real property have only such application to interests in personal property as is in this Division of the Code expressly provided.

future

703. No future interest in property is recognized What by the law, except such as is defined in this Division interests

of the Code.

are

recognized.

ARTICLE II.

CONDITIONS OF OWNERSHIP.

SECTION 707. Fixing the time of enjoyment.
708. Conditions.

709. Certain conditions precedent void.
710. Conditions restraining marriage void.
711. Conditions restraining alienation void.

707. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition.

NOTE.-For conditions of ownership or estates on condition generally see Greenlf. Cruis., Tit. 13, Chs. 1 and 2; 2 Shars. Blackst. Comm., Ch. 10; Kent's Comm., Sec. 57; 3 Coke Litt., pp. 201a-237a; Shep. Touchst., Ch. 6; Bouv. Law Dict., Tit. "Condition." As to what words create a condition, see Greenlf. Cruis. Real Prop., Tit. 32, Ch. 25, Secs. 2-11, and notes; also, 2 Shars. Blackst. Comm., p. 152, note 1. The word "if" generally creates a condition, but sometimes only a limitation.-Co. Litt., pp. 204a-214b; Shep. Touchst., p. 123. Conditions which go to defeat an estate are strictly construed, while those which go to vest an estate are liberally construed.-Crabb. Real Prop., Sec. 2130; 4 Gray Mass., p. 140. When there is a condition subsequent, and performance is rendered impossible by act of covenantee or party in whose favor it is to be performed, it becomes void.-United States vs. Arredondo, 6 Pet., pp. 691, 745; Whitney vs. Spencer, 4 Cowen, p. 39. If the condition is impossible at time of its creation (as to pay money at a day already past), it is void; but if it is a mortgage, remedy in equity is preserved.-Hughes vs. Edwards, 9 Wheat., pp. 489-493. Equity will not allow any

Fixing the enjoyment.

time of

.

Conditions.

one to take advantage of a bequest over, who has himself been instrumental in causing the breach of a condition.-Garrett vs. Pretty,stated from Reg. Lib. in 3 Meriv, p. 120; Clarke vs. Parker, 19 Ves., p. 12; 2 Ves. and Bea., p. 225. But where a condition is annexed by will to a devise or bequest, and no one is bound to give notice of such condition, the parties must themselves take notice of and perform the condition, in order to avoid forfeiture.-2 Atk., p. 619; 1 Mod., p. 314; 3 Meriv., p. 9; Show. P. C., p. 50. Infancy will in such case be no excuse for non-performance of condition.-2 Freem., p. 221; 1 Ventr., p. 200. But for instance of modification of this rule, see Burleton vs. Homfray, Ambl., p. 259. See further this Code, "Covenants," "Mortgages," and notes upon those subjects, and see note to Sec. 708, post.

708. Conditions are precedent or subsequent. The former fix the beginning, the latter the ending, of the right.

NOTE.-Whether conditions are precedent or subsequent depends on the intent of the parties, to be collected from the nature of the case (Kingston vs. Preston, 1 Doug., pp. 689-691; 1 Saund., p. 320, note by Sgt. Williams; Tompkins vs. Elliot, 5 Wend., p. 497; Barruso vs. Madan, 2 Johns., p. 148), and does not depend upon the precise form of words used, nor upon the position of the words in the instrument.7 Gill. and I. Md., pp. 227-240; 2 Dall. Penn., p. 317; 20 Barb. N. Y., p. 425; 6 Me., p. 106; id., p. 318; 1 Va. Cas., p. 138; 6 Litt. Ky., p. 151; Spenc. N. J., p. 435; 1 La. Ann., p. 424; 1 Wisc., p. 527. For conditions precedent and subsequent see 1 Cal., p. 337; 2 Cal., p. 138; id., 163; 26 Cal., p. 11; 30 Cal., p. 325; 10 Cal., p. 589; 13 Cal., p. 458; 10 Cal., p. 95; id., p. 450; 6 Cal., p. 297; id., p. 24; 17 Cal., p. 275; 16 Cal., p. 189; 24 Cal., p. 632; 30 Cal., p. 280; 15 Cal., p. 630; 34 Cal., p. 138; 1 Doug. Mich. R., p. 225; id., p. 527; 3 Pike, p. 222; 4 Rand., p. 352; 9 Mass., p. 78; 15 Mass., p. 500; 2 Pick., p. 292; 3 Pet., pp. 346-374; 1 Ham., p. 14; 10 Johns., p. 203; 7 Johns., p. 249; 15 Wend., p. 564; 5 Pick., p. 528; 10 Pick., p. 309; 6 Greenl., p. 106; 2 Fairf., p. 318; Platt on Covenants, Ch. 2, Sec. 5; see also Greenlf. Cruis. Real Prop., Tit. 13, Ch. 1, Sec. 6, and note. And for mutual covenants, see, further, 2 Johns., p. 207; 10 Johns., p. 266; 16 Johns., p. 267; 17 Johns., p. 293; 5 Pick., p. 395; 2 Metc., p. 500; 4 Conn. R., p. 3; 3 Rand., p. 68. See note to Sec. 707, ante.

Compare the last two sections with Sections 1434 to
1442, post.

conditions

void.

709. If a condition precedent requires the per- Certain formance of an act wrong of itself, the instrument precedent containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes. effect and the condition is void.

ат

710.

NOTE.-All the instances of conditions against law are reducible under one of these heads: 1. To do something that is malum in se or malum prohibitum; 2. To omit something that is a duty; 3. To encourage such crimes and omissions.-1 P. Wms., p. 189; Greenlf. Cruis., Tit. 13, Ch. 1, Sec. 19. Compare this with Section 1441, post, and note.

Conditions imposing restraints upon mar- Conditions riage, except upon the marriage of a minor, are void. marriage

NOTE. In the first report of this Code to the Legislature this section read as follows:

"SEC. 710. Conditions imposing restraints upon
marriage, except upon the marriage of a minor, or of
the widow of the person by whom the condition is
imposed, are void; but this does not affect limitations
where the intent was not to forbid marriage, but only
to give the use until marriage."

This was the rule of the common law. The Com-
mission deemed it advisable to modify it. By the com-
mon law a condition restraining a widow from a second
marriage might be held good. The authorities as to
the validity of a condition restraining a widow from
marriage are conflicting. It seems, however, generally
settled by the English authorities, that a condition
imposing such restraint was valid (10 Eng. L. & Eq.,
p. 139); and Justice Story so holds, saying that: "A
condition that a widow shall not marry is not unlawful,
neither is an annuity during widowhood (1 Eq. Juris.,
Sec. 289); but this has been questioned; and in Parsons
vs. Winslow (6 Mass., p. 169), where the legacy was
during widowhood and life, it was held that the lega-
tee took notwithstanding subsequent marriage.-See
Hooper vs. Dundas, 10 Barr., p. 75; 10 Watts, p. 348;
but see 1 Atk., p. 379, 1 Mad., p. 590; 2 Atk., p. 321.
"It is conceded that if an estate be limited to a widow
so long as she remains unmarried, the limitation is
good; but it is said that a condition subsequent to like
effect is void. Where a testator directed his executors

restraining

void.

to pay his wife an annuity for the support of herself and child until his son should become of age, provided she remained his widow so long, and in case she again married, the bequest to cease from the day of such marriage, it was held that the restriction upon her marriage was void, and she was entitled to the annuity until the majority of the son."-Middleton vs. Rice, S. J. C., Pennsylvania; 1 Pa. Law Jour., p. 229, N. S.; Greenlf. Cruise, Real Prop., Tit. 13, Ch. 1, Sec. 66, note. In this case the authorities cited by Justice Story in favor of such restraint were cited and disapproved. Where a married woman lived apart from her husband, and her father bequeathed to her an annuity, to cease if and while she should again live with him, the restriction was held void.-See note to Greenlf. Cruise, above cited.

The Commission, in presenting the above section, have declared that all conditions imposing (any) restraint upon marriage, except upon the marriage of a minor, are void. All such restraints are odious, and the reasons which are to be advanced against restraints upon marriage generally would be equally applicable to restraints upon the marriage of widows. Even a condition in restraint of marriage with some particular person would often have the effect of a virtual prohibition of marriage. A condition that a "child should not marry until fifty years of age, or should not marry any person who was a clergyman, a physician, or a lawyer, or any person except of a particular trade," Mr. Justice Story thinks would be considered a general restraint, and "be deemed a mere evasion or fraud upon the law."-Story Eq. Juris., Sec. 287. Conditions in restraint of marriage of person arrived at years of discretion must, as a general rule, be regarded as unfavorable to the welfare, good order, and general happiness of society.-See 2 Redfield on Wills (edition of 1866), p. 670, and notes. Compare with Section 1676, post, and note.

711. Conditions restraining alienation, when realienation pugnant to the interest created, are void.

Conditions restraining void.

NOTE.-De Peyster vs. Michael, 6 N. Y., p. 496. A condition in general restraint of alienation is void (1 Den., N. Y., p. 449; 14 Miss., p. 730; 24 id., p. 203; 6 East., p. 173; 21 Pick., Mass., p. 42), but a restraint of alienation for a limited time may be good.-Coke Litt., p. 223; 2 Serg. & R., Penn., p. 573; 1 Watts, Penn., p. 389; 10 id., p. 325.

ARTICLE III.

RESTRAINTS UPON ALIENATION.

SECTION 715. How long it may be suspended.

716. Future interests void, which suspend power of aliena-
tion.

717. Leases of agricultural land, for over ten years, void.
718. Leases of city lots, for over twenty years, void.

715. The absolute power of alienation cannot be How long it may be suspended, by any limitation or condition whatever, suspended. for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in the single case mentioned in Section 772.

716.

NOTE. This includes a trust of real property.-Coster vs. Lorillard, 14 Wend., pp. 265, 313; Hawley vs. James, 16 id., pp. 121, 173, 174, 208; Kane vs. Gott, 24 id., pp. 641, 662, 667; Hone vs. Van Schaick, 20 Wend., pp. 564, 566; Boynton vs. Hoyt, 1 Den., pp. 53, 58; Beekman vs. Bonsor, 23 N. Y., pp. 298, 316. The words "limitation or condition" are substituted for "estate," so as to include powers. See Hawley vs. James, 16 Wend., pp. 135, 178, 208; Coster vs. Lorlilard, 14 id., 324, 325; Hone vs. Van Schaick, 20 id., pp. 566, 567, 569.

interests suspend

alienation.

Every future interest is void in its creation Future which, by any possibility, may suspend the absolute void, which power of alienation for a longer period than is pre- power of scribed in this Chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed.

NOTE.-Hawley vs. James, 16 Wend., pp. 120, 126, 171, 178, 227; Everitt vs. Everitt, 29 Barb., p. 112; Jennings vs. Jennings, 7 N. Y., pp. 547-549; Amory vs. Lord, 9 id., p. 415; Thompson vs. Carmichael's Exec'rs, 1 Sandf. Ch., p. 395; Arnold vs. Gilbert, 3 id., p. 558.