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 .
Conditions which are impossible of performance or satisfaction, are illegal, or are repugnant to the nature to be on condition subsequent. Hooper v. Cummings, 45 Me. 359.
And it has even been held that a condition might be construed as a condition subsequent, though referred to in the instrument as a condition precedent. Phillips v. Gannon, 246 111. 98. 92 N. E. 616; Winn v. Tabernacle Infirmary, 135 Ga. 380, 32 L. R. A. (N. S.) 512, 69 S. E. 557. And see In re Stickney's Will 85 Md. 79, 60 Am. St. Rep. 308, where a will provided that certain claims should be released "as a condition of the vesting of this legacy," and such release was held to be a condition subsequent.
16. Finlay v. King's Lessee, 3 Pet. (U. S.) 346, 7 L. Ed. 438; In re Tappan's Appeal, 52 Conn. 412; Nowak v. Dombrowski 267 111. 103, 107 N. E. 807; Schrader v. Schrader, 158 Iowa 85, 139 X. W. 160; Hawkins v. Hansen, 92 Kan. 740, 142 Pac. 280; In re Stickney's Will, 85 Md. 79, 35 L. R. A. 693, 36 Atl. 654; 60 Am. St. Rep. 308; Alexander v. Alexander, 156 Mo. 413, 57 S. W. 110; Scott V. Roethlisberger, 178 Mich. 581,
146 N. W. 307. Nicoll v. New York & E. R. Co., 12 N. Y. 125; Underbill v. Saratoga & W. R. Co., 20 Barb. (N. Y.) 455; Lynch v. Melton, 150 N. C. 595, 27 L. R. A. (N. S.) 684, 64 S. E. 497; Bran-non v. Mercer, 138 Tenn. 415, 198 S. W. 253; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268; Warners Adm'r v. Bronson, 81 Vt. 121, 69 A. 655; Burdis v. Burdis. 96 Va. 81, 30 S. E. 462, 70 Am. St. Rep. 825.
17. Theobald, Wills (6th Ed.) 547; Acherley v. Vernon, Willes, 153; Fitzgerald v. Ryan  2 Ir. 637: Burleyson v. Whitley. 97 N. C. 295, 2 S. E. 450; Tilley v. King, 109 N. C. 461, 13 S. E. 936.
18. Brennan v. Brennan, 185 Mass. 560, 102 Am. St. Rep. 363, 71 N. E. 80; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004; Merrill v. Wisconsin Female College, 74 Wis. 415, 43 N. W. 104. In Hawkins v. Hansen, 92 Kan. 740, L. R. A. 1915A 95, 142 Pac. 280, it was held that a condition requiring the devisee to care for the testator and his wife during their lives was a condition subsequent, pre27(5 Real Property. [ Sec. 81 of the estate, are ordinarily void. If it is a condition precedent, the estate never commences, even though, as a matter of fact, the condition is eventually satisfied.19 If it is a condition subsequent, the grantee or devise has an absolute estate free from the condition tended it to have a legal operation. And such is the character of the condition above named, requiring one to make a journey in an impossibly brief space of time. Ordinarily however a condition which is referred to as impossible and as therefore void,23 is one which is not in itself impossible, but is merely impossible or impracticable because of the particular circumstances of the case. It would seem, however, that it is ordinarily more satisfactory to regard the grantee or devisee in such case as relieved from the necessity of performance of the condition, not because performance is impossible, but rather because, on a reasonable construction of the condition, it was not intended to call for performance in the contingency which has arisen. For instance, in the case of a devise subject to a condition that the devisee, after testator's death, live with and care for a certain relative who, as a matter of fact, does not survive testator,24 it is, it is conceived, not the impossibility of living with and caring for a deceased relative which dispenses with the condition, but rather the consideration that the condition cannot have been intended to apply in such a contingency.25 And such a view appears to be particularly applicable when the so called impossibility is no more than impracticability, as for instance when a devise is made on condition that the devisee live with a certain relative, who subsequently becomes insane,26 acts so as to render living with him exceedingly disagreeable,27 or refuses to have the devisee
- (b) Impossible conditions. Examples of impossible conditions, as given in the books, are presented by a limitation to a man on condition that "he goes to Rome in twenty-four hours" (an insufficient time), or that "he marries with Jane S. by such a day," within which time the woman dies, or the feoffor marries her himself."22
A condition which is impossible of performance because opposed to natural law is no doubt invalid. For instance, a condition divesting an estate unless the grantee construct a perpetual motion machine within a time named would be regarded as a nullity, presumably on the theory that the parties could not have insumably on the theory that the testator expected to be survived by his wife.
19. Co. Litt. 206a, 206b, 218a; 2 Blackst. Comm. 156; Boyce v. Boyce, 16 Sim. 476; Taylor v. Mason, 9 Wheat. (U. S.) 325, 348, 6 L. Ed. 101; Carter's Heirs v. Carter's Adm'rs, 39 Ala. 579; Rans-dell v. Boston, 172 111. 439, 43 L. R. A. 526, 50 N. E. 1ll; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255; Conant v. Stone, 176 Mich. 654, 143 N. W. 39; Trumbull v. Gibbons, 22 N. J. L. 117.
The peculiar doctrine, adopted by the English courts from the civil law, by which, in some cases, an illegal or impossible condition precedent to a legacy of personalty is merely ignored, the donee taking as if such condition had not been inserted, appears never to have been applied in connection with devises of realty. The doctrine referred to is subjected to a critical examination by Professor Roscoe Pound in 3 111. Law Rev. 1.
20-21. Co. Litt. 206a, 206b, 218a; 2 Blackst. Comm. 156; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682; Hoss v. Hoss, 140 Ind. 551, 39 N. E. 255; Ricketts v. Louisville, St. L. & T. Ry. Co., 91 Ky. 221, 11 L. R. A. 422, 34 Am. St. Rep. 176, 15 S. W. 182; George v. George, 47 N. H. 27; Burnham v. Burnham, 79 Wis. 557, 48 N. W. 661; Board of Com'rs of Mahoning County v. Young, 8 C. C. A. 27, 59 Fed. 96.
22. Co. Litt. 206a; 2 Blackst. Comm. 156; Roundel v. Currer, 2 Brown Ch. 67.