and not a condition[1]: becauſe, if it were a condition, then, upon the branch thereof, only A or his repreſentatives could avoid the eſtate by entry, and ſo D's remainder might be defeated by their neglecting to enter; but, when it is a limitation, the eſtate of B determines, and that of D commences, the inſtant that the failure happens. So alſo, if a man by his will deviſes land to his heir at law, on condition that he pays a ſum of money, and for non-payment deviſes it over, this ſhall be conſidered as a limitation; otherwiſe no advantage could be taken of the non-payment, for none but the heir himſelf could have entered for a breach of condition[2].
In all theſe inſtances, of limitations or conditions ſubſequent, it is to be obſerved, that ſo long as the condition, either expreſs or implied, either in deed or in law, remains unbroken, the grantee may have an eſtate of freehold, provided the eſtate upon which ſuch condition is annexed be in itſelf of a freehold nature; as if the original grant expreſs either an eſtate of inheritance, or for life, or no eſtate at all, which is conſtructively an eſtate for life. For the breach of theſe conditions being contingent and uncertain, this uncertainty preſerves the freehold[3]; becauſe the eſtate is capable to laſt for ever, or at leaſt for the life of the tenant, ſuppoſing the condition to remain unbroken. But where the eſtate is at the utmoſt a chattel intereſt, which muſt determine at a time certain, and may determine ſooner, (as a grant for ninety nine years, provided A, B, and C, and the ſurvivor of them, ſhall ſo long live) this ſtill continues a mere chattel, and is not, by it's uncertainty, ranked among eſtates of freehold.
These expreſs conditions, if they be impoſſible at the time of their creation, or afterwards become impoſſible by the act of God or the act of the feoffor himſelf, or if they be contrary to law, or repugnant to the nature of the eſtate, are void. In any of which caſes, if they be conditions ſubſequent, that is, to be per-
