case roger ACHERLEY vers bowater VERNONThis case be much more full and  satisfactory report in fortescue see SC fort e r with note the nonperformance  of a condition though in its nature subsequent be sufficient to bar the  plaintiff title to whatever he claim upon such condition fort S c in a action  for debt for the plaintiff declare that whereas though Vernon Esq be seize in  fee by will date the that of June devise to his wife out comens er p of the  manor of Shrawley and other land and tenement in the county of Worcester a  annuity or rentcharge of a year for her life clear of all charge except  parliamentary tax in lieu of her jointure and by the same will devise to his  sister Elizabeth Acherley the plaintiff wife a year out of rend of his say  real estate to her own hand for her separate use exclusive of her present or  any future husband and to be make up a year from his wife decease during his  sister life and after a devise of other estate to William Vernon c he devise  all the residue of his real and personal estate his debt legacy and funeral  expense first pay unto his brother Roger Acherley Geo Vernon Geo Wheeler John  bearcroft and Richard Vernon their heir executor and administrator upon trust  and confidence that after the annuity and annual rend before devise to his  wife and sister c pay comens the say trustee shall invest the residue of his  personal estate in the purchase of land c and shall stand seize of all his  real and personal estate during his wife life to the use and purpose in the  say will and after the decease of his wife in case he die without issue then  live shall stand seize of all his manor message land tenement and hereditament  and land to be purchase with the surplus of the personal estate and shall  settle the same to the use of bowater Vernon for ninetynine year if be so long  live with remainder over c and direct that his trustee during his wife life  shall pay the clear surplus of the profit of his real and personal estate  after payment of the say annuity debt c to the say bowater Vernon for so long  time as he shall live and after his decease to his first and other son in tail  male and c and whereas by a codicil date the d of February Thomas Vernon the  testator have purchase other land devise the same to his trustee and executor  subject to the same trust or same use to which he have devise the bulk of his  estate c then revoke that part of the will which appoint Roger Acherley George  and Edward Vernon three of his trustee he desire Frances Keck and John Nichols  to be two of his trustee then say in his codicil accord to the report in  fortescue that he have make a will of the date aforesaid and then say I hereby  ratify and confirm the say will except in the alteration hereafter mention and  I will that the portion to my niece joy daughterof my sister Acherley shall be  make up and then go on but my will be that what I have so give to my sister  and niece be accept by they in lieu and satisfaction of all they or either of  they may claim out of my real or personal estate and upon condition that they  release all right and title c to the executor and trustee of my will above p  infra p and whereas the testator die on the that of February seize c after who  death Roger Acherley and Elizabeth his wife be seize of the say rend devise to  Elizabeth in demesne as of freehold in right of the say Elizabeth by virtue of  the say devise and bowater Vernon enter into the say manor c out of which c  and bath be ever since tenant of the demesne thereof and for nine year and a  half end on the that of February in the lifetime of the say Elizabeth Acherley  and mary Vernon become due to the say Elizabeth for the say yearly rend and be  yet unpay and the say Elizabeth die on the d of may and mary Vernon die on the  that of July whereby and by comens the death of Elizabeth and by force of the  statute a action accrue to the plaintiff her husband to demand the say part of  the say in the second count the plaintiff declare that whereas Thomas Vernon  be seize in fee of the manor of Shrawley c by will date the that of January  devise to Elizabeth the wife of the plaintiff a year to be issue out of his  real estate c for life and die on the that of February after who death the  plaintiff and his wife in right of his wife be seize of the say yearly rend  and bowater Vernon enter into the say manor and have ever since be tenant of  demesne and for nine year and a half rend end on the that of February become  due to the say Elizabeth in her lifetime and in the lifetime of mary Vernon  and then Elizabeth die on the d of may whereby and by force of the statute the  plaintiff become entitle to demand the say other part of the say the three  count be to the same effect on a devise by a codicil date the d of February to  which the defendant plead he owe nothing and on the trial at the sit on the  that of February Geo before chief justice Eyre a verdict be agree to for the  plaintiff on the first count and on the rest for the defendant comens er p and  it be far agree that the plaintiff shall insert in the declaration the  condition of the codicil which devise to joy a and whatever be contain in the  will or codicil which the defendant shall think necessary and if the court be  of opinion for the defendant that the plaintiff shall pay the cost of a  nonsuit sergeant Skinner for the defendant the case principal intend to be  refer to the consideration of the court be this Thomas Vernon devise  rentcharge to his sister the wife of the plaintiff for her life for her  separate use to be issue out of his real estate and devise his real estate to  trustee on trust that the rentcharge be first pay after his debt and legacy  satisfy they shall stand seize during comens his wife life to the use of his  will and to enable they to perform it and direct they during this wife life to  pay the clear surplus of the profit after the say annuity debt legacy c deduct  to the defendant so long as he shall live then to his son c and after the  death of the wife to stand seize and settle the same on the defendant c the  defendant enter on the death of the testator and have ever since receive the  profit as tenant the plaintiff wife die whether the plaintiff can maintain  debt against the defendant for the arrear of this rentcharge during the  coverture by the stat h c S if any in right of his wife have a estate for life  in any rend and the same be unpay in the wife lifetime the husband after her  death shall have debt against the tenant of the demesne who ought to have pay  the same dly it be insist that by the codicil it be say but my will be that  what I have so give to my sister and niece be accept in lieu of all either may  claim out of my real and personal estate and upon condition that they release  all right c to my executor and trustee of my will this clause make the release  a condition precedent and it be agree by the case that the right be not  release that the condition precedent must be show to be perform or nothing  vest appear by the case that be mention roll Abr S pi Com vern sand and this  must be a condition precedent as to the legacy to the niece and shall the same  word make the same condition precedent to the niece and not to the sister  sergeant Eyre contra the word of the codicil must be comens take distributive  vern whether a condition be precedent or subsequent must be collect from the  intent of the testator to be collect from the word of the will win cro  Elizabeth Leon S c a now here the devise of the annuity precede the devise of  the real estate but if the will and codicil be connect together still the  annuity to the testator sister be devise first on condition it be say that the  word make it a condition precedent as to a release from the niece but I submit  that it be subsequent to the niece for it be take notice of that the niece be  under age at this time it be not to be understand that he mean void release to  be make he know that his sister be marry and niece under age and neither the  testator know can then release beside the testator say my will be that the  annuity so give be accept c then add have thus provide for my sister and niece  c which show that he look on the provision make at present before any release  in case it be a subsequent release it be then become impossible by the act of  God by the death of the wife during coverture and consequent nonperformance  can avoid the annuity sergeant Skinner in reply this must be a condition  precedent as it be annex to a annuity which be executory and consequent must  cease if not release afterward in Trin Geo it be argue by sergeant chapel for  the defendant who insist comens first that the annuity be give by the testator  to his sister on a condition precedent which be not aver to be perform comens  er p second if not yet the annuity cease by nonperformance of the condition as  to the first it appear that the a year be not give absolute but upon a  condition and if she have no estate in her the plaintiff as her husband can by  the statute h c maintain a action for the arrear now the word require  something to be do previous the word be in the present tense be accept on  condition she do release not if she shall accept or shall release there be a  difference between a devise of land and of a annuity that be executory   the  intention of the testator must be the rule to construe the word and if the  testator have be ask when she shall have the annuity he will have say when she  release her right No part of the annuity can be pay till the end of six month  for it be Payable halfyearly   light where a condition concern a transitory  act without limit a convenient time it must be do present that be in  convenient time consider the nature of the transaction   now if she take the  annuity and afterward refuse to release she have the annuity though the  testator intend it in lieu and satisfaction of her claim to the estate be a  marry woman will not alter the case for if it do not vest till the act be do  she may have levy a fine   a owe show that do all she can do have be a good  performance lat if she have levy a fine though the husband have dissent it may  possible have be good comens marriage infancy c be no excuse roll Abr vent if  she have execute a release it have show her willingness to do all that she can  though not effectual in pasch on a bill in chancery by mrs Acherley against  the trustee and defendant for this very annuity it be decree that on execute a  fine the arrear shall be pay to her in January Grangier as administrator to  his wife exhibit a bill for the arrear of this annuity but on the that of may  the bill be dismiss by the master of the roll because it do not allege that  they have release sergeant wright contra what have be do in chancery be no  more than that that court will not preclude a remedy at law unless they will  comply with what be reasonable to be do on their part but here be no condition  at all by the will then the word in the codicil be what be so give be accept c  these word suppose that it be give beside the be not to be in lieu of her  right but the a year and then a release be to be execute so the make up to the  niece be not to be in satisfaction of her right nor be she bind to release on  payment of till the be pay then the release can not be require till the whole  benefit of the devise take effect object she shall have do what she can answer  what she can not lawful do she be not bind to do comens but this must be a  condition subsequent he design his sister a immediate and present maintenance  prior to any estate give to other second she be to release to trustee who have  no estate but what be subsequent to she in the case roll Abr S the condition  be hold to be subsequent because to be perform at a day future so in lev  object that there be a difference between a devise of land and a annuity which  be executory but no difference exist but where the condition be executory  three if the condition be subsequent it be become impossible by the act of God  the sister die before the wife in this case I think the devise of a year be  not upon a condition precedent if it have stand upon the word of the will it  be evident it be intend to be give comens er p to her immediate upon his death  for it be to be pay to her halfyearly during her life and exclusive of her  present husband as well as of any future husband and when she survive his wife  it be to be a year then be devise his estate at Hertington in Lincolnshire pay  out of it a year to his trustee during his wife life the better to enable they  to pay the say annuity then he give all the rest of his real and personal  estate after payment of his debt legacy and funeral expense to his trustee c  on trust to pay the annuity before devise to his sister and wife first and  after payment of all debt c to lie out the residue in a purchase c and that  the trustee shall pay the say clear surplus after the say annuity c to the  defendant bowater Vernon comens so that upon the will the annuity to his  sister undoubted vest present without any condition precedent then by his  codicil he first ratify his will except in the alteration aftermentioned and  then make his niece legacy which before be but and then add the proviso insist  on but my will be that what I have so give to my sister and niece be by they  accept and take in lieu of all they may claim out of my real and personal  estate and on condition they release all such right to the executor and  trustee of his will now the word of this proviso do import the bequest to his  wife and niece to be antecedent to what be require to be do by the proviso  that which be require to be do be that the gift be accept in lieu of all they  claim out of his real and personal estate and on condition that they release  such right to his executor and trustee it must be give before it can be accept  and the acceptance must precede the release so that in this case the release  can be prior to the devisees acceptance of it in lieu of all other interest  which they may claim out of the estate second the devise be by the will this  proviso by a codicil annex to the will so that the proviso do not intend to  defeat the will but to add a condition to the devise thereby make and  therefore the word of the codicil be what I have so give which import that the  legacy be already give to which this condition be annex it be object indeed  that with respect to the niece the release must be antecedent but I do not see  any necessity for such construction the legacy of be make up by the codicil no  doubt she will accept the rather than the but then comens she must release all  other right to the estate but such release may be subsequent I see nothing in  the nature of the thing why this shall not be make afterward as well as before  but the legacy give to the niece of by the will be to be pay at the age of  eighteen or at her marriage and this be confirm by the codicil in case she  release her right to the estate but she can not release till the age of  twentyone and consequent her legacy be Payable before she can release the  condition therefore that she shall release must be subsequent to the legacy  devise and if it be subsequent as to the niece the same word will not make a  condition precedent as to the one and subsequent as to the other chief justice  reeve think it a condition subsequent but the judge doubt it be adjourn and  afterward in easter term Geo will chief justice and the whole court incline to  think it a condition precedent but hold that suppose it to be a condition  subsequent yet not be perform the plaintiff be not entitle to the arrear of  the annuity and therefore the verdict be set aside and the plaintiff oblige to  pay the cost of a nonsuit comens er p