“ Not even these surplus profits, which are so carefully to accumulate for his use, are given to him. The infant orphan, heir of an enormous estate, who was the particular favourite, and whose future grandeur constituted the pride of his ancestor, is cast, by this construction, on the world, without the means of subsistence, while the whole profits of his estate pass, without account, to those for whom the testator intended nothing.
The estate is devised, in succession, to each of the heirs of the testator, on the same condition ”

“ If the condition be precedent, the estate die not vest, and cannot descend to him. This would be contrary to the general spirit of the will.
If the change of name constituted the whole condition of the devise, the proofs furnished by the will of its being a condition subsequent, are so strong as to dispel all reasonable doubt. But there is another condition, respecting which the intention is less obvious.
The person 'that may have the right' is to procure an act of Assembly for the change of his name, 'together with his taking an oath, before he has possession, before a magistrate,' &c. ”

“ The devisees are, all of them, the coheirs of the testator, and the whole purpose of the will is to prevent their inheriting any part of his estate as his heirs. J. T. M. takes an interest for life, beneficially, to a considerable extent, perhaps to the whole extent of the profits, certainly to the whole extent, if he chooses to expend the whole, except 1600 dollars per annum, in repairs, buildings, and the support of himself and family; and is to take the surplus profits, if there be any, as trustee: but as trustee for whom? For his eldest male heir, not for the heirs of his testator. ”

“ The counsel for the appellants stated, that as to whether a condition to precedent or subsequent, it is always a matter of construction, depending on the intention of the testator. The principle is, that where an intention appears to create an estate at all events, and merely to annex a condition to it, by which it may be defeated, this is a condition subsequent: and if followed by a limitation over, in case the condition be not fulfilled, it makes a conditional limitation. ”

“ That if he takes a life estate, it is merely fiduciary, and not beneficial, for which reason it could not unite with a limitation over in fee, if there were one, so as to give him a fee under the rule. ”

“ That this son should live to the age of twenty-one years, then assume the name of Abraham Barnes, by legislative authority, and take the oath prescribed by the will, which is a possibility too remote. ”