conditions which are of the nature of Mixed conconditions subsequent in regard to one estate, and of the nature of conditions precedent in regard to another estate. These may be termed mixed conditions. They are of two kinds One kind of mixed condition is a destructive and creative condition, that is, a condition upon which an estate or interest is to be defeated, and another estate or interest is to arise in its room. And of destructive and creative conditions, one is called a conditional limitation. The other mixed condition is a destructive and accelerative condition, that is, a condition upon which an estate or interest is to be defeated, and another estate or interest in remainder is to be accelerated and take effect as if the former estate had expired according to the terms of its original limitation. This may be termed a condition of cesser and acceleration (m). 157. It may be useful to illustrate what has been said by Examples. examples; for, as Lord Coke remarks, "Examples do (i) Smith's Executory Interests annexed to Fearne, § 13. (k) Egerton v. Earl Brownlow, 4 H. L. Cas. 183; Cooke v. Turner, 14 Sim. 503. (7) 6 Cruise T. 38, c. 16, § 3. (m) See Smith's Executory Interests annexed to Fearne, § 14, 20— 22; Lord Truro's remarks in Egerton v. Earl Brownlow, 4 H. L. Cas. 1, 182-194; Clavering v. Ellison, 3 VOL. I. Drewry, 451, 469; 8 D. M. & G. F |