Miller's Adm'r. v. Miller's Adm'r , 5 Del. 333 ( 1851 )

Booth, Chief Justice,

charged the jury:—1. That if by fraud, accident, or mistake, a life estate only was devised in lands respecting which a bond had been given, to devise a fee, the remedy was in chancery.

2. That in a court of law this bond obliged no more than the conveyance of a life estate, and even that not clear of existing incumbrances ; but certainly clear of any incumbrances afterwards created by the obligor.

3. That the bond was in the alternative, conditioned to pay $900, at the death of James Miller, or to devise the home farm.

4. That the devise of that farm for life, though incumbered with the wife’s dower therein, would be a performance of that condition; ■but if incumbered, as it was in this case, with the wife’s dower in other lands of the testator, this was not a compliance with the condition, and the bond would be forfeited; unless,

Layton and Houston, for plaintiff. Cullen and Saulsbury, for defendant.

5. The obligee, James F. Miller, accepted the land so devised, as devised, in full performance and satisfaction of the bond.

6. That if the bond was forfeited, and the land not so accepted by James F. Miller, plaintiffs would be entitled to recover the money; but that

7. James F. Miller was the executor of James Miller, and the assets of the estate came to his hands; and if this was a debt due to him by reason of the failure to devise the land as stipulated, he had the right and was bound to retain or pay himself out of the assets, if assets sufficient came to his hands. That if the jury found there were such assets, plaintiff could not recover; if not,

8. plaintiff was entitled to recover $900, with interest from the father’s death ; but subject to a deduction of the value of the farm, while it was held by J. F. Miller. For he could not repudiate the devise, and have the land at the same time.

Verdict for defendant.