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Tizard v. Eldredge

Decided: January 29, 1952.

ROSALIE V. TIZARD, PLAINTIFF,
v.
SAMUEL F. ELDREDGE, EXECUTOR UNDER THE WILL OF RICHARD C. TIZARD, DECEASED, AND WILLIAM ESSEN TIZARD, DEFENDANTS



Haneman, J.s.c.

Haneman

This is a suit for the construction of the will of Richard C. Tizard, who died on April 1, 1950. The particular section of his said will which is here brought into question is paragraph Fifth, which reads as follows:

"Fifth: I give and bequeath unto my sister, Rosalie V. Tizard, the sum of Two Thousand Dollars ($2,000.00) provided she spends the rest of her days in the Presbyterian Home located in the City of Philadelphia, State of Pennsylvania."

The question involved is whether so much of the above paragraph as provides "provided she spends the rest of her days in the Presbyterian Home located in the City of Philadelphia, State of Pennsylvania" is a condition precedent or a condition subsequent.

The matter was submitted on stipulation and I find the facts in connection herewith to be as follows:

The plaintiff, Rosalie V. Tizard, is 63 years of age. She is not a Presbyterian, but is a Lutheran. The Presbyterian Home for Widows and Single Women, which is the institution referred to in paragraph Fifth of the will, requires that for admission an applicant must have been a Presbyterian for the past three years and that her pastor must vouch for her. If the applicant satisfies these requirements, her name is placed on a waiting list, which at present totals 400 names, and it is anticipated would require a waiting period of five and one-half years before admission. If the applicant is between the ages of 65 and 75 years she must make a payment of $800 and the balance of her property must be given to the Home, from which she would receive interest at the rate of three percent per annum, semi-annually.

It is academic that the paramount consideration in the construction of a will is the testator's intent, and the question of whether a condition is a condition precedent or subsequent depends upon the intention of the testator when read in the light of the surrounding circumstances.

A condition precedent is a condition upon the happening of which an estate will vest. A condition subsequent defeats an estate already vested. Parmentier v. Pennsylvania Co., &c. , 122 N.J. Eq. 25 (Ch. 1937); Clausen v. Leary , 113 N.J. Eq. 324 (Ch. 1933).

As between precedent and subsequent conditions, subsequent conditions are preferred, but where the facts in the individual case require a conclusion that a condition precedent has been created, the court must so hold. Clausen v. Leary, supra; Parmentier v. Pennsylvania Co., &c., supra; 3 Page on Wills , 750.

Forfeiture under wills or deeds are not favored. Girard Trust Co. v. Schmitz , 129 N.J. Eq. 444 (Ch. 1941); Wilcox v. Kubler , 13 N.J. Super. 280 (Ch. 1951).

The failure to perform or accomplish a condition required as a condition precedent prevents an estate from vesting in the donee. A bequest upon a condition precedent does not become ...


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