Dwelley v. Dwelley

Gardner, J. The defendant and her brother conveyed several tracts of land to the plaintiff, taking back a mortgage conditioned for their support and maintenance during their natural lives, as provided in a certain bond. The bond does not specifically require that the support and maintenance shall be furnished only at the dwelling-house mentioned in the same. The defendant contends that the contract is entitled to a liberal construction in her favor, and that she is entitled to the benefit of all reasonable doubts as to the meaning of the terms used, and that such has been the general current of authority in this, as well as in other courts, in cases like the present. There is no well-established rule by which each case shall be governed, but each case must be decided on its own facts, depending upon the language of the contract or instrument and the surrounding circumstances. In Fiske v. Fiske, 20 Pick. 499, 503, Chief Justice Shaw said: “ Perhaps the only rule to be extracted from all the cases is this: that a court will look at all the circumstances of the case, the nature of the property, the residence, occupations, and relations of the parties, the usages of the place and of the business to which the contract relates, and ascertain by reasonable inference what the parties must have understood and mutually expected at the time of the making of the contract, and then adopt that construction which will best and most nearly carry the contract into effect as they intended and understood it.” In that case the condition of the mortgage was to provide a horse for the mortgagee to ride to meeting and elsewhere, when necessary, find her fire-wood for one fire, to be drawn and cut at the door fit for use, give her a good cow, and keep said cow for her during her natural life. The court was of opinion that there was nothing to warrant the construction that the wood was to be furnished the mortgagee only at the house on the farm, on which she then lived, even if the mortgagee had a privilege under her deceased husband’s will to live in the house, it being a privilege which she might exercise or not, at her choice. Conkey v. Everett, 11 Gray 95, was decided upon the following clause of the will of Jason Everett: “ I give and bequeath to my beloved wife, Lucy Everett, her support and maintenance in sickness and in’health, and meaning all that shall or may be [514] necessary for her comfort for and during her natural life fully to be completed and ended, out of my estate.” It was held that, although it was highly probable that it was the expectation of the testator that the support would be furnished at the place of his last residence, yet there was nothing in the terms of the will to give it such a locality. Had there been a devise to the widow of a part of the house for her. occupation, this would have strongly indicated a purpose of the testator that she should there receive her support. We have been referred by the defendant to Wilder v. Whittemore, 15 Mass. 262; Hubbard v. Hubbard, 12 Allen, 586 ; Flanders v. Lamphear, 9 N. H. 201; Craven v. Bleakney, 9 Watts, 19; Wusthoff v. Dracourt, 3 Watts, 240; and Tope v. Tope, 18 Ohio, 520. In all these cases, excepting the last, there is either a bald agreement to maintain, or the right to occupy, without the accompanying obligation to support in the house occupied. In Tope v. Tope, the wife was to have her maintenance “ off of the farm ” while she lived. “ The said Joseph Tope is to let my beloved wife have the house in which I now live while she lives; also he is to furnish her with everything that is necessary for her comfort while she lives.” The court held that, although the testator contemplated that upon his death his wife would continue to reside in the house and there receive her support, yet if she refused to reside there, but preferred to reside elsewhere, the duty of the .son charged with her maintenance was to pay her whatever sum of money it might be considered worth to support her on the farm, and no more. In examining the various cases cited by counsel, but little aid can be derived. Each case must be decided on its own facts, considering the language of the instrument and the surrounding circumstances. In the case at bar, it is evident, that, by the condition of the bond, a personal trust was confided in the plaintiff by the obligees to perform such trust in behalf of the defendant and her brother. The plaintiff agreed to provide for them, “both in sickness and in health, good and proper food, medicine, and clothing, and proper and kind care and nursing during their natural lives, together with fuel for each of them, prepared and housed for their fires, and suitable board and care for a horse for their [515] own use.” This personal trust could not well be discharged except upon the premises where all the parties resided. Considering the entire contract, the intention of the parties to it becomes more evident, “and the said Charles is to have, use, and occupy the westerly front room of the house below, and the southeasterly chamber, for his own and separate use during his natural life; and the said Julia to have, use, and occupy the southwesterly front room of the house (when built) for her own and separate use during her natural life.” Then follow descriptions of other rights and privileges granted the obligees. It is in substance provided that Julia is to occupy the front room during her natural life; that she is to reside there as long as she lives; that she is to have and occupy it for her own separate use during her life. This being the fair meaning of this portion of the condition of the bond, it follows that the provisions made for her in sickness and in health are to be furnished to her in this house, and not elsewhere. The surrounding facts tend to confirm this construction of the bond, and to show what was the real intent of the parties. The house conveyed to the plaintiff was that in which the mortgagees were residing when the mortgage was executed. The mortgagor by the terms of the bond was intending to build additions to the dwelling-house for the convenience of the mortgagees, and he expended between two and three thousand dollars in the necessary alterations and improvements of the premises, in pursuance of a plan adopted by the parties. The bond contained a stipulation that the plaintiff should not dispose of the real estate, including the dwelling-house, without the consent of the obligees, during their natural lives. The bond was explicit in statement as to the accommodations which the defendant and her brother should have in respect to rooms in the plaintiff’s house, and the other privileges granted to them about the house and premises. It appears that part of the contract was necessarily to be executed in the house, and that a change of residence by the mortgagees would impose a greater burden upon the plaintiff in supporting them, and that the contract makes no reference to such a contingency. Until the death of the brother Charles, all the parties acted upon the construction here given to the bond, without doubt or question. [516] Considering all tlie surrounding circumstances in connection with the language of the bond, a majority of the court are of opinion that the bond points out the house of the plaintiff as the place where the care and support of the defendant was to be furnished by the plaintiff, and that the defendant is not entitled to demand that they shall be furnished to her elsewhere. It is not contended by the defendant that, if the entire contract is to be carried out upon the premises and dwelling-house of the plaintiff, there has been any breach of its terms, or that the defendant has not at all times been treated kindly and considerately by the plaintiff and his family. Injunction made perpetual.