“ The disposition of the law was this: upon the death of testator, the whole descended upon the heir, to await the event of William's marriage. Upon his marriage, he would have became entitled to take and hold in trust for the issue of that marriage. But what is the rule of law when a trust is created for an object that never comes into existence, or a purpose that fails? It cannot be questioned that the trustee then holds to the use of the heir at law. ”

“ Even if William King had stood by and seen those ten daughters all married, he would have time to perform; for he might marry one of them when a widow. Should he even marry another woman, he would still have time to perform; for he might when a widower perform the condition.
An impossible condition is the same as none. It is void, and there can be no breach. It is impossible that there should be such a marriage as the testator desired: therefore the devisee takes and holds as if there was marriage; or rather, as if there was no condition, for the condition is void. ”

“ The whole estate is devised to William King; but the possession of that part of it which is given to the wife or others for her life, is postponed till her death. The whole will bears marks of being written by a man whose language was far from being accurate, and whose words, if taken literally, would in some instances defeat his intention. That intention, we think, was to devise his whole real estate to William King, in trust, on a condition subsequent, postponing the possession of that part of it which was given to the wife and others for her life, till her death. ”

“ A conditional limitation is comprised among executory devises, and therefore can be created by will alone; but estates on condition may be created by deed or will. As to the estate to be created or carried over, as well as in those instances in which it anticipates or prevents an estate from vesting, it is obvious that conditional limitations must be assimilated to conditions precedent. But as the contingency may also operate to divest an estate taken presently, it is equally obvious that it then approximates to a condition subsequent in one of its effects. ”

“ The important question is, 'does the legal estate pass by the devise?' If so, there is no trust for the heirs. The heir is entitled to the real estate not given to another: but here all the real estate is given from the heir. The estate is devised over, on failure to perform the condition. A question may yet arise, whether that devise over is good. Whether that devise is good or not, we contend that we have a right to recover. The heir cannot prevail, unless it is decided that the devise to William King, and the devise over, are both void. ”

“ As to the first of these arguments, it is clear that the testator never lost sight of his avowed intention, and actually did dispose of all his property, though not of all his estate in it; and with so many alternatives and precautions, as might well have satisfied an ignorant man, if not any man, that he could not die intestate as to any part of it. And as to William's being a purchaser, although it might well be denied before the event of his marriage, yet if it be admitted, the consideration in view was not his own advancement, but that of his issue. ”

“ For the ground on which he rests his claim (as is understood) is, that on the death of the testator he took a vested contingent fee, which would become absolute on the marriage with a daughter of William Trigg and Rachel his wife; that as there never was any such person, he could not perform the condition, and is therefore absolved from it, and holds the estate absolutely. If then a son of William Trigg and Rachel his wife, had intermarried with a daughter of James King or Elizabeth Mitchell, the defendant would have kept the estate against the express intention of the testator. ”

“ It was not William for whom any beneficial interest was intended, but the issue of a particular marriage, in which the will distinctly shows that the blood of the Triggs was the favoured object. We must force the words of the testator from their simple and natural meaning, before William can in any event become more than a mere trustee in interest. And why create him trustee? At his tender age too, for an event so remote and uncertain; for persons whose coming in esse depended upon so many contingencies, must necessarily be so long deferred ”

“ He notices her legal right to dower, so as to avoid a possible implication that what he gave her was in lieu of dower, and to secure her from the necessity of relinquishing all interest in the estate bequeathed to her as preliminary to claiming her dower. She claims her dower under the will, as she does the other large estate bequeathed to her. It is not probable that a person who was careful to notice even that to which she would have been entitled under the law, would have omitted totally a very large property which she could claim only under the will. ”

“ The devise to Thomas King, the presumptive heir at the time of making the will, of a house and a few acres of land for life, remainder to Mrs King during her life, is inconsistent with his taking the large real estate of William King, and a necessary implication that he is not to take it, during Mrs King's life. ”

“ Where lands are devised to be sold for payment of debts and legacies, or in trust for the payment of debts and legacies, and the devisee or executor is a stranger, or has a legacy, and there is a residue; there is a resulting trust for the heir, especially if there is nothing given to him by the will. ”

“ If the condition is subsequent and impossible, and the application of the profits, as directed, also impossible; then the estate must be held discharged of the condition, and exonerated from a trust which cannot be performed. When the impossible condition is stricken out of the will, the trust to arise thereon goes out with it. The devise is to William King, subject to an impossible condition, an impossible executory trust, and a void limitation ”

“ The circumstances that his mind was clearly directed to each, and that he has carefully measured out his bounty to each, discriminating between them so as to show great inequality of affection, operate powerfully against the opinion, that he intended to leave a very large property to descend upon them by the silent operation of law. ”

“ The heirs of the testator, at the time of his death, were James King, a brother of the whole blood, Nancy Finlay, a sister of the whole blood, Elizabeth and Polly, the daughters of Elizabeth Mitchel, a sister of the whole blood, Samuel King, a brother of the half blood, and Hannah Allen, a sister of the half blood. Each of these persons is noticed in the will. For some of them, an ample provision is made. To others, less favour is shown. ”

“ The counsel for the defendant in error insists that the intent to give the real estate not otherwise disposed of immediately to William King, is apparent on the face of the will, and must control the construction of the clause under consideration. ”

“ There is not wanting legal authority for maintaining, on the contrary, that had the marriage taken place, and the wife died without issue, so as to render it impossible that the object of the trust should ever come in esse, the estate would immediately have returned to the heir at law. ”

“ We agree that William King, at the time of his death, was seised and possessed of seventy-six tracts of land in the said county of Washington, containing in the whole 19,473 acres of land, on one of which tracts is the saltworks, which have, since his death, been leased for years, at the annual rent of thirty thousand dollars; also of nineteen lots in the town of Abingdon in Washington county, nine of which produced an annual rent of six hundred and sixty dollars ”

“ Whatever manifestations might appear to show that the testator did not intend to die intestate, such manifestations never have any other effect than to aid a court where the donation of an estate is in question, or when it is doubtful what property a general description includes. ”

“ The question was whether the performance of an act required by the testator from his sister, was a condition precedent on which her title to a legacy depended, or whether the legacy vested at her brother's death. It was decided that the act being an object with the testator, and desired by him, was the consideration of the legacy, and therefore a condition precedent.
A great variety of authorities might be cited, all tending to establishing the same principle. It is sufficient to refer the court to the following: Creagh vs. Wilson, 2 Vernon, 572. Elton vs. Elton, 1 Ves. Sen. 4. ”