24 Wend. 145 | N.Y. Sup. Ct. | 1840
By the Court,
The provision in the will of Johannes Hogeboom. for the support of his two daughters Gertrude and Helen, is something more than an equitable mortgage or charge on the land. The testator has used apt words of condition, and I find nothing in the will to limit or control their effect. There can be no doubt that Stephen held the estate on a condition subsequent; and if the condition has been broken, the estate is forfeited, and belongs to the heirs at law of the testator.
H. The condition was annexed to the estate as a part of the tenure, and would, of course, affect the land into whatever hands it might pass. It would be strange indeed if one holding lands by such a tenure, could defeat the condition by granting to another. If a requisition for that purpose is *made upon the present tenants, they must, as far as [ *149 ] the nature of the ease will permit, perform the condition. If they refuse, it will be at the peril of losing the estate. Co. Lit. 246 b. Bradstreet v. Clark, 21 Pick. 389. 4 Kent, 126. If there was a forfeiture in the lifetime of Stephen, neither his death, nor the subsequent alienation, can defeat the right of entry of the heirs at law of Johannes Hogeboom. In short, so long as Gertrude and Helen live, the estate, whether in the hands of Stephen, or of persons claiming under him, is held upon condition ; and any forfeiture which may have happened, unless it has been released or barred by the lapse of time, may be asserted, against any one in possession of the land. A different doctrine would entirely change the nature of the tenure.
III. The voluntary departure of Gertrude and Helen to the county of Montgomery, and remaining there several years with the intention of making that the place of their permanent residence, did not put an end to the condition, nor preclude them from returning and demanding a performance, for the future, on the part of Stephen. He was bound to support them as long as they lived and chose to reside in his family. Their absence for a time could work no injury to him, whatever may have been the intention with which they left; and although he was not bound to act while they were absent, he was" under a continuing obligation, which would operate on a request made, and could only be discharged by performance, or a release. If the right to support could be renounced, or the condition could be released, without a deed, I think it quite clear that a silent departure could work no such consequence. Indeed, if there had been an express agreement to relinquish the claim for support, it would have been necessary to show that it was made upon good consideration.
IV. If on a demand made, by the two daughters of the testator, support was wholly refused by Stephen, the condition was broken, and it was not
Y. I see no difficulty in the plaintiff’s case, until we come to the evidence upon which she relies for the purpose of making out a forfeiture ; and here I differ verywidely from the judge at the circuit. It is quite possible that some portion of the evidence has been omitted in making up the bill of exceptions ; but on the case as it is presented to us, the evidence of a demand for support under the will, and of a refusal by Stephen, is so far from being conclusive. on the question of forfeiture, that it would not, I think, have warranted a verdict for the plaintiff, had the question been submitted to the jury. Conditions which destroy an estate, are taken strictly; and although a forfeiture must be enforced when clearly established, it should not prevail upon doubtful construction of evidence. If anything is to be done as a condition precedent by the party who asserts the forfeiture, he must show a strict performance on his part; and this is so, whether the obligation upon him is created by express stipulation, or is implied by law from the nature of the act to be peformed by the other party. He who may lose by a breach of a condition, must be plainly put in the wrong; and mere words on his part, as a denial of the right, without any act done, will not always work a forfeiture. I shall only refer to a few cases in support of these positions. Maund’s case, 7 Co. 112. Fraunces’ case, 8 id. 177, also reported by the name of Miller v. Francis, 2 Brownl. Gold. 277. 9 Co. 51. Ba [*151] con’s Abr. Condition *(O), 1. Comyn’s Dig. Condition (N). Bradstreet v. Clark, 21 Pick. 389. In this last case, the court acted upon a distinction, which I think a sound" one, between a demand for the purpose of laying the foundation of a suit to recover money, and a demand. which is to work the forfeiture of an estate, and held that there must be much greater strictness in the latter than is required in the former case. The estate was held on condition that the devisee paid certain legacies, and because all the legacies were demanded, when two had been paid, the demand was held insufficient, although the tenant denied the right altogether.
Now, what is the evidence in this case to establish a breach of the condition ? Ten years before the conversation on which the plaintiff relies, she and her sister voluntarily left the house of Stephen, went to Montgomery and purchased real estate, with the intention of residing there permanently ; and there they had resided for the whole ten years. Although they went occasionally back to Columbia, and made pretty long visits, the case furnishes no evidence that they did so with the intention of changing their place of residence. When the conversation took place in June 1834, they had been with Stephen seven or eight months ; but the case states that they came on a visit; and there is not one particle of evidence going directly to prove that they made any demand or request whatever upon Stephen, or that they even intimated the intention of remaining with him for the purpose of receiving the support provided for by the will. In fact, it does not appear that they had made up their own minds to pursue that course ; and for aught which can be gathered from the case, they would not have remained with Stephen, if he had requested them to do so. True, Stephen told them, "he thought they had no right there, because they had gone away of their own accord, and had long ago lost all claim under the willand if those *words stood alone, they would furnish some ground for [ *152 ] a presumption that the'daughters had made a demand or request. But when taken in connection with the preceding words, little if any thing remains of the presumption. Stephen began by saying, "if they called it a visit, he thought they had stayed about long enough.” It seems probable from this, that a visit was the only thing of which the daughters had spoken.
The plaintiff insists on a forfeiture, and the burden lies upon her of showing the condition broken. After it appeared that she had changed her residence to Montgomery, it was necessary for her to show, beyond all reasonable ground for doubt, that she returned to the house of Stephen for the purpose of receiving the support provided for her by the will; and that she plainly made known her intention to Stephen. She could not act equivocally, and leave him in doubt whether she was there on a visit or under the will, and then construe his words, which included both views of the subject, into a breach of the condition. And besides, when Stephen told the daughters he thought they had no right there—that they had lost all claim under the will—they seem to have acquiesced in his opinion. They made no reply or objection to the remark. They left him at liberty to. believe that they were only there for a temporary purpose, without intending to claim any thing under the yill, and went away two weeks afterwards without correct
We might have omitted the expression of an opinion upon the other points in the cause; but the counsel for both parties were desirous that all of the questions presented by the bill of exceptions should be considered, for the purpose of narrowing the grounds of controversy on anot her trial
New trial granted.
