4 Edw. Ch. 711 | New York Court of Chancery | 1848
The question .is, what effect, if any, have the words in the deed in favor of the grantor’s three daughters, and what rights have they acquired under the deed ?
At common law, the words would have no force or effect as an exception, because an exception in a deed must always be of a part of the thing granted. It must be of something that already exists and not of any thing that is to arise or accrue afterwards. It cannot be of an inseparable incident, but must be of such a thing as is severable from that which is granted : Shep. Touch. Prest, ed. 78,80 ; Coke Litt. 47, a. note (b.) Here, the thing granted is the farm composed of two distinct parcels of land. No part of the land is excepted; and the right reserved cannot be separated
No person is bound to accept a gift or grant; but if he elects to accept, he is bound to comply with the terms or conditions on which it is given. His election once made precludes all objection on his part to the effect of the instrument according to its true meaning. It becomes a matter of estoppel in pais. The proofs in the cause show that Jeremiah, the grantee, accepted the deed. He held and occupied the farm under it until his death. His widow and children claim title under it at this time. They, indeed, •have no other source of title to the property which is the subject of this suit; and are bound, therefore, to give effect to every part of the deed. Then, to the question of extent of the right claimed by the three daughters? As expressed in the deed, it is “a right of living on the before mentioned premises as heretofore, so long as they shall respectively remain single and unmarried.” “ Of living,” this it is said imports a mere right of staying on the place or occupancy. But it imports more. It imports subsistence, the means of living, a home; and when we have the qualification “ as ■ heretofore,” we are to look to the evidence of their manner of living on the farm before and at the time the deed was • given. It is in proof that the father with his wife and his
There are two ways of providing for it by a decree:— First, To except it from the sale i. e. to sell subject to the right (taking it for granted that an actual partition cannot be made with propriety between the widow and children.) Second, To order a sale including the right and interest which the three daughters have in the property; and, in that event, to ascertain, by a reference, the annual worth or value of the support they are entitled to receive from the farm and, then, to set apart so much of the proceeds of sale to be invested in government stock or on bond and mortgage as will produce the amount.
The statute in relation to the partition of lands contains the proper directions for such decrees: (2 R. S. 325.)
The plaintiff may elect which form of decree to take.