transferred and divided between the six children of J.S. and M. his wife, who had six children at the date of the will, but had another born afterwards, and before the death of the testator: it was held the operation of the will must be confined to the date.a In a case in which a man bequeathed the residue of his estate to all and every the child or children of his brothers and sisters as aforesaid, who should be living at the time of his decease, on their respectively attaining the age of twenty-five; but in case of the decease of any of the aforesaid brothers or sisters, having issue born in wedlock, then the child or children to have and enjoy the same share, as if the parent had been living at the time of the testator's decease: Sir W. Grant observed he was by no means satisfied, that under any construction of the will after-born children would be entitled; but his opinion was, that according to the better construction the nephews and nieces, living at the testator's death, were entitled to take the whole residuary estate. ކ In concluding this part of our subject we may Hancartnotice a class of cases in which legacies have been in given to a specified number of persons by a generala & Prin. 4 ha. 249. An description, and there are more than that number - htt answering to it: as for example, 50l. apiece to the. three children of A., when A. has four children; or. 337. 500l. to each of the daughters of A., if both or either survive B., when A. has three daughters: the Court in these cases has rejected the specified number, and admitted all such persons to take. So where a testatrix gave unto the two servants that should live a Sherer v. Bishop, 4 Bro. 55. K 257. 2 Ves. 564. 2 Bro. 86. N. Scott v. Fenoulhett, 1 Cox, 79. with her at the time of her death 1007. equally between them, and the testatrix had but two at the time of making her will, but afterwards took another, who lived with her to the time of her death: Sir T. Clarke observed, that living with the testatrix at the time of her death was the circumstance of her bounty; and if she had taken two more, he should think the legacy would be divisible among the four." Lord Kenyon did not approve of this doctrine, but said he yielded to the authority of the cases, which were also followed by Sir W. Grant. a Sleech v. Thorington, 2 Ves. 560. с b Stebbing v. Walkey, 2 Bro. 85. 1 Cox, 250. Garvey v. Hibbert, 19Ves.125. I. CONDITIONS are of two kinds, precedent and subsequent; but there are no technical terms to distinguish them, and the same words may indifferently make either, according to the intention of the person who creates it. In real property it is a well known maxim that where an estate is given upon a condition precedent, no interest can vest till the condition is performed. This seems also to be the case with regard to bequests of interests arising out of land; for these having nothing testamentary in them are not subject to the jurisdiction of the ecclesiastical court, nor to be governed by the rules of the civil law. Thus where Sir T. A. by settlement created a term of years in trust to raise and pay certain portions to daughters, provided they married with the consent of the defendant their mother, till which a yearly sum to be paid them out of the rents and profits; and afterwards Sir T. A. by will, taking notice of the settlement, directed that out of his personal estate there should be paid to each of his daughters a further sum as and for an augmentation For. 166. 1 T. R. 645. 6 id. 668; and see, as to what words make conditions, Swinb. P. 3. S. 4. P. 4. S. 3. 5. Godolph. 39. 288. b Co. Lit. 206, b. Com. Dig. Condition. D. 1 Ver. 83. 2 Freem. 244. 1 Atk. 379. 3 id. 333. 2 Dick. 719. Reves v Herne, 5 Vin. Ab. 343. of their portions subject to the same conditions as their original portions; and Sir J. Jekyll held that two of the daughters, who had married without the consent of their mother, were nevertheless entitled both to their original and additional portions ;* Lord Hardwicke, assisted by the Lords Chief Justices Lee and Willes, and Mr. J. Comyns, reversed the decree, on the ground that the original portions were given on a condition precedent, and the additional ones being bequeathed upon the same condition, nothing could vest in the daughters unless that was performed." So if portions are devised out of land, to be considered as vested at the expiration of two years after the testator's death, if his debts shall then be paid; or a legacy is given if an estate shall sell for a certain amount, these gifts are upon conditions precedent, and not due if the debts are not paid within the time, or the estate does not produce the specified amount. In the civil law, if a precedent condition annexed to a legacy were impossible at the time of creating it, it did not prevent the legatee from taking his legacy as if a man left J. S. 100/., if he should drink up all the water in the sea: J. S. would be entitled notwithstanding the condition. It was the same with regard to conditions contrary to law, or to good manners, or repugnant to the nature of the gift; as in the case of a legacy to a man if he committed murder: the law considering such a condition impossible. Hence where a testator, after giving his d Stonehouse v. Evelyn, 3 P. W. a Hervey v. Aston, For. 212. b Harvey v. Aston, 1 Atk. 361. Com. 726. Willes, 83. Bernard v. Mountague, 1 Mer. niece 157. for mourning, directed, that if she lived with her husband, the executors should pay her 21. per month, and no more; but if she lived from him, and with her mother, then they should allow her 5l. per month: Lord Northington held, that the niece was entitled to the monthly payment of 56.; for the condition annexed being contra bonos mores, the legacy was simple and pure. So if a legacy is given fill to one, his heirs, executors, &c. with a clause of for-the. 21 wi feiture if he attempts to dispose of it; or with a condition that if he does not make use of it, or dies before he receives it, that it shall go over to another; t the qualification, being inconsistent with the gift, is 44 void; and the property vested absolutely in the legatee. A proviso, however, against alienation, or for 2 determining the bequest, may in some cases be valid. ́ Thus an annuity bequeathed to A. during life, to be paid into his own hands, and to cease and determine if alienated, was held to cease on the bankruptcy of A., and not to go to his assignees. "There is no doubt," says Lord Eldon, "that property may be given to a man, until he shall become bankrupt. It is equally clear, generally speaking, that if property is given to a man for his life, the donor cannot take away the incidents to a life-estate; and a disposition to a man, until he shall become bankrupt, and after his bankruptcy over, is quite different from an attempt to give to him for his life, with a proviso that Brown v. Peck, 1 Ed. 140; and see 3 Atk. 332. Bradley v. Peixoto, 3 Ves. 324. Ross v. Ross, 1 Jac. & W. 154. Hutchin v. Mannington, 1 Ves. J. 366. d Dommett v Bedford, 6 T. R. 684. 3 Ves. 149; and see De Mierre v. Turner, 5 Ves. 306. Shee v. Hale, 20. this 34f Sun.622, |