The opinion of the Court was delivered by
Rogers, J.
The intention of the testator, though inartificially expressed, cannot be mistaken. He intended that some one of his own blood should inherit the property; and as it is probable he was ignorant of the state of his family in Ireland, to effectuate this intention he devises' the property in fee simple to the one of his brothers’ or sisters’ children who should first come from Ireland within six years after the notice of the devise. He enjoins the duty of giving this notice on his widow, who is his executrix and principal devisee; directs the notice to be in writing; prescribes the nature of it; and points out the persons to whom it shall be given. His design appears to have been, that those whom he intended to benefit should be fully informed of the nature and conditions of the devise, that they [500]*500might determine with a knowledge of all the facts whether they would avail themselves of his bounty, by complying with the conditions on which alone the estate vests. The legal effect of the will is that of an executory devise to the person who fell within the description in the will, and who first complied with the will of the testator by taking possession of the estate. The devise to the plaintiffs is •only on failure of the condition annexed to the preceding estate, which is an executory or contingent limitation. If however the preceding limitation, or contingent estate, never should arise or take effect, the remainder over will nevertheless take effect, the first estate being considered only as a preceding limitation, and not a preceding condition to give effect to the subsequent limitation. Frame on Rem. 390.
Thus in the case of a devise to trustees for eleven years, remainder to the sons of B successively in tail, provided that they should take the testator’s surname, and if not and they should die without issue, remainder to the first son of C ; and though the devise to the sons of B failed, yet the remainder to the son of C took effect, and the limitation to the sons of B was not held to be a condition precedent to its taking effect. It is also a rule that wherever there is an executory devise of real estate, and the freehold is not in the meantime disposed of, the freehold and inheritance descend to the testator’s heirs at law. Fearne 511. As where a testator gave 550 pounds to his daughter, and devised his lands for a term of ninety-nine years in trust; that in case his wife should within five years pay off the 550 pounds, then he gave the lands to his wife for life, and after her death to his son H, and his heirs male and female, and for want of such issue to him and his heirs for ever, and the same term to wait on the same inheritance. The wife did not pay the money and the estate was sold under a decree upon a bill filed against H. After-wards a bill was filed against the devisee of the purchaser by the son of H, as heir in tail for the reversion expectant on the term of ninety-nine years; there having been no fine levied to the purchaser by the son to bar the estate tail, and said person having notice of Jhe title. Lord Hardwicke held, that this was a conditional limitation in the wife for life, taking place as an executory devise (for that it could not be a contingent remainder for want of a freehold to support it), and that H took an estate tail with remainder to her in fee. And though in this case the estate for life in the wife was a preceding executory limitation, which never took effect because she did not pay the money and perform the condition on which it was to arise, yet the estate tail to H was well limited, and took effect expectant on the term of ninety-nine years; and this being an executory devise, the freehold descended to H as heir at law to the testator till the four years elapsed, or the wife had performed the condition. These authorities show two things: first, that this is an executory devise; and second, that no disposition being made of the freehold, it descends to the heirs at law until the condition be complied with. [501]*501As the title descended to the heirs at law, the plaintiffs cannot recover unless they can show a performance of the condition, on which alone any title vests in them under the contingent limitation. The first limitation is a condition precedent, and makes the subsequent devise contingent upon the event of the performance of the directions of the will, and a right, on refusal of the intended devisees to avail themselves of the provisions of the will within the time prescribed after receiving the necessary notice. But until notice, such as is prescribed, be given, the six years do not begin to run. They are to have six years from that time to determine whether they will accept the devise in the only way it can be done, by a compliance with the terms imposed by the testator. Until this be done the title which descends to the heir cannot be divested. The condition precedent not being performed, no title can arise to the plaintiff. But the counsel of the plaintiffs allege that the conditions annexed to the devise have been substantially performed by a notice such as the will requires, and a failure on the part of the heirs to take possession of the estate. If this be so, the plaintiffs are entitled to recover. Judge Henry testifies, that he wrote a letter, which, I understand, was directed to persons named by the testator in 1825. It is his impression that there was something stated in the letter about a given period in which they were to come in (the brothers’ or sisters’ children), but he cannot recollect whether the will was before him when he wrote the letter. James Wilson says, that after Judge Henry had written the letter he put it in the postoffice and paid the postage to New York. That it was in the fall of 1825, of which he made a memorandum about a year after. He does not recollect the words of the letter, but says that the .substance of it (to use his own language) was about the piece of land being left to the heirs of Robert Irwin. The witness further states that it was the neglect of the widow that notice was not given until 1825.
This testimony was objected to; but it was admitted by the court, who instructed the jury, that if-they believed that the heirs had notice the plaintiffs were entitled to recover.
It is very plain that there has been great negligence, if not something worse, in the manner in which this business has been conducted. The reason may be easily imagined, when we recollect that on a failure to comply with the conditions imposed by the will, the property was limited over to the children and grandchildren of the widow by a former husband. The testator died in 1813. Peace was concluded in February 1815; but there is not even an attempt to give notice until 1825, a period of ten years. In the meantime she keeps possession until 1817, when she conveys the whole two hundred acres devised in the will to her son James Wilson. These facts require no comment. I take no exception to sending the letter by the post, as it is probable that it was not within the contemplation of the testator that his estate should incur the expense of a special messenger, and because that mode of conveyance may have been ag [502]*502safe, and the letter as likely to reach its destination as if sent by a private hand. But, conceding all this, I cannot agree that the title of the heirs can be defeated by such testimony as this. It would be a sanction to a fraud, which I am inclined to believe has been attempted here.
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The opinion of the Court was delivered by
Rogers, J.
The intention of the testator, though inartificially expressed, cannot be mistaken. He intended that some one of his own blood should inherit the property; and as it is probable he was ignorant of the state of his family in Ireland, to effectuate this intention he devises' the property in fee simple to the one of his brothers’ or sisters’ children who should first come from Ireland within six years after the notice of the devise. He enjoins the duty of giving this notice on his widow, who is his executrix and principal devisee; directs the notice to be in writing; prescribes the nature of it; and points out the persons to whom it shall be given. His design appears to have been, that those whom he intended to benefit should be fully informed of the nature and conditions of the devise, that they [500]*500might determine with a knowledge of all the facts whether they would avail themselves of his bounty, by complying with the conditions on which alone the estate vests. The legal effect of the will is that of an executory devise to the person who fell within the description in the will, and who first complied with the will of the testator by taking possession of the estate. The devise to the plaintiffs is •only on failure of the condition annexed to the preceding estate, which is an executory or contingent limitation. If however the preceding limitation, or contingent estate, never should arise or take effect, the remainder over will nevertheless take effect, the first estate being considered only as a preceding limitation, and not a preceding condition to give effect to the subsequent limitation. Frame on Rem. 390.
Thus in the case of a devise to trustees for eleven years, remainder to the sons of B successively in tail, provided that they should take the testator’s surname, and if not and they should die without issue, remainder to the first son of C ; and though the devise to the sons of B failed, yet the remainder to the son of C took effect, and the limitation to the sons of B was not held to be a condition precedent to its taking effect. It is also a rule that wherever there is an executory devise of real estate, and the freehold is not in the meantime disposed of, the freehold and inheritance descend to the testator’s heirs at law. Fearne 511. As where a testator gave 550 pounds to his daughter, and devised his lands for a term of ninety-nine years in trust; that in case his wife should within five years pay off the 550 pounds, then he gave the lands to his wife for life, and after her death to his son H, and his heirs male and female, and for want of such issue to him and his heirs for ever, and the same term to wait on the same inheritance. The wife did not pay the money and the estate was sold under a decree upon a bill filed against H. After-wards a bill was filed against the devisee of the purchaser by the son of H, as heir in tail for the reversion expectant on the term of ninety-nine years; there having been no fine levied to the purchaser by the son to bar the estate tail, and said person having notice of Jhe title. Lord Hardwicke held, that this was a conditional limitation in the wife for life, taking place as an executory devise (for that it could not be a contingent remainder for want of a freehold to support it), and that H took an estate tail with remainder to her in fee. And though in this case the estate for life in the wife was a preceding executory limitation, which never took effect because she did not pay the money and perform the condition on which it was to arise, yet the estate tail to H was well limited, and took effect expectant on the term of ninety-nine years; and this being an executory devise, the freehold descended to H as heir at law to the testator till the four years elapsed, or the wife had performed the condition. These authorities show two things: first, that this is an executory devise; and second, that no disposition being made of the freehold, it descends to the heirs at law until the condition be complied with. [501]*501As the title descended to the heirs at law, the plaintiffs cannot recover unless they can show a performance of the condition, on which alone any title vests in them under the contingent limitation. The first limitation is a condition precedent, and makes the subsequent devise contingent upon the event of the performance of the directions of the will, and a right, on refusal of the intended devisees to avail themselves of the provisions of the will within the time prescribed after receiving the necessary notice. But until notice, such as is prescribed, be given, the six years do not begin to run. They are to have six years from that time to determine whether they will accept the devise in the only way it can be done, by a compliance with the terms imposed by the testator. Until this be done the title which descends to the heir cannot be divested. The condition precedent not being performed, no title can arise to the plaintiff. But the counsel of the plaintiffs allege that the conditions annexed to the devise have been substantially performed by a notice such as the will requires, and a failure on the part of the heirs to take possession of the estate. If this be so, the plaintiffs are entitled to recover. Judge Henry testifies, that he wrote a letter, which, I understand, was directed to persons named by the testator in 1825. It is his impression that there was something stated in the letter about a given period in which they were to come in (the brothers’ or sisters’ children), but he cannot recollect whether the will was before him when he wrote the letter. James Wilson says, that after Judge Henry had written the letter he put it in the postoffice and paid the postage to New York. That it was in the fall of 1825, of which he made a memorandum about a year after. He does not recollect the words of the letter, but says that the .substance of it (to use his own language) was about the piece of land being left to the heirs of Robert Irwin. The witness further states that it was the neglect of the widow that notice was not given until 1825.
This testimony was objected to; but it was admitted by the court, who instructed the jury, that if-they believed that the heirs had notice the plaintiffs were entitled to recover.
It is very plain that there has been great negligence, if not something worse, in the manner in which this business has been conducted. The reason may be easily imagined, when we recollect that on a failure to comply with the conditions imposed by the will, the property was limited over to the children and grandchildren of the widow by a former husband. The testator died in 1813. Peace was concluded in February 1815; but there is not even an attempt to give notice until 1825, a period of ten years. In the meantime she keeps possession until 1817, when she conveys the whole two hundred acres devised in the will to her son James Wilson. These facts require no comment. I take no exception to sending the letter by the post, as it is probable that it was not within the contemplation of the testator that his estate should incur the expense of a special messenger, and because that mode of conveyance may have been ag [502]*502safe, and the letter as likely to reach its destination as if sent by a private hand. But, conceding all this, I cannot agree that the title of the heirs can be defeated by such testimony as this. It would be a sanction to a fraud, which I am inclined to believe has been attempted here. If a copy of the letter had been taken and preserved, we should then have known with certainty the nature of the information given, and we should then have been competent to judge whether the conditions prescribed by the will had been performed. But instead of this plain and obvious course, we have the uncertain recollection of two witnesses as a substitute; and what does their testimony amount to 1 Judge Henry wrote the letter, but he is not positive of what is alone material, viz. its contents. He is under the impression that there was something stated in it about a given period in which they were to come in. But this surely is not a compliance with the will of the testator, which, in express terms, directs that the import of the will shall be explained to them; as this would have been best done by an abstract from the will itself, with, perhaps, a description of the land, and an estimation of its probable value. But so far from this having been done, the witness will not undertake to swear that the will was even before him when he wrote the letter. Nor is this material defect supplied by James Wilson. He does not recollect the words of the letter, but thinks that its substance was about the piece of land being left to the heirs of Robert Irwin. What description was given-of the land, if any; and how far the directions of the will were complied with, the jury are left to conjecture. We are therefore of the opinion that the proof of notice, as required by the testator, was altogether insufficient, and that the court should have so charged the jury. In this then there was error.
It is unnecessary to give any opinion on the other points made by the counsel for the plaintiffs in error, except to state that we agree with the court of common pleas that Mrs Irwin, from whom the defendant claims title, was bound to pay the taxes : that the defendant, as her assignee, had notice of this, and was also bound to pay the taxes. It would be a fraud to permit her to gain a title by the non performance of a duty which the law throws upon her.
Judgment reversed.