" So, in the case of Barlow v. Bateman (k), a testator gave a legacy of £1,000 to his daughter, upon condition that she married a man who bore the name and arms of Barlow; and in case she married one who should not bear the name and arms of Barlow, he gave the legacy to another. The daughter married a person whose name was Bateman, but who, three weeks before the marriage, called himself Barlow, and this was held to be a compliance with the condition. the Master of the Rolls, Sir J. Jekyll, observing, that the usage of passing Acts of Parliament for the taking upon one a surname, was but modern, and
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that anyone might take upon him what surname,
and as many surnames as he pleased, without an Act of Parliament.
It was suggested that the husband might, after receiving the legacy, resume
his old name, and the Court was requested to make an order that he should
retain it, but this was refused ". The decision of the M.R. was, however,
reversed in the House of Lords, probably on the ground urged in argument
that the testator intended a person of his own family, and originally bearing
the name of Barlow (l).
" So, in the case of Doe d. Luscombe v. Yates (m), where a condition was imposed upon devisees not bearing the name of Luscombe, that they within three years after being in possession, should procure their names to be altered to Luscombe by Act of Parliament; it was held that this requisition did not apply to an individual who, before he came into possession (n), had voluntarily and without any special authority assumed the name of Luscombe; he being, it was considered, a person bearing the name' within the meaning of the will " (o).
But where a testator expressly requires a name to be taken by Act of Parliament, or any other specified mode, or under the King's licence (p), the devisee or legatee must comply with the requirement, and no other mode falling short of the specified mode can be substituted for it (q).
In Bennett v. Bennett (r), a condition requiring the assumption of the name of M. was held to be complied with by the baptism of the successor to the estate in that name, without the adoption of the name as a surname.- And if the condition requires the devisee to assume and use " the surname of S. alone or together with his family surname," he may use the prescribed name either before or after his own surname (s). In D'Eyncourt
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v. Gregory (t), on the other
hand, where the condition required a devisee named W. to take and use "
the surname of G.," it was held that the assumption and use of the name
G. before that of W. was not a compliance with the condition. In Re
Parrott (u) , it was held that a condition
requiring a legatee to assume Christian names other than his own was impossible
of performance and void, and it was stated that there are only two, or
at most three, ways in which a Christian name may be legally changed; by
Act of Parliament, by the bishop at confirmation and by adding a name when
a child is adopted, though the precise quality of such an added name is
open to doubt.
Questions sometimes arise how a condition requiring a person to "use" a name must be complied with (x).
The proper mode of complying with a condition requiring a devisee or legatee to take and bear a certain coat of arms is to obtain a grant of arms from the College of Arms (y), and therefore if a condition requires that the arms should "lawfully" assumed, the condition cannot be complied in any other way (e.g. by a mere voluntary assumption) (z). The question whether a condition simply requiring the devisee to bear a certain coat of arms (without using the word "lawfully") can be performed by a mere voluntary assumption and use of the arms, does not appear to have been decided. but the better opinion is that it cannot (a). Of course, if the condition provides that every devisee who at the time he becomes entitled to the estate does not bear a certain coat of arms, he shall assume it, then the condition does not affect a devisee who in fact bears the arms at the time he becomes entitled under the devise, although he has assumed them improperly and without authority (b).
Conversely, the fact that a person is entitled to bear certain arms does not operate as a compliance with a condition requiring him to use them (c).
In Austen v. Collins (d), it was held that a condition requiring a devisee to bear certain arms was complied with by
Not infrequently, a will making a strict settlement of real estate contains a name and arms clause requiring every future owner of the property to assume the name and arms of the testator (e).
It has been already noticed that if land is devised subject to a name and arms clause, with a gift over on breach, this gift over is good if annexed to an estate tail, but void in the case of an estate in fee simple (f). A devise of an estate in fee simple can, however, be made subject to a condition precedent requiring the devisee to take a name and arms, and a condition subsequent requiring every future owner to take and use a name and arms, with a gift over on breach, may be annexed to such a devise if their operation is confined to the period allowed by the rule against perpetuities (g). And the gift over, to be effectual, must be so framed that the proviso for cesser and the limitation over fit one another (h). The gift over will also be void if it is repugnant to the original gift: as where an estate is devised to a person in fee, subject to a name clause, with a gift over on breach to the person "next in remainder" (i).
Where personalty is settled subject to a name and arms clause, with a gift over by reference to the limitations of settled real estate, the gift over is effectual, notwithstanding that the real estate has been disentailed (k).
In Re Evans' Contract (l) the testator devised his estate to trustees, giving his daughter and granddaughter and her husband successive equitable life, interests, with remainder to the granddaughter's sons in tail male. There was a proviso that every person becoming entitled as tenant for life or tenant in tail in possession, and the husband of every such person, should within twelve calendar months assume the testator's name and arms. There was no gift over on non-compliance with the proviso. Neither the testator's daughter or granddaughter nor the husband of either assumed the name and arms. It was held that the granddaughter could make a good title
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under the Settled Land Acts, for if there was a condition it was a
common law condition of which the testator's heir alone could take advantage
by entry, which he had not done, and there was not anything to show that
it was the intention of the testator that the estate should go over on
non-compliance with his desires.
The question within what period a condition requiring the assumption of a name, or name and arms, must be performed, where no time is limited by the will, has been already considered (m).
Sometimes a devisee is required to assume a name (or name and arms) on becoming "entitled" to the estate: in such a case "entitled" generally means "entitled in possession" (n). A person may be "entitled to the actual possession or receipt of the rents and profits" within the meaning of a clause of this kind, although the testator's widow is entitled to the actual possession of part of the property and the rents of the remainder, are exhausted by the charges (o).