[Finlay et al. vs. King's Lessee.] ed from the whole will. 1 Doug. 342. The testator intended that his heir or heirs should not have his plantations. To take the estate from the heir, during the life of Mrs King, requires a necessary implication; and such an implication is here. 4 Bac. Abr. 282. 2 Vent. 571. 1 Dall. 227. The devise to Thomas King, the presumptive heir at the time of making the will, of a house and a few acres of land for life, remainder to Mrs King during her life, is inconsistent with his taking the large real estate of William King, and a necessary implication that he is not to take it, during Mrs King's life. The counsel on the other side has said in argument, that Thomas King, the father of the testator, was an alien. That is going out of the record, by which it appears that the testator considered his father capable to take a freehold, and that he was in fact a proprietor of real estate. It has never been shown that Thomas King was an alien; and, from information, it is probable that he never was an alien in the United States. Either the heir or the devisee must take; for the testator cannot put the freehold in abeyance. 1 Doug. 231. If the condition of marriage is subsequent, which we deem proven, there is no reason for postponing the commencement of the estate of William King the devisee, in possession, of the real estate not devised for the life of Mrs King. If the estate is given on a condition subsequent, why may not the estate, except what is devised to Mrs King and others, vest in possession immediately on the testator's death? To what end suspend it when it is not to wait for the performance of the condition? These words, "at the death of my wife," were inserted in consideration of the devise of e use of the saltworks during her life, the devise of dower, and the devise of certain portions of the real estate, during her life. These words have their effect; because a large part of the estate, far the most valuable, cannot, consistently with other clauses in the will, come to the possession of the devisee, William King, until Mrs King's death. Suppose that a testator had made his will thus: to A. my [Finlay et al. vs. King's Lessee.] : father, who is seventy years old, during his life, one-threehundredth part of my real estate; to B. my wife, who is twenty years old, during her life, one half of my real estate, including the part devised to my father, after his death; to C. my nephew, the whole of my real estate at the death of my wife; the testator dies, the father, who is heir, surviving. Would a court give to A. the father, and his heirs, half the real estate, during the life of B. the widow, when the testator clearly intended and expressed that A. should have only one three-hundredth part for his own life? Certainly they would not. In such a case, the words, "at the death of my wife," would be applicable to the moiety devised to her for life. The death of the father before the testator, in this case, cannot change the meaning of the will. All the real estate could not vest in possession of William King, the devisee, at the death of the testator: but all is devised to him: therefore the words, "at the death of my wife," are used; as then, and not till then, all might vest in possession. Should the testator be regarded as having died intestate, as to his lands not devised to Mrs King, until her decease, they would have descended to his brothers and sisters, his father having died. before him; and it is apparent that he did not intend that those brothers and sisters should take his real estate, during the life of Mrs King. . To James King he gives the use of one third part of the saltworks during the life of Mrs King, say $10,000 annually; to Samuel King, an annuity of $150; and to Hannah Allen, a legacy of $1000; thus giving to James King sixty-six times as much as to Samuel King, and more than two hundred times as much as to Hannah Allen: but if his plantations are distributed during the life of Mrs King, then Samuel King and Hannah Allen will have a part equal to that of James King, although they stood so unequally in the affections of the testator as objects of his bounty. It seems manifest that he did not intend that his great estate in lands should pass to, and be distributed among his brothers and sisters, during the life of Mrs King. Unless the will is construed to give to William King, im [Finlay et al. vs. King's Lessee.] mediately, the lands, other than those devised during Mrs King's life, the marriage intended might have taken place within fifteen years from the testator's death, and the issue of the favourite nephew, the desired family of Kings, might have been without a maintenance for the period of forty years; as Mrs King, who was twenty-four years old at the death of the testator, might have so long lived; while one hundred plantations and thirty or forty town lots would be in the possession of the heirs. This cannot have been the intention of the testator. 2 P. Williams, 627. It may be proper to notice the very imperfect manner in which the testator expressed himself in this will, for want of legal knowledge. He devises the use of his capital; that has been construed to be a bequest of his capital. He requests that his executors and his wife will carry on his saltworks business in copartnership; that has been construed a devise of the saltworks. He devises $10,000 to two of his nieces; that has been construed a devise of $10,000 to each of them. To give effect to the intention of this testator, requires the liberal aid of the courts. . 3. What is the nature of the estate of William King, the devisee, when vested? If the condition is subsequent, the devisee has his life time to perform it, before he forfeits; even where performance is impossible. And if it becomes impossible, without his default, or never becomes possible, we contend that he will never forfeit. Had Mrs King died within a year after the death of the testator, the whole real estate would have vested in William King, in possession, although the daughter of William Trigg was unborn. The devisee would have his life. time to perform the condition, even if William Trigg had ten daughters. Even if William King had stood by and seen those ten daughters all married, he would have time to perform; for he might marry one of them when a widow. Should he even marry another woman, he would still have time to perform; for he might when a widower perform the condition. An impossible condition is the same as none. and there can be no breach. It is impossible VOL. III.-2 W It is void, that there [Finlay et al. us. King's Lessee.] should be such a marriage as the testator desired: therefore the devisee takes and holds as if there was marriage; or rather, as if there was no condition, for the condition is void. The counsel on the other side contended that this was not an impossible condition; for that it was probable the marriage might be had. The law says nothing of probable conditions. And it is asked, what is more impossible than to marry a person who never came, and never can come, into. existence? If it is impossible to do a thing, no one can be under any obligation to do it. The condition was not possible when made, and never became possible; and being subsequent, the estate is absolute. If the condition had been possible when the will was made, and afterwards became impossible by the act of God, without the default of the devisee, the estate would also be absolute. 2 P. Wms, 628. Com. Dig. Condition, D. 1, pl. 4. Pow. Con. 265. Had a daughter been born to William Trigg, and had the marriage taken place, William King would have taken the profits, without having issue. There is no devise over, in the event of not having issue. The application of the profits to the use of such issue, would have been another impossible condition; therefore he would keep the profits, and hold the legal estate discharged from the trust, the performance of which was impossible. If the condition is subsequent and impossible, and the application of the profits, as directed, also impossible; then the estate must be held discharged of the condition, and exonerated from a trust which cannot be performed. When the impossible condition is stricken out of the will, the trust to arise thereon goes out with it. The devise is to William King, subject to an impossible condition, an impossible executory trust, and a void limitation; yet the legal estate remains in him. He is devisee in fee, on a void condition. The whole condition being void, every part of it is void. We contend that William King, the devisee, takes beneficially, and keeps the profits. The devise is unquestionably a beneficial one; for, in one event, that of marriage and having no issue, the estate is not deyised over, and the profits [Finlay et al. vs. King's Lessee.] would belong to the devisee. Why should the profits be taken from the devisee? There are none who seem better entitled under the will. This is the only devise made by the testator to his favourite nephew, the eldest son of his only brother of the full blood, and the heir of his name. The testator was obviously attached to the principle of primogeniture, and paid great regard to names. To two of his nieces he gave $10,000 each, because they were named after his grandmother. Did he mean to give nothing to the nephew who bore his own name? He cannot have intended that his favourite nephew should be a mere trustee for his, the testator's heirs; in any event, entitled only to commissions on his receipts. Did he mean to devise to his favourite nephew trouble, and nothing more, on condition that he would marry the daughter of his favourite brother-in-law and niece? A consideration was required of him: marriage. He is therefore entitled to the estate on the condition imposed, if performance shall be possible, and on no other condition; to take the profits for his children if such there be, and if not, for his own use. This consideration shows that, had the marriage taken effect, the devisee could not have been regarded as a mere trustee. Here is also the consideration of nearness of blood, which is often decisive of the question, whether a devisee takes beneficially, or as a mere trustee. See Loyd vs. Spillet, 2 Atk. 150, and Hobart vs. The Countess of Suffolk, 2 Vern. 645. Will the estate determine on the death of William King the devisee, in consequence of his not performing the condition? The words of the devise convey a fee simple; and he takes a fee simple, if he takes at all. What would be the construction of the will, should the void clause be stricken out? That it conveys an absolute estate in fee simple. Strike out the void clause, and the devise will read, case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King." "In The failure of issue is not made a condition on which the |