Mickey's Appeal

The opinion of the court was delivered by

Thompson, J.

The bequest to John H. Grim by his wife was conditional. Its enjoyment was to depend upon two contingencies, viz., his remaining unmarried, and refraining from falling into “ drunkenness and revelry.” In case of a breach of either, “ then,” says the codicil, “his said interest is to cease, and my estate to be disposed of as above directed.”

This is a plain direction, taken in connection with a preceding provision in the will, that in case of forfeiture, the interest of the legatee should fall into the estate to be disposed of as directed by the testatrix, viz., “ among the heirs of my brothers and sisters.”

No doubt these were conditions, and conditions subsequent, which, without a limitation over in case of forfeiture, would not be sufficient to divest the legacy. The law would regard them as directions in terrorem. The cases of Hoopes v. Dundas, 10 Barr 75, Bennett v. Robison, 10 Watts 348, Cassell v. Lovett’s Ex’rs., ll Casey, and numerous other cases in our books, establish this as the rule in regard to legacies. The direction in the codicil, that the legacy to Grim, in case of a failure of the conditions, or either of them, should fall into the corpus of the estate, to be distributed as provided for in the will, was a good limitation over: 3 Wh. 575; 3 Meriv. 118; Rop. on Leg. 551.

The only question then in the case is, whether the legacy was forfeited for a breach of either of the conditions. If any fact can be established by testimony, I think the testimony before the court showed, beyond doubt, that the legatee had fallen into a condition of “drunkenness and revelry;” that this was his habit.

The idea that the testatrix only meant that he should be no more intemperate than he had been in her lifetime, if intemperate then, is a suggestion in regard to her intentions which we cannot adopt. She evidently intended that her bounty should not be squandered in drunkenness and revelry, and she sought, although in vain, to afford him support in a life of decency and sobriety, and at the same time hoped no doubt to create an incentive to temperance; but for a failure in this respect, her intentions are clearly expressed that the bounty provided for him should go to her own blood relations. It was against drunkenness and its concomitant she was providing, and even if it had been shown that he was a drunkard and reveller in her lifetime, and that he was no worse after her death, it would be equally plain that the condition was broken, and the legacy forfeited. But we are not driven to this, for the evidence greatly preponderates in establishing that he was much more intemperate after the death of his wife than before. It clearly shows that he had grievously fallen into “ drunkenness and revelry.” The court were entirely right, we think, in finding the facts as they did. If it be true, as the testimony seems to show, that the appellant had, before this controversy began, bought from Grim his interest under his wife’s will, no one will sympathize much with him that the forfeiture has fallen on his hands. Such a purchase was both illegal and reprehensible. There was no error in the decree as to costs.

Judgment affirmed, at costs of the appellant.