Conditions and Limitations
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 913
HIGH COURT OF CHANCERY
[105] CAP. XVII. conditions and limitations. (A) Who are to take Advantage of a Condition, or will be prejudiced by it. (B) In what Cases the Breach of a Condition, or the not performing a Condition precedent or subsequent, will be relieved against, the Matter resting in Compensation. (0) In what Cases a Gift or Devise, upon Condition not to marry without Consent, shall be good and binding or void, being only in Terrorem. (A) WHO ARE TO TAKE ADVANTAGE OF A CONDITION, OR WILL BE PREJUDICED BY IT. 1. If by a Settlement Lands are limited to the second Son in Fee, provided that if the eldest Son die without Issue, the second Son shall, within six Months after the Death of the eldest Son, pay £1500 to a Sister; or in Default thereof the Land to go 914 CONDITIONS AND LIMITATIONS 1EQ. CA. ABE. 106. to the Sister and her Heirs; and the eldest Son dies without Issue, and the Sister dies within the six Months; upon the second Son's refusing to pay the Money, the Land shall go to the Heir, and not to the Executor of the Sister; for to decree otherwise, would be to destroy the known Difference between a Condition and a Limitation. Decreed, with the Assistance of the two Chief Justices, Trin. 1686, The Earl of Winchelsea and Wentworth, 1 Vern. 402, 430, S. C. (Words which create a Condition are, upon Condition, so that, to the Intent, to pay, to the effect, &c. Go. Lit. 204; Hard. 10, 11. But as to Words which make a Condition in a Will, though not in a Deed, vide 10 Co. 40, 41, and there it is held, that if there be express Words of Condition annexed to the Estate, it cannot be construed a Limitation, as the Words quamdiu, dummodo, dum, quousque, durante, &c. But this Opinion is now exploded; for though Words which properly create a Condition be used; yet, if the Estate be limited over, it shall be a Limitation. 2 Brownl. 65, 66; 1 Rol. Abr. 412 ; 1 Mod. 86. And per Hale, C. B. There is no other Case to warrant the contrary Opinion, but that of 10 Co. 40, and by him it may properly be called a conditional Limitation. 1 Vent. 199, of which the Heir cannot take Advantage, though it may determine the Party's Estate without Entry or Claim, which seems to be the chief Difference between a Condition and Limitation. Also if Lands are devised to the Heir at Law, upon Condition that he pay a Sum of Money or do any other Act; this, on Failure of Performance, shall be construed a Limitation, though not mentioned; for if it were a Condition, no Body could take Advantage of it, the Benefit of Conditions annexed to the Real Estates belonging to the Heir, as those to the Personal do to the Executor. Cro. Eliz. 204; 3 Go. 22; Owen, 112; 2 Mod. 7; 1 Lutw. 809.) [106] 2. A Man seised in Fee devised Lands to his Daughter and her Heirs, and his Mind is, That if his Son pay to her £50, then his Son shall have the Land; the Money was not paid at the Day; the Daughter sold the Land; and it was decreed against the Vendee, the Son paying the Money; for the Court took it to be but in Nature of a Security. Hti. 30 Car. 2 [1679], Bland and Middleton, 2 Chan. Ca. 1. But the Reporter being of Opinion, that the Son took but an Estate for Life, adds a Quaere, why a Fee-simple should be (as it was) decreed him, seeing thereby he had more Benefit by the not performing the Condition, than if he had performed it. 3. A man devised Lands called 8. to his younger Son, and declared, that if he should any way be hindered from enjoying them, then in lieu thereof he should have all the Land at B. A Moiety of the Lands called S. were evicted from the Devisee, who there upon insisted to have the whole Lands at B. but the Court decreed that he should have as much of the Lands only at B. as were equal in value to those evicted. Mich. 1684, Tyle and Tyle, 1 Vern. 270. A Legacy was given upon Condition that the Legatee should release all Claims on the Testator's Estate within a limited Time. The Legatee took the Legacy, but did not actually release, Lord Henley held he was bound by his Election, and decreed his Executors to release, and this Decree was, on a Re-hearing, affirmed by Lord Camden. Northumberland v. Aylesford, Ambl. 540, 657. 4. If Legacies are given by Will to four Grandchildren, upon Condition, that as they come of Age, they shall release all Claims to the Testator's Estate, this Condition must be taken distributively, and such only as refuse to release shall forfeit their Legacies. Per Ld. K. Hawes v. Warner, 2 Vern. 478. 5. A Man having Issue a Son by the first Venter, and two Sons and six Daughters by a second Wife, settles his Estate in Question on his eldest Son by his second Wife, in Tail Male, Remainder to his second Son by his second Wife, and the Heirs Male of his Body ; and in Default of such Issue to the Son by the first Wife ; provided if both his Sons by the second Wife died without Issue Male, so that the Estate came to the Eldest Son ; that then his Eldest Son, or his Heirs should within four Months after the Estate came to him, or them, pay £1000 to his Daughters ; or in Default, the Trustees therein named to enter and raise it: The Son by the second Wife entered, and suffered a Recovery of one Moiety of the Lands, and died without Issue, and the other Son by the second Wife died also, by which one Moiety of the Land came to the Heir of the eldest Son by the first Wife ; and the Moiety thus descended was decreed liable to the whole Sum of £1000 although it was objected, that the Estate never came to the Eldest Son ; and though a Moiety came to his Heirs, yet as so great a Benefit did not accrue to him as was intended, he should be only answerable in Proportion. Mich. 1698, Hooley and Booth, 2 Vern. 359. 1EQ. CA. ABE. 107. CONDITIONS AND LIMITATIONS ' 915 6. /. S. having Issue three Sons, William his eldest, Nathaniel his second, and Daniel his third; William died in the Life-time of his Father, leaving Issue only a Daughter; afterwards the Father devises the Estate in Question to Anne his Wife for her Life, and after her Death to his Son Daniel and his Heirs; provided that if Nathaniel do, within three Months after the Death of my Wife, pay to Daniel, his Executors or Administrators, the Sum of £500, then the said Lands shall come to my Son Nathaniel, and his Heirs; the Wife lived several Years after, and during her Life Nathaniel died, leaving the Plaintiff his Heir, and the Wife afterwards dying, the Plaintiff brought this Bill within three Months after her Death, praying, that upon Payment of the £500 he might have a Conveyance of the Estate; and the Principal Point in the Case was, this £500 [107] being to be paid Nathaniel within a limited Time, and he dying before that Time came, whether his Heir at Law could now, on Payment of the Money, make a Title to these Lands; for it was agreed that he was not Heir at Law to the Testator; and it was insisted upon that he could not; that this was a Condition precedent, and merely personal in Nathaniel, who had neither Jus in re nor ad rem, and could neither have devised or released, or extinguished this Condition; and being a bare Possibility, and he dying before it was performed, his Heir could not make it good ; and though the Word Heirs be used in the Devise to Nathaniel, yet that is not designed to give them any Estate originally, but to denote the Quantity,of the Estate which Nathaniel was to take ; and for this were cited Lampet's Case, 10 (70.[46], and Brett and Rigden's, Plow. Com. On the other Side it was insisted, that this was like the common Case, Co. Lit. 205, 219, b, where a Feoffment is made on Condition that the Feoff or shall, before such a Day, &c. there, if the Feoffor...
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