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wife, his mother, and provides for her a good and comfortable
support so long as she may live," gives P. a vested remainder.
The condition will be regarded as a condition subsequent, and
no forfeiture results by the impossibility of its performance
occasioned by the death of the mother before the testator.
Gingrich v. Gingrich, 146 Ind. 227 (45 N. E. Rep. 101).
Where a testator devised as follows: "I give and devise to
my daughter, M., for and during her natural life, as a life
estate, and not in fee, the following real estate :
At the death of her, said M., all the said real estate so devised
to her for life shall go to her children in fee simple. If any
child of hers shall have died, leaving a child or children, the
portion of said real estate that would have gone to the par-
ents shall go to such child or children," it was held that the
children of M., all being alive at the time of the testator's
death, took a remainder in fee in the real estate which vested
at that time, subject to their mother's life estate. Moores v.
Hare, 144 Ind. 573 (43 N. E. Rep. 870).

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Sec. 288. Vesting of estates. A devise of real estate providing that "when my youngest child arrives at full age, I desire that the real estate be equally divided between my children, their heirs, or survivors of them," does not give a vested interest to any of the children until the youngest child attains his majority. McClain v. Capper, 98 Ia. 145 (67 N. W. Rep. 102). The law favors the vesting of estates and in the absence of a clear manifestation of the intention of the testator to the contrary, an estate will be held to vest at the earliest possible period. Moores v. Hare, 144 Ind. 573 (43 N. E. Rep. 870); Gingrich v. Gingrich, 146 Ind. 227 (45 N. E. Rep. 101). This rule applies to the vesting of an estate in fee. Fowler v. Duhme, 143 Ind. 248 (42 N. E. Rep. 623).

Sec. 289. Condition subsequent - Breach. Conditions subsequent are not favored in law, Star Brewery Co. v. Primas, 163 Ill. 652 (45 N. E. Rep. 145); but they are to be favored rather than conditions precedent, Donnelly v. Eastes, 94 Wis. 390 (69 N. W. Rep. 157). Where it is apparent from a deed, the consideration for which is the performance by the grantee of certain conditions, that a present estate

passes to him which becomes absolute at a certain time if he has performed the conditions, otherwise "all rights conveyed shall revert " to the grantors, the condition will be construed to be a condition subsequent. The rule is that the entry for condition broken must be after demand and refusal to perform, in order to make such entry effectual to revest the title. This rule applies unless, by the terms of the deed, the title revests for breach of condition without re-entry; but then the provision in that regard would not operate except on demand and refusal to perform. Donnelly v. Eastes, 94 Wis. 390 (69 N. W. Rep. 157). Citing, 1 Warv. Vend., p. 464; Cory v. Cory, 86 Ind. 567; Lindsey v. Lindsey, 45 Ind. 552; Bradstreet v. Clark, 21 Pick. 389; Nicoli v. Railway Co., 12 N. Y. 121. A court of equity never actively interferes for the purpose of enforcing a forfeiture for breach of condition subsequent, even where no equitable relief would be given to the defaulting party against the forfeiture, but will, when compensation can be made in money, compel the complaining party to take it, and relieve against a forfeiture. Donnelly v. Eastes, 94 Wis. 390 (69 N. W. Rep. 157). Citing, 1 Pom. Eq. Jur., §§ 455, 459; Gates v. Parmly, 93 Wis. 294 (66 N. W. Rep. 253); Henry v. Tupper, 29 Vt. 358.

Sec. 290. Condition subsequent-Conveyance in consideration of support. Where the consideration of a conveyance by an aged husband and wife is a mortgage upon the premises by the grantee conditioned that the mortgagor shall furnish the mortgagee and his wife, during life, comfortable rooms, food, clothing, medicine and medical attendance in sickness, and provide them with the necessaries and comforts suitable for persons of their age and situation in life, no place being specified where such support shall be furnished them, they are not obliged to receive it at the house of the mortgagor, but are entitled to have it furnished at such reasonable place or places as they may select. Tuttle v. Burgett's Adm'r, 53 O. St. 498 (42 N. E. Rep. 427; 53 Am. St. Rep. 649; 30 L. R. A. 214). The court say: "As a general rule where no place is mentioned for the performance of an obligation, it is to be performed to the obligee in person, who may designate any reasonable place of performance; and that rule

has been held applicable, in many cases, to contracts of the kind we have under consideration. Wilder v. Whittemore, 15 Mass. 262; Crocker v. Crocker, 11 Pick. 252; Thayer v. Richards, 19 Pick. 398; Pettee v. Case, 2 Allen 546; Hubbard v. Hubbard, 12 Allen 586; McArthur v. Gordon, 126 N. Y. 597 (27 N. E. Rep. 1033; 12 L. R. A. 667); Stilwell v. Pease, 4 N. J. Eq. 74; Rowell v. Jewett, 69 Me. 293. In some of the cases cited the question arose upon the construction of wills requiring devisees or legatees to provide support for persons named, while in others it was made on mortgages with conditions similar to that of the mortgage in question; and the rule as stated is recognized in all of them. In the case of Wilder v. Whettemore, it was held that: Upon a mortgage, conditioned that the mortgagor shall maintain and support the mortgagee during life, the mortgagee has the right to support wherever he shall choose to reside, so that needless expense be not created to the mortgagor.' And in Pettee v. Case, the court held that the condition of a mortgage not differing in any essential feature from the one before us was broken when the mortgagor, after knowledge that the persons entitled to support are at a reasonable place, where they intend to receive their support, declares to the person in whose family they are that he will not pay for their support at that place, and does not pay therefor, though no special demand is made upon him for the support. It is said in the opinion of the court that under such a contract the mortgagor was bound to support the mortgagees, without their making a demand for support. And they were not bound to receive support at his house, but had a right to be supported wherever they might choose to live, provided they cause no needless expense.'

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A grantee who has agreed to support his grantor during life, in consideration of the conveyance of the property, will not be discharged from his obligation by the bringing of a suit to set aside the conveyance and recover back the property, where the suit has been abandoned and dismissed, without trial, and the grantee has not been disturbed in the possession or enjoyment of the property. Tuttle v. Burgett's Adm'r, 53 O. St. 498 (42 N. E. Rep. 427; 53 Am. St. Rep. 649; 30 L. R. A. 214).

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Sec. 291. Perpetuities. A devise to be held in trust by the executors for the use and benefit of the devisee" and his family" until such devisee "shall discharge his present liabilities, by payment, compromise or otherwise" and then to be conveyed to him absolutely, does not violate the common law rule against perpetuities. The liabilities referred to are those existing at the date of the will, and the word "family" will be construed as meaning those persons in being at testator's decease, or the children of such persons. St. John v. Dann, 66 Conn. 401 (34 Atl. Rep. 110). Cal. Const., Art. 20, § 9, forbidding perpetuities "except for eleemosynary purposes does not invalidate a charitable trust the benefit of which is not restricted to the poor. People ex rel. Ellert v. Cogswell, 113 Cal. 129 (45 Pac. Rep. 270; 35 L. R. A. 269). See Charitable Uses. Construing Mills' Ann. Colo. Stat., § 4184, which provides that "the common law of England so far as the same is applicable and of a general character, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First (1607), * * shall be the rule of decision and shall be considered as of full force until repealed by legislative authority," it is held that the modern construction of the rule against perpetuities as found in English and American reports since 1607, as well as before, will govern the courts in applying that rule. Chilcott v. Hart, 23 Colo. 40 (45 Pac. Rep. 391; 35 L. R. A. 41). See opinion for extensive discussion of this subject. The statute of Connecticut (Gen. Stat., § 2952) against perpetuities which forbids grants by deed or will to any persons except such, or the immediate issue or descendants of such, as are in being at the time of the delivery of such deed or death of the testator," was held not to invalidate a devise of land to the testator's daughters for life with remainder to their children where one of such daughters had children surviving at the time of the testator's death. Johnson v. Edmond, 65 Conn. 492 (33 Atl. Rep. 503). The Indiana statute (Rev. Stat. 1894, § 3382) against perpetuities is held to be violated by an absolute restriction upon the alienation of a devise in fee for a period of twenty-five years. Fowler v. Duhme, 143 Ind. 248 (42 N. E. Rep. 623). In applying the rule against

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perpetuities the estate is to be regarded as created at the time. of the testator's death. How. Ann. Mich. Stat., § 5531, applied. Mullreed v. Clark, 110 Mich. 229 (68 N. W. Rep. 989).

Sec. 292. Merger. Merger is not favored in equity and is never allowed unless for special reasons and to promote the intention of the party. Gore v. Brian, N.. J. Eq. (35 Atl. Rep. 897). Citing, 4 Kent's Com. 102. Where a conveyance of the fee by the owner thereof to the owner of a life estate is void on account of being in fraud of his creditors no merger takes place. Michalson v. Myrick, 47 S. C. 297 (25 S. E. Rep. 162). The purchase, by an owner of a reversionary interest in land subject to a homestead right, of outstanding purchase-money notes, secured by a trust deed which is superior to the homestead right, does not operate to merge and extinguish the lien of the trust deed. Irvine v. Shrum, 97 Tenn. 259 (36 S. W. Rep. 1089). The court say: "It is true that, when an equitable estate vests in the same person in whom is the legal title to the same premises, the usual rule is that the equitable merges into the legal estate. But, in order to merge, the two estates must be co-extensive as to the same property. And the doctrine is not a favorite with the courts, and will not be applied against the intention and interest of the holder of the legal title. Moore v. Luce, 29 Pa. St. 260 (72 Am. Dec. 629); 15 Am. & Eng. Enc. Law, 313 et seq.; 2 Pom. Eq. Jur., §§ 738-791; Jones, Mortg. 848; Insurance Co. v. Murphy, 111 U. S. 744 (4 Sup. Ct. Rep. 679)."

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Sec. 293.

Merger-Conveyance taken by lienhold

Where a first and second mortgage upon land are held by the same person who purchases the land under a foreclosure of the junior mortgage, the senior mortgage merges in the title thus acquired and the debt it secures is extinguished. McDonald v. Magirl, 97 Ia. 677 (66 N. W. Rep. 904). Ordinarily, where the owner of the mortgage becomes also the owner of the equity of redemption, a merger takes place, and the mortgagee is the owner in fee of the whole title; but in arder for a mortgagor's right to redeem to be extinguished by

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