Spofford and others vs. Manning & Crommeline, 6 Paige Ch. 383

The Chancellor. Without reference to the merits of the question involved in the demurrer to a portion of the bill in this case, I think the decision of the vice chancellor was clearly right in disallowing the demurrer; as it is unquestionably overruled by the answer. That part of the answer in which the defendant sets up his defence as a purchaser without notice of any right or claim on the part of Hoyt or of those who had derived title from him, would be, if true, a defence to the equitable right claimed under the will and the subsequent election by the children after they became of age.

And although the defendant will not be able to avail himself of the defence of a bona fide purchaser if it should turn out that the complainants were at the time of the purchase in the actual possession claiming the premises in fee, as that would be sufficient to put him upon inquiry both as to their legal and equitable rights, the demurrer is still overruled by this part of the answer.

Again; the concluding allegation, denying all knowledge as to any of the matters of the bill other than those which he had answered, with the general traverse of the answer, puts in issue and answers all the matters attempted to be covered by the demurrer.

But as it may save further litigation between these parties to dispose of the case upon the merits, which were fully argued upon the appeal, I will proceed to examine the question whether the devise to the children, and their acceptance of property devised and bequeathed to them by the will, was an equitable bar to their claim to the reversion in the lands, which their father, had previously-conveyed to Hoyt and others, under the circumstances of this case, even if no release has been executed by them conveying the legal estate.

Upon this part of the case I perfectly agree with the vice chancellor in the view he has taken of this question in the case of Leonard v. Crommeline, (1 Edw. Ch. Rep. 206,) which was a suit in relation to another of the lots conveyed by J. Crommeline under similar circumstances. The principle is this, that where a legacy or devise is given upon a condition, either express or implied, the legatee or devisee cannot in equity be permitted to take the benefit thereof without performing the condition upon which it is given.

And if he receives the legacy, or enters into possession of or disposes of the property devised without previously performing the condition, this court will compel him to perform it. This principle is fully exemplified in the case of The Earl of Northumberland v. The Marquis of Granby, (1 Eden’s Rep. 486.) There a legatee was entitled to an interest under a marriage settlement; and the legacy of furniture and other things was given upon condition of his executing a release of that interest.

The legatee having taken possession of the furniture bequeathed to him, and died without executing the release, Lord Northington decreed his executors to execute the same, although the property released was much more valuable. That decision was afterwards affirmed upon a re-hearing before Lord Camden. (2 Blunt’s Ambler, 657.) The case under consideration is an ordinary case of election, like a legacy or bequest in lieu of dower.

In such cases, where the legatee or devisee has a right independent of the testator, if the devise or bequest is upon condition either express or implied that such right shall be relinquished if the party accept of the conditional gift, it is in equity a relinquishment of the right; and this court will compel him to execute a proper release or conveyance where it is necessary to extinguish the right at law. The party who is bound to make the election undoubtedly is entitled to a reasonable time to inquire and ascertain whether it is for his interest to accept the gift and relinquish the right.

But if he accept the gift without waiting to ascertain what is his interest in the matter his election is determined, and he cannot afterwards refuse to relinquish the right on the ground that the gift was not a fair equivalent therefor. In the case of Lord Lonsdale, (1 Sim. Rep. 105,) which was much relied upon by the appellant’s counsel, there was no conveyance or devise of the school house, or of the land upon which it stood, to the charity; and no intimation in the will that the testator wished the legatee to relinquish his estate in remainder in the land.

The legacy in that case was therefore absolute and not conditional. In this case the allegation in the bill, and which is admitted by the demurrer, is, that the testator devised a large real and personal estate to his children, which they were not to have unless they released their right to the lands that he had previously conveyed; and that after they were of age, they not only took the property devised to them on this condition, but that they actually executed a release to some portions of the lands conveyed.

This was decisive as to the equitable rights of those who had derived title to the premises in question under Hoyt to have a release of the rights of all the children in this lot. And if such a release has not been already given, the defendant Manning who has obtained the legal estate must now execute it, unless he can protect himself as a bona fide purchaser.

If he succeeds in establishing such a defence, of which there is little probability from the facts stated in the bill, the complainants will be entitled to their remedy over against Alfred Crommeline for the value of that part of the property, which he has disposed of contrary to equity. The decretal order appealed from is affirmed with costs ; and the proceedings must be remitted to the vice chancellor.

The complainants to have 30 days to file their exceptions, for the purpose of obtaining a further answer to the part of the bill covered by the demurrer, as well as to any other parts thereof which are not already fully answered. See also Talbot v. The Earl of Radnor, (3 My. & Keen’s Rep. 254,) in which it was held that a legatee could not accept and take a legacy which was beneficial to him and, at the same time, reject one which was onerous and would be a burthen upon the estate.