And Lord Chief Justice Hobart says, in the case of 1766. Sheffeild versus Ratcliffe, (page 346.) "that by the

V.

ASHBY.

cessor of an Estate-tail, it accrues to him in reversion." GULLIVER So that wherever the precedent Estate-tail becomes ahsolutely void before a discontinuance, the Estate shall not totally fail; but the next vested remainder shall take effect. And Estates tail are only barrable by common recovery; or discontinuable by fine or feoffment.

They argued secondly-That here, Saunders's Estate became void; and the plaintiff's remainder was let in. This, they said, was the INTENTION of the testator; which is to be supported, if it can be so by the rules of law. And they observed, that a testator is not confined to technical terms.

This proviso operated as a limitation to the devise to Saunders.

The three first devises (after that to his wife) are in tail-male: Provided "that the person or persons to "whom the Estate shall come, [he or they] shall change "their surname, and take and use the surname of Wykes "only, and not otherwise."

THIS proviso operated as a limitation to the devise to [1933]

Saunders: and extends to all the devisees.

The whole will is to be considered as one act: It was equally the testator's object, "that Saunders should take "his name, as that he should take his Estate." The former was indeed the testator's primary intent: and he meant this as a limitation. And the devisee ought not to retain the Estate, unless he performs the condition, or conditional limitation; which were the same thing in the idea of the testator: for he could not mean it as a condition, in the strict, legal sense of that word; because Saunders was his heir at law. And they cited Cro. Eliz. 204. Wellock versus Hamond, and Cro. Jac. 56. Curteis versus Wolverston, to prove this to be a limitation. The former of these two cases, namely, that of Wellock versus Hamond, is also in 2 Leon 114. and 3 Co. 20 b. (cited in Boreaston's case :) but Mr. Hill cited it from Cro. Eliz. 204. The word "paying" was construed a limitation, and not a condition: "And, being a limitation, the law "shall construe it, that upon non-payment his estate "shall cease; and then the law shall carry it to the "heir by the custom, without any limitation over." He observed that the case in Dyer 317. mentioned in 3 Co. 21. a. should be 316. b. pl. 5. (as it certainly should.)

A condition can only go to the heir at law. But the customary heir came in there, as upon a limitation.

So here, the remainder-man shall come in, upon the breach of this conditional limitation; as the proviso must operate by way of limitation. The heir at law

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GULLIVER

V. ASHBY.

[ 1934 ]

can't take, till all the limitations are spent. This is a devise over, by implication at least, if not in express terms. But

Thirdly-If it be still objected, "that the testator has "not devised over in express terms, upon breach of this "condition."

They answered, that it was not necessary for him to keep to exact and technical terms; even if he had, in this case of not taking his name, the same intention of the estate's going over, as he has expressly directed in the case of waste; and in that case, he has only given over the mere place wasted; not the whole estate.

As to any objection that may be raised from no particular time being fixed upon, at which the condition may be said to be broken-The answer is, that "it was "broken before the common recovery was suffered." The common recovery came too late. Page versus Hayward, 2 Salk. 570. and Pigott on common recoveries 176. Benson versus Hodson. 1 Mod. 111. The same objection might have been made, if the estate had been expressly devised over, in case of a breach of this conditional limitation.

It is sufficient, that we shew a non performance of the condition, at the time of Ambrose Saunders's coming to the estate; and that he lived near nine years, and yet never changed his name, nor took the name of Wykes. They shew no performance at any time: which should come on their side, if there was any pretence of a per formance at all.

Therefore they prayed judgment for all the premises, except that part that was in mortgage.

Serjeant Leigh and Mr. Blackstone argued on behalf of the defendant; and principally insisted on the intention of the testator: which does by no means support or consist with their notion of a conditional limitation; or implication of a devise over, in order to effectuate the testator's intention.

This devise can only be considered either as a condition precedent, or a condition subsequent.

In fact, it is only a condition subsequent. And a condition subsequent cannot be taken advantage of by a stranger, (as the lessor of the plaintiff here is ;) but only by the heir at law. And it is barrable by a common recovery, according to the opinion of Hale, in 1 Mod. 110, 1811. Benson versus Hodson.

Where a testator devises over, it can not go to the heirat law. 1 Ventr. 199. 203. Porter versus Lady Ann Fry. Carter 171, Rundale versus Eeley and others: and there are some other cases of conditional limitations; and where the condition would become extinct by the descent

to the heir upon breach; as in the case of Wellock versus Hammond. But the present case does not fall within

1766.

that of Wellock versus Hammond. That was holden to be GULLIVER a limitation: this is a condition.

In this proviso, there is no devise over. In the next, there is namely, in case of waste; in which case, the person is to forfeit to the next taker. But the waster is to forfeit only the locus vastatus. And this second proviso is very properly worded.

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ASHBY.

Therefore, 1st. The testator knew how to limit over, when he judged proper to do so; and 2dly. He did not intend or suppose that the whole estate should go over, [1935 ] without a devise over; because, in the case of waste, he gives only the locus vastatus.

And no argument can arise from Ambrose Saunders's being heir at law to the Testator; because, in fact, Ambrose Saunders was not sole heir at law, at the Testator's death; Dorcas Wykes was then co-heir with him. And if it is a conditional limitation now, it must have been so at the time of the Testator's death. But it was not so * then; nor can it be made so now, by a subsequent event.

The testator meant, that the estate should pass entire. He did not intend that the estate-tail should be defeated by the fault of the first taker. The case of Jermyn and Arscot, in 4 Leon. 83. 1 Anderson 186. 2 Anderson 7, Moore 364. and 1 Rep. 85. (in Corbet's case) proves "that the estate-tail cannot be defeated in part, and re"main in part."

The law will not raise such an implication as this, upon an estate-tail. Wellock versus Hammond (which is the only case of an heir by custom taking advantage of the breach) was a fee; and was a devise of the whole fee. And Cro, Eliz. 205. is express," that, being a limitation, "the law shall construe it, that upon the non-payment of "the money, his estate shall cease; and then the law shall "carry it to the heir by custom, without any limitation "over." In the case of Skirne and Dame Bond, in 1 Ro. Abr. 412. title condition, pl. 6. It was resolved, "that "if a man devises land to another in tail, upon condition "that he shall not alien; and that if he dies without issue, it shall remain over to another in fee; and after, "the devisee aliens; yet he in remainder can not enter "for the condition broken; but the heir at common law; "for this is no limitation, but a condition."

46

Though it might have been construed a limitation, if it had been annexed to an estate in fee; yet when it is annexed to an estate-tail, it shall be construed a condition, for the sake of the issue. Dorothy Wykes might have left issue and they ought not to have been deprived of their moiety.

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The case of Rudhall versus Millward, in Moore 212. is a confused note; nothing can be collected from that reGULLIVER port," whether it was a condition, or a limitation." But Savil 76. S. C. explains it and shews clearly" that it was a condition, and not a limitation."

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Thomas's case-[This is a short note of a case no where else reported, and the reason given for it in Roll, for its being a limitation in fee, because the proper word of condition was used, has since been often over-ruled in the construction of Wills, Vent. 199. 2 Salk. 570.] in 1 [ 1936] Ro. Abr. 411. title" condition or limitation," pl. T. and 843. letter 1. pl. 1. is in point; (e) and that was determined five years subsequent to the case of Wellock versus Hamond. It was a devise to his daughter in tail, with divers remainders over: provided" that the daughter and every "one in remainder should permit and suffer T. (who "then occupied the land) to enjoy it during his life." This is not a limitation; though the daughter was heir general, and so was herself to have the advantage of the condition, if it be a condition; notwithstanding which, it was holden to be a condition.

And these two cases are reconcileable, only by the distinction between being in fee, and in tail.

Therefore they concluded that no limitation shall be raised in the present case, by Implication.

But even supposing that it might be construed as a conditional limitation-yet, Ist, there is no breach. 2dly, If there was, the lessor of the plaintiff could not take advantage of it.

First-The person required to change his name had his whole life time, to take the surname of Wykes.(f) And as an authority for this assertion, they cited Bothie's case,

(e) But most clearly not law, and so proved by Ser jeant Hill in this case, by the case of Wellock versus Hammond, cited p. 1933.

(f) This is against the express words of the proviso, as stated ant. 1950, as will appear by the state of it there, and the case cited in 6 Co. is most of it foreign; the part that comes nearest this case, and expressly put, is "where "no time is limited in the condition in which it shall be "performed," and here there was an express time limited. That whenever it should happen, that the estates, after the testators wife's decease, should come to any of the persons before named, that the person or persons to whom the same, from time to time, should come, should then change their surname; therefore the assertion here, that the person required to change his name, had his whole life-time, is contrary to the words of the will.

1766.

in 6 Rep. 30, 31. And in 4 Leon. 305. case 425. it was agreed by all the Judges, "that conditions which go in "defeazance of an estate are odious in law; and no re- GULLIVER "entry shall in such case be given, unless the demand be "precisely and strictly followed."

The words "not otherwise" in this proviso only mean "no other name ".

The taking the name of Wykes was of no benefit to any body; and the devisees are not fired to a particular time. Therefore the condition is not broken, if the possessor of the estate takes the name at any time during life.

Ambrose Saunders was heir at law for half. The Court will not presume him conusant of the will and proviso. However, it certainly was not necessary for him to do it instantly: he must, at least, have convenient time. And convenient time is during the whole life of the taker; it being left indefinite; and no benefit accruing to any body by his taking the name.

Consequently, Ambrose Saunders had a good estate-tail in him, at the time when he suffered the common_recovery; and thereby acquired a fee. 1 Mod. 111. Benson versus Hodson, I Salk 570. the fourth adjudication in Page versus Hayward.

V.

ASHBY.

In that case of Page versus Hayward, 2 Salk. 570. re- [ 1937 ] ported also by Mr. Pigott in his Treatise of common recoveries, page 175. the condition was-" to marry a “Searle,” and Mary Bryant had actually married another man: yet still, there was a possibility of her performing the condition. But it was resolved, that if it had been-" provided and upon condition that if she marry any but a Searle, it shall then remain and be to J. Š. "and his heirs," a common recovery suffered before marriage would bar the estate-tail and remainders: and though she after marry with another, it shall not avoid the recovery.

Secondly-But even admitting that it was a conditional limitation, and that Ambrose Saunders ought to have taken the name presently; yet the lessor of the plaintiff can have no right to recover. For, upon a limitation, the estate ceases, without entry or claim; and the law casts it upon the party to whom it is limited. To prove which, they cited Moore 633. Anthony Mildmay versus Humphrey Mildmay. Carter 171. Sir William Jones

58.

Waller Foy versus William Hyrde. Co. Liti. 214. b. 10 Rep. 40. and 2 Mod. 7.

Therefore, upon their own principles, Corrie ought immediately to have taken the name of Wykes; and so on. So that at the last, by a circuity, it would come round again to Ambrose Saunders, the heir at law.