Woodruff v. Woodruff

• Decision Date: 16 October 1888
• Citation: 16 A. 4,44 N.J.E. 349
• Parties: WOODRUFF v. WOODRUFF et al.
• Court: New Jersey Court of Chancery

16 A. 4

44 N.J.E. 349

WOODRUFF

v. WOODRUFF et al.

Court of Chancery of New Jersey.

October 16, 1888.

(Syllabus by the Court.)

On bill and answer.

Barker Gummere, for complainant. George D. Scudder, for defendant.

MCGILL, Ch. George Woodruff, the complainant's father, died in 1846 seized and possessed of a farm near Trenton, called "Oaklands." During the previous year he made his last will, by which he devised the possession and use of the farm to his wife, Jean Woodruff, for the mutual benefit of herself and the testator's son Patrick Houstoun Woodruff, during the wife's life, and, after her death, to his four sons, Patrick, Robert, Thomas, and Dickinson, in fee, as tenants in common; charging the farm, however, with the payment of one-fifth its value for the benefit of his daughter, Mary. After the death of Jean Woodruff, the provision for Mary was duly made, so that the title to the farm vested in the four brothers in fee, free from incumbrances. Afterwards, in 1851, Robert and Thomas Woodruff conveyed their respective one undivided fourth interests in the farm to their brother Patrick, and in 1856 the complainant, Dickinson Woodruff, also conveyed his one undivided fourth part of the farm to Patrick. The complainant's deed to Patrick is inter partes, and recites that, "in consideration of various sums of money to him in hand paid," he grants, bargains, sells, etc., to Patrick, party of the second part, and his heirs and assigns, all the complainant's right, title, and interest in the farm known as "Oaklands," to have and to hold the same unto Patrick, his heirs and assigns, forever: "provided, nevertheless, and upon the following conditions: That if the said grantor, A. Dickinson Woodruff, shall survive the said grantee, P. Houstoun Woodruff, he, the said grantor, shall have the right, at any time within eighteen months after the death of said grantee, to purchase back again all the right, title, and interest in said farm, 'Oaklands,' hereby conveyed, at a valuation to be then made by two disinterested persons, one of whom shall be selected by the legal representatives of the said grantee, and the other selected by said grantor, and in ease of disagreement the persons so selected may choose a third person." Patrick Woodruff died in December, 1886, leaving a daughter, Louisa C. Woodruff, his only child, him surviving. He died testate, having by his will appointed his daughter Louisa and one Charles P. Stratton the executrix and executor thereof; and having also by it devised to Charles P. Stratton, in fee, the farm "Oaklands," and bequeathed to him other property, upon the following trust: "For the use and benefit of my dear daughter, Louisa Caroline, and her issue, if any she may have, in the manner hereinafter directed; that is to say, in trust to permit my said daughter, at her choice and pleasure, to reside at and upon my said farm called 'Oaklands,' and to take and recover the rents, issues, and profits thereof to and for her own use and benefit; she paying the taxes thereon, and keeping the farm and buildings in good condition and repair, so long as she may choose to reside thereon, and, in case she choose not to reside thereon, then in trust to rent and lease the said farm on such terms and conditions, and for such length of time, as my said trustee shall deem most to the benefit and advantage of my said daughter, and collect and receive the rents, issues, and profits thereof, and to pay the same from time to time as he may receive the same, after deducting thereout all necessary expenses, unto my said daughter, for her own use and benefit; and in further trust, with the consent and approbation of my said daughter, (but not otherwise,) to sell and convey in fee-simple the said farm, or any part thereof, and all and every other part of my real estate which may belong to me, to such person or persons, and for such price, and on such conditions, as my said trustee shall deem most advantageous, and as my said daughter shall consent to and approve, and the moneys arising from such sale to put out at interest, and the interest thereof, from time to time, to collect and receive, and pay the same annually or oftener, if he shall receive the same oftener, unto my said daughter, for her own use and benefit; * * * and I do further direct that if my said daughter, being single and unmarried, shall, at any time, deem it necessary and proper to use any part of the principal of said trust fund, then my said trustee shall, whenever she shall request him to do so, pay over to her, for her own use, so much of said principal as she shall desire. But if my said daughter should marry, then, during her married life, she is to receive only the interest of said trust fund, and shall not have the right to call on said trustee for any part of the principal thereof; but, if she should become a widow, then she shall, during her widowhood, have the same right to call for a part of said principal of said trust fund for her own use, and said trustee shall, on her request, pay over to her so much of said principal as she may request and desire." Provision is then made that if the daughter shall die leaving children the principal of the trust fund shall go to them, and that if a child of the daughter shall die during the daughter's life, leaving children, then those children shall take their parent's share. The testator then continues as follows: "And, in case my said daughter should die without leaving any child or children, or the issue of any child or children, then I direct that all the said trust-estate remaining at her decease shall go to my three brothers, Robert I. Woodruff, Thomas M. Woodruff, and Dickinson Woodruff, in equal shares, to their own use forever; and if any of my said brothers should die during my life, or during the life of my daughter, then said trust-estate, that is to say, the share which would have gone to said deceased brother or brothers, if living, shall go to his child or children, if any, in equal parts, and, if there be no child or children, then his share shall go to his surviving brothers or brother, if only one be then living." The trustee, Charles P. Stratton, died during the life of the testator. The brother, Thomas M. Woodruff, also died before the testator, leaving him surviving two children, George and William, who are made defendants in this suit. The complainant tenders himself as ready to comply in all things, upon his part, with the condition or covenant in his deed to his brother Patrick. The defendant Louisa Woodruff refuses to appoint an arbitrator for the purpose of ascertaining the value of the complainant's former interest in the farm. The bill prays (1) that a trustee may be appointed in the place of Charles P. Stratton to execute the trust, and especially as the "legal representative" of Patrick Houstoun Woodruff, to perform, on his part, the terms of the condition or covenant contained in the deed in question, and appoint an arbitrator to agree with an arbitrator to be appointed by the complainant as to the present value of the former interest of the complainant in the farm "Oaklands;" and (2) that the trustee, when appointed, and Louisa Woodruff, may be decreed to convey such interest to the complainant at the valuation of it which shall be ascertained by the arbitrators to be appointed. It is urged for the complainant that his claim to a specific performance of the condition or covenant is entitled to special consideration in this court, because, at law, he cannot recover substantial damages for its breach. The law will not give damages where there is no injury, and there cannot be more than nominal injury, in the eyes of the law, in this case, because he is to give the full value of the interest for its reconveyance to him. He insists the property is of inestimable value to him, as part of his patrimonial estate, about which his affections cling.

It is necessary, first, to determine whether the provision in the deed in question is a condition or covenant. If it be a condition, specific performance of it will not be decreed. A condition differs from a covenant. The legal responsibility of non-fulfillment of a covenant is that the party violating it must respond in damages. The consequence of the non-fulfillment of a condition is a forfeiture of the estate. The grantor may re-enter and possess himself of his former estate. This court, in a proper case, can enforce the specific performance of a covenant, but it cannot enforce the specific performance of that, in a deed, the non-performance of which works a forfeiture of the estate. Woodruff v. Water-Power Co., 10 N. J. Eq. 489,508; Iron Co. v. Erie, 41 Pa. St. 341. Conditions subsequent, especially when relied upon to work a forfeiture, must be created by express terms or clear implication, and are strictly construed. 2 Washb. Real Prop. 447; 4 Kent, Comm. 430; Southard v. Railroad Co., 26 N. J. Law, 13, 20. If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter construction. 4 Kent, Comm. 132. And words in a deed, not, in form, either a covenant or a condition, will be construed as a covenant rather than a condition. The parties to this suit have presented the case upon the assumption that the clause in question, in the deed from the complainant to his brother Patrick, is a covenant. I think they do rightly. While the words "provided nevertheless" and "upon the following conditions" are appropriate words to create a condition, they...