consent of the testator, it dispenses with the condition; and in such case his approbation given subsequently to the marriage is sufficient. Mr. J. Buller observed, the intention of these conditions was to prevent children from making inconsiderate engagements; they did not therefore extend to the case of a widow, or to a second marriage; that being complied with by the first marriage, the legacy was vested, and the condition gone.. So where the entry legatee married in the lifetime of the testator, herdie father, who approved of the marriage; and having become a widow, married, after his death, without the required consent: it was held that having once married she was not intended to be subject to the condition.d

In a bequest to be paid when the legatee attains twenty-one, or is married with consent, with a gift over on marrying without consent, the condition is restrained to a marriage under twenty-one; on the legatee's attaining that age the legacy vests, and a marriage without consent after that time is of no consequence. So where N. bequeathed to his daughters 15007. each, to be paid them respectively at the time of their several marriages with the consent of his executors, and if any of them should marry without such consent then only 500l., and gave the 1000l. to the rest on their respective mar

• Clarke v. Berkeley, 2 Ver. 720. 8 Vin. Ab. 154. 5 id. 88. Parnell e. Lyon, 1 Ves. & B. 479.

Wheeler v. Warner, 1 Sim. & St. 304. Coffin v. Cooper, cited 1 Ves. & B. 482; and see id. 484.

Hutcheson v. Hammond, 3 Bro. 128. So in a deed Fenwick v. Woodroffe, 2 Ch. Rep. 363.

■ Crommelin v. Crommelin, 3 Ves. 227.

e

King v. Withers, Gilb. Eq. R. 26. Pr. Ch. 348. 1 Eq. Ab. 112. Desbody . Boyville, 2 P.W. 547. Pullen v. Ready, 2 Atk. 587; and see 3 Mer. 116. Hanson v. Graham, 6 Ves. 239.

30.

riages with such consent; and appointed his executors guardians of his daughters during their minority, with a clause for maintenance and education till the portions became payable: Lord C. Camden thought the condition of marriage with consent must mean at an earlier time than twenty-one. In the same way where a man bequeathed legacies to his two daughters, to be paid within six months after his decease, and willed that if either of his daughters died under twenty-one her portion should go to the survivor; and one of the daughters received her legacy and died after the six months, but under age: this was held to have vested in her at the end of six months, and that the contingency must be confined to her dying under twenty-one within the period appointed for payment."

Or if a legacy is given to a woman to be paid at twenty-one, or marriage with consent, with a gift over in case of death before twenty-one or marriage, and the legatee marries under twenty-one without consent; although she can not then claim the legacy, she will be entitled to it if she afterwards attains the age of twenty-one."

Mlace & Sharscott There was a variety of distinctions in the civil Jun. 19. law as to the time within which conditions must have been performed. Some were to take place before the making of the will; some only after the testator's death; while others might be performed at any time, as in the case of a legacy upon condition to release

a certain debt; because this was a condition that could not be iterated."

A condition to marry a particular person, however, was understood of a first marriage only; for if a legacy was given to A., if he married the testator's daughter, and A. married some other woman who died, and he then married the testator's daughter, this did not entitle him to the legacy. But this, as to real estates at least, does not seem to have been adopted in equity. For where a testator gave certain legacies, and if either of the legatees married into the families of G. or R., and had a son, he gave all his estate to him; but if they should not marry, then the testator gave all his estate to the plaintiff'; and the legatees married, but not into the families of G. or R.: Lord Thurlow dismissed the bill, as the legatees had their whole lives to perform the condition; and by being once married, they had not lost all chance of marrying into the families of G. or R.c

If a legacy is given upon a condition to be performed within a certain number of months, these are to be reckoned calendar months, that being the rule in the ecclesiastical court, and the day of the testator's death is not to be included.*

It has long been a rule in equity to relieve against, a the breach or non-performance of conditions, whether 4.4 precedent or subsequent, that are said to lie in compensation; for if the Court can put the parties in the

* Swinb. P. 4. S. 14.

b Ibid. P. 4. S. 12.

Randal v. Payne, 1 Bro. 55; and

see Page v. Hayward, 2 Salk. 570.

M

a Franco v. Alvares, 3 Atk. 342; and see 2 Ver. 222.

Lester v. Garland, 15 Ves. 248.

same situation, as if the condition had been performed, it will never suffer a forfeiture to attach." Hence if an estate be devised upon condition to pay a sum of money within a certain time, which elapses, the Court will relieve upon payment of the legacy and interest, notwithstanding there is a devise over."

The executor is not bound, unless required by the will, to give notice to a legatee of a condition; he must of himself take notice of it. In a devise or grant of real estate to the heir upon condition, he must have notice of the condition, as he has a title by descent. And where a man devised his real and personal estate in trust, if his daughter (who was his heir) should marry with the consent of the trustee, to be conveyed to her use, but if she married without such consent then over; and the daughter married without consent: Lord Hardwicke held she had not forfeited the real estate for want of notice, and seemed to doubt even as to the personalty, upon the ground, that the testator intended them both to go together, and that if the whole was not forfeited, no part should.

* 1 Ver. 223. 2 id. 222. Com. 745. 1 Bro. 168. Cage v. Russel, 2 Vent. 352; and see 1 Mad. Ch. 42, 2d ed.

1 Ver. 83. Wheeler v. Whithall, 2 Freem. 9. Rep. T. Finch, 403. Barnardiston v. Fane, 2 Ver. 366. Grimston v. Bruce, id. 594. 1 Salk. 156. Woodman v. Blake, 2 Ver.

222, which however it seems was reversed. Dom. Proc. See Mr. Raithby's note.

с

Chauncy v. Graydon, 2 Atk.616. d Fraunces's case, 8 Rep. 177. Malloon v. Fitzgerald, 3 Mod. 29. Skin. 125. 179. Doe v. Beauclerk, 11 East, 657.

* Burleton v. Humfrey, Ambl. 256.

SECTION II.

Of implied Conditions.

I. A TESTATOR is never to be supposed to mean to give to any but those who shall survive him; and every legacy, therefore, with the exceptions after mentioned, may be considered to be conditional or contingent upon the event of the legatee surviving the testator. If the legatee die in his lifetime, the legacy is said to lapse, and merges into his estate." Hence where the trusts of a term were declared to be for raising a sum of money for such persons as A.should by deed, or will appoint; and A. appointed it to her nephew, who died in her lifetime: Lord Hardwicke held, that having executed her power by will, it must be construed to all intents like a will, and that by the appointee's death the appointment lapsed and determined, and his representative had

no claim. And as in a devise of land to A. and his Water impres heirs, if A. die in the lifetime of the devisor, the de-524. vise is void, and the heir can not take, so is it also

in the case of a personal bequest to A. and his heirs, or to A. or his executors, administrators, or assigns: 2 for these words are void, being but surplusage, and -Valoway 2 Shots 625. Widur Pencey P. 12 Bess. 547. • Ves, 435.

b Com. Dig. Chan. 3 Y. 13. Touch. 454. Wilson v. North, Mos. 185.

Oke v. Heath, 1 Ves. 135. D. Marlborough v. L. Godolphin, 2 Ves, 61. E. Salisbury v. Lambe, 1 Ed. 465. Ambl. 383; and see Vanderzee r. Acklom, 4 Ves. 771. Brookman v. Hales, 2 Ves. & B. 45. As to Burnet v. Helgrave, 1 Eq. Ab. 297, contra, see Lord Hardwicke's obser

vations in the two first cited cases.

f

d Brett v. Rigden, Plow.340; and Ela, 35. see Com. Dig. Dev. K. Bac. Ab. Dev. L.

e Miller v. Faure, 1 Ves. 85. Smith v. Pybus, 9 Ves, 566.

Elliot v. Davenport, P. W. 83. Maybank v. Brooks, 1 Bro. 84. 2 Dick. 577. Stone v. Evans, 2 Atk. 86. Hutcheson v. Hammond, 3 Bro. 128.