Dewey J.
delivered the opinion of the Court. The tenant derives title through the widow and heirs at law of Nathaniel Bradstreet, who held the estate under the will of his father, Henry Bradstreet. By the provisions of that will all the personal estate was given to the wife of the testator and also the use of all the real estate during her life, ten dollars to each of the demandants, Daniel and William Bradstreet, and two hun dred dollars to the testator’s daughter, Abigail Kilham, the other demandant, which money legacies were to be paid at the decease of the wife of the testator ; and then follows the devise to Nathaniel Bradstreet, of the reversion of the real estate of the testator at the decease of his wife, and also a devise to him of all the residue and remainder of all his estate, both real and personal, on condition that he should pay all the abovenamed legacies and bequests. This devise to Nathaniel Bradstreet was [394]*394clearly a conditional devise, and to entitle the devisee to hold under it, he must perform the conditions annexed to it.
Admitting this to be the proper construction of the devise, the tenant insists that there has been no breach of tne condition upon which the estate was devised, and no forfeiture of the premises demanded, because there has been no legal demand of the legacy to Daniel Bradstreet, which is the only legacy remaining unpaid.
The demandants insist that no demand was necessary on the part of the legatee, but if it were, that the facts in the case prove such a demand to have been made. It is said that the devisee, taking the estate upon condition, was bound to search out the lega ee and tender him the legacy, and upon failure to do so within a reasonable time, there would be a forfeiture of the estate so devised.
Considering the nature of the original claim of Daniel Bradstreet, that it was in fact a legacy given in proper terms as such, although the payment of it by the executor was made a condition of the devise to him, it would seem to be the duty of the legatee in such a case to request the payment of the legacy, and that until this was done there would be no forfeiture of the estate, occasioned by any non-payment of the legacy. If the rule be a reasonable and just one, requiring in ordinary cases a demand upon an executor for a legacy before he can be subjected to an action at law for the same, there are stronger reasons for its application to a case like the present, where the consequence of the supposed neglect of duty is the forfeiture of an entire estate. If, however, a distinction exists between the ordinary cases of a legacy to be paid by an executor, and a legacy, the payment of which is made the condition of holding an estate devised, as some authorities seem to indicate, and if in the latter case, the general rule would be, where no place is stated in the condition prescribing the payment, that the party who is to pay the money must at his peril seek out the party to whom it is to be paid, the rule must be taken with the wrell known exception, that if he be not within the Commonwea th, the conditional devisee is not bound to seek him, and the con dition in such a case is not broken. Sheppard’s Touchstone, 136.
[395]*395In the present case it is admitted, that Daniel Bradstreet left this Commonwealth more than thirty years since for the western States, and has not returned during that period.
The Court are therefore of opinion, that before there would be a forfeiture of the estate devised to Nathaniel Bradstreet, by reason of the non-payment of the legacy to Daniel Bradstreet, a demand of the payment of the same was necessary.
Was such a demand made ? As regards the objection that the demand should have been made upon Nathaniel Bradstreet, in his lifetime, we are not aware of any legal principle thus restricting the time of making the demand. If it were so, it might happen that by reason of the early death of the conditional devisee, the period for making the demand might be limited to a single month or even a day. Such a doctrine .might do great injustice to legatees. Nor can we perceive any objection to the sufficiency of the demand, because the agent making the same did not exhibit to the tenant his power of attorney, or written authority, "to make such a demand. A similar question arose in the case of Roe, on demise of West, v. Davis, 7 East, 364, which was an action to recover possession of certain real estate for an alleged forfeiture for conlition broken, and the court held if the agent had a power of ittorney and thus stated, it was sufficient, if the party was .satisfied and did not request the production of it. If an exhi 'lition of the authority for making the demand would have been necessary under other circumstances, clearly it was not so in the present case, as the tenant waived all objections of that kind, by saying to the agent, “he did not dispute his word and did not wish to see it.”
But another objection is presented, of a much more serious character, and which we think well entitled to consideration. It is said, that as the demand- was general and included three legacies, two of which had been already paid, it was not a good demand of the legacy to Daniel Bradstreet, which alone remained unpaid.
If the question be, whether from all the evidence in the case, there was enough done to constitute a demand sufficient for enforcing by a suit at law the recovery in money of the legac unpaid, we shou’d have no hesitation in answering in the affirmative.
[396]*396If the d jfence can be maintained at all, it is upon a distinc tion to be taken between the case of a demand for the ordinary purpose of laying the foundation of a suit or proceeding at law to enforce the payment of money, and a demand which shall operate to cause a forfeiture of an estate held on condition. Is there such a distinction ? I think it may be confidently asserted that such a distinction is recognised in books of undoubted authority, and that in the case of a demand which shall operate to avoid an estate, much greater strictness is required.
The principle has been often applied to the cases of leasehold estates held upon condition of paying a stated rent at certain stipulated times, and a distinction made between a demand sufficient to authorize a distress to enforce the payment of rent, and a demand of the rent where the whole lease was to be defeated upon failure to make payment, and the rule has been to require much greater precision in the form of the demand in the latter case, than in the former.
The principle is recognised in Co. Litt. 144 a, 153 b, 202 a, in notis ; Maund’s Case, 7 Coke’s Rep. 112 ; Doe v. Windlass, 7 T. R. 117.
It is more fully stated in Serjeant Williams’ notes to 1 Saund. 286, (note 16,) where it is said, “ where there is condition of re-entry reserved for non-payment of rent, the demand must be of the precise sum due ; for if the demand be of a penny more, or penny less, it will be ill.”
It will be found that many restrictions as to the time and place of making a demand that shall operate to avoid an estate, are stated, which are not regarded in a demand for other purposes.
The recent case of Doe v. Paul, 3 Carr. & Payne, 614, sustains the same doctrine.
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Dewey J.
delivered the opinion of the Court. The tenant derives title through the widow and heirs at law of Nathaniel Bradstreet, who held the estate under the will of his father, Henry Bradstreet. By the provisions of that will all the personal estate was given to the wife of the testator and also the use of all the real estate during her life, ten dollars to each of the demandants, Daniel and William Bradstreet, and two hun dred dollars to the testator’s daughter, Abigail Kilham, the other demandant, which money legacies were to be paid at the decease of the wife of the testator ; and then follows the devise to Nathaniel Bradstreet, of the reversion of the real estate of the testator at the decease of his wife, and also a devise to him of all the residue and remainder of all his estate, both real and personal, on condition that he should pay all the abovenamed legacies and bequests. This devise to Nathaniel Bradstreet was [394]*394clearly a conditional devise, and to entitle the devisee to hold under it, he must perform the conditions annexed to it.
Admitting this to be the proper construction of the devise, the tenant insists that there has been no breach of tne condition upon which the estate was devised, and no forfeiture of the premises demanded, because there has been no legal demand of the legacy to Daniel Bradstreet, which is the only legacy remaining unpaid.
The demandants insist that no demand was necessary on the part of the legatee, but if it were, that the facts in the case prove such a demand to have been made. It is said that the devisee, taking the estate upon condition, was bound to search out the lega ee and tender him the legacy, and upon failure to do so within a reasonable time, there would be a forfeiture of the estate so devised.
Considering the nature of the original claim of Daniel Bradstreet, that it was in fact a legacy given in proper terms as such, although the payment of it by the executor was made a condition of the devise to him, it would seem to be the duty of the legatee in such a case to request the payment of the legacy, and that until this was done there would be no forfeiture of the estate, occasioned by any non-payment of the legacy. If the rule be a reasonable and just one, requiring in ordinary cases a demand upon an executor for a legacy before he can be subjected to an action at law for the same, there are stronger reasons for its application to a case like the present, where the consequence of the supposed neglect of duty is the forfeiture of an entire estate. If, however, a distinction exists between the ordinary cases of a legacy to be paid by an executor, and a legacy, the payment of which is made the condition of holding an estate devised, as some authorities seem to indicate, and if in the latter case, the general rule would be, where no place is stated in the condition prescribing the payment, that the party who is to pay the money must at his peril seek out the party to whom it is to be paid, the rule must be taken with the wrell known exception, that if he be not within the Commonwea th, the conditional devisee is not bound to seek him, and the con dition in such a case is not broken. Sheppard’s Touchstone, 136.
[395]*395In the present case it is admitted, that Daniel Bradstreet left this Commonwealth more than thirty years since for the western States, and has not returned during that period.
The Court are therefore of opinion, that before there would be a forfeiture of the estate devised to Nathaniel Bradstreet, by reason of the non-payment of the legacy to Daniel Bradstreet, a demand of the payment of the same was necessary.
Was such a demand made ? As regards the objection that the demand should have been made upon Nathaniel Bradstreet, in his lifetime, we are not aware of any legal principle thus restricting the time of making the demand. If it were so, it might happen that by reason of the early death of the conditional devisee, the period for making the demand might be limited to a single month or even a day. Such a doctrine .might do great injustice to legatees. Nor can we perceive any objection to the sufficiency of the demand, because the agent making the same did not exhibit to the tenant his power of attorney, or written authority, "to make such a demand. A similar question arose in the case of Roe, on demise of West, v. Davis, 7 East, 364, which was an action to recover possession of certain real estate for an alleged forfeiture for conlition broken, and the court held if the agent had a power of ittorney and thus stated, it was sufficient, if the party was .satisfied and did not request the production of it. If an exhi 'lition of the authority for making the demand would have been necessary under other circumstances, clearly it was not so in the present case, as the tenant waived all objections of that kind, by saying to the agent, “he did not dispute his word and did not wish to see it.”
But another objection is presented, of a much more serious character, and which we think well entitled to consideration. It is said, that as the demand- was general and included three legacies, two of which had been already paid, it was not a good demand of the legacy to Daniel Bradstreet, which alone remained unpaid.
If the question be, whether from all the evidence in the case, there was enough done to constitute a demand sufficient for enforcing by a suit at law the recovery in money of the legac unpaid, we shou’d have no hesitation in answering in the affirmative.
[396]*396If the d jfence can be maintained at all, it is upon a distinc tion to be taken between the case of a demand for the ordinary purpose of laying the foundation of a suit or proceeding at law to enforce the payment of money, and a demand which shall operate to cause a forfeiture of an estate held on condition. Is there such a distinction ? I think it may be confidently asserted that such a distinction is recognised in books of undoubted authority, and that in the case of a demand which shall operate to avoid an estate, much greater strictness is required.
The principle has been often applied to the cases of leasehold estates held upon condition of paying a stated rent at certain stipulated times, and a distinction made between a demand sufficient to authorize a distress to enforce the payment of rent, and a demand of the rent where the whole lease was to be defeated upon failure to make payment, and the rule has been to require much greater precision in the form of the demand in the latter case, than in the former.
The principle is recognised in Co. Litt. 144 a, 153 b, 202 a, in notis ; Maund’s Case, 7 Coke’s Rep. 112 ; Doe v. Windlass, 7 T. R. 117.
It is more fully stated in Serjeant Williams’ notes to 1 Saund. 286, (note 16,) where it is said, “ where there is condition of re-entry reserved for non-payment of rent, the demand must be of the precise sum due ; for if the demand be of a penny more, or penny less, it will be ill.”
It will be found that many restrictions as to the time and place of making a demand that shall operate to avoid an estate, are stated, which are not regarded in a demand for other purposes.
The recent case of Doe v. Paul, 3 Carr. & Payne, 614, sustains the same doctrine. This was a case where it was contended that a forfeiture had accrued by reason of nonpayment of rent, it being stipulated in the lease that if the rent, which was payable quarterly, should be in arrear twenty-one days, the lessor should have a right to re-enter, but it appearing in evidence that the lessor demanded £ 193, whereas the exact quarter’s rent was =675, it was held that the demand was not good, and a failure to pay on such a demand the =6 75, which was legally demandable on that day, would not cause a [397]*397forfeiture of the estate. This rule is certainly just, as well as liberal, and calculated to protect one holding an estate upon condition from embarrassment by reason of unfounded claims, or an uncertainty as to the proper sum to be paid by him. The precise amount due and payable is to be stated by the person making the demand, and this at the peril of him who seeks to enfqrce his claim, and until this is done the neglect to make the payment is not to work a forfeiture.
The application of this rule seems quite as proper in a case like the present, as in those to which it has been so frequently applied. The tenant was not a party interested in the estate of the late Henry Bradstreet, and is not to be supposed to have had personal knowledge as to the payment or non-payment of the three legacies. The demand was of the payment of the legacies which Henry Bradstreet had given in his will. All were demanded and the payment of all was equally insisted upon. It is now conceded that two of these legacies, amounting to the sum of two hundred and ten dollars, had already been paid, and the only legacy then remaining unpaid was that to Daniel Bradstreet, of ten dollars. This was a demand of something exceeding “a penny more,” and falls within the rule stated in Saunders, before cited. It was a false claim, and its effect might well be to induce the tenant to omit the making of any payment, while on the other hand, if the only true and just claim, that for ten dollars, had been stated, he might have discharged it. How that would have been, we know not. It is sufficient that such might have been the operation of it, and therefore the party making a false claim shall not make it the foundation of a forfeiture of the estate.
Approving as we do the rule before alluded to, requiring greater precision and more perfect accuracy in a demand which shall subject the party to a forfeiture of an estate, the Court are of opinion, that no such demand was made in the present case as would operate to divest the tenant of his estate in the premises for a breach of condition annexed to the devise to Nathaniel Bradstreet.
Judgment on the verdict