Also in the temporal courts a distinction is made where a portion is charged on the personalty, and where it is charged on land. If it is charged on the personalty, they follow the rule of the ecclesiastical court, which hath jurisdiction as to the personalty; but if it is charged on land, of which the ecclesiastical court hath no jurisdiction, they follow the rule of the commonlaw courts, which on non-performance of the condition will not suffer the portion to be raised. (k) In the case of Harvey and Aston, Apr. 30, 1737; Sir Thomas Aston, by settlement after marriage, created a term in trust by mortgage or sale to raise 2000l. for each of his daughter's portions, "provided they marry "with their mother's consent; and if either die before marriage "with such consent, her portion to cease, and the premises to "be discharged; and if raised, then to be paid to the person to "whom the premises should belong :" and afterwards by will created another trust term to augment their fortunes 20007. a piece more, but subject to the condition as in the settlement, and gave the residue over and above 2000l. a piece to his wife and by a codicil created another trust term for the better raising of his daughters' portions. Sir Thomas died, leaving issue two daughters. One of them married after the age of twenty-one, and the other before the age of twenty-one, and both of them without the consent of their mother. Sir Joseph Jekyl, master of the rolls, decreed the portions to be paid. But on appeal from this decree, the lord chancellor Hardwicke, assisted by the two chief justices Lee and Willes, and the chief baron Comyns, reversed the decree; and argued, first, that it is the right and liberty of the subject, who makes a voluntary disposition of his own property, to dispose of it in what manner, and upon what terms and conditions he pleaseth. Secondly, that it is an established maxim of law, that if an estate in land, or interest out of the land, is limited to commence upon a condition precedent, nothing can vest or take effect, till the condition is performed. And this is so strong and so settled a point, that although the previous act was at first impossible by the act of God, or other ac[177]cident, the estate can never vest. Thirdly, that it is most agreeable to the rules of equity, to direct the execution of the trust according to the intent of him who appointed the trust. It is said, that a trust is to be construed favourably, and it is true it is to be construed with as much advantage as may be to make good and answer the intent and design of the party; but it is to be construed strictly with regard to the execution of the trust: and therefore it would be a strange thing, when the trust directs.

(k) Add, Or if it be raised, and the condition subsequent be broken, will divest the estate. 1 Roll. Ab. 418. pl. 6. Fry v. Potter, 1 Cha. Ca. 138.

the trustees to pay the money at the time of the daughter's marriage with her mother's consent, that the court should direct them to pay the money before that time. Fourthly, that a restraint in the present case is not only lawful, but prudent and reasonable; and no consequence more likely to ensue from it, than the hindrance of an inconsiderate or imprudent marriage. Comyns, 744. Cas. Talb. 212. 1 Atk. 361.

T. 1743, Pulling and Reddy. By the lord chancellor Hardwicke: If a legacy be given to a woman upon this condition, that she marry with the consent of a third person, and there be no devise over in case she marry without such consent; this is only to be considered in terrorem: but if there be a devise over, then it shall go to whom it is so devised over. This rule is taken from the civil law, as this court hath a concurrent jurisdicdion as to legacies. But if a portion be to arise out of land, and there is no devise over, in that case she shall not have it, but it shall go to the heir; for the spiritual court hath no jurisdiction as to lands. There may be some doubt (he said) where money is given to be laid out in lands. 1 Wilson, 21.

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May 5, 1746, Reynish and Martin. Elizabeth Philips by her will devised her real estate to her daughter Martha and her heirs for ever; and then says, "If my daughter Mary marry "with the consent of the trustees (therein particularly named) or the major part of them, signified in writing before such marriage had, then and not otherwise I give and devise to my "said daughter Mary the sum of 800l.:" And after comes a clause, " And I do hereby charge all my aforesaid real estate "with all my debts of all kind, and with all my legacies." The testatrix died, leaving issue the said two daughters Martha and Mary. Mary married Thomas Reynish the plaintiff, without the consent of the trustees. And the bill was brought by Thomas Reynish, as representative and administrator of Mary his wife, [178] for an account of the personal estate, and that the same might be applied in payment of the said legacy of 800l.; and in case the personal estate should not be sufficient, that then the real estate, or so much thereof as will make good the deficiency, might be sold, and the money arising therefrom applied for that purpose. This case coming on to be heard at the rolls, the personal estate not being sufficient, Fortescue master of the rolls decreed the real estate to be sold for payment of the legacy. The defendants appealed from the decree, and the cause now standing for judgment, lord Hardwicke delivered his opinion to the following effect: First, I will consider this as if it had been a mere personal legacy, and payable out of the personal estate. Secondly, I will consider it as if it had been charged on the real estate originally. As to the first, I apprehend, that taking this as a personal legacy, the plaintiff by the rules of the civil and

mere

VOL. IV.

per

ecclesiastical law, and which have been constantly adhered to in this court, will be intitled to the legacy; for it is an established rule in the civil law, and has long been the doctrine of this court, that where a personal legacy is given to a child on condition of marrying with consent, this is not looked on as a condition annexed to the legacy, but as a declaration of the testator in terrorem: And indeed the civil law makes such conditions void, notwithstanding the legacy be given over, but that has not been received so in this court; but whenever the legacy is given over for breach of the condition, the gift over shall take place upon this foundation, because it thereby appears clearly that the person to whom it was given over, was in the mind and contemplation of the testator at the time of making his will; but in the present case there is no such gift over. The second consideration is, what the consequence will be, taking this legacy as a charge originally laid upon the lands, and not merely personal. In the will it is first of all a personal legacy, issuing out of sonal estate; but then the testatrix afterwards, at the close of her will, charges all her real estate with all her debts and legacies. If it had been originally charged upon the land, and given upon the condition before-mentioned, it could not have been contended that the plaintiff could have recovered it after breach of the condition; and indeed it would be contrary to the rule of the common law, (to decree for the plaintiff) which always fa[179] yours the heir, and contrary to the determination in Harvey and Ashton, for the difference taken there is, that this court follows the rule of the civil law, because that was the original jurisdiction for the recovery of personal legacies; but whenever land is in question, or to be affected, this court followeth the rule of the common law; and in all cases, whereof this court takes cognizance of suit, where the original jurisdiction arises in another court, the rule of this court is always to follow the law of that other court; for if this court did not pursue that rule, there would be different remedies in different courts, which would create great inconvenience, and the rule of right in different courts would be different. But though this be so in the case of a personal legacy, it is not so in regard to lands affected or charged with legacies, because the property of land must be governed by the law of England; and where it is a legacy charged upon land, it must have the same consideration as a devise of the land itself would have had. And I am of opinion, if this case stood as an original charge upon land, the plaintiff could have no right to demand it. But this being an original personal legacy, the plaintiff is intitled to have an account of the personal estate of the testatrix, but not of her real estate. But as the personal estate may be exhausted by the payment of debts and legacies, the next question will be, whether this court cannot

marshal the assets in such a manner, as to give the plaintiff are medy out of the real estate: And as the real estate is expressly charged with the payment of all debts and legacies, and this legacy, by the event which has happened, falls out to be a charge upon the personalty only; I am of opinion, that the plaintiff ought to stand in the place of such creditors or legatees as have received a satisfaction out of the personal assets: And to order it so, is the constant rule and practice of this court. 3 Atk. 330. 1 Wilson, 130.

In the case of Needham and Vernon, 25 C. 2., lands were devised in trust for raising portions for daughters, payable upon their marriages with consent of the trustees; but if they married without consent, then to remain over to another. The daughters were old, and never intended to marry, but to lay out their portions in a purchase of annuities for their lives. And it was held that they should have their portions immediately, upon giving security to indemnify against the persons to whom the portions were devised over. And the like hath been decreed, upon giving security to refund, if the condition should be broken. 1 Abr. Eq. Cas. 111.

[In Scott v. Tyler, 2 Bro. C.C.431., the testator Richard Kee di- [180] rected his trustees to purchase 10,000l. South-Sea annuities, and willed that one moiety of that stock should be transferred to his good daughter Margaret Christiana Tyler, of whom he was the putative father, at her age of twenty-one years, if she should then be unmarried, and the other moiety at her age of twenty-five years, if she should then also be unmarried; but in case she should marry before twenty-one with consent of her mother, he directed certain settlements to be made; and in case she should die before twenty-five unmarried, he gave the 10,000l. to the mother, whom he also made residuary legatee. The daughter, who had other property given her by the will, married under twenty-one against the consent of her mother, who entered into trade and became a bankrupt; and the question was between the daughter and the assignees of the mother. Per lord Thurlow C. after full argument: "An injunction to ask consent is "lawful, as not restraining marriage generally; a condition that a widow shall not marry is not unlawful. An annuity during "widowhood; a condition to marry or not marry Titius is good. (1) A condition prescribing due ceremonies and place of "marriage is good: still more is a condition good which only "limits the time to twenty-one, or any other reasonable age, "provided it be not used evasively as a cover intending to re"strain marriage generally. And it is agreed on all hands, that

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(1) Stone v. Theed, 2 Bro.C.C. 243.

Condition

trouble to

66 uses.

"(however restrictive of marriage) when the legacy is given over "to other uses, the testator shall be deemed to regard those I am of opinion, that the daughter having married at "eighteen, improvidently (as far as appears) and against the "anxious consent of the mother, never came under the descrip❝tion to which the gift of the 10,000l. South-Sea annuities was "attached: it is therefore void, and part of the residue, and be"longs to the assignees of the mother."]

32. If a legacy be given on condition not to dispute the will, not to give and the legatee commenceth a suit whereby he disputes the validity of the will, yet this is no forfeiture of the legacy, if there was probable cause of contesting it. 3 Bac. Abr. 479.

the exe

cutor.

[181]

Things

And even although there be no probable cause; yet where a legatee, or other person interested, hath a right to see the will proved in solemn form, his making use of that right cannot (as it seemeth) be deemed a disturbance.

E. 1724, Nuti and Burrel. The testator gives to B. a legacy, on pain of forfeiture of it in case he should give his wife (whom he made executrix) any trouble in relation to his estate. B. brings a bill against the wife, for which there was very little colour, and amongst other things demands his legacy. The chancellor was of opinion that the suit was very frivolous, but would not declare the legacy forfeited. Cha. Ca. King, 1.

But in the case of Cleaver and Spurling, T. 1729, a person by his will gives a legacy to his daughter, provided that if she or her husband refuse to give a release, or put the executor to any trouble, the same shall go over to her sister's children. The daughter and her husband (being within the custom of the city of London) sue for her orphanage part. Decreed, that the legacy was forfeited; for however it might have been construed to be intended only in terrorem, yet being devised over, and by that means a right to this legacy being vested in a third person, a court of equity could not devest it or call it back again. 2 Peere

Will. 528.

H. 1710, Webb and Webb. The father gave a legacy of 401. to his son, upon condition that he should not disturb the trustees. They applied to the court for an execution of the trust, and that he might either join with them in a sale, or lose the legacy. And it was decreed accordingly, by Harcourt lord chancellor. 1 P. Will. 136. [But Mr. Čoxe, in his note to this case, observes, that such conditions are considered to be merely in terrorem, and therefore void, unless the legacy be given over, as in Cleaver v. Spurling. Litigation in the sense of the condition means vexatious litigation when there is not probabilis causa. See Ingram v. Strong and others, 2 Phil. R. 294.]

33. It is said by some, that if land be devised to one, and after