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and thereupon the plaintiff brought this action for its specific performance.
The learned trial court found that the plaintiff failed and refused to "advance the cost of the work as requested by the defendant or any fair approximation thereof. That the defendant repeatedly notified the plaintiff of its intention to rescind the contract in case its requests were not complied with. * * *
That the plaintiff did not make the advances, as requested, for approximately the cost of the work done, and that, with knowledge of the cost and of the terms of the contract, and with notice of the intention of the defendant to rescind if its requests were not complied with, deliberately and intentionally refused and neglected to make such advances, and that such refusal and neglect was not caused by any inadvertence or by any misunderstanding of the facts.” If the testimony in any aspect justified this finding of the trial court, it is a complete answer to this appeal, for equity will not enforce a contract at the instance of a party who has deliberately and intentionally neglected and refused to comply with its requirements. But we think that there is no evidence to support this finding. Granting, as we must, for the trial court has so found, the fact that the advances made by the plaintiff did not equal the expenditure incurred approximately by the sum of $12,500, that fact alone does not show that the plaintiff's default was deliberate and intentional. We agree with the learned counsel for the respondent that the advances, which under the contract the plaintiff was obliged to make, were not limited by the ordinary and customary advances made to parties who get out wood for the market, but only by the sum which the defendant actually and properly expended towards cutting and hauling the lumber. Nevertheless, the contract was one which would naturally breed dispute and difference of opinion, for no definite amount to be advanced was specified. Whether outlay made for the work of a permanent character, such as the construction of roads and the building of camps, the defendant was entitled to demand from the plaintiff, under the provisions of the contract, is not wholly free from doubt. While the fact that the amounts called for by the defendant largely exceeded the usual advances in the business did not justify the plaintiff in refusing to accede to the defendant's demands, still it tended to excuse plaintiff's hesitation in complying. The contract contained a provision that all matters of difference that might arise between the parties respecting the contract or the fulfillment thereof should be determined by arbitration.
We concede that this provision was too broad to be enforced by the courts. Nevertheless, granting its invalidity, the parties negotiated for an arbitration under it. These negotiations had not been terminated at the time of the defendant's rescission of the contract. There is nothing
to show that the position of the plaintiff in this controversy was not taken by it in good faith. It was willing to heip the decendant obtain money, for it expressly offered to discount the defendant's note for such amount as it might need. There is not a word from the plaintiff to be found in the correspondence tending to show an abandonment of the contract. On the contrary, it was constantly insisting on its performance. It is true that the plaintiff erred in its construction of the contract and as to its liability to make advances thereunder, and, therefore, that it had not strictly performed the contract on its part. But that did not necessarily debar it from relief. Of such a situation this court said by Judge Danforth in Day v. Hunt, 112 N. Y. 191, 19 N. E. 414: “These objections cannot prevail. On the contrary, the very fact that the plaintiff has not strictly performed his part, and so is without remedy at law, is frequently a sufficient reason for the interposition of courts of equity, where relief is given, notwithstanding the lapse of time according to the actual merits of the case. * * * There is nothing to show that either party abandoned the contract or wished or intended to do so. They differed merely as to the form of the mortgage, and, so far as appears, that difference only prevented the completion of the sale. Although wrong in his construction as to its proper force, the plaintiff cannot be said to be wholly without excuse.”
There is this further, and to my mind controlling, factor in this case. There had been at least a part performance by the plaintiff and a substantial part, and courts of equity regard with more favor actions to enforce specific performance where there has been performance in part than where nothing has been done by either party under the contract. Thus Mr. Pomeroy writes (Equity Jurisprudence, § 812) of the specific performance of contracts for the sale of land: “But in some cases time almost ceases to be mateial, as where the vendee has paid the purchase money, or is in possession of the land, it is then said that time does not run against him." While the trial court has found that the defendant notified the plaintiff of its intention to rescind the contract, unless its requests were complied with, it must be borne in mind that this notice was of the most general character; that is to say, that if advances were not more promptly made the defendant would be unable to fulfill and would give up the contract. Nevertheless, despite these notices, the defendant continued to take such moneys as the plaintiff advanced. Such receipt operated to abrogate any right to rescind that might then exist. The last payment so made by the plaintiff was the sum of $5,000 on March 12th. The rule seems to be well settled that though a party to a contract is in default, if the other party continues to negotiate with him after such default the contract cannot be rescinded without reasonable notice to the party in default to comply with the contract within a specified time. Pomeroy's Eq. Jurisprudence, 8 815. In Webb v. Hughes, L. R. 10 Eq. 281, a contract for the sale of land was to be closed on February 26th. Negotiations were continued after the date set for closing, and on April 7th the purchaser gave notice of immediate abandonment. Specific performance was decreed, the vice chancellor saying: “But, having once gone on negotiating, beyond the time fixed, he is bound not to give immediate notice of abandonment, but must give a reasonable notice of his intention to give up his contract if a title is not shown." In Parkin v. Thorald, 16 Beavan, 59, notice was given on October 21st that the contract must be performed on November 5th or otherwise would be abandoned. Specific performance was decreed, the length of notice being held insufficient. The defendant's letter of: March 24th, already recited in full, gave the plaintiff no notice that a certain amount must be paid by a certain time, but merely expressed the feeling of the defendant that it was "disinclined to continue trying to fulfill the contract on their part, unless the advances can be more promptly made." This was wholly insufficient as a notice of the defendant's election to abandon the contract unless by a certain time the plaintiff made the necessary advances. The defendant could not, under the circumstances, rescind the contract without notice. We
, below were erroneous. It is unfortunate that the case should have been so long in litigation that during its pendency over 'half of the first contract term has expired. However, in case the plaintiff succeeds on a new trial the court may mold its decree in such form as, in view of the lapse of time and its effect on the interest of the parties, equity may require.
The judgment appealed from should be reversed, and a new trial granted, costs to abide the final award of costs.
to him, or of either of my children whose share of my estate is held in trust,” the executor should pay "the share of the one so dying to his or her issue absolutely.” After the death of testator, one of the sons whose share was to be paid to him died, leaving a daughter, and subsequently the trustees sold some of testator's real estate; the sale having been fairly made, and at the earliest date at which it could properly have been made. Held, that the deceased son's share of the proceeds of such real estate was payable to his daughter, and not to his legatee.
[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, $$ 1165-1168.]
Cullen, C. J., and Werner and Hiscock, JJ., dissenting.
Appeal from Supreme Court, Appellate Division, First Department.
Action by Egbert G. March, as executor of and trustee under the will of Peter S. March, deceased, and others, against Seth S. March and others, individually, and Egbert G. March, individually and as executor of and trustee under the will of Frank P. March, deceased, for a construction of the will of Peter S. March. From a judgment of the Appellate Division (93 N. Y. Supp. 1139), affirming a judgment of the Special Term, cer. tain defendants appeal. Affirmed.
Wm. B. Hornblower, for appellants. Mornay Williams, for respondents.
are of opinion, therefore, that the judgments February, 1899.
EDWARD T. BARTLETT, VANN, WERNER and WILLARD BARTLETT, JJ., concur. GRAY, J., dissents. CHASE, J., not sitting.
HAIGHT, J. This action was brought to obtain a construction of the last will and testament of Peter S. March, who died in the city of New York on the 11th day of February, 1899. The questions about which the parties differ arise under the fifth clause of the will, which provides as follows:
“Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate and property, as well real as personal, of which I shall die seized, possessed or entitled and wheresoever situate, To my Executors and Trustees hereinafter named and to the survivors and survivor of them In Trust for the uses and purposes following:
"1. That my Executors and Trustees sell, convey and dispose of the same at public or private sale at such times and on such terms as they may think proper.
“2. That my Executors and Trustees invest and keep invested during the life of my wife one-third part of such residue of my estate, or the proceeds thereof, and pay or apply the rents, interest and income thereof to the use of my wife so long as she shall live.
"3. That my Executors and Trustees divide the remainder of such residue (and on the death of my wife the one-third part held for her benefit) into six equal parts or shares, and convey, pay and assign one of such shares to my son Edwin P. March, first deducting the said sum of fifteen thousand dollars as herein directed; that they convey, pay and assign one other of such shares to each of my sons, Frank P. March and Egbert G. March, absolutely; that my Executors and Trustees set aside and designate one
Judgment reversed, etc.
(186 N. Y. 99)
MARCH et al. v. MARCH et al. (Court of Appeals of New York. Oct. 2, 1906.) WILLS CONSTRUCTION SUCCESSION ON DEATH OF LEGATEE BEFORE PAYMENT.
Testator's will directed a sale of real estate, and provided that the estate should be divided into as many parts as he had children, and that certain children should be paid their shares, but that the shares of the others should be held in trust for them for life. A subsequent clause provided that in the event of the death of any child "before the conveyance and payment to him of the share of my estate herein given
of the remaining three shares for each of my daughters, Virginia A. March and Laura J. Adams, and son, Seth S. March, and hold, invest and keep invested the share of each child last named during his or her life. and collect and receive and pay or apply the rents, interest and income of the share of each child to the use of such child during his or her life, and upon the further trust,
“4. That in the event of the death of any of my children before the conveyance and payment to him of the share of my estate herein given to him; or of either of my children whose share of my estate is held in trust, that my Executors convey, pay and assign the share of the one so dying to his or her issue absolutely, and if he or she shall leave no issue, then that they convey, pay, assign and divide such share or the proceeds thereof to and among my surviving children and to the issue of any deceased child, such issue to take by representation the part or share his, her or their parents would have been entitled to, if living."
The testator's wife predeceased him. His son Frank P. March died on the 10th day of May, 1900, leaving, him surviving, a widow, from whom he had been separated in his lifetime, and a daughter, Mary McIlvaine March, now Kennedy, his only heir at law and next of kin, whom he disinherited by his last will and testament. The testator, Peter S. March, died possessed of both real and personal property. As to his personal property, it was administered by his executors during the lifetime of Frank P. March, and his share thereof was paid over to him. After his death the trustees sold a parcel of the testator's real property, in Norfolk, Va., receiving therefor the sum of $150,000, which is now in the hands of the plaintiffs, subject to distribution under the provisions of the will; and the question is as to whether the share thereof which Frank would have been entitled to had he lived, passes under his will to his legatees and devisees, or goes to his daughter, Mary McIlyaine, under the ' will of her grandfather, Peter S. March. The answer to this question depends upon the construction to be given to subdivision 4 of the fifth clause of the will, which, as we have seen, provides that, in the event of the death of any of the testator's children before the conveyance and payment to him of his share of the testator's estate, such share shall be conveyed and paid over to his issue absolutely. It is not contended that this provision of the will is illegal, that it is violative of any statute or common law, or that it is against public policy. The only question is, what did the testator intend? In ascertaining such intention we are required to take into consideration the surrounding circumstances under which he framed the provisions of the will the situation of his estate and of the members of his family whom he wished to be the recipients of his bounty. Williams v. Jones, 166 N. Y.
522-532, 60 N. E. 240. In considering these circumstances for the purpose of ascertaining the intention of the testator, there is a presumption which we must bear in mind, and that is that, in the absence of unfriendly relations existing between testators and their descendants, there almost invariably exists a desire and an intention on the part of testators that their property should go to their descendants, rather than to strangers to their blood.
Upon referring to the findings of fact it appears that the testator was possessed of a personal estate, amounting to the sum of $230,000 over and above his liabilities; that he also was possessed of the real property in Virginia, from which the sum of $150,000 has been derived upon its sale; that he had a wife and six children, four boys and two girls, all of whom were adults; that one son, Frank P., and one daughter, Laura J., had married; that Laura J. had no children, but Frank P. had a daughter, Mary McIlvaine, who appears to have been the only surviving grandchild of the testator. It does not appear that any trouble had occurred between Frank and his wife or daughter at the time the will in question was executed, or during the lifetime of the testator. These are the circumstances under which we are called upon to determine the intention of the testator and ascertain whether he has disinherited his grandchild. In so far as the testator created a trust in favor of his wife, it appears that he survived her, and, therefore, that provision, upon his death, became of no force or effect and may be disregarded. We then have remaining a gift and devise of all the residue and remainder of his estate, both real and personal, to the executors and trustees named in his will for the purpose of establishing three separate trusts, one in favor of each of his daughters and the other in favor of his son Seth S. March, to continue during their respective lives, to each of which trusts was given one-sixth of his residuary estate; the other three-sixths were directed to be conveyed and paid over to his three sons, Edwin, Frank, and Egbert. Then we have the provision: "That in the event of the death of any of my children before the conveyance and payment to him of the share of my estate herein given to him, or of either of my children whose share of my estate is held in trust, that my executors convey, pay and assign the share of the one so dying to his or her issue absolutely, and if he or she shall leave no issue then that they convey, pay, assign and divide such share or the proceeds thereof to and among my surviving children," etc. The personal estate, as we have seen, had been administered by the executors, the debts paid and the amount due Frank paid over to him during his lifetime. That part of the estate is thus disposed of.
We have, therefore, only to consider the real estate. This the executors and trustees
were directed to sell at public or private sale the intention of the testator or the construcand at such times and on such terms as they tion that should be given to his will. Every might think proper. This provision was person is liable to die, and no testator can doubtless mandatory and operated to con- foresee the time or manner of the death of vert realty into personalty. Lent v. Howard, a deyisee or legatee. The death of such a 89 N. Y. 169; Hope v. Brewer, 136 N. Y. 126- person may change a testator's property from 134, 32 N. E. 558, 18 L. R. A. 458. But this ,
one channel into another, but how could this does not affect the discretionary power given affect the original purpose or intent of any as to the terms and time of the sale. When particular testator. the sale was made and the proceeds received Finally, it is urged that, if actual physical it became the duty of the trustees to set payment of the fund into the hands of the apart three-sixths thereof for the benefit of legatee is necessary, then the executor might, the three trusts created in favor of the two through litigation or otherwise, postpone the daughters and the son Seth, and to pay the payment until after the death of the legatee other three-sixths thereof to the other son. and thus divert the legacy into another chanThe executors and trustees, it appears, did nel. But no one contends that actual physicproceed and sell the Virginia property. It is al payment of the fund into the hands of the found as a fact and conceded upon the argu- legatee is necessary. That is not the quesment that such sale was made in good faith tion here presented. Of course, executors by the executors and trustees, and at the and administrators cannot change the rights earliest date at which it could properly have of parties by improper litigation. No such been made. But at the time the sale was question has been presented in this case. made Frank had died, leaving his daughter, The executors and trustees have acted in Mary McIlvaine, his only surviving issue. good faith, have sold the real estate and conReferring again to the provisions quoted, verted it into money as soon as it was poswe find two distinct classes referred to. The
sible or proper for them to do so, and have first embraces any of his children dying be- fully performed their duty in that regard, as fore the conveyance and payment to him of has been found and conceded in this case. his share of the estate, clearly meaning the If they had not performed their duty in that three sons, who were entitled to their share
regard, Frank, during his lifetime, had his after the sale and conveyance of the real es- remedy to enforce such performance. The tate had been made; and the other to either
question in this case is: When did the fund of his children dying, whose share of his es- become due and payable to Frank? When tate had been placed in trust, thus including could he have maintained an action against the two daughters and his son Seth. So that, the trustees to recover his share of the proin case of the death of any of the sons ceeds of the real estate? Under the will they whose estates were not in trust before the
were required to sell at such times and on conveyance and payment to them, or in case
such terms as was proper. The fund deof the death of either of the children whose
rived from the sale was then to be distribestates had been put in trust, the direction uted in the manner specified in the will. was to pay and assign the share of the child It was then that Frank's share became due so dying to his or her issue absolutely. To
and payable; then he was entitled to have my mind there is no possible doubt but that it in possession; then he could have mainthe testator intended that the fund should tained an action to recover it. But when go to his grandchild. Indeed, I cannot see that time arrived, as we have seen, he had how more clear and concise language could died, and under the terms of the will his have been used expressive of such intent, right thereto passed to his only surviving and none has been suggested. While it seems child. to be conceded that the language used, liter- In construing wills the rule is that we ally construed, would signify actual pay- should consider all of the provisions, and, ment, yet it is contended that such a con- so far as possible, construe each in harmony struction would be so unreasonable that the
with the others, giving force and effect courts ought not to adopt it, unless the inten- to all. Applying this rule to the provi
. tion of the testator has been expressed in sions of subdivision 4 of the will, we are relanguage so clear and positive as to leave no
quired to give force and effect to the first room for possible doubt; that the objections provision, which has reference to the death to a literal interpretation are that it would of the three sons before the conveyance and not only leave the testator's bounty subject payment to them of their share of the esto accident which he could in no manner fore- tate, as well as to give force and effect to the see, but also empower those intrusted with second provision, which relates to the death the execution of his will to vary or change of those children whose estate is by the its provisions at their own pleasure. My terms of the will put in trust. If, however, answer to this is that a testator's bounty is we are to adopt the contention of the apalways subject to accident until it reaches pellants, it follows that the first provision the possession of the person for whom it must be eliminated and entirely disregarded was intended. If personal property, it may as having no force and effect whatever. TO be lost, stolen by thieves, or destroyed by avoid such a violation of the rule of confire; but none of these accidents could affect struction it is now suggested that the death of any of the children therein referred to same to England. With reference to this meant death within the lifetime of the tes- the Lord Chancellor said: "I rather betator. Not so. The provision does not so lieve he had some such purpose as you atstate and cannot be so read. The executors tribute to him, in his contemplation. There and trustees had no power in the lifetime is a faint indication of a purpose that there of the testator to sell and convey his real shall be some time or other when these inestate, or to pay over the proceeds of such terests shall go over, and that they shall not sale to the beneficiaries until after his death vest in the meantime. But has he conceived and the will had been admitted to probate. that intention and expressed it with such The death referred to, therefore, must have definite certainty that I can act upon it? I been a death after that of the testator am to compute what time would be sufficient and before the "conveyance and payment” to enable these parties to receive their legto such child of his share of the estate. acies. It is all too uncertain." He concluded His share of the estate could not be de- by holding that they vested on the death of termined until the sale had been made, the the testator. In the case of McKinstry v. proceeds collected, and the amount ascer- Sanders, 2 Thomp. & C. 181, the will of the tained, at which time it became due and testator provided that his real and personpayable, and not until then. The death re- al estate should be converted into cash and ferred to was the death of a child occurring a certain legacy paid; that if there was "before" the happening of such sale, not any surplus remaining it should be paid before the death of the testator. If it re- over to his nephews and nieces "who shall ferred to a death during the lifetime of the then be living, to be equally divided betestator, then it would logically follow that tween them.” After the testator's death it meant the same thing with reference to two nieces died before final distribution, and the second provision, pertaining to the es- it was held that the provision "who shall tates of the three children for whom trusts be living" meant the nephews and nieces were created, a construction which no one who were living at the time of the testator's so far has contended for as proper. If such death, and that their interest became vestwere its meaning, then the clause would be ed as of that date.
, meaningless and of no force or effect; for This is in accord with a number of deunder the statute a legacy payable to a cisions in this court, and the correctness of child of the testator does not lapse by rea- the conclusion is not questioned. But it son of his death before that of the testator, will be observed that it has no application where he has children living who can take to the question under consideration, for there in his place.
is no provision in the will divesting the While conceding that the words used nephews and nieces, or either of them, of in the will, literally construed, would signify their share in the estate by their death actual payment and indicate an intent on after that of the testator and before final the part of the testator that upon the death payment. In Finley v. Bent, 95 N. Y. 364, of Frank before such payment his share the testator, after making certain provishould go to his child, it is contended that sions for his wife, devised and bequeathed such literal construction ought to be re- all the residue of his estate, both real and jected for the reason that Lord Thurlow personal, to his executors in trust, with over a century ago said: "Suppose he had directions to sell and dispose of his real given a real estate in the manner you specify, estate as soon as they conveniently could it is clear that it will neither depend upon after his decease, and then divide the prothe caprice of the trustee to sell, for that ceeds into three shares, one for each of would be contrary to all common sense, nor his three children, and to invest the shares upon his dilatoriness. In some way it may separately upon bond and mortgage be sold immediately, but I should not in- real estate, or in interest-bearing secuquire when a real estate might have been rities of the state of New York or of the sold with all possible diligence.” This quo
United States. At the expiration of one tation is to be found in the case of Hutchin year from the death of the testator each v. Mannington, 1 Ves. 366. In that case child was to be paid out of the principal Hutchin died in the East Indies possessed of his or her share the sum of $7,000, at of a personal estate amounting to the sum the expiration of two years the sum of $5,of £8,627. By his will he gave certain 000, and at the expiration of five years the legacies to his brothers and sisters and to balance of his or her respective shares. his father; the will containing a provision The will then provided that, "should either that in case of the death of either of them of my children die before the full payment before receiving the legacy, it should go to of the whole of his or her share of such the children of the legatee so dying. The residue, then my executors shall pay the father died after the testator, but before share of the child so dying, or so much he had received his legacy. It was claimed thereof as shall remain unpaid, to his or that inasmuch as the personal estate was her lawful issue then surviving." One of in the East Indies it did not vest until suf- the daughters died after the expiration of ficient time had elapsed to transport the five years, leaving a husband and an infant