APPEAL by the defendant, Caroline Glatner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1911, upon the decision of the court rendered after a trial at the New York Special Term.
George P. Breckenridge, for the appellant.
Charles Putzel [Eliphalet W. Tyler with him on the brief], for the respondent.
In my opinion the defendant by accepting the devise of the real estate became absolutely bound while said real estate remained in her possession to give a home to plaintiff so long
as said plaintiff desires to remain at home and this irrespective of the question what income was derived from the real estate. The provisions of the will respecting the plaintiff and the son Harry are very different. Respecting plaintiff the obligation imposed is absolute and unqualified. The devise to defendant is made subject 'to my said wife giving a home to my daughter Rachel, so long as my said daughter desires to remain at home.' As to the son Harry the similar obligation is qualified in two ways. To him the defendant is to provide a home 'as best as she can' and only 'if he needs it.' No such qualification is attached to the condition in favor of plaintiff. I, therefore, think that all the evidence as to the income realized from the property was immaterial. As I regard it, the acceptance of the devise created a personal liability on the part of defendant either to furnish plaintiff a home, or, failing that, to pay the reasonable cost to plaintiff of providing a home for herself by way of damages for the breach of the condition. In this aspect of the case the plantiff's remedy was an action at law or perhaps successive actions for damages, and I should concur with the presiding justice that this action in equity could not be maintained if defendant had persisted in her objections to such an action. She did not, however, persist. It is true that by her answer she denied plaintiff's allegation that she had no adequate remedy at law, but no point was made of this on the trial, no motion made to dismiss the complaint and no application made for a trial by jury. On the contrary, both parties tried the case as if it was properly brought, and even upon this appeal the defendant makes no question as to the form of the action or as to equity's cognizance thereof. Under these circumstances the parties must be held to have consented to try the case as one in equity, and I see no reason why we should reverse the judgment because it should have been brought on the law side of the court.
The judgment should, therefore, be affirmed, with costs.
CLARKE and MILLER, JJ., concurred; INGRAHAM, P. J., and LAUGHLIN, J., dissented.
INGRAHAM, P. J. (dissenting):
The language of this will disposing of the testator's residuary estate is somewhat peculiar. There is a devise of a life estate
of this real property, and also a bequest of all the residuary personal estate for the life of his wife. She is to have this real and personal estate 'to have and to hold during the term of her natural life, and to have the entire income therefrom; ' and then follows the clause, 'subject, however, to my said wife giving a home to my daughter Rachel, so long as my said daughter desires to remain at home.' The situation that existed was, that the principal property in which the wife had a life estate was a tenement house in which he and his wife and daughter had resided. Undoubtedly the testator contemplated that his wife would continue to reside in the apartment that had been before occupied and that it was at this apartment at which the daughter was to be given a home; and this is emphasized by the subsequent clause which provided that if his wife should remarry or go abroad to live the property should be divided between his children. If from any cause the wife was unable to maintain this home, if the income was not sufficient to pay the interest on the incumbrances of the property, or there was no money of the estate from which to maintain the said home in which the daughter was to share, it would seem reasonable that the wife was to be relieved from this obligation. She was to give a home to his daughter Rachel, and was to provide a home as best she could for the testator's son Harry if he needed it. I, therefore, concur with Mr. Justice LAUGHLIN that the obligation to furnish a home, either for Rachel or Harry, depended upon the defendant being able to maintain a home at which the daughter or son could live. This, however, was merely a charge upon the estate devised. There was no trust, and the effect of an acceptance of the estate subject ...