This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
A condition prcedent is so absolutely dissimilar in its operation from a condition subsequent, that the two are not readily susceptible of treatment together. We will for the most part confine the discussion of conditions in this chapter to conditions subsequent, with only incidental reference to conditions precedent; and the rights and liabilities arising from the creation of estates on condition precedent will be more fully considered in the chapter entitled "Rights and Possibilities of Future Possession." It will there be seen that at common law the limitation of a freehold estate subject to a condition precedent was. ordinarily nugatory, if not by way of contingent remainder, and that it is for the most part by reason of statutory provisions only that such limitations are recognized at the present day as valid and effective.58
57. The ability, by force of a condition subsequent to divest another's estate, bears a close analogy to a general power of disposition. Post Sec.Sec. 310-334. Indeed, it is a power, using the latter term in a broad sense. See 23 Yale Law Journ. at p. 49, article by Professor Hohfield. The justification for the discussion of conditions subsequent under the head of "The quantum of estates" is found in the fact that such a condition, so far as it has any effect in the particular case, operates to reduce the quantum, the duration of the estate to which it is attached.
A condition precedent operates, or may operate, by reason of compliance therewith, to cause an estate to come into existence or, as it may otherwise be regarded, it operates to defer the commencement of an estate until compliance therewith. In one case, however, the estate does not commence immediately upon compliance with the condition, that is, when a testator imposes a condition which may be satisfied, and is satisfied, at an interval before the testator's death. For instance, if a devise is made subject to a condition precedent that the devisee marry a particular person, the estate does not commence immediately upon his marriage to such person, if this takes place before the testator's death.
In the case of an estate on condition precedent, so called, there is actually no estate so long as the condition precedent exists as such, but merely the prospect or possibility of an estate. Ordinarily, so soon as the condition precedent, having been satisfied by the occurrence of the named event or the doing of the specified act, disappears and not before, the estate commences, it thereafter differing in no way from an estate of the same quantum which was immediately created.59
Though a condition precedent is entirely dissimilar in its operation from a condition subsequent, there is a certain possibility of confusion between them, not only by reason of the similarity of language which may serve to create them,60 but also by reason of the fact that the commencement of an estate through the satisfaction of a condition precedent usually results in the termination of another estate, as might have been the result had the condition been subsequent. For in58. Post Sec. 156.
59. Rollins v. Riley, 44 N. H. 9; Long v. Swindell, 77 N. C.
60. Post Sec. 80.
Stance, in the case of a conveyance to A and his heirs but if B marries then to B and his heirs, the marriage of B is a condition precedent to B's acquisition of an estate, but so soon as he does acquire it by reason of his marriage, A's estate immediately terminates. The provision as to A's marriage is nevertheless a condition precedent to B's estate, properly speaking, rather than a condition subsequent to A's estate.61 If it were a condition subsequent, the grantor or his heir could alone take advantage of the provision,62 it would be optional with him whether to do so,63 and in order to do so a re-entry or equivalent action on his part would be necessary,64 while in the case suggested the marriage of B immediately vests an estate in him, and not in the grantor or his heir, and this occurs regardless of any action or indication of desire on his part, or on the part of any other person.
A condition precedent may involve the doing or not doing of an act of a purely voluntary character on the part of the beneficiary of the conveyance or devise, or on the part of another person, or it may involve the occurrence of an event which is absolutely involuntary, or it may involve an event which is partially, but not wholly, in the control of a person named. For instance, an estate may be limited in one's favor to commence upon his marriage, upon the marriage of another person before an age named, upon the death of one person before another, or upon the death of a per-son without leaving children.65