45 A. 233 | N.H. | 1898
For the purposes of this inquiry, it is immaterial whether Joseph C. gave proper bond for the support and maintenance of the widow of David F. If he carried out the provisions for her support prescribed by the will, no bond was required of him by its express terms; and if he failed to carry out those provisions, the right to take advantage of the failure was personal to her and terminated with her decease.
Assuming that the plaintiff's five-dollar legacy has not been paid and that it is not a mere charge upon the land devised to Joseph C., the remaining question is: Did its non-payment by Joseph C. constitute a breach of the condition subsequent attached to his estate, so as to work a forfeiture of which the plaintiff can avail himself? Upon the evidence before us we regard it as plain that the question must be answered in the negative.
The mere fact that the legacy has not been paid does not of itself establish a forfeiture. For aught that appears, its non-payment may have been entirely justifiable, as, for example, that at the time the estate vested in Joseph C. the plaintiff was and ever since has been his debtor in excess of the legacy, or that the plaintiff has so conducted himself in respect of it as to amount to a waiver of its payment. "`Regularly, where any man will take advantage of a condition, if he may enter he must enter, and when he cannot enter he must make a claim; and the reason is, for that a freehold and inheritance shall not cease without entry or claim, and, also, the feoffor or grantor may waive the condition at his pleasure.' Co. Lit. 218 a. In such case, as the grantor may waive the condition, and thus allow the estate to continue, notwithstanding the breach, it is held necessary for him to enter if he can, and if not to make claim, as evidence of the assertion of his rights and of his intention to take advantage *422
of the breach; otherwise it will be presumed that he has waived it." Rollins v. Riley,
But suppose it should appear that there was an unjustifiable breach of condition by Joseph C. as to the legacy, that it was duly demanded, and that the plaintiff seasonably did everything he ought to have done "as evidence of the assertion of his rights, and of his intention to take advantage of the breach," — it is not apparent how it could aid him in the recovery which he seeks. The case would still remain one admitting of just pecuniary compensation; and when this is so, equity will interfere to prevent the divesting of an estate for a breach of covenant or condition. 2 Sto. Eq. Jur. (12th ed.), ss. 1319-1324. As said by Bellows, J., in Smith v. Jewett,
The objection that it is now too late to perform the condition is not sustained. "A devise upon condition is not barred by lapse of time when no time is named within which the condition may be performed." Page v. Whidden,
If, therefore, the plaintiff's legacy, has not been paid, and whether it has or has not been demanded by him, we are of opinion that the manifest intention of the testator to give him but five dollars may still be effectuated, a forfeiture of the estate avoided, and justice to all parties done, by the payment of the legacy and interest thereon within a reasonable time by the assignee. When this is done judgment will be entered for the defendants.
Case discharged.
All concurred. *423
