WILLS. POWERS.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

In re settlement of Anna M. Piffard et al., exrs.

Decided Oct., 1886.

The rule of the common law requiring affirmative evidence in a will of intent to execute a power of appointment is abrogated by statute and the rule declared by the statute is applicable to personal as well as real property.

The intent of the testator to dispose of all his property should be effected, if the circumstances will permit, and such intent can only be carried out in this case by giving effect to the execution of the power of appointment, as executed in the will of his daughter.

That the words "my property " as used in

the will of the daughter cannot be treated as words of limitation, but embraced all the property which she then, or in any future event, had the right to dispose of by will pursuant to any power devolved upon her.

ecutors to sell his personal and real property and after payment of debts, etc., he bequeathed onefifth of remaining proceeds to his daughter, Sarah Eyre Piffard. By a codicil dated April 24, 1878, he made some changes in executors and confirmed his will in every respect not modified by the codicil and added: "I do hereby direct that my said daughters Sarah and Anna, named in said will, shall have power by their several wills, heretofore or hereafter made and executed, to dispose of, devise and bequeath the share of my estate devised and bequeathed to them severally in and by my will, and to that end I direct that such share or shares shall be paid over by my executors to the executors or trustees named in and by the several wills of my said daughters, in case of the death of them or either of them in my lifetime, instead of my said daughter, but if my said daughters shall survive me, then such share or shares shall be paid to them severally as now provided and made by my said. will." Testator afterwards made four other codicils, changing executors, and making some slight changes not in any respect affecting the question in this case, and at the time of making such codicils expressly confirmed the said will and previous codicils except as modified. Sarah made her will Aug. 21, 1880, disposing of all her property. She died Aug. 26, 1881,

David Piffard, by will dated July 24, 1876, directed his ex

and letters testamentary issued to the executors by her appointed. David Piffard made the last codi

cil to his will June 3, 1882, in which he says: "I hereby ratify and confirm my said will and the four foregoing codicils thereto except as expressly modified by this codicil." He died June 27, 1883, and his will and codicils were duly probated, Sept. 3, 1883.

On the judicial accounting of his executors before the Surrogate's Court, after a contest, the surrogate determined that the legacy of one-fifth to Sarah E., amounting to $6,005.94, had not lapsed and should be paid to the executors of her will. Decree entered accordingly, from which this appeal is taken by the executors of David. John R. Strang, for applt.

the power was his survival of the donee of the power, and in that event only did he direct payment of the fund to the executors of his daughter's will. Such direction in that event is unqualified. The right of the execution of the power and disposition of the fund was not confined to a testamentary instrument made after that of the donor, but gave the effect of its execution to the will of the donee, if such will had been before made. Miss Piffard, deceased, disposed of all her property by the terms of her will, and the words used, "my property," cannot fairly be treated as words of limitation to property vested in her at the time of her de

F. H. Wilson, for Emma Piffard, contestant and respt.

Held, That the provisions of the will of David Piffard make the will of his daughter operate as executive of the power in the event only that he survives her, otherwise the fund goes to her as its sole beneficiary legatee; that the rule declared by the statute, 1 R. S., 737, § 126, abrogating the rule of the common law requiring affirmative evidence in a will of an intent to execute it by a power of appointment is applicable to personal as well as to real property. 86 N. Y., 522; 92 id., 296.

That the testator evidently in

which she then, or in any future event, had the right to dispose of by will pursuant to any power devolved upon her. 1 R. S., 737, $126; 92 N. Y., 295, 301.

That the legal effect of the provisions of the will of David Piffard was to impose on the will of his daughter the intent on her part to execute the power and to pass the fund to her legatees.

Decree affirmed.

Opinion by Bradley, J.; Smith, P.J., and Barker, J., concur.

SPECIFIC PERFORMANCE. BOND FOR A DEED. CONTRACT.

erty, and his purpose in that respect should be made operative if circumstances permit. 53 N. Y., 351. The situation he had in view to give effect to the execution of

TERM. FIFTH DEPT.

Julia Martin, respt., v. Jesse Colby, applt.

Decided Oct., 1886.

An agreement to convey embraces an agreement to sell, and an obligation assumed in an instrument in the form of a bond to execute and deliver a deed of certain premises upon payment by the obligee of a certain sum of money is as effectual as an agreement to convey such premises as if it was in the form of a simple contract.

and deliver to the said Julia Martin, her, etc., a good and sufficient warranty deed in fee simple with the usual covenants of same lands described in a certain deed this day executed by L. C., to Jesse C., then this obligation to be

a deed of a portion of the premises, before the time designated by the instrument for its performance, by the consent of the parties, is not necessarily a satisfaction or performance of the contract. It is a part performance and its effect is to be determined by the agreement which produced such partial performance. That by the terms of the instrument in question the obligation to pay for improvements would seem to have been designed to create a liability, rather than a condition precedent, and plaintiff was not bound to make tender or payment of the value of such improvements as a condition to the right to a deed of convey

ance.

While it is presumed when nothing appears to the contrary that a party is able to specifically perform, he is permitted to show that he cannot; and it is error to refuse to allow defendant to prove that his wife refused and will not sign a deed of conveyance of the lands in question. In such case plaintiff cannot be required to accept a conveyance less valuable than that to which he is entitled, but he can

and virtue; and the said J. M. shall pay in addition to the stated sum for all improvements that the said J. C. shall have done during the year." The premises referred to contained 160 acres, and was in three parcels, one of which consisted of thirty-five acres, and was by defendant conveyed on the first day of March, 1880, to plaintiff for the expressed consideration of $3,000. Plaintiff, Feb. 5, 1881, caused a tender to be made to defendant of the balance of the purchase money, and demanded a deed for the remaining 125 acres. Defendant refused to give deed, claiming that his bond had been canceled and was satisfied. Thereupon this action was brought.

The trial court found the bond was still operative and directed a

can effectually execute and damages for the deficiency. He must take either such deed or seek his remedy in damages. Appeal fron judgment of Erie Special Term.

Action for specific performance. Feb. 5, 1880, defendant made to plaintiff his bond in the penal sum of $10,000, conditioned "that if the said Julia Martin, her, etc., shall pay Jesse Colby his, etc., the just and full sum of $5,850, and interest from the date thereof, the said Jesse Colby, his, etc., shall execute

to plaintiff on notice that the residue of the purchase money was paid into court. Defendant appeals.

C. F. Tabor, for applt.
L. P. Perkins, for respt.

Held, That the agreement to convey embraces that to sell; and the obligation in form imposed upon defendant by his bond was the performance of the condition expressed in it, as effectually as if in the form of a simple contract. It is something more than a naked

condition which was involved in Palmer v. F. P. & C. RR. Co., 13 N. Y., 376. The condition of the bond expresses the purpose for which the obligation is assumed, and has the support of it for the purpose of the remedy.

That no form of words or phraseology is necessary to the creation of a contract obligation; it is sufficient that the intention of the parties is fairly manifested, and when that is found in the phraseology of the instrument it must be construed accordingly. The obligation of defendant having been assumed upon a sufficient consideration he was charged with the duty to perform the undertaking. 2 R. S., 135, § 8; 14 N. Y., 584; 9 id., 229; 16 Wend., 460; 42 N. Y.,

524.

That the execution and acceptance of a deed of a portion of the premises between the parties was not necessarily a satisfaction or rescission of the contract. It was a part performance by the consent of the parties, and the effect of such conveyance depended upon the agreement which produced it. Upon this question the finding of the trial court is conclusive. Defendant's bond remained operative, and his obligation on payment of the purchase money remaining unpaid continued and required him to convey the residue of the premises to plaintiff.

That by the terms of the instrument the obligation of plaintiff to pay for improvements made by defendant would seem to have been designed to create a liability rather than a condition precedent. And And

plaintiff was not bound to make tender or payment for such improvements as a condition of her right to demand a deed.

Defendant alleged in his answer and offered to prove on the trial that his wife refused to sign and would not sign a deed for the remaining 125 acres. The court refused to allow defendant to give this evidence and defendant excepted. The court held and directed a judgment that defendant execute and deliver to plaintiff what is known as a full covenant warranty deed, and to this conclusion defendant excepted; and the court refused to determine that the deed should not contain a covenant against a claim or right of dower of defendant's wife, to which also defendant excepted.

Held, That it will be presumed when nothing to the contrary appears that a party is able to specifically perform his undertaking, but he is permitted to prove that he cannot, and such fact when established is in the way partially or wholly of that form of relief. A party is not usually required by the judgment of the court to do that which he cannot do. The deed which defendant by this judgment is required to give cannot be made unless the wife joins in the execution. 10 Johns., 266; 15 Barb., 17. Plaintiff is not required to take a conveyance less valuable than that which performance of the contract requires. On such case plaintiff could not take such deed as defendant could effectually execute, and damages for the deficiency in the convey

ance; but his remedy would be for damages only. 56 N. Y., 12; 16 Hun, 422. It was error to exclude the evidence offered, and unless plaintiff is willing to accept a deed of conveyance from defendant with covenants so qualified as to obviate that question a new trial must be granted.

Judgment reversed and new trial granted, unless plaintiff stipulates to so modify the judgment | as to direct that conveyance be made subject to inchoate right of dower of defendant's wife on the 5th of Feb. 1880, and in that event judgment affirmed without costs of this appeal to either party.

Opinion by Bradley, J.; Smith, P.J., and Barker, J., concur.

VARIANCE.

contract in writing for such copartnership was made, but it was verbally agreed that E. should furnish all things necessary for the business and receive four-fifths of the profits, and plaintiff should take charge of the business and give his time and skill to it and receive one fifth of the profits; that after E.'s death the business was conducted by plaintiff and defendant under the terms of said copartnership agreement; and it demanded an accounting and payment of what should be found due. The answer denied the copartnership, or that any balance or sum was due plaintiff growing out of any copartnership between them.

On the trial the court held that there was no partnership, but refused to dismiss, received evidence as to the accounts between the parties and rendered judgment for

TERM. SECOND DEPT.

Ezra White, respt., v. Minerva E. Gaines, applt.

Decided Dec., 1886.

The complaint alleged a partnership under

a verbal contract by which plaintiff was to take charge of the business and receive a share of the profits. The answer denied the partnership. On the trial plaintiff failed to prove a partnership, but was allowed to recover for services under the contract. Held, No error. Appeal from judgment in favor of plaintiff, entered on findings at Special Term.

Plaintiff's complaint alleged that he and one E., then defendant's husband, entered into a copartnership in the business of conducting a business college; that no Vol. 25-No. 16.

due.

O. D. M. Baker, for applt.
Henry M. Taylor, for respt.

Held, No error. If all the allegations of partnership were stricken from the complaint, enough would remain to sustain a labor recovery for work and payable by a share of the profits. The fact that an accounting was asked for as a part of the relief is no objection to the maintenance of the action. Plaintiff proved an agreement that he carry on the business of defendant for her and receive in payment therefor onefifth of the profits of the business. Upon Upon such proof being made, an account of the business followed as a necessary step to en