Thompson v. Whipple Others

5 R.I. 144

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1858
• Status: Published

Opinion

BoswoRth, J.

A motion in this case is made for the distribution of a sum of money now lodged - in the registry of this court. From the proceedings and proofs in the case, it appears, that Amy Ann Blackinton was residuary devisee and legatee, under the will of Almira Brown, of all the estate of said testatrix not otherwise disposed of in her said will. Annexed to the residuary devise and bequest was a condition, ^ that the said Amy Ann Blackinton, as a preliminary measure, shall, before she can receive any benefit from this devise,” cause certain debts and legacies, due from and under the will of Dexter Brown, to be paid or secured to the legatees and creditors of said Dexter Brown, to their full satisfaction; and to take from them such a discharge as will fully exonerate the sureties on a certain bond for the payment of said debts and legacies, given by said Almira Brown, as executrix and residuary legatee of said Dexter Brown.

It further appears^ that before the performance of this condition Amy Ann Blackinton died; and the surety upon the afore mentioned bond of Almira Brown for the payment of the debts and legacies of Dexter Brown, applied to this court by bill in equity filed for that purpose, against the heirs of said Amy Ann Blackinton and the heirs of Almira Brown, to have the estate, thus devised upon condition, sold and applied to reimburse him for the legacies, which he, as surety, had previously paid. By consent of parties a decree of this court was made, referring the subject to a master to ascertain the amount of the legacies and interest, and directing that the estate should be sold, and that the amount of the legacies and costs should be paid out of the proceeds of the sale. This order has been performed, and a surplus arising from the sale is now in the registry of the court.

The question now to be considered arises upon the application filed in' the case by Charles L. "Whipple, who claims, as heir to an undivided half of the estate of Almira Brown, that as Amy Ann Blackinton did not- perform the condition of the devise to her, the estate remains to the heirs at law of Almira Brown as intestate estate; he, therefore, claiming one half of said surplus to be paid to him. On the other hand, the minor children of Amy Ann Blackinton claim, that the surplus shall be paid over to them as heirs to their mother, under the devise to her upon the condition aforesaid.

The legacies directed to be paid, arising under the will of Dexter Brown, were due to the said Charles L. Whipple and his two sisters, now deceased. In his own right, and through the two deceased sisters, Charles L. Whipple would be heir to one half of any undevised estate of Almira Brown.

In the lifetime of Amy Ann Blackinton the debts of Dexter Brown were paid. Since her death the legacies have been paid out of, the estate; and the answer of the heirs of Amy Ann Blackinton claims the surplus, on the ground, that the condition was partly performed in her lifetime, and would have been wholly performed, but for her death about a year and a half after the death of Almira Brown; and that now, the condition having been fully performed, the estate has become absolute.

The claim made by Charles L. Whipple is on the ground of a forfeiture. The condition annexed to the devise, it is claimed, is a condition precedent, and must be strictly performed, or the estate is forfeited. It is said that Amy Ann Blackinton did not cause the legacies to be paid; but that after her decease they were paid by a sale of the estate devised, by means of a proceeding in court.

The doctrine that courts of equity will relieve against a forfeiture in cases where compensation can be made, is, we think, well settled; and the circumstances which govern the interference of the court are not, whether the condition be subsequent or precedent, but whether a just compensation can, or cannot be made. If these legacies were still outstanding, and the heirs of Amy Ann Blackinton had asked the aid of the court to be relieved against the forfeiture, and to have the estate upon paying the amount due, and interest, would this equity be refused ? The doctrine of equitable relief in such cases was recognized by this court in the case of Carpenter and others v. Westcott and others, 4 R. I. 225; and is recognized by numerous authorities. See Cruise’s Digest, vol. 2, title 13, ch. 2, § 32; 2 Story, Eq. Jurisp. §§ 1312-1317, and cases cited. But the claim here is, that the estate is forfeited, notwithstanding compensation has been" made ; and the heir here claims, in effect, that the estate has been forfeited for the non-payment of legacies to himself and the two sisters through whom he claims, notwithstanding they have each been paid, and have accepted the legacies bequeathed to them by the will of Dexter Brown. We think, from the proceedings and proofs in the case, that the condition of the devise to Amy Ann Blackinton has been substantially performed, and that the surplus now in the registry of the court, should be distributed according to the sixth clause of the will of Almira Brown.

The costs of the bill must be paid out of the fund, and the costs arising upon the petition of Charles L. Whipple be decreed against him.