T. I, CH. 1.

PART II teach." Now, 1st. If A. devises that if B. do pay 100l., B. shall have an estate in fee, this is a condition precedent. 2ndly. If A. devises to B. an estate in fee, "provided," or "so that," or "on condition," that B. pay 1007., this is a condition subsequent of the concise or implied form. 3rdly. If A. devises to B. an estate in fee, but provides that if B. do not pay 100l., his estate shall cease, this is a condition subsequent of the unconcise or explicit form; for, instead of contenting himself with the use of the technical words "provided," "so that," or "on condition," which of their own nature and efficacy imply or import a condition for determining the estate on non-payment of the money, the testator provides for the ceasing of the estate in words actually expressive, and not merely technically indicative of his meaning. 4thly. If A. devises an estate in fee to B., but directs that if B. do not pay 100%., then his estate shall cease, and the property shall go over to C., this is a mixed condition of the destructive and creative kind: it is a mixed condition of the species which is denominated a conditional limitation; for it is destructive as regards the estate of B., and creative as regards the estate of C. 5thly. If A. devises an estate tail to B., remainder to C. in tail, and directs that in case B. do not pay 100l. his estate shall cease, and the property shall immediately go over to C., as if B. were dead without issue, this is a mixed condition of the destructive and accelerative kind, or a condition of cesser and acceleration. 158.

Practical distinction between

conditions precedent

and subscquent.

As a general rule, the practical distinction between a condition precedent and a condition subsequent is this:In the case of a condition precedent, no estate or interest vests until the performance of the condition; whereas in the case of a condition subsequent, the estate or interest is ordinarily vested, in possession, or at least in right, by the gift, and the operation of the condition subsequent is to devest it and cause it to cease, in a specified event. 159.

PART II.

T. 1, CH. 1.

Condition

may defeat

It a contingent

a

use or interest.

But it is not necessary or an invariable rule, that a condition, to be a condition subsequent, should be a condition to defeat a use or estate subsequently to its having become subsequent actually vested, that is, vested in interest at least. may be a condition subsequent, even when annexed to contingent gift or interest; for a contingent gift or interest has a real existence, capable, as much as a vested interest or estate, of being made to cease and become void by the operation of a condition subsequent. The fact of the estate or interest being vested or being contingent is perfectly immaterial as regards its capacity of being the subject of the operation of a condition subsequent. In the one case a contingent gift or interest exists; in the other case an actual estate exists. The two things are very different; but each exists, and each may properly be made. to cease and become void by virtue of a condition subsequent annexed to it (n). 160;

of the term

subsequent.

"One reason, indeed, why a condition subsequent was Derivation so called, is, that it is a condition that ordinarily defeats condition a use or estate subsequently to its vesting." "But there is another reason why a condition subsequent may have received that name. A condition may be called precedent when it precedes, and because it precedes, the words of gift; and a condition may be called subsequent when it follows, and because it follows, the words of gift, whether that gift is vested at the time when the condition, which follows it, is to operate or not. Regularly, a condition precedent does in form precede, and a condition subsequent does in form follow the words of gift; and in all cases a condition precedent does, in substance, and by construction at least, precede the gift, and a condition subsequent does, in substance and by construction at least, follow the gift; for, if the gift is to arise upon a condition, such condition

(n) It was upon this that the decision in the great case of Egerton v. Earl Brownlow, 4 H. L. Cas. 1, turned,

PART II.

T. 1, CH. 1.

must in substance precede the gift; and if the gift is to be defeated, or the use or estate is to cease or determine by the condition, such condition must in substance follow the gift; the gift in the latter case must have an existence antecedent to the operation of the condition which is to defeat it, or cause it to cease or determine" (o). 161.

(0) Lord Truro, in Egerton v. Earl Brownlow, 4 H. L. Cas. 1, 187-8.

CHAPTER II.

OF SPECIAL OR COLLATERAL LIMITATIONS AND CONDITIONAL

LIMITATIONS.

PART II.

T. 1, CH. 2.

Different

the word limitation

THE word limitation is used in two different senses: In its original sense of a limit or bound, it is a restrictive expression, which serves to mark out the limits or bounds senses of of an estate. In its derivative sense, a limitation signifies an entire sentence creating and actually or constructively marking out the quantity of an estate (a). In other words, in the original sense the term limitation denotes the limits or bounds to an estate; and in the derivative sense, it denotes a clause creating an interest with such limits or bounds. 162.

Limitations, in the original sense of limits or bounds, are Different either general or special. 163.

kinds of limitations in the sense

bounds.

limitations

"A general limitation is a restrictive expression, which of limits or determines the general class or denomination, in point of General quantity of interest, to which an estate belongs, by confining it to the period during which there shall be a succession of heirs general or special, or of persons filling a certain corporate capacity, or to the period of a life or lives, or of a certain number of years. It is necessary to the very existence of law, that estates should be distributed into certain classes, known by certain denominations, and that every estate should be referable to one or other of these classes. And hence a general limitation, which serves to determine the general class and denomination to which an

(a) Smith's Executory Interests annexed to Fearne, § 24, 26.

T. 1, CH. 2.

PART II, estate belongs, is ordinarily incident to every estate. The general limitation, however, may either be expressed by the words of the instrument creating the estate, or may be implied by construction of law. Thus, where land is granted to A. and his heirs, the words 'and his heirs' constitute a general limitation: they serve to mark out the limits of the estate; to ascertain the quantity of interest; and thus to determine to what general class and denomination the estate belongs; denoting that the estate is an estate in fee simple. And similarly the words 'and the heirs of his body,' 'for life,' 'for years,' are general limitations, denoting that the estates are respectively estates tail, freeholds not of inheritance, and chattel interests" (b). 164.

Special limitation.

"A special limitation is a qualification serving to mark out the bounds of an estate, so as to determine it ipso facto, in a given event, without action, entry, or claim, before it would or might otherwise expire by force of or according to the general limitation. This is sometimes denoted by the expression 'a determinable quality.' Thus, where land is granted to A. till &c., or so long &c., or if &c., or whilst &c., or during &c., the estates so limited have two limitations for, the law gives a life estate to A., implying the words for life,' so as to constitute an implied general limitation, while the words 'till,' &c., form an additional and special limitation. And where land is limited to A. for ninety-nine years if he shall so long live, the words 'for ninety-nine years' form the general limitation, denoting that the interest is a chattel interest for ninety-nine years; and the words 'if he shall so long live,' constitute a special limitation, which would determine his estate on his death. This estate, therefore, is of precisely the same eventual duration as an estate limited to A. for life, in consequence of the addition of the special limitation. But

(b) Smith's Executory Interests annexed to Fearne, § 28-31.