The Orphans Legacy, Part 3 · Chapter 5
CHAP. V. Of the ſeveral Marks and Kinds of Conditions, and Queſtions in Law touching the ſame.
1. This Subject of Conditions very Voluminous in the Law.
2. The ſeveral Words and Phraſes of Speech denoting Conditions.
3. The Divers kinds of Conditions.
4. Several Queſtions in Law touching Conditions, Reſolved by Mr. Swinborne, and others learned in the Law.
1. THis Subject of Conditions, with their ſeveral Marks, Notes Signs, Differences and Variations, with their Ampliations and Reſtrictions or Limitations, both as to the appointing of Executors, and Bequeathing of Legacies, is a Field ſo large in the Law, as indeed would of it ſelf require a very large Volume to reduce them all though but to a Compendium, indeed too vaſt a Body to be Compriz'd in ſuch an Abridgment as this is; you may well gueſs that this is a Provident Truth to obviate over-curious Expectations, rather then any lazy Excuſe to ſave Labour, if you ſeriouſly conſider by what variety of Words and Phraſes; by what multiplicity of Senſes, Conſtructions and Interpretations; and in what innumerable Caſes Conditions are made.
2. As When and in what Caſe a Condition may be made by theſe words following, viz. [If. So as. Provided. To the intent. On Condition. To the purpoſe. That. When. Whereas. In caſe. So that. To. After. Afterwards. After that. So long as. Until. Who. Which. Whenſoever. Whoſoever. What perſon. Which perſon. Except. Otherwiſe. Where.] With many others. As alſo if you conſider in what caſes a Condition referring to the Time Preſent or Paſt may improperly be a Condition; Alſo when an Argument is drawn from the contrary ſenſe, may have place in Conditions; Alſo what the Difference is between [If] and [when;] and in what Caſes the Disjunctive word [Or] placed between two Phraſes of Time to Come, ſhall disjunctively infer…a Condition; alſo when ſuch a Conjuction Copulative (as Noting one thing neceſſarily to precede, another ſhall follow) doth make a Condition; Alſo, whether Adverbs of Negation make a Condition or only a Modus; And whether every Adverb that ſuſpends the Diſpoſition till ſome future Event, doth make a Condition; Alſo in what Caſes and when Prepoſitions do make a Condition; And in what Caſes Pronouns do the ſame; Likewiſe when Relatives as to Subſtance, Quantity, Quality or Number do make Conditions; Alſo by what words, and when are Tacite Conditions, and how many ways ſuch may be made; And whether a Condition by Relatives be not a Tacite Condition; Alſo whether a Condition may not be made by Participles ſpoken Abſolutely; And although Participles of the Time Preſent or the Time Paſt, do not make a Condition, yet whether Participles of the Future Tenſe may not make a Condition; Alſo when and in what Caſes Gerunds may make a Condition; As alſo in what Caſes the bare mention of a Condition doth not always make the Diſpoſition Conditional. Cum multis aliis.
3. Of Conditions there are many kinds, whereof ſome be Neceſſary, ſome Impoſſible; ſome Indifferent or Poſſible. The Two former are void ab initio. Of neceſſary Conditions ſome are Termed ſo in reſpect of Fact, ſome in reſpect of Law. Impoſſible Conditions are ſuch either in reſpect of Nature, or of Law, or of the Perſon enjoyn'd, or in reſpect: of Contrariety, Repugnancy, Perplexity, or Incompatability. And of Poſſible Conditions ſome are Arbitrary, ſome Caſual, and ſome Mixt. Of which Poſſible Conditions ſome conſiſt in Chancing, ſome in Giving, ſome in Doing, ſome Certain, ſome Uncertain; Reſpecting either Time, or Place, or Perſons, or things; whereof alſo ſome are Affirmitive, ſome Negative.
4. There are alſo in the Law almoſt innumerable Queſtions relating to this Subject of Conditions; To Enumerate ſome of them, as whether Impoſſible or Diſhoneſt Conditions do make the Diſpoſition Conditional? whether Neceſſary Conditions make the Diſpoſition Conditional? What are the various effects of Conditions, whether Neceſſary, Impoſſible, or unlawfull Conditions do ſuſpend the effect of the Diſpoſition? Whether Conditions partly certain, partly uncertain, do ſuſpend the effect of the Diſpoſition? Whether Impoſſible Conditions which the Teſtator ſuppoſed to be Poſſible do ſuſpend the effect of the Diſpoſition? Whether Conditions that are very hard and almoſt Impoſſible do ſuſpend the effect of the Diſpoſition? Whether it be not ſufficient for an Executor or Legatary to accompliſh the Condition by ſome Equivalent means, though not in the punctual and preciſe manner preſcribed by the Teſtator? Whether Conditions at firſt Poſſible but afterwards becoming impoſſible do hinder the effect of the Diſpoſition? Whether Conditions Impoſſible by reaſon of Repugnancy, Contrariety, Perplexity, or Incompatability do not make void the Diſpoſition? Whether the Condition be not in Law held as accompliſhed, when it is not the Executors or the Legataries fault wherefore it is not performed? Whether when the Condition is Negative, the Legatary may not have his Legacy, entring firſt into Caution for Reſtitution thereof in caſe ſuch Condition be not kept and performed? Whether every Poſſible Condition ought to be obſerved preciſely? Whether and in what caſes the Legatary may obtain his Legacy before the accompliſhment of the Condition? Whether it be ſufficient that the Condition was once performed, though it doth not continue ſo? Within what time the Condition may or ought to be performed when no certain Time is limited by the Teſtator? In what ſenſe that common Condition [if he dye without Iſſue] is to be underſtood, and when it may be ſaid to be accompliſhed? Whether the Natural as well as the Lawful Iſſue be to be underſtood by them words? Whether that Condition be accompliſhed if he die leaving his Wife with Child which is afterwards born? Or whether in caſe he hath a Child, but dyes before his Father? Whether there be any Difference, and what that Difference is, betwixt this Condition [If he dye without Iſſue,] and This [If he have no Iſsue?] What the Law is in caſe the Iſſue be born dead? Or dyeth as it is born? What courſe to be obſerved in Legacies, where more then one are born at the ſame birth? Whether the Condition of payment to be made to an Infant be performed by Payment made to his Guardian? Whether he in whoſe favour a Condition is made may not conſent to other means of performing the Condition then was preſcribed by the Teſtator? Whether a preciſe performance of a Condition be not underſtood only of Voluntary Conditions, and not of Neceſſary Conditions? Whether ſuch preciſe performance of a Condition be Requiſite when the Legacy is in favour of the Teſtators Children, or ad pios uſus? Whether the Condition may be performed by another perſon then him that is Nominated in the Condition? Whether caſual Conditions may in any caſe be reputed as accompliſhed before the Event? In what caſes caſual Conditions be reputed as accompliſhed, albeit the ſame be not ſo indeed? Whether a Condition doth prejudice the Executor or Legatary when the Teſtator himſelf doth hinder the performance thereof? Whether a Condition doth prejudice a Legatary when the performance thereof is obſtructed by a Third Perſon? Whether the accompliſhment duplicate page duplicate page of a Condition hindred by caſual means ſhall prejudice the Legatary? In what caſes an Affirmitive Condition doth imply a Negative? What the Law requires of the Legatary, as to Bond or the like, when the Condition is not performable during Life? Whether a Negative Condition is ſaid to be accompliſhed when it cannot be infringed? What if the Party be already Married, to whom any thing is Bequeathed Conditionally, [if he ſhall Marry?] Whether the Condition ſhall be reputed as accompliſhed, if the Legatary were once willing, and afterwards becomes unwilling? What are captious Conditions, and how they ſhall not prejudice the Legatary? Whether a Legacy given with a Condition dependent on the will of another then the Teſtator himſelf, be not a void Bequeſt? What the difference in Law is between the Teſtators referring his will to the Abſolute, and to the Limited will of another? Whether he to whom the Teſtator commits the Diſpoſition of all his Goods be not Executor or Univerſal Legatary? How far the Conditions of Legacies or Executorſhip againſt the Liberty of Marriage be Lawful? How far as to Legacies or Executorſhips the Condition of Marrying with the Arbitrament, Will, or Conſent of another is Lawfull? Whether the Condition of forbidding the Alienation of the Legacy is Lawful? In what caſes the Legatary may Alienate the Legacy, notwithſtanding ſuch prohibitory Condition of Alienation? Within what Time the Condition may and ought to be performed by the Legatary when no certain Time is ſet or Limited by the Teſtator? Whether the Condition may be performed during the Time betwixt the making of the Teſtament and the death of the Teſtator? Whether a Legatary muſt not perform an Arbitrary Condition as ſoon as he can? Whether any Time doth prejudice a Legatary whilſt he is ignorant of the Condition? Whether a caſual Condition may not be accompliſhed at any time? With innumerable other varieties of Conditions well known to ſuch as are acquainted with the Law; whereby you may now by this time readily perceive it was a Truth which was formerly hinted. That to Treat of this Subject of Conditions as to Executorſhip and Legacies, and to do it diſtinctly, though not in the Amplitude of their due Dimenſions, but by way only of a compendious Contraction, would of it ſelf require a very Voluminous Tract; Being therefore bound up to the Laws of an Abridgment, we may not Sail into the Vaſt Ocean of the Laws to fetch you home any Tranſmarine Reſolutions to the ſaid Queſtions, but ſhall only refer you to our own Countreyman, in this Profeſſion the Learned Mr. Swinborne, and others who of this Subject have written very Copiouſly, yet Succinctly.