Eli Simonds vs. Cyrus P. Simonds, 3 Met. 558

Wilde, J. This is a bill by which the plaintiff seeks to enforce the specific performance of a written contract, by which the defendant agreed with the plaintiff to purchase of him an undivided moiety of a farm in Lexington, in the county of Middle-sex, at a price agreed. By the agreement, the plaintiff was to convey the estate by a warranty deed, and to give to the defendant a good and perfect title to the same, with certain exceptions not now in controversy.

The defendant, in his answer, admits the contract as set out in the bill, and avers that he has ever been ready to perform the same, on his part, if the plaintiff were able to give such a good and perfect title as he had agreed to give so that the only question raised by the bill and answer is, whether the plaintiff’s title be valid, so as to enable him to convey to the defendant such a title as he had, by his agreement, stipulated to convey.

The plaintiff’s title is derived from Jonathan Simonds, under his last will and testament, by which he devised an undivided moiety of the farm in Lexington to trustees, the income of which, with the income of other property devised to the same trustees, was to be applied by them to the support of his son Albert, during his natural life.

And the other moiety he devised to the plaintiff, his nephew, in fee, on condition that he should carry on the whole farm at the halves, in a husbandlike manner, and pay over one half of the annual income to the trustees or to the guardian of the said Albert, for his sole use and benefit. The case turns on the construction of this condition.

The defendant’s counsel contends that the language of the condition manifests an intention to restrain the alienation of the plaintiff’s moiety of the farm during the life of the testator’s son Albert; that such a partial restraint on alienation would be good in law ; and that such a condition need not be expressly declared, but if it was intended as such by the testator, it would bind the estate. This is undoubtedly true.

For although a general restraint on alienation by a tenant in fee is void, as being repugnant to the nature of the estate, and inconsistent with the essential enjoyment and beneficial use of property ; yet a partial restraint on alienation, for a limited time, may be valid. So the intention of the testator must govern ; and if it clearly appears that he intended to impose such a condition, as the defendant’s counsel contends for, the intention must prevail, although not declared in express words.

But in giving a construction to this will, as to the matter in controversy, we must bear in mind that all conditions, which may defeat or work a forfeiture of an estate, are to be strictly construed, and that such conditions are not readily to be raised by inference and argument. Now on examination of'this will, we have been unable to discover any intention of the testator to in? tose any restraint of the . plaintiff’s right of alienation of the estate devised.

All the con ditions imposed may be performed, and well performed, by the plaintiff, by substitution ; and some of the services required certainly were not expected to be performed by the plaintiff in person. The plaintiff was to carry on the farm in a husbandlike manner ; but this surely might be done by a tenant. So the plaintiff was required to furnish Albert with a horse and chaise, or a carryall, with a suitable driver, to go to meeting, and to visit his relations, connexions and friends, as often as his guardian or trustees should think most prudent.

All the plaintiff was required to do, was to furnish a horse and chaise and a suitable driver, under the direction of the trustees or guardian. So the plaintiff was required to keep that part of the house occupied by Albert, so long as he should occupy it, in a clean condition, to make his bed, and do all his washing. These and other parts of the will, do not indicate any intention of the testator to require the plaintiff personally to perform the condition. The performance of the condition, it seems, was all the testator intended to exact, and not that it should be performed by the plaintiff in person.

But it has been argued by the defendant’s counsel, that the testator expected that Albert and the plaintiff would live together in the same house, and that the personal attendance and attentions of the plaintiff, to administer to Albert’s comfort, were ex peeled and required, so that he might not be exposed to suffering and annoyance from the neglect or ill treatment of strangers. We think, however, that no such inference can be made, with any certainty, from the language of the will.

For the testator makes provision for Albert’s boarding elsewhere than on the farm, whenever the trustees or guardian should consider it advisable for him so to do. And yi fact the said Albert never has resided on said farm ; but, having become dangerous to be at large, he has been ordered to be removed, and is now confined in the State Lunatic Hospital at Worcester, by the order of the judge of probate for the county of Middlesex.

And besides ; the testator evidently intended that the trustees or the guardian of his unfortunate son should have the care and control of his person, and decide where and with whom he wns to live. One of the trustees was Albert’s brother, and would have the strongest inducement to see to it that he should be placed in a situation where he would not be exposed to ill usage or neglect. It was the duty of the trustees or guardian to do this, and it was not confided to the plaintiff.

He was to pay over to them half of the income of the farm ; but in no part of the will is it intimated that he should direct the expenditure. We are, for these reasons, of opinion, that the plaintiff was not bound, according to the true meaning and construction of the will, to perform the conditions of the devise in person, and con sequently that he has a legal right to convey the estate in question to the defendant, and that thereby a good title will vest in him, subject to the conditions, according to the contract. Decree for specific performance.