But the legacy is not a purely personal legacy. The testator charges the lands devised as an auxiliary fund for the payment of debts and legacies, and there is no personalty out of which the legacy can be paid. If it is paid, therefore, it can be only by a sale of the land on which the legacy is charged. This presents a case where the condition must be construed and effect given to it according to the general rules of the common law. Reynish v. Martin was the case of a legacy upon a condition in restraint of marriage without consent, charged upon land in aid of the personalty. The legatee married without consent, and afterward suit was brought to compel a sale of the land to pay the legacy, and Lord Hardwicke denied this relief, saying that " where a legacy is a charge upon the lands, to be raised out of the real estate, as the ecclesiastical courts have no jurisdiction, it must be governed by the rules of another forum, to which the jurisdiction properly belongs;" and in Scott v. Tyler, Lord Thurlow said, "Lands devised, charges upon it, powers to be exercised over it, money legacies referring to such charges, money to be laid out in land (though I do not find this yet resolved), follow the rule of the common law and are to be executed by analogy to it." And Judge Story, speaking of the distinctions between conditions in restraint of marriage, annexed to a bequest of personal estate, and the like conditions annexed to a devise of real estate, or to a charge upon it says: " In the latter cases (touching real estate) the doctrine of the common law, in respect to conditions, is strictly applied. If the condition be precedent it must be strictly complied with in order to entitle the party to the benefit of the devise or gift. If the condition be subsequent its validity will depend upon its being such as the law will allow to divest an estate." Story's Eq. Jur., § 288; see, also, Cornell v. Lovett's Ex'r., 11 Casey, 100; Comm. v. Stauffer, 10 Barr. 350; Williams on Pers. Prop. 341.
On the ground, therefore, that the condition in this case was lawful, and that there is no personal estate to pay the legacy, and that it cannot be enforced as a charge against the real estate by reason of the breach of the condition, we think the judgment should be affirmed.
123 Massachusetts, 584. - 1878.
Gray. C. J. - All the lands of which partition is sought were devised by David Parker to Loring Parker upon the condition subsequent that he should support George Parker. On the death of
George, in the lifetime of the testator, the performance of the con dition became impossible by the act of God, and Loring cannot be said to have neglected or refused to perform it, but holds the lands by an absolute title. 4 Kent Com. 130; Merrill v. Emery, 10 Pick.
(3.) Fees upon Conditional Limitation.
54 New York, 280. - 1873. [Reported herein at p. .]
d. The fee-conditional of the common law.
17 South Carolina, 545. - 1882.
McIver, J. - The principal questions in this case arise upon the construction of a deed which is couched in very informal and artificial language. Its material terms are as follows: " Know all men by these presents that I, Mark Cantrell, for the bare affectionate love I have to my daughter, Mary Burnett, and having special confidence in my brother Lanceford Cantrell and Joseph W. Martin as trustees, I give to my daughter and the lawful heirs of her body the following property, or to the trustees for her and her heirs' use and benefit ninety-two acres of land lying . . . reserving the use of the same during my life. And if my wife, Sarah Cantrell, is a longer liver than me, she is to have the use of the home tract of land, for her support, and choice of the negroes and mares - two cows and other household and kitchen furniture, as my trustees for my daughter and her lawful heirs think proper, during life or widowhood. And it is my earnest desire that my trustees attend to [here some words are manifestly omitted] agreeable to the intention of this writing or conveyance."
1 For the various uses of the term " conditional limitation." see note to § 22 of Gray's " Restraints on Alienation." It seems, on the whole, best that the phrase should be used as a generic term covering shifting uses and shifting executory devises. This is the sense in which we find it used in the N. Y. Real Prop. Law., § 43. " A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation." Shifting uses and shifting executory devises are termed remainders in New York. R. P. L.. §§ 25-28, and 43. See the chapter on future estates, infra. - Ed.
The grantor's wife predeceased him, and Mary Burnett, who subsequently intermarried with one Hammett, died in 1877, leaving no issue of her second marriage; Margaret, the wife of the plaintiff, J. W. Burnett, and the defendants, Marcus Burnett, Matthew Burnett and Mrs. McKinney, being her issue by her first marriage. By her will she appointed the defendant Davis executor, directing him to sell sufficient of her personal and real estate to pay her debts. The executor sold all of her property, both real and personal, including the lands conveyed by the above mentioned deed, and the object of this action is to set aside the sale of these lands and to have the same partitioned amongst the above named heirs of Mary Hammett, formerly Mary Burnett.
The first question presented is as to the nature of the estate which Mary Hammett took in the lands conveyed by said deeds. Both the referee, to whom the issues in the action were referred, and the circuit judge held that she took an estate in fee conditional, and we concur with them in so holding. The deed, as will be seen, is very informal, but the conveying words are to Mary Burnett " and the lawful heirs of her body." The authorities universally hold that these are the apt words, to create an estate in fee conditional, and we are unable to discover anything in the terms of this deed to take this case out of the well-settled general rule. The subsequent words "or to the trustees for her and her heirs' use and benefit," cannot have this effect, for the word "heirs" as there used must be construed as meaning the same class of heirs - heirs of the body - which had previously been designated. The same remark will apply to the words "lawful heirs" as used in the latter part of the deed. These words are not found in the habendum clause, as suggested in one of the arguments, for there is no such clause in the deed, and must be regarded as used to indicate the same class of persons referred to in the conveying part of the deed.