Blackgrove v. Addison , 1 Va. Col. Dec. 131 ( 1753 )

Upon a Lease of one Messuage and 190 Acres of Land with the Appurtenances, this Special Verdict is found.

That William Ellis was seized of the Lands in Question and by his last Will and Testament bearing date 28 January 1720 Devised the same as follows “ I give and bequeath unto my “ Wife Ann the use of all my Lands during her natural Life and “ after her death I give the Lands in James City that is mine to “ Mansel Blackgrove and his Heirs for ever. Item I will and “ desire that the Land before give to M. B: after my Wife’s “ decease be not his without he Comply with my Will and desire “ hereafter and the same Agreement between him and me “ appear in writing from under his Hand after my Decease.

That at the time of making this Will the Testator signed a Writing Intitled Articles of Agreem’t between him and Mansel Blackgrove importing that B. was to build upon these Lands a Dwelling House of the Dimensions there mentioned and repair a Tobacco House between the date of that Writing and Christ-mass following And upon his performing this he declares he had given him the Land by his Will after the decease of his Wife, otherwise by that writing he debars the said B. and his Heirs from that Legacy.

Ann Ellis died before the bringing of this Suit and that M. B. the Lessor of the Pit. before her death had notice of the s’d writing and about 12. Months after the death of the Testor, but has not performed the Work, nor was not required to do it.

There is no Title found in the Deft. But Baron Burwell has Petitioned for a Grant of the Lands as vested in the King by Escheat.

This is a very easy Question The writing operates with the Will whereby the Lands in Question are Devised to the Lessor of the Pit. upon a Condition Precedent and that Condition is not performed tho’ he had Notice before the death of the Wife so nothing vested in him.

But as to the point of Notice not having Notice will not be Excuse the performance of a Condition in the Case of a Stranger Tho it is otherwise in the Case of the Heir at Law.

And the Court gave Judgm’t Fr the Deft.