Definition
A conditional devise is a testamentary gift of real property that takes effect only upon the happening or non-happening of a specified condition. The condition is imposed by the testator in the will and operates either to trigger the devise (a condition precedent) or to defeat it after it has vested (a condition subsequent). If the condition is never satisfied, the property either passes under an alternative provision of the will, falls into the residuary estate, or passes by intestacy depending on how the will is drafted.
Two core forms exist:
1. Condition precedent: The devisee takes nothing unless and until the condition occurs. Example: "to my nephew if he graduates from law school." The gift is suspended until the condition is met.
2. Condition subsequent: The property vests in the devisee immediately but is subject to divestment if the condition is later violated or triggered. Example: "to my daughter, but if she remarries, then to my son." The devisee holds a defeasible fee.
A conditional devise differs from a devise on limitation (which expires automatically by its own terms) and from a devise to a class (where membership may itself depend on conditions). Courts have long scrutinized the distinction between a condition and a mere expression of motive or preference by the testator, since precatory language does not impose an enforceable condition.
Common Confusion
CONDITIONAL DEVISE vs. EXECUTORY DEVISE: An executory devise is a future interest in real property created by will that shifts or springs upon a future event — it is a distinct legal category with its own historical baggage from the Statute of Uses. A conditional devise focuses on the conditionality of the gift itself; an executory devise focuses on the nature of the future interest created. In practice, a conditional devise often creates an executory interest in a third party if the condition fails, which causes the two terms to appear in close proximity. Researchers should not treat them as synonyms. Historical sources are inconsistent about where one ends and the other begins.
CONDITIONAL DEVISE vs. CONDITIONAL BEQUEST: A devise is a testamentary gift of real property; a bequest (or legacy) is a testamentary gift of personal property. A conditional bequest operates on the same logical framework but governs personalty. The distinction mattered greatly at common law and in courts of equity; probate research in older records should not assume the rules for one map directly onto the other.
Core Elements
For a valid conditional devise, the following elements are generally required:
1. A valid devise: The underlying gift of real property must meet the formal requirements of the applicable Wills Act — proper execution, testamentary capacity, and intent to devise.
2. An identifiable condition: The condition must be sufficiently definite to be given legal effect. Vague or impossible conditions have historically been treated differently depending on whether they are precedent or subsequent — impossible conditions precedent typically defeat the gift; impossible conditions subsequent have sometimes been disregarded entirely, leaving the devise absolute.
3. Conditionality, not mere motive: Courts distinguish between a condition that controls the gift and a statement of the testator's reason or hope. "I give Blackacre to my son because I hope he will farm it" is not a conditional devise; "I give Blackacre to my son on condition that he farm it" may be.
4. A consequence for non-fulfillment: There must be a result if the condition fails or is breached — a gift over to another devisee, reversion to the testator's estate, or intestate passage.
Why It Matters in Research
Conditional devises sit at the intersection of property law, testamentary interpretation, and equitable doctrine — which means researchers will encounter them across multiple bodies of historical authority that do not always speak the same language.
The most significant research trap is terminological drift. Early common law treated "condition" and "limitation" as near-synonyms in some contexts; later equity courts carved them apart with precision. Black's Law Dictionary entries across editions reflect this instability — the fragment preserved in the source material here ("without any words used by the party," citing Coke on Littleton 201a) refers to an implied condition, a distinct sub-doctrine in which conditions arise by operation of law rather than express language. Researchers reading older entries should be alert to whether the source is discussing express or implied conditions.
A second trap is the public policy overlay. Certain conditions have historically been declared void as against public policy — conditions restraining marriage, conditions promoting separation of family members, conditions tied to religious practice, and conditions that operate as total restraints on alienation. Whether a specific condition is void, and what effect voiding the condition has on the underlying devise (does it fail entirely, or does the gift become absolute?), varies by jurisdiction and era. Historical dictionaries rarely flag these policy-based exceptions with enough precision to guide modern research.
The Co. Litt. 201a citation embedded in Black's points researchers toward Coke's commentary on Littleton's Tenures, which remains a foundational source for understanding the feudal-era logic that underlies conditional freehold estates. That logic — particularly around conditions in restraint of alienation — still surfaces in property disputes involving older chain-of-title documents.
For corpus researchers, conditional devises are frequently litigated in will construction proceedings, which are distinct from will contest (probate) proceedings. The two procedural paths generate different case law. A researcher following a conditional devise dispute through historical reporters may need to track the case across both chancery (equity) and common law courts in the same jurisdiction.
Historical Dictionary Support
Black's Law Dictionary preserves two fragmentary entries relevant to this term. The first — citing Co. Litt. 201a on implied conditions — addresses conditions arising without express language, which is a narrower doctrine than the conditional devise itself. The second fragment ("a conditional disposition is one which depends upon...") is clearly the opening of a longer definition that was truncated in the source material provided. Neither fragment is sufficient as a standalone definition, but together they confirm that Black's treated conditional dispositions as a category covering both devises and other testamentary arrangements, with common law roots traceable directly to Coke.
Historical dictionaries generally handle conditional devises by cross-referencing the broader entry for CONDITION, which is where the substantive doctrinal analysis appears. Researchers should not expect a freestanding entry for CONDITIONAL DEVISE in older editions to carry the full doctrinal weight — the term functions largely as a cross-reference point in the historical literature, with the operative rules housed under CONDITION, DEVISE, EXECUTORY DEVISE, and VESTED AND CONTINGENT INTERESTS.
What historical sources consistently miss: the modern distinction between conditions that are merely unenforceable (leaving the devise intact) and conditions whose failure defeats the gift entirely. This is an area where twentieth-century Restatement analysis diverged meaningfully from the older common law rules, and pre-Restatement dictionary entries will not reflect that development.
Jurisdictional Note
American states vary on the effect of an illegal or void condition on the underlying devise, and on which restraint-on-marriage conditions will be enforced. Some states follow the traditional common law rule that an absolute restraint on marriage as a condition subsequent is void but leaves the devise intact; others apply this rule only to conditions subsequent and treat the same restriction as defeating a condition precedent entirely. Researchers working with wills from civil law-influenced jurisdictions — particularly Louisiana — should apply entirely different analytical frameworks, as the forced heirship and legitime rules operate independently of common law conditional devise doctrine.