In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of a bequest as contemplated by section 120.
136. Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-performance of which subject-matter to go over.-
Wherea bequest is made with a condition super-added that, unless the legatee shall perform a certain act, thesubject-matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act;
if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act.
Illustrations:
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B's daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest ceases to have effect.
Legal Commentary & Landmark Judgments: Section 135
Section 135 mandates that any condition subsequent or divesting clause created under Section 134 must not violate the Rule against Remoteness and Perpetuity.
When scrutinizing restrictive covenants in ancestral wills, check whether the divesting event can occur beyond the lifetime of persons living at the testator's death plus 18 years; if so, cite Section 135 to strike down the restriction.