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distinction.is, with regard to the subject under discussion, as vicious as it is perplexing. If we inquire into the probable reasons which determine a testator in his choice between the two classes of conditions, it will in most instances clearly appear that he was actuated by motives which have no bearing whatever on the question of whether or not he wished his conditions to be enforced. It is a mistake to suppose (as the Judges seem to do) that a testator puts a prohibition or injunction, in the form of a condition subsequent, when he is comparatively indifferent as to whether his wishes are attended to or not, and in the form of a condition precedent, only when he is really anxious to be obeyed, this is not so; he makes use of the one form or the other, for no other reason than because in the state of circumstances that he has to deal with, it happens to afford the simplest expression of his wishes. Suppose, for instance, that a testator simply desires to make a provision for his daughter on her marriage with her mother's consent, in such a case, he would naturally carry his intention into effect through the medium of a condition precedent, if, on the other hand, he wishes to make the provision in favour of his daughter to take effect immediately after his death, he will probably leave an annuity to his daughter, with the condition that it shall cease or go over if she marries without her mother's consent. This is of course a condition subsequent, but it cannot be supposed that the testator is less anxious in the one case than in the other to prevent his daughter from making an imprudent match. Yet the form of expression may be of the utmost importance, for there is a good deal of authority for the proposition that the doctrine of in terrorem applies exclusively to conditions subsequent. However, this is a doubtful point, and may, perhaps, even yet occasion plenty of litigation before it is finally settled.
We have now only one more modification of the in terrorem doctrine to deal with. This last modification, while more palpably absurd than any we have hitherto discussed, has the great advantage of simplicity. It has been gravely decided that the intention of a testator varies according to the nature of the property with which he purports to deal, and that the very same words which, if he were dealing with personal estate, would be held inoperative to defeat a previous gift, will, if referable to real estate, effectually put an end to the interest of the devisee. This remarkable distinction, and that between conditions precedent and subsequent, experienced rough treatment at the hands of Lord Rosslyn, in the well-known case of Stacpole v. Beaumont. His Lordship observes (3 Ves. 95), “ It is impossible to reconcile the authorities, or range them under one sensible, plain, general rule. There can be no ground in the construction of legacies for a distinction between legacies out of personal and out of real estate. The construction ought to be precisely the same. I do not see more importance in reality in the distinction between conditions precedent and subsequent. The case of all these questions is plainly this : In deciding questions that arise upon legacies out of land, the Court very properly followed the rule that the Common Law prescribes, and common sense supports, to hold the condition binding where it is not illegal. Where it is illegal the condition would be rejected, and the gift pure. When the rule came to be applied to personal estate, the Court felt the difficulty, upon the supposition that the Ecclesiastical Court had adopted a positive rule from the Civil Law upon legatory questions, and the inconvenience of proceeding by a different rule in the concurrent jurisdiction (it is not right to call it so), in the resort to this Court instead of the Ecclesiastical Court upon legatory questions, which, after the Restoration, was very frequent, in the beginning embarrassed the Court. Distinction upon distinction was taken to get out of the supposed difficulty.” His Lordship then proceeds, in no measured terms, to condemn the folly of importing the rules of the Civil Law
into the Ecclesiastical Courts,* and ended by observing, “the authorities stand so well ranged that the Court would not appear to act too boldly whichever side of the proposition they should adopt.”
With regard to the rival merits or demerits of the Civil and the Common Law, we do not hold so decided an opinion as Lord Rosslyn. On the contrary, we have every desire to encourage the spirit of compromise. We do not, we confess, entertain such an exalted opinion of the excellence of the Canon Law or the Common Law as to regard the complete triumph of either system in the light of a highly desirable event. We think that either system might, with advantage, accept of modification from the other, but we are unable to adopt the rough and ready form of compromise instituted by the Judges as a satisfactory settlement of their relative claims. It would, we humbly conceive, have been preferable to amalgamate the two systems of Law instead of allowing each of them to exercise more or less undisputed sway in its own allotted domain. Indeed, we venture to submit that almost anything would have been better than the present ludicrous anomaly of construing different passages in the same will according to antagonistic rules of construction. By whatever legal subtleties such a result may be defended, we are afraid that to the lay mind it will always appear strange that a condition in one part of a will should be interpreted to mean something quite different from an identically similar condition in another part. This result does not seem to have been brought about by reason of any overweening regard on the part of the Chancellors for the sanctity of every jot and tittle of the Canon Law; on the contrary, on the partial adoption of that Law they did not scruple to introduce amendments of their own, some of which we cannot conscientiously
* It is remarkable that his Lordship, while praising the Common Law and condemning the Canon Law, should have found fault with the distinction between condition precedent and subsequent, which is a creature of the Common Law.
designate as improvements. For instance, the Canon Law recognised no distinction between conditions subsequent and precedent in restraint of marriage, and attached no importance to the circumstance of a bequest over, two very considerable variations from the doctrine of the Court of Chancery. Although, therefore, we are inclined to agree with Lord Rosslyn in thinking that the Chancellors felt themselves, in some degree, hampered and embarrassed by the concurrent jurisdiction in the matter of legacies assumed by the Ecclesiastical Courts; still, in the face of the wide differences which were permitted to continue, we suspect that the concessions made on their part were not such as they regarded with any great aversion. We are strongly of opinion that the different construction of conditions, according as they affect gifts of realty or personalty, may be explained without having recourse to the supposition of undue clerical influence. A devisee stands on quite a different footing in the estimation of the Court of Chancery from a legatee. While legacies affect only the next-of-kin, devises are injurious to the sacred interests of the heir-atlaw. Now between a testator's legatees and his next-of-kin Equity is content to hold a pretty even balance, the claims of the next-of-kin not being invested with any peculiar sanctity, whilst the heir-at-law has always been preeminently what is called “a favourite” with the Court. Any interference with the prospects of that favoured individual, who has the divine right of primogeniture on his side, is jealously watched, and, indeed, the measure of favour dealt out to him was so extravagant, and so obviously inconsistent with a just estimate of the rival claims, both of creditors and of next-of-kin, that the Legislature had to interfere and enforce (in spite of strenuous opposition on the part of the highest legal functionaries) the elementary principles of justice; ist. By making the heir liable to the extent of his inheritance for all the debts of his ancestor ; and, 2ndly. By forbidding him to come upon the next-of-kin to pay off out of personalty the mortgages and charges to which his `inheritance had been subjected. The heir-at-law then and the next-of-kin stand at the opposite ends of the scale of favouritism. Starting from this premiss we may deduce the relative positions of legatee and devisee. In so far as their respective interests do not clash with those of the heir, the devisee is the more favoured of the two. He holds a very strong position when put in competition with such unconsidered persons as legatees and next-of-kin, but in so far as he ousts the heir he is considered in the light of a usurper, and the Court is only too glad of any excuse for holding a devise to be inoperative, and so reinstating their favourite the heir.
But whatever may have been the original motive for construing conditions attached to devises more strictly than conditions attached to legacies, whether partiality for the heir or regard for the Canon Law; at the present time there is not a shadow of excuse for making rules of construction vary according to the nature of the property given. If the doctrine of conditions in terrorein is held to furnish the rules of construction best calculated to carry a testator's real wishes into effect, the doctrine should manifestly be applied to devises as well as legacies.
It may be observed that even this last-mentioned limitation of the famous doctrine, comparatively simple as it is, has given rise to questions of some difficulty. It has only just been decided, and we venture to doubt whether it has been finally settled, by the present Master of the Rolls (Bellairs v. Bellairs, L. R. 18 Eq. 510), that a mixed fund of realty and personalty follows the rule of personalty, and in the same case it was intimated, but not expressly decided, that proceeds of sale of realty follow the same rule.
We have said enough to give some idea of the absurd and perplexing nature of the Law of Conditions in terrorein. We must not forget that a complete knowledge of that branch of the Law, so far as it has been settled, is but a