Bracton: Thorne Edition: English. Volume 2, Page 144

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Volume 2, Page 144

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[Gifts subject to a condition or a servitude].

[002] A gift may be [absolute and complete or] subject to a condition or a servitude, in
[003] part or in toto, as to all or only some.¹ To a condition, as was briefly explained
[004] above,² as where it is said, ‘I give to such a one such a thing if a ship comes from
[005] Asia,’³ or ‘if earl Richard is made king of the Germans,’⁴ or ‘if he does this’ or
[006] ‘does not.’ A gift of that kind will not be complete until it is or is not so, since it
[007] depends upon the snares of fortune,⁵ [but] after the condition has occurred it will
[008] be complete, [that is], if livery has been made; if not, the donee will have an action
[009] on the agreement. The same will be true if the gift is to him and his heirs. But if
[010] it is put thus, ‘I give to such a one and his heirs subject to this condition,’ which
[011] hangs upon a future event, then, whether the donee is to have a free tenement or a
[012] fee in the future, when the condition has occurred, depends upon whether what is
[013] said is ‘to him and his heirs’ jointly or ‘to him and his heirs’ separately. ⁶<That is,
[014] whether⁷ the condition attaches to both the donee and his heirs or only to the heirs
[015] and not the donee.> In the first case it will not be the free tenement of any of them,
[016] nor will the gift be complete, before the condition occurs. In the second, the gift
[017] will at once be complete and the free tenement of the donee, but it will never⁸ be
[018] a fee to the heirs until the condition occurs. And so where he says, ‘I give [such a
[019] thing] to such a one and his heirs if he has heirs of his body,’ or ‘if he has such;’
[020] it will at once be the donee's free tenement but never a fee until he has had such;⁹
[021] because of the condition, which depends upon fortune and an uncertain event.
[022] But if it is put thus, ‘I give to such a one and his heirs,’ or ‘to such a one and the
[023] heirs born of his body’ or ‘those he has of his body,’¹⁰ the gift will at once be
[024] complete and a fee to the donee¹¹ [and] though this condition is added at the end,
[025] ‘that if such heirs do not come into being, or if they do and fail, the land shall
[026] revert¹² to the donor,’ it will still be complete ab initio, livery having been made,
[027] but subject to resolution under such condition, which may be tacit as well as
[028] express, [for] the thing given will of necessity revert to the donor for lack of heirs
[029] when they do not come into being or if they do, fail.¹³ If a gift is made to certain
[030] heirs, though they fail others more remote may be admitted¹⁴ generally to the
[031] succession by force of a condition, as where it is said, ‘I give to such a one and his
[032] heirs if he has heirs of his body;’ if he has such, though they fail, others more remote
[033] are called to the succession.¹⁵ But until such come into existence it will always be a
[034] free tenement and not a fee; if such are never procreated

Notes

1. Supra 55, infra 145

2. Supra 71

3. Inst. 3.19.14; infra 286

4. For the date: B.N.B.,i,43; Richardson in Traditio, vi, 94; earl Richard again mentioned: infra iii, 337, iv, 197

5. Azo: supra 71

6. Supra i, 381

7. ‘utrum’ for ‘ut’

8. ‘numquam’ (as line 20) for ‘non quantum’

9. Supra 68

10. ‘quos de corpore suo procreatos habuerit,’ as infra 195, iii, 272

11. Supra 68, 76, infra 267; cf. Scrutton in L.Q.R., ii, 276-8 and infra v

12. ‘revertetur’

13. Supra 68, 76, 81, infra 200

14. ‘admittantur’

15. Supra 68