Santee v. Santee

The opinion of the court was delivered, by Agnew, J. — Whether we take for our guide the will of Joseph Santee, or the judgment-bond given by Simon Santee to Sarah San-tee, we think the result is the same; the provision made for her is for life. The general intent of the testator to provide for his widow during her lifetime, is too plain for argument. It is manifested distinctly in the reservation of the purchase-money payable to Simon and Joseph William for the land devised to them, and the payment of interest to the widow during life, and the reserved principal to her death. It is also clearly stated in the devise and provision made for Joseph William, in the expression “ during her lifetime,” mentioned in the bequest made to her hereinbefore. This is followed immediately by the provision for the delivery of the beef and potatoes, and the way in which they are to be delivered, alternately every other year “ during the time mentioned in the bequest to her hereinbefore.” In the provision for Simon, perhaps the intent is quite as clear, for there the interest of the f500, and the articles, viz., the hog, wheat, rye and hay, are all placed on the same footing, and are to be paid and delivered “ every year during the time mentioned in the foregoing bequest to her.” Now the interest on the $1000, to be paid to her annually, is clearly stated to be for life, so that with the interest, the specific articles to be delivered every year during the time mentioned in the bequest to her, leave no doubt of the meaning. It is evident, from those clauses, as well as from the presumed intent of the testator to provide a comfortable living for her, that in giving to his widow the occupancy of certain rooms, in his dwelling-house during her lifetime, or as long as she may choose to occupy the same herself, he did not by the latter clause intend to restrict the provision for her support, to the period of occupancy of the dwelling-house. This would be a foolish and harsh condition, that she should be supported only so long as she remained in that dwelling. It would be as much as to say, no matter how inconvenient or uncomfortable her residence there might become, she must abide there or lose her support. It is argued, that the [479] judgment-bond is an interpretation of the will by the parties themselves. It is so, and more. It is their agreement, and controls in the absence of fraud or plain mistake, of which there is no evidence. In regard to the delivery .of the specific articles, we think the case is also with the plaintiff below. The testator died on the 28th day of September 1861. Under the will the yearly payments and delivery would begin in one year from that time. The bond which was drawn and executed two weeks after the death of the testator, fixes the 28th day of September 1862, as the time when the payment of the annual interest began. This is evidently, also, the time intended to be fixed for the delivery of the specific articles. Such is the reasonable intendment and construction of the condition of the bond. This being so, we have a case where the time of delivery of the specific articles, to wit, “ a fat hog weighing not less than two hundred pounds, nine bushels of wheat, nine bushels of rye, and the first year’s hay for her cow, and so on alternately every other year during the time aforesaid,” was fixed by the contract. The articles here are specified both as to kind and quantity, and therefore needed no act of the plaintiff by way of election, selection, or determination, of quantity. The case is therefore not governed by the principles of Hamilton v. Calhoun, 2 Watts 139, which required an election and specification of the kind and quantity of the farm products, by the widow, before the articles could be known. But it is governed by the principles of the. common law as stated in Roberts v. Beatty, 2 Penna. R. 71; Barr v. Meyers, 3 W. & S. 299; Fleming v. Potter, 7 Watts 380 ; Stewart v. Morrow, 1 Grant 204; and Allen v. Woods, 12 Harris 78. The time of payment being fixed, and the articles specified, it was the duty of the defendants to be ready with the articles for delivery on the day, and to tender or offer to deliver them to plaintiff on that day. So long as the plaintiff remained in the occupancy of the house and had her fixed residence there, that was evidently intended to be the place of delivery. There the testator died, there the widow was to live, and the farm devised to the defendant adjoined it. After she moved away and had left an agent to receive the articles, the only change in the mode of performance made necessary by the act of the widow, was that, instead of a delivery of course on the premises, it then became the duty of the defendant before the day of delivery, to give notice to the agent of his readiness to deliver and to request him to appoint a place for receiving the articles. But the plaintiff having moved out of the state, when her agent ceased to act, the case became changed. Clearly it was not the duty of the defendant to follow her whithersoever she might go, and to deliver the articles wherever she might be. Duties are often changed by circumstances where the circumstances are produced or caused by [480] the act of the party to whom performance is to he made. Where that party moves out of the state the cases recognise a change in the duty: Roberts v. Beatty, 2 Penna. R. 71. It is old law, that a debtor is not bound to seek his creditor out of the realm: Litt. § 340; Coke Litt. 210, b. This has been recognised as the law in Emlen v. Lehigh Coal and Nav. Co., 11 Wright 83. But still, although the defendant was not bound to seek the plaintiff beyond the boundaries of the state; being the debtor in the contract it does not follow that he could remain passive. He was bound to show readiness to perform, and such a reasonable effort toward performance as the circumstances of the case permitted. And such is the effect of the decision in Roberts v. Beatty, Barr v. Meyers, and Fleming v. Potter, supra. In Maine, it has been held, that if no place be found for delivery, the foreign domicil of the creditor does not absolve the debtor from the duty of ascertaining from the creditor the place where he will receive the goods: Bisely v. Whitney, 5 Greenl. 192. As the evidence stood, it appeared that when the widow’s agent ceased to act, he referred the defendant to Mr. Meyers, as the person to whom the papers were transferred: and it further appears, that in 1868, the defendant paid the money part of his bond (the annual interest) to Mr. Meyers for the years 1866 and 1867; and also that the residence of the plaintiff in Ohio was well known to her agent. On the other hand, the defendant gave no evidence of any effort on his part to ascertain where the articles were desired to be delivered. Under these facts, it clearly was not error in the court to charge that it became the duty of the defendant to have called on Mr. Meyers or to have written to the plaintiff requesting her to designate some suitable place for delivery. Indeed the court gave him rather a greater latitude than the contract warranted, for the time of delivery was fixed by the bond, and it was therefore the duty of the defendant to make his inquiry in due season so as to be ready to deliver at the time fixed for payment. Finding no error in the record, the judgment is affirmed.