The Orphans Legacy, Part 3 · Chapter 4
CHAP IV. Of Conditions and their Reſemblancies Incident unto Legacies.
1 A Falſe Neceſsary Demonſtration doth vitiate a Legacy, but not a Falſe Snperfluous Demonſtration.
2. The Parity of Operation between a Falſe Cauſe and a Falſe Demonſtration; and whether a Falſe Cauſe doth vitiate a Legacy?
3. Whether a Falſe Condition doth vitiate a Legacy.
4. The Difference between Modus and Conditio.
5. In what Caſes the Word [if] doth not amount to a Condition.
1. WHat Conditio is, or by what Words it is expreſs'd or implyed, with the ſeveral Kinds thereof incident to Teſtaments, hath been formerly hinted at. aSupra part. 1, cap. 13, 14.And as a Condition relates to Legacies: It is ſuch a Quality added or annexed to the Deviſe or Legacy, as whereby the effect thereof is ſuſpended, till ſome future Event, whereon it depends, doth come to paſs. For in the Bequeathing of Legacies, as well as in the Appointing of Executors, there is for the moſt part either That which the Law calls Conditio or Modus, or Cauſa, or Demonſtratio; The two former whereof refer to the Time to Come; The two Latter to the Time Preſent or the Time Paſt. And a Demonſtration is inſtead of the Name of Perſons or Things, and is nothing elſe but a Note and Deſignation, whereby either the Perſon of the Legatary, or the Legacy it ſelf is Demonſtrated: For which Reaſon a Legacy is not rendred Void or Null meerly by Bequeathing it by a Falſe Name, or through a meer Erronious Appellation only Demonſtrative, ſo as the thing Bequeathed be certain, and Perſon of the Legatary not uncertain. b§. Siquidem. Inſt. de Legatis.So likewiſe is it in caſe of a falſe Demonſtration, which doth no more vitiate the Legacy, then if it were given by a wrong Name. c§. Falſa. Inſt. Ibid.As if the Teſtator ſay, I Bequeath Bucephalus my Black Horſe of my own breed, or which was a Fole of my White Mare; This Legacy is good, though he were not of his own breed, or a Colt or Fole of his White Mare. But underſtand this only when the Demonſtration is too full or ſuperfluous, and not of a Demonſtration which is no more then Neceſſary, and which reſpects the very Subſtance of the thing Bequeathed. Now a Demonſtration is ſaid to be too full and ſuperfluous, when it is added to a thing certain and ſufficiently Demonſtrated before, and which would plainly enough appear without any ſuch Addition of that Demonſtration; and of ſuch Demonſtrations only it muſt be underſtood what is here ſaid, viz, That a falſe Demonſtration doth not vitiate the Legacy. And as a ſuperfluous Demonſtration that is in it ſelf Falſe doth not vitiate the Legacy, when it is ſuch a falſe Demonſtration of the thing Bequeathed, ſo neither when it is added to the Perſon of the Legatary. dL. Demonſtratio? de Condit. & Demon.And herenote, That a Demonſtration hath more Energy, Force and Operation in it then a meer Name: And therefore if the Teſtator hath Two Daughters, the one Married at London, viz. A. B. and the other Married at York, viz. C. D. doth ſay, That I Bequeath 100 l. to C. D. my Daughter, which is Married at London; in this caſe the Legacy of the 100 l. is due to A. B. ePap. Not. 1, tit. de Legat. verſ. dePareil. &c.In like manner a Demonſtration by the Quality is of more Force then that which is by the Confines, Bounds, or Limits of Place; Therefore if a Teſtator doth Bequeath his Cherry-Garden, being in ſuch a Place, nigh ſuch Neighbours, it is a good Legacy, and due, albeit it be not in that Place, but in another. fRebuff. de dilat. att. 2, gl. 2, nu. 18.So that it is not a Falſe Superfluous, but a falſe Neceſſary Demonſtration that doth vitiate the Legacy, and that which reſpects the very Subſtance of the Thing it ſelf Bequeathed: For from thence it is, That (as in the laſt precedent Chapt.) if the Teſtator ſay, I Bequeath Ten Pounds which I have in my Cheſt unto A. B. Nothing is due to him if it be not in his Cheſt; becauſe in this caſe the Demonſtration is inherent to the very Body or Subſtance of the Thing it ſelf Bequeathed.
2. What hath hitherto been ſaid of a Falſe Demonſtration, the ſame in Law may be Applyed to a Falſe Cauſe, or a Falſe Ground or Reaſon; for as a Legacy is not vitiated by a Superfluous Falſe Demonſtration, ſo neither is it by the Addition of a Falſe Cauſe or Reaſon. g§. longe. Inſt. de Legat.And as by a Demonſtration it is ſignified to whom and what is Bequeathed: So by the Cauſe or Reaſon it is ſhewed why or wherefore it is Bequeathed. Hence it follows, That if the Teſtator ſay, I Bequeath 100 l. to A. B. for that the Structure or Building of his Houſe was proſecuted and went forward, or the like: In this caſe the Legacy is due, though that Cauſe were not True; hRebuff. ad l. 27, verſ. ideo. De Verb. Sign.Yea whether the Teſtator did or did not know the Cauſe to be Falſe; iGomez. Var. Reſol. in Tom. 1, cap. 12, nu. 76.Unleſs the Cauſe be ſuch as is Inherent with, and taken for the very Subſtance of the Legacy it ſelf; in which Caſe a Bequeſt or Legacy is void by a Falſe Cauſe; or unleſs the Teſtator declares the Cauſe Conditionally, that is, in the ſame manner as a Condition uſes to be declared, as by the word [if.] As when the Teſtator ſays, I Bequcath a Hundred Pounds to A. B. if he hath taken care of my Buſineſs in London: For every Cauſe though it be Conditionally ſpoken or after the manner of a Condition, yet it refers to the Time Paſt; whereas a Condition refers to the Time to Come. Therefore it is very material to conſider whether the Teſtator doth expreſs himſelf Cauſatively, as by the Word [Becauſe] or Conditionally, as by the Word [if:] For if Conditionally, and the Condition be under a Falſity, then the Legacy is not due; but it may be otherwiſe though the Cauſe be Falſe; unleſs it can be proved that the intention of the Teſtator was otherwiſe; Now the mind or the intention of the Teſtator may be proved either Truly or Preſumptively; Truly, if the Teſtator fully ſo expreſs nimſelf; preſumptively, when the Cauſe doth reſpect or refer to Conſanguinity or Affinity: As when the Teſtator ſays, I Bequeath a Hundred Pounds to A. B. beeauſe he is my Brother or Kinſman. kGomez. Var. Reſol. Tom. 1, cap. 12. nu. 76.Others in this point of a Falſe Cauſe do diſtinguiſh between an Impulſive Cauſe and the Final Cauſe, and conclude thus, viz. That the Impulſive Cauſe doth not vitiate the Legacy, but that a Final Cauſe doth. lMenoch. de Praeſump. l, 4, praeſ. 14. & Galgan. de Cond. part. 2, c. 4, q. 1, 2.In all which variations and doubts the Teſtators Mind and Meaning ſo far as is Rationally Colligible, muſt turn the Scale. To conclude therefore this Point: If the Teſtator ſays, I do Bequeath a Hundred Pounds, becauſe he lent me a Hundred Pounds, This Legacy holds not if the Cauſe be Falſe: Yet if he ſays; I do Bequeath the Hundred Pounds to A. B. which he lent me; this Legacy is good, though nothing were lent him.mIbid. Menoch. praeſum. 24.
3. Again, it may be a Queſtion, whether a Falſe Condition doth vitiate a Legacy? Some are of Opinion; That it doth vitiate a Legacy: nLeon. Galgan, de Cond. part. 1, cap. 5, nu, 26.As if the Teſtator ſay, I Bequeath a Hundred Pounds to A. B. if he pay to C. D. what I owe him; when the Teſtator ows nothing at all to C. D. which ſome will underſtand only when the Condition is Originally Falſe and ab initio; for if it be Falſe only Ex poſt facto; as if the Teſtator did owe him indeed; or was indebted to him a Sum of Money, but paid it to him after he had made his Teſtament, the Legacy is notwithſtanding due ſay ſome, but contrary to Truth and Law. oL. cum tale. §. p…n. de. Cond. & Demon.So that the Condition which is Falſe ab initio is held as an Impoſſible Condition, and therefore voids not the Legacy: And on the other ſide, That Condition which is Falſe ex poſt facto, is held as Defective, and for that Reaſon doth not Void or Null the Legacy.pCuja. indict. §. pen.
4. Modus and Conditio are diſtinguiſhed from each other by certain Notes, Signs or Forms of Words or Speech: as thus, The common Note or Word by which a Condition is uſually known, is by the Word [if:] And that whereby Modus is commonly conceived and known is by the Words [That, or So as.] Therefore if the Teſtator ſays, I Bequeath Ten Pounds to A. B. ſo as he give Five Pounds to G. D. This is only Modus. qL. utilitas. §. 1, de manum. teſt.But if he had ſaid, I Bequeath Ten Pounds to A. B. if he give Five Pounds to C. D. Then it had been a Condition. rL. ſi. ita. ibid. & dict. l. utilit. ibid.Yea though the Teſtator add a Condition to the Modus, yet the Word, [That] implyes a Modus not a Condition: As thus, I Bequeath Ten Pounds to A. B. on Condition that he give Five Pounds to C. D. sGomez. Var. Reſol. To. 1, cap. 12, nu. 70, & Graſſus. §. legatum. q. 49, 58, & vaſ que de ſucceſſ. progr. lib. 3, §. 27, nu. 15, & Mantic. lib. 10, tit. 5, nu. 15, 16.Yet in ſome caſes the Word [That] may rather imply a Condition then a Modus, eſpecially if it can be Proved, That the Teſtators meaning was, That the Legatary ſhould fulfill what is enjoyn'd him before he ſhould enjoy the Legacy. Hence it is, That it may be judged from the Method and Order of the writing of the Words themſelves, whether it be a Modus or a Condition: For if the Teſtator doth firſt enjoyn a charge or a burden before he doth make the Diſpoſition or give the Legacy, then it is to be underſtood as a Condition: As thus, If the Teſtator ſay, That let A. B. give my Son C. D. Five Hundred Pounds, and take all my Goods; or let him give him Five Hundred Pounds and be my Executor. It is otherwiſe when a Charge is joyned with a Grant or Diſpoſition that in it ſelf is already perfect and compleat: As thus, If the Teſtator ſay, I make or appoint A. B. my Executor under this Condition, that he Succeed not in, or Poſſeſs himſelf of my Eſtate till my Legacies be paid. tMenoch. Conſ. 131. lib. 1And this is a current Rule, That whenever it may clearly appear that it was the Teſtators Intent and Meaning to make a Condition, it ſhall be underſtood as a Condition though he uſed words that are properly Modal; and whenever it can likewiſe be proved that his Meaning was to make a Modus, it ſhall be underſtood only as Modal, though he uſed words that are properly Conditional.uL. in condiionib. §. 1, de Cond. & Demon. & l. 2. …. de his quae …oen. nom.
5. There are certain Caſes wherein the Word [If] doth not amount to a Condition; one is, when the Condition doth refer to the Time Preſent or Paſt, wL. mutuo. …. Iff. de Tutel.As if I ſay, If A. B. hath made me his Executor, let C. D. be my Executor; or if A. B. hath given me a Hundred Pound, let C. D. have a Hundred Pound; For this kind or manner of Speech being then preſently ab initio, either True or Falſe, doth not ſuſpend the Executorſhip or Legacy, but hath its operation ad ſtatim, either to their Confirmation or Annullation. x§. Conditiones. Inſt. de …erb. Oblig.Another Caſe is when the Executors or Legataries are made in this manner, viz. Let A. B. and C. D. be my Executors as to the parts which I ſhall Appoint or Aſſign them; or let them be my Executors if I Aſſign them any parts; or let them be my Legataries as to the parts which I ſhall Appoint, or if I Aſſign them any parts; In this caſe it is held that they are not Appointed Executors or Legataries under a Condition, but that ſuch making Executors or Legataries is vallid and good, albeit the Teſtator ſhould afterwards Aſſign them no parts: The Reaſon is; becauſe ſuch a kind of Speech doth admit a double Senſe or Interpretation, and is as if the Teſtator had added; And if I Aſſign no parts, let them be my Executors or Legataries in equal parts. yL. 2, de … Inſt.Several other Inſtances might be given to ſhew wherein the Word [if] doth not make a Condition; but theſe may ſuffice, our purpoſe on this Abridgement being not to inſiſt longer in Inſtances then what are ſufficient for illuſtration.