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 .
23. As in Union Pac. Ry. Co. v. Cook, 39 C. C. A. 86, 98 Fed. 281; Parker v. Parker, 123 Mass. 584; Alexander v. Alexander, 156 Mo. 413, 57 S. W. 110; Harris v. Wright, 118 N. C. 422, 24 S. E. 751; In re Culin's Appeal, 20 Pa. 243; Burnham v. Burnham, 79 Wis. 557, 48 N. W. 661.
24. Morse v. Hayden, 82 Me. 227, 19 Atl 443; Parker v. Parker,
123 Mass. 584; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep-. 825. 30 S. E. 462.
25. See Pollock, Contracts (Williston's Ed.) 534.
26. Lynch v. Melton, 150 N. C. 595, 27 L. R. A. (N. S.) 684, 64 S. E. 497.
27. Harrison v. Harrison, 105 Ga. 517. 70 Am. St. Rep. 60, 31 S. E. 455. . Compare Shuman v. live with him.28 That the impossibility of performance of a condition does not necessarily nullify the condition is clearly apparent from the consideration that one is not relieved from a condition requiring him to pay money, by the fact that, not having the money, it is impossible for him to pay it.
A condition which is legally impossible of performance without violation of law may ordinarily be regarded as invalid by reason of illegality rather than of impossibility.
That a condition precedent is or becomes impossible is, it may be observed, entirely immaterial.29 In such a case the estate never commences,30 but neither does it commence until the condition is satisfied, even when the condition is possible.31 If the condition is never satisfied, it is immaterial that this is because satisfaction is impossible, or even that it has been rendered impossible by the act of the grantor or other person who will profit by noncompliance with the conditions.32 The courts will, however, occasionally reHeldman, 63 S. C. 474, 41 S. B. 510.
28. Jones v. Bramblet, 2 111. 276; Bryant's Adm'r v. Dungan, 92 Ky. 627, 36 Am. St. Rep. 618, 18 S. W. 636; Livingston v. Gordon, 84 N. Y. 136; Compare Johnson v. Warren, 74 Mich. 491, 42 N. W. 74.
29. That is, in the case of a devise of realty as distinguished from a legacy of personalty. See ante this section, note 19.
30. Boyce v. Boyce, 16 Sim. 476; Stockton v. Weber, 98 Cal. 433, 33 Pac. 332; Hoss v. How, 140 Ind. 551, 39 N. E. 255; Parker v. Parker, 123 Mass. 584; Conant v. Stone, 176 Mich. 654, 143 N. W. 39; In re Gunning's Estate, 234 Pa. 139, 49 L. R.A. (N, S.)
C37, 83 Atl. 60; Burdis v. Burdis, 96 Va. 81, 70 Am. St. Rep. 825, 30 S. E. 462.
31. Davis v. Angel, 4 D. F. & J. 524; Stockton v. Weber, 98 Cal. 433, 33 Pac. 332; Wilcoxon v. Harrison, 32 Ga. 480; Goff v. Pensen-hafer, 190 111. 200, 60 N. E. 110; Johnson v. Warren, 74 Mich. 491, 42 N. W. 74; In re Gunning's Estate, 234 Pa. 139, 49 L. R. A. (N. S.) C37, 89 Atl. 60.
32. Co. Litt. 218a; 2 Blackst. Comm. 156, 157.
The fact that one devising land subject to a condition precedent, to be performed during his life, fails to inform the devisee, and so in effect prevents the devisee from performing, does not excuse the failure to perform; Brennan gard the condition precedent as not intended to apply in the latter case, that is. they may construe what is in terms a gift of an estate subject to a condition precedent, a mere possibility of an estate, as in effect involving an alternative gift of an actual estate, in case the person who would otherwise benefit by the nonperformance of the condition prevents its performance.33 In connection with impossible conditions reference may be conveniently made to conditions which are so vaguely expressed that it is impossible definitely to ascertain the contingency on which the estate is to com mence or terminate. Such a condition is inoperative for any purpose,33a to the same extent as is an illegal condition.
- (c) Illegal conditions. A condition may be illegal as calling for an act which is unlawful, or is discouraged by the policy of the law, or as restraining the doing of an act which the law commands or favors from considerations of public policy. The same rules apply in determining the legality of conditions as of contracts, and consideration will here be confined to classes of illegality which are peculiarly apt to arise in connection with conditions.33b The illegality may exist at the time of the creation of the condition, or the condition may 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.
33. See Borst v. Simpson, 90 Ala. 373, 7 So. 814; Jacobs v. Ditz, 260 111. 98, 102 N. E. 1077; Harris v. Wright, 118 N. C. 422, 24 S. E. 751; Jones v. Chespeake & O. R. Co., 14 W. Va. 514, 523.
33a. Sheppard's Touchstone, 128; Leake, Prop. in Land, 237; Wyndham v. Carew, 2 Q. B. 317. Jeffreys v. Jeffreys, 84 L. T. Rep.
N. S. 417; Jones v. Jones, 223 Mo. 424, 25 L. R. A. (N. S.) 424, 123 S. W. 29; Watts v. Griffin. 137 N. C. 572, 50 S. E. 218; Brothers v. McCurdy, 36 Pa. St. 407, 78 Am. Dec. 388; In re Budd's Estate. 166 Cal. 286, 135 Pac. 1131; George v. George, 47 N. H. 27. See Pollock, Contracts (Williston's Ed.) 48.
33b. See, in this connection, a suggestive article by Professor Austin Wakeman Scott, on "Control of Property by the Dead," in 65 Penn. Law Rev. 527, 632.
Subsequently become illegal by reason of a change in the law.34
A condition which calls for the commission of a crime, as for instance in the case of a gift of an estate to a man to commence so soon as he kills another or to be subject to forfeiture in case he fails to do so, is obviously invalid.35
A condition the effect of which is to make it to the interest of a husband to separate from his wife, or of a wife to separate from her husband, has been regarded as invalid.36
A condition the effect of which is to give to one, in case of his or her divorce, property which he or she otherwise would not have, is, by the weight of authority, not invalid, and especially is this the case when such provision is the result merely of a desire to provide for a female relative, in case of her divorce, the support which she otherwise would have from her husband.37 As has been judicially remarked, divorces are provided for, sanctioned and regulated by law, and there is no more likelihood or presumption that a divorce will be wrongfully brought about by one of the parties to a marriage in order to secure property, than that a devisee whose right is dependent on the death of another will seek to encompass such death.38