dissenting.
•The defendant here was plaintiff in ejectment in the cdurt below, in a suit to recover certain lands, part of the estate of William King the elder.
The cause comes up on. a case stated according to the *384practice of Virginia, and upon which judgment was rendered. forthe plaintiff.
. The right to recover depends upon the will of William King the elder, and the. events that have occurred to defeát -or give effect to the provisions, of that wifi.
The operative words of- the will -are these, . “ In case of my having no children, I then leave and bequeath all njy real estate, at the death of my wife, to William King, son of brother James King,:on condition qf-his. marrying a daughter of' William "Trigg and my niece Rachel his w,ife, in. trust for the eldest son or issue of such marriage; and in case sUch marriage.should not take place, I leave and bequeath said estate to any child, giving preferencé to age, of said William and Rachel' Trigg, that will marry a child of my brother James or of my sister Elizabeth-, wife to.JohnMitehell.’’ .
The testator, died without issue, and none oí the devisees intended to be provided for came within the. description of heir at law.
As Mrs Trigg died-without having had issue-female, the marriage conteuiplated for William the defendant never became, possible; neither has any one of the marriages 'con-' tern plated, in the'alternative taken place between the issue of the Triggs and the issue of testator’s brother or sister; but from the case stated it appears that, although reinóte and improbable, the event of one of the contemplated marriages is not impossible.
These however appear to be immaterial facts in the present base ; since it has not been contended in argument that the limitation over depending upon the failure of William’s marriage with a daughter of the Triggs, is limited by the will to take effect within the term prescribed by-the law of executory devises. . Unless it could be confined to the life of Mrs King on the failure of William’s marriage, it is obvious« that the object of that devise over might.not come in esse until after every life in being had terminated, and ifiightnot marry for more than twenty-one years afterwards,
Wiihoutcommitting myself however on this point, I-shall, pass it over; considering it only as assumed for the purpbse *385of the present argument. After the most diligent attention to the questions in this cause, I cannot help coming to the conclusion, that its difficulties are rather artificial, or factitious ; and that the true legal view of.it is that which is most simple and most consistent with the truth of the case, to wit; that as to the mass of'his estate comprised iñ .thiselause, the testator’s views had been wholly baffled by events; that the devise in favour of the offspring of certain marriages in his own family having altogether failed, the law must dispose of his .property, he having made no ulterior disposition of it and this- at lást will probably come the nearest to a correct view of the testator’s intentions; for we are at liberty to conclude,-in the absence of such ulterior disposition, that unless the estate should vest in the manner in which he had proposed to vest it, he was indifferent as to what became, of it, or could do no better than leave it to the law. If he had felt that strong, predilection for his supposed favourite nephew, the present defendant, which was so much insisted upon in argument,, it may be presumed that the interests of that nephew would not have been forgotten.
Much use has been made of this assumed predilection, in order to establish an inference of intention in William’s favour.
To.my mind the will seems calculated to induce a.contrary conclusion; for there is not a provision in the will made in his favour, individually; He takes, if at all, in trust for his own issue, and eve,n that issue is only conditionally an object of favour ; unless mingled with the blood of the Triggs, it is rejected, and-the blood .of the Triggs is followed up into other connexions., to William’s entire exclusion. Nor is the offspring of his brother and sister admitted to . higher favour, unless they be .connected with the offspring of the Triggs.
I think it clear, then, that the primary objects of testator’s bounty were the children of the Triggs, or their offspring; and not William or his offspring.
At the close of the argument at the last term, I intimated to counsel my impression' that the cause had not been argued on its true grounds. I considered it a case of conditional *386limitation; whereas it was argued exclusively with reference to the law of conditions ': the one party maintaining that the marriage of William was a condition precedent, and.therefore, as it never took place, nothing ever vested in.him; the other, that the marriage was a condition subsequent, and having become, without default in him, impossible, he took the estate discharged of. the condition; but both conceding that the cause must be disposed of on: the lavy of conditions.
. It is.clearly a case of conditional limitation; but'if it.is to be decided on the 1'aW of conditions, instead of the law of contingencies, I think there is abundant-reason for maintaining that it is a case of condition, precedent,, not subsequent. Were this a common law. conveyance, I should think differently, for reasons well, known to the profession; but in a will there is not one case in a thousand in which it would ever» enter the mind of a testator, when he gives upon condition generally, that any. interest vests until performance. I feel no hesitation in laying it down as the ordinary import of words of condition in a will, that they impose a'condition precedent, unless accompanying words or the general purpose for imposing the condition suggest, the contrary. In the' present instance,, there cannot be a reason consigned, why ány interest should-vest in William, prior to that marriage which was to give birth to the issue that was the solé object of the testator’s bounty. It was not' William for whom any beneficial interest was intended, but,the issue of a particular marriage, in which the will distinctly shows’ that the blood of the Triggs was-the favoured object. We must, force the words of the testator from their simple and natural meaning, before William can in .any event become more than a mere trustee in interest. And why create him trustee? At his tender age too, for an event so remote and uncertain; for persons whose coming in esse depended upon so many contingencies^ must néceSsarily be so long deferred.; arid whose interests would by operation of law be committed into hapds so much more competent.' Why make him a trustee, who would need himself a guardian?
It has been urged, that the testator has declared he did not mean to.die intestate, as to arty part of his property; *387and that marriage being a valuable consideration, William must be considered a purchaser.
As to the first of these arguments, ibis clear that the testator never lost Sight of his avowed intention, and actually did^dispose of all his property, though not of all his estate in-it; and vyitH so many alternatives and precautions, as might well have satisfied an ignorant man, if not any man,, that he could not die intestate as to any part, of it. And as to William’s being a purchaser, although it might well be denied before the event of his marriage, yet if it be admitted, the consideration in view was not his own advancement, but. that of his issue. That was to him a legal and adequate consideration, either for marrying or waiting for the mar-, riage. A purchase made for a child, is a case excepted. from that class of resulting trusts which arise when one in7 dividual pays the consideration, and another takes the title. The natural feelings imputed to the parent. aré held sufficient to take the case out of the general rule. 2 Mad. Ch. 116, et passim.
If this will is to be adjudged to vest a present interest in William, subject to be defeated by breach of the condition, or rather waiting to be rendered absolute by the performance of the condition; in other words, if it is to be construed to create a condition subsequent, it must be for the purpose of carrying into effect this will, or some purpose of the testator expressed in it. But if it can be shown that it would Be nugatory as to. William, and unnecessary as to all other interests, the argument fails.
I can conceive of no interests that .can be involved in this question, unless it be, 1. The interests of the devisees over; 2. Those of the heir at law; or, 3. Those of William himself.
Now, as to the first, it would be contrary to the most express terms of the will, to give William a continuing interest, or any present interest. On a question, of intention, it is immaterial whether the devise over be too remote or not too remote. The argument is the same, and as to them, the devise creates a legal interest: they are not to take under the trust to William; but in the event of his marriage failing, the devise *388over is of a legal interest, so that the trust is expressly restricted to the object of its creation,. which object arises only upon the marriage of William. The words are, “ and in case such marriage should not take effect, I leave and bequeath such estate to .any child,” &c. So that upon the failure, of the marriage, the trust was intended to be, as to the devise over, as though it never had been mentioned.
This is expressly limiting William’s interest to the purposes of its creation, and rendering it idle ánd useless, except in the event of the marriage.
And why should the heir at law ask to invest William with an existing interest ? He has no need of a legal estate in WHUam to maintain hiS right. His claim, as of an undisposed residue, is better than of. a resulting trust under the devise to William.
Or why should the'court adjudge this a condition subsequent in behalf even of William himself? The law is clear, that he can take no beneficial interest Under this will; his case is one of the strongest possible against the arising of any im-. plication in favour of a devisee. In the case of Wheeler vs. Sherval, Mosely, 301', case 165, in which the.executors claimed a beneficial interest in the residue of property given them in trust, the court decláres it to be the strongest case possible against them, that-they take expressly in trust.
And in the case of Milnes vs. Slater, 8 Ves. 308, where a similar claim was preferred, it was held to be conclusive against it, that one of their number was created trustee. The heir is. not to be precluded or postponed, except .upon express words, or strong, if not unavoidable implication. Here the implications are all against him who would preclude the heir, at law.
If then the purpose and the words of the will point to the marriage of William, for the initiation of the testator’s bounty, and no interest or object whatever will be subserved by vesting in William a present interest; it follows that the mar-; riage, which is the condition, should be held a condition precedent.
Nor can I feel' the. force of that argument, in favour of, a present or beneficial devise to William, which, is deduced *389from thecircumstance, that no provision is made by the Will for the application of. the income during the interval' that must ensue between the 'marriage, of William and birth'of issue.; art interval; which, by possibility, might last many years.'
If.this were an applicatiop for, a maintenance out of that income,such an implication might have weight; but it certainly goes, no farther:..-and even to that point the inference is not'unavoidable, since .it is perfectly Consistent with the. character and duties of a trustee, to receive and invest, the rents and. profits of the. trust estate in expectancy of the event, which is to appropriate them: And where no specific instructions* are given him, a prudent man will claim and receive the directions and protection of a court of equity, in. applying-such income; it is every, day’s practice.
.. If then-neither does the will give nor the law imply any beneficial, interest to William, there can be no reason for vesting any. thing in him before the marriage.
Believing as í do, that if the case must be disposed of upon the question whether the condition,, if a case of condition, be precedent or subsequent; it ought to be adjudged a condition precedent; I should here conclude. But as the case lias .been laid over, and-there is. no knowing on what point it may go off, I must proceed to examine it in other points of view.
I Will then next examine the rights of William upon the hypothesis that it is a condition .subsequent.
If a condition subsequent, he cah.only, in the most favourable view of his interests, be placed in the same relations and acquire the same rights by its becoming impossible', that Would have resulted from the performance of the condition.
Suppose then the condition performed, í d what would have been the character and extent of his rights ? On what principle could he be discharged from the trust on which every thing is given, to him that the will gives? Would be .have held to his own use or to that of his. issue ? He would not have acquired an estate. tail under the rule in *390.Shelly’s cáse, because he was a mere trustee; his- legal' eS^ tate could not unite with the use to his issue So as to make one estate. And if he would hat^e held in trust for his issue by that marriage; what would have been the consequence of his dying without issue ?• The question is easily answered.
The reversion of the use in the event supposed, never passed from the testator. The disposition of the law was this; upon the death of testator, the whole descended upon the heir, to await the event of William’s marriage.. Upon his marriage, he would have became entitled to take and hold in trust for the issue of that marriage. But whát is the rule of law when a trust is created for an object that never comes into existence, or á purpose that fails? It cannot be,questioned that the trustee then holds to the use of the heir at, law. I will not say it is absurd, but it does appear to me irreconcilable with any principles that I ám acquainted with, that a trust should be converted into a beneficial interest by the occurrence of an event which makes the trust idle and without an object; and it is not easily reconcilable with reason or with the views of the testator, that an interest which the heir at law would unquestionably have retained eveh after the' marriage, should be divested by the impossibility that the marriage should ever take place.
There is not wanting legal authority for maintaining, on the contrary, that had the marriage taken place, and the wife died without issue, so as to render it impossible that the objeet of the trust should ever come in esse, the estate would immediately have returned to the heir at law. I -allude to the case of Mansfield vs. Dugard, 1 Eq. Ca. Abr. 195, 1 Fearne, 372, in which the devise was to the wife until the son attained his age of twenty-one years. The son died at thirteen, and it was ruled that the wife’s estate determined on the son’s decease.
But it is with reluctance I bestow timé upon examining these questions, so thoroughly am I satisfied that'this case does not tiirn on the doctrine of conditions. ' It is a cáse of conditional limitation, and therefore to be disposed of upon very different principles; Cases of conditional limitation *391partake of the nature of conditions; but they afe cases of contingency, and to be adjudged upon the principles applicable to contingent estates. Their distinguishing characteristics are, that they contain a condition either to divest an estate vested, or to prevent the vesting of an estate contemplated, and to carry over the interest to another party, Or to some other purpose, not tp the - heir. Whereas it is indispensable to the legal idea of a condition that it should enure, to the. benefit of the heir, that he should enter, and that the effect of entry should be the restoration of the original estate,-not the creation of a new estate. A conditional limitation is comprised among executory devises, and therefore can be created by will alone; but estates on condition may be created by deed or will. As to the estate to be created or -carried over, as well as in those instances in which it anticipates or. prevents an estate from vesting, it is obvious that conditional limitations must be assimilated to conditions precedent. But as the contingency may also operate to divest an estate taken presently, it is equally obvious that it then approximates to a condition subsequent in. One of its effects. In either case, however, it is regarded as a contingency, and the law of conditions is not applied to it, to any purpose that would'defeat the estate of the second taker. It. is, on the contrary, so moulded and applied as may. give effect to the devise over.
The question, whether this is a case of condition, or of conditional limitation, is easily decided by subjecting it tp a very simple and obvious test.
Let us assume for argument; that the devisé over on failure of William’s marriage is not too remote, that he took under a condition subsequent, and committed a clear breach of the , condition. In that event, if this,, is a case subject to the law of conditions, the heir alone could enter, arid his entry would restore the original estate, not carry over an estate to another; for it is a canon of the law of conditions, that although entry for condition broken may defeat one estate, it cannot create a new one, or carry over another estate; it may restore the estate of him who imposed the condition, but does no more.
*392What then would become of the devise over ? of the will ? and of testator’s intention ? They Would be defeated• and hence words 9f condition in such cases are construed words of limitation, and the condition, converted into a contingency, upon the happening or failure of which the,estate.devised in the alternative goes over and vests without entry. There is no other mode of carrying into effect the intention of the testator, but by giving to. his language a meaning that-will Comport with that, intention. The only difficulty in this cause, and that which probably pre-occupied. the attention of counsel with the law of conditions, has resulted from mere casualty. By a Series of Unanticipated events, the heir at law is at this time actually thrown into the. same relation, with regard to the defendant here, in which he would have Stoqd, had the case been one purely of condition. That is, if,the devise over.be put out of the will, as-too remote in its creation, then, in effect, the entry of the heir, if. he has a right to enter, would enure to his own benefit.
But this can make no change in the law of the case* Whatever was the legal character pf the right of the parties, it was the effect of the testator’s intention as deduced from the will. . His intention remains the same, although the arbitrary rules'of law-may prevent that intention from being carried into effect. The rule pf law which converts words of condition, into words of limitation in certain cases,, proceeds.upon- intention, and cannot be affected by the occurrence of incidents which defeat the execution of that intention. The present is one of the most frequent and familiar occurrence in the books, of those instances in which that rulé of construction prevails. Neither the first taker, nor the devisee ever was heir at law; and in that case lord Hale has said, (Fry’s case in Ventris) “ that it is a rule which has received as many resolutions as ever point did, that although the word condition is used, limiting the estate over to a stranger makes it .a limitation.”
For these reasons I am clearly of opinion, that the rule of law applicable to conditions subsequent, when become impossible, is not to govern this case. That it must be disposed of on the law of conditional limitations and William’s *393marriage, is to be regarded as a contingency, not a condition.
I have already given my-reasons for holding this tó be a condition precedent, .Or rather a contingency which is. to vest, not to divest an interest; and this is always a question of intention to be deduced from the views of the testator in' imposing conditions. If a condition precedent, then it is one of those instances in which the first estate is anticipated, and never vests; the case becomes a very pláin and simple offe, and the will must operate as if it read thus, “ if W- K. shall marry, a daüghter of tire Triggs, then I give the. residue to him in trust, &.C.; if such marriage shall not take place, then I give it over;’’ • And thus construed, there caft be little doubt that the Will comes nearest to tire good sense of the case and the VieWsof the testator. Nor can there‘be any. ambiguity in the law of the case, if. so construed. William Would take nothing, because he never married; and the der vise over being too remote, there is no first taker to carry, the estate. It is then an undisposed.residue, and to be distributed according tó the lex loci. Under this view of the case, the judgment must certainly be against William King.
But if he took a present interest, defeasible upon the condition or contingency of refusing to marry a daugh'terof the Triggs; then the inquiry is, what effect has it upon the state of right in a case Of conditional limitation, that without his fault such condition or contingency becomes impossible *? On this point, which is very much of an authority question, it must be acknowledged there is a great dearth of adjudged . cases, as well as. of learning in elementary writers.
If it may bé decided with analogy to trusts, the objects of which have failed or never come in esse.; then they are considered as determined in favour of the heir at law, as in the bishop of Durham’s case. If it may be determined by analogy to the case of estates to endure until the happening of an. event that has become impossible;, then I have showed that it determined presently in favour of the devise over; the court declaring in thé case of Mansfield vs. Djigard, that he may wait for ever if his right is to be suspended on an impossible event.
*394And if in the absence of any other established rule we may be guided by the polestqr of devises, the,testator’s indention, certainly nothing could comport less with his views, than to permit an event which he looked forward to as the certain-cause of divesting William of even his fiduciary interest, to have the effect of vesting in him an absolute beneficial interest, or any other interest which could stand in the way of the claim of his own legal representatives.
If we submit the question to the plainest test of reason as applied to the law of limitation and contingencies; then it seems incontrovertible, that when a limitation oyer is made to depend upon the failure of-a certain event, the limitation ought to take effect whenever it is ascertained that the event must fail, as when it has become impossible; and equally so, that when a previous interest, although passing presently into possession, awaits its confirmation from the happening of a certain event, that there is no reason for continuing that estate, when it is definitively established that the event on which it depends for confirmation can.never happen. These were the principles recognized in the case of Mansfield vs. Dugard, and I think the reasonable result of all the doctrine of conditional limitations considered under the three heads into which the cases are usually distributed. There was a case cited in argument to sustain the judgment below, on which so much-reliance xyas .placed that I shall, not pass it over, unnoticed. It. is the case of Thomas vs. Howel, reported in Salkeld and Modern, (1 Salk. 170. 4 Mod. 66.) and very defectively reported , in both. The report in Salkeld does.not give the half of the.cáse,; and that in 4 Mod. gives a very unsatisfactory account of the reasons which governed the court. An attentive examination of the facts, however, will enable us to understand the case, and to explain it in perfect-conformity with the principles which govern my: opinion.
It was a curiously mixed case, in which the law of conditions and conditional limitations were so blended as,to have . been scarcely severable. It was the case of a fathér, tenant in fee, and his.three daughters, constituting his heirs at law. The father devises to one of the daughters a messuage called *395Lawhorn, “ upcin condition that she marry T. T., and if she refuse to marry him, then over to trustees in trust to be divided among the three co-heiresses, equally or otherwise as they please.” The marriage became impossible by the death of T. T- ündér twelve, and the question, was which to apply to it, the law of conditions or the law of limitations. The. majority of the court, three Out of four, decided, that it came within the-law' of conditions-. One held it'to be a conditional limitation. On this case I would remark,
.1. That it was well disposed of upon the law of conditions, for the devise- over was in effect to the heir at law, so that the entry for. condition broken would not have defeated the will, but have carried it into effect ; the reason therefore for construing words of condition into words of limitation did not exist, especially as it is presumable that there was nothing to prevent the operation of the statute of uses in favour of the devisee over under the trust in the will, but, .
2-. There was room for a doubt on the question arising from the effect of interposing the trust, especially if the power of making an unequal distribution was well given to the trustees; for then the.entry of the heirs would have defeated the testator’s views; arid it ought to have been held a limitation, according to the opinion of the dissenting judge.
3.. I think it very clear, that the case alluded to was argued and/decided under a general admission of bench ,and bar, that if held to be a cáse óf-condition, the effect of the condition’s becoming impossible, would be in favour of the first takér; but if heldto be'a case of conditional limitation, that it would be in favour of the party claiming under the devise over. If thre effect bad been held to be the same in both cases, it would have béen utterly idle to raise a question upon the will.
And lastly. That when the judges in that casé come to the conclusion that'it was a casé of condition, and not of limits tion, they proceed to examine the question,'whether a condition precedent or subsequent, with a view to the leading motive of .the testator, little regarding any particular phraseology. And certainly with .a yiew to induce. T. T. to address *396the daughter, the more beneficially the will operated in her behalf, the greater would be the inducement held out; and accordingly they make it a condition subsequent. But a contrary reason operates here, fór the leading motive is not the establishment of William King, but the formation and advancement of a particular family connexion. It would then have comported best with this testator’s views to super-add the inducement of necessity, in ordér to.incline William King to the proposed matrimonial connexion.
There could have been no reason for giving it to him until the marriage took effect; it would have been better to let it accumulate in the hands of the executors, especially considering his tender age at the date of the will.
Upon the whole I am satisfied, that if this case is to be disposed of on the law of Conditions, there is nothing in the will or the views of the testator that should make it a condition precedent ; and nothing certainly has occurred since to make it necessary to give it that character ; for had he married, there would have been a resulting trust in favour of the heirs if the marriage failed to produce issue, and that would only have left the heir at law where he is now, without owing any thing to the aid of a trust. Whence it results, that it would have, been useless and idle to have vested any interest in William at any timé.
But I ¿m perfectly satisfied that the case is one to which the law of limitations and contingencies alone is applicable, and that according to the principles that govern that class of cases, the' impossibility of the contingency does not confirm the estate in the first taker, but defeats it.
I am therefore of opinion, that the judgment below should bp reversed.-