in fee, but if he should have no child living, then to B. It might not be the fault of A that he had no child living at the end of the term, and yet it has never been questioned that B would take the estate.

358*] not. *This is not a condition which became impossible after the death of the testator, the nonperformance of which will be excused. Those conditions belong to cases where all the means to accomplish the testator's purpose are in his view and in being; but when subsequent events change the existing state of things so essentially as to render the performance impossible; for instance, if a devise be made on condition that the devisee consent to marry a par-at-law of A be permitted to keep the estate on ticular person, and that person dies, the performance is rendered impossible by the happening of an event subsequently, which the testator never contemplated; and where the estate had previously vested, it will become absolute by the death of such person.

Again, suppose a case which is very common. A testator devises an estate to A and his heirs; but if A shall die without issue living at his death, then to B and his heirs; would the heirthe ground that his ancestor had committed no fault, and that therefore the estate became absolute? Such a defense has never been offered. It is contended, in the second place, that the defendant has no title if we regard the devise as a trust.

There is nothing in this case which authorizes the belief that the testator had any personal predilection for the defendant. He mentions him as the son of his brother, James King; but there is nothing peculiar in that, as he likewise refers, and with the same view, to all the other children of James King, and those of his sister Elizabeth. If we confine ourselves to the words

The leading case for the defendant, and which will be doubtless relied upon, is the case of Thomas v. Howell, 4 Mod. Rep. 66. But that case is essentially different from the one before this court. There the testator devised to his daughter Jane an estate called Lawhorn, on condition that she, at or before the age of twenty-one years, "do consent" to marry Theophilus Thomas, who was the testator's neph-employed, all idea of any beneficial interest ew. Then he devised other estates to his two re- *being intended for William King, is [*360 maining daughters, and then follows this pro- excluded. He is to take the estate on condition viso: "And my will is, that in case my daughter that a certain marriage shall take effect; but it Jane shall refuse to consent to marry my neph-is "in trust for the eldest son or issue of the ew Theophilus Thomas, at or before she shall be said marriage." If we regard the union of the of the age of twenty-one years, or in the mean- two families as the great object which the testime shall marry another person, the devise shall tator sought to bring about, then those in be void." He proceeds to devise Lawhorn to his whom should be united the blood of both, must other daughters in succession, on the same con- have been the objects of his peculiar favor. dition, and then adds, "but in case neither of my said daughters marry my said nephew, then the estate given them in Lawhorn shall be void;" and devises the estate over to trustees. Theophilus Thomas died at the age of twelve years; Jane never refused to marry him, and after his death, at the age of seventeen, married another person. She had entered on Lawhorn on the death of her father, and the question was, whether the estate was devested, the contemplated marriage never having taken effect.

The testator probably thought that a person not in being could not take the estate, unless it was through the instrumentality of a trustee. He regarded his nephew merely as a conduit, through whom his bounty should flow to those whom he considered as pre-eminent, because they would inherit the blood of both families.

If the devise is to be considered as a trust, then the question arises whether any trust interest vested on the death of the testator, or whether it was to arise when the marriage took effect. No immediate interest is expressly deThree judges to one were of opinion that un-vised; on the contrary, the words used are, "at der the first proviso to devest the estate, Jane 359*] must have "refused to consent" *to marry Theophilus Thomas; that what followed in the subsequent clause had reference to the same proviso, and ought not to be taken in a larger sense than the proviso itself; and upon this ground decided that the estate of Jane was absolute.

This case, instead of being an authority for the defendant, bears strongly against his pretensions. It shows that the court decided the case on the proviso, which made the refusal of Jane to "consent to marry" Theophilus Thomas the basis on which the devise over should take effect. And then arises an irresistible implication from the opinion of the court, that if the case had rested on the last clause, the estate would have gone to the trustees.

the death of my wife." There is no reason to support an immediate interest by implication, because there was no necessity for it; as the beneficial interest could not vest, until those who were to enjoy it would come into existence. Besides, the statute of uses makes a devise to A to the use of B the same as a devise to B, so that this devise is in point of law to "the eldest son or issue of the marriage." The doctrine is well established that in such a case the legal title descends to the heir-at-law, and remains until the birth of the issue, when it vests in him. In this case, there being no possibility of any such issue, the title in the heirs-at-law is no longer in trust for the purposes of the will, but is absolute in themselves.

But admitting, for argument sake, that the trust vested on the death of the testator, it is urged that whenever the possibility of a marriage between the testator's nephew and a daughter of William and Rachel Trigg became extinct, the trust terminated.

To establish that, in the case now before the court, the defendant acquired a title which can be defeated only by his voluntary default, would overthrow the principle well established in many cases of conditional devises and limitaThe purpose of such a trust is, that the trustee tions. For example: A testator devises to A holds the estate for the sole and exclusive an estate for the term of thirty years, and if at benefit of those who are to be beneficially interthe end of the term he has a child living, to Aested; but if no such person shall be brought

place at the end of forty years more. It could not have happened in less than thirteen years, and might have happened more than sixty years after the death of the testator. Clearly, the testator intended that under those circumstances, the marriage might be subsequent to the vesting of the estate.

into existence, then the testator has not dis- | afterwards, and the marriage might have taken 361*] posed of *the estate; because he has never contemplated such a state of facts. No person ever doubted that if the testator had given the estate to the eldest son of William King, when he should be born, and William King should never have a son, that the estate would go to the heirs-at-law of the testator. Whatever manifestations might appear to show that the testator did not intend to die intestate, such manifestations never have any other effect than to aid a court where the donation of an estate is in question, or when it is doubtful what property a general description includes. But to give to a naked trustee the absolute title to an estate, merely because the person for whom the beneficial interest was intended has not been born, and because the testator did not intend to die intestate, is not supported by reason or authority; on the contrary, it is considered that the title of the heir-at-law will always be supported, unless the devisee can show a clear intention against him.

The doctrine of resulting trusts is peculiarly applicable to this part of the case. It is wellsettled that wherever the purposes of a trust have been satisfied, or cannot be executed, that the estate reverts to the heir-at-law. 3 P. Will iams, 20, 252; 1 Saunders on Uses and Trusts, 164; 1 Brown's Ch. Cases. 508, 60; note; 4 Brown's Ch. Cases, 409.

Mr. Smyth and Mr. Webster, for the defendant in error.

Unless the intent of the testator required that the devisee should, before the death of Mrs. King, marry a female who was unborn at the time he made his will, and at the time of his death, this cannot be a condition precedent. Why should it have made any difference to the testator whether the marriage happened before or after the death of Mrs. King?

A condition is precedent or subsequent, as the act is to be done before or after the estate vests. This act, the marriage, was not necessarily to be done before the whole estate should vest in possession. A condition which might be complied with sixty years after the time prescribed for vesting the whole estate in possession, must be a subsequent condition. If the act may as well be done after as before the vesting of the estate, the condition is subsequent. All conditions in wills are either precedent or subsequent. A condition which may be performed either before or after, is not a precedent conditioned, and, therefore, is a condition subsequent.

*The testator says: "I then leave all [*363 my real estate, at the death of my wife, to In this case three questions are presented for William King, son of brother James King, consideration:

on condition of his marrying," etc. The whole 1. Whether the condition on which the real-estate must vest in possession at the death estate is given to William King, is precedent or subsequent.

2. Supposing it to be subsequent, when does the estate vest in possession in William King? 3. What is the nature of the estate when vested?

We admit that if a condition precedent becomes impossible, the estate will never arise; and equity will not relieve. But we contend that if a condition subsequent becomes impossible, the estate will not be defeated, or forfeited. 2 Bl. Com. 156, 157; 7 Co. Litt. 206, a, b; 2 Vern. 339; Powell on Contracts, 266; 2 Atk. 18; 2 P. Williams, 626, 627; Powell on Devises, 262.

362*] *The same words make a condition precedent or subsequent, according to the intent of the person who creates it. Willes, 156; 2 Bos. & Pull. 295; 1 Durnf. and East. 645; 2 Caines, 352; Powell on Devises, 183; Cases T.

of Mrs. King. But William King, who was three years old when the will was made, had his whole life to perform the condition. Α marriage after the death of Mrs. King would be a fulfilment of the condition, as well as a marriage before her death. Therefore, it is a condition subsequent; and being impossible, the estate will not be defeated or forfeited. 2 Atk. 18; Cases T. T. 164, 166; 2 P. Wms. 626; Pow. Dev. 257, 258; 1 Salk. 170; 4 Mod. 68; Rice v. Aislabie, 3 Madd. 256, 260.

There are some cases reported which, at first view, may seem adverse to us; but which, on examination, will be found to differ essentially from our case. In the case of Bertie v. Falkland,' the condition was adjudged to be precedent. There was a devise to trustees for three years and if there was a marriage in three years the estate was to vest. There the marriage was obviously a condition precedent; for it was to take effect in three years, and the esWhether the condition is precedent or sub- tate, being in trustees, was not to vest until sequent, depends on the order of time in which the termination of the three years. So where the intent of the testator requires the perform- there was a settlement in trust, that if A marance. Willes, 157; 2 Bos. & Pull. 297. Jus-ries B after the age of sixteen, and they have tice Heath said: "The question always is, whether the thing is to happen before or after the estate is to vest. If before, the condition is precedent; if after, it is subsequent."

T. 166.

In the case before the court, the intention of the testator is clear that William King should have the whole estate on the death of Mrs. King. Mrs. King might have died within a year after the death of the testator; yet the daughter of William Trigg and Rachel, his wife, whom William King was required to marry, might have been born twenty years

issue male, the estate shall be to A and B for themselves; the condition is precedent; for the estate is expressly given to trustees, until the marriage and the birth of issue. 2 Vern. 333; Com. Dig. Condition, B. 1, pl. 10.

2. When does the estate vest in possession of William King, the lessor of the defendant in error?

1. A note in a late edition of Freeman's Reports, p. 36, says this decision was reversed in the House of Lords.

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The testator intended to dispose of the whole 365*] of his real estate. He speaks of "the disposition of the real estate," and uses the expressions, "my worldly estate," "all my estate," "my whole estate," "all my real estate." Did the testator intend to die intestate as to his one hundred plantations and thirty or forty The intention of the testator is the polar lots, during the life of Mrs. King? He did star in construing wills. 4 Mod. 68; 1 Wash. not intend to die intestate as to any part of 102, 1 Munf. 537, 547; 2 S. C. Rep. 32. The his estate. He makes his will, leaving and be-court will execute the intention of the testator, queathing my worldly estate, in the manner following." If after the use of such words, a part of the testator's property was clearly omitted, it is admitted that such part would not pass by the will; but if property is given by the will, these words will signify that all the testator's interest therein is given. Ca. T. T. 157, 160, 161; 3 P. Wms. 295, 297, 298; 1

Either the heir or the devisee must take; for the testator cannot put the freehold in abey-King. ance. 1 Doug. 231.

If the condition of marriage is subsequent, which we deem proven, there is no reason for postponing the commencement of the estate of William King, the devisee, in possession of the real estate not devised for the life of Mrs. King. If the estate is given on a condition | subsequent, why may not the estate, except what is devised to Mrs. King and others, vest in possession immediately on the testator's death? To what end suspend it, when it is not to wait for the performance of the condition? These words, "at the death of my wife," were inserted in consideration of the dev.se of the use of the salt-works during her life, the devise of dower, and the devise of certain portions of the real estate, during her life. These words have their effect; because a large part of the estate, far the most valuable, cannot, consistently with other clauses in the will, come to the possession of the devisee, William King, until Mrs. King's death.

Suppose that a testator had made his will 368*] thus: to A, my *father, who is seventy years old, during his life, one three-hundredth part of my real estate; to B, my wife, who is twenty years old, during her life, one-half of my real estate, including the part devised to my father, after his death; to C, my nephew, the whole of my real estate at the death of my If the condition is subsequent, the devisee wife; the testator dies, the father, who is heir, has his lifetime to perform it, before he forsurviving. Would a court give to A, the fath-feits; even where performance is impossible. er, and his heirs, half the real estate during And if it become impossible, without his dethe life of B, the widow, when the testator fault, or never becomes possible, we contend clearly intended and expressed that A should i that he will never forfeit. Had Mrs. King and

We contend that William King, the devisee, takes beneficially, and keeps the profits. The devise is unquestionably a beneficial one; for, in one event, that of marriage and having no issue, the estate is not devised over, and the 371*] profits *would belong to the devisee. Why should the profits be taken from the devisee? There are none who seem better entitled under the will. This is the only devise made by the testator to his favorite nephew, the eldest son of his only brother of the full blood, Where lands are devised to be sold for payand the heir of his name. The testator was ment of debts and legacies, or in trust for the obviously attached to the principle of primo- payment of debts and legacies, and the devisee