The appellants made the following points in this court: 1. That the third will, whether its disposi830*] tion *be valid or not revokes the other two, since it expresses a clear intention on the part of the testator, to dispose differently of the whole estate. 2. That it gives no estate for life or years, absolute or in trust, to John Thompson Mason, the respondent, but merely the custody and care of the property, during his life, as agent or curator, with a salary for his services. 3. That no estate, for life or years, can be raised for him by implication, because the original estate did not move from him, and never was in him. 4. Consequently, that he has no estate of freehold, with which a subsequent limitation in fee could unite, so as to create a fee in him, under the rule in Shelley's case. 5. That if he takes a life estate, it is merely fiduciary, and not beneficial, for which reason it could not unite with a limitation over in fee, if there were one, so as to give him a fee under the rule. 6. That the words in this will, "the male heir of my nephew, John Thompson Mason, lawfully begotten, forever," as explained and modified by the subsequent expressions, designate the "male heir of the body of J. T. Mason," as the person who is to take the estate, and thus operate as a "descriptio persona," and not as a "limitation." Consequently, that they do not create such an estate of inheritance, as is capable of uniting with a life estate, under the rule; but must operate, if at all, as a devise, per se, of an estate 331*] in possession or remainder, or as an executory devise. 7. That this disposition cannot operate as the devise of an estate in possession, for want of some person, in existence at the testator's death, who could then take: 1st. Because the person designated, was to be "the heir" of John Thompson Mason, who was then alive, and nemo est hæres viventis. 2d. Because, as he had then no issue male, or heir male of his body, there was no person who answered the description, taken in its largest and most general sense. on Wills, 2d Am. ed. 679, marg. p. 807; 2 Atk. 16; Peyton v. Bury, 2 P. W. 626; King v. Withers, 1 Eq. Ca. Ab. 112, pl. 10. A condition, in view of the common law is regarded as impossible, only when it cannot, by any human means, take effect. But if it be only in a high degree improbable, and such as it is beyond the power of the obligee to effect, it is then not deemed impossible. 2 Story, Eq. Jur. s. 1305. If a grant is made on a condition subsequent, and the performance becomes impossible by the act of the grantor, the condition is void. United States v. Arredondo, 6 Pet. 691, 745; Whitney v. Spencer, 4 Cow. 39. Where, in the event of the testator's lawful heir not being found within a year after his decease, he devised certain lands to A. "upon condition he changes his name to S." A did not change his name to 8, within the year, but did so after a final decree in chancery, which gave him the posBession of the property; and this was adjudged sufficient. Davies v. Lowndes, 2 Scott, 67. Conditions that are repugnant to the estate to which they are annexed, are absolutely void. Stockton v. Turner, 7 J. J. Marsh. 192; Att'y-Gen'l ▼. Hall, Jacob, 395; Tibbetts v. Tibbetts, 19 Ves. 656; 1 Jarm. on Wills, 2d ed. 680, marg. p. 809, 810. 8. That the disposition in question cannot operate as a remainder, vested or contingent, because there was no preceding estate to support it; none having been directly given to John Thompson Mason by the will, or being raised for him by implication. 9. That, admitting John Thompson Mason to have a life estate under the will, which might support a remainder, this disposition cannot operate as a vested remainder, because, at the testator's death, there was no person in existence who answered the description; nor as a contingent remainder, because it depended on two distinct and successive con. tingencies: 1st. That John T. Mason should have a son. 2d. That this son should live to the age of twenty-one years, then assume the name of Abraham Barnes, by legislative authority, and take the oath prescribed by the will, which is a possibility too remote. 10. That this disposition cannot be supported as an executory devise, because it was to take effect on two remote and con- [*332 tingent events: 1st. That the eldest son of John T. Mason should voluntarily, and after he attained the age of twenty-one years, change his name to that of Abraham Barnes, through the operation of a legislative enact. ment; and, 2d. That he should take an oath, as prescribed by the will; which events, if they took place at all, might not happen within the life-time of John Thompson Mason, and twenty-one years and nine months afterwards. The cause was fully argued, upon all these points, by Mr. Jones and Mr. Harper for the appellants, and by the Attorney-General and Mr. Emmet for the respondents; but, as the questions whether an estate tail vested in John Thompson Mason, and whether the last will revoked those which preceded it, were not considered and determined by the court, it has not been thought necessary to report that part of the argument. The counsel for the appellants stated, that as to whether a condition be precedent or subsequent, it is always a matter of construction, depending on the intention of the testator. The principle is, that where an intention appears to create an estate at all events, and merely to annex a condition to it, A power of alienation is necessarily and insep arably incidental to an estate in fee. If, therefore, lands be devised to A and his heirs, upon condition that he shall not alien, the condition is vold. Co. Litt. 206, b, 223, a; Newkirk v. Newkirk, 2 Caines, 345; Byng v. Lord Stafford, 5 Beav. 558; McWilliams v. Nisley, 2 Serg. & R. 513; Hall v. Tuft, 18 Pick. 445; Schemerhorn v. Negus, 1 Denio. 448; Ware v. Cann, 10 Barn. & C. 433. A condition in a devise of land, that the land shall not be subject to conveyance or attachment, is void. Blackstone Bank v. Davis, 21 Pick. 42; Howley v. Northampton, 8 Mass. 3, 6. But such a partial restraint on the disposing power of the tenant in fee may be imposed, as that he shall not allen to such a one, or to the heirs of such a one, or that he shall not allen in mortmain. Co. Litt. 223, a; McWilliams v. Nisley, 2 Serg. & R. 513. A condition in a devise for life, whereby it is to be devested by the marriage of the devisee, is void. Parsons v. Winslow, 6 Mass. 169. But if the devise be given over, so as to create an interest in another immediately on the_breach of such condition, the condition is valid. Parsons v. Winslow, 6 Mass. 169, 178. Where there is an absolute devise, a subsequent vold provision will not defeat It. Martin v. Bal lou, 13 Barb. 119. 332 SUPREME COURT OF THE UNITED STATES. by which it may be defeated, this is a condition subsequent; and if followed by a limitation over, in case the condition be not fulfilled, it makes a conditional limitation. But if the intent appear to be, that the vesting or 333*] creation of the estate shall depend on the condition, then it is precedent. There could be no dispute as to general principles, which were incontrovertibly settled by all the authorities. The only question was, as to the application of them to the particular case. They entered into a critical examination of the words of the last will, to show that the conditions annexed to the estate devised to the oldest male heir of J. T. M., were precedent and not subsequent. tirely to defeat the testator's bountiful intentions in favor of J. T. M.'s family; for they say, this being a condition precedent, the limitation cannot take effect as a contingent rea possibility mainder; for then there would be three contingencies, and a possibility on necessary to its vesting. It is clear, then, that to preserve the testator's primary or general intention, or, indeed, any part of his intention towards that family, the terms must not be considered as a condition precedent. In a will, no words of condition are too strong to bend to the testator's intention. Thus, "if a man devises a term to A, and that if his wife suffers the devisee to enjoy it for three years, she shall have all his goods as executrix, but if The counsel for the respondents considered she disturbs A, then he makes B his executor, the conditions as subsequent and not prece- and dies; his wife is executrix presently; for dent; or rather, they considered them as con- though in grants, the estate shall not vest till ditional limitations, attached to, and defeating, the condition precedent is performed, yet it is in each instance, the preceding estate, on re- otherwise in a will, which must be guided by fusal to perform the acts required, and thus the intent of the parties; and this shall not be creating a new estate in tail male. It was construed as a condition precedent, but only as said to be laid down by the authorities, that a condition to abridge the power of the executhere are no precise technical words required trix, if she perform it not." Although the conin a deed (a fortiori in a will) to make a stipu- ditions over may be void, their existence may lation a condition precedent or subsequent." be used to illustrate the testator's intention, Neither does it depend on the circumstance and to show that this was intended to operate whether the clause was placed prior or pos- only as a limitation. It was intended that terior in the deed, so that it operated as a pro- every one having the right, should change his words have name, and take the oath, before he had posviso or covenant; for the same been construed to operate as either the one or session; "so that no act of intention to dethe other, according to the nature of the trans- feat his will should be allowed of." [*336 834*] action. Thus, Lord Eldon says, "I Those, then, taking by inheritance through the take it to be fully settled that a condition is first heir male, were to be subject to this conto be construed to be precedent or subsequent, dition, and on their refusing, the estate was It is impossible to contend that as the intention of the testator may require." to go over. And Heath, J., in the same case, adds, "It has those so taking by inheritance should be reno technical garded as purchasers, or that, with them, this been truly said, that there are words by which a condition precedent is dis- should be considered as a condition precedent; tinguishable from a condition subsequent; but and why should not the same construction of that each case is to receive its own peculiar the testator's intention, that must be given construction, according to the intent of the with respect to them, be given in the first devisor." Now, let that test be applied to the instance, where the same proviso is used, viz., point in question. It is clear that the testator that it is a conditional limitation, on the reintended the estate for the benefit of the sons fusal to perform which, the antecedent estate is of J. T. M., after his death, and successively defeated, and a new one arises? Unquestionfor the heirs male. If this be a condition prece- ably the limitation, on refusal to comply, is a dent, as is contended by the appellants, and conditional limitation. If, then, between such the will of 1789 be entirely revoked, the fee conditional limitation and a condition precewill be in the heirs-at-law, from the death of dent, bearing on the same object (let the words T. M., till the condition be performed, and be ever so clear), there be a positive incompati the rents, issues and profits belong to them. bility, the principle must be applied, that if Suppose the first heir male an infant of tender words be so inconsistent that they cannot posyears; the rents, etc., do not go to his main- sibly stand or be reconciled, those words shall The intenance and education, nor yet accumulate for be rejected which are least consistent with the his benefit, as was directed, even in the life- general intention of the testator. from this: results limitations, time of his father. Let him die under twenty-compatibility between conditions and contwo, without having performed the condition, ditional or their heirs, but leaving an infant son; that son must take by "Conditions can only be reserved to the inheritance, if at all, and not by purchase. feoffer, donor, lessor, Can he take by inheritance from his father, an not to a stranger;" and this by implication, estate tail that never vested in his father? without any words of reservation; and for But suppose he can, there is still another long every condition broken, the heir of the [*337 enjoyment of the estate by the heirs-at-law, donor shall enter, and by so doing, restore the So that, except in gavelkind' for their own benefit. The appellants seek, by original estate. 335*] making this a condition precedent, *en- and borough- English,' and a husband's alienat 1-2 Cruise Dig. 8, 4, 5; Cas. temp. Talb. 165: 3.-Hotham v. East India Co. 1 T. R. 645. 5.-Jennings v. Gore, Cro. Eliz. 219. 6.-2 Fonbl. Eq. c. 3, s. 3. Note 1. p. 69; Haws v. Haws, 3 Atk. 524; 1 Vez. 14; Perkins v. Bayntum, 1 Bro. Ch. Cas. 118; Doe v. Aplyn, 4 T. R. 88. 7.-1 Co. Litt. 214 b. 8. Co. Litt. 11, 12. Wheat. 9. Mr. Chief Justice Marshall delivered the opinion of the Court, and, after stating the case, proceeded as follows: If the estate should yield any surplus profits, after satisfying the charges placed on it by the testator, J. T. M. is directed to account for those profits, and they are the property of "the person that may have the right," according to the language of the will. Are the heirs-at-law the persons "who have the right," according to this language? The first limitation is to "the male heirs of my nephew, J. T. M., lawfully begotten, forever, agreeably to the law of England;" that is, the oldest male heir to take all. ing his wife's estate on condition,' the heir-atlaw enters and holds for his own benefit. This applies to conditions subsequent. As to conditions precedent, the estate remains in the heir-at-law, and never vests till the performance of the condition, and, during all that time, the heir-at-law holds it beneficially. But the effect of a conditional limitation is, that the next devisee alone can enter, and he takes and enjoys for his own benefit. Now, it is incompatible, that the heir-at-law should have the right to hold the estate for his own bene- Certainly not. The plain intention of the fit; and the devisee to hold it for his benefit; will is to exclude them. They admit this; and and in these incompatible results, the question, support their claim by alleging that the will, which shall prevail, must depend upon which so far as respects the devises which are to is conformable to the intention of the testator. take place after the death of J. T. M., is utterThus, it is laid down that "words of an ex-ly void, the limitations over being too remote. press condition shall not ordinarily be construed into a limitation; but where an estate is to remain over for breach of a condition, which is by express words a condition, yet it ought to be intended as a limitation." And the contrary doctrine in Mary Portington's case has been often denied to be law.* 338*] *The expression "before he has possession," is much relied on, as showing a condition precedent. But it must, like other equally strong expressions, bend to the testator's general intent, and to the words "who has the right." How "has the right," if obtaining an act of the legislature and changing the name after twenty-one, be a condition precedent? For then no estate can vest, and no right be had, till the condition be performed. So, it is said, the will shows the right is not to commence till he has arrived at twenty-one. But the age of twenty-one connects itself, both in sense and grammar, with the act to be done, and not with the vesting of the right. The expression "refusing to comply," and the giving over the estate to others, show the refusal to be the definite act, by which one estate was to be determined, and the other to commence. Thus, where similar words were used, "on condition that he should in twelve months after the testator's death, or in twelve months after he attained the age of twenty-one years, suffer a recovery of an estate in the county of Warwick, and settle it to certain uses," they were clearly taken to be a condition subsequent, and The time allowed the eldest male heir of J. not a conditional limitation." Indeed, the T. M. to perform the condition on which his words "before he has possession," are suscepti-estate would, according to the words of the ble of another interpretation, consistent with the previous vesting of the estate. The testator did not view all possible contingencies accurately. He clearly took for granted that the one to take would be an infant, and meant to make a provision accordingly. He probably 339*] used those words to distinguish the time when a guardian would receive the rents, issues and profits, from that when the minor would come into the actual possession of his estate. The cause was continued, for advisement, to the present term. 1.-8 Co. 43. If the clause stopped here, there could be no question in the case. The person who should be the eldest male heir of J. T. M. at the time of his death, would take the estate. But the testator proceeds to prescribe the "terms" on which such eldest male heir should [*340 take. They are, "that the name of the one that may have the right, at the age of twentyone, with his consent, be changed to Abraham Barnes, by an act of public authority of the state, without any name added, together with his taking an oath before he has possession," "that he will not make any change during his life in this my will, relative to my real property. And on his refusing to comply with the above-mentioned terms, to the next male heir, on the above-mentioned terms, and so on, to all the male heirs of my nephew, J. T. M., as may be, on the above terms; and all of them refusing to comply in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of; and on their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, J. T. M." etc. will, become absolute, is twelve months after he shall attain his age of twenty-one years. As J. T. M. might die, leaving no son alive at his death, but leaving his wife enciente of a son, it is obvious that the contingency on which the estate depended might not happen within a life, or lives, in being, or within twenty-one years and nine months after the death of J. T. M. If, therefore, the estate did not vest until the contingency should happen, the limitation over to the eldest male heir of J. T. M., depends on an event which [*341 is too remote to be tolerated by the policy of the law, and the remainder is consequently void. If, on the contrary, the estate is to vest on the death of J. T. M., to be devested on the 2. Page v. Hayward, 11 Mod. 61; 2 Salk. 578. non-performance of the condition, the limi3.-10 Co. 35. tation in remainder is valid, and the plaintiffs 4.-Brownl. 65; Roll. Abr. 412; Ventr. 200; 8 are not entitled to the account for which the Lev. 132; 2 Show. 398; 1 Bos. & Pall. 313. 5.--Duke of Montague v. Beaulieu, 3 Bro. Parl. Cas. 277. Lill prays. annexed to the devise of the remainder, be precedent or subsequent; and this, it is admitted, must be determined by the intention of the testator, which intention is to be searched for in his will. All the instruments of writing purporting to be his last will, show that his firm and continuing purpose, from the 31st day of October. in the year 1789, to the term of his death, in the year 1804, was to preserve his estate en tire for the benefit of a single devisee, and not to permit it to be divided among his heirs. The same papers, likewise, show that the first object of his affection and bounty was J. T. M.; and the second was the eldest male heir of J. T. M. An ample and unconditional provision, perhaps equivalent to the whole value of his real estate, is made for J. T. M. during his life; and on his death, the whole real estate, with any residuum of profit which might possibly be accumulated during his life, is given to his eldest male heir. If these devises should be expressed in ambiguous language, this obvious and paramount intention ought to serve as a key to the construction. have described the person who was to perform he condition, as already having "the right," f the impression on his mind had been, that 10 person would have the right until the condiion should be performed. This expression is entitled to the more inluence, from the consideration that the condiion is to be performed by the person having the right at the age of twenty-one, or in a convenient time afterwards. The devisee might be an infant at the time of the death of J. T. M. The person who has the right, if an infant, is allowed till he attains his age of twenty-one years, and a reasonable time afterwards, to perform the condition. This is inconsistent with the idea that the condition must be performed before the estate vested, before the right accrued. The testator then directs, in addition to the change of name, that an oath, prescribed in his will, shall be taken, and then proceeds, "and on his (the person that may have the right) refusing to comply with the [844 above-mentioned terms, to the next male heir on the same terms." The property is, in the first instance, devised to all the male heirs of J. T. M., the oldest to take first. The testator then proceeds to describe the state of things in which the next oldest is to take. That state of things is the refusal of the oldest to comply with the terms annexed to the estate given to him. Upon this refusal, the devise is immediate. No intervention of the heir-at-law is necessary to defeat the title of the oldest, and to vest the property in the next male heir. But, until this refusal, the rights of the oldest remain unchanged. Although the words "refusing to comply" may, in general, have the same operation in law as the words "failing to comply" would have, yet, in this case, they are accompanied and explained by other words, which show that the word "refusing" was used in a sense which might leave the estate in the devisee, though his name should not be changed. Where the condition to be performed depends on the will of the devisee, his failure to perform it is equivalent to a refusal. But where the wondition does not depend on his will, but on the will of those over whom he can have no control, there is a manifest distinction between "refusing" and "failing" to comply with it. The first is an act of the will, the second may be an act of inevitable necessity. The language of the devise in remainder, imports an intention that it should take effect on 342*] the determination of the particular estate. So soon as J. T. M., the first object of his bounty, is removed, the eldest male heir of J. T. M., the second object of his bounty, comes into view: "I give the whole of my property" "to the male heirs of my nephew, J. T. M., law fully begotten, forever, agreeable to the law of England; that is, the oldest male heir to take all, on the following terms," etc. These words postpone the interest of the devisee no longer than till he can be ascertained; that is, till the death of J. T. M., who was to occupy the premises for his life. The eldest male heir of J. T. M. would be known at his death, at which time the particular estate which was carved out of this general devise, would determine, or at farthest, within nine months afterwards. The language is not such as a man would be apt to use who contemplated any interval between the particular estate and the remainder. The words import the same intention as if he had said, I give to the eldest male heir of J. T. M. all my property, on condition that, at the age of twenty-one years, his name be changed to that of Abraham Barnes, by an act of public authority of the state, etc. Such words, it seems to the court, would carry the estate immediately to the devisee, without In this case, the name is to be changed by a waiting for the performance of the condition. legislative act. Now, the eldest male heir of J. With this general intent, manifested in each T. M. may petition for this act, but the legis of these instruments, and this language, show-lature may refuse to pass it. In such [*345 ing the expectation that no interest would ina case, the devi-ce would not "refuse" to comtervene between the particular estate devised ply with the terms on which the estate was to J. T. M. and that to his eldest male heir, the given to him; those terms would neither be conditions on which that devise was made iterally nor substantially violated. If there 343*] must be expressed in language to show were nothing in the words of the will to give very clearly that they were to be performed additional strength to this construction, the rebefore the estate could vest, to justify the fusal of the legislature to pass the act would court in putting that construction on this will. not be a refusal of the devisee to comply with Let that language be examined. The devise the terms, and would seem in reason to disis of the whole property to the male heirs of J. pense with the condition, as effectually as the T. M., in succession, the eldest to take first. passage of an act to render the condition ille. The condition is to be performed by "the one gal. Its performance would be impossible, that may have the right." In the mind of the without any default of the devisee. testator, then, the right was to precede the condition, not be created by it. He would not But there are other words which show con clusively that the testator intended. this ex. pression, to make the devise to the next and other devisees to depend entirely on a willful and voluntary disregard, on the part of the eldest, of the terms on which the property was devised to him. After giving the estate to the male heirs of J. T. M., in succession, the testator proceeds: "And all of them refusing to comply, in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of, and of their refusing to comply with the terms above mentioned, if any such person may be, then to the son of my late nephew, H. T. M." etc. These words expressly refer to all the male heirs of J. T. M., including the oldest, apply to each particular devise, and fully explain the intention of the testator on the subject of the 346 ]change of name. It is to be changed in twelve months after the devisee attains his age of twenty-one years, "if in that time it can be done;" and this provision is made, that "no act of intention to defeat his will may be allowed of." The devise over is on "refusing" to comply with the terms on which the estate is given in the first instance, and this "refusing to comply," takes place only "if it can be done" exists only where there is "an act of intention to defeat his will." If it "cannot be done," if there be "no act of intention to defeat his will." then there is not that "refusing to comply with the terms” on which the devise over is to take place. All these provisions appear to the court to demonstrate that the testator intended the devise to take effect immediately, to be defeated by the devisee's refusing to comply with the terms on which the property was given. The devisees are, all of them, the co-heirs of the testator, and the whole purpose of the will is to prevent their inheriting any part of his estate as his heirs. J. T. M. takes an interest for life, beneficially, to a considerable extent, perhaps to the whole extent of the profits, certainly to the whole extent, if he chooses to expend the whole, except $1,600 per annum, in repairs, buildings, and the support of himself and family; and is to take the surplus profits, if there be any, as trustee; but as trustee for whom? for his eldest male heir, not for the heirs of his testator. That eldest male heir takes the whole property, including these possible surplus profits, on 347] certain conditions, one of which is, the change of his name by act of assembly. He might possibly, nay probably, be an infant, for J. T. M. had no male heir at the death of the testator. The event of his being an infant is particularly contemplated, and provided for, in the will. Such infant devisee is allowed twelve months, after attaining his full age, to perform the condition. No provision whatever, if the estate does not vest immediately, is made for his education and maintenance. Not even these surplus profits, which are so carefully to accumulate for his use, are given to him. The infant orphan, heir of an enormous estate, who was the particular favorite, and whose future grandeur constituted the pride of his ancestor, is cast, by this construction, on the world, without the means of subsistence, while the whole profits of his estate pass, without account, to those for whom the testator intended nothing. The estate is devised, in succession, to each of the heirs of the testator, on the same condition; and, if it be a condition precedent, the consequence is, that the same persons who could not take it in succession, as he wished it to pass, would take it in common, as we wished it not to pass. The whole scheme of the will would be defeated, and an object be effected, which all his ingenuity had been exerted to prevent. In this view of the case, it may be proper again to observe, that the devise over to the second male heir of J. T. M., is limited to take effect on the refusal of the oldest to perform the terms on which the estate is given to him. This must be a voluntary refusal, an [*848 "act of intention to defeat his will." Now, a failure to perform the condition may take place, although the devisee may have used his utmost endeavors to perform it; the Legisla ture may refuse to pass the act required. If it be a condition precedent, the estate, in that event, can never vest, and the whole intention of the testator may be defeated, without the fault of the devisee. But the will was framed with very different views. The testator declares, that each devise over is to take effect on the previous devisee's "refusing" to comply with the terms on which the devise was made to him; on his obtaining the act of assembly, "if it can be done;" on there being no "act of intention to defeat his will." This construction would make the devise to depend on the will of the legislature, although the testator declares that it shall depend on the devisee himself. To take the oath not to make any alteration in the will, so far as respects the real property, is completely within the power of the devisee, and this is directed to be taken "before he has possession." This direction shows the opinion of the testator, that the estate vested immediately, otherwise there could be no necessity for the clause suspending the possession. It would be a very useless declaration to say that the devisee should not take possession of an estate to which he had no right. This assists, too, in marking more clearly the distinction taken by the testator, between a condition annexed to the estate, which was in the power of the dev. isee, and one not in his power. The possession is not postponed until he shall [349 obtain an act of the legislature for the change of his name, but is postponed until he shall take the oath directed by the will. In the case of Gulliver v. Ashby, 4 Burr., 1929, William Wykes devised his estate to several persons in succession, after the death of his wife, and added the following clause: "Provided always, and this devise is expressly on this condition, that whenever it shall happen that the said mansion house, and said estates, after my wife's decease, shall descend or come to any of the persons herein before named," (that) "the person or persons to whom the same shall, from time to time, descend or come," (that he or they) "do or shall then change their surname, and take upon them and their heirs the surname of Wykes only, and not otherwise." |