and thereupon the plaintiff brought this action for its specific performance.

We

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. 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 help the delendant 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 material, 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 with

out reasonable notice to the party in default to comply with the contract within a specified time. Pomeroy's Eq. Jurisprudence, § 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 are of opinion, therefore, that the judgments 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.

EDWARD T. BARTLETT, VANN, WERNER and WILLARD BARTLETT, JJ., concur. GRAY, J., dissents. CHASE, J., not sitting.

Judgment reversed, etc.

(186 N. Y. 99)

CONSTRUCTION

MARCH et al. v. MARCH et al. (Court of Appeals of New York. Oct. 2, 1906.) WILLS 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

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, certain defendants appeal. Affirmed.

Wm. B. Hornblower, for appellants. Mornay Williams, for respondents.

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

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 McIlvaine, 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. 78 N.E.-45

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 and at such times and on such terms as they might think proper. This provision was doubtless mandatory and operated to convert realty into personalty. Lent v. Howard, 89 N. Y. 169; Hope v. Brewer, 136 N. Y. 126134, 32 N. E. 558, 18 L. R. A. 458. But this does not affect the discretionary power given as to the terms and time of the sale. When the sale was made and the proceeds received it became the duty of the trustees to set apart three-sixths thereof for the benefit of the three trusts created in favor of the two daughters and the son Seth, and to pay the other three-sixths thereof to the other son. The executors and trustees, it appears, did proceed and sell the Virginia property. It is found as a fact and conceded upon the argument that such sale was made in good faith by the executors and trustees, and at the earliest date at which it could properly have been made. But at the time the sale was made Frank had died, leaving his daughter, Mary McIlvaine, his only surviving issue. Referring again to the provisions quoted, we find two distinct classes referred to. The first embraces any of his children dying before the conveyance and payment to him of his share of the estate, clearly meaning the three sons, who were entitled to their share after the sale and conveyance of the real estate had been made; and the other to either of his children dying, whose share of his estate had been placed in trust, thus including the two daughters and his son Seth. So that, in case of the death of any of the sons whose estates were not in trust before the conveyance and payment to them, or in case of the death of either of the children whose estates had been put in trust, the direction was to pay and assign the share of the child so dying to his or her issue absolutely. To my mind there is no possible doubt but that the testator intended that the fund should go to his grandchild. Indeed, I cannot see how more clear and concise language could have been used expressive of such intent, and none has been suggested. While it seems to be conceded that the language used, literally construed, would signify actual payment, yet it is contended that such a construction would be so unreasonable that the courts ought not to adopt it, unless the intention of the testator has been expressed in language so clear and positive as to leave no room for possible doubt; that the objections to a literal interpretation are that it would not only leave the testator's bounty subject to accident which he could in no manner foresee, but also empower those intrusted with the execution of his will to vary or change its provisions at their own pleasure. My answer to this is that a testator's bounty is always subject to accident until it reaches the possession of the person for whom it was intended. If personal property, it may be lost, stolen by thieves, or destroyed by fire; but none of these accidents could affect

the intention of the testator or the construction that should be given to his will. Every person is liable to die, and no testator can foresee the time or manner of the death of a devisee or legatee. The death of such a person may change a testator's property from one channel into another, but how could this affect the original purpose or intent of any particular testator.

Finally, it is urged that, if actual physical payment of the fund into the hands of the legatee is necessary, then the executor might, through litigation or otherwise, postpone the payment until after the death of the legatee and thus divert the legacy into another channel. But no one contends that actual physical payment of the fund into the hands of the legatee is necessary. That is not the question here presented. Of course, executors and administrators cannot change the rights of parties by improper litigation. No such question has been presented in this case. The executors and trustees have acted in good faith, have sold the real estate and converted it into money as soon as it was possible or proper for them to do so, and have fully performed their duty in that regard, as has been found and conceded in this case. If they had not performed their duty in that regard, Frank, during his lifetime, had his remedy to enforce such performance. The question in this case is: When did the fund become due and payable to Frank? When could he have maintained an action against the trustees to recover his share of the proceeds of the real estate? Under the will they were required to sell at such times and on such terms as was proper. The fund derived from the sale was then to be distributed in the manner specified in the will. It was then that Frank's share became due and payable; then he was entitled to have it in possession; then he could have maintained an action to recover it. But when that time arrived, as we have seen, he had died, and under the terms of the will his right thereto passed to his only surviving child.

In construing wills the rule is that we should consider all of the provisions, and, so far as possible, construe each in harmony with the others, giving force and effect to all. Applying this rule to the provisions of subdivision 4 of the will, we are required to give force and effect to the first provision, which has reference to the death of the three sons before the conveyance and payment to them of their share of the estate, as well as to give force and effect to the second provision, which relates to the death of those children whose estate is by the terms of the will put in trust. If, however, we are to adopt the contention of the appellants, it follows that the first provision must be eliminated and entirely disregarded as having no force and effect whatever. To avoid such a violation of the rule of construction it is now suggested that the death

of any of the children therein referred to meant death within the lifetime of the testator. Not so. The provision does not so state and cannot be so read. The executors and trustees had no power in the lifetime of the testator to sell and convey his real estate, or to pay over the proceeds of such sale to the beneficiaries until after his death and the will had been admitted to probate. The death referred to, therefore, must have been a death death after that of the testator and before the "conveyance and payment" to such child of his share of the estate. His share of the estate could not be determined until the sale had been made, the proceeds collected, and the amount ascertained, at which time it became due and payable, and not until then. The death referred to was the death of a child occurring "before" the happening of such sale, not before the death of the testator. If it referred to a death during the lifetime of the testator, then it would logically follow that it meant the same thing with reference to the second provision, pertaining to the estates of the three children for whom trusts were created, a construction which no one so far has contended for as proper. If such were its meaning, then the clause would be meaningless and of no force or effect; for under the statute a legacy payable to a child of the testator does not lapse by reason of his death before that of the testator, where he has children living who can take in his place.

While conceding that the words used in the will, literally construed, would signify actual payment and indicate an intent on the part of the testator that upon the death of Frank before such payment his share should go to his child, it is contended that such literal construction ought to be rejected for the reason that Lord Thurlow over a century ago said: "Suppose he had given a real estate in the manner you specify, it is clear that it will neither depend upon the caprice of the trustee to sell, for that would be contrary to all common sense, nor upon his dilatoriness. In some way it may be sold immediately, but I should not inquire when a real estate might have been sold with all possible diligence." This quotation is to be found in the case of Hutchin v. Mannington, 1 Ves. 366. In that case Hutchin died in the East Indies possessed of a personal estate amounting to the sum of £8,627. By his will he gave certain legacies to his brothers and sisters and to his father; the will containing a provision that in case of the death of either of them before receiving the legacy, it should go to the children of the legatee so dying. The father died after the testator, but before he had received his legacy. It was claimed that inasmuch as the personal estate was in the East Indies it did not vest until sufficient time had elapsed to transport the

same to England. With reference to this the Lord Chancellor said: Chancellor said: "I rather believe he had some such purpose as you attribute to him, in his contemplation. There is a faint indication of a purpose that there shall be some time or other when these interests shall go over, and that they shall not vest in the meantime. But has he conceived that intention and expressed it with such definite certainty that I can act upon it? I am to compute what time would be sufficient to enable these parties to receive their legacies. It is all too uncertain." He concluded by holding that they vested on the death of the testator. In the case of McKinstry v. Sanders, 2 Thomp. & C. 181, the will of the testator provided that his real and personal estate should be converted into cash and a certain legacy paid; that if there was any surplus remaining it should be paid over to his nephews and nieces "who shall then be living, to be equally divided between them." After the testator's death two nieces died before final distribution, and it was held that the provision "who shall be living" meant the nephews and nieces who were living at the time of the testator's death, and that their interest became vested as of that date.

This is in accord with a number of decisions in this court, and the correctness of the conclusion is not questioned. But it will be observed that it has no application to the question under consideration, for there is no provision in the. will divesting the nephews and nieces, or either of them, of their share in the estate by their death after that of the testator and before final payment. In Finley v. Bent, 95 N. Y. 364, the testator, after making certain provisions for his wife, devised and bequeathed all the residue of his estate, both real and personal, to his executors in trust, with directions to sell and dispose of his real estate as soon as they conveniently could after his decease, and then divide the proceeds into three shares, one for each of his three children, and to invest the shares separately upon bond and mortgage on real estate, or in interest-bearing securities of the state of New York or of the United States. At the expiration of one year from the death of the testator each child was to be paid out of the principal of his or her share the sum of $7,000, at the expiration of two years the sum of $5,000, and at the expiration of five years the balance of his or her respective shares. The will then provided that, "should either of my children die before the full payment of the whole of his or her share of such residue, then my executors shall pay the share of the child so dying, or so much thereof as shall remain unpaid, to his or her lawful issue then surviving." One of the daughters died after the expiration of five years, leaving a husband and an infant