Burdis v. Burdis

• Decision Date: 16 June 1898
• Citation: 96 Va. 81,30 S.E. 462
• Parties: BURDIS. v. BURDIS.
• Court: Virginia Supreme Court

30 S.E. 462

96 Va. 81

BURDIS.

v.BURDIS.

Supreme Court of Appeals of Virginia.

June 16, 1898.

Wills—Construction—Devise —Condition Subsequent.

A clause in a testator's will devised to his wife for life his homestead and five acres of land, with the expressed understanding that his son would support and take care of her, and at her death the homestead and land were to return to his son "as compensation therefor." The will also required his son to support and provide for his two sisters while they were single. The testator's wife died more than a year before he did. and he made no change in his will. Held, that the condition on which the homestead and five acres vested in the son was a condition subsequent, and he acquired an absolute title.

Appeal from circuit court, Stafford county.

Suit between Burdis and Burdis to construe the will of Joseph Burdis. Decree construing the will affirmed.

Little & Little, for appellant.

RIELY, J. Joseph Burdis devised to his wife for her life his homestead and five acres of land, with the understanding that his son, Albert, would support and take care of her, and at her death the homestead and land should return to Albert as compensation therefor.

The wife of the testator died in his lifetime, and the matter to be determined is whether or not his son, Albert, is entitled, under these circumstances, to the homestead and land. This depends upon the question whether the condition upon which he was to have the property was a condition precedent to its vesting In him, or was a condition subsequent, the nonperformance of which would devest the estate given to him by the will.

The law is clear that where a condition precedent is annexed to a devise of real estate, and its performance is or becomes impossible, the devise fails, although there be no default or laches on the part of the devisee himself (2 Jarm. Wills, 10; 4 Kent, Comm. 125; 2 Minor, Inst. 228); but if the condition is subsequent, and its performance becomes impossible, the rule is different. In that case the estate will not be defeated or forfeited, but the devisee will hold the property by an absolute title, as if no condition had been annexed to the devise. 2 Jarm. Wills, 11; 4 Kent, Comm. 130; Ridgway v. Woodhouse, 7 Beav. 437; Collett v. Collett, 35 Beav. 312; McLachlan v. Mc-Lachlan, 9 Paige, 534; Martin v. Ballou, 13 Barb. 119; Livingston v. Gordon, 84 N. Y. 140; Merrill v. Emery, 10 Pick. 507; Parker v. Parker, 123 Mass. 584; Morse v. Hayden, 82 Me. 227, 19 Atl. 443.

There are no technical words to distinguish between conditions precedent and conditions subsequent. The distinction is matter of construction. The same words may indifferently make either, according to the intent of the person who creates the condition. If the language of the particular clause or of the whole will shows that the act on which the estate depends must be performed before the estate can vest, the condition is precedent, and unless It be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, and this can be collected from the whole will, the condition is subsequent. Pinlay v. King, 3 Pet. 346; Martin v. Ballou, 13 Barb. 119; 4 Kent, Comm. 124.

The words, "with the understanding that my son, Albert, will support and take care of her, " in the will under construction, which are relied upon as constituting a condition of the gift to the son, are not annexed thereto, but are connected with the devise to the testator's wife. The testator owned, In addition to what he called the "homestead, " a tract of land of 107 acres, and the words which are coupled with the devise to the wife were manifestly assigned as a reason for the devise to her of the homestead and the five acres around it, and not as a condition of the gift to her; while the words, "as compesation therefor, " which are attached to the devise to the son, do not constitute so much a condition of the gift to him as show the motive for it.

But if the language referred to be in legal effect a condition of the devise to the son, there is nothing in the will that makes the support and care of the wife of the testator by their son,...