Where a gift, of either realty or personalty, is subject to a condition precedent, it is said to be “contingent”; where it is not so subject, it is said to be "vested"; and where it is subject to a condition subsequent, it is said to be "vested subject to be divested," or to be "defeasible." For example, if a legacy is given to A., or is given to trustees in trust for A. for life, with remainder in trust for B., the interests of A. and B. are vested; for neither of them is subject to a condition precedent. On the other hand, a legacy given to A. "if he attains twenty-one," is subject to a condition precedent, and is therefore contingent.

There is another manner of regarding the difference between vested and contingent legacies. Where the legacy is vested, the legatee is the owner of the legacy, even though (as where it is in remainder) the enjoyment of it is postponed. On the other hand, where the legacy is contingent, the legatee is not the owner of the legacy, though he will become the owner of it if the condition is performed.

A legacy is primâ facie contingent when it is given to A. "if he attains a certain age or marries " (j), or “upon attaining" (k), or "when" or "as" he shall attain, or "from and after " his attaining a certain age (1). The rule is the same if the gift is to a class.

It should be observed that the question whether a legacy is vested or contingent has nothing to do with the question at what time it is to be paid. For example, a legacy to A. "to be paid when he attains twenty-one," or "to be paid on his father's death," is vested.

It should also be noted that a direction postponing the time of payment does not postpone the vesting (m), except where the payment is postponed till the marriage of the

(i) As to the meaning of "vested" or "contingent" remainders, see M. L. R. P. 240.

(j) Stapleton v. Cheales, Prec. Ch. 317.

(k) Leake v. Robinson, 2 Mer. 363.

(1) Hanson v. Graham, 6 Ves. 239; Leake v. Robinson, 2 Mer. 363; Davies v. Fisher, 5 Beav. 201.

(m) Lister v. Bradley, 1 Ha. 12; Williams v. Clarke, 4 De G. & S. 472.

VESTING-RESTRAINT OF MARRIAGE.

legatee, Atkins v. Hiccocks, 1 Atk. 500. The rules as to vesting of a legacy charged on land will be found ante, p. 376.

A gift of the rents and profits of land is equivalent to a devise of the land itself (n); and a gift of the income of personalty (o), unrestricted as to time, passes the corpus. It follows that if there is a contingent gift of the corpus and a gift to the same person of the whole interim rents and profits or income, or a direction that the whole interim. rents and profits or income shall be applied for the benefit of the person to whom the corpus is given, that person takes a vested interest in the corpus, because, if the condition is never fulfilled, so that the contingent gift of the corpus does not take effect, the gift of the income is for ever and passes the corpus (p). A mere power to apply the whole or part of the income does not vest the corpus (q).

451

in restraint

Provision is often made for a testator's widow or unmarried daughters by way of an annuity determinable on marriage, or in the case of the daughters on their marrying under a certain age without their guardian's consent. It is necessary, therefore, to consider the doctrine of conditions in restraint Condition of marriage, that is, provisions or qualifications attached to of a devise or bequest, to the effect that the marriage of the marriage. devisee or legatee shall defeat the devise or bequest. There is an important difference with respect to conditions in restraint of marriage according as the subject-matter of the gift is realty or personalty. As to realty the rules of Common Law apply; but the rules as to personalty are founded on the doctrines of the civil law.

Where the subject-matter of the gift is land or a charge General condition, on land, the rules as to conditions in restraint of marriage generally are the following:-First, a limitation or gift land.

(n) Hawk. Wills, 120; Mannox v. Greener, L. R. 14 Eq. 456 ; Jarm. Wills, 740.

(0) Wms. Exors. 1058; Hawk. Wills, 123.

(p) Stapleton v. Cheales, Prec. Ch. 317; Hanson v. Graham, 6 Ves. 239; Hawk. Wills, 227.

(q) Re Wintle (1896), 2 Ch. 711, where the cases are collected.

as to

General condition, where the subjectmatter of

until marriage is valid and is determined by the marriage (r); second, a condition, whether precedent or subsequent, in general restraint of marriage, is void as opposed to public policy (consider Perrin v. Lyon, 9 East 170; Jones v. Jones, 1 Q. B. D. 279); but this rule is subject to the exception that a condition restraining a widow (Newton v. Marsden, 2 J. & H. 356), or widower (Allen v. Jackson, 1 Ch. D.399), from marrying again is valid; third, where the gift is subject to a condition precedent of marriage with consent, the condition must be performed to entitle the devisee to the estate (8); fourth, where an estate is subject to be divested by a condition subsequent in the event of marriage without consent, a breach of the condition will divest the estate unless the condition becomes impossible to be performed, as where the person whose consent is required is dead at the time of marriage (t).

In cases where the rules of the civil law apply, i.e., in cases where the gift is of personal property, and where it consists of a mixed fund of personalty and the proceeds of sale of realty (Bellairs v. Bellairs, L. R. 18 Eq. 510), the personalty. rules are the following:-First, a gift until marriage is valid

the gift is

and is determined by the marriage (u); second, a condition, whether precedent or subsequent, in general restraint of marriage is void (x), subject to the exception that such a condition annexed to a gift to a widow or widower, if there is a gift over on marriage, is good; third, a condition precedent requiring marriage with consent (y), and fourth, a condition subsequent directed against marriage without consent, are considered to be in terrorem only, and have no effect; fifth, the third and fourth rules are subject to the

(r) Morley v. Rennoldson, 2 Ha. 580; Webb v. Grace, 2 Ph. 702; Heath v. Lewis, 3 De G. M. & G. 956.

(s) See notes to Scott v. Tyler, 1 W. & T. L. C., at p. 556.

(t) Ib. at p. 558.

(u) Potter v. Richards, 24 L. J.

Ch. 488; Heath v. Lewis, 3 De G.
M. & G. 954.

(x) Morley v. Rennoldson, 2 Ha. 570.

(y) Reynish v. Martin, 3 Atk. 330; but see notes to Scott v. Tyler, 1 W. & T. L. C., at p. 556.

RESTRAINT OF MARRIAGE.

exception following, in each of which cases the condition, whether precedent or subsequent, is effectual: (a), if there be a gift over on marriage without consent (~); (B), where the marriage with consent is one of several alternative conditions, as where the bequest is subject to the condition precedent of attaining a particular age unmarried, or marrying under that age with consent; (y), where the condition is directed against marriage under a certain reasonable age without consent (a); (8), where the legatee takes another legacy on breach of the condition. (Gillet v. Wray, 1 P. Wms. 284; Re Nourse (1899), 1 Ch. 63.)

453

condition

marriage.

A condition imposing a particular restraint on marriage is Particular valid, whether annexed to a gift of realty or to a gift of in restraint personalty e.g., a condition in restraint of marriage with a of named person or with persons of a particular class, as a Scotchman (Perrin v. Lyon, 9 East 170), or a domestic servant (Jenner v. Turner, 16 Ch. D. 188); or of a particular religion, as a Papist (Duggan v. Kelly, 10 Ir. Eq. Rep. 295), or a Christian (Hodgson v. Halford, 11 Ch. D. 959).

under

It should be remembered that, if a legacy be given to a Condition restraining daughter contingently on her attaining twenty-one or marry- marriage ing with consent, it will vest on her attaining twenty-one twentyeven though she may have previously married without con- one. sent. If, therefore, it is really intended to prevent a daughter from marrying under twenty-one without consent, the legacy should be made contingent on her marrying in the testator's lifetime, or on her attaining twenty-one without having previously married, or on her marrying after the testator's death under the age of twenty-one with consent. It is unnecessary to annex the condition of the testator's consent to a marriage during his lifetime, for on her marriage without his consent he can revoke the legacy.

The following scheme is, it is believed, often adopted in Gifts for making gifts for the purposes of the religion of one of the

(2) Theob. Wills, p. 500; notes to Scott v. Tyler, 1 W. & T. L. C. at p. 560.

(a) Stackpole v. Beaumont, 3 Ves. 89.

stitious uses."

Letter left

with will.

Settled legacy.

principal denominations in this country, where such gifts might be void as being for superstitious uses. The testator devises or bequeaths the property to two or three of the clergy of that denomination, selecting respectable people whom he does not know personally, and he carefully abstains from communicating his intentions to them in his lifetime, but he leaves with his will a letter addressed to them stating how he wishes the property to be disposed of, and also a letter addressed to their ecclesiastical superior informing him of the transaction. It is thus impossible on the one hand for them to suppress the testator's wishes and retain the gift for their own use without their conduct becoming known to the superior, and on the other hand for any one to establish that a trust is created which might be invalid as offending against the law.

It is obvious that the device of giving a legacy imposing a moral but not a legal obligation on the legatee to apply it in some particular manner, may be used for various purposes. For instance, a provision can be made in this manner for an improvident child. In such cases it appears advisable not to state the real intention of the testator in the will, but to leave with the will a letter (not attested) addressed to the legatee and stating the wishes of the testator. The greatest care must be taken not to inform the legatee during the testator's lifetime of his real intentions; for, if the legatee be informed, a trust will be created contrary to the intentions of the parties; and that, even where the result would be to make the testator's intentions fail altogether. Thus, where land was given by will to a person who had previously been directed to hold it in trust for charity, at a time when a gift by will to the charity was invalid, the devisee was held to be a trustee of the land for the testator's heir-at-law (b).

It will sometimes be found convenient to give settled

(b) Now, by the effect of the Mortmain and Charitable Uses Act, 1891 (54 & 55 Vict. c. 73),

land may be given by will for any charitable purpose; but the Act requires it to be sold.