Unlawful conditions are void. Conditions in restraint of marriage generally are held void, 13 Mo. 211 ; see 10 Penn. St. 350 ; otherwise of conditions restraining from mar riage to a particular person, or restraining a widow from a second marriage. 10 Eng. L. & Eq. 139 ; 2 Sim. Ch. N. s. 255 ; 6 Watts, Penn. 213; 10 id. 348. A condition in gene ral restraint of alienation is void, 1 Den. N. Y. 449 ; 14 Miss. 730; 24 id. 203 ; 6 East, 173 ; and see 21 Pick. Mass. 42 ; but a con dition restraining alienation for a limited time , may he good. Coke, Litt. 223; 2 Serg. & R. Penn. 573; 1 Watts, Penn. 389 ; 10 id. 325.
I. Where land is devised, there need be no limitation over to make the condition good, 1 Mod. 300 Atk. Ch. 361 ; but where the subject of the devise is personalty with out a limitation over, the condition, if subse quent, is held to be in terrorem merely, and void. 3 Whart. Penn. 575. But if there be a limitation over, a non-compliance with the condition devests the bequest. 1 Eq. Cas. Abr. 112. A limitation over must be to per sons who could not take advantage of a breach. 2 Caines, N. Y. 346; 1 Wend. N. Y. 388 ; 2 Conn. 196. A gift of personalty may not be on condition subsequent at common law, except as here stated. 1 Rolle, Abr. 412. See 21 Mo. 277.
S. Any words suitable to indicate the in tention of the parties may be used in the crea tion of a condition : " On condition" is a common form of commencement.
Formerly, muoh importance was attached to the use of particular and formal words in the creation of a condition. Three phrases are given by the old writers by the use of which a condition was created without words giving a right of re-entry. These were, Sub conditione (On condition), Proviso ita quod (Provided always), Ita quad (So that). Littleton, 331; Sheppard, Touchst. 125.
Amongst the words used to create a condition where a clause of re-entry was added were, Quod ai contingat (If it shall happen), Pro (For), k'i (If ), Causa (On account of); sometimes, and in case of the king's grants, hut not of any other person, ad faciendum or faciendo, eaintentione, ad effectum or ad propositurn. For avoiding a lease for years, such precise words of condition are not required. Coke, Litt. 204 b. In a gift, it is said, may be present a modus, a condition, and a consideration: the words of creation are ut for the modus, si for the condition, and quid for the consideration.
Technical words in a will will not create a condition where it is unreasonable to sup pose that the testator intended to create a technical condition. 7 N. H. 142. The words of condition need be in no particular place in the instrument. 1 Term, 645 ; 6 id. 668.
9. Construction of. Conditions which go to defeat an estate or destroy an act are strictly construed ; while those which go to vest an estate are liberally construed. Crabb, Real Prop. 2130 ; 17 N. Y. 34 ; 4 Gray, Mass. 140; 35 N. H. 445 ; 18 Ill. 43] ; 15 How. 323. The condition of an obligation is said to be the language of the obligee, and for that reason to be construed liberally in favor of the obligor. Coke, Litt. 42 a, 183 a; 2 Parsons, Contracts, 22; Sheppard, Touchst. 375, 376 ; Dy.14 b, 17 a; 1 Johns. N. Y. 267. But wherever an obligation is imposed by a condition, the construction is to be favorable to the obligee. 1 Sumn. C. C. 440.
10. Performance should be complete and effectual. 1 Rolle, Abr. 425. An inconsi derable casual failure to perform is not non performance. 6 Dan. Ky. 44; 17 N. Y. 34. Any one who has an interest in the estate may perform the condition ; but a stranger gets no benefit from performing it. 10 Serg. & R. Penn. 186. Conditions precedent, if annexed to land, are to be strictly per formed, even when affecting marriage. 1 Mod. 300; 1 Atk. Ch. 361. Conditions pre cedent can generally be exactly performed ; and, at any rate, equity will not generally interfere to avoid the consequences of non performance. 3 Ves. Ch. 89 ; 1 Atk. C,h. 361 ; 3 id. 330 ; West, 350 ; 2 Brown, Ch. 431. But in cases of conditions subsequent, equity will interfere where there was even a partial performance, or where there•is only a delay of performance. Crabh, Real Prop. 2160 ; 4 Ind. 628; 26 Me. 525. This is the ground of equitable jurisdiction over mort gages.
Generally, where there is a gift over in case of non-performance, the parties will be held more strictly to a performance than where the estate or gift is to revert to the grantor or his heirs.
11. Where conditions are liberally con strued, a strict performance is also required; and it may be said, in the same way, that a non-exact performance is alloWed where there is a strict construction of the condition.