Dickson v. Field

Lyoh, J. I. Tbe judgment of tbe circuit court herein, so far as it is adverse to Silas B. Field, tbe defendant, rests upon tbe propositions (1) that Alice Dickson, tbe plaintiff, is not required to live with Silas on tbe homestead farm to entitle her to tbe support provided for her in tbe will of her father; (2) that, although Alice did not, before this action was commenced, request Silas to support her, yet bis failure to do so was a permanent breach of tbe condition in tbe will in favor of Alice upon which tbe homestead farm was devised to him, entitling her to demand tbe cost of her maintenance in cash; (3) that the money value of such support has heretofore been, and while tbe plaintiff continues in health will continue to be, $200 per annum; and (4) that Silas must pay her that sum in cash annually during her life, unless tbe court shall thereafter relieve him therefrom, and a larger sum should tbe court so order in case of her sickness or like disability. "Whether these are or are not correct propositions of law are tbe questions to be determined on tbe appeal of tbe defendant. 1. Is tbe condition of tbe devise to Silas of tbe homestead farm to be construed as requiring Alice to live with him on such farm as a condition precedent to her right to support and tbe obligation of Silas to support her? Tbe condition of tbe devise is expressed in tbe will thus: “ Conditioned said son [Silas D.~\ shall support and maintain my daughter Alice out of said property, above described, during her natural life.” This clause provides in general terms for tbe support and maintenance of Alice out of tbe homestead farm, which we understand to mean that the homestead farm shall be charged with her maintenance, and perhaps [444] that she should be supported out of the products thereof, but has no reference to the place where she shall residé. The clause contains no provision requiring Alice to live on the land devised to SHas, or in his family, or at any other specified place. Neither is there anything in the surrounding circumstances, as they existed when William Field died (in so far as such circumstances are disclosed by the testimony preserved in the bill of exceptions), which will authorize the court to say that he intended any such restriction upon the right of Alice to a support out of the farm. We are not informed whether the father thought Alice would die young or live to old age, whether she would marry or remain single, or whether she would be a helpless invalid or able to labor and care for herself. ITis opinion on these subjécts is a matter of mere conjecture. Moreover, his devises to all his other children were unconditional and absolute. Why should he impose a restriction, or, rather, why should it be conjectured that he intended a restriction which he did not express, upon the enjoyment by Alice of the only provision made for her in his will, except an interest in certain rents, from which she realized $64 only? It could not have escaped his thought that the changing circumstances of his family might, in after years, render it improper that she should reside with Silas, and unjust and cruel to require her to do so. To adopt the construction contended for by the learned counsel for the defendant, the court will be compelled to read the sentence “ out of said property above described ” thus: “ Out of and acpon said property,” etc. In view of the plain language of the provision in question, yet at the same time giving due weight to what may reasonably be supposed to have been the intention of the testator, we do not feel authorized to make this interpolation. The provision must be construed, just as it reads, as giving Alice the absolute right to her maintenance out of the homestead farm, without restriction as [445] to the place of her residence. The learned circuit judge negatived the existence of such restriction. Of course there is no obligation upon Silas to contribute directly or indirectly to the support of the children of Alice, and none is claimed. 2. The condition of the devise to Silas does not require him to pay Alice a cash annuity, or cash sufficient for her maintenance. Had the testator intended cash payments, he would have expressed such intention in very different language. It is scarcely controverted, however, that in the first instance Silas might have discharged his obligation to Alice by delivering to her specific articles necessary to her maintenance, having due regard to the condition in life, of the testator and his family when he died. And it is but reasonable and just to hold that he may deliver the same on the homestead farm, and cannot be required to deliver them elsewhere. Although AUce made no formal demand of such necessaries at the farm or elsewhere, yet, presumably, Silas must have known she was living; that her husband was dead; and that he (Silas) was under obligations to furnish her the means of support. He should have informed her of his readiness to do so. This he failed to do, and his failure puts bim in default, and renders him liable to pay a cash commutation for her past support. Bogie v. Bogie, 41 Wis. 209, 220. The case of Dodge v. Benedict, 59 Vt. 651, is cited by counsel for defendant to sustain the opposite doctrine. It is not in point, because the covenant there under consideration expressly provided the place where the cov-enantees should be supported, and the covenantor was held not bound to support them elsewhere. But counsel rely chiefly on Jenkins v. Stetson, 9 Allen, 128, to sustain their position. In that case, the plaintiff covenanted to support one Polly Gurney for life, in consideration of her bond to devise to him certain property. He supported her on his [446] own. farm seventeen years, when, for the purpose of avoiding her agreement to devise such property to the plaintiff, she left the farm and made a similar agreement with another, to whose wife she devised the property pursuant to such agreement. She died five years later. The plaintiff brought the action against the executor of Polly on her bond. After Polly left the farm he asked her to return but made no offer to and did not support her further. The court held that, under the circumstances of the case, Polly had waived any further support by the plaintiff, and that such failure further to support her was no breach of the plaintiff’s covenant in that behalf. Clearly that case is not an authority here. We hold, therefore, that in the present case no formal demand of support was necessary to charge Silas with the obligation of performing the condition of the will. But we are not prepared to hold that such failure jDuts Silas in default during the life of AUoe, and entitles her to a cash annuity for life. Nothing short of an absolute refusal or neglect to support her, after his obligation to do so and the manner of doing it has been authoritatively adjudicated, should work that result. Hence, we conclude that AUoe is entitled to recover in this action only the reasonable expenses of her maintenance, from the time hereinafter indicated to the date of the judgment to be hereafter entered. 3. The testimony preserved in the record supports the finding that such reasonable expense amounted to $200 per annum. ■ 4. We think the leave to apply to the court to relieve Silas from the payment of the quarterly instalments, or to increase allowances in certain instances, have no proper place in the judgment, and should be omitted therefrom. It follows that on the appeal of the defendant the judgment in its present form cannot be upheld. [447] II. The appeal of the plaintiff presents the single question whether the obligation of Silas to support and maintain Alice commenced at his mother’s death, in September, 1887, when title to the homestead farm vested in him, or May 1, 1888, which was about the time Alices husband died. The circuit court held it commenced at the latter date. It has already been said that the failure of Alice to demand her support did not release Silas from his liability to furnish it. But it was competent for Alice to waive her right to it, as was held in Jenkins v. Stetson, 9 Allen, 128. While her husband lived, it was his duty, under the law, to maintain her. At the same time it was the duty of Silas to do so under his father’s will. She could elect upon which of them she would cast the burden. She received her maintenance from her husband, and thus elected to look to him for it, instead of Silas. This was a waiver by her of the obligation of Silas until the death of her husband, which revived the obligation. W e think the court did not err in computing the cost of her support from May 1, 1888. In view of the relationship of the parties, and the manifest difficulty of determining precisely the rights of the plaintiff and the corresponding obligations of the defendant in respect to the kinds and quantities of articles he should furnish for her support, we are constrained to say that there should be no further litigation between these parties over the provisions in the will of their father. Silas should inform his sister at once that he will deliver to her, at his homestead farm or some o,ther place they may agree upon, all articles necessary for her support, in suitable quantities, and, if they cannot agree upon such articles and quantities, they will be wise if they submit the controversy to the judgment of discreet mutual friends. It will be better still if they can agree upon a cash annuity in place of the specific necessaries. The charge upon the estate of Silas in favor of Alice, ere448 ated by the will of their father, may be a burdensome one. But it was created by the owner of the estate, who had the undoubted right, when he devised it, to impose any lawful charge upon it, even though it might destroy or largely impair the value of the estate of the devisee. The courts are powerless to relieve against it. By the Court.- — ■ On the appeal of the plaintiff, the judgment of the circuit court is affirmed. On the appeal of the defendant, such judgment is reversed, and the cause will be remanded with directions to that court to render judgment for the plaintiff as indicated in this opinion.