Leggett v. Firth

• Decision Date: 12 February 1892
• Citation: 132 N.Y. 7,29 N.E. 950
• Parties: LEGGETT v. FIRTH.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 7

29 N.E. 950

LEGGETT

v.FIRTH.

Court of Appeals of New York,

Second Division.

Feb. 12, 1892.

Appeal from supreme court, general term, second department.

Action by Eliza Leggett against Christopher C. Firth for specific performance of an agreement to purchase real estate. Judgment for defendant at special term was reversed at general term. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by VANN, J.:

Action by the vendor of lands to compel the vendee to perform his agreement to purchase and pay for the same. December 21, 1888, the parties entered into a contract, in writing and under seal, whereby the plaintiff agreed to sell and the defendant to purchase certain premises in the city of Brooklyn for the consideration of $3,550, payable $100 down, $2,250 on the delivery of the deed, and the balance of $1,200 by assuming a mortgage on the land for that amount. On the day agreed upon for performance the plaintiff tendered a deed pursuant to the contract, but the defendant refused to accept it or pay the balance of the purchase money. The defendant, by his answer, denied that the plaintiff owned or was possessed of said premises, and also that she was able to convey and let him into possession of the same. The trial court found that the plaintiff never owned the premises, and dismissed the complaint. The general term reversed the judgment, and made a decree for specific performance.

Frank H. Parsons, for appellant.

James C. Church, for respondent.

VANN, J., ( after stating the facts.)

The plaintiff claims title to the premises in question through Ellisheba Flassilard, the widow and devisee of John F. Flassilard, who died in 1857, leaving said widow and three minor children. By his will, written by his own hand and executed August 1, 1856, he bequeathed to each of his children the sum of one dollar, and to his wife the household furniture, and all the rest of his personal property, ‘after paying from the same legacies already named, to her forever;’ and directed that, if the personal property should not be sufficient to pay said legacies, enough real estate should be sold to raise money to pay them. The remainder of the disposing part of the will was in these words, viz.: ‘I also give, devise, and bequeath to my wife, Ellisheba, all the rest and residue of my real estate, but, on her decease, the remainder thereof, if any, I give and devise to my said children or their heirs, respectively, to be divided in equal shares between them.’ He appointed his wife sole executrix. At the date both of his will and of his death he owned the premises in question, which on the 20th of August, 1859, were mortgaged by Ellisheba Flassilard to one Pernot. The mortgage was afterwards foreclosed, and the premises conveyed by the sheriff to the grantor of the plaintiff. The question presented by this appeal is whether Mrs. Flassilard took the premises either in fee, or a life-estate with power to sell, as claimed by the plaintiff, or a life-estate only, as claimed by the defendant. In ascertaining the intention of the testator, which is the primary guide to the construction of his will, regard should be had to the apparent distinction between the gift of the personalty and that of the realty, as by attaching the word ‘forever’ to the former, and withholding it from the latter, a difference in the nature of the gifts is indicated. This would be of slight importance, were it not for the gift over to his children of the remainder, ‘if any,’ of his real estate, already devised to his wife, upon her decease, by which the intention to discriminate between the two gifts to her is emphasized. When the gift of the real estate is considered by itself, without contrasting its form with that of the personal property, we see that in a single sentence he devised it to his wife, ‘but, on her decease,’ he also devised ‘the remainder thereof, if any,’ to his children. Here the significant words are ‘but’ and ‘if any.’ ‘But,’ as thus used. is a word of limitation, and shows that the testator intended that the previous gift, which was apparently absolute, should not remain absolute, but should be limited by that which followed. It indicates a proviso, condition, or qualification, and, in connection with the rest of the sentence, reduces the previous gift by carving...