Section 3.—Conditional Legacies.
By the bestowal of legacies a rare opportunity is offered to testators either to gratify some peculiar desire, or to restrain or control some one who is the beneficiary. It is on the legal principle of quid pro quo, a consideration for a consideration. Accordingly, we find that testators, in bestowing their bounty by way of legacies, avail themselves of the opportunity to effect various objects—some to regulate and restrain a wayward, errant child, some to curb the eager readiness of a widow to find a new partner, some to check a child rashly rushing into wedlock, and some to gratify a whim or a prejudice.
The law allows conditions to be annexed to a legacy, provided they are not against public policy or good morals.
A conditional legacy is defined to be a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.[135] No precise form of words is necessary to create conditions in wills; wherever it clearly appears that it was the testator’s intent to make a condition, that intent shall be carried into effect.
Conditions are subject to the well-known division, into conditions precedent and conditions subsequent. When a condition is of the former sort, the legatee has no vested interest till the condition is performed; when it is of the latter, the interest of the legatee vests, in the first instance, subject to be divested by the non-performance or breach of the condition.
Whether a condition be precedent or subsequent, that is, whether it must be performed before the legatee can be entitled to an absolute interest in the bequest, or not till after, of course depends upon the words and intention of the testator. But a testator, in making a bequest, may use words of condition, which, however, shall not be construed as such, if it clearly appear that they do not involve the motive and reason of the bequest.[136] Any consideration exacted from the beneficiary, or any duty imposed on him, unless it is spread over a very unusual period of time, is a condition precedent. A condition that the beneficiary shall cease to resort to public houses is a condition precedent, and is not void for uncertainty.[137]
In the case of Tattersall v. Howell,[138] a legacy was given, provided the legatee changed his course of life, and gave up all low company, and frequenting public houses. And Sir William Grant held that this was a condition such as the court could carry into effect, and directed an inquiry whether the legatee had discontinued to frequent public houses, keeping low company, etc.
Had this been a devise of land, it would have been a void condition, as will appear in the next chapter.[139]
In Dunstan v. Dunstan, the executors were required by the will to pay to the legatee annually $200, and also one-fifth of the testator’s estate, in case the legatee should refrain from vicious habits, and conduct himself with sobriety and good morals. About two years after the testator’s death, the legatee filed his bill against the executors, insisting that he had reformed, and claiming the payment of his share of the estate. The defendants had refused to pay over to the claimant his one-fifth of the estate, not being satisfied of his complete reformation. The provision of the will was supported, and as the complete reformation of the legatee was not distinctly proved, and a sufficient time had not elapsed between the death of the testator and the filing of the bill to enable the executors to form a sound opinion as to the permanency of the legatee’s good conduct, it was held that the executors were right in refusing to place the whole property in his hands at that time, and it was referred to a Master to ascertain and report whether there had been such a permanent reformation in his character and habits as to entitle him to receive the whole amount bequeathed to him at that time.