majority">Swift, Ch. J.

This was a devise . of real estate- to the st¡ns of the devisor, they paying to each of Ids daughters three hundred dollars within one year after his decease. The *301devisees failed to pay that sum within the year : and it lias been decided by this Court, that this was a conditional devise, and the devisees not having performed the condition, have no title at law. This is now an application in chancery, stating a tender of the money, and praying for a title to the lands according to the will,

It is a plain rule, that where a condition has not been performed by the time, and compensation can be made, a court of equity will interpose, and grant relief.

But it is insisted, that it appears from the will and tin facts agreed, that a much larger estate was given by the, de - visor to his sons, than to his daughters : and they having failed to perform the condition, by which they have lost their title at law, it is now most equitable that the estate should be divided among the heirs of the devisor, by which the daughters will receive their share ; and that it is unreasonable that a court of equity should interfere, and take away the legal estate from the daughters, and give it to the sons, who have a less equitable right, as they have already received a much larger share of the estate than the daughters. But in these cases, courts of equity cannot be governed by such considerations. It is a fundamental principle of law and equity, that every man has a right to dispose of and give away his property after his decease, in such manner, as he may think proper, provided he conforms to the rules of law ; and the will of the testator must be pursued and carried into effect, if legally expressed. Here, the intent of the testator was to save the lands to the sons, and though thev have not literally complied with the conditions of the devise, so that the estate is gone at law, yet a court of equity, by well known and long established rales, is now as much bound to regard the. intent of the testator, and to give it effect, as a court of law would have been, had the conditions of the devise been performed. No injustice, then, is done in taking the estate from those who have the legal tifie ; for this is carrying into e(lect the intent; of the testator, who liad an indubitable right to dispose of his estate in this manner.

I should advise, that the prayer of the bill be granted.

Hosmer, J.

It has been the invariable practice in equity, to relievo against forfeitures arising from the breach of conditions subsequent, where compensation can he made for the *302¡failure of precise performance. Popham v. Bamjield & al. 1 Vern. 85. Woodman v. Blake, 2 Vern. 222. 1 Eq. Ca. Abr. 107 & seq. " Wherever the court can give satisfaction or compensation for the breach of a condition, they can relieve.” Grimston v. Lord Bruce & ux. 1 Salk. 156. It has been done in behalf of the voluntary devisee against the heir at law. Barnardiston v. Fane & al. 2 Fern. 366. The present case is free from doubt j and the relief sought is entirely conformable to good conscience.

The other Judges were of the same opinion, except Gotjxd, J., who gave no opinion, having been of counsel in the cause.

Relief to be granted according to the prayer of the bill.

Citation profile

How this case has been treated — in progress