case elton versus elton may SC Ves will SC sir Abraham Elton by his will give  to his granddaughter a e the daughter of his son I e pound oh be at her own  disposal in case she marry with the consent of I e and his wife and in case of  their death before that time then with the consent of their trustee and not  otherwise a e die at and unmarried I e as the representative of a e be not  entitle to the pound for the vest of the legacy relate to the event of the  marriage as that never happen the legacy do not vest so Garbut v Hilton atk  Atkins v hiccock atk pullen v ready atk Hemmings v munckley bro Charles Rep  knap v Noah Amb vide Harvey v Aston atk old sir Abraham Elton by his will  recite that he have a right and power to dispose of the sum of pound be part  of the money settle on his late decease daughter Elizabeth the late wife of  Peter day Esq and which sum be now in his hand say now I do hereby give and  bequeathe the same and all my right and interest therein unto my grandaughter  Anna Elton the daughter of my son Jacob Elton to be at her own disposal  pursuant to the request of my say late decease daughter Elizabeth day in case  she marry with t consent and approbation of my say son Jacob Elton and his  wife and in case of their death before that time then with the consent and  approbation of their trustee and not otherwise in the grandaughter die at the  age of and unmarried Jacob Elton the father of the infant bring his bill for  the pound as her representative insist it be a vest legacy the principal  defendant be the assignee under the commission of bankruptcy against sir  Abraham Elton the old son of the testator who claim the pound in his right he  be the residuary legatee of dame mary Elton his mother who be atkins the  residuary legatee of old sir Abraham Elton and insist that the grandaughter  die under age and unmarried the legacy never vest and consequent be lapse fall  into the residuum of old sir Abraham Elton personal estate Mr attorney general  counsel for the plaintiff say that this be to be consider as a condition  subsequent and therefore the marriage not happen by the act of God the legacy  be come absolute the way of judge of condition precedent and subsequent be not  to determine it one way or another by the particular word but by the whole  tenor and for this purpose he mention the case of Peyton versus berry wms one  devise the residue of his personal estate to I S provide she marry with the  consent of his two executor on the death of one the condition be a subsequent  one be become impossible and she may marry without the consent of the survivor  the case the testator have in view be not Anna Elton marriage in general but  to prevent her marry improvident and the word not otherwise do not mean if she  do not marry at all she shall not have it but if she marry otherwise than with  the consent and approbation of Jacob Elton and his wife c that the testator  consider the word as in terror and vest in the legatee as much as if the  condition have not be insert at all he cite likewise the case of ware versus  trigg Ves SC cite in the court of exchequer easter term I give to my daughter  four hundred pound if she marry with the consent of her mother but if she  marry without the consent of her mother then to fall into the residuum of my  personal estate the daughter do not marry at all but die after twentyone and  by her will give the four hundred pound to the plaintiff who bring his bill  for it and the court hold it to be a vest legacy and well dispose of by t will  though the daughter die unmarried Mr Noel of the same side say that the  testator object be not to defeat the legacy to his grandaughter but the effect  of that paternal care he have for her that if she marry at all it shall be  with the approbation of her father and mother Mr Browning of the same side  cite Semphill versus Bayley Prec in Chan Mr solicitor general for the  defendant allow it be a clear settle point that a restraint of marriage  whether a condition atkins precedent or subsequent if it be atkins er p a  legacy of personal estate be a void condition unless give over on the  condition not be perform it be give at a time when both the parent be live who  be bind to maintain her and take away all the implication that may otherwise  arise but the whole will turn upon this when be the time of payment I give to  my grandaughter Anna Elton to be at her own disposal I ask when if the  testator have fix no time immediate but then the will say in case she marry  with the consent and approbation of my son Jacob Elton and his wife c show he  do not intend it shall her own disposal unless she marry and it be reasonable  to suppose this his intention because the testator and Elizabeth day the aunt  of Anna Elton know that her father will provide for her and intend this only  as a addition if there shall be a marriage they die uncertain creating in  testament compose be the rule of civil law and though they do not hold a  marriage with consent to be necessary yet they say where it be give on  condition of marriage there must be a marriage dig lib title de creating  indication c law id law si ita bequest be cum to veil oneself si bride to be  hoc testator scisset one marriage to be to look out for nihilque intereri  utrum live testator a post death she iterum to veil oneself brown of the same  side cite the case of Garbut versus Hilton atk S c November before Mr Verney  at the roll a give a legacy of pound to b provide she marry with the consent  of her father and mother and the survivor of they b bring her bill for the  legacy while she be single and Mr Verney hold it do not vest till her marriage  and dismiss her bill Mr Wilbraham of the same side say only transpose the word  instead of I give pound to Anna Elton to be at her disposal in case she marry  suppose the testator have say in case Anna Elton marry I give pound to be at  her disposal and there can have be no doubt but there must have be a marriage  to make it vest Lord chancellor the general question be whether it be a vest  legacy in Anna Elton at the time of her death and that will depend on the  construction of the clause in the will and the authority of this court his  lordship then state the devise to Anna Elton atkins as to the clause in a  former part of the will in which the testator give pound to Anna Elton his  grandaughter at twentyone or marriage which shall first happen I shall  consider it afterward it have be insist for the plaintiff that the legacy vest  in Anna Elton immediate on the death of the testator and therefore  notwithstanding she be dead unmarried that he as her representative be entitle  to it and that the whole of this be a condition subsequent and her die before  marriage be the act of God it do not therefore defeat the legacy but I deny  this absolute and hold it to be a condition precedent though whether a  condition precedent or subsequent it make no difference but that this be a  condition precedent appear from the word for whether a testator say in case  she marry give I or I give in case she marry it make no difference but in both  case it be annex to the substance of the devise the word to be at her disposal  do not vary the case for whoever give a legacy give it to be at the disposal  of the legatee and those word can be separate from the word I give it be plain  therefore upon the word that it be a condition precedent and dependent upon  the marriage suppose this young lady have immediate on the death of her  grandfather bring a bill here for the legacy the court can not have decree it  for the time be annex to the substance of the legacy and therefore be strong  than the case of atkins versus hiccock I Tr atk which be annex to the payment  only and be call by the civil law execution of the legacy and in this respect  I govern myself a good deal by the case of Garbut versus Hilton at the roll  atk S c it have be say by Mr attorney general it be very improbable the  grandfather will make such a disposition as may keep it possible in suspense  during the whole life of the grandaughter can she have have the interest if  she have bring her bill certain she can not for where interest be not give by  a grandfather she be not entitle to it otherwise where a legacy be give by a  father because if he do not provide maintenance the court will give interest  in lieu of it though the legacy be Payable at a future day atkins er p the  civil law do not make any difference whether the condition be precedent or  subsequent for there any restraint of marriage be void but then this court and  the civil law do both require the factum of the marriage shall be perform  atkins whether it be take in the sense of a condition or in the sense and  meaning of a time of payment it be the same thing for the rule be die  uncertain in testament creating compose when it be give to be pay at twentyone  the time be certain and know to a hour and therefore hold to be transmissible  but where the time be uncertain it have be hold not to vest till the  contingency happen because it can be ascertain whether it will ever happen or  no I do agree there be a ambiguity in the word not otherwise whether they  relate to the word immediate antecedent or to the whole clause it have be  contend for by the plaintiff that they relate only to the word immediate  antecedent but I do not know what warrant there be to confine these word only  to a part of the sentence but they must run through the whole and mean that he  do not give it unless there shall a marriage in the case of atkins versus  hiccock I determine upon the same foundation and the same principle I go upon  in the present though as I say before that be a strong case for there in the  gift of the legacy the time be not annex to the substance of the legacy but to  the payment only and yet the ground of my determination be that the vest of  the legacy relate to the event of the marriage and as that never happen the  legacy do not vest there it be a legacy give by the father as a portion but in  the case of a grandfather he be not bind by that duty of nature to provide for  a grandchild especial in this case where a father be live at the time of the  will and after the death of the testator in the case of a devise by a  grandfather to a grandchild of a copyhold estate where there be no surrender  the court will not supply it against a heir at law and so hold in the case of  kettle versus townsend salk Prec Charles SC Goodwin v Goodwin Ves Tudor v  anson Ves I be of opinion from the whole texture of this will that the legal  construction agree with the intention of the testator the will speak that the  grandfather mean this legacy as a addition to her fortune in case she marry  for in a former clause of the will he have give her another legacy of pound  either at twentyone or marriage which shall first happen so that if she have  live to be twentyone and have die unmarried yet she will have be entitle to  something it may have be a question whether the word to be at her atkins own  disposal be not give it to her separate use but d they be not it will have  make no difference because her relation may before the marriage have secure it  for her separate use the case of atkins versus hiccock be in point and whether  right or no have not be appeal from and I shall not be incline to deviate from  my own opinion which be give upon mature consideration a testator devise to e  h pound to be pay her at the time of marriage or within three month after  provide she marry with the approbation of his two son e h die after but  without be marry bill bring by her representative for the legacy per Lord  Hardwicke in all case where the condition of marry be annex it be necessary  there shall be a marriage to vest the legacy atkins versus hiccock Tr vacation  t atk bill dismiss Reg lib a fol